Conference/Seminars/LecturesLaw School News

The Legal Centre for Women’s Welfare (LCWW), Tamil Nadu National Law University (TNNLU), Tiruchirappalli is organizing the National Conference on Interdisciplinary Perspectives on Women Migrant Workers and Law in India, virtually, on October 30th, 2021.

About the Organizer

TNNLU is located in the Srirangam Taluk of the Tiruchirappalli Corporation, formerly known as Trichinopoly. This institution of learning was established by the Government of Tamil Nadu by an Act of State Legislature (Act No. 9 of 2012) to provide quality legal education.

About Legal Centre for Women’s Welfare

The Centre was established in March 2020. The Centre is the brainchild of the Vice-Chancellor, Prof. V.S. Elizabeth, who is an expert in feminist jurisprudence and has a great concern regarding issues related to women. Law is an effective tool in bringing a change in society, hence the purpose of establishing the Centre is to transform society through changing the attitudes towards women and the status of women by working on Women and Law.

The Centre focuses on all issues related to women, broadly covering Violence against Women, the role of the State in empowering women, the social impediments faced by women and the role of law in addressing these issues.

Eligibility

Academicians, Legal Professionals, Research Scholars, PG & UG students of law and any other related social science disciplines.

Registration link: HERE

Sub-Themes

  1. Impact of COVID 19 on Women Migrant Workers
  2. Rights of Women Migrant Workers under the Indian Constitution
  3. Labour Rights of Women Migrant Workers
  4. Patterns and Determinants of Women Migrant Workers in India
  5. Psychological Issues faced by Women Migrant Workers
  6. Issues of Migrant Women Workers in Unorganised Sectors
  7. Problems of Persons with Disability amongst Women Migrant Workers
  8. Problems of Agency of Women Workers with regard to Migration
  9. Sexual Harassment and Women Migrant Workers
  10. Crimes against Women Migrant Workers
  11. International Instruments protecting the Women Migrant Workers
  12. Need for a Specialised Legal Framework for Protection and Empowerment of Women Migrant Workers in India
  13. Anthropological Perspectives of Migrant Women Workers
  14. The Role of the Government/State in Protection of Various Interests of Women Migrant Workers

The above sub-themes are only illustrative and the participants are free to write on any topic directly connected to the central theme of the Conference.

Research Paper Guidelines

  • Abstract: Not exceeding 300 words
  • Keywords: Maximum of 5
  • Full Research Paper: Should not be less than 3000 words
  • Font style & Size: Times New Roman & 12
  • Line spacing: Double & justified alignment
  • Endnotes: Times New Roman (size 10), Endnotes style: MLA 8th Edition
  • Co-authorship is allowed up to a maximum of 2 authors.

Abstract Submission Link: HERE

Official E-mail of the Conference: wmwconference2021@tnnlu.ac.in

Best Paper Awards

There will be cash awards for two of the best research papers, one in each category:

  1. Best research paper by a faculty member or other scholars
  2. Best research paper by a student

 

Fee Details

The following fee is payable by paper presenters and participants

  • For Students – Rs. 300
  • For Academicians/ Research Scholars – Rs. 500

Each co-author has to register themselves individually and pay the fees applicable individually.

Payment Details

Name of the Account Holder: Registrar TNNLU legal Centre for Women’s welfare

A/C No.: 30030110035443

Bank & Branch: UCO Bank, TNNLS Branch

MICR: 620 028 012

IFSC Code: UCBA0003003

Swift Code: UCBAINBB342

UPI ID: tnnlulegalcntr@ucobank

Important Dates

Last date for Abstract Submission – 15th September 2021

Intimation of Abstract Selection – 20th September 2021

Last Date for Registration – 30th September 2021

Full paper Submission – 15th October 2021

Conference Date – 30th October 2021

Contact Information

Ms. Shanthi Samandha. K, Convener

Assistant Professor (Law),

Tamil Nadu National Law University, Tiruchirappalli.

E-mail: samandha@tnnlu.ac.in

Phone: 09600037393, 09531977493

Mr. Nishant Kumar, Co-Convener

Assistant Professor (Law),

Tamil Nadu National Law University, Tiruchirappalli.

E-mail: drnishant@tnnlu.ac.in

Phone: 09958184809

Click here for the official brochure.

Official link: HERE

Case BriefsCOVID 19Supreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and Aniruddha Bose, JJ., addressed the plight of children orphaned during Covid-19 pandemic. Lauding the steps taken by the Union and State governments to provide succour to the children in need, the Bench expressed,

“It is heart-wrenching to note that the survival of so many children is at stake. We are glad that the UOI and the State Governments / Union Territories have announced schemes to provide succour to the children in need. We have no doubt that the authorities concerned would leave no stone unturned to attend to the immediate basic needs of the crestfallen children.”

The catastrophe caused by the cataclysmic Covid- 19 had devastated many lives, especially children at a tender age who have lost their parents. Notably, more than lakh children have lost either or both parents during this pandemic. The Bench observed that satisfactory progress had been made by the executive in identification of the orphans and those children who had lost a parent during the pandemic. Preparation of Social Investigation Reports and Individual Care Plans was also on track. However, the Bench opined, the inquiries by CWCs need to be expedited to identify children in need of care and protection and immediate steps have to be taken to ensure that the benefits of schemes reach the needy children. The Bench emphasised that the welfare benefits should be provided not only to the children orphaned by Covid-19 but also to those children who had been orphaned during Covid-19.

Emphasising over Article 21A, the Bench stated that all children have a constitutional right to free and compulsory elementary education which is guaranteed by the Constitution. Therefore, the State is duty bound and is obligated to facilitate education for children.

To address the issue the Court had sought information from all the State Governments/Union Territories on following points:

  1. Identification of orphans and children who had lost either parent after March, 2020
  2. Stages of inquiries undertaken by the Child Welfare Committee (‘CWC’) in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the Act’)
  3. Schemes announced by the State Governments/Union Territories for the benefit of such children and the implementation of those schemes
  4. Information relating to the education of the distraught children and their continuation in the schools in which they are studying for the present academic year.

The ASG, Ms Aishwarya Bhati submitted that the education of eligible children up to 18 years was sought to be provided for under the PM CARES For Children – Empowerment of COVID Affected Children, launched for support and empowerment of Covid-19 affected children. According to the said scheme, beneficiaries would be given admission in the nearest Kendriya Vidyalaya or in a private school as a day scholar. On admission of the child in a private school, fees as per the RTE norms would be given from the PM CARES fund. Moreover, the scheme also provided for covering the expenditure on uniforms, text books and notebooks.

Considering the submission made by the ASG that 2600 children eligible for benefits under the scheme had been registered by the State Governments and out of which 418 applications had been approved by District Magistrates, the Bench took notice of the delay on the part of District Magistrates in providing the approval, accordingly, the Bench directed District Magistrates to complete the process of approval of the remaining children whose names had been registered for the benefit of the PM CARES Fund.

The Bench also directed State governments to confer with private schools to waive the fee of the distressed children, who have lost either parent or both parents after March 2020 for the current academic year. The Bench added, in case, the private institutions are unwilling to effectuate 8 such waiver, the State Governments shall shoulder the burden of the fee.

Sensing the inevitable complications, the Bench clarified that after completion of the inquiries, the CWCs may identify those children who do not need care and protection and financial assistance from the States and such children need not be given the benefits announced by the State Governments.

Lastly, the Bench directed the CWCs to complete all pending inquiries within three weeks and State governments were asked to file Status reports within four weeks.[Contagion of Covid 19 Virus in Children Protection Homes: In Re, SMW(C) No.4 of 2020, decided on 26-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

COVID 19Hot Off The PressNews

Standard Operating Procedure for physical hearing (with hybrid option)


In continuation of directions already notified regarding the functioning of the Supreme Court of India, in the wake of the Covid-19 pandemic, more particularly through Circulars dated 14.03.2020, 23.03.2020, 30.08.2020 & 05.03.2021, and on consideration of the requests received from the Bar Associations, and on recommendations of the Hon’ble Judges Committee in that regard, the Hon’ble Chief Justice of India has been pleased to direct as follows :

  1. With a view to gradually facilitate resumption of physical hearing, the final hearing/regular matters listed on non-miscellaneous days may be heard in the physical mode (with hybrid option), as may be decided by the Hon’ble Bench, considering the number of parties in a matter as well as the limited capacity of the Court rooms; further, any other matter may be heard in physical mode on such days, if Hon’ble Bench directs likewise. All other matters, including those listed on miscellaneous days shall continue to be heard through video/tele- conferencing mode;
  2. At the discretion of the Hon’ble Bench, there may be break(s) during the hearings in Courtroom in physical mode, for a period of about 15 minutes, so that Courtroom may be sanitized, during which it is necessary that the entire Courtroom be vacated;
  3. Unless otherwise directed by the Hon’ble Bench, final hearing/regular matters where the number of Advocates for the parties are more than the average working capacity of the Court rooms, as per Covid-19 norms, i.e. 20 (approx.), per Courtroom at any given time, shall invariably be listed for hearing through video/tele-conferencing mode; however, in case the Hon’ble Bench directs hearing of such matters to be held through the physical mode, the appearance of the parties, whether by physical presence or through video/tele-conferencing, will be facilitated as per the directions of the Hon’ble Bench;
  1. In a matter listed for physical hearing (with hybrid option), one AOR [or his nominee], one Arguing Counsel and one Junior Counsel per party will be allowed entry; one registered Clerk per party, as may be chosen by the AOR, shall be allowed entry to carry paper- books/journals etc. of the Counsels upto the Court-rooms;
  2. In any such matter as may be listed for physical hearing (with hybrid option), all the Counsels appearing for one party can appear either through physical mode or through video/tele-conferencing; Advocate(s)-on-Record are required to register themselves on the SCI portal, and submit their preferences for appearing before the Hon’ble Court either through physical mode or through video/tele- conferencing mode within 24 hours/1:00 PM next day, as the case may be, after the publication of the Weekly List of Final Hearing/Regular matters;
  3. Once hearing through physical mode is opted by the AOR/petitioner- in-person, hearing through video/tele-conferencing mode to the party concerned will not be facilitated;
  4. The Entry of the counsels/parties into the HSZ to appear for physical hearing will be through daily “Special hearing passes” which will be issued by the Registry, on the basis of authorization by the concerned Advocate-on-Record on the portal, as indicated in S.No.5 above; (User guide is published separately)
  5. Multiple sets of one chair and table are being placed inside the Court Rooms, in the areas demarcated for Ld. Advocates and it shall be incumbent upon the users to maintain minimum prescribed physical distancing norms between each set, which should not be removed from their positions;
  6. Special Hearing Pass holders, upon completion of necessary formalities, online or otherwise as may be notified in due time, shall enter the High Security Zone through the designated Gate, after subjecting themselves to check by thermal and such other scanning devices as may be installed for detecting body temperature, infection status, etc.
  1. On entering the HSZ, such pass holders may proceed to the designated waiting areas or Bar Lounges/Libraries and wait for their turn to enter respective Court Rooms where physical hearing (with hybrid option) of their respective case(s) may be scheduled, and they would proceed only through the movement corridors created and demarcated for the purpose;
  2. At the designated waiting area(s), volunteers may also guide the Advocates-on-Record/Counsels further, as and when their turn comes for entering the designated Court Room for hearing;
  3. Subject to the capacity of any Courtroom, the entry of parties in a matter will be permitted not earlier than ten minutes prior to start of hearing of that matter;
  4. The entry into and exit from each Court Room shall be by separate channels/doors;
  5. It may be noted that wearing of mask, frequent use of hand sanitizer and maintaining physical distancing norms are mandatory for all entrants into the Supreme Court premises, including into the Court- rooms;
  6. On completion of hearing of their respective case(s), the Ld. Advocates/ Registered Clerks, etc. shall move out of the High Security Zone through the movement corridor(s) and exit from the designated gates;
  7. Ld. Advocates/ Counsels having more than one case for hearing in physical mode shall be issued separate Special Hearing Pass for each case and after hearing of one case is complete, they may wait in the designated staging/waiting area(s) for the purpose for appearing for the next case;
  8. It is reiterated that in order to facilitate video/tele-conferencing for the Ld. Advocates/ Counsels, a dedicated VC Facilitation Centre is located in Block ‘B/C’, Ground Floor, Additional Building Complex, Supreme Court of India, which can be accessed through Gate No.1 of that Complex;

18. It is further reiterated that to facilitate appearance of Ld. Advocates/ Litigants through video-conferencing mode, the Supreme Court Video Conferencing Facilitation Rooms (SCI VC ROOM) in the seven District Courts Complexes of Delhi, as notified vide Circular dated 13.06.2020 on Supreme Court website i.e. https://www.sci.gov.in, under the head Notices and Circular, continue to function.

