Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission India has taken suo motu cognizance of a media report that a 5-year-old girl has allegedly died due to starvation and ill health as the family was not able to get food and medicinal care for her in Agra district of Uttar Pradesh.

The Commission has issued a notice to the Chief Secretary of Government of Uttar Pradesh calling for a detailed report within 4 weeks including the relief and rehabilitation provided to the family by the administration and the action taken against the delinquent officials. The Chief Secretary is also expected to issue instructions to all the district authorities to ensure that such incidents of cruelty and negligence should not recur in future.

The Commission has observed that a five-year-old innocent girl has apparently died due to starvation and illness while a number of social welfare schemes run by the Central and the State Government do exist. During the period of lockdown, the government agencies have specifically introduced number of schemes for the poor, migrant labourers and other vulnerable sections of the society. The State Government has made several statements that they are committed to ensure Right to Food, Shelter and Livelihood for the poor people and have been working on issues relating to labourers and labour laws but this heart-wrenching incident shows a different picture.

The Commission has further observed that it is not understandable what is the benefit of announcement of number of schemes when they do not reach the beneficiaries. A poor girl has lost her life, the breadwinner of the family is suffering from tuberculosis and is bedridden. The family is not only financially poor but also belongs to the Scheduled Caste for which special schemes have been announced by the Central and the State governments.

This is a serious issue of violation of human rights due to gross negligence by the local administration. It is for the local public servants to honestly implement the schemes, so that the poor and needy can avail the benefits which , apparently was not done in this case. Had the authorities been sincere and vigilant, loss of a precious human life could have been averted. The State cannot escape its liability and there is a need to fix the responsibility of the public servants who have not acted in accordance with the law to help the aggrieved family.

Reportedly, the girl was living with her parents and sister at Nagla Vidhichand village in Agra’s Baroli Ahir block. The family was without any work for about a month and in recent weeks the family went without food. Many families in the localities like them do not have a ration card. The five-year-old girl Sonia had become weak and had fever for three days. She could not bear the pain and succumbed to illness and hunger on Friday night.

The local authorities reportedly did nothing to help the family-like securing food in the lockdown-induced crisis. The District Administration has said it will find out where things went wrong and they have taken cognizance of the matter and an investigation has been ordered into the child’s death. Further, the District Administration said that the family has buried the body, which they should not have done as a postmortem would have ascertained the cause of death.

Reportedly, the District Magistrate has agreed that the families are suffering and he will ensure that all possible help is provided to the family.


National Human Rights Commission

Press Release dt. 23-08-2020

Experts CornerGUJCOST - GNLU

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 27, Universal Declaration of Human Rights.[1]

Dampening economies, severe climatic conditions and depleting resources are changing the narrative of survival. As distress calls emerge from various countries, the collective conscience of humanity is being put to test. Domestically, rising woes of a weak economy are gradually taking form of a crises and it is time to contemplate alternate ways to sustainable productivity the benefits of which are accessible by a larger public. While development is imperative its
haphazardness must be contained now more than ever due to its impact on human rights.

What role does Intellectual Property (IP) play, one may wonder. To contextualise, World Intellectual Property Organisation (WIPO) brought forth a rather well-timed announcement on the IP theme of the year 2020 — Innovate for a Green Future [2] stressing the need for collective action. This instantly brings me back to my interpretation[3] of the 11th Global Innovation Index (GII) released in 2018 that was themed Energising the World with Innovations. GII, 2018 studied the importance of green technology and increasing requirement of encouraging innovations along the line.

A key finding in the detailed GII Report was that imbalances in regional innovations continue to hurt economic conditions as well as human development, indicating that innovation, Intellectual Property Right (IPR) and human rights must go hand in hand for a sustained development. This finding raises a pertinent question — whether there exists a relationship between human rights and IPR. Opposing views emerge and I am of the opinion that existence of a relationship between these rights cannot be denied, the trick question is interpretation of its nature i.e. whether it is a positive or negative one. In the next sections, I briefly look at the contentious human rights-IP relationship from the international viewpoint.

Human Rights and IPRs: A Connect-Disconnect

The debate on linkage of human rights and IPR has continually attracted two extreme views — a conflict approach and a coexistence approach. There are a broad range of political, economic, social, practical and philosophical issues that straddle the intersection of human rights and IP. These fascinating and challenging issues are attracting increasing attention from Judges, government officials, attorneys and scholars, whose activities are mapping the contours of a rapidly changing legal landscape.[5]

As quoted at the beginning here, Article 27 of the Universal Declaration of Human Rights (UDHR) enunciates an inherently strong connection between human rights and IPR. Following closely to Article 27, the International Covenant on Economic, Social and Cultural Rights (Icescr), under Article 15(1) further validates rights to take part in cultural life; to enjoy the benefits of scientific progress and its applications and; to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.[6]

Nearing the end of 20th century a critical movement began in the field of IPR when a host of nations made concerted demands for access to medicines, access to knowledge and protection of cultural and traditional knowledge systems thus demanding an IP regime that is respectful of the rights of indigenous communities as well as the diverse developmental levels. Although this idea was not new, it drew little attention until the formal internationalisation of Intellectual Property Rights (IPRs) through the Trade-Related Aspects of Intellectual Property Rights (Trips) agreement. Professor Peter K. Yu in fact suggests a lack of interest from policymakers, scholars and activists that was due in part to the arcane, obscure, complex, and highly technical nature of intellectual property law and policy and in part to the ability of countries to retain substantial policy space for developing their own intellectual property systems[7]. After several negotiations when Trips was finally formalised the global outlook towards IPR underwent a massive transformation however developing and less-developed countries remained belligerent on the potential conflicts of the agreement vis-à-vis realisation of economic, social and cultural rights. Later, the World Trade Organisation (WTO) emphasised the flexibilities built into the Trips agreement and other international trade agreements in order to boost the potential coexistence of human rights and IPR.

The debate on the two rights’ systems was advanced by the Committee on Economic, Social and Cultural Rights (Cescr) in 2006 through General Comment No. 17[8]. The comment provided authoritative interpretation of Article 15(1)(c) of the Icescr making clear that not all attributes of IPRs have human rights status[9]. To summarise, the comment differentiated between the two rights by linking human rights as safeguarding the personal link between authors and their creations and between communities and their collective cultural heritage whereas linking intellectual property regimes primarily to protection of business and corporate interests and investments. It further clarified that the scope of protection of the moral and material interests of the author provided for by Article 15(1)(c) does not necessarily coincide with what is referred to as IPR under national legislation or international agreements.

Coming back to the Trips agreement, the impact it has made is considered far-reaching than that of pre-existing international legal instruments. Taking stock of the post-Trips era, it is observed that some key elements of IP regime like subject-matter and scope of protection have expanded rapidly in treaties and in national laws — including the laws of developing countries in response to new online information technologies, the Trips and the adoption of maximalist IP protection standards and robust enforcement mechanisms in plurilateral, regional and bilateral “Trips Plus” treaties[10]. In the same timeline for assessing the trajectory of human rights regime, the changes include increased attention to indigenous peoples’ rights and traditional knowledge; the adverse consequences of expansive IP protection rules for economic, social and cultural rights; a growing awareness of the human rights responsibilities of multinational corporations; and attempts by those same corporations to invoke the human right of property as an alternative legal basis for protecting intangible knowledge assets[11].

