Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Bibek Chaudhari and Soumen Sen, JJ., addressed an matter wherein a reporter published a story on witnessing the police personnel bribing a truck driver and further driving negligent get hold of the truck resulting in death of a person.

Petitioner a reporter of ETV Bharat made a news report stating, inter alia that some police personnel were collecting bribe from a truck loaded with sand and while chasing the truck, the vehicle owned by police department was being driven in rash and negligent manner.

Result of the rash and negligent driving caused the death of a person.

Above was the prima facie reason of lodging a complaint against the petitioner.

Bench on perusal of the materials on record stated that, it is a fundamental right of a press reporter to publish any news, which may not be palatable to the administration.

In order to stifle and muzzle the voice of the reporter this case has been registered against the petitioner.

Court also noted the fact that the police have taken cognizance of the report which prima facie discloses the offences committed by its own personnel.

Hence, in view of the above, Police Superintendent of the District concerned has been directed to initiate enquiry regarding registration of the FIR against the ETV reporter and to investigate about the collection of money by the police personnel, the incident of which has been published by the reporter and to take appropriate action against the offenders.

Therefore, petitioner shall be release on bail. [Avishek Dutta Roy, In Re., CRM No. 4952 of 2020, decided on 30-07-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and Sarang V. Kotwal, J., has advised the Maharashtra Government to take an informed decision regarding the concerns voiced by advocates and their staff. The Court was hearing PILs which sought inclusion of advocates and legal practitioners in the list of essential service providers.

In the present petition, a legal practitioner sought exemption of lawyers and their staff from the restrictions of the lockdown for the purpose of Court work as well as for an order on the respondents to consider the advocates and legal service providers as belonging to the category of “essential services”.

Coordinate Bench Decision

Coordinate Bench on hearing petitioner’s concern, stated that inclusion of a particular category of persons within “essential services” is within the exclusive domain of the State Legislature and that no mandatory direction, much less any direction, can be issued to the State Legislature to categorize advocates and their staff as providing “essential services” and hence had rejected the same. However, liberty was granted to file representation before the State Government. Pursuant to the order, representation was filed before the State but no decision has been taken.

Concerns

Advocates and their staff are not presently being allowed to avail train services. Diasbled thereby, a major section of the advocates have been precluded from participating in whatever physical hearings that are being conducted and in assisting the Courts.

Hence, the bench asked the State to apply its mind and take an informed decision with regard to the concerns voiced by the advocates as well as their staff.

State must not be ignorant that access to justice is now recognised as a Fundamental Right and advocates and their staff constitute an integral part of the entire system, which is dedicated to “delivery of justice”.

Court asked the matter to be placed on 7-08-2020. [Chirag Chanani v. UOI, 2020 SCC OnLine Bom 832 , decided on 31-07-2020]

Case BriefsCOVID 19High Courts

Gujarat High Court: Taking suo motu cognizance of the way private hospitals in the State of Gujarat are indulging in blatant profiteering in the time of Covid-19, the Division Bench of J.B. Pardiwala and Ilesh J. Vora, JJ., gave important directions to the State Government in relation to regulation of private hospitals; proper arrangement of sending the migrants to their homes and overall management of every aspect of governance to deal with one of the greatest humanitarian crisis the world has seen. The Court also expressed its deep respect for all the frontline ‘corona warriors’ for showing exemplary dedication towards public welfare.

Prior to issuing directions, the Bench, at length discussed the reports provided by various Government Departments highlighting the steps they have taken to alleviate the sufferings of the public. The Court further noted that how the print media highlighted the fact that Gujarat has been one worst hit with the coronavirus and how frontline ‘corona warriors’ like the doctors are not being provided with enough PPEs to protect themselves from being infected. The Bench observed that the public healthcare system is completely overwhelmed with the situation. The Court also took notice of the fact that how several private hospitals are using this situation to charge exorbitant amount of money from people to conduct tests and treatments. The Court also lamented upon the situation prevalent in Civil Hospital at Ahmadabad where the situation is such that it has ‘contributed the most in increasing the number of Covid-19 deaths in the State.’ Finally the Court also took notice of the news published in The Times of India, wherein they had pointed out how the revenue department has been issuing threats to boycott the work related to the migrants as “it is not a task meant for the employees of the revenue department”.   