As directed, the physical hearings (with hybrid option) are to commence w.e.f. 1st September, 2021.

Case BriefsForeign Courts

Supreme Court of The United States: While deciding upon the instant emergency application brought in by the Alabama Association of Realtors challenging the nationwide moratorium on evictions of any tenants during the Covid-19 pandemic; the Court with a ratio of 6:3, decided to end the federal moratorium on residential evictions citing that the Centers for Disease Control and Prevention (hereinafter CDC) clearly exceeded its authority under the Coronavirus Aid, Re­lief, and Economic Security Act, 2020 by taking the matters into its own hands and subsequent extension of the March 2020 moratorium through July 2021.

Background: In March 2020, Congress passed the Coronavirus Aid, Re­lief, and Economic Security Act to ease the burdens caused by the rapidly increasing COVID–19 pandemic. Among other reliefs, the Act im­posed a 120-day eviction moratorium for properties that participated in federal assistance programs or were subject to federally backed loans. When the eviction moratorium expired in July, Congress did not renew it. However, the CDC upon concluding that further action was needed “did what the Congress did not” and renewed the moratorium, covering all residential properties nationwide and imposing criminal penalties on violators.

The CDC’s moratorium was originally slated to expire on December 31, 2020, but Congress extended it for one month as part of the second Covid–19 relief Act. As the new deadline approached, the CDC again took matters into its own hands and extended its moratorium through March, then again through June, and ultimately through July 2021.

Contentions: The CDC contended that S. 361(a) of the Public Health Service Act allows it to ‘make and enforce such regulations (as in his judgment) which are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession’. Thus the provision gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, in­cluding issuing the moratorium.

The Realtor associations and rental property managers in Al­abama and Georgia meanwhile argued that the moratorium has put the landlords across the country at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recov­ery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means, and preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property owner­ship—the right to exclude. It was also contended that the CDC has exceeded it statutory authority in renewing and extending the eviction moratorium.

Observations: The Majority comprising of John Roberts, C.J., Amy Coney Barrett, Brett Kavanaugh (concurring), Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ., noted that it is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant, but “our system does not permit agencies to act unlawfully even in pursuit of desirable ends”. The Judges observed that the moratorium’s constant extension meant that the equities have begun to favour the landlords and their contentions became stronger because vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords had continued to increase. Perusing the aforementioned arguments of the CDC, the Court noted that the downstream connection between eviction and the interstate spread of disease is noticeably different from the direct tar­geting of disease that characterizes the measures identified in the statute. “Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that S. 361(a) gives the CDC the authority to impose this eviction moratorium”.

Coming down heavily upon the CDC and the Government, the Court also observed that the issues at stake are not merely financial. The mor­atorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship- “This claim of expansive authority under S. 361(a) is un­precedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified by the CDC’s decision to impose criminal penal­ties of up to a $250,000 fine and one year in jail on those who violate the moratorium. Section 361(a) is a wafer-thin reed on which to rest such sweeping power”.

The Majority concluded by holding that even if the Government believed that its action was necessary to avert a national catastrophe, the same could not over­come a lack of Congressional authorization. It is up to Con­gress, not the CDC, to decide whether the public interest merits further action here. “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it”.

Dissenting Opinion: Stephen Breyer, Sonia Sotomayor and Elena Kagan, JJ., disagreed with the observations of the majority and observed that the Court should not set aside the CDC’s evic­tion moratorium in this summary proceeding as the criteria for granting the emergency application have not been met in the instant matter. It was further observed that, “Applicants raise contested legal questions about an im­portant federal statute on which the lower courts are split and on which this Court has never actually spoken. These questions call for considered decision making, informed by full briefing and argument”.

[Alabama Association for Realtors v. Dept. of Health and Human Services, No. 21A23, decided on 26-08-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Migrant
COVID 19Op EdsOP. ED.

OVERVIEW OF THE REPORT


The outbreak of the Coronavirus pandemic brought life to a standstill worldwide. It exposed the inadequacy of global healthcare infrastructure and questioned existing capabilities to meet exigencies of such nature. While nations were imposing lockdowns and enforcing social distancing norms, India was battling a unique problem of its own: the migrant workers’ crisis induced by Covid-19.

Internal migration, including both inter-state and intra-state migration, is prevalent in India. It is a common phenomenon for the Indian rural population to move to urban areas in search of better job opportunities. The 2011 Census of India pegs the total number of internal migrants in the country at a staggering 139 million.1 The announcement of a sudden nationwide lockdown meant that these migrant workers were stranded in their host states of work, far away from their homes and families. With the transport facilities being discontinued, these migrant workers had nowhere to go. Most of them had already lost the means to sustain themselves as a result of the shutting down of workplaces. After much hue and cry, the government intervened and introduced transportation facilities to help them reach their home states. However, no concrete steps were taken to ensure that the returned workers found employment opportunities. The state failed to recognise that mere transportation of the migrant workers was not sufficient. It was equally important to ensure that such workers were able to sustain themselves and lead a life of dignity.


OBJECTIVES OF THIS STUDY


The M.P. Migrant Workers Project was initiated with the objective of filling the existing data gap in terms of the current employment status and living conditions of migrant labourers who returned to Madhya Pradesh during the lockdown. It also aims to know the extent of state intervention and aid provided to these workers throughout the process – starting from their journey from host states to settling in their respective villages.

Besides aiming to make us aware of the ground realities, the findings of this report are important as they hold the potential to guide policy decisions and legislations concerning migrant workers. A 360-degree analysis of the current approach will help us identify the strengths and weaknesses of the existing system and help us be better equipped to deal with such situations in the future.


METHODOLOGY


The observations from the empirical study have been made based on data collected directly from about 2943 migrant workers spread across 52 districts of Madhya Pradesh.

We started the exercise with the preparation of a comprehensive questionnaire containing around 50 questions on basic details of the respondents, their condition before Covid, their travel experience, current situation, financial assistance received and so on.

Before we started a full-fledged empirical study, we conducted sample callings by contacting around 250 people chosen at random. Our volunteers could get around 25 responses out of this list which suggested a 10-12% conversion rate of getting a response i.e., for every 10 entries, there was a possibility of getting only one legitimate response.

Once the final questionnaire was finalised, we entered the response recording stage. Our team contacted a tentative number of 25000-30,000 people. However, roughly around 10% i.e., a total of 3147 responses were recorded in all districts of Madhya Pradesh. The reasons for this low conversion rate are multifold, with the primary reason being incorrect numbers of migrants and multiple migrants registering through the same phone number. In some cases, calls were picked by residents of Maharashtra who informed us that someone registered through their number when the lockdown was going on.

Out of these 3147 responses, 2943 responses were confirmed to be legitimate migrant workers. The remaining entries were rendered invalid because of several reasons including but not limited to multiplicity of similar entries, incomplete information, error in identification of migrant workers etc. A large number of people contacted by our team turned out to be IT professionals or engineers particularly in Ujjain, Bhopal and Indore and hence we could not cover 100 entries in these three districts.


EXECUTIVE SUMMARY


  1. Demographical information: Of the total surveyed respondents,
    1. Category – Around 34% of the respondents belonged to the General category, followed by 31% belonging to the Other Backward Class category. Around 15% of the respondents were Scheduled Castes and another 15% identified themselves as Scheduled Tribes.
    2. Gender – 92% of the total respondents were males and 8% were females. 4 respondents preferred not to disclose their gender.
    3. Age – Majority of the respondents (83%) belonged to the working-age group of 15 to 34 years. Within that, the highest number (around 45%) fell in the range of 25 to 34 years.
  2. Employment trends: With respect to the status of employment, the majority of respondents (around 56%) admitted that they were unemployed since their return to Madhya Pradesh.Furthermore, respondents from the General category had the highest chances of being employed, and respondents belonging to the Scheduled Tribe category were least likely to be employed. With respect to gender, males stood a higher chance of finding jobs post-Covid, as compared to their female counterparts.The findings of this report thus bring forth the continuing relevance of factors like gender and caste/category that plague employment opportunities, especially in rural India.
  3. Industry of engagement-based analysis: During the pre-Covid era, the majority of respondents (around 40%) were engaged in the infrastructure development industry. This changed during the post-Covid era, wherein a majority of the employed respondents (around 37%) worked as labourers. It is pertinent to note that only 10% of the total respondents were employed in the labour industry in the pre-Covid period as compared to the 37% after the pandemic.This engagement shift in favour of the labour/worker industry is worrying. As per the responses received, the labour industry has been one of the least paying industries both before and after Covid. More than 60% of the respondents engaged in the labour industry earned below-average income2 at any given point in time.
  4. Positive correlation between education and employment: A combined analysis of the education and employment status responses before Covid indicated that more educated respondents secured better-paying jobs. It was observed that respondents who were educated were more likely to be falling in higher-income brackets – around 25% of the respondents earning more than Rs. 650/day were graduates.However, interestingly, there was no perceptible correlation between the employment status of the respondent’s post lockdown and their educational qualifications indicating widespread unemployment stress amongst people with varying education qualifications alike.
  5. Trends in income: The post-pandemic period saw a dip in the average income of the respondents. The data is especially alarming for lower-income earners, as only 7% of the respondents earned less than Rs. 250 per day pre-pandemic, as compared to 35% in the post-pandemic period.
  6. Gender disparity and pay gap: The data collected reveals that female respondents were more likely to be given daily wages than employment with a fixed income. Even before Covid, the share of female respondents employed as daily wage earners was around 12% more than their male counterparts.The above finding is relevant in light of the positive correlation established between the kind of employment (fixed-term v. daily wage jobs) and the income associated with each of these types. As per the responses received, people employed in fixed-term jobs were more likely to earn an above-average income.It is also pertinent to note that majority of female respondents (around 70%) formed a part of the average or below average income groups during the post-pandemic period.
  7. Shortfalls in government policies and Covid-specific initiatives:

(a) Transportation :
In the wake of the Covid pandemic, the Madhya Pradesh (M.P.) government introduced measures to aid the transportation of migrant workers. In furtherance of the same, an M.P. Migrant workers online registration portal was launched allowing stranded migrant workers to register themselves and avail shramik trains and bus services run by the state government.

Majority of the respondents (around 70%) stated that they registered themselves through the online registration portals. Around 57% of the respondents further stated that their travel tickets were entirely funded by the state government. Despite these measures being useful for the majority, there were complaints regarding lack of transport coordination between the drop-off railway stations and place of residence. Resultantly, around 12.5% of the respondents admitted that they were forced to walk back to their villages (either some part of the journey or the entire journey) in the absence of state-sponsored alternatives.

(b)  Scheme coverage

Despite various employment schemes introduced by different governments, it was observed that only around 1% of the respondents were covered such schemes in the state of Maharashtra. Even after the pandemic, the coverage of state employment schemes remained dissatisfactory. Only 1.7% of the total employed respondents said that they found employment under one of the employment schemes in M.P. Interestingly, there were no female beneficiaries under the M.P. specific employment schemes.

