TheCentral Government has notified submission of following documents by the employees to the employer:
COVID-19 positive report of the employee or family member, or medical report if clinically determined to be COVID-19 positive through investigations, in a hospital or an in-patient facility by a treating physician of a person so admitted;
all necessary documents of medical diagnosis or treatment of the employee or his family member for COVID-19 or illness related to COVID-19 suffered within six months from the date of being determined as COVID-19 positive; and
a certification in respect of all expenditure incurred on the treatment of COVID-19 or illness related to COVID-19 of the employee or of any member of his family.
This notification shall be deemed to have come into force from the 1st day of April, 2020 and shall apply in relation to the assessment year 2020-2021 and subsequent assessment years.
Orissa High Court: A Division Bench of Krushna Ram Mohapatra and Murahari Sri Raman, JJ. in a case where due to pandemic certified copy was not available on time while filing appeal , enclosure of impugned order copy available on GST portal as opposed to procedural requirement of certified copy must not result in compromising the matter to be decided on merits.
The present appeal arises from the rejection of the petitioner’s prior appeal against the order of the Joint Commissioner of CT & GST, dated 23-05-2022. The petitioner, Atlas PVC Pipes Ltd., claims to have filed an appeal against an order of the CT & GST Officer for a rise in demand, and it is further asserted that apart from adhering to the procedure for filing of the appeal, the petitioner could not submit the certified copy of the impugned order along with the appeal memo in time.
The petitioners contended the hyper-technical approach of the Appellate Authority left it remediless and that the Authority should have been more practical in its approach, by taking into consideration the pandemic situation.
While the defendants claimed that the Authority had sufficiently followed the principles of natural justice as it gave the petitioners the opportunity to adhere to the impugned procedure by specifying dates for compliance.
Reliance was placed on the judgment, In Re: Cognizance for Extension of Limitation,2022 SCC OnLine SC 27, the Court held that the petitioner was entitled to the benefit of the exclusion of 7-day limitation as per Rule 108(3) of the OGST Rules, 2017. The Bench further made the observation that a mere delay in attaching a certified copy of the impugned order appealed against, should be treated a mere technical defect and the merit of the matter must not be disregarded in this respect.
The Court allowed the appeal accordingly and directed the petitioner to appear before the Joint Commissioner of State Tax (Appeal),so that the Appellate Authority may proceed to decide the present appeal on the basis of its merits.
Supreme Court: In a case relating to the custody of a 5-year-old who had lost both his parents to COVID-19 and the Gujarat High Court had handed over the custody to his maternal aunt and not his grand parents, the bench of MR Shah* and Anirudhha Bose, JJ has held that income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.
While handing over the custody of the minor to the maternal aunt, the following factors had weighed in with the High Court:
The paternal grandparents are old age – 71 and 63 years respectively against which the maternal aunt is aged 46 years
The maternal aunt is having a bigger family;
The grandfather is a retired government servant – depending upon the pension against which the maternal aunt is a government employee and therefore she will be in a better position to take care of the minor.
However, what the High Court failed to consider was that the child had shown his inclination to stay with the paternal grandparents. Also, the custody remained with the grandfather pursuant to the interim order passed by the High Court. Nothing was observed by the High Court that during the interim custody period, the paternal grandparents did not take proper care of the minor.
The Supreme Court, hence, observed that the reasons/grounds for granting custody to the maternal aunt may be relevant but not germane.
“There cannot be any presumption that the maternal aunt being unmarried having an independent income; younger than the paternal grandparents and having a bigger family would take better care than the paternal grandparents. In our society still the paternal grandparents would always take better care of their grandson. One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson. It is said that the grandparents love the interest rather than the principle. Emotionally also the grandparents will always take care better care of their grandson. Grand Parents are more attached emotionally with grandchildren.”
The Court also considered the fact that the grandparents have also managed to get admission of the minor in a school in Ahmedabad.
Hence, the following factors weighed in with the Supreme Court while granting the custody to the grandparents:
The minor will get better education in Ahmedabad, which is a Metro City compared to the education in Dahod.
Being a retired person, the paternal grandparents would devote more time and take care of minor better than the maternal aunt who is serving in the government department.
Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.
The High Court has not observed anything against the paternal grandparents that they have not taken proper care of the minor grandson while interim custody of the corpus was them and/or they acted detrimental to the interest of the minor.
Stating that it was a very difficult choice as it cannot be said that the maternal aunt may not take proper care of the minor son of her deceased sister, the Court said that on the facts and circumstances of the case, the High Court committed an error in not handing over and/or continuing the custody of the minor to the paternal grandparents. The Court observed that,
“if the balance is to be struck between the paternal grandparents and the maternal aunt, for the reasons stated above, the balance would certainly tilt in favour of the paternal grandparents.”
The Court, however, directed that
the maternal aunt shall have visitation right to meet the minor on regular basis preferably once in a month, subject to the convenience of the child.
during the vacation and/or holidays the grandparents may permit the minor to visit and stay with the maternal aunt, of course subject to wishes and convenience of the minor and it may not adversely affect the interest of the minor including his education and even the extra curriculum activities.
It is also expected to have video calling between the corpus and maternal aunt on regular basis.
In Part I of our series on fitness wearables and the law, we noted how the use of wearable devices capable of identifying key human biomarkers (e.g. blood pressure and oxygen levels) sharply accelerated during the COVID-19 Pandemic. The deadly coronavirus came as an unpleasant reminder of the human body’s frailty and triggered a desire among many to lead healthier lives, leading to increased consumer demand for general wellness aids and fitness trackers. In the healthcare ecosystem, physicians and healthcare institutions, now physically removed from their patients, began to use these devices to remotely monitor those at risk.
Today, when your watch can track your heartbeat and oxygen levels, the line between patient and consumer, and fitness wearable and medical device, has blurred. Can these devices be accommodated within existing regulatory structures, or do they deserve sui generis treatment? In Part 1, we looked at how smart wearables are regulated in the United States, including the Food and Drug Administration (FDA’s) guidance on the regulation of wearables intended for general wellness purposes.
Here, in Part II, we navigate the regulatory and legal trends in respect of smart wearables in the European Union.
Until recently, there were three primary regulations (prior legislation) governing medical devices in the EU:
The European Commission felt the need, just as the US FDA had, to address the growing prominence of technology-driven health products. Towards that end, the European Commission on 25-5-2017, simultaneously enacted two major regulatory changes that replaced the prior legislation:
(i) EU Regulation 2017/745 on medical devices reporting (MDR); and
(ii) EU Regulation 2017/746 on in vitro diagnostic regulation medical devices (IVDR).
Although the MDR was enacted in 2017, the EU provided for a three-year transition period for the MDR to come into effect. This transition period was later extended due to the impact of the COVID-19 Pandemic on healthcare and medical device stakeholders, and the MDR finally came into effect on 26-5-2021, replacing the existing MDD and the directive on active implantable medical devices. The MDR introduces new concepts, definitions, and rules which may be made applicable to technology-driven health products, some of which are discussed and analysed below.
Are Smart Wearables considered to be Medical Devices under the MDR?
What are Smart Wearables?
Although the term “smart wearables” is not defined anywhere in any of the EU directives, the European Commission in an informational paper refers to it as “a body-borne computational and sensory devices which can sense the person who wears them and/or their environment. Wearables can communicate either directly through embedded wireless connectivity or through another device (e.g. a smartphone). The data collected by the wearable device about the user or its environment is processed in a processing unit located locally or in an external server, and the results are ultimately provided to the wearer. Smart wearables may have control, communication, storage and actuation capabilities”.
The paper also provides examples of such wearables, which include blood pressure monitors, ECG monitors, hearing aids, smartwatches, smart glasses, sleep sensors, and the like.
Intended Use of a Medical Device
To understand how the current framework of the MDR differs from the MDD, let us look at how medical devices are defined under both regimes.