Constantly changing global dynamics keep the debate between human rights and IPR alive. A persisting challenge in this environment is to strike the right balance between human rights and IPR. Often it is not easy to see how specific intellectual property norms interact with provisions of human rights instruments that are usually drafted in broader language[12]. Moreover, this challenge gets even bigger when there is not a one stop solution for all nations to abide given the differing rates of development.

Re-approaching the Discussion on Human Rights and IPRs

A considerable volume of literature subsists on the complex framework of human rights and IPR, however it is the need of the hour to reignite the discussion on how these rights fit together. A continued debate in resolving a complex inter-relationship between the two rights may generate solutions having a far-reaching impact on the growing concerns of sustainable development for all. I take cue from Professor Yu’s scholarly work to understand some global advancements that justify revisiting the human rights-IPR relationship[13].

First, the tendency of like-minded countries, mostly the developed ones coming together to set a higher benchmark through plurilateral agreements like the highly controversial Anti-Counterfeiting Trade Agreement (ACTA) or Trans-Pacific Partnership (TPP). For negotiations on ACTA no more than four per cent of the world’s developing countries were involved which raises questions on the genuity of stronger nations[14]. TPP contained controversial new protections for prescription drugs, including a new class of medications known as biologics[15]. It is pertinent to note during the Trips negotiations, developing nations voiced significant apprehensions on issues like transfer of technology, bio-piracy and reduction of traditional or indigenous communities’ control over their pool of genetic, natural and cultural resources and restrictions on access to medicines as a serious impediment to enjoyment of the right to health.

Second, the possibility that current enforcement measures run a risk of turning obsolete due to rapid development of disruptive technology alongside sophisticated networks of piracy and counterfeiting which in turn threatens human rights in many cases. For example, a producer’s lost opportunity of earning premium over his product registered as a geographical indication in India sold over the internet without his knowledge. How does the producer enforce his rights on cross-border online infringement? Must he lose out on his right to protect economic, creative and cultural aspects residing in his IP owing information asymmetry arising from an online platform where the consumer is unaware of the product origin and rights in it.

Third, a larger group of individuals are collectively participating in creative communities producing “user-generated content”, a term that has stormed the world of IP in recent times meaning thereby that the ability to create in today’s digitally advanced world is no longer limited to a specific class of intellectual workers or creative labourers. The growing community of creative individuals means the human rights to benefit from creations are getting more universal in nature.

Looking at the above reasons, we can safely deduce the gravity of issues like digital advancements and their broad implications (not necessarily deleterious). It is also safe to say the re-examination of the inter-relationship between intellectual property and human rights is justified. Research in this area can prove beneficial for necessary collective actions at the international platform.

Conclusion

Do human rights connect with the entirety of IPR? Are certain IPR attributes immune from the human rights purview? While analysing the inter-connection, which rights should be considered from the giant structure of human rights? The answers to these questions inevitably depend on one’s
worldview, basic assumptions,  ideological values and philosophical dispositions[16].

Challenging as it is but this relationship between human rights and IP rights needs renewed and collective attention. After thorough assessment of drastic changes threatening sustenance of several habitats around the globe, nations might want to explore the possibility of human rights framework existing within the contours of intellectual property regime in order to encourage innovations and creations towards a green globe that reach out to humanity as a whole. While individual goals and benefits matter it is certainly time to think of collective and sustainable development.


*Hetvi Trivedi is Research Associate, GNLU-GUJCOST Research Centre of Excellence in IP Laws, Policies & Practices, Gujarat National Law University and can be contacted at htrivedi@gnlu.ac.in.

[1] Universal Declaration of Human Rights, 10-12-1948

[2] World Intellectual Property Day — 26-4- 2020 Innovate for a Green Future, World Intellectual Property Organisation, available at <https://www.wipo.int/ip-outreach/en/ipday/>.

[3] Hetvi Trivedi, Moving Towards Better Integration of Energy Innovation and Intellectual Property, (2018) PL (IPR) September 89, available at <https://blog.scconline.com/post/category/experts_corner/gujcost-gnlu/>.

[4] Laurence R. Helfer, Mapping the Interface Between Human Rights and Intellectual Property, Research Handbook on Human Rights and Intellectual Property, Ed. Christophe Geiger, Edward Elgar (2015) 6-15, 6.

[5] Ibid

[6] International Covenant on Economic, Social and Cultural Rights, 16-12-1966.

[7] Peter K. Yu, Intellectual Property and Human Rights in the Non-Multilateral Era, 64 Florida Law Review (2012) 1045- 1100, 1049.

[8] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art. 15, Para. 1 (c) of the Covenant), 12-1-2006, E/C.12/GC/17, available at <http://docstore.ohchr.org/SelfServices/FilesHandler.ashxenc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQcMZjyZlUmZS43h49u0CNAuJIjwgfzCL8JQ1SHYTZH6jsZteqZOpBtECZh96hyNh%2F%2FHW6g3fYyiDXsSgaAmIP%2BP>.

[9] Id, 1.

[10] Supra note 4, at 7.

[11] Ibid

[12] Catherine Trautmann, Foreward, Research Handbook on Human Rights and Intellectual Property, Ed. Christophe Geiger, (Edward Elgar 2015) xii-xxiv, xii.

[13] Supra note 7, at 1055

[14] Supra note 7, at 1056

[15] James McBride, Andrew Chatzky, What is the Trans-Pacific Partnership?, Council on Foreign Relations, available at <https://www.cfr.org/backgrounder/what-trans-pacific-partnership-tpp>

[16] Supra note 7 at, 1100

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

The National Human Rights Commission has filed an application for intervention and directions along with suo motu writ petition No. 6 of 2020 in the Supreme Court of India on the problems and miseries of migrant labourers, who had been stranded in different parts of the country after the nationwide lockdown.

The Court admitted the intervention application of the Commission. The Commission has sought directions from the Supreme Court for consideration of implementation of its proposed short term and long term measures in order to decrease the plight of the migrant workers and to ensure that the human rights of these poor labourers are not violated.

Short term measures include:

i. In order to estimate the in-flow of migrant workers, States should collect the data of migrant workers at the point of departure in the originating States as well on arrival in the destination States. This will help States to effectively plan quarantine and relief measures for the migrant workers.

ii. The Government of India and the State Governments must ensure proper implementation of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act,1979 so that the migrant workers are provided with a journey allowance.

iii. Menstrual hygiene products should be provided to migrant women and adolescent girls across the country.

iv. Each state should be directed to ensure proper functioning of shelter homes especially for the accommodation of pregnant women, lactating mothers, children, and elderly person. It should be ensured that medical facilities and nutritious food are available in these shelter homes.

v. Each State should be directed to identify the industry in which the migrant labour is working i.e. construction, agriculture, brick kiln, etc. This identification will aid the State in creating schemes for the migrant workers and in the preparation of a State-wide and Nation-wide database.

vi. States should be directed to take steps for the support of migrant workers, similar to the steps taken by the State of Odisha which has set up a toll-free Sharmik (labour force) Sahayata Helpline, Migrant Labour Help Desk, seasonal hostels for the children of migrant workers, and has strengthened Anti-Human Trafficking Units for migrant workers.

vii. States must ensure medical facilities for check-ups for migrants before and after the journey, as well was availability of food and medical care during the journey. For migrants who are walking or travelling on bicycles, food and water should be made available both at the originating and destination states, as well as en route.

viii. The originating States should take steps to identify the destitute among the migrant labour and provide some quantum of compensation to ensure that they do not resort to begging after reaching their destination.

ix. Railways in consultation with the respective State Governments should ensure that such delays do not take place and the trains do not reach wrong destinations. A mission similar to that of the dedicated Vande Bharat Mission should be started in a phased manner to help migrant workers reach their source destination.

x. A fund should be created for payment of ex-gratia relief by the concerned DM, which will provide fixed compensation to every migrant returning home.

