Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while addressing the instant matter observed that,

While religious sentiments of all sections of the society must be respected, the right to life and health of the public at large cannot be sacrificed at the altar of a right to celebrate a festival, however, significant it may be for a particular community.

This is the time to scale down to contain the infection and not to escalate the same.

The instant petition was filed in order to quash and set aside an order passed by the Chairperson, State Executive Committee, Delhi Disaster Management Authority, GNCTD directing all the authorities concerned to ensure that the Chhat Puja festival/celebrations in the month of November, 2020 shall not be allowed in public places, grounds/river banks (Ghats)/temples etc. in NCT of Delhi and the public be encouraged to celebrate the same at their homes in these times of COVID-19 pandemic.

Petitioners Counsel submitted that the fact that Chhat Puja is a major festival has not been taken in to consideration. For the past several years, the petitioner has been organising Chhat Puja and he may be permitted to organize the Puja with all the safety measures.

It is contended that the directions issued by the respondent/authorities not to organise such a Puja during the COVID-19 pandemic overlooks the religious sentiments of the people and amounts to violating their right to conduct ceremonies at public places.

Bench stated that the petitioner has lost sight of the COVID-19 pandemic situation in Delhi where even as per the Delhi Government, a third wave is underway.

In view of the above-stated circumstances, the petitioner cannot expect the respondent to permit to organise Chhat Puja for over 2 lakhs persons at a public place in Delhi.

Further the Court added that if permission to organise Chhat Puja will be granted, it would turn the said celebration into a super spreader of the infection.

In today’s day and time, the petitioner/Trust’s desire to celebrate Chhat Puja at such a large scale at public places, is belied by the existing ground reality prevalent in Delhi. The petitioner/Trust should have been alive to the said situation before approaching the court for such a relief.

Hence, in view fo the above discussion Court found no reason to interfere in the order issued regarding non-allowance of any person to gather in public places to celebrate Chhat Puja on 20-11-2020.[Shri Durga Jan Seva Trust v. GNCTD, WP (C) No. 9093 of2020, decided on 18-11-2020]


Advocate for the Petitioner: Ranjan Chaudhary

Sanjay Ghose, ASC with Advocate, Naman Jain

Case BriefsCOVID 19High Courts

Telangana High Court: The Division Bench of Raghavendra Singh Chauhan, CJ and Vijaysen Reddy, J., while banning the use of firecrackers stated that,

“Much as the festivals may be important and may serve social purpose, nonetheless, the lives of the people are the most important.”

The instant petition was filed to seek an order in the nature of Mandamus duly declaring the action of the respondents in not enforcing the ban of sale and use of crackers during November 10 to 30 for Diwali Festival across the State of Telangana as been done in other States in light of the COVID-19 Pandemic.

Petitioner sought the relief that the Government should be directed to ban the sale and use of firecrackers by the people during Diwali festival.

It was further added that, according to the medical literature, the Corona Virus adversely affects the lungs of the patients, besides adversely affecting the other organ system of the body. Due to the lungs infection, patients have been facing extremely difficult to breathe normally and to survive.

Since the winter season is setting in, the pollution created by the fireworks tends to hang in the air, thereby jeopardizing the lives of many and, especially, of the patients who are suffering from Corona Virus.

Advocate General, B.S. Prasad submitted that so far the Government has not taken any policy decision for banning the use of firecrackers during the Diwali festival. Government merely hopes that people will continue to observe the safety precautions for COVID-19.

Decision

Bench stated that presently, the Nation and the State are struggling with the COVID-19 pandemic.

COVID-19 adversely affects the respiratory system. Moreover, the use of fireworks adversely affects air quality.

Considering the above-stated two factors, the State of Rajasthan has already banned the use of fireworks during the Diwali season. Moreover, even other High Courts have banned the use of fireworks in their respective States.

Court while directing the State to immediately ban the sale and use of fireworks by the people and organizations, observed that

“It is the bounden duty of the State to ensure that the lives of the people are protected and promoted in a meaningful way. Since the Government has not declared any ban on the use of fireworks so far, but considering the fact that the lives of the people need to be protected, considering the fact that uncontrolled and untrammelled use of fireworks may jeopardize the lives of many.”

Bench also directed the State to immediately clampdown and close the shops which are selling fireworks, State is also directed to issue an appeal to people, both through print, press and electronic media to refrain from bursting firecrackers in order to prevent the deterioration in the air quality.

Matter to be listed on 19-11-2020.[P. Indra Prakash v. State of Telangana, WP (PIL) No. 271 of 2020, decided on 12-11-2020]

Compliance Checklist
Experts CornerGaurav Pingle and Associates

Minutes are summary of the proceedings of a meeting. According to the provisions of Section 118 of the Companies Act, 2013 (“Act”), every company shall maintain minutes prepare and maintain minutes of the proceedings of every general meeting of any class of shareholders or creditors, and every resolution passed by postal ballot and every Board meeting or committee meeting. Under the Act, the minutes of the meeting shall be evidence of the proceedings recorded therein. Where the minutes have been kept in accordance with the provisions of the Act, until the contrary is proved, the meeting shall be deemed to have been duly called and held, and all proceedings thereat to have duly taken place, and the resolutions passed, all appointments of Directors, key managerial personnel, auditors or company secretary in practice, shall be deemed to be valid.

In Yamuna Reddy v. B. Sivaraman[1]  Madras High Court observed that:

 “A cursory perusal of Section 195[2] regarding the presumption to be drawn where minutes of the company duly drawn and signed, clearly proves that the presumption arising in this section is a rebuttable one by adducing contrary evidence; that if a proper minutes book is kept and proceedings of meetings are duly recorded, it shall be deemed that the meeting has been duly called, held and all proceedings thereat have duly taken place and the consequent appointment of Director or Directors has been validly made. If the minutes are not recorded or signed within the prescribed period, then it is to be presumed that it is not properly kept and it will not be receivable in evidence. However, the onus to rebut the presumption under Section 195 (of Companies Act, 1956) is on the person who challenges the resolution or the entering of the minutes on the ground of malpractice or misdeed. ”

Taking into account Covid-19 situation that requires social distancing with necessary precautions, Ministry of Corporate Affairs (MCA) allowed companies to conduct shareholders meeting through
Videoconferencing/Other Audio-Visual Means (VC/OAVM). This article is a checklist for preparation, signing and maintenance of minutes of annual general meeting (AGM) conducted through VC/OAVM under the relevant provisions. The listed entities shall ensure compliance with the relevant provisions of Securities and Exchange Board of India (SEBI) (Listing Obligations and Disclosure Requirements) Regulations, 2015.

  1. Applicability.—The provisions of Section 118 of the Act, read with the Rules and circulars issued by the MCA (w.r.t. general meeting through VC/OAVM) are applicable to all companies —private companies, public companies (listed and unlisted companies).
  2. Content to be included in Minutes of AGM through VC.—The minutes of AGM through VC shall provide a fair and correct summary of the proceedings of the meeting. All appointments (i.e. Chairman, Director appointment, retire-by-rotation, reappointment of independent Director, statutory auditors, cost auditors, etc.) made at AGM shall be included in the minutes of the meeting. There shall not be included in the minutes, any matter which, in the opinion of the Chairman of the meeting: (a) is or could reasonably be regarded as defamatory of any person; or (b) is irrelevant or immaterial to the proceedings; or (c) is detrimental to the interests of the company. The Chairman shall exercise absolute discretion in regard to the inclusion or non-inclusion of any matter in the minutes of meeting. In relation to the circulars issued the MCA, the minutes of the AGM conducted through VC/OAVM may include the following:

(a) The notice of the meeting, financial statements of the company were sent to all stakeholders concerned through electronic mode.

(b) Summary of instructions read out by the Chairman of the meeting conducted through VC/OAVM.

(c) The facility for joining the meeting was kept open at least 15 minutes before the time scheduled to start the meeting and was not closed till the expiry of 15 minutes after such scheduled time.

(d) Manner of appointment of Chairman of the meeting.

(e) Name and designation of the invitees present at the meeting i.e. statutory auditors, secretarial auditors, independent directors, chairpersons of the Audit Committee, Nomination and Remuneration Committee and Stakeholders Relationship Committee.

(f) The fact that before the actual date of the meeting, the facility of remote e-voting was provided in accordance with the Act and the Rules (if remote e-voting provisions are applicable).

(g) Number of members present for the meeting. The attendance of members through VC/OAVM shall be counted for the purpose of reckoning the quorum.

(h) Manner of voting i.e. show of hands or voting by poll.

(i) The fact that various documents and registers were available for inspection in accordance with the provisions of Companies Act and MCA circulars.

(j) Depending upon the provisions of the articles of association of the company, the name of proposer and seconder of the specific resolution shall also be included in the minutes of the meeting.

  1. Minutes Book.—A company may maintain a distinct minute book for each type of meeting, namely: (i) general meetings of the members; (ii) meetings of the creditors; (iii) meetings of the Board of Directors; and (iv) meetings of each of the committees.
  2. Date of Entry.—The minutes of proceedings of each meeting shall be entered in the books maintained for that purpose along with the date of such entry within 30 days of the conclusion of the meeting.
  3. Signing and Initials of Minutes of Meeting.—For general meeting, each page of every minutes book shall be initialled or signed and the last page of the record of proceedings of each meeting in such books shall be dated and signed by the Chairman of the same meeting within the period of 30 days or in the event of the death or inability of that Chairman within that period, by a Director duly authorised by the Board of Directors for the purpose.
  4. Place of Maintenance of Minutes of General Meeting.—The minute books of general meetings shall be kept at the registered office of the company. The same shall be preserved permanently and kept in the custody of the Company Secretary or any director duly authorised by the Board.
  5. Inspection of Minutes of General Meeting.—The minute books of general meeting shall be kept open, during business hours, to the inspection by any member without charge. Such right is subject to such reasonable restrictions as the company may, by its articles of association or in general meeting, impose. Any member shall be entitled to be furnished, within 7 working days after he has made a request in that behalf to the company, and on payment of such prescribed fees with a copy of minutes of meeting. A member who has made a request for provision of soft copy in respect of minutes of any previous general meetings held during a period immediately preceding 3 financial years shall be entitled to be furnished, with the same free of cost.
  6. Compliance with Secretarial Standards issued by Institute of Company Secretaries of India.—Every company shall observe secretarial standards with respect to general and Board meetings specified by the ICSI, and approved by Central Government.