Perusing various Supreme Court decisions; relevant statutory provisions, Fundamental Rights and Directive Principles of the State Policy as enshrined in the Constitution, The Court issued the following relevant directions-

  • Expressing its exasperation upon seeing that how multi speciality hospitals in the State are seeking to profit off people’s perils, and pointing out that health is a recognised Fundamental Right in the Constitution, the State is obliged to protect it. Therefore the Government was directed to initiate legal proceedings against all those private / corporate hospitals that are not ready and willing to honour the understanding arrived at with regard to treating the COVID19 patients. Directions were given to the State Government to initiate talks with certain excluded multi-speciality hospitals and enter into a MoU with them. The Court further pointed out that in times like these; the private hospitals have both moral and legal obligations.
  • The State Government was directed to issue a Notification making it mandatory for all the multi-speciality private / corporate hospitals in the city of Ahmedabad and on the outskirts to reserve 50% of their beds (or such other capacity, as the State Government may deem fit and proper on the basis of the increase in the number of cases). Furthermore the State Government should explore the possibility of extending Ayushman Bharat project to the private hospitals as well.
  • Regarding the situation persisting at the Civil Hospital in Ahmadabad, the Court directed the Government to transfer the doctors not working properly in the hospital to other districts; improve working conditions of the resident doctors; ascertain accountability of senior officers who have failed to improve the health care provided by the hospital; increase the number of hospital beds and ventilators etc.
  • The Court directed the Gujarat Government to adopt the policy of State of Maharashtra, to ask the general physicians to run their own clinics or serve in the Government COVID hospitals. It was further directed that the Government must ensure the procurement of testing kits thereby enabling the private players to carry out Covid testing at Government prescribed rates.
  • The Railway authorities were directed to waive of one way charges of migrant labourers or in the alternative, for the State Government to bear such charges.
  • Finally taking a stern notice of the actions of the revenue department in issuing threats to boycott the tasks related to the migrants, the Court directed to State Government to take strict actions to resolve the issue.

Giving out concluding remarks, the Court drew an analogy between the Covid- 19 crisis and the time when Titanic sank. Pointing out that how only 1 ship ‘The Carpathia’ which was farthest away from the sinking ship was the one and only to respond to the distress call sent out by the Titanic. Commenting that in an unprecedented crisis such Covid-19, all the organs of the State; the private players; the NGOs all must try to emulate the spirit of The Carpathia and try to work together to alleviate the sufferings of the people, especially the poor. [Suo Motu v. State of Gujarat, Writ Petition (PIL) No. 42/2020, decided on 22-05-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection with the offences punishable under Sections 363, 366-A and 376(2)(N) of the Penal Code, 1860 and Section 5(L)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 

An FIR by the father of the victim mentioned that the applicant/accused had kidnapped her daughter. The Counsel for the applicant, Vikas Anand submitted that the applicant was an innocent person; he had no criminal history and during the trial, the prosecution’s case had not been supported by the victim herself and father of the victim.

The Court while allowing the bail relied on the decision of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 which stated that the personal liberty is very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case. [Ajay Sarkar v. State of Uttarakhand, First Bail Application No. 2276 of 2019, decided on 04-03-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a writ petition filed by the petitioners claiming that the Additional Director General of Police was unlawfully encroaching upon their land. 

The petitioners had claimed that they had approached the relevant authorities, but no action was taken by them. They subsequently filed a writ petition praying the Court to declare the construction over the land in dispute by the respondent as illegal, unauthorized, and encroachment. They prayed for dismantling the unauthorized construction of the hotel building and to remove the restriction/hindrance caused in the way of the petitioners in approaching the property.

The Counsel for the petitioners, Balwant Singh Kushwah, argued that the right to hold the property was a fundamental right and, therefore, the petition was maintainable. It is also submitted that the respondent had also encroached upon some other plots and accordingly, the husband of the petitioner had also filed a civil suit for declaration of title and permanent injunctions. By an order dated 30-06-2014 passed in a Civil Suit, the respondent was restrained from interfering with the possession, however, the respondent had dispossessed the husband of the petitioner, therefore the suit would not be an efficacious remedy. It was further submitted that the husband of the petitioner had not filed an application under Order 39 Rule 2-A CPC. Furthermore, there was no averment in the petition that the order stated above had attained finality.

The Court, however, held that it was incorrect to state that, “right to hold a property is a fundamental right”. They explained that the petition was filed primarily against the respondent in his individual personal capacity and not against any act done by him in the capacity of Additional Director General of Police. It is a well-established principle of law that the writ petition against a private individual is not maintainable. If the petitioner was of the view that the respondent was illegally trying to encroach upon the land or had illegally taken possession of the said land, then they always have an efficacious remedy of filing a Civil Suit. The Court was of the opinion that the petition was not maintainable and dismissed it. [Laxmi Devi v. State of M.P., 2019 SCC OnLine MP 3629, decided on 25-11-2019]

Case BriefsHigh Courts

Allahabad High Court: Surya Prakash Kesarwani, J. dismissed the present “PIL” while imposing an exemplary cost on the petitioner for abusing the process of the court.

The petitioner filed this PIL for removal of encroachment and illegal possession of respondents from particular plots in the District Ballia which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.

By the order of the Sub-Divisional Magistrate, some plots were recorded as banjar and some as ‘khalihan’, ‘khad ka gaddha’ and ‘khel ka maidan’ after they were exchanged. These newly recorded banjar lands were allotted for residential purposes to nineteen persons. After allotment of land for residential purposes, the respondents constructed their houses (huts and tin shed) and they still reside. These people have no other place of shelter except these houses.