Long term measures include:

i. A special provision to be inserted in the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 to deal with emergency situations like Covid-19, natural disasters etc.

ii. Appointment of a claim commissioner to look into recovery from employers who abandoned their labourers despite notification for continuity of wages by Central Govt.

iii. Allocation of funds to states to be allotted to gram panchayats in order to create employment opportunities in the home states of migrants.

iv. National portal for registration of migrants so that a nationwide database is created.

v. Compensation to family members of those who died while migrating to their respective states.

vi. Universal Ration Card to be granted to migrants

vii. Maximum benefits be extended to the migrant labour as provided for under the Unorganised Workers’ Social Security Act, 2008

viii. The government should implement its scheme, that it had announced to launch, for affordable rental housing complexes for migrant workers and urban poor as soon as possible.

ix. There should be a Nodal agency created under the Ministry of Labour for the resolution of Inter-State migrant labour issues. A study of best practices from other countries on issues concerning migrant labour could be commissioned.

x. Simplified registration process for ensuring the understanding capability of the migrant workers. In this context, the issue of giving a universal number / smart card with portability of migrant workers may be revisited.


NHRC

Press Release dt. 05-06-2020

COVID 19Hot Off The PressNews

Supreme Court: A furious bench of N V Ramana, Sanjay Kishan Kaul and B R Gavai, JJ said that the Supreme Court was not hostage of government, after advocate Prashant Bhushan told the court that the government’s view is being blindly considered without verifying it, while fundamental rights of people especially migrant workers are not being enforced.

The Court questioned Bhushan, appearing for petitioners Jagdeep S Chhokar, former director in-charge of IIM, Ahmedabad, and lawyer Gaurav Jain, and said as to why should the court hear him, if he does not have faith in the system. It, however, sought reply from the Centre on a plea seeking direction to authorities to allow migrant workers across the country to return home after conducting coronavirus tests.

Here’s how the Courtroom drama unfolded:

Bhushan: This is an institution created by Constitution but the fundamental rights are being violated of these migrant workers and I am entitled to express my anguish.

Bench: You don’t have faith in judiciary. This institution is not hostage of government.

Bhushan: I never said I have no faith in this system. I could be wrong but similar opinion is expressed by some retired judges.

Bench: You claim to be practising in the Supreme court for past 30 years and then you must know that some orders are favourable and some are not and therefore you should not say such things.

Solicitor General Tushar Mehta, appearing for Centre: You should not be under the impression that you are the only one who is concerned with enforcement of fundamental rights. The government is very much concerned with the issue and trying to provide all possible help to migrant workers.

Bhushan: If there was any objection with regard to my appearance as a lawyer in the case, then I am willing to withdraw from the matter and some other lawyer will appear.

Bench: We never asked you to withdraw from the matter.

Bhushan: Central government seems to have shut its eyes and should consider the distress situation faced by the migrant workers during the lockdown. More than 90% migrant workers have not received the ration or wages; they are in desperate situation and should be allowed to go to their native places.

Mehta: These are incorrect reports. Centre is consulting states on the issue as to how many of migrant workers have to be transported, how many have to be given help and what kind of help.

Bench: It means that Centre is in consultation with states and is ready to examine the issue.

Mehta: The government is examining everything but the ideas of petitioner are not required and urged the court to not keep the petition pending as there are already several pleas, which have similar prayers.

Bhushan: I urge you to  allow inter-state transportation of migrant workers.

Mehta: It is for the government to look into all aspects keeping the larger interest of people in mind. I request the court to not issue notice and give directions on the plea as it would send wrong message. I will file a reply within two weeks.

Bench:  We are giving one week time to Centre to respond whether there is any proposal on allowing inter-state transportation of migrant workers.

Meanwhile, the Court disposed of intervention applications filed by advocate Alakh Alok Srivastava on the issue of stopping inter-state migration of workers and said that it is the Central government to look into the issue. The Court said that it is

“not the coordinating agency between the Centre and states, and the Union government has to take necessary action in this regard.”

Chhokar and Jain in their plea had said that in wake of the extension of the nationwide lockdown, the migrant workers who are among the worst affected category of people must be allowed to go back to their homes after being tested for COVID-19. It said that those migrant workers who test negative for COVID-19 must not be forcefully kept in shelters or away from their homes and families against their wishes.

It said that although the national lockdown has been necessitated because of the unprecedented pandemic of COVID-19 and its imposition is much needed, it is submitted by the petitioners that the fundamental right of the migrant workers enshrined under Article 19(1)(d) (right to move freely throughout India) and Article 19(1)(e) of the Constitution (right to reside and settle in any part of India) cannot be suspended for an indefinite period. It said that these migrant workers cannot be forced to stay away from their families and living in unpredictable and arduous conditions, as the same is an unreasonable restriction beyond what is envisaged under Article 19(5) of the Constitution. The petition said that necessary transport services may be provided by the state governments in abundance so that the purpose of ‘social distancing’ is not defeated.

(Source: PTI)

COVID 19Hot Off The PressNews

National Human Rights Commission, NHRC, India has asked the Centre, through the Union Home Ministry, to issue suitable guidelines/advisory/Standard Operating Procedure to all the States and UTs emphasizing that while implementing Corona lock down guidelines, the public servants, including police personnel, should behave in a sensible manner with the people, particularly belonging to vulnerable sections, respecting human rights relating to their life, liberty and dignity. A response is expected at the earliest.

These directions have come after the Commission took cognizance of a communication from one of its Special Monitors and human rights activist, Ms Maja Daruwala alleging that in order to effectively implement the lock down guidelines, the public servants, including the police personnel, across the country, sometimes under tremendous pressure, tend to deal with the people, especially the ill-informed poor labourers, in a very harsh manner undermining their rights.

Issuing the directions, the Commission has observed that it appreciates that the Government agencies are sincerely working to deal with the unprecedented situation to fight the spread of COVID-19 virus, and it is apparently a tough challenge for the them as well as the general public. However, it found it appropriate to bring the issues raised by the complainant to the notice of the Central Government and send the same to it through the Union Ministry of Home Affairs.

The complainant has also said that police are doing many good things during the lock down; chopping of a policeman’s hand is unforgivable but those, among them, who are using this time to be cruel and harsh must be stopped. Allegedly, those who are illiterate and less informed mainly the poor labourers and daily wages workers etc, are facing extreme difficulties due to shortage of food and other facilities for themselves and their families. They can be asked to stay off the streets with some degree of compassion without being cruel and abusive using excessive force.

Recently, the Commission had also taken cognizance of a complaint raising the issue of alleged violation of human rights of the people suffering from mental illness during lock down.

