NHRC

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, India has expressed concerns over the living conditions of slum dwellers in Mumbai.

Acting on a complaint in this regard, the Commission issued notices to the Government of Maharashtra and the Union Ministry of Housing and Urban Affairs seeking their responses.

The Government of Maharashtra responded, through its Chief Secretary, that several efforts have been made and schemes formulated to provide dwelling units to the slum dwellers for Economically Weaker Sections with the State and Central assistance under Pradhan Mantri Awaas Yojna (Urban), PMAY (U). Shortage of funds has been cited as a constraint.

The Centre on its part responded that out of 2.24 lakh houses in Maharashtra, 2 lakh were sanctioned for Mumbai alone, out of which 58225 have been grounded.

The Commission has sought a response from the Secretary, Union Ministry of Housing and Urban Affairs to give a comprehensive report. He has been given 4 weeks’ time. The Union Ministry of Housing and Urban Affairs vide its communication dated 3rd December, 2021, submitted that the Land and Colonization are State subjects. The Centre is augmenting the efforts of the State to meet the housing needs of economically weaker sections in urban areas through Pradhan Mantri Awaas Yojna-Urban (PMAY-U).

National Human Rights Commission

[Notice dt. 7-1-2022]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., dismissed a writ petition filed by the State seeking a writ for setting aside the show cause notice and orders passed by the National Human Rights Commission (NHRC) relating to the suicide of an under trial prisoner (UTP) Roshan Chettri in District Jail, Namchi, as being arbitrary and illegal.

NHRC had issued a show cause notice to the Chief Secretary of the petitioner in this relation further adding that the Investigation Division of NHRC after collecting/analyzing relevant reports/records has submitted that the deceased UTP was a covid-19 positive patient and was in quarantine along with another UTP. On 04.04.2020, at 11 a.m., the deceased made an attempt to commit suicide by hanging on the door of his cell with the help of cloth of the blanket provided to him but that act was noticed by his cell mate who caught hold his body and called out for help. Subsequently, jail authorities arrived and brought him down by cutting the blanket cloth. He was immediately shifted to hospital wherein he died during the treatment. The inquest and the Post Mortem Examination (PME) revealed no injury on the body of the deceased other than ligature marks, the cause of death was asphyxia due to hanging. The notice required the petitioner to show cause as to why monetary compensation of Rs.3,75,000/- should not be recommended under section 18(a)(i) of the Protection of Human Rights Act, 1993, to be paid to the next of kin of the deceased Roshan Chettri.

The petitioner responded to the show cause notice stating that no case of negligence on the part of jail administration was found during the judicial enquiry by the Judicial Magistrate, South Sikkim at Namchi. In the meanwhile, Dilip Chettri, father of the deceased filed a writ petition praying for a direction upon the state respondents to pay compensation to the tune of Rs.20,00,000/- as well as for an independent investigation of the incident of the alleged suicide by a retired judge or a government officer or any other person as deemed fit. The writ petition was taken up by the Single Bench of this court and was dismissed in limine.

The petitioner claimed to be aggrieved on counts :

  • that inspite of the dismissal of W.P.(C) No. 02 of 2021 (supra) by this court, the NHRC has passed the impugned orders which was barred by the principle of res judicata;
  • that the show cause notice and the impugned orders did not disclose the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights;
  • that the NHRC could not have entertained the complaint under Regulation 9(xi) and 9(xii) of the National Human Rights Commission (Procedure) Regulations, 1994; and
  • that the NHRC did not consider the final inquiry report dated 20-5-2021 of the learned Judicial Magistrate and the final report of the Namchi Police Station.
  • It is further argued that merely because suicide took place during the day, it does not in any manner corroborate or substantiate that there was any negligence on the part of the police authorities.

The Court relied on the decision of the Supreme Court in Dario v. State of Uttar Pradesh, AIR 1961 SC 1457 and reiterated that if the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata and although, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the court took the view that there was no substance in the petition at all, but in the absence of the speaking order it would not be easy to decide what factors weighed in the mind of the court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata.

The Court further held that the State is vicariously liable to compensate the next of kin of the deceased UTP. It is not the case of the petitioner that the jail was not under its control when the incident happened in the manner described and admittedly inside the jail.