Article 1(2) of the MDD defines a medical device as “any instrument, apparatus, appliance, software, material or other article, whether used alone or in combination, including the software intended by its manufacturer to be used specifically for diagnostic and/or therapeutic purposes and necessary for its proper application, intended by the manufacturer to be used for human beings for the purpose of” (among other things) “diagnosis, prevention, monitoring, treatment or alleviation of disease…” or for the “… investigation, replacement or modification of the anatomy or of a physiological process.…”
From the above, it is clear that under the MDD, a medical device may include software, and that the manufacturer’s intended use for the device is key to determining the device’s nature. The intended purpose is defined as “the use for which a device is intended according to the data supplied by the manufacturer on the label, in the instructions for use or in promotional or sales materials or statements and as specified by the manufacturer in the clinical evaluation”.
Article 2(1) of the MDR defines a medical device as “any instrument, apparatus, appliance, software, implant, reagent, material or other article intended by the manufacturer to be used, alone or in combination, for human beings for one or more of the following specific medical purposes:
diagnosis, prevention, monitoring, prediction, prognosis, treatment or alleviation of disease,…
… providing information by means of in vitro examination of specimens derived from the human body, including organ, blood and tissue donations.…”
The definitions above make it clear that under the MDD, if a manufacturer intends for its device to diagnose, prevent, monitor, treat, alleviate, or investigate a disease or a physiological process, then the device will be considered a medical device, and be subject to the MDD’s requirements.
The MDR, in its definition of a medical device, introduces the additional qualifying language: “prediction” and “prognosis”. Therefore, a fitness wearable that “predicts” or provides a “prognosis” of future disease indication, such as e.g. diabetes, through analysis of the data it collects, would arguably qualify as a medical device under the MDR (unlike under the erstwhile MDD), even if it does not diagnose, prevent or treat such disease.
The guidance document on the classification of medical devices bears out this reading. For instance, under the MDD, most standalone software used for diagnostic or medical purposes fell under Class I (lower risk level) and therefore, was subject to fewer regulatory requirements. Under the MDR, most standalone software that falls within the definition of a medical device automatically falls under Class II-A or higher.
Therefore, for manufacturers of smart wearables, the advent of the MDR may mean potentially increased regulatory compliance requirements, and the need to demonstrate general safety and performance before legally placing their product on the European market. As with the MDD, the intended use of the device remains key. The Preamble to the MDR also clarifies that “… software in its own right, when specifically intended by the manufacturer to be used for one or more of the medical purposes set out in the definition of a medical device, qualifies as a medical device, while software for general purposes, even when used in a healthcare setting, or software intended for lifestyle and well-being purposes is not a medical device”.
The European Court of Justice (ECJ), in Brain Products GmbH v. BioSemi VOF, took a similar view and held that “[where] a product is not conceived by its manufacturer to be used for medical purposes, its certification as a medical device cannot be required”. Therefore, how the manufacturer of a device advertises the product has an important bearing on the classification of a smart wearable as a medical device, which in other words, can be interpreted to mean that how a device is actually used has no bearing on how the device is regulated if the manufacturer does not intend for it to be a medical device.
Intended Versus Actual Use
Similar to the US, if the function or actual use of the device may be medical, despite any disclaimers to that effect, such devices should ideally be registered under the MDR. For instance, the Samsung Galaxy Watch 4 allows for tracking sleep, activity, blood pressure, stress, and heart rate. Although the smartwatch is intended for fitness and wellness purposes, calculation, monitoring, and analysis of blood pressure through its app is registered as a medical device across the EU, UK, Singapore, and UAE.
Although the concept of intended use is aimed to encourage and ease market entry for fitness and “holistic wellness” wearables, there is increasing evidence that notwithstanding the stated intent of manufacturers, these wearables are sometimes used by consumers as the basis for medical decision-making. The MDR aims to address this by providing for post-market surveillance where manufacturers may voluntarily collect, and review information to understand how their products are being used by the public to better align regulatory purposes with public health objectives and identify any preventive measures, where necessary.
Part III of our series on the law relating to fitness wearables will examine the legal and regulatory framework for smart wearables in India, contrasting it to the US and EU regulatory frameworks.
 See Regulation 2017/745 of the European Parliament and of the Council of 5-4-2017 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No. 178/2002 and Regulation (EC) No. 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC , Art. 20, O.J. (L 117/1) (EU);
See also Regulation 2017/746 of the European Parliament and of the Council of 5-4-2017 on in vitro diagnostic medical devices and repealing Directive 98/79/EC and Commission Decision 2010/227/EU , Art. 18, O.J. (L 117/176) (EU).
 See Commission postpones application of the Medical Devices Regulation to prioritise the fight against coronavirus, HERE .
 See Smart Wearables: Reflection and Orientation Paper,HERE.
 Council Directive 93/42/EEC of 14-6-1993 concerning medical devices, HERE .
 Art. 2(12), Regulation (EU) 2017/745 of the European Parliament and of the Council of 5-4-2017 on medical devices.
 Regulation (EU) 2017/745 of the European Parliament and of the Council of 5-4-2017 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No. 178/2002 and Regulation (EC) No. 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC, HERE .
 MDCG 2021-2024 Guidance on Classification of Medical Devices, October 2021, HERE .
 See, MDCG 2021-2024 Guidance on Classification of Medical Devices, October 2021, HERE, The guidance document provides that while classifying a product as a medical device, the intended use and not the accidental use of the device will determines the class of the device. It is the intended purpose assigned by the manufacturer to the device that determines the class of the device and not the class assigned to other similar products.
 Regulation (EU) 2017/745 of the European Parliament and of the Council of 5-4-2017 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No. 178/2002 and Regulation (EC) No. 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC, HERE .
 “Are Wearables Medical Devices Requiring a CE-Mark in the EU?”, Covington Digital Health, 22-1-2019, HERE .
 “Simple and Streamlined, Garmin Vivosmart 5 Fitness Tracker is the Effortless way to Take Charge of your Everyday Health”, Bloomberg, 20-4-2022, <HERE .
Karnataka High Court: Noting that the nature of work assigned to a woman cannot be carried from home, R Devdas, J., held that, as per Section 5(5) of the Maternity Benefits Act, 1961 work from home after availing the maternity benefit could be given only in a case where the nature of work assigned to the women is such that it is possible for her to work from home.
The petitioner delivered a baby girl in August 2020 and was on maternity leave till February 2021.
Further, the petitioner contended that during the second wave of COVID-19 and the lockdown announced by the Government of Karnataka, the petitioner was given benefit along with other employees, to work from home during the lockdown period.
Respondent-Organization did not deny the fact that the petitioner’s attendance was regularized. However, when the petitioner did not join duty after the sanctioned leave was exhausted, the impugned communication was issued to the petitioner stating that she was staying away from duty without sanction of leave and overstay without sanction of leave would be treated as unauthorized absence.
It was also informed to the petitioner that disciplinary action could be initiated against her for willful absence from duty after expiry of the leave period sanctioned by the Management.
Petitioner pointed out the benefits that were required to be provided to a woman under maternity, and two official Memoranda, which provided for grant of child care leave to women employees having minor children below the age of 18 years.
Analysis, Law and Decision
High Court expressed that the petitioner was not able to point out any specific provision of law or rules that would mandate the respondent-organisation to grant childcare leave facility as is available to the Central Government employees, to the employees of STARC.
Bench made reference to Section 5(5) of the Maternity Benefits Act, 1961, it was evident from the said provision that maternity benefits such as work from after availing the maternity benefit could be given only in cases where the nature of work assigned to the women is such that it is possible for her to work from home.
It was noted that the premises of respondent-Organisation was sensitive and involved with risk due to usage of chemicals and toxic gases and the employees working were involved in research work which was both sensitive as well as complicated. Hence, the said work of the petitioner cannot be carried on from home.
During the proceedings, this Court noted that by the impugned communications issued by the respondent-Organisation, the petitioner warned about unauthorized absence and the consequence of willful disobedience.
The Bench stated that the Court cannot lose sight of the fact that during the period of delivery and post-delivery, there were two serious waves of COVID-19 pandemic, firstly, which commenced during the month of March 2020 and for a prolonged period lockdown was announced by the State Government. The second wave commenced from April 2021. This Court would take judicial notice of the fact that there was a third wave in the month commenced from November-December 2021.