(c)  Monetary assistance
The M.P. government had also announced a Direct Benefit Transfer (DBT) scheme under which it promised Rs. 1000 to each returning migrant worker as financial aid. However, this initiative remained largely unimplemented with 88.5% of the respondents stating that no such amount was ever transferred to them. Amongst the 11.5% who did receive DBT, many mentioned not receiving the full amount.

(d)  Supreme Court directives for resettlement and future employment
In June 2020, the Supreme Court mandated all states to maintain records of incoming migrant workers and document crucial details such as their names, address, nature of their skill, and place of earlier employment. The state officials were further required to set up counselling centres and reach out to returning workers for employment opportunities.

Around 64% of the respondents said that their basic details were registered by government officials while entering M.P. However, majority of respondents (around 87%) stated that they were never contacted by government representatives in relation to any possible employment opportunities. Amongst the very few respondents who were approached by state representatives, around 95% said that the information shared by such officials was not useful from an employment perspective.

Furthermore, the majority (around 74%) also stated that no awareness/sensitisation programs were conducted and that state counselling centres, as required under the Supreme Court directives, were also not set up.

(e)  Policy failure and implementation gap
Despite the government’s noble intent of helping incoming migrant workers by setting up online portals for registration, an analysis of this measure from a policy perspective yields that such portals were not helpful.

Almost half of the respondents (50%) said that they did not possess smartphones or any other device with an internet connection to register themselves on these portals. Out of the respondents registered for travel, around 60% admitted that they were helped by government officials and civil societies for online registration.

The non-availability of internet and/or smart phones, and the glaring digital divide, had far-reaching implications on the employment opportunities of returned workers.

The M.P. government had also introduced a ‘Rozgar Setu’ portal to provide employment to incoming workers. Despite the government’s efforts, around 56% of the respondents remained unemployed even after several months of return to M.P. This could be attributed to several reasons, including but not limited to: (i) lack of assistance/support from authorities in the form of counselling centres/ awareness programs (as observed above); (ii) demotivation for employers to hire workers from a government platform as that would have subjected them to greater scrutiny; and (iii) improper measures introduced by the government (introducing online measures, a pre-requisite for which are smart phones and an internet connection, may not have been the policy decision in view of the fact that the target audience was vulnerable migrant workers).


ANALYSIS OF LABOUR LEGISLATIONS IN INDIA


The predicament of labourers during the pandemic elucidated gaps in the Indian labour law regime. The existing labour laws of India have been critiqued on several occasions in the past for being complex and archaic, with inconsistent provisions. Many of these criticisms were in line with the data findings of this report, highlighting the incompetence of extant laws in ensuring a safety net for migrant workers. None of the existing labour legislations in India adequately deal with inequalities faced by migrant workers employed in the informal sector on account of their category/caste or education.

In light of the above, this report identifies and highlights loopholes in the existing labour law regime which have a direct bearing on Indian migrant workers.

1. Limitations of applicable legislations: India has a limited number of legislations covering migrant workers employed in the informal sector. The applicability of such sparse laws is also limited because of the manner in which these laws are worded.

For instance, Section 2(e) of the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 defines inter-state migrant workers as those recruited by contractors alone. This narrow interpretation of the term ‘inter-state migrant workers’ excludes a large number of workers from its benefits who migrate on their own without the assistance of a contractor.

Similarly, the Madhya Pradesh Unorganised Workers Welfare Act, 2003 is one of the very few labour legislations regulating the informal sector but is not fully exploited on account of the benefits being available only to members of the ‘welfare board’ established under the Act. As per the provisions of the Act, only those workers who reside in an area of MP for at least 12 months are qualified to be members of the welfare board. Such a requirement automatically disentitles migrant workers travelling to other states from availing benefits under the Act.

2. Payment of wages below the minimum wage rate: As per Section 13(1)(b) of the Inter-state Migrant Workmen Act 1979, an inter-state migrant workman has to be mandatorily paid as per wages fixed under the Minimum Wages Act, 1948.

The minimum wage rate in India differs from state to state. In the state of Maharashtra, the minimum wage payable to unskilled workers is fixed at Rs. 381.54 per day. However, approximately 42% of the surveyed respondents received wages at rates lower than Rs. 350 per day while they were in Maharashtra. Even after their return to M.P., 37% of the employed respondents received wages at rates lower than minimum wages fixed for unskilled workers for the state of M.P.

3. Lack of social security and protection: The Unorganised Workers’ Social Security Act, 2008 directs the Central Government to form schemes for unorganised workers on matters relating to life and disability cover, health and maternity benefits, old age protection, and any other benefit as may be determined by the state government. These benefits aim to provide a minimum level of social security to workers in the unorganised sector.

Despite such provisions, the migrant workers lacked adequate social cover. Even welfare schemes announced at the state level, such as the M.P. government’s initiative of monetary assistance to returning workers, were not implemented properly.

There could be several reasons for paltry implementation of welfare schemes both at the central and state level, including but not limited to: (i) lack of data availability on migrant workers, (ii) lack of political and administrative will, (iii) articulation of schemes as benefits as opposed to legally enforceable rights, (iv) tedious and complex process for registration of workers (which require state government resources and manpower), (v) inadequate sensitisation.

Resultantly, migrant workers are unable to access these benefits as they fall in an administrative blind spot, wherein they neither have information on these schemes nor the necessary documents to avail them.


THE GENDER AND CATEGORY QUESTION


The term ‘migrant worker’ is generally used as a gender-neutral and caste-neutral term. Resultantly, while addressing issues relating to migrant workers, problems specific to the gender and caste/category of a worker are often overlooked.

However, in reality, gender and category of workers shape every stage of their migration experience. Understanding and addressing the gender and category-specific problems faced by migrant workers is crucial to ensure their amelioration in the truest sense. Some of these specific issues have been identified as under:

1. Menstrual hygiene – During the pandemic period, it was observed that menstrual hygiene products were largely unavailable for female migrant workers during their journey. The issue is pertinent as the sample size illustrates that almost 99% of the female respondents fell in the age bracket of 15 to 54 years which is also the menstruating age for women. Some female migrant workers complained of facing hardships during their travel on account of menstruation and further developing Urinary Tract Infection (UTI) because of the unhygienic conditions.

2. Education, employment and gender – An analysis of the responses received reveals that female respondents not only had lower levels of education across various categories, but they were also more likely to get daily wage jobs and less income as compared to their male counterparts.

3. Education, employment and caste/category: The survey data indicates that General and Other Backward Class category respondents had better access to education, as compared to respondents from Scheduled Caste and Scheduled Tribe categories. However, this inequality in access to education did not translate into inequality in employment, especially in low income jobs. During the pre-Covid era, it was observed that all categories were equally represented in terms of employment. This however changed in the post-Covid period, where the Covid induced uncertainty affected the Scheduled Caste and Scheduled Tribe communities more as compared to General and Other Backward Class category respondents.

We need redistributive, equalizing, and holistic policies and legislations to address the various issues faced by migrant workers. The conceptual framework of labour, migration and social-policy making should address gender and category concerns at all levels (including but not limited to education, healthcare, digital divide).


Report Prepared by: Rakshita Agarwal (NLUO), Rohit Sharma (NUJS), Lakshmi Menon (SLS Hyderabad), Niharika Tiwari (Ashoka University), Shilpa Shankar (NALSAR) and Saiyed Kamil (NUJS)

1 Data on Migration 2011, Ministry of Home Affairs, Government of India, Available at https://censusindia.gov.in/2011census/migration.html, Last seen on 24/04/2021.

2 For the purposes of this part, average income is understood to be between Rs. 350-Rs.400 per day.


Read more:

The full report is accessible here: https://bit.ly/3k9RNbP

Legislation UpdatesNotifications

The Employees State Insurance Corporation has notified the Covid-19 Relief Scheme on 11th August 2021 as a welfare measure for the Insured Persons and for the dependents of ESI insured persons in case of their death due to COVID-19.

The Eligible conditions to avail the scheme are as follows:

  • The Insured Person who died due to COVID-19 disease must have been registered on the ESIC online portal at least three months prior to the date of diagnosis of COVID-19 disease resulting in his/ her death.
  • The deceased IP must have been in employment on the date of diagnosis of COVID-19 disease and contributions for at least 70 days should have been paid or payable in respect of him/ her during a period of maximum one year immediately preceding the diagnosis of COVID-19 disease resulting in death.
  • Further, in case of death due to COVID-19, the spouse, son up to 25 years of age, unmarried daughter and widowed mother of the insured would be eligible for the relief.
  • The scheme shall be effective for two years from March 24, 2020 and the minimum relief under the scheme shall be Rs 1800/- per month.
  • The minimum relief under the scheme shall be Rs 1800/- per month.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Meghalaya High Court: The Division Bench of Biswanath Somadder, CJ. and H.S. Thangkhiew, J., had asked the Department of Health and Family Welfare, Government of Meghalaya to file a status report.

Upon perusing the report the Court found that it didn’t reveal any step taken by Meghalaya Police in order to specifically identify and book those persons who are responsible for spreading false rumours using various social media platforms with regard to the efficacy of the vaccines, in order to create an element of fear psychosis in the society, which is one of the primary reasons for vaccine hesitancy in the State of Meghalaya.

The Court appreciated the steps taken by the Department of Health and Family Welfare of the Government of Meghalaya, but opined that they cannot allow the rumour-mongers to go scot-free. The Court sarcastically commented that these defaulters could be easily apprehended by the Meghalaya Police (provided it has the will to do so), since all of them are invariably using various social media platforms, thereby leaving an electronic trail.

The Court asked the Advocate General to take serious note of this matter and apprise the Court specifically on the next date the steps taken by the Meghalaya Police in this regard.[Registrar General v.  State of Meghalaya, PIL No.6 of 2021, order dated 09-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ. and Alok Kumar Verma, J., dealt with the petition which came up in pursuance to order dated 07-07-2021. All the affidavits submitted were taken on record.

It was informed to the Court that there were 8,590 Isolation Centres which have been established and that State Government had directed the district administration to analyze the influx of tourists during the weekends at the tourist spots in their respective districts, and to cap the number of persons permitted to visit such tourist destinations keeping in mind its capacity and its geographical conditions after the Court had directed in the previous order dated 12-07-2021. However the affidavit was silent with regard to the steps which were required to be taken by the police against the erring tourists.

Next affidavit dealt with the operationalisation of COVID Care Services for Children and Adolescents. According to the data, at the peak, there were about 10,000 cases which were reported in Uttarakhand. The total number of beds required for children at the peak of the surge would be 600; the total number of ward beds required for children would be 360; and the total number of High Dependency Unit (HDU)/Intensive Care Unit (ICU) beds required for children would be 240. It was informed to the Court that State was well-equipped to tackle any challenge that may come in its way in the wake of the third wave of COVID-19 pandemic. It was further informed that, presently, the number of COVID-19 cases in the State was on the decline.

In case of availability of Ambulances it was informed that there were 272 ambulances in the Dial-108 Emergency Service and out of those, 54 ambulances were Advanced Life Support (ALS) Ambulances, and the remaining 218 were the Basic Life Support (BLS) Ambulances in the State. State Government has already sent requisition and a proposal to the Central Government for buying 41 more ALS ambulances.

It was submitted that there were large number of vacancies in the cadre of Medical Officers and the selection process has already commenced; 451 Medical Officers have been selected, out of which 250 Medical Officers have already joined their duties.

In relation to availability of vaccines it was submitted that State has received three lakhs vaccines from the Central Government and State was well equipped to vaccinate its people.

The affidavit was silent about the any information relating to emergence of Delta variant in the State. It was brought to the notice of the Court that although the State Government had made a public announcement that it is increasing the stipend being paid to the intern Doctors, the matter relating to the amount to be paid to the intern Doctors was “still under consideration of the Government”.