Taking into consideration the importance of minutes of general meeting, it’s evidentiary value, inspection rights of the members of the company, the minutes for the AGM conducted in the year 2020 shall be prepared in accordance with the provisions of the Act, Rules and MCA circulars (Circular No. 14 of 2020 dated 8-4-2020 and Circular No. 17 of 2020 dated 13-4-2020). It is necessary to ensure that all relevant and important points are included in the minutes of meeting. This may include question and answer session during the AGM of the company. In certain closely held companies, the members may conduct a roll-call of members, such facts shall also be included in the minutes of the meeting.


*Gaurav N Pingle, Practising Company Secretary, Pune. He can be reached at gp@csgauravpingle.com

[1] 1992 SCC OnLine Mad 400 : (1992) 75 Comp Cas 199.

[2]  Of the Companies Act, 1956, corresponding to S. 118 of the Companies Act, 2013.

Hot Off The PressNews

The Supreme Court of India has cautioned all the Advocates-on-Record, parties-in-person and all other concerned against unauthorised sharing of link/screen of Video-Conference/Tele-Conference hearings without permission of the Court. The Circular dated 06.11.2020 states that if the directions of the Court are flouted then it may invite “adverse consequences”.

“The Advocates/parties-in-person appearing in violation of above mentioned Standard Operating Procedure shall not be allowed to address the Hon’ble Court, rather their audio and video access will be prohibited.”

In the Standard Operating Procedure dated 4th July, 2020, it was specifically provided that only two appearance links and one viewing link shall be provided to each litigating party. Sharing of screen is also prohibited unless permitted by the Court.

The Circular highlights that despite the SOP being in place, the Advocates-on-Records are sharing the links, provided to them for video conferencing, with more than two advocates to appear before the Court during the course of proceeding. It, further, states,

“… Advocates are addressing the Court in the matters not listed for hearing on that day. Such sharing of Video-Conferencing links or sharing of screen, being violative of the above mentioned Standard Operating Procedure, is unauthorised, and creates hindrance in the proceedings of the Court.”

Read the Circular here

Case BriefsCOVID 19Supreme Court

Supreme Court: Refusing to interfere with the Delhi High Courts order staying Delhi Government’s decision to reserve 80% of ICU beds in private hospitals for COVID-19 patients, a vacation bench of Ashok Bhushan and B.R. Gavai, JJ has asked the Delhi High Court to hear the matter on 12.11.2020.

The order came after Additional Solicitor General Sanjay Jain submitted before the Court that there was an urgent requirement of hearing the matter since situation in Delhi regarding necessity of providing ICU beds to Covid-19 patients is increasing day by day.

Senior Advocate Maninder Singh, appearing for the Association of Healthcare Providers submitted that the matter was already listed before the Single Bench on 18.11.2020 and that he had no objection if the matter is taken up on any early date by the Division Bench. The LPA before the division bench was earlier listed on 27.11.2020.

The Court directed that it will be open for the parties to submit such pleadings and submissions before the Division Bench as may be advised.

[Government of NCT of Delhi v. Association of Healthcare Providers, Special Leave to Appeal (C) Nos. 13530-13531/2020, order dated 10.11.2020]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Coram of Justice Adarsh Kumar Goel (Chairperson) and Sheo Kumar Singh (Judicial Member), Dr Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members), while addressing the issue and considering the ban on the use of firecrackers observed that:

Celebration by crackers is for happiness. It is not to celebrate deaths and diseases. Happiness of few at the cost of life of others is not the value in Indian society which stands for happiness and well-being of all.

Issue

Remedial Action against pollution by use of firecrackers aggravating the menace of COVID-19 pandemic, posing a higher danger to the lives and health of the vulnerable groups.

Current Restrictions of Firecrackers

Bench noted that considering the potentially harmful consequences of burning crackers amidst COVID-19 pandemic situation and approaching winter, the State of Odisha, Rajasthan, Sikkim, NCT of Delhi (DPCC) and UT Chandigarh prohibited sale and use of firecrackers to protect the vulnerable groups like elderly, children, persons with co-morbidities and others.

Tribunal also placed reliance on the Technical Expert Committee that prohibition on firecrackers is a necessity to avoid the harmful health impact on account of the bursting of crackers, aggravating COVID during increased pollution.

Calcutta High Court’s decision in Anasua Bhattacharya v. State of W.B., WPA No. 1984 of 2020, was also noted wherein the Court has banned firecrackers.

State of Tamil Nadu

State of Tamil Nadu submitted that banning of crackers will affect the livelihood of the manufacturers and workers and the same was justified.

State of Punjab

Punjab claimed that air quality in its non-attainment cities was satisfactory and moderate during certain months.

Assam Pollution Control Board also stood by the stand of State of Punjab.

Amicus

Amicus, Raj Panjwani submitted that air pollution increases the risk of mortality from COVID-19.

He referred to various articles and further added that Lung injuries, including the life-threatening acute respiratory distress syndrome and respiratory failure, as well as an acute coronary syndrome, arrhythmia, myocarditis, and heart failure, were shown to be clinically dominant, leading to critical complications of COVID-19.

Recent studies in China, the USA, as well as Europe, indicate that patients with cardiovascular risk factors or established cardiovascular disease and other comorbid conditions are predisposed to myocardial injury during the course of COVID-19. From the available information, it thus follows that air pollution-induced inflammation leads to greater vulnerability and less resiliency, and the pre-conditions increase the host vulnerability.

Nexus between Pollution and COVID-19

Amicus added that with Covid-19, even reduced pollution becomes hazardous. What may be permitted in normal time can also not be permitted during Covid-19. That is the reason for the ban by the States which was never considered without Covid. The States have gone by expert advice in doing so. There is enough material indicting nexus between the pollution and the Covid and that the increased pollution will increase Covid impact.

Tribunal: Decision and Analysis

Bench stated that the Supreme Court’s decision in regard to ‘Firecrackers’ does not involve the impact of COVID-19, due to which it makes necessary for the tribunal to proceed further.

Financial loss or loss of employment cannot be a consideration not to remedy the situation affecting lives and health of the citizens by pollution, aggravated by Covid.

Further, the bench emphasised that

“while it is true that any restriction on the sale and use of crackers may affect the business and employment, at the same time if the use of crakers results in pollution and affects life and health of the citizens and the environment, such use may have to be restricted/prohibited to effectuate ‘Sustainable Development’ principle of which ‘Precautionary’ principle is a part, as per the mandate of Section 20 read with Section 15 of the National Green Tribunal Act, 2010.”

In view of the above stated, Tribunal stated that if authorities do no exercise its jurisdiction, the Tribunal has to exercise its jurisdiction.

Right of trade is not absolute and is to be subject to the ‘Sustainable Development’ principle, which is part of Right to life.

Relevant SC directions and Observations

In Arjun Gopal v. Union of India(2017) 1 SCC 412it was noted that air quality standards in Delhi are from ‘poor’ to ‘severe’ during winter resulting in the potential of diseases. Directions that were issued in the said decision were:

  1. Suspend all such licenses as permit sale of fireworks, wholesale and retail, within the territory of NCR.
  2. The suspension shall remain in force till further orders of this Court.
  3. No such licenses shall be granted or renewed till further orders.

The above directions were modified in the following Orders:

Arjun Gopal v. Union of India(2017) 16 SCC 280, It was noted that, the health of the people has to take precedence over any commercial or other interests, graded regulation of firecrackers was necessary which would eventually result in prohibition. Accordingly, directions were issued to restrict the temporary licenses to 50%, pending further consideration.

Supreme Court in Arjun Gopal v. Union of India, (2019) 13 SCC 523, while banning certain categories of firecrackers and directing regulation of the remaining, directed that on Diwali days or other festivals, firecrackers will be used strictly between 8 p.m to 10 pm only with different timings for some other festivals.

In the Supreme Court’s decision, the scope of the precautionary principle, even in absence of scientific certainty, was considered, apart from the contention of economic considerations, as a bar to remedy pollution.

In view of the data of CPCB, Tribunal stated that it is not possible to accept that in the State of Punjab ar quality is satisfactory or moderate everywhere in November. Bench stated that it needs a uniform yardstick needs to be applied based on objective criteria of air quality in the context of COVID-19 pandemic and associated adverse health impacts.

Green Firecrackers

While bursting of green firecrackers for the duration of two hours on festival days may be allowed in areas with moderate and below air quality, where not otherwise prohibited by authorities/Courts, there has to be total ban where air quality is poor and above.

With regard to the submission of States to not impose the ban of firecrackers or green crackers on festival days for 2 hours is justified where air quality is moderate and below but not where air quality is poor and above which may result in deaths and diseases.

Bench stated that to States/UTs falling in NCR and where 122 non-attainment cities are located, tribunal proposes to issue directions in rem applicable to all States/UTs.

Since air pollution aggravates COVID-19, not only crackers are to be banned/restricted depending upon air quality, all States/UTs, PCBs/PCCs must take special initiative to contain air pollution by regulating all other sources to pollution, particularly during COVID-19.

Conclusion & Directions

Tribunal in view of the above discussion held that a case is made out for issuing directions for banning the sale and use of firecrackers during November 9 to 30 in areas where air quality is ‘poor’, ‘very poor’ and ‘severe’.

Following are directions:

  • Total Ban against sale or use of all kinds of firecrackers in the NCR from midnight of November 9-10, 2020 to the midnight of November 30-December 1, 2020, to be reviewed thereafter.
  • Direction (i) will also apply to all cities/towns in the country where the average of ambient air quality during November (as per available data of last year) fall under ‘poor’ and above category.
  • Cities/Towns where air quality is ‘moderate’ or below, only green crackers be sold and the timings for use and bursting of crackers be restricted to two hours during festivals, like Diwali, Chatt, New Year/Christmas, etc. as may be specified by the State concerned. If nothing is specified by the State, timing will be 8 to 10 pm on Diwali and Gurupurb, 6 am to 8 am on Chatt and 11.55 pm to 12.30 am during Christmas and New year eve (which have yet to come and do not fall in November but if the ban continues) and not otherwise.
  • At other places, ban/restrictions are optional for the authorities but if there are more stringent measures under orders of the authorities, the same will prevail.
  • All States/UTs/PCBs/PCCs may initiate special drives to contain air pollution from all sources in view of the potential of aggravation of Covid-19.
  • States/UTs Chief Secretaries and DGPs may issue and circulate an appropriate order in above terms with appropriate enforcement guidelines to all the District Magistrates and Superintendents of police, PCBs/PCCs.
  • CPCB and the State PCBs/PCCs may regularly monitor the air quality during this period which may be uploaded on their respective websites.