Counsel for the petitioner, Jitendra Shanker Pandey submitted that no bhoomidhari rights shall be created on the land allotted and it is also set apart for public purposes. The aforesaid land falls under Section 132 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

The Standing Counsel stated that present PIL is not only wholly devoid of substance but it is also abuse of process of Court. The petitioner has completely failed to disclose his credential to invoke the PIL.

The Court after considering the submissions of both the parties framed some questions for determination:-

  1. Whether removal of shelter of respondents would amount to infringement of their fundamental rights guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India?
  2. Whether as a consequence of cancellation of lease should the State-respondents provide alternate accommodation/shelter?
  3. Whether any relief is granted in the present PIL?

The Court observed that the landless agricultural labourers were residing before 1994. Therefore, the disputed lands which were part of some public utility land were exchanged by order of the Sub-Divisional Officer which was passed after due inquiry and spot inspection by the revenue authorities. The lease was also granted by a competent authority.

For the purpose of strengthening the arguments, some cases were relied upon – U.P. Avas Evam Vikas Parishad v. Friends Cooperative Housing Society Ltd., 1995 Supp (3) SCC 456, para 8; State of Karnataka v. Narasimhamurthy, (1995) 5 SCC 524, Chameli Singh v. State of U.P., (1996) 2 SCC 549, and Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, (1997) 11 SCC 121. In all these cases, the Supreme Court held that right to shelter is a fundamental right, guaranteed under Articles 19 and 21 of the Constitution of India.

After observing the facts and circumstances of the case and the submissions of the parties, the Court held that – “Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India”.

The court observed that the weaker section of the society like the poor and landless agricultural labourers have the right to basic human and constitutional rights to residence. Thus, it becomes the duty of the State to fulfill those. But gives no person the right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility.

The Court after contemplating on the point that the petitioner had not shown his credential and is clearly visible that is his interest and his son’s alone in the filing of this petition. This indicates abuse of process of Court by the petitioner in filing the present PIL and suppression of material facts. Therefore, the exemplary cost is necessary to be imposed upon the petitioner as the view taken in the case of Punjab State Power Corpn. Ltd. v. Atma Singh Grewal, (2014) 13 SCC 666 and Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, (2017) 5 SCC 496.

As the questions for determination were interlinked, the conclusion which comes out is that Right to Shelter is a fundamental right and the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondents. If the State authorities find it indispensable to remove the respondents they shall provide suitable accommodation to them.[Rajesh Yadav v. State of UP, 2019 SCC OnLine All 2555, decided on 01-07-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of CJ Hrishikesh Roy and A.K. Jayashankaran Nambiar, J. opined that the students could not be compelled to continue in a college which according to their perception was detrimental to their career and laid that there was no reason to interfere with the judgment of the single Judge whereby students were allowed the inter-college transfer.

Respondent student sought inter-collegiate transfer from the Cochin Institute of Science and Technology to another self-financing college under the same university since the amenities and infrastructure in his college were inadequate. But the college principal did not accord permission for the inter-college transfer. Thus, the respondent herein had filed a petition before this Court and a Single Judge Bench[1] allowed the same holding that college could not arbitrarily reject issuance of NOC to students desirous of taking admission into another college/ institute. Aggrieved by the said decision, the appellant-college preferred the instant appeal.

The counsel for the appellant, Anoop V. Nair and M.S. Sandeep Sudhakaran contended that if such inter-college transfer was permitted, the functioning of the appellant college would itself be put to jeopardy as it might possibly adversely impact those opting to continue in the Cochin Institute of Science and Technology.

The Court relied on the judgment of Supreme Court in the case of K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, in which it was held that the right of a person to individual autonomy was matter of personal choice and preferences were integral to his dignity and thereby it was his fundamental right under Article 21 of the Constitution of India. It remarked that “freedom to choose the college of his/her choice for pursuit of their studies is according to us, an aspect of the Fundamental Right to privacy, guaranteed under Article 21 of the Constitution.”

The Court held that the appellants had not been able to show any condition either statutory or contractual which obliged a student admitted to their college to necessarily continue their course of study in the same institution and therefore when a student felt that he could secure better education in another college and there was no legal bar in exercise of such option, appellants could not compel the students to continue their curriculum from the same college. Hence, the Court dismissed the appeals for being devoid of merit.[Cochin Institute of Science and Technology v. Jisin Jijo, 2019 SCC OnLine Ker 1800, decided on 04-06-2019]

[1] https://blog.scconline.com/post/2019/06/12/ker-hc-college-cannot-arbitrarily-reject-issuance-of-noc-to-students-desirous-of-taking-admission-into-another-college-institute/

Case BriefsHigh Courts

Rajasthan High Court: Sanjeev Prakash Sharma, J. dismissed a petition filed by a man who assailed the lower court’s order rejecting an application for conducting a DNA test of his wife’s son, holding that the petition was devoid of merits.

