COVID-19

Hot Off The PressNews

A final year student has written to the Chief Justice of Bombay High Court raising concerns over the guidelines issued by UGC on July 6, 2020 which allowed the Universities/ Institutions to conduct terminal semester(s)/final year examinations by the end of September, 2020 in offline/online/blended mode.

The letter written by Anshritha Rai raises concerns of the safety of millions of final year students and their families, invigilators, evaluators, transport authorities, support staff and several other key stakeholders, either directly or indirectly, involved in the examination process.

Highlighting the plight of the large section of students that reside either in different parts of India or in other countries, the letter reads,

“UGC has provided universities the option to conduct exams in either an offline (pen and paper) or online or blended (offline ­+ online) mode. Online mode of examinations, however, neglects socio-economic diversity and inequality of internet access. Likewise, holding physical examinations has its own glaring set of shortcomings. Whether the offline or online or blended mode is adopted, there are a myriad number of practical, technological and institutional difficulties that are sure to be encountered.”

The letter also highlights that the cases in India are rising exponentially and as on date, there are easily over 7,60,000 cases. As per AIIMS data, India could witness a peak in COVID-19 cases as late as in mid-November. 

It further states that soon after the UGC Guidelines were released, the Maharashtra Government unequivocally reiterated its inability to hold final year examinations in a letter addressed to the Ministry of Human Resource Development. Moreover, UGC itself has cancelled all intermediate examinations. UGC’s guidelines, which mandatorily require final year students to appear for examinations by September end, is arbitrary and in blatant disregard of the fundamental rights guaranteed by our Constitution.

“It is highly regretful that an arbitrary distinction is being drawn between intermediate and final year students. If this exercise were to be carried out, the lives of all final year students pan India would be put in grave peril. This is evinced by the recent Karnataka SSLC exam fiasco where 32 students tested positive.”

Rai, in her letter, also states that there is a need for reforming the education system. She states,

“The unabated focus on mandating university exams and sticking to traditional patterns is indicative of the flaws in our higher education system. Our strict examination-oriented culture has frequently come under fire for failing to develop practical skills and critical reasoning. Credibility and intellectual prowess has little to no connection with examination grades.”

By way of this letter, the student has requested the Chief Justice to resolve the issue of terminal examinations and to bring much needed clarity about the evaluation method.

Read the full text of the letter here

Read the details of UGC’s revised guidelines on conduct of final year exams here

Case BriefsCOVID 19High Courts

Delhi High Court: Jayant Nath, J., while hearing a matter with regard to parents defaulting in payment of tuition fees to schools, held that Schools can decline to provide Online Education facility to the students whose parents fail to explain the reason for the default.

Petition filed sought an appropriate writ to quash the Circular dated 18th April, 2020 and to allow the School to charge the actual expenditure incurred during the lockdown period in the form of fees from the students.

Petitioner submits that the Circular is ultra-vires the Delhi School Education Act.

Contentions

Petitioner’s counsel pointed out from the Circular that no fee except tuition fee would be charged during the lockdown period, another thing that was extracted from the Circular was that in no case, the ID and password shall be denied to getting online access of educational facilities to those students who were unable to pay school fee due to financial crisis.

Due to the above-stated clauses, 40 % of the students defaulted in paying fees which resulted in struggle to pay salaries of the staff and teachers.

Standing Counsel for GNCTD submitted that petitioner was free to take steps including issuing of notice to the parents who defaulted in paying tuition fees.

Decision

Bench held that in view of the above circumstances, if the parents defaulted in payment of tuition fees for more than 2 months, petitioner is free to issue appropriate notice to explain the reason of such default and in case they fail to do so, the petitioner is free to so communicate the same to the parents and decline to provide them ID and Password for online education facility for the students. 

Matter to be listed on 5-08-2020.[Queen Mary School Northend v. Director of Education, WP(C) No. 4011 of 2020, decided on 08-07-2020]

COVID 19Hot Off The PressNews

Rapid Antigen Diagnostic Test for Covid-19 to be conducted in High Court of Delhi

A medical team deputed by the Health Department of the Govt of N.C.T. of Delhi shall conduct Rapid Antigen Diagnostic Test for Covid 2019 in High Court of Delhi. A camp is accordingly being organized for three days i.e. 10th, 13th and 14th July, 2020 from 10.00 am to 02.00 pm. ‘.

All the officers and officials of this Court, who are desirous to undergo the said test, are  requested to send information in advance on Whatsapp to the Mr.Pawan Kumar Kalra, Joint Registrar, General Administration-II (Mob No. 9910390927) for making appropriate arrangements to regulate the rush.

All such willing officers/officials are requested to report, as per the given time-slot and date, in the main public entry area of the Extension Block of this Court. They shall also bring their respective Identity Cards.

CIRCULAR

Delhi High Court

[Circular dt. 09-07-2020]

Case BriefsCOVID 19High Courts

Karnataka High Court: Suraj Govindaraj, J., dealt with a petition which was filed in order to enforce the regulatory package announced by the RBI by issuing directions to the RBI to  monitor the implementation of the Circular, including verification  of whether there are Board-approved policies formulated by each of the lenders, direct all the banks to submit the Board-approved policies for approval to the RBI, to approve such board-approved policy, verify if such a board-approved policy contains objective criteria, set up a proper and effective grievance redressal forum for any aggrieved borrower to approach on account of the  improper or non-implementation of the Policy and/or Circular etc.