It was further pointed out that despite the existence of the Uttarakhand Anti-Littering and Anti-Spitting Act, 2016, the said Act was not being implemented by the Nagar Palikas, the Municipal Corporations and the Municipalities for ensuring hygienic conditions of the towns and villages. It was further added that there is no incentive scheme launched by the State Government, which will applaud those entities, which continue to abide by the SOPs. Since, there is no encouragement or appreciation by the State Government of those entities, which do abide by the SOPs, such followers of SOPs are disheartened when they see others, who are going scot-free while they violate the SOPs.

The Court issued certain directions keeping in mind the above submissions:

(i) Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, is directed to inform this Court with regard to :

 (a) the availability of paediatric ventilators and paediatric wards available in the Government Hospitals;

(b) with regard to the steps taken, if any, for filling up the vacancies of Staff Nurses, Lab Technicians, Female Health Workers (ANMs), and the present status of the selection process, if already initiated;

(c) with regard to either the presence, or the discovery of the Delta Plus variant in the State; and

(d) with regard to the 300 samples, which were sent to the NCDC lab at Noida, and whether any case of Delta Plus variant has been discovered in those 300 samples, or not? (ii) The State is directed to take a decision with regard to the increase in the stipend of the intern Doctors as expeditiously as possible, and preferably before the next date of this case. Moreover, the State is directed to ensure that the stipend is paid to the intern Doctors on time, rather than with delay.

(iii) The State is further directed to enforce the Uttarakhand Anti-Littering and AntiSpitting Act, 2016, and to issue the necessary directions for the implementation of the same for the benefit of the competent authorities under the Act.

(iv)The State is directed to initiate a campaign for removing any superstition, suspicion, or misinformation that people may have with regard to vaccination for COVID19. Simultaneously, the State is directed to increase the number of vaccinations being carried out throughout the State.

(v) The State is directed to instruct all the District Magistrates to discover the number of physically challenged persons within their jurisdiction, who may be unable to come to the “Near to Home Vaccination Centres”. As and when such persons are discovered by the District Magistrates, it shall be the duty of the concerned District Magistrate to ensure that those physically challenged persons, who cannot possibly leave their homes, are inoculated by the medical staff at their homes. The steps so taken by the District Magistrates shall be informed to this Court by the next date. Moreover, the District Magistrates are directed to ensure that in case any camps were to be held for the benefit of the physically challenged persons, the date, the time, and the place is informed well in advance to the community at large by the use of print and electronic media. The necessary arrangements at the camps should be made to ensure that comfortable accommodation is provided to the physically challenged persons, and their other needs such as food, water and availability of toilets are met by the Civil Administration, or by the Medical Health Department.

(vi) The State is also directed to reconsider its decision of withdrawing the 25% reservation of beds in the private Hospitals for the weaker sections of the society. Therefore, the State should reconsider whether it should withdraw the order dated 25.07.2021, or not?

(vii) Mr. Amit Negi, the learned Secretary, Medical Health and Family Welfare, and the State are directed to consider the Audit Report vis-à-vis the condition, the capacity, and the lack of infrastructure of the Ambulances, which are attached with the District Hospitals. Mr. Amit Negi should also inform this Court with regard to the steps taken for filling up the lacunae pointed out in the Audit Report by the next date.

The Counsel for the petitioner had filed an application wherein he had sought the continuation of the Stay Order dated 28-06-2021 passed by this Court, whereby this Court had stayed the opening of the Char Dham Yatra submitting that the stay was granted by this Court only for a period of four weeks, and since the said period of four weeks was over, the SLP filed by the State Government, against the said order, before the Hon’ble Supreme Court has become infructuous. He prayed that since the conditions continue to be as hazardous as ever, and considering the fact that even the Central Government and the ICMR are constantly speaking about ensuring that people do not congregate in large numbers for religious purposes the stay order must continue.

The Court directed that the ban on Char Dham Yatra would continue till the Supreme Court pronounces its judgment in the said SLP.

Matter to be taken up next on 18-08-2021.[Sachdanand Darbal v. Union of India, Writ Petition (PIL) No. 58 of 2020, decided on 28-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ., and S. Kumar, J., passed strict directives to complete proceedings under Section 58 of Bihar Prohibition and Excise Act, 2016 within a period of ninety days from the date of appearance of the parties.

The Bihar Prohibition and Excise Act, 2016 (Act, 2016) prohibits the manufacture, storage, distribution, transportation, possession, sale, purchase and consumption of any intoxicant or liquor, unless so allowed in terms of the Act. (Section 13). In addition to the penalty imposed for committing such an offence, Section 56 of the Act lays down the procedure for confiscation of “things” used for in the commission of such an offence.

Further, under section 58 power to issue an order of confiscation vests with the District Collector/Authorized officer, who upon receipt of the report of the seizing officer detaining such property (“things”) is required to pass an order.

Noticeably, the Court had been flooded with several petitions solely on account of non-initiation of such proceedings of confiscation or passing of illegal orders with respect thereto and also, on account of lack of parties pursing the remedies so provided under the Act, consequently, the Court was faced with following situations:-

  1. Where despite seizure, no proceedings for confiscation under Section 58 were initiated;
  2. Where such proceedings were initiated but not concluded within a reasonable time;
  3. Where the parties after obtaining interim relief for release of “things” under orders passed in different set of writ petitions, did not participate in the confiscatory proceedings;
  4. Where the order of confiscation was neither communicated nor the parties made aware of such fact, thus precluding them from filing appeal under Section 92 and Revision under Section 93 of the Act;
  5. Where proceedings initiated under Section 92/93 were not concluded within a reasonable time either on account of inaction on the part of the authority(s) or on account of non-cooperation of the private parties, be it for whatever reason.

In Md. Shaukat Ali v.  State of Bihar, (2020) 3 PLJR 927, the Court had issued the following directions to address the issues mentioned above: –

  1. The appropriate authority shall positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner.
  2. If for whatever reason, such proceeding could not be concluded, in that event it shall be open for the authority to take such measures, as are permissible in law, for release of the vehicle in question by way of interim measure, on such terms as may be deemed appropriate, considering the attending facts and circumstances of the case.
  3. If eventually, the appropriate authority arrives at a conclusion that the property was not liable to be confiscated, it shall be open for the petitioner to seek damages in accordance with law and have appropriate proceedings initiated against the erring officials/officers.

The expression “reasonable delay” used in Section 58 of Chapter VI of the Act, in our considered view, necessarily has to be within a reasonable time and with dispatch, which period, in our considered view, three months time is sufficient enough for any authority to adjudicate any issue, more so, when we are dealing with confiscatory proceedings.”

In Bunilal Sah v. State of Bihar, (2020) 3 PLJR 935, the Court took notice of non-compliance of its orders by the authority concerned and had asked the State to file an affidavit as to why proceedings for contempt be not initiated. The Bench had noticed,

“It is seen that despite our order in Md. Shaukat Ali v. State of Bihar, (2020) 3 PLJR 927, and in Umesh Sah v. State of Bihar, (2020) 3 PLJR 931, the State has not initiated proceedings under the provisions of the Bihar Prohibition and Excise Act, 2016. It is a matter of record that this legislation has generated huge litigation. The docket of the Court, be it the trial court or the High Court, is now choked solely on account of such legislation. This, perhaps, is done only to protect the property from being destroyed, for there is no mechanism under the Statute or with the administration for protecting the property seized in relation to the crime registered under the said Statute…Property is left to the vagaries of weather, resulting into national loss. This we say for the reason that proceedings for confiscation, as envisaged under Section 58, were never initiated by the authority, which under the Act is the District Magistrate/Collector. It is only as a result of inaction on the part of such authorities that the owners of the vehicles/properties are constrained to approach this Court for its release.” 

Again in Diwakar Kumar Singh v. State of Bihar, 2018 SCC OnLine Pat 462, the Court directed the confiscating authority to take not of the provisions of Section 56 of the Act, 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner was found or the vehicle was found to be used by a person in drunken condition and no liquor was seized from the vehicle or when the vehicle was not used for transportation of liquor, whether the provision of Section 56 of the Act would apply. The Bench stated that it shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act, apply his mind and pass a speaking order with regard to confiscation initiated. Without deciding the aforesaid issue as a preliminary issue, further proceedings in the confiscation proceedings shall be prohibited.

Hence, noticing that in large number of cases, position about the conclusion of the proceedings, be it under Section 58, 92 or 93 remains the same, the Bench directed that all proceedings under Section 58 must positively be initiated/concluded within a period of ninety days from the date of appearance of the parties. Further, the Bench directed:

  1. Appeal/Revision, if any, be also decided within a period of thirty days from the date of initiation, failing which the “things” (vehicle/property/ etc.) shall be deemed to have been released in terms of several orders passed by this Court.
  2. Wherever confiscatory proceedings stand concluded and parties could not file the appeal/revision within the statutory period of limitation, as already stands directed in several matters, if they were to initiate such proceedings within next thirty days, the plea of limitation would not come in their way of adjudication of such proceedings on merit.
  3. The Bench clarified that convenience of parties, especially during the time of Pandemic Covid-19 is of prime importance and it shall be open for the authority to hear the parties with the use of technology, i.e. Video Conferencing facility etc.

The Court further directed that no certified copy of the order shall be required to be placed on the file of proceedings pending or initiated under the Act, for such order is available on the official website of the High Court & can be downloaded and/or verified from there, in the times of current Pandemic Covid-19. Lastly, the Bench stated that if the authorities concerned fail to take appropriate action at the earliest and in accordance with law, within the time schedule, the vehicle/property/things liable for confiscation shall be deemed to have been released without any further reference to this Court. [Abhishek Kumar v. State of Bihar, 2021 SCC OnLine Pat 1301, decided on 01-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

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

For the Respondent/s: Mr Kumar Manish, SC-5

Case BriefsHigh Courts

Gauhati High Court: Nani Tagia, J., stayed the order of the State Executive Committee of Arunachal Pradesh whereby non-vaccinated persons for Covid-19 were being discriminated for the purpose of permit to enter the State for developmental works in both public and private sector.

Covid-19 Vaccination:  Whether Mandatory or Voluntary?

The petitioner contended that as per the RTI Information furnished by the Ministry of Health & Family Welfare, which is available on the Ministry’s website, Covid-19 vaccination is not mandatory but voluntary. The petitioner also referred to an answer given on 19-03-2021 in the Lok Sabha to an Unstarred Question No. 3976 by the Minister of State in the Ministry of Health & Family Welfare stating that there is no provision of compensation for recipients of Covid-19 Vaccination against any kind of side effects or medical complication that may arise due to inoculation. The Covid-19 Vaccination is entirely voluntary for the beneficiaries. The petitioner contended that the impugned order had interfered with the fundamental rights granted under Article 19 (1) (d) of the Constitution.

Analysis by the Court

Vide Clause 11 of the Order dated 30-06-2021, issued by the Chief Secretary cum Chairperson-State Executive Committee, Government of Arunachal Pradesh, vaccinated and unvaccinated persons for Covid-19 virus had been classified into two groups for the purpose of issuing temporary permits for developmental works in both public and private sector. Clause 11 of the Order reads as under:

“11. Tourist ILPs shall remain suspended during the period of this order, however for developmental works in both public and private sector; temporary permits may be issued provided such persons are vaccinated for COVID 19.

While persons who were vaccinated for Covid-19 had been allowed to be issued with a permit to visit Arunachal Pradesh, persons who were not vaccinated with Covid-19 vaccine had not been allowed to be issued with a temporary permit to visit Arunachal Pradesh for developmental works in both public and private sector. The Bench stated that the right granted under Article 19 (1) (d) of the Constitution to move freely throughout the territory of India is not absolute and the State may impose reasonable restrictions either in the interest of the general public or for the protection of the interest of the Scheduled Tribe. However, such restrictions must be a reasonable one conforming to the requirement of Article 14 of the Constitution.