Matter to be listed on 1-12-2020.[Tribunal on its own Motion v. Ministry of Environment, Forest & Climate Change; OA No. 249 of 2020; decided on 09-11-2020]


Also Read:

NGT | Whether use of firecrackers be banned in Delhi-NCR from 7th November to 30th November, 2020 in public interest? Tribunal to decide

Cal HC | No sale or purchase of firecrackers in any form: State to ensure that there is no use of firecrackers during Diwali celebrations & Kali Puja

COVID 19Hot Off The PressNews

The University Grants Commission framed and issued Guidelines for the universities and colleges for reopening their campuses.

These Guidelines have been vetted by the Ministry of Health & Family Welfare and approved by the Ministry of Home Affairs and the Ministry of Education. The Guidelines may be adopted by the institutions as per the local conditions and directives of the Government authorities.

The Universities and Colleges outside the containment zones may be opened in a graded manner after consultations with concerned State/UT Governments and subject to adherence to the guidelines/SOP for safety and health protocol prepared by UGC, as under:

  1. For Centrally Funded Higher Education Institutions, the Head of the Institution should satisfy herself/himself regarding the feasibility of the opening of physical classes and decide accordingly.
  2. For all other Higher Educational Institutions, e.g., State Universities, Private Universities, Colleges etc., opening of physical classes to be done as per the decision of the respective State/UT Governments.
  3. Universities and colleges may plan opening the campuses in phases, with such activities where they can easily adhere to social distancing, use of face masks and other protective measures This may include administrative offices, research laboratories and libraries etc.
  4. Thereafter, students of all research programmes and post-graduate students in science & technology programmes may join as the number of such students is comparatively less and norms of physical distancing and preventive measures can be easily enforced.
  5. Further, final year students may also be allowed to join for academic and placement purposes, as per the decision of the head of the institution.

However, for (iii), (iv) and (v) above, it should be ensured that not more than 50% of the total students should be present at any point of time and necessary guidelines/protocols to prevent the spread of COVID-19 are in place.

  1. For the programmes, other than those mentioned in paras (iv) and (v) above, online/distance learning shall continue to be the preferred mode of teaching and shall be encouraged.
  2. However, if required, students may visit their respective departments in a small number for consultation with the faculty members, after seeking prior appointments to avoid crowding, while maintaining physical distancing norms and other safety protocols.
  3. Some students may opt not to attend classes and prefer to study online while staying at home. Institutions may provide online study material and access to e-resources to such students for teaching-learning.
  4. Institutions should have a plan ready for such international students who could not join the programme due to international travel restrictions or visa-related issues. Online teaching-learning arrangements should also be made for them.
  5. Hostels may be opened only in such cases where it is necessary while strictly observing the safety and health preventive measures. However, the sharing of rooms may not be allowed in hostels. Symptomatic students should not be permitted to stay in the hostels under any circumstances.
  6. Before the reopening of any campus, the Central or concerned State Government must have declared the area safe for opening of educational institutions. The directions, instructions, guidelines and orders issued by the Central and concerned State Government regarding safety and health in view of COVID-19 must be fully abided by the higher education institutions.

These Guidelines provide in detail the measures to be taken by Higher Educational Institutions before re-opening of campuses. It also describes the safety measures to be taken by HEIs at Entry/Exit Point(s), in the classrooms and other learning sites, inside the campus and in the Hostels. Guidance for counselling and mental health is also provided in this document.

Earlier, the University Grants Commission issued “Guidelines on Examinations and Academic Calendar for the Universities in View of COVID-I9 Pandemic and Subsequent Lockdown” on 29th April, 2020 and then, on 6th July, 2020. These Guidelines covered important dimensions related to examinations, academic calendar, admissions, online teaching-learning, and provided flexibility for adoption by the universities.

Later, “UGC Guidelines on Academic Calendar for the First Year of Under-Graduate and Post-Graduate Students of the Universities for the Session 2020-21 in View of COVID-19 Pandemic” were issued on 24th September, 2020.

Click here for the detailed UGC guidelines for Re-opening the Universities and Colleges Post Lockdown

Click here for the salient features of UGC guidelines for Re-opening the Universities and Colleges Post Lockdown


Ministry of Education

[Press Release dt. 05-11-2020]

[Source: PIB]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has asked the Central Government to consider and issue necessary directions in exercise of powers vested in it under the Disaster Management Act, 2005, regarding ban/Regulation on the usage of disinfection tunnels involving spraying or fumigation of chemical/organic disinfectants for the human beings. The Central Government has to issue such directions within a month.

The direction came in the case where the petitioner had sought ban on spraying of all kinds of disinfectants on human beings which is being done supposedly for protecting the human beings from the COVID-19. The petitioner highlighted that the Ultraviolet (UV Lamps) should not be used to disinfect the hands and other areas of the skin and that the Ministry of Health and Family Welfare, Government of India, has also not approved the use of any self-claimed organic or ayurvedic disinfectant for spraying or fumigation purposes nor approved any chemical disinfectants on human body but lot of organizations/public authorities are using chemical disinfectants for spraying and fumigation.

It was further submitted that

“there is no study anywhere in the world by any credible health agency which states that human disinfection tunnels are effective against Covid-19 virus.”

On the contrary, there are sufficient health advisories by the WHO, Union of India and other international agencies that tunnels are counter-productive and harmful for human health.

In this backdrop, the Court noticed that when the Government itself has issued advisory that use of disinfectant on human body is not recommended and it has been brought into its notice that despite the said advisory, large number of organizations, public authorities are using disinfectants on human body, it was necessary for it to issue necessary directions either to prevent such use or regulate such use as per requirement to protect the health of the people.

Though the Union and the States are taking all measures to contain the pandemic and all mitigating steps but,

“Some more actions were required to remove the cloud of uncertainty and to regulate the use even if it was to either prevent such use or regulate the use so that health of citizens is amply protected.”

On the submission by the Government that it is for the States/UTs to implement guidelines by the Ministry of Health and Family Welfare and role of the Central Government is limited to provide necessary guidelines and financial support, the Court said, that the provisions of the Act, 2005, confer certain more responsibilities and duties on the Central Government apart from issuance of guidelines and providing financial support. The COVID-19 Pandemic being a disaster within the meaning of Act, 2005, has to be dealt with sternly and effectively.

“In event, use of disinfectant on human body is to cause adverse effect on the health of the people, there has to be immediate remedial action and respondent No.1 cannot stop only by saying that such use is not recommended.”

[Gursimran Singh Narula v. Union of India,  2020 SCC OnLine SC 906, decided on 05.11.2020]


*Justice Ashok Bhushan has penned this judgment

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice Sheo Kumar Singh (Judicial Member), Dr Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members), issue notice to consider whether the use of firecrackers may be banned for the period from 07-11-2020 to 30-11-2020 in the interest of public health and environment.

Issue raised in the present application is in regard to the remedial action against pollution by the use of firecrackers against pollution by use of firecrackers in NCR during the time air quality is unsatisfactory with potential of severity of COVID-19 pandemic.

Present application has been filed in reference to the statement by Delhi’s Health Minister and Union Health Minister that during the festive season there will be rise on COVID cases due to air pollution. Further, it was added that the use of ‘green crackers’ won’t be a remedial option in view of the present situation.

“The smoke will choke and may create gas chamber like situation. It will lead to poor visibility, hazy conditions and asphyxia.”

Supreme Court had considered the issue in regard to firecrackers in light of right to clean environment in the.

In Arjun Gopal v. Union of India(2017) 1 SCC 412it was noted that air quality standards in Delhi are from ‘poor’ to ‘severe’ during winter resulting in the potential of diseases. Directions that were issued in the said decision were:

  1. Suspend all such licenses as permit sale of fireworks, wholesale and retail, within the territory of NCR.
  2. The suspension shall remain in force till further orders of this Court.
  3. No such licenses shall be granted or renewed till further orders.

Arjun Gopal v. Union of India, (2017) 16 SCC 280, It was noted that, the health of the people has to take precedence over any commercial or other interests, graded regulation of firecrackers was necessary which would eventually result in prohibition. Accordingly, directions were issued to restrict the temporary licenses to 50%, pending further consideration.

Supreme Court in Arjun Gopal v. Union of India, (2019) 13 SCC 523, while banning certain categories of firecrackers and directing regulation of the remaining, directed that on Diwali days or other festivals, firecrackers will be used strictly between 8 p. to 10 pm only with different timings for some other festivals.

In Supreme Court’s decision of Noise Pollution (V), In Re., (2005) 5 SCC 733, directions were issued with regard to the noise level of the crackers.

It has been stated in the present application that the above-cited Supreme Court decisions do not address the COVID-19 situation wherein the adverse effect may be so that the number of deaths may increase along with the number of diseases.

It has been added that several reports in public domain state that the air quality of Delhi is deteriorating and further deterioration may give rise to an increase in COVID cases.

Since the firecrackers emit poisonous gases like SO2, NOX, CO as well as the metal besides creating noise. In the given climatic conditions, this may result in respiratory/pulmonary diseases, diabetic, hypertension and other diseases.

Experts have also opined on clear nexus of air pollution with COVID-19. With increased air pollution, virus can cause more damage.

On noting the above stated, Tribunal issued notice to the MoEF&CC, CPCB, DPCC, Police Commissioner, Delhi, Governments of Delhi, Haryana, Uttar Pradesh and Rajasthan on the question whether the use of firecrackers may be banned for the period from 07-11-2020 to 30-11-2020 in the interest of public health and environment.

Bench requested Raj Panjwani, Senior Advocate along with Advocate Shibani Ghosh to assist the Tribunal as amicus.

Matter to be listed don 05-11-2020.[Indian Social Responsibility Network v. Ministry of Environment, Forests & Climate Change; Original Application No. 249 of 2020, decided on 02-11-2020]

COVID 19Op EdsOP. ED.

The Disaster Management Act, 2005[1] (“the DM Act”) was enacted in the year 2005, in the aftermath of the Tsunami disaster which occurred on 26th December, 2004. It was enacted under Entry 23 of the Concurrent List, Seventh Schedule to the Constitution “Social Security and social insurance; employment and unemployment”. The rationale for enacting this law under the Concurrent List was that, if the States so desire, they can enact their own laws to meet their respective micro-level requirements. Few State Governments have enacted their own laws, in addition to the national law. Though the DM Act was enacted in 2005, the States were painfully slow in framing rules and draft State plans. It took Supreme Court cases like Gaurav Kumar Bansal[2], Jai Prakash Bisht[3] and Swaraj Abhiyan[4] to fruitfully develop a judicious mix of the top-down and the bottom-up philosophy of the DM Act which is one of the finest principles of this statute. The first National Plan for Disaster Management was finally inaugurated in 2016 in consonance with the Sendai Framework for Disaster Management. Down the years the DM Act’s machinery proved the test of time in different kinds of disasters, though there was always a discussion for amendments to make it more effective.