The Petitioner had availed term loan facilities from respondents namely HDFC Bank Limited, Federal Bank and Aditya Birla Finance Limited. The Petitioner has been in the business of running an Information Technology Park, a 5 star Hotel, both of which have been constructed on the land belonging to the Petitioner. In order to service the aforesaid loan, there was an agreement arrived at between lenders that the revenue from the lease rentals of the Technology Park would be credited into Escrow Account and revenue from the  Petitioner’s hotel business would be credited into another Escrow Account. Respondents were entitled to appropriate the Equated Monthly Installment payable on the loans due to them from the Escrow Account where the lease rentals were deposited; the excess rental was to be released from the Escrow Account to the current account of the Petitioner for utilization by the Petitioner to meet its expenses. Similarly, the revenue arising out of the hotel business was to be deposited in the Escrow Account relating to the hotel business, from and out of which, the Petitioner was entitled to draw monies to its current account on a daily basis for use in connection with its hotel business and from the balance, make payment of the equated monthly installment on the loan borrowed on account of the hotel business to respondent on the due date that was 13th of every month. The RBI had set out the various development and regulatory policies to address the stress in the financial condition caused by COVID-19 so as to ease the financial stress which included relaxing  the repayment pressures on the borrowers and by improving access to the working capital by such borrowers. On the basis of which the petitioners had filed the present petition. The Respondents had filed objections contending that the Petitioner had suppressed the material facts in that the Petitioner was receiving rentals from the Technology Park, merely because income/revenue was not being received from the hotel, the Petitioner would not be eligible for any moratorium and the circular issued by the RBI was not mandatory in nature, only directory.

The Court while answering if the writ of Mandamus could be issued against a private bank to implement the circular issued by RBI, held that the writ would be maintainable for the enforcement of public duty. Answering next two questions of whether the circular was mandatory, directory or discretionary and whether grant of moratorium was at the discretion of the bank the Court said that the circular was no doubt discretionary but as far as the power to grant or not a moratorium by a bank, it is mandatory for the Bank to ensure the continuity of viable businesses, in that, the non-grant of a moratorium should not result in adversely affecting the survival and continuity of a viable business and because of the nature of the circular being discretionary any directions cannot be issued to the respondents 1 & 2 to for implementation of the circular.

The Court while disposing of the petition directed the respondents to grant the petitioner with the moratorium period and restrained them from either jointly or severally recovering the loan repayment installments/EMI due in respect of loan accounts of the petitioner during the period of moratorium. It further directed to reverse the recovery of loan repayment installments/EMI already affected and transfer the same to the Current Account of the Petitioner. [Velankani Information Systems Ltd. v. Union of India, WP No. 6775 of 2020, decided on 08-07-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ pulled up State of Maharashtra for submitting that it did not do the needful for arranging transportation of migrants who were still stranded in the State as it was not informed of the materials.

“The present is not an adversarial litigation and it is the duty of the State to find out shortcomings and lapses wherever found and to do the needful. The State cannot claim that unless the State is informed of the materials, it cannot reply or act.”

The Court was hearing the interim applications filed by Sarva Hara Jan Andolan and Delhi Sharmik Sangathan on 07.07.2020 where details with regard to the State of Maharashtra, migrants who are still awaiting to return and other difficulties faced in the State of Maharashtra were narrated.

The Court asked the State of Maharashtra to file affidavit by July 17, 2020 and give other details with regard to migrants who are still awaiting to return to their home town in the State of Maharashtra.

Earlier, on 09.06.2020, the bench had  directed all the States/Union Territories to take all necessary steps regarding identification of stranded migrant workers in their State which are willing to return to their native places and take steps for their return journey by train/bus which process may be completed within a period of 15 days.

The Court noticed that lapses and short-comings in implementing the schemes and policies have been highlighted by various intervenors in their applications and affidavits.

“The responsibility of the States/Union Territories is not only to referring their policy, measures contemplated, funds allocated but there has to be strict vigilance and supervision as to whether those measures, schemes, benefits reaches to those to whom they are meant.”

The Court had, on 26.05.2020, taken up the issue suo motu based on, newspaper and media reports and several letters and representations it received from different sections of society highlighting the problem of migrant labourers. The Court had directed the Solicitor General Tushar Mehta to assist the Court and by the next date of hearing bring in the notice of the Court all measures and steps taken by the Government of India and to be taken in this regard. After receiving the response from the Government, the Court had issued certain interim directions on May 28, 2020.

[IN RE : PROBLEMS AND MISERIES OF MIGRANT LABOURERS, SUO MOTU WRIT PETITION (CIVIL) No(s). 6/2020, order dated 09.07.2020]

Also read

COVID-19| Transportation of stranded migrant workers must be completed in next 15 days

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has granted bail to former Unitech MD Sanjay Chandra after he told the Court that both his parents, who are 81 years and 78 years of age respectively, have tested positive for Covid-19 and have been hospitalised.

Senior Advocate Mukul Rohatgi, appearing for Chandra, told the Court that

“The applicant has stated that his spouse is presently abroad and has been unable to return due to the lock down. The brother of the applicant, Ajay Chandra, is also in judicial custody.”

Considering the facts and circumstances, the Court said,

“a case for the grant of interim bail has been made out on humanitarian grounds since both the parents of the applicant have tested positive for COVID-19 and having regard to their advanced age.”

The Court, hence, released Chandra on interim bail for a period of thirty days from the date of his actual release, subject to the following conditions:

  • The passport of the applicant shall be deposited with the trial court
  • The applicant shall report on every Sunday before the nearest local police station;
  • The applicant shall furnish bail bonds of Rs 1 lakh to the satisfaction of the trial court; and
  • The applicant shall surrender immediately on the expiry of the period of thirty days specified above.

[Bhupinder Singh v. Unitech Limited, 2020 SCC OnLine SC 559 , order dated 07.07.2020]

Also read

SC to Unitech MD Sanjay Chandra: Deposit Rs. 750 Cr by December-end or stay in jail

COVID 19Hot Off The PressNews

To make up for the loss of instructional hours during the current session 2020-2021, the CISCE has worked with its subject experts, to reduce the syllabi for all major subjects at the ICSE and ISC Levels.

The above stated decision has been taken in view of the global pandemic COVID-19 and the impact it has created on all aspects of life including Educational life in schools.

As reported by media, Now even CBSE is considering to reduce the syllabus for the above stated session by 30%.