Therefore, if the petitioner was unable to join the duties, the respondent-Organisation was required to have a sympathetic view toward the petitioner.
High Court opined that although the prayer made by the petitioner regarding the grant of child care leave could not be granted, however, liberty was reserved to the petitioner to make fresh representation regarding the unauthorized absence and seek regularization of the same.
In view of the above, the petition was accordingly disposed of. [Prachi Sen v. Ministry of Defence, WP No. 22979 of 2021 (S-RES), decided on 3-3-2022]
Advocates before the Court:
For the Petitioner: Beena P.K., Advocate
For the Respondent: H. Jayakara Shetty, CGC For R1 to R4
Supreme Court: In a case where a student had completed 9 semesters of her academic course including clinical training in the medical colleges in China but due to the outbreak of COVID-19 pandemic, one semester was completed online and was granted MBBS degrees without any practical and clinical training in physical form, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that without practical training, there cannot be any Doctor who is expected to take care of the citizens of the country. Hence, the decision of the National Medical Commission not to grant provisional registration cannot be said to be arbitrary.
It was argued before the Court that since the student has been declared qualified by the Foreign Institute, the only requirement before provisional registration is qualifying in the Screening Test in terms of the Screening Test Regulations, 2002. As she has qualified such Screening Test, therefore, the condition stands satisfied and hence, the decision of the Medical Council not to grant provisional registration is not justified in law. However, as admitted by the student that she had not undergone the practical and clinical training in the physical form, though she had undergone the course through online mode for the entire duration.
The Court observed,
“No doubt, the pandemic has thrown new challenges to the entire world including the students but granting provisional registration to complete internship to a student who has not undergone clinical training would be compromising with the health of the citizens of any country and the health infrastructure at large.”
Concerned with the fate of the student and other similarly situated students, the Court said such national resource cannot be permitted to be wasted which will affect the life of young students, who had taken admission in the foreign Institutes as part of their career prospects. Therefore, the services of the students should be used to augment health infrastructure in the country. Thus, it would be necessary that the students undergo actual clinical training of such duration and at such institutes which are identified by the appellant and on such terms and conditions, including the charges for imparting such training, as may be notified by the National Medical Commission.
Therefore, the Court directed the National Medical Commission
to frame a scheme as a one time measure within two months to allow the student and such similarly situated students who have not actually completed clinical training to undergo clinical training in India in the medical colleges which may be identified by the National Medical Commission for a limited duration as may be specified by the National Medical Commission, on such charges which the National Medical Commission determines.
It shall be open to the National Medical Commission to test the candidates in the scheme so framed in the manner within next one month, which it considers appropriate as to satisfy that such students are sufficiently trained to be provisionally registered to complete internship for 12 months.
Delhi High Court: The Division Bench of Vipin Sanghi, ACJ and Navin Chawla, J., held that this Court cannot direct payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19.
A petition was filed seeking the following reliefs:
To issue a Writ of Mandamus or order or direction of the similar nature directing respondents to provide ex gratia compensation Rs 1 crore to all families whose members have died due to COVID-19 virus or due to post COVID infections within one month of recovering from COVID without any discrimination
Issue writ of mandamus or order or direction of the similar nature directing respondents to formulate proper policy and guidelines for providing ex gratia payment or compensation to all families whose members have died due to COVID-19 or due to post covid infections within one month of recovering from COVID
Issue Writ of prohibition or order or direction of the similar nature thereby prohibiting the Respondents to stop paying compensation Rs 1 crore to the families of selected persons only merely on the basis of pick and choose without any guidelines, and,
Issue Writ of Mandamus against the Respondents to provide social security and rehabilitation to victims of Covid 19 Victims, and.
High Court opined that it cannot direct payment of ex gratia compensation of Rs 1 Crore to all the families whose members died due to COVID-19.
Further, the Bench added that, the GNCTD had already formulated a uniform policy for the payment of ex gratia compensation to the kin of the deceased who died due to the COVID-19 pandemic.
In view of a policy already being framed, the third prayer was also stood addressed.
The matter was disposed of in view of the above discussion. [Dr Vidyottma Jha v. GNCTD, 2022 SCC OnLine Del 993, decided on 5-4-2022]
Advocates before the Court:
For the Petitioner:
Dr Abhishek Atrey with Mr Brijesh Panchal, and Dr Vidyottma Jha, Advs.
For the Respondent:
Mr Santosh Kr. Tripathi, SC, Civil, GNCTD with Mr Arun Panwar, Mr Siddharth K. Dwivedi and Mr Aditya Jadhav, Advs.
Himachal Pradesh High Court: A Division Bench of Mohammad Rafiq CJ. and Jyotsna Rewal Dua, JJ. disposed of the petition and directed to approach State Bar Council.
The instant writ petition was filed by Ms. Manisha, a practitioner Advocate of this Court, praying for a direction to the respondent-State to consider her application for grant of stipend to her as well as to those Advocates, who have not completed three years of practice on account of Covid-19.
The Court relied on Pawan Prakash Pathak v. Bar Council of India, Writ Petition (Civil) Diary No(s). 10949/2020 titled as wherein the petitioners therein were set at liberty to approach the Bar Council of India, who in turn should consider assisting its brethren, keeping in view the prevailing situation.
The Court observed that none appeared for the petitioner, when the matter was listed on the last date of hearing. Today again nobody has put in appearance on behalf of the petitioner, obviously, because of the fact that the Covid situation has eased now. The petitioner seems to have lost interest in prosecuting the present petition.
The Court thus held “in view of the observations made by the Hon’ble Supreme Court is required to approach the Bar Council of Himachal Pradesh for redressal of her grievance and that the State could not be required to pay the additional stipend available with them.”
Supreme Court: Considering the submissions by Solicitor General Tushar Mehta on fixing an outer limit on fixing claims for compensation in case the death occurred due to COVID-19, the bench of MR Shah* and BV Nagarathna, JJ has fixed the outer limit of sixty days from the date of the order I.e. 24.03.2022 to file the claims for compensation in case the death occurred due to COVID-19 prior to 20.03.2022. For future deaths, ninety days’ time is provided from the date of death due to COVID-19 to file the claim for compensation. However, the earlier order to process the claims and to make the actual payment of compensation within a period of thirty days from the date of receipt of claim to be continued.
It was submitted before the Court that more than nine months have passed after the first judgment and order and thereafter four months have passed after the subsequent judgment and order dated 29.11.2021 passed by this Court and by now approximately 7,38,610 claims have been received by the concerned States. The Court agreed with the submission that by now all genuine claimants must have approached the authorities by establishing their claims and that if there is no outer time limit fixed, then the process of receiving the claims would go endless and, in that case, there is all possibility of submitting false claims.
The Court. However, refused to accept the suggestion of four weeks’ time by the Solicitor General and observed that this time was too short as the family would need some reasonable time to recover from the death and sorrow and filing the claim.
The Court, further, clarified that in case of extreme hardship any claimant could not make an application within the time prescribed, it will be open for the claimant to approach the Grievance Redressal Committee and make the claim through Grievance Redressal Committee which shall be considered by the Grievance Redressal Committee on case to case basis and if it is found by the Grievance Redressal Committee that a particular claimant could not make the claim within the stipulated time which was beyond their control his/her case may be considered on merits.
Th Ministry of Health and Family Welfare and Ministry of Home Affairs – Union of India and all the concerned States have hence, been directed to give wide publicity to the present order through print and electronic media so that the claimants can know the time limit fixed by this Court for making claims. Such advertisement shall be published fortnightly for a period of six weeks from the date of this order.
On the issue of false claims of ex-gratia compensation of Rs.50,000/- by the kin/family member of those, who died due to COVID-19, the Court observed that nobody can be permitted to misuse the same and it is also against morality and is unethical, which can never be accepted. The Court, hence, directed the NDMA/Union of India, through Ministry of Health and Family Welfare to conduct a random scrutiny of the 5% of the claim applications filed in the States of Andhra Pradesh, Gujarat, Kerala and Maharashtra shall be made at the first instance. If it is found that anybody has made a fake claim, the same shall be considered under Section 52 of the Act, 2005 and liable to be punished accordingly.