Covid-19 is the disaster which brought the DM Act to the front stage in all the discussions including discussions focusing on efficacy of the DM Act itself. It is the first pan India disaster being handled after the enactment of the DM Act in 2005. Covid-19 has resulted into unprecedented steps which are also being termed draconian by a few. Before we state with an analysis of the legal position, we must keep in mind the fact that the virus has rapid spread, it knows no boundaries and our healthcare system has certain limitations. Insofar as the preparedness is concerned, it was a challenge for the developed countries also. For India, the challenges were the poor doctor patient ratio, number of ventilators, number of beds per million, unavailability of sufficient test kits, PPEs and face masks, etc. There are also challenges of different ideologies questioning the efficacy of the lockdown itself. The necessary evil, lockdown has certainly brought certain adverse effects on the economy, but we cannot forget lessons of the Great Plague of Marseille i.e. need to balance economics and existence of human race. The balancing of requirements resulted into Lockdowns 1.0, 2.0, 3.0 and 4.0 i.e. the gradual easing of the restrictions.

 Legal issues

 There are two important legal questions here. Firstly, is the lockdown and the manner in which it is being implemented valid? Secondly, is the procedure under the Disaster Management Act, 2005 being followed properly and, are the restrictions placed therein valid? The first question focuses on the fundamental rights enshrined in the Constitution of India and the second question arises due to the general inadequate understanding of the Disaster Management Act.

 No violation of fundamental rights

 Insofar as the lockdown is concerned, right to life being the most sacrosanct right takes precedence over all other rights in a scenario like Covid-19. The other two fundamental rights which are primarily getting affected are – fundamental right to move freely throughout the territory of India and fundamental right to practice any profession, or to carry on any occupation, trade or business. Both the abovementioned rights are subject to reasonable restrictions ‘in the interest general public’ of the under Articles 19(5) and 19(6) of the Constitution of India respectively. Consequently, the Centre can impose a lockdown in the entire country considering the rapid spread of Covid-19 and the need to aim at flattening of the Covid curve.  Also, as per the judgments of the Supreme Court reasonableness of restriction is to be determined in an objective manner and a restriction cannot be said to be unreasonable merely because in a given case, it operates harshly.

A broad definition of disaster

Insofar as the Disaster Management Act is concerned, it does not enumerate disasters for its applicability. It provides a generic definition of disaster with certain ingredients. Any disaster whether it is a flash flood or drought conditions must have the ingredients stated in the definition of disaster. The definition is broad enough to include an epidemic. The generic definition was given after the experience of Tsunami disaster which was not included in the list of disasters by the Finance Commissions. The purpose was that if we face a disaster in future which is also not covered under the specific definitions, it would be safer to make the definition more generic so that such events/catastrophes could also be covered therein.  Covid-19 is accordingly covered under the generic definition of ‘disaster’ given in the Disaster Management Act, 2005.

Procedure under the Disaster Management Act, 2005

There are a few pointers in the Disaster Management Act which need to be appreciated to understand the overall scenario. Firstly, in India, the Home Ministry has the overall administrative control of disaster management. Secondly, the National Disaster Management Authority was established to carry out the objectives of the Disaster Management Act i.e. effective steps for the mitigation of disasters, prepare for and coordinate effective response to disasters. NDMA has the responsibility for laying down the policies, plans and guidelines for disaster management for ensuring timely and effective response to disaster.  Thirdly, the Prime Minister is the ex officio Chairperson of NDMA. The Prime Minister can exercise any power of NDMA subject to ex post facto approval of the NDMA. Fourthly, the National Executive Committee assists the NDMA in the discharge of its functions and also ensures the compliance of directions issued by the Central Government for the purpose of disaster management in the country. Fifthly, in case of NEC, the Secretary of Home Ministry is the Chairperson, ex officio because the Home Ministry of the Central Government is the ministry having administrative control of disaster management. Sixthly, every Ministry or Department of the Government of India has a responsibility to take measures necessary for prevention of disasters, mitigation, preparedness and capacity building in accordance with the guidelines laid down by the National Authority. Seventhly, each State Government shall take all measures specified in the guidelines laid down by the National Authority. The State Governments are also expected to cooperate and assist NDMA. The departments of the State Governments have similar responsibilities. Eighthly, the Central Government can issue directions in writing to the State Government, State Authority, State Executive Committee, statutory bodies to facilitate or assist in the disaster management and such Government will be bound to comply with such direction.

Insofar as the procedure under the Disaster Management Act, 2005 is concerned, in the current scenario, the decision-making authority for Covid-19 emergency is NDMA. The Secretary to the Home Ministry who is also the ex officio Chairperson of NEC, is issuing the directions. Under the directions of NDMA, in the exercise of its powers under Section 10(2)(1), the Chairperson of NEC issued directions vide order dated 24th March, 2020 to all Ministries/Department of Government of India, State Governments/Union Territories and State/Union Territory Authorities with guidelines to implement the lockdown measures. Since the issue requires medical intervention, the powers of the Home Ministry under Section 10 were delegated to the Ministry of Health and Family Welfare (deemed to be effective from January 17). Powers bestowed by the Disaster Management Act on the Central Government and NDMA are extensive. The Central Government, irrespective of any law in force (including over-riding powers) can issue any directions to any authority anywhere in India to facilitate or assist in the disaster management. Importantly, any such directions issued by the Central Government and NDMA must necessarily be followed by the Union Ministries, State Governments and State Disaster Management Authorities. As per the scheme of the Act, State/UT Governments cannot dilute these guidelines, they may, however, impose stricter measures than these guidelines as per the requirement of the local areas. Thus, the procedure under the Disaster Management Act is being properly followed.

A fine combination of top-down and bottom-up approach

In the current scenario, the DM Act is being criticised as a statute with top-down approach. This is being highlighted by people who have unpromisingly read the provisions related to the State Plan, State Authority, local authorities and State and district funds. The flexibility given to the State can be understood by the provisions of SDMA and its functions. It may be noted that the State Plan is approved by SDMA and not NDMA; and Chief Minister of the State is ex officio Chairman of SDMA. The SDMA’s functions make crystal clear the flexibility given to the States under the broad framework. The State Disaster Management Plan is to be prepared by SEC having regard to the guidelines laid down by the National Authority and after such consultation with the local authorities, district authorities and people’s representatives as the State Executive Committee may deem fit.  Therefore, it shows a judicious mix of top-down and bottom-up approach. The liberty as to who all are to be consulted has been given to the State Executive Committee so as to make it possible to prepare the State Plan in a reasonable timeframe because there are a very large number of stakeholders from village/local bodies to district level. They are expected to include the vulnerability of different parts of the State to different forms of disasters, the measures to be adopted for prevention and mitigation of disasters, the manner in which the mitigation measures shall be integrated with the development plans and projects and the roles and responsibilities of different departments of the Government of the State in responding to any threatening disaster situation or disaster. This gives sufficient flexibility to the States for micromanagement of the disasters being faced by them. It may be noted that micro-level vulnerability assessment to different forms of disasters in not included in the National Plan. Thus, while coastal States shall include Cyclone Mitigation and Response Plans, other States may not include the same since they are not vulnerable to cyclones Similarly, States with hilly terrain may include landslides, which may not be necessary for other States in plains. Therefore, the DM Act is a reflection of a fine combination of both the top-down and bottom-up approach with only macro management policies with NDMA which is necessary for uniformity and micromanagement with States which would vary depending on their requirements. The current Covid-19 guidelines do not reflect control mechanism, they are a reflection of the NDMA’s responsibility towards framing necessary uniform guidelines to manage a particular disaster situation.

Thus, the approach was never overcentralised, that is the reason why in Lockdown 4.0 we see much easing and more powers with the State Governments. A reading of gradual shifts from Lockdowns 1.0 to 4.0 reflects the uniqueness of the DM Act and its adaptability to changing scenario. 

Role of the Central Government

 The role of the Central Government is to provide assistance to the otherwise functional State Government. Every State Government has sufficient machinery and resources under the DM Act. It aids the State Government with the three M’s – man, materials and money as and when required. The emphasis is primarily on coordination and adoption of a uniform approach in disaster management by the State Governments.

National Plan

One more issue with insufficient clarity is the National Plan. There is no need for an epidemic national plan, the DM Act provides for a general plan which was prepared first in 2016. The 2019 National Disaster Management Plan also deals extensively with Biological Disaster and Health Emergency. There are NDMA Guidelines for management of biological disasters wherein both epidemics and pandemics have been covered.  All the States and Union Territories have to function within the overall umbrella of these guidelines.

Appropriate legal framework

The DM Act is a statute which provides for sufficient legal framework and mechanism to manage any disaster situation. A combination of the DM Act with IPC and the Epidemic Diseases Act, 1897[5] is being widely criticised.  A fair analysis would reflect it as a strength and not weakness. Penal Codes are a necessary aid to such scenarios in any disaster situation. There is no need to have two different sets of machinery and punishment for one crime. Besides, if any State Government is of the view that there are some legal gaps in micro management of disasters in their State, they can enact their respective State Disaster Management Acts, to supplement the legal provisions further. In fact, few State Governments have already enacted their own State Disaster Management Acts.

Conclusion  

The lockdown is constitutionally valid, but the success of this lockdown and fight against Covid-19 depends fully on the coordination amongst various stakeholders. It includes political coordination led by the Central Government. The DM Act provides sufficient legal framework to handle all disaster situations. In fact, it came in handy in case of the epidemic due to its broad definition and already existent mechanism.

We must also learn a few lessons from the countries which are facing the second wave of Covid-19. The economy is being revived with necessary measures, the portals of justice have also looked forward to videoconferencing, the essential question is – in the name of liberties, can we bite off more than what we can chew? Is this not the time that we focus more on our own duties as stated by August Comte and reach at a common understanding of social solidarity as stated by Leon Duguit to handle the current scenario? Is it not necessary for us to think about contributing our best to built better back? Is it not more necessary to coordinate efforts considering the fact that a pandemic is an extraordinary disaster situation? Political differences will always be there in any democracy but it is all the more necessary to unite in case of a national health emergency.


*Functioned as Director (Disaster Management) in the Ministry of Home Affairs; Advisor (Disaster Management) in UNDP; National Coordinator in ADPC and independent consultant. Closely associated with formulation of the Disaster Management Act and National Policy on Disaster Management; implementation of community-based Disaster Risk Management Programme, Disaster Risk Management  Master Plan for MCGM; preparing Long Term  Training and Capacity Building Strategy of Disaster Risk Mitigation in India and several other initiatives taken by Government of India and various studies for many State Governments.