Whether Classification of Vaccinated and Non-vaccinated was based on intelligible differentia

Noticing that the classification sought to be made between the vaccinated and unvaccinated persons was to contain Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the Bench stated that, “there is no evidence available either in the record or in the public domain that Covid-19 vaccinated persons cannot be infected with Covid-19 virus, or he/she cannot be a carrier of a Covid-19 virus and consequently, a spreader of Covid-19 virus.”

The Bench said that in so far as the spread of Covid- 19 Virus to others is concerned, the Covid-19 vaccinated and unvaccinated person or persons are the same. Both can equally be a potential spreader if they are infected with the Covid-19 Virus in them. Hence, the classification must always rest upon some real and substantial distinction bearing reasonable and just needs in respect of which it is made.

Hence, the Bench stated, if the sole object of issuing the impugned order was for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons was, prima facie, a classification not founded on intelligible differentia nor it was found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.

Decision

Thus, the Bench held that the impugned notification violated Articles 14, 19 (1) (d) & 21 of the Constitution, in so far it made classification of vaccinated and non-vaccinated persons for the purpose of issuance of temporary permits for developmental works in the State of Arunachal Pradesh. Accordingly, Clause 11 of the impugned order was stayed to the extent it discriminated between Covid-19 vaccinated persons and Covid-19 unvaccinated persons.[Madan Mili v. Union of India, 2021 SCC OnLine Gau 1503, decided on 19-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Advocates for the Petitioner: Debasmita Ghosh, Ebo Mili, Chanya Bangsia and S. Dey

Advocates for the Respondent: Marto Kato, ASG, R. H. Nabam, Addl. Adv. General, A.P

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., remarked that,

Insurance for lawyers has been an aspiration for several years.

In the present matter, while lauding the object of the Chief Minister’s Advocates Welfare Scheme, for advocates enrolled with the Bar Council of Delhi, the following two issues were raised:

  • The first, is in respect of a condition in the Scheme that the benefit of the same will only be available to such advocates whose names appear in the voter’s list of Delhi. A large number of advocates who are enrolled with the BCD and practising in various District Courts, the High Court, the Supreme Court and other fora, have been excluded due to this condition, as they are not residents of Delhi but reside outside Delhi, predominantly in the NCR region in areas such as Noida, Gurugram, Faridabad, Ghaziabad etc.
  • The second issue concerns those lawyers who were unable to register for the Scheme within the original deadline and are thus seeking an extension of the deadline for registration.

Broad summarization of the reliefs sought:

  1. Issuance of insurance policies to all eligible advocates already registered under the Scheme;
  2. Quashing of the condition requiring advocates to have a voter ID card of Delhi for obtaining the insurance policies under the Scheme. In effect, therefore, what is sought is the extension of the Scheme to lawyers residing outside Delhi, in the NCR region/neighbouring areas, so long as they are registered with the Bar Council of Delhi.
  3. Reopening of the registration portal to enable advocates who have been unable to register as yet, to put in their registrations.

Point wise analysis of the decision

  • Whether advocates registered with the BCD who reside in the NCR region/neighboring areas are entitled to benefits under the Scheme?

Place of Practice v. Place or Resident? 

Bench observed that on a conjoint reading of the provisions of the Advocates Act, 1961, the Bar Council of Delhi Rules, 1963 and the BCIPP Rules shows that insofar as advocates are concerned, primacy is given to the place of practice and not to the place of residence of the advocate.

Legal practice in Delhi and the NCR region/neighbouring areas

A substantial number of advocates who primarily practice in Delhi live in the NCR region/neighbouring areas, including in areas such as Noida, Gurugram, Sonepat, Rohtak, Faridabad, Ghaziabad, some areas of Punjab etc. Such advocates are registered with the BCD and are also members of the Bar associations of the court complexes where they practice.

The said advocates also contribute to the revenue stream of the Delhi Government by practicing in Delhi.

Therefore,

The advocates’ place of residence has no bearing on this whatsoever. Moreover, the place of residence of the advocate is also not set in stone. Depending upon the income levels of the advocate, the advocate may move to Delhi. It is a matter of common knowledge that not all advocates can afford housing in Delhi and may, therefore, choose to reside in the NCR region/neighbouring areas. However, the character of their practice, being essentially in Delhi, would not change.

Whether the scheme can be restricted to advocates who have voter ID cards of Delhi?

GNCTD had submitted that if the Government wishes to restrict the benefits of the Scheme to a sub-classification of advocates registered with the BCD as also residing in Delhi, the Court cannot interfere in the said policy decisions.

Whether Court can interfere in the policy decision of the Government?

High Court expressed that almost all decisions of governments taken as executive decisions would involve policy matters. Such decisions, as per the settled law would be amenable to judicial review, if it is seen that the same is either discriminatory or arbitrary.

There cannot be a hard and fast rule that in a welfare scheme, Courts cannot interfere, even if they are violative of the rights of a section of the citizens.

 Whether the sub-classification of advocates registered with the BCD would be permissible in law?

The scheme was introduced with the objective of welfare of the advocates. Object was to recognize the positive role played by advocates in society.

Chief Minister of Delhi had announced the Scheme with an outlay of Rs 50 crores to be utilized for the welfare of the legal community.

In Supreme Court decision of State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, test for determining whether a classification is valid or not was laid down.

Crux of Classification Test

There is no rational nexus between the grouping and the object, and the same is found to be arbitrary, the classification was unreasonable and liable to be struck down.

Further, it was added that submission on behalf of the GNCTD that the conditions to be imposed in the Scheme being one of governmental policy, the Court ought not to interfere in the same, would not be correct if the conditions are found to be discriminatory or arbitrary.

Bench elaborating more, stated that the GNCTD cannot impose the condition of residence in Delhi to advocates and not to its own employees.

The scheme of the Advocates Act, 1961 as also the various Bar Council Rules and Regulations give primacy to the place of practice and not residence.

Governmental policies are amenable to judicial review and if the allegation is one of discrimination the same would have to be examined on the touchstone of Article14. The Scheme carves out a distinction within advocates registered with the BCD, between those advocates who are residents of Delhi and those who are not. The Scheme is extended to the former and not to the latter. The said classification does not have a rational nexus with the object of the Scheme.

Hence, the Court held that the said condition and the resultant classification was discriminatory and arbitrary.

Bench lauded the Scheme floated by GNCTD for recognizing the need of advocates who belong to the various strata of society for having insurance for themselves and their families.

During the pendency of the petitions, a number of advocates enrolled with BCD with voter ID Cards of Delhi had already availed the Scheme and thus, the Scheme is already having a practical impact on the lives of advocates practicing in Delhi, especially during the pandemic.

  • Whether registration ought to be reopened to enable advocates who missed the initial deadline to obtain benefit under the Scheme?

With respect to reopening of registration for new advocates, a proper scheme would have to be evolved as the same would not be possible for the current year.

Upon extension of the Scheme to advocates from the NCR region/neighbouring areas, newly enrolled advocates and advocates who may register afresh for the Scheme having been enrolled post the deadline of 2019, the number of advocates who may become eligible may increase considerably.

High Court added that from the data filed by the BCD, it is clear that the BCD has funds to contribute to the Scheme, though the same may not be fully sufficient to fund the entire Scheme. The Advocates Welfare Fund Act, 2001 having been enacted for the purpose of welfare of Advocates, this Court is of the opinion that to the extent possible, the said Fund ought to be utilised to support the Scheme for insurance.

BCD either by itself or by receiving contribution from the advocates themselves ought to willingly share the burden.

Conclusion and Directions

a. The Chief Minister’s Advocates Welfare Scheme announced by the GNCTD is a Scheme that has a laudable objective of recognising the role of lawyers in protecting the rights of citizens and their constructive role in society. It is also in recognition of the role played by advocates and their contribution to the legal profession. The Scheme has, with this objective already enabled insurances for thousands of advocates in Delhi and has provided relief and succour to them especially during the pandemic. However, the condition in the Scheme that it would be applicable only to residents in Delhi with Voter IDs, is held to be discriminatory and arbitrary as the sub-classification from amongst the advocates enrolled with the Bar Council of Delhi, has no rational nexus with the object to be achieved. Accordingly, the Scheme shall be extended to all advocates registered with the Bar Council of Delhi, whose names and credentials are verified, without the insistence of Voter ID showing residence in Delhi;

b. For the current year’s policies, all advocates who had registered themselves and are eligible for the benefits under the Scheme shall be extended the benefits. The GNCTD has already spent approximately Rs.40 crores to enable advocates to avail of the insurance policies. Out of the total number of advocates for whom policies have already procured, there are 5,044 advocates from the NCR region/neighbouring areas within the verified list of advocates for whom premium has already been paid. They shall enjoy the benefits of the Scheme. All such further eligible advocates, who had registered within the deadlines prescribed, as per this judgement, who have been left out shall now be included and the policies/coverage, on the same terms, for the remainder period of the current year, shall be procured from the LIC and NIACL by 31st July 2021. Only the pro-rata premium would be liable to be paid by the GNCTD to the insurance companies, which the insurance companies had agreed to, during the course of hearing.

c. Insofar as the future years are concerned, since the pool of advocates has been increased, the total premium for life and Mediclaim insurance, may be more than the budget outlay of Rs.50 crores. The GNCTD cannot be made to solely bear the burden of providing the insurance premium, though it is urged that the outlay may be increased depending upon the requirements, taking inflationary trends etc., into consideration. The BCD which has been unable to provide for group insurance for advocates, ought to complement the efforts of the GNCTD which has clearly taken the position that the issue is not being treated in an adversarial manner. Thus, the deficit on a year-to- year basis, beyond the budgeted amount of the GNCTD, shall be funded by the BCD.

  1. For the said purpose, the BCD may source the funds in the following manner. It is –
  • Free to utilize its own funds, including the funds collected under the Advocates’ Welfare Act, 2001.
  • Free to seek any voluntary contribution from Senior advocates and other financially well-off advocates, who may be willing to contribute for the betterment of the legal community.
  • The BCD may, if the need so arises, collect some part of the premium from the advocates who are beneficiaries of the Scheme.

Lastly, the Court added that the Law Secretary of the GNCTD and the Chairman Bar Council of Delhi shall be responsible for working out the modalities of the Scheme.

The GNCTD, after consulting the BCD, would be free to decide on the nature of the Scheme to be availed of from the insurance companies, either on an annual basis or on a periodic basis such as three years or five years, so that the annual premia can be duly scaled down. The new scheme in terms of the present judgment shall accordingly be announced by 30th September, 2021, after consultation with the BCD and insurance companies. [Govind Swaroop Chaturvedi v. State of NCT of Delhi, 2021 SCC OnLine Del 3676, decided on 12-07-2021]


Advocates before the Court:

For the Petitioner: G.S. Chaturvedi, Petitioner in person.

For the Respondents: Mr. Rahul Mehra, Sr. Advocate and Mr. Satyakam, ASC for GNCTD.

Mr. Sanjay Rawat, Advocate for NIACL with Mr. Gaurav Sharma, Branch Manager.

Mr. Ramesh Gupta, Chairman, BCD. Mr. Rakesh Khanna and Mr. K.C. Mittal, Sr. Advocates with Mr. Rajiv Khosla, Advocate for BCD.

Mr. Kamal Mehta, Advocate for LIC.

Case BriefsCOVID 19High Courts

Orissa High Court: A Division Bench of S Muralidhar, CJ and Savitri Ratho, J. directed independent inquiry by a retired District Judge to elicit the complete facts and submit a report accordingly.

The instant petition was filed highlighting, inter alia, the health crisis and Covid-19 mismanagement in western Orissa as there was an alleged lack of proper medical facilities at the Veer Surendra Sai Institute of Medical Sciences and Research (VIMSAR), Burla, Sambalpur. It was also alleged, inter alia, that the medical professionals and authorities in charge of VIMSAR’s management had behaved irresponsibly and displayed insensitivity to the plight of the Covid- 19 victims. A letter was sent to the Collector & District Magistrate, Sambalpur, asking him to “make a discreet inquiry into the matter and furnish a report” to the Department. According to the said report, there was no shortage of medicine and no lack of proper treatment or facilities.