Bombay High Court, Nagpur: The Division Bench of Sunil B. Shukre and Anil L. Pansare, JJ., addressed a petition wherein a grievance was filed stating that an unreasonable classification resulting in impermissible discrimination had been made by the respondents as Cinema Halls, Theaters, Malls, Restaurants and also other establishments have been permitted to carry on their business or operations with 50% capacity of the customers or attendees, provided customers or attendees are armed with two doses of vaccination, and whereas, Mangal Karyalaya/ Banquet Halls and Lawns where marriage functions are held and solemnised are not being permitted to carry on their business and operations with the same capacity of persons who have taken both the doses of vaccination.
High Court issued notice for next date of hearing on 16-2-2022.
Though, Addl. G.P. and the Advocate for respondent 2, submitted that recently Collector, Nagpur had sent a proposal to the Principal Secretary, Disaster Management, Relief and Rehabilitation Department, Mumbai on 10-2-2022 recommending several relaxations in the restrictions imposed earlier on account of Covid-19 Pandemic and therefore, according to them, this petition has been prematurely filed. [Mangal Karyalaya & Lawn Assn. v. State of Maharashtra, 2022 SCC OnLine Bom 303, decided on 11-2-2022]
Advocates before the Court:
Shri Shyam Dewani, Advocate for Petitioners.
Shri S.S. Doifode, Addl.G.P. for Respondent Nos. 1 & 3. Shri S.M.Puranik, Advocate for Respondent No.2.
Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar, J., directed the Chief Secretary, Government of Bihar to take all steps ensuring the establishment of State Mental Health Authority as per Section 45 of the Mental Health Care Act, 2017.
The object and purpose of the Mental Health Care Act, 2017 is to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during the delivery of mental healthcare.
Chapter VII of the said Act specifically deals with the establishment and composition of the State Authority, to be termed as the “State Mental Health Authority”.
The Bench noted that as per the affidavit of the State, the said authority as referred to above has not yet been constituted.
High Court remarked that,
“It appears that mental health of a person and/or treatment of those who are in need, more so during the time of COVID-19, is the least priority of the State Government.”
Bench noted that the step for establishing the authority commenced in the year 2020, that too, with the publication of an advertisement in the newspaper and since then nothing has been done to expedite the process.
The affidavit filed by the Additional Directors, Health, Bihar Patna has averments as vague as they can be, it does not address the pertinent questions regarding how much time would it take for the establishment, who all are engaged in the selection process and on which stage it is.
Bench added that,
“We only remind the Government that Covid-19 was declared as a ‘Pandemic’ only on 24th of March, 2020 and since then despite the first, the second and the third wave, which fortunately we have been able to overcome despite the adversities; challenges; and the hardships, all institutions/establishments/organs of the State have become fully operational and functional.”
Hence, the Court directed the Chief Secretary, Government of Bihar to forthwith take all the steps ensuring the establishment of the authority as stipulated under Section 45 of the Act and an affidavit be filed with regard to indicating the latest status by the Chief Secretary, Government of Bihar before the next date.
Matter to be listed on 25-2-2022. [Akanksha Maviya v. Union of India, 2022 SCC OnLine Pat 305, decided on 10-2-2022]
Advocates before the Court:
For the Petitioner/s :
Mr. Vishal Kumar Singh, Advocate Mr. Akash Keshav, Advocate
Mr. Deepak Kumar Singh, Advocate Mr. Shashwat, Advocate
Supreme Court: While addressing the issue of obviating difficulties to victims of trafficking with respect to travelling long distances for the purpose of giving evidence in trial courts, the Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., furthers recording of evidence of child victims/witnesses of human trafficking via video-conferencing. Opining that the video-conference procedure need not be restricted only to the period affected by COVID-19 pandemic, the Bench remarked,
“Though, the public-spirited Petitioners were concerned with the safety of the trafficked children being forced to travel long distances for giving evidence during the COVID-19 pandemic, we are of the opinion that the suggestions made by the learned Amicus Curiae, in consultation with Ms. Shenoy, relating to the SOP should be put in practice as a regular feature.”
A petition was filed before the Court seeking issue of mandamus directing that during COVID-19 pandemic, the recording of evidence of child victims/witnesses of human trafficking across Districts/States/Countries be ordinarily undertaken via video-conferencing from a government facility within the local jurisdiction of the residence of such children. Considering the gravity of the matter a suo motu case was registered by the Court and Mr. Gaurav Agarwal had been appointed as Amicus Curiae to assist the Court.
The Pilot Project
The Amicus Curiae had proposed a pilot project, wherein four cases were selected out of which trial had commenced in two cases and direction was given for examination of witnesses by video conferencing. In State v. Rahmatulla, SC No. 151 of 2019, 11 children engaged in stitching work of suit/coat covers were rescued by a surprise rescue operation from premises in North East Delhi, PS Khajuri Khas. The rescued children were sent to their native places, i.e., East Champaran Districts of Bihar. The case was pending in the court of Additional District Judge, Karkadooma, New Delhi. In second case, State v. Mohd. Sherjahan, Case No. 52 of 2019, the Anti-Human Trafficking Unit had rescued four children, who were forced to make bangles in a confined room at Jaipur. The rescued children were sent to their homes at Patna and Gaya in Bihar. The trial in the said case was due to be conducted in POCSO Court-2, Jaipur. The pilot project consisted three stages:
Assessment of state of infrastructure at the Court Point and the Remote Point. The Court Point is in the cities or places where the trial has to take place and the Remote Point is the district/Taluk court complex or the office of the District Legal Services Authority near the place of residence of the victims/witnesses. Availability of necessary equipment for video conferencing, along with other facilities integral to the process, was to be ascertained in the first stage.
The Judge at the Court Point was to fix a date for examination of the witnesses and thereafter, issuing summons to the witnesses. The witnesses be intimated about (i) the address of the Remote Point and date and time of hearing; (ii) name, contact details and a brief explanation of the role of the Remote Point Coordinator (RPC); and (iii) the requirement to carry a proof of identification.
Actual examination of the child witnesses at the Remote Point and the procedures to be followed to ensure that the witnesses are examined in camera and without any influence.
Standard Operating Procedure
After being satisfied with the trial run of examination of child witnesses at remote points, the Amicus Curiae submitted a draft Standard Operating Procedure (SOP) in consultation with Senior Advocate Anitha Shenoy, with five stages which was served on all the State Governments/Union Territories as well as the High Courts for their comments by the order of the Court. On suggestions made by the High Courts, the SOP was modified and the modified SOP reads as:
Testimony of children be recorded through video conferencing either at the video conferencing room of the court complex in the district or the office of DLSA where the child is residing.
District Judges to ascertain the availability of video conferencing facility in the district/Taluk court complex or DLSA office and communicate the same to the jurisdictional High Court. The High Courts were asked to place the said information on its website on or before 30-04-2022 and ensure availability of video-conferencing infrastructure in every district, especially where the incidence of child trafficking cases is high.
DLSA to be the Remote Point Coordinator (RPC) for recording of the testimony of child witnesses or appoint a Retired judicial Officer as a RPC, information of which, i.e. the names and contact details of the RPC of each district on the website.
In cases of inter-state/inter-district child trafficking the Trial Court should ordinarily give preference to examination of the child witness through video conferencing.
The authorized officer at the Court Point to get in touch with the RPC at the Remote Point and work out all modalities for recording of the child witness statement through video conferencing.
The child witness be entitled to the presence of a support person under Protection of Children from Sexual Offences Rules, 2020, a diet money on the basis of the distance travelled to reach the remote point and any other best practice required by the law.
Copy of documents required to be marked or shown to the witness may be transmitted by the Court electronically to the RPC.
Questions posed by the Public Prosecutor/Defense Counsel may be put to the Trial Judge, who in turn will put them to the witness and the Trial Court would record the testimony of the witness.
On completion of recording of evidence, the deposition will be sent by the Trial Court on email to the RPC who shall read the same out to the witness. After ascertaining the deposition is correct and verified as under law including the affixation of the child’s thumb impression/signature, the RPC may certify the same and send the deposition back, in a secure manner, to the Trial Court by Speed Post and by electronic means as permitted by law. An original may also be kept by RPC in case the Speed Post is misplaced for some reason.