Hot Off The PressNews

Supreme Court: A bench headed by SA Bobde, CJ has granted four weeks time to states and Union Territories to respond on a plea alleging death by starvation of persons due to denial of ration over problems in Aadhaar linkage with ration cards. The Court noted that most of the States and Union Territories have not filed their response on the plea and asked them to submit their response. The court was informed that only Jharkhand, Nagaland, and Tamil Nadu have filed the reply in the case.

Senior advocate Colin Gonsalves, appearing for the petitioner, contended that Aadhaar linkage has resulted in 2.33 crore cancellation of ration cards between the years 2013 and 2016. Earlier, the Court had sought a response from the States on whether a person being denied rations over Aadhaar linkage.

Prime Minister Narendra Modi had made a statement that 3 crores cards have been cancelled, Gonsalves argued, adding that 85 per cent cards were wrongly cancelled according to a recent survey. The petition was filed on behalf of the mother Koili Devi and sister Gudiya Devi of Santoshi, an 11-year-old girl from Simdega, Karimati in Jharkhand who died of starvation on September 28, 2017.

The petition highlighted that Santoshi’s death was due to the cancellation of her poor Dalit family’s ration card since it had not been linked to their Aadhaar card. Their rations had been stopped from March 2017, because of which, the entire family had been starving. On the day of Santoshi’s death, her mother served her some tea and salt – the only two things they had left. Later that night, Santoshi died, the plea said. Gonsalves has contended that in many states, the “notification is there but when tribals go to the centres there is no ration.”

(Source: ANI)

Hot Off The PressNews

Supreme Court: The Court has asked the Centre to explain within two weeks why it has stopped the supply of ration to the Mizoram Bru refugees in seven relief camps in Tripura that led to starvation deaths.

“Take instructions and tell us in two weeks. Don’t do this, whatever is the reason. Don’t let people die in this manner,”

Senior advocate Colin Gonsalves appearing for the Mizoram Bru Displaced People’s Forum apprised the Bench that 40,000 people in seven relief camps in Tripura are affected by the Centre’s decision.
The Centre had stopped the supply of ration from October this year and within one month four children had died, argued Gonsalves.

The petition seeks:

  • proper security and proper rehabilitation for the Brus, a scheduled tribe constituting the largest minority group in Mizoram, which was subjected to genocide by the militant Mizo organisation in 1995 and 1997, resulting in thousands of Brus fleeing to Tripura and setting up relief camps where 6,000 families reside today.
  • Direction to the Centre to double the quantity of the ration supply and improve its quality by including more diverse nutritious commodities such as pulses, oil, etc.
  • Direction to the State of Tripura to issue necessary orders for registration of FIRs in the six starvation deaths which have taken place amongst the Bru IDPs at Tripura since October 1 against the officers responsible for withholding the ration supply to the Bru IDPs.
  • Direction to constitute a special investigation team comprised of
    • officials from outside the State of Mizoram and Tripura, and not under any administrative control of the Union of India; and
    • an independent nutritional expert, to investigate the aforementioned six starvation deaths in a time-bound manner;
  • Release of compensation of Rs 1 crore each to the family of the six starvation death victims.

(Source: ANI)

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ that it would accord final hearing in August on a batch of petitions challenging the Centre’s decision to deport illegal Rohingya Muslim immigrants to Myanmar.

The top court is also seized of petitions which support the government’s stand to deport over 40,000 Rohingyas, who fled to India after violence in the Western Rakhine State of Myanmar and are settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan.

The Court asked the counsel for parties to submit their written submissions in the meantime,

“Pleadings are complete. Parties are required file brief written submissions,”

Initially, two Rohingya immigrants — Mohammad Salimullah and Mohammad Shaqir, who are registered refugees under the United Nations High Commission of Refugees (UNHCR), had moved the Supreme Court in 2017 challenging the move to deport to Rohingyas on various grounds including that it violated international human right conventions.

“Proposed deportation is contrary to the constitutional protection of Article 14 (Right to Equality), Article 21 (Right to Life and Personal Liberty) and Article 51(c) of the Constitution of India, which provides equal rights and liberty to every person. This act would also be in contradiction with the principle of ‘Non-Refoulement’, which has been widely recognised as a principle of Customary International Law,”

The plea had also sought a direction that Rohingyas be provided basic amenities to ensure that they can live in humane conditions as required by international law.

The Centre had questioned the bonafides and motives of the NGOs and individuals seeking facilities for the Rohingya refugees, and stated that there is no discrimination between Indians and outsiders in providing health and education facilities.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J has asked the Chief Secretaries and DGPs of all the States and Union Territories to take strong and necessary measures to prevent attacks of Kashmiris and other minorities as an aftermath of the Pulwama Terror Attack. It directed:

“The chief secretaries, the DGPs and the Delhi Police Commissioner are directed to take prompt and necessary action to prevent incidents of threat, assault, social boycott etc against Kashmiris and other minorities.”

The bench sought responses from 10 State Governments, namely, are Jammu and Kashmir, Uttarakhand, Haryana, Uttar Pradesh, Bihar, Meghalaya, Chhattisgarh, West Bengal, Punjab and Maharashtra.

Directing that the police officers who were appointed as nodal officers to deal with incidents of mob killings will now be responsible to deal with cases of alleged assault on Kashmiris, the Court directed the Ministry of Home Affairs to give wide publicity of the nodal officers’ contact details so that those who need help can approach them easily.

The matter will next be heard on February 27.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjay Kishan Kaul, JJ has set aside the Bombay High Court decision refusing the Maharashtra Police a ninety-day extension to file the charge-sheet under the Unlawful Activities Prevention Act, 1967 against the human rights activists in Bhima Koregaon violence case.

Background of the case:

The activists Surendra Gadling, Mahesh Raut, Rona Wilson, Professor Shoma Sen and Sudhir Dhawale were arrested after an FIR was lodged alleging that members of the ‘Kabir Kala Manch’, under the head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of the Elgar Parishad, where active members of CPI (Maoist) supposedly raised inflammatory slogans and engaged in certain other allied activities, with the intention to conspire, incite and abet the commission of terrorist acts and other unlawful activities by using violent means, thus, promoting enmity between different groups, which ultimately culminated 2 in the break-out of violent riots on 1.1.2018, at a place popularly known as Bhima Koregaon, where a large population of people was said to have gathered to celebrate the 200th anniversary of the battle at Bhima Koregaon.

Alleged non-compliance of the proviso to Section 43D(2)(b) of the Unlawful Activities Prevention Act, 1967:

On the question that whether the necessary ingredients of the proviso to Section 43D(2)(b) of the said Act were set out in the application for extension of a period of 90 days, for further investigation and filing of charge-sheet in the said crime, the Court explained that there are certain requirements that need to be fulfilled, for its proper application of the proviso to Section 43D(2)(b). These are as under:

  1. It has not been possible to complete the investigation within the period of 90 days.
  2. A report to be submitted by the Public Prosecutor.
  3. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days.
  4. Satisfaction of the Court in respect of the report of the Public Prosecutor.

After perusing the material placed before it, the Court said that it cannot accept the argument that the material set out in the document does not meet with the requirements of the proviso, insofar as the reasons for seeking extension for the period of investigation are concerned. It, however, said that there is no doubt that the report/application of the public prosecutor, setting out the reasons for extension of 90 days of custody to complete investigation leaves something to be desired.