Mr Gyanadutta Chouhan, the Petitioner in person, filed nine affidavits of persons whose close relatives purportedly suffered on account of lack of proper or timely treatment at the Veer Surendra Sai Institute of Medical Sciences and Research (VIMSAR), Burla, Sambalpur during the Covid-19 pandemic.

The Court observed that each of the nine affidavits reveal prima facie that the victims did not receive the requisite medical treatment at VIMSAR and that needless deaths had occurred as a result thereof.

The Court further observed affidavits of the nine deponents’ raises serious questions involving the fundamental right to health which is an inherent part of right to life under Article 21 of the Constitution. VIMSAR is one of the premier medical institutions of the State catering to the medical needs of the population of western Odisha. It has to function in the manner befitting its status of providing the highest standard of care and treatment to everyone for that purpose. 

The Court directed “an independent inquiry by a retired District Judge be held in Sambalpur itself to elicit the complete facts and submit a report to this Court on completion of such inquiry”

Directions issued are as follows:

(i) Mr A.B.S. Naidu, a former District Judge is appointed as Inquiry Officer to examine the instances set out in the nine affidavits filed in this Court by the Petitioner and in particular whether there was medical negligence in the treatment of the victims of those cases.

(ii) Registry is directed to provide a copy of the complete set of records of this writ petition including the nine affidavits to Mr Naidu at the earliest.

(iii) The Government of Odisha shall take immediate steps for completion of necessary formalities by the publication of the Notification within a week from the date of receipt of the order. The Inquiry Officer within a period of one week from the date of publication of the Notification will initiate the process of inquiry by giving a public notice both electronically as well as in the print media inviting affidavits of the persons (other than those nine who have already submitted affidavits) who have been victimized by lack of proper treatment and care at VIMSAR and fixing an outer limit for receiving such affidavits which in any event should not be more than 15 days from the date of publication of such notice.

(iv) The place of enquiry shall be the premises of the District Court at Sambalpur. The District Judge, Sambalpur shall provide the space in the premises of the District Court for holding such enquiry. The Opposite Party-Government through the local administration shall provide all necessary infrastructure as well the Secretarial Staff and other support services as would be required by the Inquiry Officer without any delay to enable him to function and conduct the enquiry as quickly as possible.

(v) The Superintendent of Police, Sambalpur will also ensure the safety, security of the Inquiry Officer, his records and generally the premises where the enquiry shall be held by deploying sufficient police personnel as may be determined by the SP, Sambalpur on an assessment of the situation.

(vi) The Inquiry Officer will be paid an honorarium of Rs 2.00 (two) Lakh per month by the Government of Odisha for the enquiry which will be concluded within a period of 3 months from the date of commencement of such enquiry. In any event, the enquiry report should be made available to this Court by the Inquiry Officer not later than 1st November, 2021. The incidental expenses of the Inquiry Officer in conducting the enquiry and his functioning shall be borne by the Government of Odisha as per the bills raise on actual basis without any delay. The Government of Odisha will also provide the Inquiry Officer, the transport and conveyance facility besides his temporary accommodation.

(vii) Full cooperation be extended to the Inquiry Officer by the local administration and in particular by the Management, medical personnel, staff and workers of VIMSAR.

(viii) The Inquiry Officer will ensure that the relevant records for treatment of the victims available in VIMSAR is immediately secured and kept in a sealed cover with the custody of the Inquiry Officer.

(ix) The Inquiry Officer will draw up the procedure for conducting enquiry, and the schedule for completion of the pleadings, receipt of affidavits and examination of witnesses, within a week of taking over the inquiry, and give it wide publicity in the print media and on the internet. He may create a website for the office of the inquiry. The Inquiry Officer is at liberty to devise a flexible procedure consistent with the needs of the situation without overlooking the basic requirement of the rules of natural justice so as to subserve the ends of justice.

(x) It will be open to the Petitioner to participate in the enquiry proceedings and place the necessary documents and further information before the Inquiry Officer. In particular, he should provide forthwith the Inquiry Officer the original affidavits of nine individuals filed by him in this Court.

(xi) The Inquiry Officer will in his report also give suggestions, after consulting expert witnesses, on the steps taken to improve the existing medical infrastructure and the standard of medical treatment and care provided at VIMSAR and generally in other government medical/health facilities. He will give his suggestions regarding payment of compensation where the allegation of lack of proper medical treatment and care and/or medical negligence stands established.

The matter is next listed for 08-11-2021.[Gyanadutta Chouhan v. Additional Chief Secy to Government, Health and Family Welfare Department, WP (C) No.17152 of 2021, decided on 07-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: In-person

For Respondent: Mr. M.S. Sahoo

Case BriefsCOVID 19High Courts

Manipur High Court: The Division Bench of Sanjay Kumar, CJ. and KH Nobin Singh, J., decided on a petition which was filed challenging the notification dated 30-06-2021 issued by the Home Department, Government of Manipur and more particularly the para which stated that the State Government proposes to relax curfew/containment zone orders in future in a calibrated manner by assessing the Covid infection scenario and while opening up, without compromising public health safety, the Government considered it prudent to prioritize opening of institutions, organizations, factories, shops, markets, private offices, etc., where employees and workers were Covid vaccinated. The Government had further stated that this would also apply to NREGA job card holders and workers of Government/ private projects.

The aforestated prescriptions seemed to make vaccination mandatory as they favoured those who were vaccinated, not only in terms of prioritizing the opening up of their institutions, organizations, etc., but also by linking vaccination as a condition precedent for employment of NREGA job card holders and workers in Government and private projects.

The Court observed that State cannot seek to impose conditions upon the citizens so as to compel them to get vaccinated, be it by holding out a threat or by putting them at a disadvantage for failing to get vaccinated. Restraining people who are yet to get vaccinated from opening institutions, organizations, factories, shops, etc., or denying them their livelihood by linking their employment, be it NREGA job card holders or workers in Government or private projects, to their getting vaccinated would be illegal on the part of the State, if not unconstitutional. Such a measure would also trample upon the freedom of the individual to get vaccinated or choose not to do so.

The Court held that this paragraph would not be given effect to, even if the State resorts to any further relaxations, until the next date of hearing.

The matter further is to be heard on 28-07-2021.[Osbert Khaling v. State of Manipur, 2021 SCC OnLine Mani 234, decided on 13-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Orissa High Court: A Division Bench of S Muralidhar, CJ and Savitri Ratho, J., directed State to file an affidavit addressing concerns raised in the instant PIL.

The instant Public Interest Litigation was filed concerning numerous issues related to COVID-19 care and treatment and urgent directions were sought regarding the availability of RTPCR testing facilities at the rural and block levels throughout the State of Odisha.

Counsel for petitioners submitted that the existing facilities for testing are inadequate and with the suspension of public transport, there is considerable delay in samples being collected at the block levels and being sent to the District Headquarters for testing and for the results to be obtained. He also points out that isolation centers and ambulance services are not available in rural areas for critical patients.

The Court directed the State-Opposite Parties to file, by the next date i.e. 20th July, an affidavit of the Additional Chief Secretary, Department of Health and Family Welfare, Government of Odisha addressing the specific issues highlighted in the writ petition.

The matter is next posted on 20-07-2021.[Sanjiv Joshi v. State of Odisha, WP (C) No.18607 of 2021, decided on 06-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr S. Pattjoshi and Mr S.K. Nanda

For respondent: Mr M.S. Sahoo

COVID 19Op EdsOP. ED.

Introduction: The pertinence of rethinking utility patents

The vaccines against COVID-19 possess a limited degree of efficacy against newer strains of SARS-CoV-2. Even so, in some cases, minor changes in composition may be required.[1] Yet, the adaptability to each strain may not receive patent protection that is enjoyed by the vaccine against the COVID-19 strain. This is so particularly in India, where a patent for a new use, is granted only in exceptional circumstances.[2] It is not as simple as waiving patent rights because the skills, experience and expertise cannot just be learnt, it needs to be inculcated through proper training.[3] The better way to proceed is to incentivise pharmaceutical companies to voluntarily licence not only the original vaccine but also any modified versions of a vaccine if need be. The first step towards the latter is to offer patent protection to incremental inventions.

The author builds a case for the relaxation of Section 3(d) of the Patents Act, 1970. In doing so, the article will explore the scope of the Articles 7 and 1 of the Trade-Related Aspects of Intellectual Property Rights Agreement (the Agreement), the socio-economic context in which the Indian IP regime is based and the stakes that it seeks to balance by analysing Indian judicial pronouncements. The judicial approach will be tested against the aims that it tries to further, in order to demonstrate the inefficiency of the current approach.

Mapping the Scope of discretion under the Trips Agreement

Indian courts[4] have sourced the discretion to mould provisions of the Agreement from Articles 1 and 7 of the Agreement itself. Article 27 i.e. patentable subject-matter needs to be read considering Articles 1 and 7 which lay down the nature and scope of obligations of member countries and the objectives of the Agreement, respectively.

The Agreement under Article 1, limits the freedom of the member States only to determine the appropriate method of implementation of its provisions. Additionally, Article 7, in delineating the objectives of the Agreement makes promotion of technological innovation and transfer and dissemination of technology, the guiding factors in the protection and enforcement of IPR. Further, it identifies the users as well as the manufacturers as stakeholders, and provides for a balance of rights and obligations, conducive to social and economic welfare. Therefore, the room to manoeuvre is only within the substantive provision, here i.e. Article 27 of the Agreement in a manner that furthers equilibrium between stakeholders.

Article 27, in outlining in clear terms the subject-matter of patentability, seeks to exhaust the categorisation of inventions that cannot be commercialised and patented. The line is drawn at those inventions that bear the potential to affect public order or morality. All other inventions, whether products and processes, in all fields of technology, as long as they are new, involve an inventive step and are capable of industrial application, demand patent protection. Hence, the discretion which is to be kept within the boundaries of the Agreement is limited to maintaining balance with respect to matters affecting public order and morality.

Understanding the norm on utility patents: Indian judicial pronouncements

In India, the norm is for the new use of a known substance, to not be granted a patent, while the exception is that it be granted a patent if it meets the threshold of enhanced efficacy.[5] Hence, it is pertinent to understand through what it is that guides the application of the aforesaid threshold.

 The Novartis case[6]: The enhanced efficacy test

The Supreme Court defined efficacy as “the ability to produce a desired or intended result”.[7] Hence, it is the purpose and utility of a drug in terms of the result that it is “desired or intended to produce”[8], that would be the deciding factor when it comes to testing the efficacy of a drug. In other words, it is the therapeutic efficacy that is tested. Although the Court based its decision on the “enhanced therapeutic efficacy”[9]test, it did not provide a standard for the same. Even though the ruling on Section 3(d) was directed at prohibiting ‘incremental invention”,[10] the Supreme Court said that the decision should not be “read as a general prohibition”[11] on applying for patents for an incremental invention in the “chemical and pharmaceutical”[12] sector.

F. Hoffman La-Roche Ltd. v. Cipla Ltd.[13]: The “new form of an old substance” test

The test laid down in this case was that of a “new form of an old substance”.[14] The burden to prove that IN’774 was a new form of an old substance i.e. EP’226, was on Cipla. Cipla however, failed to discharge the burden. As a result, Roche’s evidence of difference in efficacy was considered sufficient for it to be granted a patent under Section 3(d). Notably, for Cipla to have met its burden, the Court considered it sufficient for it to prove that EP’226 on further reaction can result in the formation of IN’774.