Whenever a Trial Court proposes to record the testimony of a child witness, who is residing in another State, an intimation of the same should also be given to the Registrar of the High Court of the Court point, who shall intimate the High Court of the Remote Point with a request to render all assistance possible for recording of the testimony of the child.
The SOP is only a broad guideline. The method and manner of recording of testimony be dependent upon the video conferencing rules framed by the respective High Courts and the recording of the testimony should be done expeditiously.
Conclusion and Directions
According to data released by agencies the problem of Child Labour in India is persisting inspite of the best efforts of the Government. Reiterating the importance of protection of children and rescuing and rehabilitating them, the Bench opined that the said SOP need not be restricted only to the period affected by the COVID-19 pandemic.
Observing that the permissibility of recording evidence through video conferencing had been considered by the Supreme Court in State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, Sakshi v. Union of India,(2004) 5 SCC 518, as well as Eera v. State (NCT of Delhi), (2017) 15 SCC 133, and Sampurna Behura v. Union of India,(2018) 4 SCC 433, wherein the Court had encouraged the use of technologies in court proceedings, the Bench stated,
“We have carefully examined the draft SOP which contains minute details about steps to be taken for recording the testimony of child witnesses at Remote Points. Responses have been filed by the High Courts. There is no objection taken by any High Court to the SOP being put in practice immediately.”
Accordingly, the Bench directed that the SOP be followed in all criminal trials where child witnesses, not residing near Court Points, are examined and not physically in the courts where the trial is conducted. The RPCs were directed to ensure that child-friendly practices are adopted during the examination of the witnesses and the concerned judicial officer at the Remote Point and the trial Court were to that the recording of evidence shall be in camera wherever necessary.
Noting that NALSA had also come forward to place the details regarding the availability of video conferencing facility for recording of statement of child witnesses in the offices of DLSA and court complex and the name and contact number of the RPC on its website and the website of State Legal Services Authority (SLSA) by 30-04-2022, the Bench expressed,
“We appreciate the stand taken by NALSA to strengthen the video conferencing facilities in DLSA offices in the States of Uttar Pradesh, Bihar, West Bengal, Odisha and Assam, to begin with to ensure that in case video conferencing facility in the court complex is not available, video conferencing facility in DLSA office can be utilized for recording of the evidence of the child witness.”
Rabindranath Tagore’s eternal poem “Where the Mind is Without Fear” grants us a window of imagination into a world that is free of fetters. This glimpse is evocative because each one of us yearns to exercise the fullest of our capabilities and live out our inchoate potential. Just as every imagined universe is also a guide, Tagore’s poem enjoins us to build an environment where individual aspirations can be fulfilled.
In our context however, the elimination of “fear” can just as easily mean the fear of speaking out about mental health. The stigma that accompanies conversations of mental health is all-pervasive. It follows us at our homes and our workplaces and when we converse with our peers and seniors. The fear of being marked out as “different” creates a chilling effect for everyone who wishes to speak out but cannot do so. One cannot prosper when one cannot speak about what truly ails them. One cannot build an environment where one’s abilities and talent are able to flourish if considerations of mental health remain suppressed under the surface.
In order to work towards Tagore’s dream, a collective conversation about the well-being of those around us is necessary. It is important to pierce the veil of uncomfortable silence that trails us in our offices and courtrooms. For only when our fear of thinking is eliminated can we build our “heaven of freedom”.
The legal fraternity stands as a beacon of hope, a knight in shining armour, a flag bearer of justice to give an ear to the cry of the litigants. An outsider is often as oblivious about the human behind the lawyer as he is about the working of the judicial system. The successful lawyer is the face he sees not knowing the midnight oil burnt that wrinkled those brows, the long battle to the top, the skills honed over decades. The struggle of the young lawyer often remains unknown and unattended.
The last two years have been a period of rising challenges for the legal fraternity but to many both inside and outside the legal profession the term “mental health of legal professionals” may sound like a contradiction. On the ground however, the term attains enormous significance. Limitless working hours, tight deadlines, client’s expectations in the midst of cut-throat competition and the adversarial nature of the practice of law undoubtedly lead to high stress situation that legal professionals encounter on a daily basis. The unspoken prerequisite for being on the top of your game only adds to the lawyer’s turmoil. In the cauldron of professional life, lawyers often find themselves unable to express or share their mental condition, lest they jeopardise their reputation and perception of mental “fitness” to be a lawyer.
The endless race to the pinnacle of the legal profession has only stigmatised any discussion surrounding mental health. Thus, conversations on well-being are hushed away behind piles of files/documents squeezed out of tiny office chambers and washed down hurried morning showers. Courtrooms come with their barrage of inextricable stress characterised by interpersonal tension, high-stakes decisions, and sometimes, retellings of very serious and traumatic crimes. Needless to say, mental health and the judicial system are intrinsically interlinked.
The Indian legal fraternity is certainly not an exception to the problem at hand. Studies of far-away nations reveal disturbing facts on mental health of lawyers. Researchers at Johns Hopkins University discovered that lawyers had three times the rate of clinical depression compared to professionals in 25 other occupations. Approximately 15 per cent of lawyers have been found to encounter some form of depression during their careers.1 A survey conducted by the Canadian Bar Association, reveals that about 58% of lawyers, attorneys, law students, Judges experienced stress burnouts, whereas about 48% of the legal professionals were subjected to anxiety disorders and 25% of the lawyers were suffering from depression.2 As is unfortunately often the case, significant professional stress is accompanied by unhealthy coping mechanisms. According to American Bar Association’s 2020 profile of the profession, lawyers have been and still are more susceptible to addictions as compared to the general population.3 While developed western societies have led the discussion and acknowledgement around mental issues and well-being of lawyers, developing nations of the Asia-Africa-Pacific are yet to get there.
They say, “be willing to change because life will not stay the same”. But no one knew it was going to be so drastic. Already sailing in troubled waters, the COVID-19 Pandemic seems to have only added to the stress of legal fraternity. With courts and offices shutting down in early 2020 due to fear of spread of infection – lakhs of lawyers, clerks, law students, and support staff were left fending for themselves. The functioning of our court system, as well as legal offices had to be drastically altered. For practicing lawyers, coffee table conversations were replaced with quick-fire messages on virtual platforms, and in-person meetings transitioned to video calls. Interactive seminars and lectures shifted to faceless displays, and face-to-face interactions were even harder to come by than normal. For many professionals, remote working has blurred all physical and emotional borders between work and family lives, making it far more difficult to achieve a healthy work-life balance, especially for the young professionals and fresh law graduates who seem to be struggling the most in these uncertain times. Many reports show that lawyers who were satisfied in their work from home roles have also experienced early burnouts and severe mental hardships.
The durance of practitioners in the narrow confines of their homes for almost two years has compelled a process of introspection towards need to monitor mental well-being in addition to just physical health. It is said that in suffering is the opportunity to evolve and to grow. The promise of Article 214 of our great Constitution comes to mind – it is the promise of life, of liberty, of livelihood, of “Ubuntu”, which has sustained the society through the periods of lockdowns and confinements. One hopes that a more humane society built around ideas of equity and community would emerge. However, the fact is that the disparities have increased. Ironically, the society coming together to carry out its respective responsibilities in the battle against COVID-19 has emphasised the point that humans cannot live in isolation – community and mental well-being lie at the core of humanity. In fact the human race must subsist with the different forms of life on the earth and the sea and one must, with deep sense of regret, accept the “inteha” of the human race against other forms of life. The human race seems to be living with an unreal assurance as if it possesses more than one earth’s resources to live by. The strength of the mind is important to both acknowledge and remedy the ground reality.