Petitioner herein had filed an application before the learned Civil Judge praying for conducting a DNA test of a son born to his wife on the ground that his wife (respondent herein) was pregnant prior to getting married and therefore, the child born was not his child. He pleaded that the sonography examination of his wife during pregnancy reported that she was pregnant for 35 weeks and 06 days. His application was rejected holding that as the petitioner was living as the husband with the respondent during the period of pregnancy, and their marriage was still subsisting, the child borne from her would be presumed to be the petitioner’s son in terms of Section 112 of the Evidence Act, 1872. Aggrieved by the said order, instant petition was filed.

Petitioner’s counsel, Rajneesh Gupta, relied on the judgment passed by Coordinate Bench of the Rajasthan High Court, in Dalip Singh v. Ramesh, 2017 SCC OnLine Raj 2720, whereby it was held, “If the factum or presumption of paternity is disputed by someone, more particularly by the alleged father, it is difficult nay impossible for the party alleging such paternity to prove it without any scientific investigation.” The respondent contended that the application contained false averments. She asserted that the pregnancy and birth of her son were on account of marriage and relationship with the petitioner. There was no report from the hospital where she had been undertaking her treatment and the said report obtained was fictitious.

The Court relied on the judgments in Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554, and Goutam Kundu v. State of W.B, (1993) 3 SCC 418, and concluded that the reasoning adopted by the trial court for rejecting the application was incorrect. Merely because of presumption to be drawn under Section 112 of the Evidence Act, an application for seeking a DNA test could not be ousted.

However, deciding on the merits of the case, the Court observed, “it would not be appropriate to allow a DNA test to be conducted at the stage merely on the basis of the bland statement of the husband making allegations without appropriate legal evidence on record.”  It further held that the petitioner had to establish beyond reasonable doubt about his non-access to his wife during the entire period. Reliance was also placed on the recent judgment of this court in Mahesh Chand Sharma v. State, SBCW Pet. No. 2067 of 1999 (decided on 07-03-2019), where the Court observed, “In the circumstances, an order of getting DNA test of a child goes contrary to the basic fundamental right of the said individual child.”

The Court specified that in any case where such application for conducting DNA test of a minor is filed, it would be first examined, “(a) whether there is an imminent need to conduct such DNA test; (b) Whether such test would result in harming the status of the minor in any form; (c) such report is not to be made public.”

In the light of the above, the application moved by the petitioner was rejected, though on the different ground; and the writ petition was dismissed.[Mahendra v. Mamta, 2019 SCC OnLine Raj 584, decided on 23-05-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Harsimran Singh Sethi, J. allowed the petition on the settled principle of law that financial difficulty cannot be a valid ground to withhold the retirement benefits.

A writ petition was made against the grievance which was raised by the petitioner that she retired on attaining the age of the superannuation while working as Inspector from Municipal Council and all benefits which she was entitled upon were not released immediately.

The facts of the case were that after the retirement of the petitioner the gratuity and leave encashment was not paid to her immediately. A case was filed by the petitioner and thus order for the release of benefit was passed against the respondent.  In pursuance of the order passed by the court, the respondent admitted that due to paucity of the fund, all the benefit could not be released and after the order respondent decided to pay the amount which was still pending towards the petitioner and was agreed to be paid in six monthly installments. The petitioner, therefore, submits that as the dues of the petitioner were released by the respondent after 5 years of her retirement she was entitled to the interest on the said delayed payments. Hence, this application.

High Court opined after discussing the judgment of Ram Karan v. Pepsu Road Transport Corpn., 2005(3) PLR 580, in which it was held that In case a pensioner is not even paid the genuine dues like the medical reimbursement, he is not expected to enjoy the life nor will he feel secure. The Constitution of India contains a large number of rights which guarantee human rights. It recognizes the right of every citizen to an adequate standard of living for himself and his family members, which also includes the improvement of living conditions besides providing adequate food, clothing and housing. A welfare State has to take all appropriate steps to ensure the realization of these rights. Court also discussed the case of A.S. Randhawa v. State of Punjab, 1997 (3) SCT 468, in which the court held that if the State commits any default in the performance of its duty thereby denying to the retiree the benefit of the immediate use of the money, there is no gainsaying the fact that he gets a right to be compensated and, in our opinion, the only way to compensate him is to pay him interest for the period of delay on the amount as was due to him on the date of his retirement.” Thus it was held that petitioner is held entitled for interest at 9% per annum from the date the amount became due till the same were to be released in her favor.[Vinod Kumari Sharma v. State of Punjab, 2019 SCC OnLine P&H 866, decided on 28-05-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of Sunil B. Shukre and Pushpa V. Ganedliwal, JJ. quashed a preventive detention order passed against the petitioner and set him at liberty observing, inter alia, that he was deprived of his fundamental right under Article 21 of the Constitution of India.

The petitioner was preventively detained pursuant to the impugned order passed by the District Magistrate, Wardha.  Yogesh V. Nayyar, Advocate for the petitioner challenged the said order on various counts. Per contra, Nitin Rode, Additional Public Prosecutor supported the order of preventive detention.