Read the official press release of CISCE here: CISCE

[Press Release dt. 03-07-2020]

COVID 19Hot Off The PressNews

UGC Revised Guidelines on Examinations and Academic Calendar for the Universities in view of COVID-19 Pandemic

Highlights of the guidelines are as under:

  • In view of the emerging situation related to COVID-19 pandemic in India, it is important to safeguard the principles of health, safety, fair and equal opportunity for students. At the same time, it is very crucial to ensure academic credibility, career opportunities and future progress of students globally. Academic evaluation of students is very important milestone in any education system. The performance in examination gives confidence and satisfaction to the students and is a reflection of competence, performance and credibility that is necessary for global acceptability.
  • Terminal semester(s)/final year examinations be conducted by the universities/institutions by the end of September, 2020 in offline/online/blended mode.
  • Students of terminal semester/final year students having backlog should compulsorily be evaluated by conducting examinations in offline/blended/online mode as per feasibility and suitability.
  • In case a student of terminal semester/ final year is unable to appear in the examination conducted by the university for whatsoever the reasons may be, he/she may be given opportunity to appear in special examinations for such courses/ papers, which may be conducted by the university as and when feasible, so that the student is not put to any inconvenience. The above measure is a one-time measure for academic session: 2019-2020.
  • Guidelines as notified on 29th April, 2020 for intermediate semester/year examination will remain unchanged.

[Source: ANI]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and N. J. Jamdar, J. dismissed a Public Interest Litigation seeking enforcement of safety guidelines while disposing of dead bodies of COVID-19 patients. The Court said that the petitioner could not provide any material to support his application.

Petitioner through the Public Interest Litigation sought to bring to judicial notice alleged negligence in management and disposal of dead bodies of COVID-19 victims by the staff of the Municipal Corporation of Greater Mumbai, more particularly in crematoriums at Shivaji Park and Chandanwadi.

Corporation by filing an affidavit-reply denied the allegations in the PIL petition.

Petitioner placed following prayers:

  • Court may be pleased to direct the respondent to direct the respondent State to enforce the safety guidelines for applying 1% hypoclorite over the bodies.
  • direct the Respondent to ensure that the bodies of the COVID- 19 patients are wrapped in the ‘leak-proof’ bags before sending them to the crematoriums, Muslim & Christian burial places.
  • direct the Respondent to provide adequate medication, protective overalls and sufficient material to maintain hygiene for the workers engaged at the funeral places.

Corporation referring to the guidelines laid down on 15th March, 2020 issued by MoHFW on management of dead bodies and a circular dated 4th June, 2020 with regard to SOP for handling of dead bodies, it was contended that the provisions of the guidelines were being strictly enforced so as to keep the spread of virus within manageable limits.

In a rejoinder affidavit filed by the petitioner it was vaguely alleged that the guidelines issued were not being strictly followed by the Corporation.

Court on perusal of Vhatkar and Sakhare, Senior Advocate for the Corporation’s pleadings stated that,

allegations made by the petitioner do not appear to be based on his personal knowledge infact the same has been made on reading certain newspaper reports.

Further the Court noted that no material was placed before the Court that could even remotely support or validate the stand of the petitioner.

Thus, Court held the fears and concerns of the petitioner to be misconceived.

“…petitioner has been residing in Pune during the lockdown period and alleging mismanagement in Mumbai has also left us to wonder how he could have verified the pleadings in the PIL Petition as true to the best of his knowledge.

Bench stated that if they keep aside the technicalities and proceed on the merits of the matter, on one hand the emphatic stand of the Corporation that the guidelines are being scrupulously followed and enforced in the matter of management and disposal of dead bodies of COVID victims. Not only has the Corporation pleaded that the polythene bags in which the cadavers are wrapped are of the requisite quality, it is also pleaded that ‘hypoclorite’, to the extent necessary, is being administered on the cadaver so as to prevent the spread of the virus.

Hence, Court in view of the above dismissed the petition and stated that the Court hopes and trust that the Corporation shall continue to earnestly adhere to and enforce the extant guidelines so that life of each and every citizen is preserved. [Ketan Tirodkar v. State of Maharashtra, PIL-CJ-LD-VC–29 of 2020, decided on 03-07-2020]

Legislation UpdatesNotifications

“COVID-19 suspect or affected persons” can now vote through postal ballot paper

Central Government after consulting the Election Commission amends the Conduct of Election Rules, 1961.

The above-mentioned rules shall now be called as:

Conduct of Elections(Amendment) Rules, 2020.

In Rule 27A, following amendment will take place:

(i) in clause (aa), after the words “or persons with disability” occurring at the end, the words, letters and figures “or the COVID 19 suspect or affected persons” shall be inserted;

(ii) in clause (e) , for the figures and word “80 years”, the figures and word “65 years” shall be substituted;

(iii) after clause (e), the following clause shall be inserted, namely:

  ‘(f) “COVID 19 suspect or affected persons” means the electors who are–

            (i) tested as COVID 19 positive by the Government Hospital or the Hospital recognised by the Government as COVID Hospital; or

            (ii) under home quarantine or institutional quarantine due to COVID 19 , and certified by such competent authority, as may be notified by the State Government or Union Territory Administration.”

Ministry and Law Justice

[Notification dt. 19-06-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding the instant petitions filed by the several unaided private schools and educational institutions, all of which challenged the directions issued by the Director, School Education, wherein the schools were required to not charge any tuition fee for the lockdown period; Nirmaljit Kaur, J., held that direction to the privately unaided Institutions who are not giving online classes not to charge tuition fee for the lockdown/curfew period is discriminatory and arbitrary, as there is no rationale in laying down such a classification especially when the obligations and basic expenses of all private un-aided schools remain the same irrespective of whether they are conducting online classes or not.   

The petitions challenged the DSE Memo dated 14-05-2020. Apart from the aforementioned direction regarding tuition fee, the Memo also directed the schools to not increase the school fees for the 2020-21 Session and not to remove any teacher or reduce their salaries. The counsels for the petitioners raised questions on the authority of the State Government to issue such Memo and argued that the Directions were arbitrary and defy any logic. They contended that it is an inherent right of a private school to generate funds for their functioning and financial obligations including salaries of the teaching and non teaching staff. For the respondents, Advocate General Atul Nanda argued that Article 162 empowers the State to issue directions on matters enumerated in List II of State List of the Seventh Schedule, which also extends to List III-Concurrent List, except as provided in the Constitution itself or in any law passed by the Parliament. The respondents further argued that policy decisions cannot be tested under Article 226 of the Constitution.