India as a founding member of the United Nations, has ratified various international conventions promising to secure mental healthcare right of individuals. The eventual enactment of Mental Healthcare Act, 20175 setting maximum standards for institutional care has been a step in the right direction at the right time, conferring citizens with the right to healthcare, live in community, legal aid, contracting rights, information and protection from cruel treatment. Various initiatives like the District Mental Health Program providing basic mental healthcare services at community level and guidelines and policies under the aegis of National Task Force for the finalisation, implementation, and monitoring of the psychosocial action plan for COVID-19, have been satisfying initiatives.6 The National Human Rights Commission and the Indian Psychiatry Society have also taken initiatives towards active research and recommending action plans to promote mental health and well-being to the Government. NGOs across the nation have launched community programs to increase mental health awareness by launching mental health boot camps in urban and rural areas and providing research and training facilities at educational institutions. The Department of Empowerment of Persons with Disabilities has launched a 24×7 toll-free helpline aimed at anonymously providing mental health rehabilitation to people undergoing stress due to the pandemic.7
It is also heartening to see the fillip given to mental health in the Union Budget of 2022. The Central Government’s decision to set up 23 tele-mental health centres across the country comes at an opportune moment, as many in our country are often unable to find the language or courage to articulate their mental turmoil. The Government has now put the issue front and centre in the public forum, and the same should hopefully encourage more and more people to seek the help that they may require.
The problem surrounding the mental health issue in the legal fraternity is also required to be dealt with on a war footing. A recent example of timely and appropriate judicial activism is by the Madras High Court which was dealing with a petition to create a psychiatric wing for mental health treatment in prisons. The Court took note of the lack of mental health treatment infrastructure across India. The High Court while expanding the scope of the writ petition suo motu impleaded different government ministries and asked them to immediately address issues surrounding lack of mental health infrastructure in India. The High Court’s activism in raising crucial questions around the state of the mental health epidemic in India especially in the present times, deserves appreciation. The High Court of Delhi,8 has also come to the cause and rescue of mental unwell patients. Sensitising on the issue of mental illnesses, the High Court observed that:
… mental illnesses can also be debilitating and destructive. The recent pandemic also highlights this beyond any doubt. Circumstances leading to patients requiring isolation, healthy persons being subjected to lockdowns, work from home conditions, loss of employment leading to lack of confidence for long durations have led to several mental problems. Such mental conditions need to be dealt with immediately.9
More and more State and local Bar Associations have recognised the reality of lawyers experiencing mental health issues. A number of lawyer assistance programs on handling issues of burnout, depression, addiction and other psychiatric tendencies have taken shape. The Supreme Court of India has taken some encouraging steps in coming to the aid of mentally unwell individuals and professionals. In an initiative envisioned towards ensuring overall wellness and creating awareness amongst stakeholders, the Supreme Court successfully conducted an interactive workshop called “Mind Matters”10. In an ongoing matter, the Supreme Court recently urged the Central Government to take the condition of patients in mental healthcare institutions “more seriously” amid the COVID-19 Pandemic, and to test, trace, and vaccinate those suffering from mental illness on priority.11
It is also important to stay abreast of international best practices in dealing with mental health in legal workplaces. One such encouraging technique is that of “trauma-informed lawyering”, where lawyers are trained to engage with clients in a manner that minimises the traumas of both the client and the lawyers themselves. This is especially useful in cases of family disputes, such as divorce or custody issues. A scientific and rational approach such as this improves advocacy and aids lawyers in maintaining a healthy mental balance.
As Kakuzō Okakura said, “the art of life lies in a constant readjustment to our surroundings”. In today’s times, mental health is as important as maximising the use of technology, reconfiguring courtrooms to provide social distancing, identifying strategies to hold virtual hearing, and determining how to return to “business as usual”. Timely intervention, awareness about the issue, availability of professional help and appropriate policies is the only way to improve the situation. It is thus imperative to shatter stigmas, initiate serious and concerted conversations and a collaborative public-private-social partnership approach to redress issues of mental health and well-being. It is more important than ever that the legal system makes significant improvements in its approach by creating an emotionally and mentally healthy workplace. Undeniably, there is now a greater sense of understanding within the legal industry that could help propel progress toward improved mental health beyond the duration of the pandemic. The current crisis should be an eye-opener for the legal profession to carefully think through what lessons to extract, including how to adapt to a changed reality.
To end, we must reminisce the late Martin Luther King, Jr. (whose debilitating depression and eventual rise gives us new appreciation) words, “Only in the darkness can you see the stars.”
“Merit is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”
In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.
After the Supreme Court Advocates-on-Record Association approached the Court in light of the spread of Omicron, the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country, the 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ restored the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
After a massive security lapse that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on January 5, 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has formed a committee to be chaired by Justice Indu Malhotra, former Supreme Court Judge.
Considering the urgent need to commence the process of Counselling, the bench of Dr.DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.
In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.
“If the seeds of the commercial relationship between Antrix and Devas were a product of fraud perpetrated by Devas, every part of the plant that grew out of those seeds, such as the Agreement, the disputes, arbitral awards etc., are all infected with the poison of fraud.”
In a major blow to Essar Steel Limited, now Arcelor Mittal Nippon Steel India Limited), the bench of MR Shah* and Sanjiv Khanna, JJ has set aside the Gujarat High Court verdict wherein it was held that Essar was entitled to the exemption from payment of purchase tax as per the Notification dated 05.03.1992, which was issued under Section 49(2) of the Gujarat Sales Tax Act, 1969. As a result Essar will now have to pay the purchase tax of Rs.480.99 crores.
The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.
The 2-judge bench of AM Khanwilkar and CT Ravikumar, JJ has reiterated the position laid down by the Constitution Bench in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that any decision of such a Tribunal, including the one passed under Section 25 of the Administrative Tribunals Act, 1985 could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls.
The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she/he has suffered stagnation.
In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the bench of Sanjiv Khanna and Bela M. Trivedi*, JJ has set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.
In a case where the Rajasthan High Court had permitted the respondent employee who is facing disciplinary proceedings to represent through ex-employee of the Bank, the bench of MR Shah* and Sanjiv Khanna, JJ has interpreted Regulation 44 of the Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010 read with clause 8.2 of the Handbook Procedure to hold that the delinquent employee has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings.
While addressing a petition making bizarre claim that virgin Coconut Oil can dissolve Covid-19 virus, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., held that it cannot let every person who believes that he has some solution to the virus, to come up in a petition under Article 32 of the Constitution.
“Though the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.”
Explaining the scope of writ jurisdiction, the bench of MR Shah* and BV Nagarathna, JJ has held that the State Government’s action taking a policy decision to prescribe a particular percentage of reservation/quota for a particular category of persons, cannot be interfered with by issuance of a writ of mandamus, directing the State Government to provide for a particular percentage of reservation for a particular category of persons other than what has been provided in the policy decision taken by the State Government.
Finding the order of the High Court cryptic and casual, de hors coherent reasoning, the Bench invoked the latin maxim “cessante ratione legis cessat ipsa lex” to hold that “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”.
The Division Bench of R. Subhash Reddy* and Hrishikesh Roy, JJ., held that to determine State Monopoly for disallowance of certain fee, charge, etc. in the case of State Government Undertakings the aspect of ‘exclusivity’ has to be viewed from the nature of undertaking on which levy is imposed and not on the number of undertakings on which the levy is imposed.
The bench of Dr. DY Chandrachud* and AS Bopanna, JJ has held that failure on the part of the builder to provide occupancy certificate is a continuing breach under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 and amounts to a continuing wrong.
The Division Bench comprising of M. R. Shah* and Sanjiv Khanna, JJ., reversed the impugned order of the High Court whereby the High Court had held that education institutions run by charitable societies are exempted from payment of electricity duty.
While addressing the issue as to whether a candidate is entitled to claim appointment on a subsequent post in his preference list after having being considered for his first preference and being declared not suitable for the said post due to non-fulfilment of physical requirements, the Division Bench of Dr Dhananjaya Y Chandrachud and A.S. Bopanna*, JJ., replied in negative.
“This Court must be circumspect that the rights and freedoms guaranteed under the Constitution do not become a weapon in the arsenal of private businesses to disable regulation enacted in the public interest.”