The petition was finally dismissed holding it as misconceived.[State of Sikkim v. NHRC, 2021 SCC OnLine Sikk 183, decided on 03-12-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Mr Hissey Gyaltsen, Assistant Government Advocate for the petitioner.

Hot Off The PressNews

The National Human Rights Commission,  India has taken suo motu cognizance of a media report that the eyes of six patients had to be removed due to botched up cataract surgeries at Shrikrishna Medical College & Hospital, SKMCH in Muzaffarpur, Bihar on 22nd November, 2021. The doctors may require removing the eyes of about a dozen more patients due to infections after the surgery. Reportedly, as per medical protocol, a doctor could conduct upto 12 surgeries, but in this case, the doctor conducted surgery on 65 patients.

The Commission has observed that the contents of the media report, if true, raise a serious issue of human rights violation. Conducting eye surgeries in such a reckless manner, violating norms of the medical protocols at a government hospital, is a serious matter of concern.

Accordingly, it has issued a notice to the Chief Secretary, Government of Bihar calling for a detailed report in the matter. The report is expected to inform about the exact number of patients, who have lost their eyes, status of the medical treatment being provided to them and the relief provided by the State Government, including action against the responsible officers/doctors. The response is expected within 4 weeks.

According to the media report, carried on 1st December, 2021, in most of the cases, the cornea of the patients is badly damaged and there are chances that the infection could reach their brains. The condition of six patients is very serious. The hospital authorities tried to hush up the matter and did not inform about it to the district administration or the State health department till an enquiry was conducted. The authorities have, reportedly, stopped activities in the Muzaffarpur Eye Hospital and a team of the doctors, headed by ACMO is conducting investigation in the matter.

National Human Rights commission

Hot Off The PressNews

National Human Rights Commission, India Commission has taken suo motu cognizance of a media report alleging increasing incidents of violence among inmates in Tihar Jail of Delhi.

Reportedly, in yet another incident of inmate clash inside the prison, a 25-year-old prisoner was beaten up by another on 22 September, 2021, which was the sixth incident in this month alone.

The Commission has observed that the contents of media reports, if true, raise serious issue of human rights violations of the prisoners in custody of state. Accordingly, it has issued notices to the Chief Secretary and DG, Prisons, Govt. of NCT of Delhi calling for a detailed report with four weeks, including steps taken or proposed to be taken to address the issue of violence in Tihar jail.

Issuing the notices, the Commission has noted that such incidents of violence inside the jail indicate towards negligence by the prison authorities resulting into gross violation of human rights of the inmates in custody of the state.

According to the media report, carried on 24 September, 2021, the latest victim of violence in the Tihar jail told during investigation that he was first abused and beaten up by another inmate. The same day a Head Matron was injured during a scuffle with an inmate. Reportedly, about thirty inmates have been injured during September this year due to clashes in the jail.

National Human Rights Commission

[Press Release dt. 28-9-2021]

Hot Off The PressNews

The National Human Rights Commission, India has issued a notice to the Delhi Metro Rail Corporation, DMRC, after taking cognizance of a complaint requesting removal of misleading signages on its 347 new toilets for Transgender Persons.

Allegedly, the name ‘Ubhayalingi’ with a symbolic photo of ‘half-male and half-female’ outside the new 347 Transgender friendly toilets, constructed by the DMRC at metro stations, is not the acceptable term for Transgender persons.

The signage fails to provide a safe space and prevent gender discrimination that the DMRC intended.

The Commission has called for an action taken report from the Director (Works) and the Director (Projects), DRMC, on the grievances raised by the complainant within six weeks.

The complainant has requested the Commission for directions to the DMRC to remove all bilingual signage that mention ‘Ubhayalingi’ immediately and make the following changes:

1. The transliteration of the term ‘Transgender Person’ in Hindi should be used in all signages;

2. The symbol for transgender persons should be ‘T’ instead of the ‘half male-half female symbol;

3. A fresh press release be issued after the change wherein the signage and the statement use ‘Transgender Persons’ instead of Transgender;

4. hat the above changes be followed in all future actions of the DMRC including separate public toilet facilities for Transgender Persons at its upcoming stations in Phase-IV;

5. DMRC should notify a complaint officer for notifying violations of provisions of the Transgender Persons Act.

National Human Rights Commission

[Press Release dt. 17-09-2021]

Hot Off The PressNews

The National Human Rights Commission, India has received several complaints regarding the ongoing farmer’s protest. There are allegations of adverse impact on the industrial units, seriously effecting more than 9000 micro, medium, and large companies.