It was, however, noticed:

“The first document, purporting to be the application of the IO, contains the reasons for such extended period of investigation but the second document details out the grounds in extenso and cannot be said to be only a mere reproduction of what is stated in the first document. It cannot, thus, be said that there has been complete absence of application of mind by the public prosecutor. Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.”

Ruling:

The Court, hence, set aside the Bombay High Court order and held that the respondents would not be entitled to the benefit of default bail. The Court, however, clarified that since charge-sheet has been filed, the observations made in the present order wouldn’t affect the right of accused to seek regular bail.

[State of Maharashtra v. Surendra Pundlik Gadling, 2019 SCC OnLine SC 188, decided on 13.02.2019]

Law School NewsOthers

The Centre for Advanced Studies in Human Rights (CASIHR), the premier human rights think tank of Rajiv Gandhi National University of Law, Punjab had recently observed October 2018 as ‘Human Rights Month’ within the campus. In a one of a kind move, the aim of the Centre was to raise awareness on human rights issues and expand the contours of such discourse on campus. The student members with the active support and leadership of Dr. Shilpa Jain, faculty coordinator, decided that devoting an entire month to the cause was the best way to sufficiently address the problem of Human Rights.

Several events were organised and they ran smoothly throughout the course of the month. Some were aimed to be thought-provoking and academic while others were more inclined to raise awareness through fun and games. The underlying purpose, however, was to facilitate an active and impassioned exchange of ideas between students.

The flagship event of Human Rights Month – October 2018 was ‘Conversations: A Human Rights Dialogue’. Envisaged as but a means to provide a platform for senior students to share their ideas on human rights with others, this two-part lecture series/academic discussion proved to be a great success. Headlined by two fifth-year speakers Mr. K.S.Roshan Menon and Mr. Raghav Mendiratta, the event drew a sizable audience and ended up creating quite a buzz around campus. These no-holds-barred discussions threw open the floor to all manner of questions from the audience and the resulting exchanges were equally entertaining and enlightening.

Perhaps the most popular of all the events held during Human Rights Month was ‘InQUIZitions: A Human Rights Quiz’. A first of its kind quiz focusing solely on world events relating to human rights, the event saw active participation from many interested students. The competition was fierce and the cash prizes up for grabs made things more compelling. The Quiz was of 3 rounds went on for about 2 hours. In the end, the event was concluded in a cordial manner with the prize winners undisputed and accepted by all. Also noteworthy were the quizmasters taking great pains to ensure that every participant left a little bit wiser than before.

Another major event organised by CASIHR was the Research Paper Writing Competition. With the objective of encouraging the research and writing skills of the students, this competition was announced with cash prizes and the opportunity of being published in the CASIHR Journal of Human Rights Practise (CASIHR JHRP), the flagship human rights journal of RGNUL, Punjab. The review process for the same is still underway.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of a media report that a six year old girl, studying in a government school in Delhi, has been allegedly raped by a person working as an electrician with the school around 1.30 P.M. on the 8th August, 2017.

The Commission has observed that the contents of the news report, if true, amount to violation of human rights of the victim. Accordingly, it has issued notices to the Chief Secretary, Government of NCT of Delhi and the Commissioner of Police, Delhi calling for a detailed report in the matter within four weeks. The Chief Secretary is expected to inform whether all the guidelines/directions issued by the authorities for the safety of the students are being followed by the schools in Delhi. The Commission has also observed that the incident is reported to have happened in a government school. Being the custodian of the students, the school authorities are responsible for the safety and security of its students, especially the girl students. Prima Facie the incident indicates towards negligence by the school administration.

The NHRC also feels that there should be a State Human Rights Commission in Delhi to deal with such cases of alleged violation of human rights. However, till it comes into existence, it would continue addressing the issues pertaining to the NCT of Delhi. According to the media report, carried on the 10th August, 2018, the incident took place when the victim girl was about to return home, but she was stopped by the accused. The accused also allegedly warned the victim not to tell it to anyone. The victim was medically examined and the reports confirmed that she has been subjected to rape. An FIR in the matter has been registered by the police and the accused has been arrested.

National Human Rights Commission

Conference/Seminars/LecturesLaw School News

Law Mantra is organising a one Day International Seminar on Human Rights & Persons with Disabilities, on 2nd December, 2018 at the Indian Law Institute, New Delhi in academic collaboration with CASIHR (Rajiv Gandhi National University of Law, Punjab), Maharashtra National Law University, Nagpur & International Council of Jurists, London.

Chief Patron: Justice Deepak Verma, Former Judge, Supreme Court of India

Patron: Prof. (Dr.) Paramjit S. Jaswal, Vice-Chancellor, Rajiv Gandhi National University of Law, Punjab.

             Prof. (Dr.) Vijender Kumar, Vice-Chancellor, Maharashtra National Law University, Nagpur.

Date: 2nd December, 2018

Venue: Indian Law Institute, Bhagwan Dass Road, New Delhi.

About Law Mantra

“Law Mantra” (headquarters New Delhi) (Registration No 150 in Book No. 4 Vol. No. 3, 603 0f 2018) is not for profit organisation running for the purpose of enhancing legal academics and legal awareness in the society and in the practice of the same. “Law Mantra” is a body of Jurists, Advocates, Academicians and Students running for the purpose of enhancing legal academics and legal awareness in the society and in the practice of the same. We at Law Mantra enable people to take responsibility for the situation of the deprived Indian women and children and so motivate them to seek resolution through individual and collective action thereby enabling women and children to realize their full potential.

Human Rights & Persons with Disabilities

The great German Philosopher Immanuel Kant has quoted that human beings are rational beings, therefore worthy of dignity and respect. Every individual has the basic right to live a dignified life and to exercise his freedoms and choices. The same phrase is equally applicable to persons with disabilities. But despite of this fact, persons with disabilities are subjected to discrimination. The one major factor of such discrimination is stigmatized societal attitude.

A mechanism of social integration of persons with disabilities has been made by following different international conventions and documents. Now world has joined to consider disability jurisprudence as an inseparable part of the international law. Universal Declaration of Human Rights and the Declaration on the Rights of Disabled Persons and Convention on the Rights of Persons with Disabilities are few important documents justifying the aforementioned proposition.

In a recent report of WHO, an estimated 10% of the world’s population –approximately 650 million people, of which 200 million are children, experiences some form of disability. The number of people with disabilities is growing as a result of different factors including population growth, ageing and medical advances that preserve and prolong life.

Across the world, people with disabilities have poorer health outcomes, lower education achievements, less economic participation and higher rates of poverty than people without disabilities. This is partly because people with disabilities are facing barriers in accessing services that many of us have long taken for granted. These services mainly include health, education, employment, transport and information. These difficulties are exacerbated in less advantaged communities.

To achieve the long-lasting, vastly better development prospects that also lie at the heart of the 2015 Millennium Development Goals and beyond, we must empower people living with disabilities and remove the barriers which prevent them participating in their communities; getting a quality education, finding decent work, and having their voices heard.

People with disabilities report seeking more health care then people with without disabilities and have greater unmet needs. For example a recent survey of people with serious mental illness showed that between 35% and 50% of people in developed countries and between 76% and 85% in developing countries received no treatment in the year prior to study. Health promotion and prevention activities seldom target people with disabilities. For example women with disabilities receives less screening for breast and cervical cancer than women without disabilities. People with intellectual disabilities are less likely to have their weight checked. Adolescents and adults with disabilities are more likely to be excluded from sex education programs. These factors from world report on disability by World Health Organization clearly indicates that there is need to work at the ground level so that persons with disabilities can enjoy their human rights without any difference from others.