The High Court perused the record and was of the view that the impugned order became highly suspect in eyes of law as the DM, while passing the impugned order, took into consideration the fact that the petitioner was indulging himself in sale of liquor containing about 20.60% of ethyl alcohol. This, according to the Court, ought to be ignored in the facts and circumstances of the case at hand. Moreover, it was noted that the representation made by the petitioner under Section 10 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 was not considered by the Advisory Board. According to the Court, “This would mean that a valuable right available to the petitioner has been taken away from him. After all, right to liberty is a fundamental right enshrined in Article 21 of the Constitution of India and although this right is subject to reasonable restriction and can also be temporarily taken away in accordance with the procedure established by law, needless to say, the procedure has to be reasonable and the procedure prescribed for restricting this right has also to be followed in letter and spirit. If that is not done, there would be a deprivation of the fundamental right of the petitioner without following the procedure established by law. This is what has happened in the present case and, therefore, in our view, this is a compounding factor to what is seen by us already as an unjustifiable impugned order, making the impugned order as completely vulnerable in law.” Holding as such, the Court allowed the petition and set the petitioner at liberty. [Amir Khan Nasib Khan Pathan v. State of Maharashtra, 2019 SCC OnLine Bom 494, dated 15-03-2019]

Hot Off The PressNews

Kerala High Court: An order has been passed by the Court banning flash hartals in the wake of the series of hartals witnessed by Kerala either by the ongoing Sabarimala issue or some other matter such as trade union, etc.

The High Court maintained that the outfits making hartal calls should be made accountable for any damages caused to the public due to the hartal. The court observed that while everyone has the right to stage protests, it should not infringe the basic right. The petition was filed by Kerala Chamber of Commerce and Industry and some other forums.

The High Court stated that any violence during a shutdown is unconstitutional and that it impacts citizen’s fundamental rights. Everyone has the right to protest, but no one should be forcibly made to participate in a protest.

[Source: Indianexpress]

Case BriefsInternational Courts

Caribbean Court of Justice (CCJ): A Five Judge Bench comprising of Saunders (President) and Wit, Barrow, Anderson, Rajnauth-Lee, JJ. allowed an appeal by directing the judicial officers to refrain from using the bench to proselytize or express any stereotypical opinion.

The appellants were transgenders who were arrested and detained for cross-dressing for an immoral purpose in public in accordance with Section 153(1)(xlvii) of the Summary Jurisdiction Offences Act. Further, the magistrate imposing sentence told them that, “they must go to church and give their lives to Jesus Christ as they were confused about their sexuality and that they were men, not women.” Consequently, the appellants initiated constitutional proceedings against the alleged violation of rights under Articles 139(3) and 144(2)(b) of the Constitution.

The question before this Court was whether the above-stated section was an existing law immune from judicial scrutiny and what was the effect of a saving law clause as it was a fundamental plank upon which the respondent defended the challenge as to its constitutionality. The Court stated that Constitution has to be read as a whole wherein if one part of it runs up against the fundamental rights a saving clause shouldn’t immunize law to an extent of contravention of the human rights except against public interest. Thereby outlining Article 149 of the Constitution, the Court said that an individual choice of attire was an expression of his/her identity, infringement of which was unjustifiable interference with their right. Together with being vague as to its intentions, the section also criminalizes intentions and state of mind and thus was unconstitutional.

Accordingly, in order to eradicate homophobia in Guyana, Section 153(1)(xlvii) of the Summary Jurisdiction Offences Act was struck down. [Quincy Mc Ewan v. Attorney General of Guyana, [2018] CCJ 30 (AJ), order dated 13-11-2018]

 

 

Hot Off The PressNews

Supreme Court: The Bench comprising of Arun Mishra and S Abdul Nazeer, JJ., while addressing a matter, stated that “voluntary retirement” cannot be sought as a right and the government can frame rules to deny pleas for quitting on a premature basis in public interest.

The Supreme Court Bench while upholding the Uttar Pradesh government’s decision of rejecting the request for voluntary retirement of some senior doctors stated that due to the shortage in the number of specialised doctors in government hospitals and looking at the public interest the decision of the State on the stated grounds is justified.

Further, the Supreme Court Bench while concluding its decision stated that the concept of public interest can also be invoked by the government when voluntary retirement sought by an employee would be against public interest. Poorest of the poor obtain treatment at government hospitals. They cannot be put at peril. The bench had come to the above conclusion, when the doctors had claimed the right to retire under Part III of the Constitution, for which the Court stated that such right cannot be supreme than Right to Life.

[Source: The Times of India]

Case BriefsSupreme Court

Supreme Court: Addressing an issue of public importance relating to difficulties faced by visitors at Shri Jagannath Temple (Puri), the Bench comprising of Adarsh Kumar Goel and Ashok Bhushan, JJ., passed an interim order issuing directions for regulation and upkeep of the Temple.