Allegedly, transportation is also adversely impacted, causing the commuters, patients, physically challenged people and senior citizens to suffer due to the heavy congestion on roads.

There are also reports that people have to travel long distances to reach their destinations due to the ongoing farmers’ agitation and barricades have been put on the borders. Accordingly, the Commission issued notices to the Chief Secretary, Government of U.P., Chief Secretary, Government of Haryana, Chief Secretary, Government of Rajasthan, Chief Secretary, Government of NCT of Delhi, Director Generals of Police, U.P., Haryana, Rajasthan and Commissioner of Police, Delhi calling upon them to submit their respective Action Taken Reports.

There is an allegation that there is breach of the corona protocols by the agitating farmers at the protest site. There is further allegation that the inhabitants are not being allowed to move out of their houses due to the blockade of the passage.

Since the agitation involves the issue of human rights whereas the right to agitate in a peaceful manner is also to be respected. The Commission needs to take care of various human rights issues.

Hence, the Commission besides issuing notice to various States has taken the following actions:

1. The Institute of Economic Growth (IEG) is requested to examine the adverse impact of the farmers’ agitation on industrial and commercial activities/production and disruption of transport services on commercial and normal consumers including inconvenience and additional expenditure, etc. and to submit a comprehensive report in the matter by 10th October, 2021;

2. The National Disaster Management Authority, Ministry of Home Affairs and Ministry of Health, Government of India, have been asked to submit reports with respect to the adverse impact of farmers agitation on various aspects and observance of COVID Protocols at the protests sites;

3. In the case of alleged gang rape of human rights activist at the protest site, no report was received from the DM, Jhajjar regarding the payment of compensation to the NOK of the deceased. A fresh reminder was issued to the DM, Jhajjar, to file the report by 10th October, 2021;

4. Delhi School of Social Work, University of Delhi is requested to depute teams to conduct a survey and submit the report assessing the disruption of livelihood, lives of people, impact on the aged and infirm persons due to protracted agitation by farmers;

National Human Rights Commission

Case BriefsHigh Courts

Calcutta High Court: The Full Bench of Rajesh Bindal, ACJ and I.P. Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar, JJ., continued hearing the matter of infamous series of petitions filed with the allegation that the people who supported the political parties other than the ruling party in the recently concluded Assembly Elections in the State (year 2021), had been made to suffer at the hands of the supporters/workers of the party, which came in power.

Let’s have a look at the petitions in brief. WPA (P) 142 of 2021 filed on 04-05-2021 dealt with the prayer to combat the post-poll violence and take corrective as well preventive action and sought to open Control Room so as to enable the victims to lodge their complaints online or over telephone. WPA (P) 143 of 2021 filed on 06-05-2021 dealt with issuance of direction to the respondents to take immediate steps to stop ongoing post-poll violence and to call for an independent and impartial investigation of the offences by constitution of a special investigation team. WPA (P) 144 of 2021 filed on 07-05-2021 was filed by an advocate practicing in this Court in public interest raising the issue of post-poll violence. The prayer was made for a direction to the police to immediately take action and stop the atrocities. WPA (P) 145 of 2021 filed on 10-05-2021 raised the issues regarding violence in which number of workers of the opposition parties including the main opposition party suffered physically as well as damage to their properties. WPA (P) 146 of 2021 filed on 10-05-2021 prayed to the Central as well as the State government to deploy more forces to maintain law and order, appoint an independent committee to conduct free and fair investigation, to provide protection to the petitioner from retributive action of rioting mob, direction to the police to register FIRs in all cases. WPA (P) 147 of 2021 filed on 10-05-2021 prayer was made to secure life and property of the affected persons, proper judicial investigation of the incidents of political violence. WPA (P) 148 of 2021 filed on 12-05-2021 the prayer was for calling upon the official respondents to show cause as to why they failed to register the complaints. WPA(P) 149 of 2021 filed on 12-05-2021 was being filed by the widow of a person, who was murdered on May 03, 2021 in post-poll violence. The prayer was made for independent investigation of the crime after registration of the FIRs. WPA (P) 167 of 2021 filed on 03-06-2021 prayer was made for appropriate protection and deployment of security forces in the area and constitution of a special investigation team for independent investigation of crime.