“It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”
In a case where a scrap picker was beaten to death and the Gujarat High Court had released one of the accused on bail despite the entire incident been recorded in the CCTV footages and the mobile phone, the bench of MR Shah and BV Nagarathna, JJ has cancelled the bail and has observed that by not filing the appeals by the State against the impugned judgments and orders releasing the accused on bail in such a serious matter, the State has failed to protect the rights of the victim.
In an issue relating to the alleged gift deed by an old illiterate woman, the bench of MR Shah and Sanjiv Khanna*, JJ has held that when a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document.
The bench of L. Nageswara Rao and Hima Kohli, JJ has held that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3 of the Central Educational Institutions (Reservation in Admission) Act, 2006, ought to be gathered from the same source and any other interpretation would lead to uncertainty.
The Fast Track Court, Raigarh had convicted the appellant for the offences punishable under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012 and vide the same judgment and order, the appellant was sentenced to death for the offence punishable under Section 302 of the IPC. Subsequently, vide the impugned judgment and order, the High Court had confirmed the death penalty.
In a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, the bench of KM Joseph and PS Narsimha, JJ has held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.
In a case where a man was arrested in Mauritius after being found to be in possession of 152.8 grams of heroin and was sentenced to 26 years in prison by the Supreme Court of Mauritius, the bench of L. Nageswara Rao and BR Gavai has upheld the Central Government’s decision rejecting the request for scaling down the sentence from 26 years to 10 years and has found it to be in accordance with the provisions of the Repatriation of Prisoners Act, 2003 and the agreement entered into between India and Mauritius.
While holding that the term “school children” will include college and university as well while interpreting government memo exempting passengers tax in respect of Stage Carriage (buses) owned by educational institution and used for the transportation of children to and from such institutions, the Division Bench of Dinesh Maheshwari and Vikram Nath, JJ., remarked,
“It gets perforce reiterated that the broad expression “children”, obviously, refers to the students taking instructions in educational institutions, irrespective of their class or standard or level.”
Madhya Pradesh High Court: The Division Bench comprising of Sujoy Paul and Arun Kumar Sharma, JJ., held that the Demonstrators and Tutors working in cities/urban areas are to be treated as ‘in-service candidates’ as neither the relevant order nor the rule precludes the Medical Officers working in urban areas or hospitals from benefit of being ‘in-service candidate’. The Bench remarked,
“If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”
The interesting conundrum in the instant case was whether the petitioners, MBBS qualified Doctors rendering their services as regular employees in the Department of Health Services, State of M.P. fall in the category of ‘in service candidates’ and whether they have separate channel of entry in P.G. Course as per order dated 19-08-2021 issued by the State Government.
As per the Government order dated 19-08-2021, the reservation/separate channel of entry to the extent of 30% in P.G. Degree Course was made. The order covered Demonstrator, Tutors and the Medical Officers, the category to which present petitioners belonged. Further, as per the as per Rule 2(k) of M.P. Chikitsa Shikisha Pravesh Niyam 2018, the petitioners were covered in the definition of “serving employees”.
The petitioners urged that 30% reservation/separate channel of entry, earmarked for Degree Seats for Demonstrator/Tutors/Medicals Officer which made the petitioners being Medical Officers entitled to such reservation yet they were treated to be eligible only for open seats.
Difficult Area vis-a-vis Difficult Services
Evidently, a policy decision dated 28-03-2021 was issued to provide additional marks/incentive to the serving candidates. However, the benefit of incentive was confined to the candidates working in rural, remote and difficult areas.
Although, Harda and Indore, where petitioners were admittedly working did not fall under the umbrella of “difficult area”, the petitioners argued that the policy was issued in Pre-Covid era and considering the fact that Indore and Harda District Hospitals were also difficult areas where the petitioners were rendering their service 24×7 during Pandemic era, they must be treated to be performing difficult service, and therefore, the benefit of the order dated 28-03-2019 must be extended in favour of petitioners as well. Citing the decision in Malpe Vishwanath Acharya and others Vs. State of Maharashtra, (1998) 2 SCC 1, the petitioners submitted that a provision of law may be valid at the time of its issuance but may lose its relevance by efflux of time. Therefore, the petitioners urged that during Pandemic, since all the Doctors working in District Hospitals became vulnerable and worked at the cost of their and families’ lives, they should be included in the category of difficult posting/area.
Accordingly, the Bench accepted the stand of State that under Regulation 9 (8) of the MCI PG Regulations 2000 emphasis is on ‘difficult area’ and not on ‘difficult services’.
(a) Whether ‘in-service candidates’ includes doctors posted in District Hospital, Harda and Indore respectively?
Opining that a conjoint reading of the Government Order dated 19-08-2021 and the rules leaves no room for any doubt that definition of ‘in-service candidate’ is wide enough to include the medical officers and that admittedly, petitioners were working as Medical Officers in District Hospitals, the Bench held that there was no impediment which deprived the petitioner from right of consideration in Post Graduate Degree Course as a separate channel of entry.
Rejecting the argument of the State that the relief claimed by the petitioners was contrary to Medical Council of India (MCI) Regulations and the State Government cannot legislate contrary to the Regulations framed by MCI as prescribing standard of education on Pan India basis is within the domain of MCI, the Bench ruled that there is no Regulation of MCI which deprives the present petitioners for consideration as in-service candidates as the condition of service in “difficult area” as required under Regulation 9(8) is applicable to ‘Diploma Course’ and not the course in question i.e. Postgraduate Degree Course. The Bench stated,
“This argument pales insignificance because present matter does not relate to Diploma Course. Thus, Regulation 9(8) has no application and no other regulation for this purpose is brought to the notice of this Court.”
Since the governing rule (Admission Rules) brought the petitioners within the zone of consideration, the Bench held that the petitioners had a separate channel of entry being Medical Officers in earmarked 30% total seats of Postgraduate Medical Courses.
(b) Whether the petitioners are entitled to get incentive of marks as per circular/order dated 28-03-2019?
The Order dated 28-03-2019 provided for 10% additional marks to the doctors who had their place of posting in the last one and a half year in a ‘difficult area’ as defined under Regulation 9(8). The petitioners, claiming to be serving in difficult situation during pandemic demanded parity with those candidates whose place of service was classified as difficult area and consequently, the petitioner were seeking to get the benefit on 10% incentive marks on that basis.
Accepting the stand of the State was that Regulation 9(8) is very clear that emphasis is on ‘difficult area’ and not on ‘difficult services’ and the area in which petitioners were working were not difficult areas at all, and further observing that the order dated 28-03-2019 was not called in question, the Bench held that the said order is a policy decision taken by the Government which could not be lightly disturbed. The Bench added, the policy decision can be interfered with on limited grounds and when it was not even challenged, it has to be read as such and the Court cannot re-write and insert something which is not there in their policy decision. Accordingly, the claim of the petitioners was rejected with regard to incentive marks.
In view of foregoing analysis, the Bench held the following:
Rules – Definition of ‘in-service candidates’ also includes the Medical Officers working in District Hospital whether or not such Hospital is situated in difficult, remote or rural area. Thus, they are entitled to be considered as special entry under 30%.
MCI Regulations – Regulation 9(8). This regulation is applicable to Diploma Course and not to Degree or Post Graduate Degree Course. No provision was brought to the notice of the Court to show that posting at remote, difficult or rural area is essential to become in-service candidate for Post Graduate Degree Course.
Government – The scope of judicial review is very limited. The Government is best suited to take a policy decision which can be interfered with if shown to be palpably arbitrary, discriminatory or unconstitutional. The order dated 28-03-2019 is not arbitrary, discriminatory or unconstitutional.
‘Difficult area’ does not include “difficult services” rendered in District Hospital Indore and Harda. Thus, question of grant of incentive marks to the petitioners does not arise.
The petitioners fell in the category of ‘in-service candidates’ for the purpose of Postgraduate Medical Courses and the respondents had erred in not treating them in the said category in the impugned chart/table uploaded on the official website. Accordingly, the impugned entries of the chart/table were set aside.
Consequently, the State Government was directed to treat the petitioners as in-service candidates for Postgraduate Degree Course and consider their claim in accordance with law. [Vijendra Dhanware v. State of Madhya Pradesh, W.P. No.25819 of 2021, decided on 14-01-2022]
Kamini Sharma, Editorial Assistant has reported this brief.