The writ petition was filed by Mrinalini Padhi, a practicing advocate before the Orrisa High Court, highlighting the issues of public importance which need to be addressed and monitored so as to ensure safe custody of the valuables of the Temple; proper hassle-free worship by the devotees; and the clean and hygienic environment in the Temple. The issues put forth, also include the harassment of visitors by sevaks of the Temple. The Hon’ble Supreme Court noticed that the issues raised, involve the enforcement of fundamental right under Article 25 and directive principles under Articles 38, 49, 51A (f) and (g) of the Constitution. The Court further observed pilgrimage centers are of undoubted religious, social, historical and architectural importance, representing cultural heritage of our country. Millions of people visit these centers not only for tourism but for seeking inspiration for righteous values.

Having regard to the nature of the issue, Hon’ble Court directed the District Judge, Puri, to submit a report on factual aspects of the matter including difficulties faced by visitors and deficiency in management. Further, the Administrator was directed to review arrangement of CCTV cameras; and ensure that no direct collection of offerings is made by any sevak. The State of Odisha was directed to constitute a committee to study the management of other important shrines. Hassle free darshan by the visitors and utilization of offerings for righteous objects was considered to be of prime importance by the Hon’ble Court; hence, it was observed that the sevaks need to be compensated by legitimate remuneration as determined by the concerned Authority. Mr. Gopal Subramanium, learned Senior Counsel, was appointed as the Amicus Curiae to assist the Court. The matter is to be listed on 5-7-2018 for further consideration. [Mrinalini Padhi v. Union of India, 2018 SCC OnLine SC 602, decided on 08-06-2018]

Hot Off The PressNews

After Ajay Bhushan Pandey, the CEO of UIDAI, made a PowerPoint presentation before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the technical and security aspects of Aadhaar in the last 2 days of the hearing, the petitioners submitted a list of questions based on the presentation. On Day 23 of the Aadhaar hearing, the Bench called upon Attorney General KK Venugopal to answer the said questions.

Below are the questions answered by the AG and the highlights of the Courtroom exchange on Day 23 of the Aadhaar hearing:

  • Q: What are the statistics of authentication failures?
  • AG: We cannot give a number because we don’t track this kind of information.
  • Q: What about the biometrics exception?
  • AG: There are other methods of authentication available like through mobile number. The QR code on Aadhaar card can also be scanned to get a person’s details, therefore, biometrics authentication is not the only way. Requesting entities have to provide exception handling measures. This is given in the Aadhaar Act, 2016 itself.
  • Chandrachud and Sikri, JJ:  We don’t know if the measures are being implemented on ground. Government will have to answer that at some point since UIDAI is only responsible for the architecture of Aadhaar. They cannot guarantee that there has been no denial of service.
  • AG:
    • There is no opt out option for Aadhaar, even for children.  Aadhaar was adopted to ensure that there are no fake identities. Aadhaar has strong de duplication detection system. 6.7 crores rejections have happened till now due to de duplication.
    • Aadhaar is an evolving technology. And all other alternatives were considered for a period of ten years. The Act can always be amended and rectified. The Aadhaar project is one of a kind and has been praised all over the world.
    • Aadhaar is a policy decision taken at the highest level of the Government, therefore, Courts should not interfere to determine its validity.
    • The judges have, Privacy Judgment, agreed that privacy is not absolute. Privacy judgment lays down the three conditions under which privacy can be invaded and Aadhaar satisfies all three. These conditions are:
      • There should be a legislation.
      • Legitimate state aim.
      • Proportionality.
    • Aadhaar invades privacy as little as possible. We couldn’t have formulated a law so that there could be a lesser invasion of privacy. This is the least encroachment of privacy.
    • Data protection expert Committee i.e. SriKrishna committee will submit it’s report by May 15.
    • The State can always enforce reasonable restrictions to protect legitimate state interests.
    • Privacy is nowhere described except in the dictionary. The court has to look at each individual case.
    • Curbing black money, providing subsidies, benefits and services are legitimate state interests of the State.
    • Right to live a life of dignity trumps right to privacy. Aadhaar in it’s initially stages was voluntary, therefore no one was coerced to enroll.
    • Before the Privacy judgement, there was no way for the Government or the people to know there was a right to privacy.

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To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU SIngh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The Commission recently dealt with a second appeal wherein the appellant contended that after having taken voluntary retirement from the post office, even though she was supposed to receive her on the 1st of every month, that was not the case when in March 2017, her pension was withheld for want of linkage of her Aadhaar to her pension account along with 55 other such similarly situated pensioners. She mentioned that the CPIO and the FAA had held back information which she sought, regarding the names of all the other pensioners whose pensions were withheld owing to the same reason forwarded to her as the authorities under the grab of Section 8(1)(j) of the RTI Act, 2005 refused to give out personal information which the appellant believed to be an unsatisfactory reply. The appellant also sought a copy of the order wherein it said that Aadhaar is necessary for payment of pension since that had not been produced to her yet.