They further contended that the petitioners do not have a uniform fee structure and the breakup of school fee and expenses for each school also differ. R.S. Bains, counsel for the parents who had been impleaded as party respondents, submitted that the parents should not be made to pay for the services which have not been rendered, especially when either some of the schools did not offer online services or because they reside in remote areas where the online facilities are not available.

Perusing the contentions of the parties, the Bench deemed it fit to lay down the following guidelines regarding the issue-

  • The schools can collect the admission fees. All schools irrespective whether they offered online classes during the lock-down period or not, are entitled to collect the tuition fee. However, they will continue to endeavour and impart online/ distance learning so that education is not adversely impacted due to the present or future lockdowns imposed due to COVID-19.
  • The school management of each school shall work out their actual expenditure incurred under the annual charges for the period the school remained closed and recover only such genuine expenditure incurred by them.
  • The schools shall restrain themselves from increasing the fee for the year 2020-21 and adopt the same fee structure as of session 2019- 20.
  • Any parent not able to pay the school fee  may file their application along with necessary proof about their financial status, which shall be looked into by the school authority sympathetically for concession or exemption of the entire fee as the case may be. In case the grievances of the parents are not resolved, then they may approach the Regulatory Body constituted under Section 7 of Punjab Regulation of fee of Un-aided Educational Institutions Act, 2016
  • In case any school is facing a financial crunch for not having charged the increased fee for the year 2020-21, may move a representation to the District Education Officer along with proof of the same, who shall look into it and pass appropriate orders within three weeks of the receipt of such an application.

[Independent Schools’ Association Chandigarh v. State of Punjab, 2020 SCC OnLine P&H 847 , decided on 30-06-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar ,CJ and Shaji P. Chaly, J. dismissed a writ petition on account of maintenance expenditure incurred by school even during lockdown.

The petitioners in the present case are students of Sree Buddha Central School who filed the instant petition seeking to direct the State Government to issue directions to the School for providing quality online/virtual class using modern video conferencing techniques along with charging only monthly tuition fees and to ensure that no student is denied the same on the reason of failure to pay fees.

The counsel of the petitioners Manu Ramchandran and Sameer M. Nair submitted while referring to Rule 29 of the Kerala Education Rules, 1959 that respondent school is a recognized school and, therefore, cannot charge fees more than the prescribed as schools can only charge fees to the extent of the expenses for running it and the levy of fees is to be without any profit motive.  He further submitted that during the lockdown from March to May, 2020, schools were closed and online classes commenced only from June 2020. Students have been asked to pay tuition fees for the above said period also wherein such digital classes were in the form of poor quality education as it was given through voice notes on whatsapp instead of proper and quality based online classes.

The counsels for the respondents were Surin George IPE, S. Nirmal, R.T. Pradeep, M. Bindudas and K.C. Harish. It was submitted by the respondent school that the school is only levying the fees charged on the former year without enhancing a single pie. It was further submitted that teaching, non teaching staff and IT professionals who were engaged in training teachers about online classes have to be paid their monthly salary, no matter whether there was lock down or not.

The Court, on hearing both sides observed that no separate annual fee was demanded by the respondent school whereas the fees charged for the previous year and the current year is same and there is no change in the same. Hence, the Court further accepting the argument that monthly salaries for the teaching and non-teaching staff has to be paid, found no irregularity or illegality in the actions of the respondents.

In view of the above facts and arguments, the petition was dismissed. [Sreelekshmi S. v. State of Kerala, 2020 SCC OnLine Ker 2494 , decided on 30-06-2020]

COVID 19OP. ED.

Abstract

India has always followed the path of patriarchal society. This age-long tradition has never died due to the circumstances and upbringing of youth in such an environment which glorifies it. Gender inequality is an extensive issue in communities taking forms of violence against women, and particularly domestic violence, which then forms a vicious cycle that always keeps women subordinated, disempowered and unequal. This gender parity needs to be looked after. In the recent times of the COVID-19 pandemic where economic, social, political, personal, professional positions are at stake and facing huge repercussions. The most hardly hit area is the women community. The crime of domestic abuse suddenly ramped up after the announcement of lockdown not only in India but all over the world. The pandemic has ended up leaving the domestic violence victims helpless and nowhere to go for the enforcement of their rights. Amidst this corona pandemic, a hidden pandemic is emerging out i.e. domestic violence which will not end unlike the lockdown will one day. This paper will go in deep lengths analysing the domestic violence in the pandemic, reasons of surge in cases, measures taken and provisions in the Protection of Women from Domestic Violence Act, 2005[1]. There is an urgent need for this issue not to get ignored this time. We (the government, the society, the individuals) should not wait for such pandemics to erase out one of the gravest menaces in our society. 

Introduction

Liberty, equality, fraternity were the ideals on which the French revolution was based, led by Robespierre, resulted in the establishment of people’s rule commonly known as democracy. Our Constitution upholds these ideals by accommodating them as a fundamental right of every individual. In the past 70 years, the State has successfully ensured the political equality to its citizens but social and economic equality are still a far-reaching dream to ordinary women and especially to women. In the words of the former Chief Justice of India R.C. Lahoti, women, children, tribal and minority communities, victims of militancy, crime, disaster, drought-hit farmers, and sex workers needed urgent attention.[2] “Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women…”[3] The concept of domestic violence is not a new phenomenon nor are its consequences as it is a long-aged menace still existing in our society. The violence perpetrated on women is not only a social issue but also a health, economic, developmental, educational and above all a human rights issue. It is one of the most pervasive of human rights violations globally. The family is often equated with sanctuary – a place where individuals seek love, safety, security, and shelter[4] but research shows evidently that it has also become the place where lives are put in peril and breeds drastic violence against girls and women. In 1992, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee)[5] stated in Article 6 that gender based violence, “violence that is directed against a woman because she is a woman or that affects women disproportionately” and that is “is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men” (Article 1)[6].  Certain variations in the existence of violence between and within the communities proves that it is not inevitable and can be rooted out by preventive measures.