Arguments of the petitioners:

  1. The residents in this State were being punished for exercising their right of vote in free and fair manner and material which had come on record clearly suggested that there was post-poll violence, which was well planned.
  2. The police had failed to record complaints and wherever these were recorded, after intervention of this Court, the complainants were threatened to withdraw the same.
  3. It is established from the NHRC report that there was complicity of the police and the persons in power, in the violence which erupted after polling and also declaration of the result in the recently concluded Assembly Elections.
  4. Mahesh Jethmalani, learned Senior Counsel, submitted that there were 60% gap between the number of death as reported by the Committee and as submitted by the State. The Committee reported 52 murders even though it had not visited the entire State whereas the Director General of Police reported only 29. As per the State, there was no rape incident, whereas the Committee reported that there were 11 rape cases. In fact, two of the gang rape victims had moved Hon’ble the Supreme Court.
  5. Further pointing out the facts from the report of the Committee and the response of the State, it was submitted that out of 3,384 complaints forwarded by the Committee to the State, there was no response in about 1,000 such complaints. In 135 cases, the State claimed that the cases were found to be not true. However, the same was done without registration of any FIR though cognizable offences were reported.
  6. A long list of crime against women had been furnished by the committee, which was directed to be kept in a sealed cover, otherwise the identity of the victims would have been disclosed. The cases of manipulating the Post-Mortem Reports or Medico Legal Reports by the State machinery also came up.
  7. J. Sai Deepak, Counsel for petitioners submitted that the main issue involved in the bunch of petitions was as to whether an independent probe was required in the cases involving post poll violence in the state. He argued that from the report of the committee, which was supported by documents, it was established that the state had failed to discharge its constitutional obligation in maintaining law and order in the State.

Arguments of the respondents:

  1. Kapil Sibal, Senior Counsel appearing for different Superintendents of Police submitted that this Court had set up the Committee, there was no direction for any interim report to be filed but still it was filed and the petitioners in their arguments have referred to the report as given by the NHRC and this case provisions of the Protection of Human Rights Act, 1993 would be applicable. The 1993 Act provides for complete procedure for enquiry and investigation that was required to be followed. In the absence thereof, the report cannot be accepted as such.
  2. Referring to the biasness of the members of the Committee, he submitted that three of the members thereof including the Chairperson of the Committee have close links with BJP. Hence, report falls on that ground as well, as bias is writ large on the fact of it.
  3. S.N. Mukherjee, Senior Counsel appearing for the Director General of Police submitted that data given in the report was self-contradictory. Date of incident was not mentioned in about 43% of the cases. 892 cases pertained to the period from May 02-05, 2021. 35 cases were prior to May 02, 2021.
  4. A.M. Singhvi, Senior Counsel also appearing for Director General of Police, submitted that the report cannot be treated as conclusive and on that basis, no action can be taken. He further referred to the discrepancies in the report to show that the translation made by the Committee of various complaints was wrong.
  5. Kishore Dutta, Advocate General appearing for the State, submitted that even the State was quite serious about the incidents which had taken place after polling in the State. He referred to the details of 268 FIRs registered by the State suo-moto.
  6. Dastoor, Additional Solicitor General submitted that there was post-poll violence is a fact not denied by the State. Response of the police even after the cases were filed was not adequate and timely. Some action was taken when the Court intervened. In fact drastic steps are required to be taken to establish rule of law and save democracy. He further submitted that in case assistance of any of the independent agency for investigation or any para-military force is required to maintain law and order in the State, the Government will abide by the order of the Court.

The Court heard the parties, perused all the relevant documents presented. During the discussion of the matter the Court clarified major issues in the arguments the first being the, “duration of the post poll violence”, “election commission’s duty on law and order” and the “bias” of the three-member committee as pointed out by the counsel for the respondents.

The Court further relied on several Supreme Court judgments which they believed guided them in the present factual matrix of the case. Some of which are National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742, Rubabbuddin Sheikh v. State of Gujarat, (2010) 2 SCC 200 and  State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, (2010) 3 SCC 571. The major development in this case came as the Director General of Police had directed the CID to take over the investigation. A writ petition was filed in this Court alleging therein that police administration was under the influence of the ruling party, which was trying to hide the incident. It was prayed that he investigation of the case be handed over to CBI and the Court had directed the same to be transferred to CBI.