Prof. M. Sridhar Acharyulu, sitting for the Commission, observed that pension “is a matter of life and living” for pensioners who are “totally dependent upon the paltry amount of pension”. Hence, information which relates to pension should be treated as information concerning life and hence, response should be given within 48 hours. Special mention was afforded to Section 7 of the RTI Act wherein it has been mentioned that the PIO shall “as expeditiously as possible” give out the information sought which was not done in the present case. Further on, the Commission notes that it is a duty under the Contract Act, Consumer Protection Act, Trusts Act and also the Right to Information Act to pay timely pension or to rectify any problem relating to payment of pension to relieve the pensioner of any suffering arising out of the delay/ non-payment of pension. The Commission held that the postal authorities have a statutory duty to disclose the reasons behind their demand of linking the Aadhaar with pension payment and withholding payment of pension on not doing so. The Commission referred to K.S Puttaswamy v. Union of India, (2015) 10 SCC 92 wherein the Court held that citizens cannot be forced to produce their Aadhaar to receive government welfare scheme benefits. This Court had further clarified in its order dated 15/12/2017 that such a compulsion couldn’t be made since that was in contravention of the citizens’ fundamental rights.

As for the issue of not presenting the appellant with the names of all the other people whose pension had been withheld on the same grounds as the appellants, the Commission did not think of such information being “personal information” which the CPIO would have to protect. The Commission thus directed the CPIO to show-cause why maximum penalty should not be imposed upon him for the wrongful reasons given by him in his reply and why the postal authority should not be ordered to pay compensation to the appellant for causing delay, loss and harassment to her in the entire process. Additionally, the Commission directed the respondent authority to provide the certified copies of the orders by which the other employees’ pension had been delayed along with their names. [N.N. Dhumane v. PIO, Department of Posts, 2018 SCC OnLine CIC 21, order dated 27.2.2018]

Case BriefsSupreme Court

Supreme Court:

“Why should I fear death?

If I am, then death is not.

If death is, then I am not.

Why should I fear that which

can only exist when I do not?” – Epicurus

This is one of the several profound quotes quoted by the Constitution Bench in its 538-page long verdict on the issue of Euthanasia.

In 4 separate but concurring opinions, the 5-judge Constitution Bench of Dipak Misra, CJ and AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. The Court said:

“the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery. A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.”

CJI, for himself and Khanwilkar, J:

Explaining why only passive euthanasia is permissible and not active euthanasia, CJI, writing for himself and Khanwilkar, J, said that there is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life. Withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and that once passive euthanasia is recognized in law regard being had to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the doctors‘ dilemma or fear will have any place.

Living Will versus Advance Medical Directive:

The Court also refrained from using the term ‘living will’ and said that the concept ‘advance medical directive’ should be applied in our country. To understand both the concepts, the Court also provided with the definitions:

The Black’s Law Dictionary defines an Advance Medical Directive as,

“a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.”

A Living Will, on the other hand, is

“a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider.”

Advance Medical Directive:

Laying down detailed safeguards and directions with respect to Advance Medical Directive, the Court that:

  • the said document can be executed by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. However, it should be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information and must have characteristics of an informed consent given without any undue influence or constraint.
  • The said document shall be in writing clearly stating as to when medical treatment may be withdrawn, or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
  • It should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by 173 the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
  • If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution.
  • Also, an individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

Absence of Advance Medical Directive:

  • In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board (HMB).
  • HMB, after discussing with the family physician and the family members of the patient, may form a preliminary opinion on whether or not to withdraw the treatment. The final decision, however, will be endorsed by JMFC after it has visited the patient, verified the medical reports, examined the condition of the patient and discussed with the family members of the patient.

Sikri, J:

It is an undisputed that Doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with.

Chandrachud, J:

While upholding the legality of passive euthanasia (voluntary and nonvoluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function. Besides lending assurance to the decision of the treating doctors, the setting up of such committees and the processing of a proposed decision through the committee will protect the ultimate decision that is taken from an imputation of a lack of bona fides.

Bhushan, J:

In   cases   of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such   decision   be   taken   by   specified   competent   medical experts   and   be   implemented   after   providing   a   cooling period to enable aggrieved person to approach the court of law.

Conclusion:

  • Right to die with dignity is a fundamental right.
  • an adult human being having mental capacity   to   take   an   informed   decision   has   right   to refuse medical treatment including withdrawal from life saving devices.
  • A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards.
  • In case of incompetent patients and absence of advance medical directive, “the best interest principle” is to be applied and decision is to be taken by competent experts.

The Court, however, made clear that the Advance Directives and the safeguards as mentioned in the judgment will remain in force till the Parliament makes legislation on this subject. [Common Cause v. Union of India, 2018 SCC OnLine SC 208, decided on 09.03.2018]

To read the background of the case, click here.