**Associate Professor, Bennett University, Greater Noida.  Prof. (Dr.) Sondhi has taught at some of the most reputed law colleges in India like SLS (Pune), ILS Law College (Pune), NALSAR University of Law (Hyderabad) and Asian Law College (Noida). She was made a Member of State Government Committee for formulation of Rules under the Disaster Management Act 2005. She co-authored a book ‘Disaster Management Law and Policy in India’ with Prof. (Dr.) Shirish Deshpande, Retd. HoD, PGTD Law, RTM Nagpur University. She also authors a blog on Disaster Management Law in India.

[1] Disaster Management Act, 2005

[2] Gaurav Kumar Bansal v. Union of India, (2016) 16 SCC 530

[3] Jai Prakash Bisht v. Union of India, 2016 SCC OnLine Utt 2453

[4] Swaraj Abhiyan v. Union of India, (2016) 7 SCC 498

[5] Epidemic Diseases Act, 1897

COVID 19Hot Off The PressNews

Attention has been drawn to media reports regarding orders passed by Central Information Commission regarding an RTI query with regard to AarogyaSetu App. As per the orders, of the CIC, CPIOs of MeitY, NeGD and NIC have been directed to appear on 24-11-2020. MeitY is taking necessary steps to comply with the orders of the CIC.

With regard to the above, it is clarified that there should be no doubt with regard to the AarogyaSetu App and its role in helping contain COVID-19 Pandemic in India. As was announced through Press Releases and Social Media posts on 2-04-2020, AarogyaSetu App was launched by Government of India in public-private partnership mode to bring people of India together in its fight against COVID19. The AarogyaSetu App was developed in a record time of around 21 days, to respond to the exigencies of the Pandemic with Lockdown restrictions only for the objective of building a Made in India Contact Tracing App with the best of Indian minds from Industry, Academia and Government, working round the clock to build a robust, scalable and secure App. Since 2-04-2020, regular press releases and updates have been issued on AarogyaSetu App including making the source code available in Open-domain on 26-05-2020. The names of all those associated with the development of the App and management of the App ecosystem at various stages was shared when the code was released in Open/Public Domain and the same was shared widely in media also.

The same can be accessed on https://github.com/nic-delhi/AarogyaSetu_Android/blob/master/Contributors.md. On all such occasions, it has been clearly mentioned that the AarogyaSetu App has been developed by NIC in collaboration with volunteers from Industry and Academia. AarogyaSetu app has been developed in the most transparent manner and all details and documents including Privacy Policy and AarogyaSetu Data Access & Knowledge Sharing Protocols issued on 11th May 2020 has been uploaded on the AarogyaSetu Portal – aarogyasetu.gov.in. The portal has all details about the App including those regarding How the App works, COVID updates and Why one should use AarogyaSetu. Regular updates about AarogyaSetu App have been shared on all Social media platforms as also Government portals. Several TV shows and media briefings also have shared complete details about the App, it’s development and how it is assisting the fight against COVID19.

As has been mentioned earlier, the App has been developed in a collaborative effort of Government and Private Sector. The App has been downloaded by more than 16.23 Cr users and has greatly augmented the efforts of front line health workers in the fight against COVID-19. It has helped identify Bluetooth contacts of COVID positive users and issued alerts for helping people to stay safe. These Bluetooth contacts have been advised for caution, quarantine or testing depending on the extent of exposure to COVID-19 positive user. Amongst those who have been advised testing, almost 25% have tested positive. This is much higher compared to the overall positivity rate of 7-8%. Thus, the efficiency of testing has gone up with AarogyaSetu. In addition, AarogyaSetu ITIHAS interface with location data has helped identify emerging hotspots where proactive steps have been taken by Health authorities and administration in order to contain the spread of the Virus. Thus, AarogyaSetu has proved to be very useful in India’s fight against COVID-19. Recently, WHO has also appreciated the role of AarogyaSetu in containing the pandemic in India.


Ministry of Electronics & IT

[Press Release dt. 28-10-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., considering the peculiar facts of the present case, allows anticipatory bail to a proclaimed offender, imposing several conditions.

 Brief Facts

On the allegations made by a girl, aged 15 years, against the petitioner of having coitus with her at the end of May 2013, by entering her home and also committing rape on her in the forest on 30-06-2013, when she was returning from school, the police registered FIR dated 19-07-2013, under Sections 376, 506 of the Penal Code, 1860, and Section 4 of Protection of Children from Sexual Offences Act, 2012, disclosing cognizable and non-bailable offences.

The police conducted the investigation, took the victim for her medical examination, got her statement recorded under S. 164 CrPC, but failed to nab the accused. Subsequently, the police filed a charge sheet without arresting the accused. After taking cognizance of the offence, the Court issued Non-bailable Warrants (NBW) and upon its non-execution, allowed the application of the prosecution and proceeded against the accused under Section 82 CrPC, declaring the petitioner as a proclaimed offender. It is to be noted that the contents of the bail petition and the status report do not reveal any criminal history.

Counsel for the petitioner

Abhilasha Kaundal, Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. Further, the conduct of the accused applicant must be taken into account as much as, being declared a proclaimed offender, the petitioner voluntarily approached this Court by filing a petition for anticipatory bail. Accused explains that he and the victim were in love, and to make out an exceptional case, further states that on noticing that the girl had an affair with one Jyoti Prakash, he became melancholic and left for a distant place, far away from her. Accused further contends that due to the Lockdown of the COVID-19 pandemic, he was forced to return home and got information that an FIR was lodged against him, and that he is a proclaimed offender.

Counsel for the respondent

While opposing the bail, Nand Lal Thakur, Additional Advocate General contended that an absconder whom the Court has declared as a proclaimed offender has no legal rights to file an application under Section 438 CrPC.

Opinion of the Amicus

Ashok Tyagi, Amicus Curiae carved out a distinction in the pronouncements of Supreme Court and states that this Court has the jurisdiction to grant anticipatory bail, in peculiar facts, even to a proclaimed offender.

 Observations

The Court, in addition to its decision, cited the following cases;

  • Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, on the position of anticipatory bail against a proclaimed offender; “Para 10. (…)Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.”
  • State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171, reiterated the rationale of the aforementioned case.
  • Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42, A three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires a change in fact or situation. 
  • Dataram Singh v. State of U.P., (2018) 3 SCC 22, “…grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions.”
  • Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, A Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions on the grant of bail.

Decision

In the light of the precedent cited and the facts of the case, the Court allowed the bail application remarking, “Pre-trial incarceration needs justification depending upon the offense’s heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.” Moreover, the Court enumerated a list of conditions that the applicant must abide by, during the course of bail.[Mahender Kumar v. State of Himachal Pradesh, 2020 SCC OnLine HP 2119, decided on 26-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsCOVID 19High Courts

Chhattisgarh High Court: A Division Bench of P.R. Ramchandra Menon and Parth Prateem Sahu JJ., dismissed the petition applying the principle of judicial restraint in administrative matters.

The facts of the case are such that petitioner is an enterprise registered under the Micro, Small and Medium Enterprise (Development) Act, 2006, engaged in manufacturing of ‘Ferro Vanadium’ since 1996. Respondent floated tender for purchase of Ferro Vanadium dated 27-6-2019. Petitioner submitted bid and upon conclusion of tender proceeding, the petitioner was declared as successful bidder vide Letter of Acceptance (LoA) dated 9-9-2019 for supply of 120 MT of Ferro Vanadium to various subsidiaries/steel plants of the Steel Authority of India (for short ‘SAIL’). Pursuant to the LoA, respondent BSP placed purchase to be supplied partially by 3-12-2019 and remaining by 15-2-2020. The petitioner failed to complete the second phase of supply within the scheduled period having a backlog of supply. Respondent floated another tender dated 30-6-2020, last date of submission of bid initially being fixed as 14-7-2020, which was extended till 25-7-2020. Petitioner in view of Clause 2 (c) of the RFQ was not eligible to participate in the tender proceeding, hence the petitioner requested respondent BSP vide email dated 11-7-2020 to grant extension of delivery period so that the petitioner may become eligible to submit its bid in RFQ dated 30-6-2020. Petitioner made several efforts including approaching the Chief Executive Officer of respondent BSP vide email dated 22-7-2020. Petitioner submitted its bid on 13-7-2020. Respondent BSP has issued an amended purchase order in favour of petitioner to enable it to clear its previous backlog of 13.5MT of Ferro Vanadium, to which the petitioner complied. Thereafter on 6-8-2020, the petitioner requested respondent BSP to consider its bid and to allow the petitioner to participate in the reverse auction. This email was replied by the respondent BSP vide email dated 12-8-2020 in which it is mentioned that petitioner’s bid was not found suitable as the petitioner could not qualify eligibility criteria as mentioned in Clause 2 (c) of the RFQ. This made the petitioner filed this writ petition.

Counsel for the petitioner Rishabh Garg submitted that due to unprecedented global pandemic ‘Covid-19’ the petitioner could not be able to procure raw material from the international market. It was further submitted that the action of respondent authorities in sitting over the application submitted by petitioner for extension of the delivery period since 22-6-2020 for about 45 days is an arbitrary exercise of powers. He submitted that act of non-issuing order of extension of the delivery period has deprived the petitioner of competing in a tender proceeding which is violative to Article 19 (1) (g) of the Constitution of India.

Counsel for the respondent Ashish Surana submitted that tender issuing authority/body is different than the authority/body which places purchase order and having discretion and authority for granting an extension of delivery /supply period of the period, as mentioned in the purchase order issued by it. It was further submitted that the period was expired much prior to the declaration of lock-down in the country due to pandemic Covid-19 i.e. on 12-2-2020 itself, whereas lock-down has been declared only on 24-3-2020. It was also submitted that petitioner has been sitting on his rights time and again inspite of remedy being available and petitioners being fully aware of the provisions in the tender document.

The Court relied on judgment titled Sterling Computers Limited v. M&N Publications Ltd., (1993) 1 SCC 445 which observed:

“While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the decision making process the courts can certain examine whether ‘decision making process’ was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.”

The Court observed that in the tender proceedings while exercising the powers of judicial review under Article 226 of the Constitution of India the Court is having very limited jurisdiction to interfere with the tender proceeding. It is to be seen whether the ‘decision-making process’ is correct or not.

After perusing the facts, submissions and observations laid above, the Court held that tender notification dated 30.6.2020 for procurement of Ferro Vanadium has been issued by the Central Procurement Agency of the SAIL, the petitioner could not meet out the eligibility criteria in terms of Clause 2 (c) as he was having more than 10% of backlog of supply of Ferro Vanadium of earlier purchase order given to him by SAIL, which is the basis of rejection of petitioner’s bid. There is no challenge to Clause 2 (c) of NIT on any grounds.