Domestic Violence in Current Pandemic

“Confinement is a breeding ground for domestic abuse.”[7] As recently noted by the UN Secretary General, global lockdowns have resulted in a “horrifying surge” in gender-based violence (GBV)[8]. The whole world is witnessing a sharp rise in the violation of rights of women. Not only the developing countries like India became victim to this curse during the pandemic but also highly developed countries like UK, USA, Australia, France, Germany, Hong Kong and many more countries succumbed to it. Imposition of nationwide lockdown has deteriorated the situation in India. India’s National Commission for Women (NCW) said it registered 587 domestic violence complaints between March 23 and April 16 – a significant surge from 396 complaints received in the previous 25 days between February 27 and March 22[9]. It is most likely that the number of domestic violence is much more higher than the real figure as one more factor exists which is liable for exaggerating this problem is that the victim locked in with the abusers might not get access to a mobile phone and time to call for help. Most of the avenues which help them to fight these situations are impaired. And to worsen the situation, opening of liquor shops post lockdown, added fuel to the fire.

Causes of Surge in Cases in Pandemic

There is no single factor responsible for the violence perpetrated against women. Several researches have indicated that there is an interconnectedness of various social, economic and cultural factors which accounts for this worst form of violence. According to Sociologist Marianne Hester, “domestic violence goes up whenever families spend more time together, such as the Christmas and summer vacations.”[10] The data shows that amidst this lockdown the complaints of domestic violence have nearly doubled evincing the idea of patriarchy being dominant till today. Stress, the disruption of social and protective networks, and decreased access to services is exacerbating the risk of violence for women.[11] Women’s unpaid care work has long been recognised as a driver of inequality. It has a direct link to wage inequality, lower income, poorer education outcomes, and physical and mental health stressors. The unpaid and invisible labour in this sector has been exacerbated exponentially by the COVID-19 pandemic[12].

Another important aspect responsible for this surge in domestic abuse is domestic labour. Gendered roles all over the world have placed domestic work on women’s shoulders, which is socially and culturally often demarcated as “women’s work”. During this pandemic the work load of women has increased due to all the members being at home. With housekeeping staff being unavailable, the expectation is for women to do all the tasks and that too with full efficiency and productivity, and chances of violence increase if she fails to do so. Economic factor has played a crucial role in surging this violence. A large chunk of women population is suffering from the economic dependence on the male counterpart. According to the Centre for Monitoring Indian Economy, the national lockdown did not just throw 72 million people out of the labour force but it also drove another 85 million to some kind of desperation to look for jobs in the midst of a national lockdown when none were available[13]. This scenario suggests that people are highly vulnerable to a loss of livelihood. Men are not able to prove themselves at the economic front. They are workless doing absolutely nothing and the burden to make a living for the family with the inability to do it has led to frustration of which then women are the victim. The increasing financial burden and the needs of the family especially in poor strata of the society is making the situation worse. Such sorry state of affairs definitely comes under the umbrella of factors which perpetuate this violence.

Domestic violence is in the form of rapes and sexual harassment as well and COVID-19 time sets out the classic example of it. 2 crore babies are to be born in India till December 2020[14]. This is the highest number recorded so far. The question it raises now is that will all these babies be born with the consent of women. India has still not penalised marital rape. It may happen that women during the time of pandemic were subjected to force and since they are always considered to be subordinate and disempowered, they had to give in.

Government Measures

With cases of domestic violence swelling every day, the situation is becoming very grim. And it becomes the duty of the executive and the judiciary to implement the laws and take effective measure in cases of non-compliance. Recently, to tackle the situation better the Delhi High Court has directed the Delhi Government to mull over the appointments of protection officers. The National Commission for Women (NCW) also launched WhatsApp helpline numbers to protect them from harassment and in grave cases Crisis Intervention Centre (CIC) through counsellors accompany the aggrieved person and  make possible the recourse to public authorities. A laudable initiative by the UP Police has also been launched named as “Suppress Corona, not your voice” which encourages them to be vocal against the crime. The Tamil Nadu Government has also made a fruitful decision on protection officers. Clearly, the steps taken are appreciated but they are not sufficient to handle the emerging statistical numbers in cases of domestic violence.

Humane Framework: Necessary to Combat

As a responsible citizen of the country under Article 51-A of the Constitution, we have certain  fundamental duties to perform on our part of which one is  “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”[15]  We need a comprehensive nationwide campaign to bring awareness among the people and make them sensitised towards this issue. These issues must be highlighted through various modes like, radio channels, national news channels. These platforms must be strategically used in the same way as the government has used for washing hands and social distancing to combat COVID-19. Efforts like in France and Spain, where pharmacies are being trained in a way to identify the victim of abuse through code words like “Mask-19” for the people who cannot speak openly on social platforms should be adopted. The non-profit organisations, civil society organisations are a key to unlock the unawareness in the society. A lot of these organisations enable shelter needs, counselling, legal aid, medical assistance and many more.

Provisions Of the Domestic Violence Act, 2005

The effectivity of the legal framework in India is at stake during COVID. We will analyse if the women are protected by the provisions of the Protection of Women from Domestic Violence Act, 2005.

First and foremost, domestic violence leads to abuse of human rights and fundamental rights for example, right to live with dignity (Article 21), right to live in healthy environment and in good health (Article 21) granted by the Indian Constitution is violated. In Francis Coralie Mullin v. The Administration[16], the Supreme Court recognised the right to be free from physical violence. Moreover, in  Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[17], right against emotional and sexual abuse was also protected by the Supreme Court. 

Coming to the Act, Section 11[18] of the Domestic Violence Act describes that the Government is obliged to raise awareness in the society by regular publicity of issues through the use of print and media which has not been adhered to. In addition to this, Sections 8[19] and 9[20] of the Act have not been implemented in its whole as only some of the States are considering doing this. What is even more problematic is the restricted access or recourse to the public authorities. Section 7[21] of the Act which provides for medical facilities is also not acted upon as the list of essential items lacks sanitary napkins which is a necessity.