The question that remained can be viewed twofold: (1) whether there is “a product which may not strictly covered within the patent claim”[15]; and (2) whether the product “substantially contain the patented product but also contain some other variants or some other parts in addition to the patented article or product”.[16] The Court, relying on the multiple cases[17] including Kirin-Amgen v. Hoechst Marion Roussel Ltd.,[18] advocates for the claims to be interpreted purposively, in that, the real purpose for the invention of the vaccine should guide the decision-making. It must be noted that “a fortiori determination of whether a variant can be subsumed within a broad patent claim is bound to be substantively different (and presumably lower) when compared with the obviousness standard in assessing the question of further working on an invention that could revoke it in the future”.[19]

The abovementioned guidelines, carved out from judicial decisions, are within the scope of discretion granted by the Agreement. This to the extent that they comply with the subject-matter patentability requirements under Article 27 of the Agreement in prescribing a method of implementation of the Agreement that balances the stakeholders’ interests. Despite these guidelines that have been laid down in the landmark cases discussed above, the courts have allowed their judgments to be guided solely by the factor of “access to life saving medicines”.[20] They have justified this factor trumping the other considerations on the ground that it promotes social and economic welfare, an aspect that the Agreement permits a member State to accommodate for. In an effort to facilitate such access and accommodation, they have identified evergreening as a cause that needs to be addressed.[21] Evergreening is a practice that pharmaceutical companies employ, by incorporating minor changes either in the composition of the drug or in the instructions for its administration. In order to remedy this cause, they have stood by the legislative remedy i.e. Section 3(d).[22] Resultantly, for incremental inventions, to surpass the roadblock of Section 3(d), they have to demonstrate “enhancement of known efficacy” – a standard that remains undefined. This approach however, reflects a selective understanding of the Agreement and disregards its overall scheme as decoded above. Such disregard has caused India to overstep its discretion under the Agreement thereby adversely affecting the balance it proposes to create.

Bending the norm: Arguing in favour of utility patents

The key stakeholders in this debate over utility patents, as identified by the Agreement as well as the courts,[23]are the end users and the manufacturers. Therefore, it is the effect on these stakeholders that must be examined to arrive at a stand on the granting of utility patents.

In stark contrast to the aim of Parliament in curating Section 3(d), the current threshold fails to see the cause-and-effect relationship between the granting of patents and access to the public to life-saving medicine.[24] The very theories that form the foundation to intellectual property law identify this integral relationship.

The utilitarian theory,[25] in justifying IPR, posits that technological invention and artistic creation benefit the society and humankind. Hence, to further the utilitarian belief of greatest good to the greatest number of people, monetary incentives are offered to creators in the form of rights to profit from their work. The social planning theory[26]concretises the reflection of the utilitarian belief in the intellectual property regime by advocating for a system that fosters the achievement of a just and attractive culture. It also fortifies the view that intellectual property not only leads to social welfare but also serves the society. This is evidenced by the fact that a prerequisite for the granting of a patent is a complete description of the invention including the methods by which it is to be operated.[27] Consequently, the Government after the expiry of the patent term will have at its disposal, the entire information on the manufacture, operation and use of the patented invention for it to be put out in the public domain. This makes the grant of a patent, an incentive for the inventor to offer complete disclosure. Such disclosure is important in its absence; the society will have to invest a considerable amount of time and money in reinventing the invention from scratch.

This is pertinent when considered in context of the COVID-19 vaccine which can be made to undergo minor changes for it to be more effective against differing strains of SARS-CoV-2.[28] It is important for undivided knowledge to alter the vaccine for a new use, to be available to the public, particularly when the world is aware that the pandemic did not halt at one wave. While this might prima facie seem to be furthering evergreening, when analysed in the context of compulsory licensing, it does in fact strike a balance between the rights and obligations of the producers and users. A compulsory licence is the licence to generically manufacture a patented invention after three years of the patent term.[29] The Delhi High Court in F. Hoffmann-LA Roche Ltd.v. Cipla Ltd.,[30] spells out in clear terms the very objective of compulsory licensing which is to ensure the availability of the drug at affordable prices. The Court’s interpretation of the purpose of compulsory licensing was aided by the legislative intent which was to reasonably ensure that the patentee recovers the enormous cost of research and development.[31] Accordingly, the patent-holder should be accorded monopoly which could be taken away post a minimum period of which in India’s case is three years.[32] This is not to say that the minimum period of three years should not be reduced in light of the current pandemic.[33] Instead, such a change should be guided by uniform considerations and must ideally emanate from the legislature in response to the worsening situation. The most important reason to ensure certainty is that it attracts patent applications for life-saving drugs in the absence of which, even a complete shift toward public welfare will lose its very purpose.[34] The urgency of the matter is resonated in the current context with Adar Poonawalla, CEO of Serum Institute of India, the largest manufacturer of COVID-19 vaccines in the world, indicating his intention to commence COVID-19 vaccine production abroad.[35]

Concluding and mapping the road ahead

The projection of estimated cost of developing a COVID-19 vaccine is $250 million per project with a mere 32% success rate through phase 2 trials.[36] In light of the heavy costs and the possibility of the current vaccines being capable of being modified to suit newer strains, courts should allow the interpretation of their discretion to be guided by the Agreement and the legislative intention In doing so, the equipoise between the rights and obligations of the patentee and the end user as postulated in F. Hoffmann-LA Roche Ltd.v. Cipla Ltd.[37]should be considered the best practice. This is because it embodies the legislative intention in using compulsory licensing as the tool to maintain equilibrium. The only unaddressed question is regarding the standard to test the new use against. While the Novartis case[38] endorses the standard of “enhancement of known efficacy”, F. Hoffmann-LA Roche Ltd.v. Cipla Ltd.[39], brings it down to a two-fold question of whether the new product contains a variant, and whether it differs in purpose from the older version. Notably, it clarifies that such threshold of enhancement for granting a patent for an incremental invention must be lower than that of inventive step and non-obviousness, as employed integrating the initial patent. Ergo, the considerations involved in the rejection of the patent by the IPO in Novartis case[40], should ideally have been rooted in efficacy exclusively in comparison with the initial drug rather than all prior knowledge.


* 3rd-year student, BA, LLB (Hons.) Maharashtra National Law University, Mumbai. Author can be reached at shrutidhonde@mnlumumbai.edu.

[1] Michael Greshko, Existing vaccines should work against new coronavirus variants — for now (National Geographic, 15-1-2021)

[2] The Patents Act, 1970, Section 3(d).

[3]Interview with Dr Prabuddha Kundu, Co-founder and Managing Director, Premas Biotech (The Wire, 11-5-2021).

[4]Novartis AG v. Union of India, (2013) 6 SCC 1.

[5] Patents Act, 1970, Section 3(d).

[6]Supra Note 4.

[7]Ibid.

[8]Sanjay Kumar and Arpita Sawhney, ‘The Patent Litigation Environment in India’ (IAM Magazine 22 May 2020) <https://www.iam-media.com/patent-litigation-environment-india>accessed 29 May 2020.

[9] Novartis, supra Note 4.

[10]Ibid.

[11]William Bennett, Indian Pharmaceutical Patent Law and the Effects of Novartis AG v. Union of India, (2014) Wash. U. Global Stud. L. Rev. 535

[12]Novartis, supra Note 4.

[13] 2015 SCC OnLine Del 13619.

[14]Ibid.

[15]Ibid.

[16] Ibid.

[17]Catnic Components Ltd. v. Hill & Smith Ltd., 1982 RPC 183; Merck & Co. Inc. v. Generic (UK) Ltd., 2004 RPC 31; Improver Corpn. v. Remington Consumer Products Ltd., 1990 FSR 181.

[18]2004 UKHL 46: 2005 RPC 9 (HL).

[19]Merck & Co. Inc. v. Generic (UK) Ltd., 2004 RPC 31.

[20]Novartis, supra Note 4.

[21]Ibid.

[22] Linda L. Lee, Trials and TRIPS-ulations: Indian Patent Law and Novartis AG v. Union of India (2008) Berkeley Technology Law Journal 281.

[23]Novartis, supra Note 4.

[24]Shruti Dhonde & Yashaswi Pande, Balancing IPR and the Right to Health: An Abiding and ad rem Puzzle for a Welfare State (NLUJ CIPS Blog, 30-1-2021) <https://nlujcipsblog.wordpress.com/2021/01/30/balancing-ipr-and-the-right-to-health-an-abiding-and-ad-rem-puzzle-for-a-welfare-state/> accessed 11-4-2021.

[25] V.K. Ahuja, Law Relating to Intellectual Property Rights (3rd Edn., LexisNexis 2017).

[26]Ibid.

[27] The Patents Act, 1970, Section 9.

[28] Greshko, supra Note 1.

[29] The Patents Act, 1970, Sections 91-94.

[30] 2009 SCC OnLine Del 1074.

[31] Ibid; Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India, 2016 SCC OnLine Del 1951.


[32]
Telefonaktiebolaget, supra Note 31.

[33] Greshko, supra Note 1.

[34]Dhonde and Pande, supra Note 24.

[35] Serum Institute Chief Says He’s Left India, Planning to Start Covid Vaccine Production Abroad (Scroll.in, 1-3-2021) < https://scroll.in/latest/993820/coronavirus-serum-institute-chief-says-he-is-planning-to-start-vaccine-production-outside-india> accessed 1-5-2021.

[36]Andrew Lo, The Challenging Economics of Vaccine Development in the Age of COVID-19, and What can be Done about it? (DIA Global Forum, May 2020) <https://globalforum.diaglobal.org/issue/may-2020/the-challenging-economics-of-vaccine-development-in-the-age-of-covid19-and-what-can-be-done-about-it/> accessed 11-4-2021.

[37]Supra Note 30.

[38]Supra Note 4.

[39]Supra Note 30.

[40]Supra Note 4.

Case BriefsCOVID 19District Court

Sessions Court, Jammu and Kashmir: Tahir Khurshid Raina, J., denied anticipatory bail to the person accused of obstructing the vaccination drive and spreading rumours regarding the vaccination. The Bench said, 

“It is very unfortunate that while on one hand, the govt. is making painstaking efforts to ensure the safety of the people against the deadly virus by vaccination drives, the rumour mongers like the petitioner are acting as stumbling block in this lofty endeavor of the government.”

The instant application had been filed by the accused seeking anticipatory bail alleging that some false and frivolous complaint had been lodged against him. It was averred that the respondent/police wants to malign the image of the petitioner by taking him into custody. On presentation of the same, though the Court granted interim anticipatory bail, it also called for the report from the concerned Police Station. After perusal of the report, and going through the C.D. of the alleged incident the Bench reached the following findings:

Background

The facts of the case as reflected from the case diary was that on 21-06-2021, a Revenue team headed proceeded to Ashmuji for Covid-19 vaccination drive at Government Higher Secondary School. When the revenue team along with the medical team reached the spot, the petitioner made hue and cry, instigated and provoked local inhabitants there against the team and halted the vaccination drive. The petitioner assembled a large crowd there, diverted the vaccination drive towards other unnecessary issues in order to restrain the general public from vaccination. On the basis of that an FIR was registered against the accused of commission of offences under Sections 188, 269, 353 IPC.

Perusal of statements of the revenue team revealed that they all had supported the contents of the complaint lodged against the petitioner and how his hate campaign against vaccination obstructed the vaccination drive by spreading misinformation. The petitioner was also said to have used filthy language against the team members who were on the spot in connection with the vaccination drive.

Opinion and Findings of the Court

Relying on the statement of WHO, “but it’s not vaccines that will stop the pandemic, its vaccination”, the Bench stated that during the world crippling pandemic our experts in the medical field had acted as front warriors to save the humanity and at the same time played an exemplary role in preparing a vaccine to act as a shield against the attack of the virus, yet unfortunately,

“By spreading rumors and disinformation campaign against the vaccination, the petitioner and their ilk were creating lot of fear psychosis and confusion among the general public about the vaccination. Such unsubstantiated and profane act of the petitioner is not only grossly illegal but amounts to pushing the life of the people in peril, who, if not get promptly vaccinated, may fall prey to the deadly virus.”