The present seminar is aiming at highlighting different issues underlining disability jurisprudence from human rights perspective. We welcome different stakeholders including persons with disabilities, disability law activists, academicians, researchers, lawyers, medical professionals and bureaucrats.  This seminar is a noble initiation of Law Mantra in association with RGNUL Punjab through its Research Centre for Advanced Studies in Human Rights, upcoming Centre for Disability Studies and Health Laws and MNLU, Nagpur. We are considering this seminar as a platform to initiate a RIGHT discourse, expecting thought provoking, multidisciplinary, quality research papers.

Themes for Seminar

  • Social Integration and Challenges
  • Human Rights of women, children & sex workers
  • Discrimination and Human Rights violation
  • The role of National Human Right Commission in promotion and protection of Human Right
  • Human Rights of Indigenous people
  • Mob Lynching and Vigilantism
  • Conflict between IPR/Business Law and Human Rights
  • Disability as a Social Impairment
  • Social Model of Disabilities and Human Rights
  • Disability and Human Rights: Legal Framework
  • International Humanitarian Law and Rights of Persons with Disabilities
  • Healthcare and Disability
  • Medical Professionals and Interaction with Persons with Disabilities
  • Reproductive Rights of Women with Disabilities: International Human Rights Perspective
  • Right to Education and Persons with Disabilities
  • Right to Employment and Disability
  • Healthcare and Treatment of Persons with Disabilities: A Issue of Consent
  • Healthcare and Privacy Issues related to Persons with Disabilities
  • Comparative study on Disability Laws and Policies
  • Indian Laws and UNCRPD: Future of Disability Laws

Note: These Themes are not exhaustive; Authors are open to work on any topic related to above-mentioned theme.

Procedure for Submission of Abstracts: Abstract (of about 250 words) should be sent as an attachment in a word file. Abstracts will be peer reviewed before they are accepted. The following information, in the given format, should be send along with the Abstract:

  • Name of the Participant
  • Official Designation/Institution Details
  • Address and Email id
  • Title of Abstract
  • Abstract

The subject line of Email should read as: ‘Abstract Submission for International Seminar on Human Rights & Persons with Disabilities”.

Guidelines for Paper Submission

  • The title of the paper should be followed by Name, Designation, Name of the Organization / University / Institution and Email address. It is mandatory to mention Email address, as all future correspondence will be through it.
  • Name and details of Co-author, if any.
  • The paper should be typed in MS WORD format (preferably 2007 or 2010).
  • The paper must be in single column lay out with margins justified on both sides.
  • The sub heading should be in font size 12, bold and Times New Roman, left aligned.
  • The main text should be in font size 12, Normal, Times New Roman, 1.5 spacing and Justified.
  • The length of paper should not exceed 6,000 words (including footnotes). Exceeding the word limit may lead to rejection of paper.
  • All references must be in the form of footnotes with font size 10 and should be according to the Bluebook 19th Edition.

Publication Opportunity: All papers accepted for the conference will be published in UGC Referred Book bearing ISBN, CASIHR Journal on Human Rights Practice (JHRP) by RGNUL, Contemporary Law and Policy Review – NLU Nagpur, International Journal of Legal Research and Governance and Law Mantra Journal. (If Selected for Publication in UGC Referred Book bearing ISBN, Publication Charge will be Extra as Per bill of Publication House).

REGISTRATION FEE FOR PRESENTATION OF PAPER
Students Rs 1500/-
Faculties/Professionals/Research Scholars/Others Rs 2000/-
Presentation in Absentia for Students Rs 2000/-
Presentation in Absentia Faculties/Professionals/Research Scholars/Others Rs 2500/-
REGISTRATION FEE FOR ATTENDING THE SEMINAR
Students Rs 800/-
Faculties/Professionals/Research Scholars/Others Rs 1200/-
IMPORTANT DATE
Submission of Abstract 05th October, 2018 (Extended)
Confirmation of abstract selection 07th October, 2018 (Extended)
Registration 25th October, 2018
Submission of full paper 27th November, 2018
Seminar Date 2nd  December, 2018

Who Should Attend?

Students, Research Scholars/Faculties/Academicians, Disability Rights Activist, Corporate Delegates, Business entities, Lawyers.

Rules for the Participants:

  • No abstract or full paper shall be accepted after the last date of submission respectively.
  • Participants/Paper Presenters have to register after the acceptance of abstract with payment of required fees.
  • For participation, registration is mandatory on confirmation of the participation. Only registered participants will be allowed to take part in Conference.
  • All the registered participants will be provided a participation certificate, conference kit, lunch and tea.

Note: The authors and co-authors both have register separately. The registration fee includes conference kit, lunch, High Tea, entry to all Technical session, and Certificates.

Eastern Book Company and SCC Online are proud to associate as Law School Partners. Please mention SCC Online Blog as reference.

Registration: Submit your abstract to editor.lawmantra@gmail.com with Subject line ‘Human Rights & Persons with Disabilities”.

Contact: For any queries, feel free to drop email to editor.lawmantra@gmail.com  Human Rights & Persons with Disabilities  or call on +91- 9310053923, +91-9667822453.

To view the Brochure, click HERE

Website: www.lawmatra.co.in

www.lawmantra.org

Conference/Seminars/LecturesLaw School News

Knowledge Steez along with Youth for Human Rights, Nepal brings to you Winter School on Human Rights 2018 taking place at Hotel Thamel Park, Kathmandu, Nepal from 24th December 2018- 29th December 2018.

Participation: We at Knowledge Steez invite all the ardent Students, Professors, Faculty Members, Human Right Activists and anyone anxious to learn about Human Rights.

Early Registration (before 30th September 2018)

  • Delegates from India; 12000 INR
  • Delegates from India (with accommodation); 18000 IN
  • Delegates from Nepal (without accommodation); 14000 NPR
  • Delegates from Nepal (with accommodation); 22000 NPR
  • Other Delegates; 200 USD (without accommodation) and 300 USD (with accommodation)

Registration Fee (after 30th September 2018)

  • Delegates from India; 14000 INR
  • Delegates from India (with accommodation); 20000 INR
  • Delegates from Nepal (without accommodation); 16000 NPR
  • Delegates from Nepal (with accommodation); 24000 NPR
  • Other Delegates; 200 USD (without accommodation) and 350

Mode of payment

Wire Transfer:

Recipient:

Bank Name: Mega Bank Nepal ltd.

Address: New Road Branch, Kathmandu, Nepal

Swift Code: MBNLNPKA

Account Name: Youth for Human Right, Nepal

Account No.:0100010102086

Western Union/Moneygram/IME:

Recipient Name: Rahul KC

Address: Kathmandu, Nepal, Contact: +977 9851189599

Kindly mail the receipt at winterschoolnepal2018@gmail.com

Instructions:

  • Accommodations not be provided to all participants. Only those who opt for accommodation will be provided with accommodation.
  • The organizers will only provide a letter for VISA purposes. Apart from this, the organizers will not take any responsibility for VISA of the participant.
  • Accommodation will be provided on twin sharing basis.
  • The registration fee will not include transportation (local, international).
  • It is advisable for participants to have health Insurance Policy

Refund of Registration fee: In case an applicant wants to withdraw his/her application, (in such a case, 70% of the application fee will be refunded back) (in case refund application is given before 30th November) and if the refund application is made after 30th November then no refund will be made to such an applicant.