In view of the above, the petition stands dismissed and disposed off.[RR Ferro Alloys (P) Ltd. v. Bhilai Steel Plant, 2020 SCC OnLine Chh 406, decided on 19-10-2020]


Arunima Bose, Editorial Assistant has put this story together

COVID 19Hot Off The PressNews

Ministry of Home Affairs (MHA) issued an Order today to extend the Guidelines for Re-opening, issued on 30-09-2020, to remain in force upto 30-11-2020

Re-opening of activities outside the Containment Zones

    • Since the issuance of the first Order on lockdown measures by MHA on 24th March 2020, almost all activities have been gradually opened up in areas outside the Containment Zones. While most of the activities have been permitted, some activities involving large number of people, have been allowed with some restrictions and subject to SOPs being followed regarding health and safety precautions. These activities include – metro rail; shopping malls; hotel, restaurants and hospitality services; religious places; yoga and training institutes; gymnasiums; cinemas; entertainment park etc.
    • In respect of certain activities, having relatively higher degree of risk of COVID infection, State/ UT Governments have been permitted to take decisions for their re-opening, based on the assessment of the situation and subject to SOPs. These activities include – schools and coaching institutes; State and private universities for research scholars; allowing gatherings above the limit of 100 etc.
    • After the last guidelines issued by MHA on 30.09.2020, the following activities are also permitted but with certain restrictions:
  1. International air travel of passengers as permitted by MHA.
  2. Swimming pools being used for training of sportspersons.
  3. Exhibitions halls for Business to Business (B2B) purposes.
  4. Cinemas/ theatres/ multiplexes upto 50% of their seating capacity.
  5. Social/ academic/ sports/ entertainment/ cultural/ religious/ political functions and other congregations, in closed spaces with a maximum of 50% of the hall capacity and subject to a ceiling of 200 persons.

The further decision regarding the above activities will be taken based on the assessment of the situation

COVID-Appropriate behavior

    • The essence behind graded re-opening and progressive resumption of activities is to move ahead. However, it does not mean the end of the pandemic. There is a need to exercise abundant caution by adopting COVID-19 appropriate behavior by every citizen in their daily routine. A ‘Jan Andolan’ was launched by the Prime Minister, Shri Narendra Modi on 8th October 2020 on COVID-19 appropriate behavior to follow three mantras, namely:
  1. wear your mask properly;
  2. wash your hands frequently; and
  3. maintain a safe distance of 6 feet.
    • There is an urgent need to instil a sense of discipline and ownership amongst citizens in order that the resumption of activities is successful and gains made in the management of the pandemic are not diluted.
    • MHA has already advised Chief Secretaries/ Administrators of all States/ UTs that they should endeavour to promote COVID-19 appropriate behavior extensively at the grass root level and take measures to enforce the wearing of masks, hand hygiene and social distancing.

National Directives for COVID-19 management

  • National Directives for COVID-19 management shall continue to be followed throughout the country, so as to enforce COVID-19 appropriate behavior.

Strict enforcement of lockdown in Containment Zones till 30th November 2020

  • Lockdown shall continue to be implemented strictly in the Containment Zones till 30th November, 2020.
  • Containment Zones shall be demarcated by the District authorities at micro-level after taking into consideration the guidelines of MoHFW with the objective of effectively breaking the chain of transmission. Strict containment measures will be enforced in these containment zones and only essential activities will be allowed.
  • Within the containment zones, strict perimeter control shall be maintained and only essential activities allowed.
  • These Containment Zones will be notified on the websites of the respective District Collectors and by the States/ UTs and information will also be shared with MOHFW.

States not to impose any local lockdown outside Containment Zones

  • State/ UT Governments shall not impose any local lockdown (State/ District/ sub-division/City/ village level), outside the containment zones, without prior consultation with the Central Government.

No restriction on Inter-State and intra-State movement

  • There shall be 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.

Protection for vulnerable persons

  • Vulnerable persons, i.e., persons above 65 years of age, persons with co-morbidities, pregnant women, and children below the age of 10 years, are advised to stay at home, except for meeting essential requirements and for health purposes.

Use of AarogyaSetu

  • The use of AarogyaSetu mobile application will continue to be encouraged.

Ministry of Home Affairs

[Source: PIB]


Also Read:

[UNLOCK-5] MHA issues new Guidelines for Re-opening; Flexibility to States UTs for opening of schools

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and Dr. DY Chandrachud and L. Nageswara Rao, JJ has made a slight modification in the guidelines issued by it on April 06, 2020 on functioning of courts through video conferencing amidst the COVID-19 pandemic.

The Court has ordered that the directions issued earlier need not be altered except sub-para (vii) of Paragraph 6 which shall be substituted with the following:

“The Video Conferencing in every High Court and within the jurisdiction of every High Court shall be conducted according to the Rules for that purpose framed by that High Court. The Rules will govern Video Conferencing in the High Court and in the district courts and shall cover appellate proceedings as well as trials.”

Earlier sub-para (vii) of Paragraph 6 of the order dated April 06, 2020 read as:

“Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.”

Noticing that several High Courts have framed their rules already, the Court directed that those High Courts that have not framed such Rules shall do so having regard to the circumstances prevailing in the State and

“Till such Rules are framed, the High Courts may adopt the model Video Conferencing Rules provided by the E-Committee, Supreme Court of India to all the Chief Justices of the High Court.”

Impressed with the functioning of virtual courts across the country amidst COVID-19 pandemic, the Court said,

“We must say the system of Video Conferencing has been extremely successful in providing access to justice.”

[IN RE GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID 19 PANDEMIC, SMW (C) No(s). 5/2020, order dated 26.10.2020]


Read the guidelines dated April 06, 2020 on functioning of courts through video conferencing here

COVID 19Hot Off The PressNews

In view of the situation arising out of the COVID-19 pandemic, the Government of India had taken a series of steps to curtail the inward and outward movement of international passengers since February, 2020.

The Government has now decided to make a graded relaxation in visa and travel restrictions for more categories of foreign nationals and Indian nationals who wish to enter or leave India.

Therefore, it has been decided to permit all OCI and PIO cardholders and all other foreign nationals intending to visit India for any purpose, except on a Tourist Visa to enter by air or water routes through authorized airports and seaport immigration check posts.  This includes flights operated under Vande Bharat Mission, Air Transport Bubble arrangements or by any non-scheduled commercial flights as allowed by the Ministry of Civil Aviation. All such travellers will however have to strictly adhere to the guidelines of the Ministry of Health and Family Welfare regarding quarantine and other health/COVID-19 matters.

Under this graded relaxation, Government of India has also decided to restore with immediate effect all existing visas (except electronic visa, Tourist Visa and Medical Visa).  If the validity of such visas has expired, fresh visas of appropriate categories can be obtained from Indian Mission/Posts concerned.

Foreign nationals intending to visit India for medical treatment can apply for a Medical Visa including for their medical attendants. Therefore, this decision will enable foreign nationals to come to India for various purposes such as business, conferences, employment, studies, research, medical purposes etc.


Ministry of Home Affairs

[Press Release dt. 22-10-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

The National Human Rights Commission (NHRC), viewing the unprecedented situation across the country and being deeply concerned about the rights of the vulnerable and marginalised sections of the society affected by the COVID-19 pandemic and the resultant lockdowns, constituted a ‘Committee of Experts on Impact of Covid-19 Pandemic on Human Rights and Future Response’.

The Committee, included representatives from the civil society organizations, independent domain experts, and the representatives from the concerned ministries/ departments, and was tasked to assess the impact of the pandemic on realization of the rights of the people, especially the marginalised / vulnerable sections of the population which have been disproportionately impacted.

After due consideration of the impact assessment and recommendations made by the Committee of Experts, the Commission has now issued the ‘Human Rights Advisory for Protection of the Rights of LGBTQI+ community in the context of COVID-19 pandemic’, available on https://nhrc.nic.in/sites/default/files/Advisory_for_the_Protection_of_the_Rights_of_LGBTQI%2B_Community_0.pdf

The Commission has also requested to concerned Union Ministry and all States/UTs for implementation of the recommendations contained in the advisory and compliance the action taken report to the Commission.


NHRC 

Press Release dt. 19-10-2020

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Moushumi Bhattacharya, JJ., while addressing the issues raised in the present petition observed that,

“From bringing to life the act-of-God clause that was mostly regarded as a redundant appendage in contracts to redefining the rules of human engagement, the pandemic has almost been all-pervasive.”

The present lis is born in its wake: upon a unique situation arising where students have been kept away from academic institutions for months together, prompting their parents or guardians to question why regular fees ought to be paid in such a scenario.

PRIVATE UNAIDED SCHOOLS | Concession in Fees

The point of public interest canvassed in the petitions is that private unaided schools should allow the substantial concession in fees as the physical conduct of classes has not been possible for more than 6 months and normal functioning may not resume in a full-fledged manner for several months more.

Profiteering by Schools

The parents or guardians complain of profiteering by the schools by unjustly enriching themselves even as several of the schools have terminated the services of several of the usual employees or have not paid the teachers in full and not incurred the normal expenses needed to physically operate such schools.

School’s Contention 

Almost all the schools represented contended that they have not removed any regular employee from the payrolls, and some even claim that the contractual staff have also been retained and paid during the lockdown.

Institutions controlled by the Church

The institutions controlled by the Church of North India and another which claims to be a linguistic minority educational institution, have objected to the Court seeking to interfere into their affairs.

They suggest that not only do they enjoy a special status accorded by Article 30(1) of the Constitution but they are also protected under Article 19 of the suprema lex.

No drastic measure

By and large, the schools indicate that they have not taken the ultimate drastic measure of excluding students from the limited online classes now conducted, though no fees may have been tendered on behalf of several students for the period beginning April, 2020.

The general refrain is that schools do not look at making any profit and, to the extent, their financial positions may allow, they are ready to accord concessions to parents or guardians of students in financial distress, but a general reduction of fees across the board should not be permitted.

Analysis and Decision

“…courts must exercise extreme self-restraint and not use the extensive amplitude as a springboard for judicial anarchy.”

In a breakdown scenario as a result of any natural calamity or an act of God or when the subordinate judiciary is not available or a litigant has no access to any other court in an extreme case, the High Court must not forget the width of the authority available to it and its constitutional obligation to discharge its duties governed by the overarching established principles designed by what may be loosely said to be the rule of law.

Two other broadheads of objection have been taken by some of the schools as noticed above: under Article 30(1) of the Constitution and under Article 19 thereof read with the right of privacy as espoused.