The Bench emphasised not to forget the melancholic situation the country had faced recently, on account of second wave of the pandemic, which consumed lacs of precious human lives. Further to avoid the fatal impact of the third wave which can be more fatal as compared to second-wave the only remedy available and suggested by the experts is to get more and more people vaccinated. Expressing concern, the Bench said that it had been witnessed that at various places the health workers had to face stiff resistance from the people during vaccination drive and even had been subjected to assault at same places due to myths, rumors and canard being spread by the people like the petitioner and on account of it the people, especially living in the rural areas are getting skeptical and cynical about vaccination.

Opining that the act of rumour-mongering with regard to vaccination amount to putting the large chunk of people in jeopardy and at the same time to defeat the govt. in its drive of achieving the target of fully vaccinated country and finally to save the countrymen of the brutal effect of any further wave of the pandemic, the Bench held that the petitioner’s act of blocking the vaccination drive was detestable and illegal, hence, extending anticipatory bail to him would mean to put premium on his criminality.

Quoting Rumors are carried by haters, spread by fools and accepted by idiots”, the Bench added, let a message travels in the length and breadth of our society at large that no such unbecoming and illegal attempt of rumor mongers will be tolerated who are creating a hurdle in the way of vaccination drive. They will be dealt strenuously under law. Moreso, such haters do not deserve concession of anticipatory bail, rather their free movement and free speech is a threat to the society at large which requires to be circumscribed in accordance with the law for the general good of the society. Accordingly, the interim bail granted to the petitioner along with his bail application was dismissed.[Ghulam. Jeelani Rather v. UT of J&K, CNR.No.JKKGO10005062021, decided on 02-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Applicant: Advocate Arshad Baba

For the UT of J&K: P.P. Aijaz Ahmad Najar

Case BriefsTribunals/Commissions/Regulatory Bodies

As per the press release by NHRC dated 4-07-2021, the Chief Secretary, Government of Maharashtra has been issued a notice to ensure every possible medical treatment to imprisoned FR. Stan Swamy as part of life saving measure and protection of his basic human rights.

Background

The Commission has also called for a report in the light of the allegations made in the complaint and the treatment record of FR Swamy, who is very old and lodged in Taloja Jail, Navi Mumbai. This direction has come in continuation with the earlier order of the Commission wherein it had advised the State Government of Maharashtra to provide adequate medical care and treatment to Stan Swamy, who is hospitalized in Holy Family Hospital and submit a report within four weeks.

Earlier, the Commission had received a complaint on 16-05-2021 that FR. Stan Swamy (aged 84 years), lodged in Taloja Central Jail, Navi Mumbai was being denied medical facility during the COVID-19 period. It was also alleged that he had not been vaccinated yet and that there was no proper medical care in the jail hospital.

The Petitioner further alleged that the Majority of jail staff had tested Covid positive especially most of the kitchen staff. Number of under-trial prisoners had also contracted the corona virus and no RT-PCR tests were conducted there.


UPDATE: As per news reports, FR. Stan Swamy passes away [5-07-2021]


National Human Rights Commission

Case BriefsCOVID 19High Courts

Jharkhand High Court: The Division Bench of Ravi Ranjan and Sujit Narayan Prasad, JJ., disposed of the writ petition with observations and direction hereunder.

The instant writ petition has been filed under Article 226 of the Constitution of India, however, public interest litigation, praying inter alia to show cause as to why “COVID 19: GUIDELINES ON DEAD BODY MANAGEMENT,” issued by the Government of India, Ministry of Health and Family Welfare, Directorate General of Health Services is being flouted and to allow the family members of the COVID-19 deceased, who are willing to claim the bodies, to perform the last customary rites of the departed soul as per their tradition and custom.

It has also been prayed for to allow to perform the last customary rites of the departed soul as per their tradition and custom, with due safety, complying with the restrictions imposed by the government in order to give due respect to the departed soul one last time, as the same very much falls within the constitutional obligations enshrined under Articles 21 and 25 of the Constitution.

Counsel for the petitioner submitted that the State Government is not following the guideline issued by the Government of India as also the State Government which has been notified for the people in general pertaining to Covid-19 Guidelines on Dead Body Management dated 15.03.2020 wherein the State Government has taken decision for handing over the dead body of the person died due to Covid-19 to their kith and kin or relatives in order to pay due respect to their relatives as per their religious traditions.

Counsel for the respondent submitted counter affidavit stating inter alia therein that the grievance raised by the writ petitioner is partially true. Further, it has been stated that Covid-19 patients were handed over to the local administration by the hospitals and family members were not allowed to dispose of the dead body by themselves.

Paragraph-18 of the counter affidavit is quoted herein

“18. That with regard to the statement made by the petitioner in paragraph 11 of the writ application under reply, it is humbly stated and submitted that it is partially true. It is true that the COVID-19 patients were handed over to the local administration by the hospitals. Family members were not allowed to dispose of the dead body by themselves. They were permitted to perform the religious rituals and last rites according to the Covid-19 Guidelines on Dead Body Management. There are two burning ghats in Jamshedpur and only one was being used for disposing the COVID-19 dead bodies for the Hindus, as in the initial phase of COVID-19, law and order issue had emerged in one of the burning ghats.”

The Court observed that when the Government has formulated a guideline, it has to be followed in its letter and spirit.

The Court held “writ petition is disposed of directing the respondent concerned to follow the decision taken by the State Government dated 04.08.2020 for disposal of the dead bodies who die due to Covid-19 infection.”

[Sitwanto Devi v. State of Jharkhand, W.P. (PIL) No. 1961 of 2021, decided on 17-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For the Petitioner:  Ms. Aprajita Bhardwaj

For the Respondent- State:  Mr. Ashutosh Anand

For the Respondent 7:  Mr. Amit Kumar Das

Case BriefsSupreme Court

Supreme Court: After the Court was approached seeking direction to the Government to provide notified ex-gratia monitory compensation of Rs.4,00,000/- to the families of deceased who succumbed to COVID-19, the bench of Ashok Bhushan and MR Shah*, JJ has issued directions asking the National Disaster Management Authority to make uniform guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19.

According to the official figure, the pandemic has caused more than 3,85,000 deaths, the same is likely to increase further.

“… these deaths have affected the families from all classes – the rich and poor, professionals and informal workers, and traders and farmers. It has also affected the kins as well as elderly members, old parents. Many have lost the sole bread earner.”

Noticing that it is the mandatory statutory duty cast upon the National Authority under Section 12 of the Disaster Management Act, 2005 to recommend guidelines for the minimum standards of relief which shall include ex gratia assistance on account of loss of life, the Court held that,

“… not recommending any Guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic, while recommending other guidelines for the minimum standards of relief, it can be said that the National Authority has failed to perform its statutory duty cast under Section 12 and therefore a writ of mandamus is to be issued to the National Authority to recommend appropriate guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic as mandatory under Section 12 of DMA 2005.”

Here are the direction issued by the Court:

1) National Disaster Management Authority to recommend guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19, as mandated under Section 12(iii) of DMA 2005 for the minimum standards of relief to be provided to the persons affected by disaster – Covid 19 Pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid-19.

However, what reasonable amount to be offered towards ex gratia assistance is left to the wisdom of National Authority which may consider determining the amount taking into consideration the observations made hereinabove, such as, requirement/availability of the fund under the NDRF/SDRF for other reliefs and the priorities determined by the National Authority/Union Government and the fund required for other minimum standards of relief and fund required for prevention, preparedness, mitigation and recovery and other reliefs to carry out the obligation under DMA 2005.

This needs to be done within a period of six weeks from today;

2) The Appropriate Authority is directed to issue simplified guidelines for issuance of Death Certificates/official document stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died due to Covid-19.

“… it is the duty of the every authority to issue accurate/correct death certificates stating the correct and accurate cause of death, so that the family members of the deceased who died due to Covid-19 may not face any difficulty in getting the benefits of the schemes that may be declared by the Government for the death of the deceased, who died due to Covid-19. In the death certificate also, if a person has died due to Covid-19 and/or any other complications/disease due to Covid-19, it should be specifically mentioned in the death certificate.”

Such guidelines may also provide the remedy to the family members of the deceased who died due to Covid-19 for correction of the death certificate/official document issued by the appropriate authority, if they are not satisfied with the cause of death mentioned in the death certificate/official document issued by the appropriate authority; and

3) The Union of India to take appropriate steps on the recommendations made by the Finance Commission in its XVth Finance Commission Report bearing in mind paragraph 8.131 in consultation with other stakeholders and experts.

[Reepak Kansal v. Union of India, 2021 SCC OnLine SC 443, order dated 30.06.2021]


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

For Petitioner(s): Petitioner-in-person, S.B. Upadhyay, Sr. Adv., Reepak Kansal, Adv., Yadunandan Bansal, Adv., Nishant Kumar, Adv., Prince Arora, Adv., Shahnaz Rahman, Adv.,  Harisha S.R., AOR

For Respondent(s): Tushar Mehta, SG, Aishwarya Bhati, ASG, Rajat Nair, Adv., Amit Sharma, Adv., B.V. Balram Das, AOR, Chirag M. Shroff, AOR

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Chief Justice Abhay S Oka and Aravind Kumar J. gave a slew of directions regarding Chamarrajanagar Incident, Mucormycosis, Vaccination, oxygen supply and food security.

 CHAMARAJANAGAR INCIDENT  

  1. The issue of enhancement of compensation to the families of 24 victims of Chamarajanagar hospital tragedy was discussed.
  2. Amicus Curiae filed a memo giving suggestions on the minimum reasonable compensation which could be sanctioned to the families of 24 victims.
  3. Advocate General stated that if time of one week is granted, the State Government will consider the suggestions made by the Court and Amicus Curiae.

BLACK FUNGUS (MUCORMYCOSIS)

  1. There seems to be a very steady rise in the cases of Mucormycosis.
  2. Circular dated 23rd June 2021 directed all the Government Medical College Hospitals, District Hospitals and Taluk Hospitals to admit and treat Mucormycosis (Black Fungus) cases on priority basis.
  3. It is directed that the Health Care Facilities in both the Government and the Private shall ensure reservation of sufficient number of beds for admission and treatment of Mucormycosis cases
  4. It is further directed to ensure that the bed availability and occupancy status are displayed at a prominent place for the information of the public.

The Court directed “to start awareness campaign for making the patients who are infected with COVID-19 aware about the Mucormycosis disease and the nature and the effect of the said disease.”

VACCINATION

  1. The issue of vaccination to persons with disability with particular reference to persons with benchmark disability or serious disabilities was also discussed.
  2. About 53% of the persons with disability in the age group of 18 years and above have been vaccinated but the performance of nine districts, when it comes to administering vaccines to persons with disability, is very poor

The Court directed “the State Government to place on record the statistics regarding vaccination of the said category of persons with disability.”

 MID-DAY MEAL

  1. The issue of extending the facility of Mid- Day Meal Scheme during the summer vacation of 2021 was discussed.
  2. Additional Solicitor General of India stated the Central Government has permitted the State Government to release the necessary amounts. In view of this statement, there is no impediment in the way of the State Government implementing the facility of Mid-Day Meal Scheme for the summer vacation of 2021.
  3. It was also stated that the Government of India has taken a decision to permit the use of Disability Certificate with photo issued to persons with disability by the Competent Authorities as one of the prescribed photo identity document for the purposes of vaccination.

The Court further directed the State Government to place before the Court the steps taken to set up 28 oxygen plants.

The Court further directed “the state Government to consider setting up of Real Time Data Portal containing real time updates of the data of COVID-19 beds and other particulars across the State.”

[Mohammed Arif Jameel v. Union of India, WP NO. 6435 of 2020, decided on 24-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.