The Way Forward

There is no doubt in the fact that the judiciary even in these tough times has imparted its services in a very hardworking way by establishing virtual courts and ensured justice to the victims. But still the efficacy of policies and redressal mechanisms needs re-assessment in one way or the other. Not only the physical but also the emotional and psychological health is at stake when an act of domestic violence takes place against her. So, we need to build a safe and secure place for the women by ensuring checks and balances. This menace can be banished completely by way of “community-based network” between the societies/communities and among people which will instil a sense of fear or shame before the commitment of such act by the abuser.

These crimes are committed not only against the women but also against the democracy, humanity, natural laws and most importantly our legal system.  The “Intimate Terrorism” needs to be curbed as soon as possible before the human rights issue especially (women’s right issue) become a joke for the abusers in the time to come. The Government along with the NGOs can protect the vulnerable section and help them to survive the pandemic by the setting up of emergency warning system so that women could reach out to the authorities without alerting the abusers. The issue of women’s sexual and reproductive health should be taken up as this is the need of the hour. It is high time that we, as responsible citizens of this country start taking this issue to as our priority. To sum this up, Swami Vivekanand truly said, “There is no chance for the welfare of the world unless the condition of woman is improved. It is not possible for a bird to fly on only one wing.”

*Students of Rajiv Gandhi National University of Law, Patiala, Punjab

[1] Protection of Women from Domestic Violence Act, 2005 

[2] Financial Express: http://www.financialexpress.com/news/legal-literacy- mission-launched/128689/ 

[3] The United Nations Declaration on the Elimination of Violence against Women, General Assembly Resolution, December 1993, Domestic Violence against Women and Girls, No. 6 – June 2000, Innocent Digest.

[4] Id.

[5] The CEDAW Committee is a body of 23 independent experts on women’s rights around the world; it monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women, 1979, http://www.scconline.com/DocumentLink/9Z9K6X50 which entered into force on 3 September, 1981. As of January 2014, 187 countries have ratified or acceded to the Convention. 

[6] UN, CEDAW Committee (1992), General Recommendation No. 19 on Violence Against Women, adopted at the 11th Session, 1992, A/47/38, 29 January, 1992.

[7] Abueish, Tamara (2020-04-06). “Coronavirus: A Jordanian woman pleads for help as domestic abuse cases rise globally”,  Al Arabiya English, Retrieved 2020-04-14.

[8] https://news.un.org/en/story/2020/04/1061052

[9] https://www.aljazeera.com/news/2020/04/locked-abusers-india-domestic-violence-surge-200415092014621.html

[10] https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do

[11] https://apps.who.int/iris/bitsream/handle/10665/331699/WHO-SRH-20.04-eng.pdf

[12] https://www.unwomen.org/-media/headquarters/attachments/sections/liabrary/publications/2020/policy-brief-the-impact-of-covid19-on-women-en.pdf?la=en&vs=1406

[13] https://www.businesstoday.in/current/economy-politics/india-unemployment-rate-falls-to-21-per-cent-lowest-during-coronavirus-lockdown   cmie/story/402240.html?utm_source=recengine&utm_medium=WEB&referral_sourceid=400902&referral_cat=Jobs

[14] https://new.rediff.com/commentary/2020/may/07/2-crore.indian-babies-will-be-corn-amid-covid/129996638a4372c1e9c79399a76

[15] Article 51-A of the Constitution. 

[16] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 .

[17] Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121

[18] The Protection of Women from Domestic Violence act, 2005

[19] Ibid

[20] Id.

[21] Id.

Image Credits: The Week

Case BriefsCOVID 19High Courts

Kerala High Court:  Division Bench of S. Manikumar, CJ and Saji P. Chaly, J., while addressing a matter wherein plight of transgender community was placed, Court held that,

“…in order to translate the rights into a reality, and to avoid practical difficulties, Court is of the firm opinion that it is for the members of the community, or NGOs and others who are working with the transgender community to identify the problems faced by the members of the community and point out the same to the officers.”

Present Public Interest Litigation was filed by a transgender person.

Issues

Respondents have not undertaken to ensure the distribution of ration, medicines, access to medical treatment etc. to the transgender community in Kerala.

Transgender persons have been discriminated in the matter of relief measures during lockdown.

Petitioners’ case

Petitioner states that she was recognised a transgender person in the State of Kerala and it was issued an identity card by the Social Justice Department.

Petitioner has also sought benefits as laid down in the Supreme Court decision of National Legal Services Authority v. Union of India, (2014) 5 SCC 438,

all transgender persons have a right to self-determine their gender identity as male, female or transgender and non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India.

Transgender policy was evolved for the transgender persons in Kerala during the year 2015.

Petitioner states that, apart from the above mentioned issues, transgender community is being subjected to threats with regard to eviction as they are unable to pay rent.

Authorities have not been extending any financial benefits to the transgender community.

Respondents Contentions

Director of Social Justice contended while refuting the claims of the petitioner that earnest efforts were being made by the State Government to provide the necessary facilities to the public at large including the transgender community.

So far as the general allegations with respect to the failure on the part of the Government to take necessary steps for supplying ration kits and other articles to the members of the community are concerned, it is stated that earnest efforts were made for the supply of the ration, ration kits and other articles, and also for providing shelter for those persons who were in crisis during the period of lock down.

Necessary medicines were provided to all transgender persons who had undergone hormone therapy and arrangements were made through the Transgender Justice Committee and other NGOs.

Civil Supplies Department had provided the facility for transgender community to mark their gender as ‘T’ in the ration card, so that they could also avail the facility to buy ration articles through their ration cards.

It is prominently submitted that the Social Justice Department, the State as well as the District Authority functioning for the transgender community have not received any complaint with respect to non-access to food supply, medicines and threat of eviction. 

Decision of the Bench

Petitioner has not specified ay of the instances whereby the ration articles, ration kit and the ration card was denied to the transgender persons on them approaching appropriate statutory authority.