What’s special: The Winter School will act as a platform for Delegates from various countries to come forward and learn about Protection and Enforcement of Human Rights in their respective countries. The content for the subject is developed by the experts of Human Rights and the content has been developed keeping in mind the needs and circumstances of different countries. The Delegates will also get an opportunity to discuss the situation prevailing in the country and can at the same time suggest the appropriate solution to others.

Contact us: Phone: 7782044252 | Email: winterschoolnepal2018@gmail.com  | Web: www.knowledgesteez.com

Law School NewsOthers

The admissions for Diploma in Human Rights & Laws will commence from 17th July 2018. Last date for applying is 30th July 2018. Interested students can register themselves online through Net Banking, Credit Card, SBI Branch (Cash Deposit). Admission will be confirmed on payment of the fees.

Number of seats : 50

Fees :

1. Rs 10000 + 18% GST = Rs 11800/- ( Current ILS students )

2. Rs 12000 + 18% GST = Rs 14160/- (Non ILS including ex-students of ILS)

Class timings and days : Every Tuesday and Wednesday 8.00 am to 10.00 a.m.

Course Co-ordinator: Dr Sita Bhatia.

The lectures will begin from 31st July at 8.00 a.m.

Course contents:

Module I:      Theoretical/ Philosophical /jurisprudential Approach

Module II:     International & Regional Human Rights Approach

Module III:   Human Rights under Domestic Laws and case laws

Module IV:   Judiciary and Human rights

Module V:     Human Rights of various vulnerable persons and groups

Module VI:   Study of various commissions on Human Rights

Module VII: a) Media & human rights

b) Public Participation & human rights

c) NGOs & INGOs and human rights

Module VIII:   Humanitarian Laws

a) Human Rights & Development

b) Human Rights & Right to self determination

Module IX:  Project/Dissertations on various Human Rights topics/issues

Module X:   Practical and Legal Training

Duration:  2 semesters

Eligibility: 1.  II, III, IV and V year BSL LLB or

    2. .All years of Three Year Law Course (LL.B.) or

    3. Graduation in any faculty

Seats: Minimum 20; Maximum 40

Classes: Tuesday & Wednesday (1.30 p.m. to 3.30 p.m.)

Assessment Pattern:  Written examination   50 marks

  Viva-voce                      20 marks

  Dissertation                  30 marks

   Total                             100 marks

Case BriefsSupreme Court

Supreme Court: Terming the Hadiya case as the perfect example of “patriarchal autocracy and possibly self ­obsession with the feeling that a female is a chattel”, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala High Court verdict and held that the High Court has completely erred by taking upon itself the burden of annulling the marriage between two consenting adults, namely, Hadiya and Shafin Jahan.

Below are the important facts of the case:

  • 24-year-old Akhila alias Hadiya, had converted to Islam after staying with 2 of her friends, Jaseena and Faseena, while completing her Bachelor of Homeopathic Medicine and Surgery (BHMS) degree.
  • Hadiya refused to return to her father Asokan’s place after he filed a writ of habeas corpus before Kerala High Court in January, 2016 on the apprehension that his daughter was likely to be transported out of the country.
  • Hadiya continued to stay at the house of her aforementioned friends. She expressed her desire to complete her House   Surgeoncy   at  the  Shivaraj Homeopathic   Medical   College, Salem which has a hostel for women   where   she   was   willing   to   reside   for   the   purpose   of completing her House Surgeoncy.
  • On 21.12.2016, Hadiya appeared before the High Court and a statement was made that she had entered into marriage with Shafin Jahan. High Court noted that the marriage was totally unexpected.
  • High Court in the impugned judgment held that a girl aged 24 years is weak and vulnerable and capable   of   being   exploited   in   many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age and hence, the custody of Akhila alias Hadiya should be given to her parents.

The Kerala High Court allowed her to complete her studies but held:

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents. The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”

CJI, writing for himself and Khanwilkar, J, held that non­-acceptance of Hadiya’s choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived.

He wrote:

“The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock.”

Chandrachud, J also came down heavily upon the Kerala High Court for following an erroneous approach and writing down a separate but concurring judgment, said:

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226.”

The Court, however, permitted the National Investigation Agency (NIA) to continue the investigation in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.”

The Court had passed the operative order in the present matter on 08.03.2018.

[Shafin Jahan v. Asokan K.M.,  2018 SCC OnLine SC 343, decided on 09.04.2018]

Hot Off The PressNews

Supreme Court: The Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ asked the Central government to file a comprehensive status report, giving details on the condition of Rohingya camps in Haryana, Jammu and Kashmir and Delhi-NCR after Senior advocate Colin Gonsalves submitted before the Court that the conditions at the Rohingya camps are “unhygienic and pathetic”.

Colin Gonsalves, appearing for one of the petitioners, told the Court that the refugees had no access to clean sanitation facilities such as toilets and clean drinking water, that was leading to their deaths and that  the Centre and the states, hosting these refugees, should be asked to provide better hygienic facilities at these camps.

The Rohingya immigrants, who fled to India after violence in the Rakhine state of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan. More than 600,000 refugees are languishing in Bangladeshi refugee camps after fleeing a brutal Myanmar army campaign launched in August last year.

Source: ANI

Op EdsOP. ED.

Indian judiciary has taken up a much-needed active role in the policies of the nation. Rather than being silent spectators to the policies or passive onlookers to lack thereof, Indian judiciary has rightly protected the citizens by judicial activism. Indian courts are not finding opportunities for judicial activism, adventurism or overreach but are compelled to do so because of legislative and executive inaction that deprive citizens of the basic freedom i.e. right to life, right to breathe clean air, right to proper livelihood, right to sleep, etc. guaranteed by Article 21. One of the most prominent developments from judicial activism has been in environmental jurisprudence. The lack of proper policies, incompetency to implement laws and absence of capable authorities has compelled courts to overstep their power, rightfully so in many environment cases, where the Government and public authorities have failed to take appropriate steps and ensure the safety and peace of mind of citizens guaranteed by the Constitution.

A country riddled with power, poverty and pelf, with the legislature and executive in the nucleus of it, it is imperative for judiciary, an authoritative independent unbiased body, to guarantee human rights to citizens. Kesavananda Bharati[1], Maneka Gandhi[2] and S.P. Gupta[3] has opened floodgates for judicial activism. In Kesavananda Bharati[4] CJI Sikri authored the basic feature doctrine that till date remains the bedrock of the Indian Constitution. Maneka Gandhi[5] vested power with the Court to adjudge if a particular action, matter, policy or even law was just, fair and moral. The Indian Court is vested with the power of judicial review under Articles 32 and 226 with the aid of writs and public interest litigation (PIL), the Supreme Court and the High Court have been able to deal with series of public grievances and flagrant basic human right violations by the State.