Court while analysing the set of contentions with regard t minority institutions stated that,

“…even minority educational institutions need to adhere to certain fundamental norms, the most basic of them being that they cannot be run for the purpose of making profit”.

Bench added that the basic requirement is that the fees charged must have some correlation with the facilities provided.

If the facilities provided over a long stretch of time, as for the best part of a year and probably more, cost less because physical classes have not been held, a substantial part of the money saved has to be returned without, for the moment, going to the question as to whether it should be returned pro rata or on a need-based basis.

Assessment of fees

Hence, Court stated that an assessment of the fees demanded or obtained during the lockdown period and in the absence of physical classes in the schools, may not amount to the breach of any right conferred by Article 30(1) of the Constitution in respect of a school run by a religious or a linguistic minority.

The same rule as above should apply to all private unaided schools since they are governed by private contracts between private individuals.

Bench in view of the unprecedented situation and as a one time measure issued the following directions:

  • No increase in fees during FY 2020-2021.
  • From the month beginning April, 2020 till the month following the one in which the schools reopen in the physical mode will offer a minimum of 20% reduction of fees across the board. Non-essential charges for use of facilities not availed of will not be permissible.
  • Session fees traditionally charged periodically will be permissible, but again, subject to a maximum of 80 per cent of the quantum charged for the corresponding period in the financial year 2019-20.
  • The minimum figure of 20 per cent reduction in the monthly tuition fees will be on the basis of the tuition fees charged for the corresponding month in the previous financial year.
  • For F.Y. 2020-21, a maximum of 5% excess of revenue over expenditure will be permissible. The balance excess should be passed on by way of general concession or special concession in cases of extreme distress.
  • No amount towards the arrears on account of revision of pay to teachers or other employees can be passed on in the fees for the financial year 2020-21. The amount on account of arrears may be recovered in 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.
  • There will be no increase in salaries of teachers or of other employees during the financial year 2020-21. In case any school has given effect to a higher pay scale, the difference must not be realised out of the school fees.
  • Parents and guardians of students are requested not to avail of the reduction in schools fees, if their financial situation does not merit the reduction.
  • In addition to the across-the-board reduction, every school will entertain applications from parents or guardians for further reduction or waiver or exemption or delayed or installment payments, as the case may be. Said applications must be supported with financial statements.
  • Such applications have to be filed before the respective schools by November 15, 2020, and every application should be dealt with on an individual basis and a decision communicated to the applicant by December 31, 2020.
  • When an application for further reduction or waiver or exemption or delayed payment of fees has been disposed of by the relevant school but the parents or guardians are aggrieved by the decision, an application may be filed, upon deposit of Rs 1000, to a committee for further adjudication of the request and to assess the decision communicated by the relevant school. Such application has to be filed within 10 days of the rejection.
  • The committee referred to in the immediate preceding clause will be headed by Mr Tilok Bose, Senior Advocate as its chairperson and will be assisted by the Headmistress or Principal of Heritage School and Ms Priyanka Agarwal, Advocate for the parents in WPA 5890 of 2020.
  • The deposit obtained by the committee will be retained by the committee and Rs 800 therefrom disbursed to the auditor or firm of chartered accountants for the first time the accounts of a particular school need to be assessed by the auditor or firm of chartered accountants. For every repeat exercise, meaning studying the accounts of the same school from the second time onwards, Rs 500 per case will be paid to the auditors. The balance amount in the hands of the committee will be used for the purpose of secretarial and managerial services the committee may be required to obtain.
  • By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed.
  • By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed.
  • Every application made before the committee must clearly indicate the name and other particulars of the student involved and furnish the e-mail ID of the school and its Principal or the like for the committee to communicate with the school.
  • The committee must endeavour to dispose of every application within 45 days of the receipt thereof and the decision of the committee will be binding, subject to the relevant schools having a right to apply to this court in the present proceedings for the reconsideration thereof.
  • The quantum of fees to be charged for every month will be indicated by the individual schools on any website and the notice-boards of the schools and informed to Advocate for the petitioner in WPA 5890 of 2020.
  • By November 30, 2020, the fees payable in terms of this order for the period up to November 30, 2020, should be tendered on behalf of all students.
  • With effect from December 8, 2020 all schools will be entitled to disallow students whose fees have not been paid in full in terms of this order and those who have not applied for reduction or waiver or the like. However, schools should ensure that this extreme step is taken only after exercising due care and caution.
  • No student will be entitled to apply for a transfer certificate without the full quantum of fees in terms of this order being first discharged.
  • Fees payable by students to boards for examinations or otherwise shall have to be paid in addition to the monthly fees and other charges in terms of this order and no waiver or reduction of the fees or charges payable to the boards may be sought or granted.
  • There will be no refund of the fees already paid.
  • The expenses incurred for developing the infrastructure of the schools should not be passed on to the students during the current financial year, though it will be open to recover the same from the students from financial year 2021-22 onwards, if the physical functioning resumes by March 31, 2021.
  • The cap of five per cent of the revenue over expenditure for the year 2020-21 will be subject to the exception that it may exceed the five per cent only if the general reduction afforded to the parents is not availed of by any of the parents and no student in financial distress has been denied additional concession despite being worthy.
  • No unusual expense should be incurred during financial year 2020-21 and no development or infrastructure expense should be incurred unless absolutely unavoidable.
  • Above directions for any form of concession will not apply to any of the 145 schools where the average monthly fee (calculated on an annual basis over the year from April, 2020 to March, 2021) is less than Rs 800. However, such schools may voluntarily take such measures as deemed fit.
  • The other private unaided schools in the State should also abide by the directions mutatis mutandis, particularly since the matter has been heard extensively and as public interest litigation.

Court made it clear that the present order may not be used as a precedent for the regulation of fees in the schools in future.

The instant petitions will appear next on 07-12-2020 to monitor the progress in the implementation of directions issued.

Moushumi Bhattacharya, J. supported the reasons laid down by Sanjib Banerjee, J., leading to the conclusions.

Bhattacharya, J.,  proposed to supplement three issues: Articles 226, 30(1) and 14 of the Constitution of India together with the right to privacy in the foreground of the arguments made.

The endeavour of the Court is that students must not be caught in the crossfire between their parents and the school authorities.

Under Article 226, the power of the High Courts is

“……..to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of…….”

The order in which the words have been positioned indicate that the writ courts not only have the power to issue the five writs but also to issue orders and directions having the force and effect of the five writs, separately or together, for enforcing the rights guaranteed under Part III of the Constitution. The wide berth contemplated was recognised in Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81 as an enabler for tailoring the reliefs to fit the shape and peculiarities of the case and stretching the parameters of the power “to reach injustice wherever it is found”.

But does that mean that a court’s authority to issue writs under Article 226 is unfettered?

The court draws its own boundaries within which it decides the lis on a number of factors; including but not limited to whether there is an efficacious remedy or alternative forum which the petitioner should have first exhausted, whether the right can be reasonably restricted, where there is stark absence of a public law element in the discharge of duties of the concerned entity or even where the conduct of the petitioner does not call for the court’s intervention on the facts of the case.

The privacy argument of the CNI and the linguistic minority schools is another aspect which should be briefly dwelt on. K.S. Puttaswamy (Privacy-9 J.) v. Union of India (2017) 10 SCC 1 has been placed to elevate the right to privacy as a ‘travelling right’.

It is a right aimed at preserving the spatial and intellectual integrity of an individual in matters of choice and acts as a springboard for the connected freedoms which are guaranteed under the Constitution.

As noticed in several decisions impacting minority institutions, Article 30(1) was contemplated by the framers to serve as a shield and not as a sword. After all, can these schools bypass the statutory requirement of filing their periodic audited financial numbers to the concerned authorities?

Schools cannot be simplistically categorised according to the financial profile of the guardians and whether as such they need a fee-reduction for their wards.

“…a benefit, like a right, cannot be denied to a greater number merely on the ground that it may be misused by a few.”

Adding to the above, Bench also stated that the teachers who need the schools to remain financially solvent for their job-security may also be parents mired in debts/loss of service who would benefit from a fee-reduction. The mechanism proposed had to as inclusive as possible representing the concerns of guardians across the board, irrespective of privilege and financial bracket.

“We have designed a 2-tier mechanism not only to provide guardians with a window for further concessions but also to make the process as free of coercion/ compulsion and as much transparent as is practicably possible under the circumstances.”

[Biplab Kumar Chowdhury v. Union of India, WPA 5530 of 2020, decided on 13-08-2020]


Counsels

For the State: Kishore Datta, A-G, Senior Advocate & Sayan Sinha, Advocate

For Union of India: Y.J. Dastoor, ASG, Senior Advocate & Siddhartha Lahiri, Advocate.

For the petitioner
In WPA 5890 of 2020: Advocates, Sai Deepak, Rishav Kumar Singh, Anurag Mitra, Priyanka Agarwal and Avinash Kumar Sharma.

For the petitioner (in person) In WPA 5378 of 2020: Advocate Partyush Patwari

Case BriefsCOVID 19High Courts

Orissa High Court: K.R. Mohapatra J., ordered in favour of the aggrieved student in light of prevailing extraordinary situation due to COVID-19.

The facts of the case are such that petitioner 2 son of petitioner 1 was admitted as student in Class 11 in the respondent school and was unfortunately taken into custody in February 2020 and released on bail in March 2020. While in custody annual exam was conducted and petitioner student couldn’t appear. In the last week of March nationwide lockdown was announced and the petitioner student could not submit his representation by 17-06-2020 in view of the extraordinary situation. Later his representation was rejected by the school due to delay. Odisha Human Rights Commission ordered the school to consider the case of the student but to no relief. Later this court vide order dated 17-07-2020 directed the school to provide the student with ID and password for online classes for Class XII (Commerce). Though the ID password was provided to the student but did not allow him to appear for the 1st-semester examination, him not having passed class XIth. Aggrieved by the same and as the half-yearly exams are approaching the present petition is filed for promotion of the petitioner student from Class-XI to Class-XII who is prosecuting his studies (Commerce Stream) in Delhi Public School, Kalinga, Adhalia, Cuttack i.e. the respondent school.