Wirth regard to rights of the transgender community, Court stated that,

“…when the State Government has taken enough and more steps to provide various facilities and the authorities are appointed for addressing their issues, it is for members of that community or the NGOs or the members representing the transgender community to approach the said authorities and put forth the rights, they are entitled to.”

Court added to its observation that, identification of the transgender community is an issue involving privacy and therefore, unless and until such persons approach the authorities and their identity is so revealed and recognised, the authorities cannot take action for supplying medicines, ration, ration cards and identity cards and that too after thorough medical examination.

“…there are no reasons for denying any basic human right to a member of the transgender community.”

Yet, the Court issued the following directions:

  • Whenever any member of the transgender community approached the statutory authority concerned with medical prescription of the doctor, medicine should be supplied free of cost.
  • When any member of the transgender community approaches the District Authority or Nodal Officer appointed for the purpose of issuing gender identity card and the ration card, necessary steps shall be taken at the earliest to address the issues
  • Any other issues raised by the transgenders in writing shall also be addressed appropriately
  • 5 persons whose names have been mentioned in the statement filed, if approach the District Authority concerned, their issues should be addressed.

With the above observations, Court dismissed the petition.[Kabeer v. State of Kerala, WP(C) No. 9890 of 2020(S), decided on 08-06-2020]

COVID 19Hot Off The PressNews

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ gives more time to ICAI after it submits that it needs to assess the situation if exams can be conducted at all considering the COVID-19 situation getting worse. 

ICAI told the Court that it needed to assess the examination centres at PAN India level in order to come to a final decision and needed more time to do the same. The Court will now take up the matter on July 10, 2020.

The Court had, on June 29, 2020, asked ICAI to issue fresh Notification for conduct of CA examinations and had listed the matter on July 2, 2020 after ICAI sought for short adjournment for taking instructions and producing draft notification/circular, likely to be issued to address the stated concerns of the students/candidates.

The Court suggested ICAI that a student who has been unable to appear for the exam should be considered an “opt-out case” even if they don’t choose the opt-out option. Considering that the situation and conditions of COVID-19 are continuously changing, the Court said,

“if a candidate has not chosen opt-out option and they suddenly come under a containment zone what will you do? You should treat candidates who don’t appear as opt-out cases,”

Senior Advocate Ramji Srinivasan told the Court that out of 3 lakh 46 thousand students registered only 53,000 students have taken the opt-out option.

The ICAI’s scheme allows students to opt-out of the exam. Their exam would be deemed to be cancelled.

The Court is hearing a please seeking a stay on the ICAI’s ‘opt-out’ scheme for CA students scheduled to appear for the May cycle exam between July 29 and August 16. The PIL has also sort also sought more examination centres for the conduct of July CA Exam 2020. The petition states the ‘opt-out’ scheme discriminates against students living in remote areas or containment zones as due to the restrictions, they would be forced to opt-out unlike their counterparts living in urban areas.

COVID 19Hot Off The PressNews

With the aim to remove all impediments in testing, Preeti Sudan, Health Secretary and Dr Balram Bhargava, DG (ICMR) urged the States/UTs to take immediate steps to facilitate and ramp up testing. They have reiterated that ‘test-track-treat’ is the key strategy for early detection and containment of the pandemic.

Pointing out that in some States/ UTs, the capacity utilization of the testing labs, particularly the ones in private sector, is grossly sub-optimal, States/UTs have been strongly advised to take all possible steps to ensure full capacity utilization of all COVID-19 testing laboratories in the State/ UT.

States/UTs have been advised to facilitate testing at the earliest by enabling all qualified medical practitioners, including private practitioners, to prescribe COVID test to any individual fulfilling the criteria for testing as per ICMR guidelines.

ICMR has strongly recommended that laboratories should be free to test any individual in accordance to the ICMR Guidelines and State authorities must not restrict an individual from getting tested, as early testing will help in containing the virus and saving lives. While RT-PCR is the gold standard for diagnosis of COVlD-19, ICMR has recently approved the use of a point-of-care Rapid Antigen Test for early detection of COVID-19. The test is quick, simple, safe and can be used as a point-of-care test in containment zones as well as hospitals, as per criteria specified by ICMR for testing. More such kits are being validated by ICMR to increase the available options to the citizens. ICMR has so far approved a total of 1,056 laboratories for COVID-19 testing. Of this, 764 labs are in public sector and 292 are in the private sector.

In order to facilitate testing, States/UTs have also been advised to  make efforts in ‘campaign mode’ by setting up camps/ using mobiles vans in high incidence areas to collect samples of all symptomatic individuals as well as their contacts, and get those samples tested by using rapid antigen tests. The positive individuals should be treated according to the treatment protocol and the negative ones should be tested for RT-PCR. Also, the rate for RT-PCR test by private labs should be finalized by the States/UTs. They have been further advised to make it mandatory for all labs to upload the testing data on the ICMR database as well as report to State/ District/ City authorities for surveillance and contact tracing.

In addition to ramping up and facilitating testing, States/UTs have also been urged to pay attention to ‘contact tracing’ as it holds the key to containing the virus. States have also been asked to maintain strict vigil and continue to make all possible efforts for effective management of COVID-19.

Ministry of Health and Family Welfare

Case BriefsHigh Courts

Kerala High Court: While deciding the instant petitions seeking directions for the Kerala University to postpone the examinations scheduled on 1-7-2020, C.S. Dias, J.,  declined to pass an ad-interim order to stay the examinations whilst stating that scope of judicial review in the scheduling examinations is very limited.