For petitioners: Shri Siddharth Gupta, Advocate.
For respondent/State: Shri Piyush Dharmadhikari, Govt. Adv. for respondents 1, 2 and 4.
Supreme Court: While addressing a petition making bizarre claim that virgin Coconut Oil can dissolve Covid-19 virus, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., held that it cannot let every person who believes that he has some solution to the virus, to come up in a petition under Article 32 of the Constitution
The writ petition had been filed under Article 32 of the Constitution by a petitioner who claims to be a Lawyer stating that the People’s Republic of China has deliberately spreading Covid-19 as a ‘biological weapon’ and the Court should issue some directions to the Government to take action.
“To say the least this is most misconceived and it is for the elected Government to take necessary action, if such an action has to be taken.”
The petitioner also sought for certain directions to the National District Management Authority for solution of Covid-19 claiming himself to be a Researcher and Scientist who had conducted research to find solutions for Covid-19 and claimed that Virgin Coconut Oil dissolves the virus. Commenting on the bizarre claim, the Bench said,
“Nothing has prevented him from making suggestions to the appropriate authority. We do believe that it is only an endeavour to get his name in the Press and we expect the Press not to oblige.”
Lastly, to prevent prospective litigants from approaching the Court with such baseless claims, the Bench held that the Court cannot let every person who believes that he has some solution to the virus, to come up in a petition under Article 32 of the Constitution.
[Krishnaswamy Dhanabalan v. Prime Minister of India, Writ Petition(s)(Civil) No(s). 902/2021, decided on 10-01-2022]
For the Petitioner: Krishnaswamy Dhanabalan, (In person)
Kamini Sharma, Editorial Assistant has put this report together
Supreme Court: After the Supreme Court Advocates-on-Record Association approached the Court in light of the spread of Omicron, the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country, the 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ restored the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
The Court made clear that,
The balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022.
In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
The period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
When the COVID-19 pandemic first hot the World, on 23.03.2020, the Court had directed extension of the period of limitation in all proceedings before Courts/Tribunals including this Court w.e.f. 15.03.2020 till further orders. Read here
On 08.03.2021, the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021. Read here
Supreme Court: In a case where an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States, challenged the prohibition of the export of PPE products from India, the bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ held that as a developing country with a sizeable population, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations.
The Court held that,
“Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few.”
What was under challenge and why?
The appellant is the Managing Director of Anzalp Herbal Products Private Limited, a corporate body which inter alia, engages in Merchanting Trade Transactions (MTTs) that manufactures and trades in pharmaceuticals; herbal and skincare products; and personnel protection equipment products such as masks, gloves, sanitisers, PPE overalls, and ventilators. The appellant obtained an international MTT contract to serve as an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States.
At the relevant time, the export of PPE products had been banned by the Union Ministry of Commerce and Industry and the Directorate General of Foreign Trade, through successive notifications dated 8 February 2020, 25 February 2020 and 19 March 2020, due to the ongoing COVID-19 pandemic. Therefore, MTT contracts concerning PPE products were considered impermissible under Clause 2(iii) of the 2020 MTT Guidelines that stated,
“iii. The MTT shall be undertaken for the goods that are permitted for exports/imports under the prevailing Foreign Trade Policy (FTP) of India as on the date of shipment. All rules, regulations and directions applicable to exports (except Export Declaration Form) and imports (except Bill of Entry) shall be complied with for the export leg and import leg respectively.”
The appellant challenged the RBI and UOI’s prohibition of MTTs in respect of PPE products infringes his fundamental rights and freedoms under Articles 14, 19(1)(g) and 21 of the Constitution. It was submitted that the precedents of this Court indicate that once the citizen can demonstrate that the restriction directly or proximately interferes with the exercise of their freedom of trade or to carry on a business, it is the State’s burden to demonstrate the reasonableness of the restriction and that it is in the interest of the general public.
Since the Union of India had prohibited the export of PPE products from India, RBI submitted that in accordance with Clause 2(iii) of the 2020 MTT Guidelines, MTT transactions concerning PPE products were also prohibited since they allowed Indian individuals to assist others in diverting PPE products away from India in the global market. Further, it was clarified that Clause 2(iii) was of a general nature, and the RBI had no jurisdiction to exempt products from its application, since only the UOI determined the nation’s FTP.
Since the appellant had assailed the suitability of the measure restricting MTTs in ensuring domestic supplies and for being overbroad in its ambit, since an Indian entity acting as an intermediary in an MTT between two different countries does not impact the availability of PPE products in India, the Court answered four crucial questions that finally led to upholding the validity of the impugned policy decision.
Is the measure in furtherance of a legitimate aim?
“Adequate stocks of PPE products are critical for the healthcare system to combat the COVID-19 pandemic. The State’s aim of ensuring supplies is in furtherance of the right to life under Article 21 and the Directive Principles of State Policy mandating the State’s improvement of public health as a primary duty under Article 47.”
The Court noticed that the appellant had not challenged the legitimacy of the aim of ensuring adequate PPE in India. Also, the RBI, at the time of filing its affidavit on 30 January 2021, had elaborated on the state of the pandemic in the country and the necessity of ensuring adequate stock of PPE products.
It was, hence, found that the executive’s aim to ensure sufficient availability of PPE products, considering the ongoing pandemic, is legitimate. Accordingly, it was held that the impugned measure is enacted in furtherance of a legitimate aim that is of sufficient importance to override a constitutional right of freedom to conduct business.
Is the measure suitable for achieving such an aim?
The Court considered the definition of MTT as defined in the International Monetary Fund in its sixth edition of the Balance of Payments and International Investment Position Manual which states:
“10.41 Merchanting is defined as the purchase of goods by a resident (of the compiling economy) from a nonresident combined with the subsequent resale of the same goods to another nonresident without the goods being present in the compiling economy. Merchanting occurs for transactions involving goods where physical possession of the goods by the owner is unnecessary for the process to occur.”
Hence, it was noticed that while the goods involved in an MTT never enter the territory of the intermediary, they are still recorded as negative and positive exports from the territory of intermediary during the import and export leg of the MTT, which is similar to how ordinary imports and exports would be recorded.
Therefore, MTTs are analogous to traditional imports and exports and hence, it was suitable for the RBI to link the permissibility of MTT in goods to the permissibility of their import/export under the FTP.
Is the measure necessary for achieving the aim?
While MTTs in PPE products may not directly reduce the stock of these products in India, it still does contribute to their trade between two foreign nations. In doing so, it directly reduces the available quantity of PPE products in the international market, which may have been bought by India, if so required. As such, MTTs contribute to reducing the available stock of PPE products in the international market that India could have acquired.
Also, the UOI’s policy to ban the export of PPE products reflects their stance on the product’s non-tradability during the COVID-19 pandemic. It highlights a clear policy choice under which Indian entities shall not be allowed to export these products outside of India, in all probability to the highest buyers across the globe who may end up hoarding the global supply.
Hence, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations. A mere ban on exports would not regulate the utilisation of Indian foreign exchange. Hence, in order to keep India’s policy position consistent across the board, the prohibition of MTTs in respect of PPE products was necessary and the only alternative of ensuring the realisation of legitimate State interest.
Is the measure adequately balanced with the right of the individual?
In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks. As a developing country with a sizeable population, RBI’s policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned.
The Court noticed that the right to equality and the freedom to carry on one’s trade cannot inhere a right to evade or avoid regulation. In liberalized economies, regulatory mechanisms represent democratic interests of setting the terms of operation for private economic actors.
“This Court does not espouse shunning of judicial review when actions of regulatory bodies are questioned. Rather, it implores intelligent care in probing the bona fides of such action and nuanced deference to their expertise in formulating regulations. A casual invalidation of regulatory action in the garb of upholding fundamental rights and freedoms, without a careful evaluation of its objective of social and economic control, would harm the general interests of the public.”
The Court, however, clarified that it was not its stance that judicial review is stowed in cold storage until a public health crisis tides over and said,
“This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic.”