Counsel for the petitioners D.P Nanda, V. Narasingh, S. Das, S. Devi and B.B. Choudhury placed before the court press release and notification by CBSE dated 01-04-2020 and 13-05-2020 respectively

CBSE Press Release dated 01-04-2020:

 “2. For classes 9 and 11: It has come to our notice that though several schools affiliated to CBSE have completed their examination, evaluation and promotion process for students who were studying in grades 9 and 11 in the 2019-20 academic session, there are several schools that have not been able to do so. This includes among others, Kendriaya Vidyalayas, Navodaya Vidyalayas, State/UT Government schools, private schools, schools located in India and abroad, etc. All such schools are advised to promote students of grades 9 and 11 to the next grades on the basis of all the school-based assessments including project work, periodic tests, term exams. etc. conducted so far. For any child who is unable to clear this internal process, (in any number of subjects), the school may utilize this period for providing remedial interventions, and school may give the opportunity of appearing in school-based test/s, online or offline. The promotion of such children may be decided on the basis of such tests.”

CBSE Notification dated 13-05-2020:

The whole country is facing a challenging time due to Covid-19. This is an unprecedented situation. Children are confined at home. Their schools are closed. They are experiencing mental stress and anxiety. Parents are worried about salaries, health of family etc. In this difficult time, children who have not been able to clear school examinations will be even more upset. The queries of such students are constantly being received by CBSE Queries from parents are also being received continuously. At such a difficult time, all of us will have to make joint efforts to relieve students from stress and to help them to mitigate their anxiety. CBSE, in view of the requests of the parents and students, as a one-time measure in extraordinary situation has decided that all the failed students of 9th and 11th will be provided an opportunity to appear in a school-based test again. Opportunity will be extended to students irrespective of whether their examinations have been completed and the exam results have been released or their exams have not been completed. This facility is to be extended irrespective of number of subjects and attempts. Schools by providing remediation to such students can conduct online/offline/innovative tests and may decide promotion on the basis of this test. This test can be taken in all subjects in which students have failed. Before holding the test, the schools will give sufficient time to the students to prepare. Therefore, all schools affiliated to CBSE will provide an opportunity to all the failed students of classes 9th and 11th for all subjects where students have failed. It is once again reiterated that this exemption is to be extended to all the students even if they have been given the opportunity earlier to this notification also. This one-time opportunity is being extended only in current year in view of the unprecedented conditions of Covid-19. This benefit is a onetime measure and will not be extended in future.”

Sd-Dr. Sanyam Bhardwaj,

Controller of Examinations”

 Counsel representing respondent school A P Bose submitted that due to the callous attitude and negligence, the petitioner student has lost his opportunity to appear in the re-test Annual Examination of Class-XI. Counsel for CBSE, T.N. Pattnaik submitted that clarification was asked from the school regarding whether the student was given a chance to appear or not, no reply of which has been received by the CBSE. Hence CBSE prayed for no role in the said matter.

The Court in view of the documents placed and arguments made, observed that the educational institutions must take all possible measures to build up the career of the students. They should not stand as a stumbling block, particularly when the academic career of a student is at stake.

The Court held that the tenor and purport of the CBSE notification dated 13-05-2020 makes it clear that the notification was issued so that all the failed students of 9th and 11th are provided an opportunity to appear in a school-based test again irrespective of whether their examinations have been completed and the examination results have been released or their examinations have not been completed. In view of the above, the Court directed the school authorities to conduct a special examination for the petitioner student to appear in the class promotion and shall also be allowed to appear in the Test/Half Yearly Examination of Class-XII (Commerce Stream) which is scheduled to commence from 12.10.2020.

In view of the above, the petition stands disposed off.[Shamshad Begum v. UOI, 2020 SCC OnLine Ori 699, decided on 09-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Patna High Court: A Division bench of Sanjay Karol, CJ and S. Kumar, J., addressed two crucial issues revolving around the COVID-19 Pandemic.

Issues raised for consideration:

  • Whether guidelines of the NITI Aayog to the Chief Secretaries of the State governments are in nature of advisory communication or did it make it mandatory on the State government to engage CSOs/NGOs/voluntary organizations into the realm of relief operations?
  • Whether the civil society organizations have a right to be involved in relief operations during the times of crisis and disaster management, for ensuring the reach of relief to each needy person, especially in light of the Covid-19 response strategies issued by the international organizations, including the WHO and endorsed by the United Nations?

Advocate Parul Prasad by way of Public Interest Litigation brought to the Court’s notice the following issue:

“rights of Civil Society Organizations (CSOs) and Non-Government Organizations (NGOs) to aid and supplement the efforts of the State in providing relief to the needy during the pandemic.”

Petitioner submitted that due to the sheer size and population of the State of Bihar and continued government efforts, they were unable to reach each and every person in need.

Adding to the above, petitioner stated that in the interest of the rights of persons in need that a large number of voluntary organizations, CSOs and NGOs who were genuinely interested in helping out and were in an excellent position to assist the State Government, be engaged in the relief operations.

Petitioner prayed for the following reliefs:

  • Direction to the State of Bihar to follow directions and guidelines of the NITI Aayog for allowing representatives of the CSOs and NGOs to aid and supplement the efforts of the State in extending help for the needy during the pandemic.
  • Directions to permit the representatives of CSOs and NGOs to accompany State officials to ensure transparency in the distribution of relief materials provided by the CSOs.
  • Directions for the appointment of Nodal Officers at State and District levels to coordinate and regulate the work with CSOs & NGOs.
  • Directions to the State to ensure that arrangement of food and essential articles are made for Orphanages, Old Age Homes and Shelter Homes for the disabled, at the earliest.

NITI Aayog’s Directions: Advisory in nature

Chief Secretary of Bihar maintained that any direction by the NITI Aayog on the involvement of and taking help from CSOs were entirely advisory in nature and were only meant as a suggestion to supplement the State effort.

An explainer of Court’s opinion

  • Letter of NITI Aayog for involving CSOs and NGOs and whether it was binding on the State?

NITI Aayog acts as the quintessential platform of the Government of India to bring States to act together in the national interest, and thereby fosters Cooperative Federalism.

Role of NITI Aayog

Role of NITI Aayog is that of think tank limited to giving directions and policy inputs which means that such directions/recommendations can be acceptable to the Central Government or State Government or may not be acceptable to the Central Government or State Government.

Ground Realities of the State

Bench stated that it is inclined to accept the State’s view that has repeatedly asserted that communication or guidelines issued by NITI Aayog are purely advisory in nature and leave in the open to the State to adapt their own policies keeping in view the ground realities of the State.

Nature of NITI Aayog’s letters: Advisory 

Further, the Supreme Court’s decision in Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154 was cited, wherein the Court held that the guidelines by their very nature did not fall into the category of legislation, direct, subordinate or ancillary and therefore were advisory in nature.

The above position was also followed by the Supreme Court in its recent decision of Praneeth K v. UGC, 2020 SCC OnLine SC 592, where the communication at issue was a letter of UGC directing universities to compulsorily conduct final examinations by a fixed date. The advisory nature of the guidelines issued by the UGC was vehemently argued before the Court. However, stating that guidelines/directions become binding when issued in exercise of statutory powers vested in the authority, it was held that the universities were mandated to adopt the guidelines.

In the instant matter, there was nothing in NITI Aayog’s letter that would show that it comes in the exercise of a statutory authority vested in the NITI Aayog.

“…it is the stand of the NITI Aayog itself that the letter to the state government was advisory in nature and not binding on the state government.”

Hence, Bench agreed with the State that they are free to formulate their own policy with respect to the engagement of CSOs and NGOs.

  • Whether the CSOs and NGOs have an enforceable right against the State to be engaged in relief operations.

Every person has a right to receive effective help, which ensures to them a right to life and livelihood guaranteed under Article 21 of the Constitution.

In times of disaster, civil society has always stepped in to provide relief and assistance and has always worked towards ensuring the socio-economic rights of the most vulnerable.

Therefore, it is a matter of significance that a continued relationship of mutual trust exists between the State and these organizations in providing help to the needy.

The role of the civil Society in helping vulnerable groups and persons in need cannot be undermined.

Supreme Court in its decision of Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381 acknowledged the above stand.

Further, the guidelines of the WHO in its Covid-19 preparedness strategies, direct all countries to establish national strategies and implement National Action Plans, and one of the core pillars of the plans highlights the need for coordination and planning efforts, which included interventions by NGOs and CSOs.

Good Governance and Salus Populi (Est) Suprema Lex

Good governance directly flows from this concept of governance and consists of ensuring the rule of law, effectiveness and accountability in governance processes.

In the Supreme Court’s decision of Manoj Narula v. Union of India, (2014) 9 SCC 1, the maxim, Salus Populi (est) suprema lex was invoked to stress that in a democracy, it was the public interest that is at the heart of good governance.

In a plethora of cases, the Apex Court has recognized the role of civil society in ensuring good governance in the country. Over the years the Court has directed the State to engage the civil society organizations in their efforts to ensure the utmost welfare of numerous vulnerable groups.

Bench reiterated the Supreme Court’s sentiment in Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381, where the Court was pleased to point out that in many situations, the NGOs had a better position to reach out to the needy than the State itself and therefore the sate ought to leverage such services of the Civil Society.

Role of the Civil Society in a democracy cannot be understated to address the miseries brought about by the pandemic, but however, a coordinated effort of all functionaries is paramount.

Decision

For the State’s consideration, the High Court laid down the following directions for enforcement to the extent possible:

  • Actively interact and coordinate with NITI Ayog ensuring implementation of principles of good governance.
  • Allow CSOs and NGOs to conduct relief operations. Civil Society forms the fourth institution of democracy.
  •  Integrate the participation of CSOs and NGOs as part of the policy framework formulated by the State.
  • Strive to form policies that allow CSOs and NGOs to work in direct partnership with the State, especially socioeconomic welfare policies, such as those directed towards child education and nutrition, juvenile justice, women’s rights, transgender rights, etc.
  • Accountability of all institutions essential. Formulate SOPs, guidelines and codes of conduct to be adopted by the State as well as CSOs and NGOs in their performance of welfare and relief operations.
  • Leverage the information and knowledge-bases of CSOs and NGOs.
  • Create publicly accessible repositories of recognized CSOs and NGOs, maybe even organized in terms of their area of efforts and involve them in relevant projects.
  • Conduct regular consultations at every stage of relief work, with relevant CSOs and NGOs working at the ground level and are versed with the needs of the people.
  • Create a website/other online platforms for interaction with non-state actors, and as a forum for data and information sharing with the various stakeholders.
  • Have a regular dialogue, collaboration and coordination with CSOs and NGOs at all stages- of policy/ scheme formation, implementation and monitoring results.

While parting with its decision, Court stated that it hopes and expects that the State itself makes optimum use of all the aid and assistance being extended by all the organizations and by engaging them to ensure that relief reaches the maximum number of persons, including the farthest corners of Bihar.

In view of the above, the petition was disposed of. [Parul Prasad v. State of Bihar, Civil Writ Jurisdiction Case No. 5609 of 2020, decided on 09-09-2020]