The present petitions were filed by various students who contended that the University, regardless of UGC (Minimum Standards of instructions for the Grant of the Master’s Degree through Formal Education) Regulations, 2003, has notified the examinations. The students via their counsel George Poonthottam further argued that their study materials are left in their colleges and hostels, which have now been converted to quarantine centres; they cannot continue the research under their Guide, in view of the travel restrictions. Another petition filed by a sixth semester law student of Kerala Law Academy, submitted that a sudden call for examination would result in a large gathering of students in a single room, which will increase the chances of Covid-19 spread manifold. Furthermore the students, who have gone to their homes in other States and abroad, would have to undergo 14 days of compulsory quarantine, when they return to the State. Therefore, the call for the examination infracts the fundamental rights under Articles 14 and 21 of the Constitution. However the standing counsel for the University, Thomas Abraham submitted that the University successfully conducted the examinations for undergraduate courses and that they received no adverse report on this. The students in fact responded positively to the arrangements made, particularly in view of the fact that they got accommodated to their nearby places to write the examinations. The counsel argued that a few students, forming a microscopic minority want to postpone the examinations indefinitely with an intention to thwart the examination schedule. It was argued that postponement of the examinations any further would result in a ‘situation with unimaginable ramifications’.      

Perusing the facts and contentions and referring to a plethora of Supreme Court decisions on the similar matters, the Bench observed that there should be extreme reluctance on the part of the Courts to interfere into the academic matters formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions. Referring to Maghi Devi v. Union of India, 2020 SCC OnLine SC 546 the Bench pointed out that the Courts should not substitute the wisdom of specialists in the field of academics. Noting that the Covid-19 pandemic is an unprecedented humanitarian crisis, and it created situations that led to an All India Lockdown and closure of schools and colleges. The Court further observed that the Central and the State Governments have issued protocols to avert community transmission of the virus, and the same protocols are being implemented and followed strictly.

Thus declining to issue any stay order for cancellation, the Court clarified that if the exams are held as per the schedule and the petitioners appear and write the examinations, it would be without prejudice to their rights and contentions raised in the instant writ petitions. [Megha Sarkar v. State of Kerala, 2020 SCC OnLine Ker 2492 , decided on 29-06-2020]

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee and BR Gavai, JJ has refused to grant interim bail to Mahendra Singh Yadav, co-convict in the anti-Sikh riots case. Yadav had sought bail on account of being found to be COVID-19 positive.

The Court was informed that Yadav is in a serious condition. He has been hospitalized and is in the Intensive Care Unit. Everything possible is being done for the treatment of the petitioner

Additional Solicitor General KM Nataraj also told the Court that

“all the patients are given equal treatment and there is no discrimination of the petitioner or the members of his family on the ground of incarceration of the petitioner.”

Senior Advocate R. Basant, appearing for the petitioner argued that interim bail should be granted to Yadav to enable him and/or his family to take steps in view of his deteriorating health condition. The family, however, has no grievance with regard to the treatment given to the petitioner.

Refusing to entertain the application, the Court said,

“There is, however, no specific indication and/or suggestion forthcoming from the petitioner and/or his family members as to the steps which they wish to take. There is no offer from the family to shift the petitioner to any other hospital. There is not even a whisper in the petition that any differential treatment is meted to the patient or to his relatives on the ground of incarceration of the petitioner.”

[Mahendra Singh Yadav v. High Court of Delhi, 2020 SCC OnLine SC 553  , order dated 01.07.2020]

Hot Off The PressNews

In a notification posted by the Executive Committee of the Consortium of National Law Universities, 22nd August, 2020 has been decided as the new date of the CLAT exam. The exam will be conducted online and will be held in an examination centre. The full list of the exam centres will be notified by 1st July 2020. Candidates can register for the exam or withdraw their candidature by July 10th, 2020.

For LLM candidates, there will be no descriptive questions. They will have to answer 120 multiple choice questions in 2 hours. The Consortium will also conduct mock exams for all registered candidates to build familiarity with the test application and interface.

The decision to conduct the exam online was taken because of the prevailing pandemic situations. Candidates will be allowed to carry masks, 50 ml sanitizer, gloves etc inside the examination hall. The test centres will be disinfected regularly and thermo guns will be used to check the temperature of candidates. Only those candidates whose temperature is below 99.14 degrees will be allowed to enter the exam hall. Staff will be deployed for orderly movement and crowd management.

Read the official Notifications below:

5-6332076920217272518 5-6332076920217272519

COVID 19Hot Off The PressNews

Ministry of Home Affairs has issued new guidelines for phased re-opening of areas outside Containment Zones. The following guidelines shall remain in force till July 31, 2020.

Here’s all you need to know about Unlock 2

  • In Phase 2 of the phased reopening of the Lockdown, all activities will be permitted in areas outside Containment Zones, except the following:
    • Schools, Colleges, educational and coaching institutes; Training institutions of the Central and State Governments will be allowed to function with effect from July 15, 2020.  SOP in this regard will be issued by the Department of Personnel and Training, Government of India.
    • International air travel of passengers, except as  permitted by MHA
    • Metro Rail
    • Cinema halls, gymnasiums, swimming pools, entertainment parks, theatres, bars, auditoriums, assembly halls and similar places.
    • Social/ political/ sports/ entertainment/ academic/ cultural/ religious functions and other large congregations.

Dates of opening these activities will be decided separately after assessing the situation.

  • Domestic flights and passenger trains have already been allowed in a limited manner. Their operations will be further expanded in a calibrated manner.
  • Night Curfew shall continue to remain in force, between 10.00 pm and 5 am, except for essential activities.
  • Lockdown to continue to remain in force in Containment Zones till July 31, 2020.
    • Containment Zones will be demarcated by District Authorities after taking into consideration the guidelines of MoHFW.
    • Only essential activities shall be allowed in Containment Zones. Strict perimeter control to ensure that there is no movement of people in or out of these zones, except for medical emergencies and for maintaining supply of essential goods and services.
    • States/UTs may also identify Buffer Zones outside the Containment Zones, where news cases more likely to occur.
    • Within buffer zones, restrictions as considered necessary may be put in place by District authorities.
  • No restriction on inter-State and intra-State movement of persons and goods. No separate permission/approval/e-permit will be required for such movements.
  • Movement by passenger trains and Shramik special trains; domestic passenger air travel; movement of Indian Nationals Starnded outside the country and of specified persons to travel abroad; evacuation of foreign nations; and sign-on and sign-off-of Indian seafarers will continue to regulated as per SOPs issued.

To read the guidelines in a detailed manner, please follow the link below:

GUIDELINES