In Municipal Council, Ratlam v. Vardichan[6], Court held that it was compelled to overstep its power because of the “callous public bodies habituated to deleterious inaction[7]”. Inaction by municipal authorities to eliminate stink and stench of open drains, forced the Court, while upholding Article 21— right to life, to order municipal authorities to take immediate actions to provide basic amenities to residents and construct sufficient drains and provide water supply. In Goa Foundation v. Konkan Railway Corpn.[8], the Court while noting that although the Government was not powerless to act but just chose not to, ordered the lethargic Government to take action against pollution caused by mines. In M.C. Mehta v. State of Orissa[9], the Court while upholding Article 21 — right to life, established a law of “polluter pays” and “absolute liability”, when State functionaries failed to take appropriate measures and eradicate problems of proper dumping of waste materials. In 2005, because of the absence of appropriate action taken by the Government, the Court ordered a complete ban on sound emitting firecrackers from 10 p.m. to 6 a.m. in the light of Article 21— right to life[10]. Seeing the soaring air pollution rate during Diwali in the previous year, in 2017, the Court, upholding Article 21 — right to breathe clean air and noting “the response of the Government [being] lethargic with the absence of any keenness to take proactive steps[11]”, ordered ban on the sale of firecrackers because of Governments incompetence to issue necessary directions. In each of such judgments, the judiciary has rightfully overstepped its powers only because of the legislatures and executives inaction to ensure the basic right to life to its citizens.

Surely, even after the much-needed orders passed by the courts in such gross violations of human rights, the judiciary’s competence to act outside its scope remains a point of contention as it defeats the doctrine of separation of powers. At the same time, courts are supposed to and entitled to exceed its scope of its mandate to protect interests of the public to fill the voids left by the legislature and the executive[12]. The judiciary inherently is the sentinel qui vive — watchdogs on the lookout[13]. Courts have rightly viewed human rights and environmental protection on the same footing and while acting as the guardian of fundamental rights has protected the right of each individual in regard to environment under Article 21. It is contended that judiciary is not a competent body in such cases as it is not a representative body. Justice A.K. Goel, while striking down National Judicial Appointments Commission (NJAC), held that “even if the judiciary is not an elected body today, it discharges constitutional functions as per the will of the people reflected in the Constitution and the task determining the powers of various Constitutional organs is entrusted to the judiciary”[14]. It is well established that the judiciary is the watchdog of the nation and it ought to/should overstep its boundaries to maintain safety, peace and order. The courts are rightly entitled to participate actively in the welfare and betterment of the society and impose rules and regulations be it in cases of environmental degradation[15], custodial violence[16], education reforms[17], corruption in private organisations[18], illegal slaughter[19], sexual harassment[20], etc. to ensure right to life to citizens guaranteed by Article 21 that is infringed or overlooked by the incompetence and inaction of responsible authorities.

 

*Manavendra Gupta, Member, Young ICCA (International Council for Commercial Arbitration); LL.B., O.P.Jindal Global University (Class of 2019); B.A., Political Science and Economics, UMass Amherst (Class of 2016)

[1]  Kesavananda Bharati v. Union of India, (1973) 4 SCC 225.

[2]  Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[3]  S.P. Gupta v. Union of India, 1981 Supp SCC 87.

[4]  (1973) 4 SCC 225.

[5]  (1978) 1 SCC 248.

[6]  (1980) 4 SCC 162 : AIR 1980 SC 1622.

[7]  Ibid.

[8]  1992 SCC OnLine Bom 205 : AIR 1992 Bom 471.

[9]  1992 SCC OnLine Ori 19 : AIR 1992 Ori 225.

[10]  Noise Pollution  (V), In re, (2005) 5 SCC 733.

[11]  Arjun Gopal v. Union of India2017 SCC OnLine SC 1071, para 58.

[12]  Sathe S.P., Judicial Activism in India, Oxford University Press, 2003.

[13]  Nariman Fali, V.R. Krishna Iyer Memorial Lecture Series — The Super Judge, 2016.

[14]  Supreme Court Advocates-on-Record Assn. v. Union of India, A.K. Goel J., (2016) 5 SCC 1, 723, para 1070.

[15]  Arjun Gopal v. Union of India, 2017 SCC OnLine SC 1071 .

[16]  Nilabti Behera v. State of Orrisa, (1993) 2 SCC 746 (Ss. 41-A, 41-B, 41-C, 41-D of CrPC).

[17]  Christian Medical College v. Union of India, (2014) 2 SCC 305.

[18]  Board of Control for Cricket in India v. Cricket Assn. of Bihar, (2017) 2 SCC 333.

[19]  K. Ragu Rama Krishna Raju v. State of A.P., (2015) 3 SCC 550.

[20]  Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of media reports about the killing of an alleged gangster, Sumit Gurjar, in an encounter by police in Greater NOIDA, Gautam Budh Nagar, Uttar Pradesh on 3rd October, 2017. It has issued notices to the Chief Secretary and the Director General of Police, Uttar Pradesh and calling for a report in the matter within four weeks.

Reportedly, the family members of the deceased have alleged that he was killed in a staged encounter after police had picked up him from a market. They along with villagers protested against the police action near the mortuary at Sector- 94 of NOIDA and also blocked the traffic at Mahamaya Flyover for about 45 minutes.

The Commission has observed that the allegations leveled by the family members and the villagers, if true, raise serious issue of violation of human rights of the deceased and the aggrieved family. Elimination of a criminal in such an unlawful manner can never send a good message to a civilized society. As has been emphasized time and again, the police do not have a right to take away life of a human being. It is not the lawful way to deal with the criminals.

The Commission has already issued guidelines to deal with the matter relating to deaths in police encounter which have been circulated vide a letter dated 12th May, 2010 written by the Chairperson, NHRC to the Chief Ministers of all States and the Union Territories.

According to the media reports, the deceased Sumit Gurjar was wanted in a case of double murder and robbery. He had been taken into custody by the Noida police but no satisfactory answer was given by the police officers. It was only when the television broke the news that his family members came to know about his encounter.

Reportedly, the police authorities have denied the allegations of a fake encounter. The personnel of Kasna and Bisrakh police stations have claimed that the deceased was shot dead in an encounter in which his three accomplices managed to escape. According to the Senior Superintendent of Police, Gautam Budh Nagar, a fair investigation into the matter will be conducted.

National Human Rights Commission

Case BriefsSupreme Court

Supreme Court: In the case where 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ listed the matter for further hearing on 21.11.2017. The Court said:

“As the hearing is likely to take some time, we intend to devote certain clear days for the purpose of hearing.”

Though the order of the Court does not expressly say anything on the deportation of the Rohingya Muslims, the Central Government will not be able to deport them till the next date of hearing. Fali S. Nariman, appearing for petitioners had submitted before the Court that he will approach the Court in case of any contingency.

The Court had said during the hearing that the matter was of great magnitude and hence, it will have to strike a balance between National Security and the human rights of the women and children.

Earlier, Centre had argued before the Court that more than 40,000 Rohingya Muslims have illegally migrated to India by using the porous border between India and Mayanmar and as per the reports of the Security agencies, some of the Rohingya Muslims have links with the Pak terror groups. It was also argued before the Court that some illegal immigrants have obtained fake Indian identities and are involved in serious crimes like Human Trafficking and mobilisation of funds  by way of Hundi and Hawala Channels. [Mohammad Salimullah v. Union of India, Writ Petition (Civil) No.793/2017, order dated 13.10.2017]

[With inputs from ANI]