Case BriefsHigh Courts

High Court of Jammu and Kashmir: In the recent judgment passed by a Single Judge Bench comprising of M.K. Hanjura, J., addressed a bail application of an under trial prisoner, and directed the trial court for a speedy trial.

The brief facts of the case being that the applicant (a murder convict) has been in police custody for the last 8 years, while his proceedings are still ongoing in the trial court. Thus, aggrieved by the delay, the applicant filed an application for grant of bail in the High Court of Jammu and Kashmir, with the contention that even after examining 39 out of 49 witnesses nothing has surfaced that would tie the applicant to the actual murder, and further argued that the only important witness has already been proved hostile and all the other testimonies did not support the prosecution’s story. The applicant even contested that the trial court has still not adhered to the High Courts’ order for speedy disposal of cases.

This Court while passing its judgment relied on landmark cases like Narayan Ghosh @ Nanu v. State of Orrisa, Ved Prakash @ Kalu (JC) v. State through the NCT (Delhi), (2007) 1 LR 2 Delhi 176 and State of Tamil Nadu v. S.A. Raja [Criminal Appeal No. 1470 of 2005], and held that bail cannot be granted since the applicant’s proceeding is still ongoing in the trial court, and further directed the trial court to complete the proceedings within 6 weeks because the fate of an accused cannot be left hanging as a “Trishunka” on the absolute discretion of the trial judge, and further held that ‘right to speedy trial is a fundamental right’ available to the accused. Furthermore, the Court directed apropos the cases relating to ‘under trial prisoners’ to be treated and categorized as “priority sector litigation”. [Rajesh Pandoh v. State, 2017 SCC OnLine J&K 859, decided on 30.12.2017]

Hot Off The PressNews

Supreme Court: The 5-judge Constitution bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ reserved the verdict on whether or not a terminally ill patient has a right to die with dignity.

The Court was hearing the reference of the 3-judge bench of P. Sathasivam, CJ, Ranjan Gogoi and Shiva Kirti Singh, JJ that has, in  Common Cause v. Union of India, (2014) 5 SCC 338, referred the matter relating to right to die or euthanasia to a Constitution Bench and noted:

“although the Constitution Bench in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive. So, the only judgment that holds the field in regard to euthanasia in India is Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454, which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur had upheld the same.”

The bench had said that it was extremely important to have a clear enunciation of law on euthanasia and hence, invited the Constitution bench to lay down exhaustive guidelines in this regard.

Earlier, in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, the bench of Markandey Katju and Gyan Sudha Misra, JJ, had refused to allow Aruna Shaunbaug, who had been the centre of the euthanasia debate as she spent 42 years of her life in a Permanent Vegetative State, to be euthanised but allowed terminally ill patients to choose to be passively euthanised. It was held that passive euthanasia can also only be allowed by the High Court and an application should be moved before it in this regard. Allowing passive euthanasia, the bench had said:

“if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialisation and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery.”

The 5-judge bench heard the matter for 2 days continuously and will pronounce the verdict soon.

Case BriefsHigh Courts

Madras High Court: The petitioner, an organization involved in social activities for the benefit of general public intending to organize a public meeting to address the issue of corruption in Tamil Nadu, had submitted a request to the Inspector of Police, Mylapore, seeking permission to organize a public meeting in Mylapore on 08.10.2017. On 30.09.2017, the Inspector of Polioce, Mylapore issued a show-cause notice as to why permission could not be granted for conducting the said meeting. When the petitioners challenged the notice owing to their right to freedom of speech and expression and to assemble peacefully, the same was negated. As a result, the petitioners sought for a writ of declaration, declaring that the failure of the respondents to grant permission to conduct the public meeting as illegal and arbitrary.

The Assistant Commissioner of Police, Mylapore rejected the petitioner’s request for permission to conduct such a meeting on the ground that the respondent police had reliable information that the petitioner was trying to instigate people for creating law and order problem under the guise of organizing a meeting. The said rejection order also remarked that by taking advantage of the situation, anti-social elements may also infiltrate into the public and indulge in anti-social activities, creating ruckus.

Justice M.S. Ramesh, stating explicitly that the respondent being the authority to ensure that no untoward incident happen during the course of meeting, is also empowered to regulate the conduct of the meeting, observed: “I do not endorse the reasoning of the respondents for rejecting the petitioner’s request for the simple reason that the police department has been created only for the purpose of tackling the above problems. Since it is the fundamental right of the petitioner to conduct such a meeting, if at all, the respondent is of the view that they intend to instigate people and thereby create law and order problem, it was always open to them to permit the petitioner to conduct the meeting by imposing conditions.”

Granting liberty to the petitioner to approach the Deputy Commissioner of Police, Mylapore, Chennai, seeking for permission to conduct the public meeting, the Court issued directions to the Deputy Commissioner of Police to accord necessary permission to the petitioner for conducting the meeting on the date requested by the petitioner by imposing reasonable restrictions. [Arappor Iyakkam v. State of Tamil Nadu,  2017 SCC OnLine Mad 5785, decided on 5.10.2017]