The Court finally opined that the heinous crime such as murder and rape deserve to be investigated by an independent agency which in circumstances can only be Central Bureau of Investigation. It is for the reason that in number of cases, the State had failed to register the FIRs and opined the same to be not the cases of murder. In some cases, even after registration of FIR, the observation by the State is that these may result in ‘no case’. This shows pre-determined mind to take investigation into a particular direction. Under such circumstances investigation by independent agency will inspire confidence to all concerned.

To install faith of the people in rule of law and considering the extraordinary circumstances with which the State and the Court proposed to constitute a Special Investigation Team headed by Suman Bala Sahoo and Soumen Mitra and Ranveer Kumar, all IPS officers of West Bengal cadre, as the members and the their working shall be overviewed by a retired Hon’ble Judge of Hon’ble the Supreme Court, who shall be requested to take up the assignment after taking his/her consent.

The Court finally issued a set of directions:

  • All the cases where, as per the report of the Committee, the allegations are about murder of a person and crime against women regarding rape/attempt to rape, shall be referred to CBI for investigation.
  • As the core issue regarding the post-poll violence and the action required to be taken thereon has been resolved with the directions for proper investigation of cases by the CBI and the SIT as referred to above, the matters now shall be placed before the Division Bench for dealing with other issues in the report and further proceedings.
  • The sealed cover (Annexure – I) submitted by the Committee along with its report, second autopsy report of Abhijit Sarkar, DNA analysis report as submitted by the Director Command Hospital, Kolkata and any other sealed cover pertaining to the case, lying with the Registrar General of this Court shall be handed over to the authorised officer of the CBI against proper receipt.
  • Immediate action shall be taken by the State to pay compensation to the victims of crime as per the policy of the State, after due verification. It shall be direct bank transfer in their accounts
  • CBI and the SIT to submit its status report in Court within six weeks.

The other judges of the Bench while concurring with the judgment penned by the Acting CJ. penned their separate briefings and observations in favour of the conclusions.[Anindya Sundar Das v. Union of India, WPA(P) 143 of 2021, pronounced on 19-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Tribunals/Regulatory Bodies/Commissions Monthly Roundup

Here’s a run-through of all the significant decisions covered in the month of July, 2021 under the Section of Tribunals/Commission/Regulatory Bodies.

Appellate Tribunal for Electricity

 

Solar Project

Whether there was bona fide delay in commissioning the solar power project?

“…allowed an appeal which was filed against the Order of Karnataka Electricity Regulatory Commission (Commission) whereby, the Commission has held that the Applicant/Appellant was not entitled to extension of time for commissioning of solar power project in terms of the Power Purchase Agreement and Supplementary power Purchase Agreement.”

Read more: https://bit.ly/3jbKtvP

Armed Forces Tribunal

War Injury Pension

Tribunal grants war injury pension to WW-2 soldier who suffered splinter wound injury in Italy

“…war injury pension to World War-2 veteran who suffered splinter wound injury in his right leg”

Read more: https://bit.ly/37cxXXi

Customs Excise & Service Tax Appellate Tribunal

Input Services

Whether distribution of credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between manufacturing plants? Tribunal answers

“…issue involved was that the appeals was whether Parle Biscuits was justified in distributing credits on input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle Biscuits and its contract manufacturing units, including Krishna Foods, under Rule 7(d) of the CENVAT Rules.”

Read more: https://bit.ly/2V5CYhG

Convenience Fee

“Convenience fee” charged by PVR for online booking of movie tickets under OIDAR category under S. 65(105) (zh) of Finance Act taxable or not? Tribunal explains

“Issue involved was related to to taxability of “convenience fee” charged by PVR Limited on its customers for online booking of movie tickets under the category of “online information and database access retrieval system” defined under section 65 (75) of the Finance Act and taxable under section 65 (105)(zh) of the Finance Act.” 

Read more: https://bit.ly/3rKRvvg

Principles of Natural Justice

Revenue has miserably failed to discharge its onus; Tribunal finds impugned order opposed to principles of natural justice

https://bit.ly/37a5uB8

CENVAT Credit

Admissibility of the Cenvat Credit in respect of outward GTA; Tribunal allows appeal

https://bit.ly/3xcJKzf

Central Information Commission

Right to Information Act

Can S. 8(1)(d), RTI Act be invoked to deny copy of thesis in view of commercial viability and to protect interests of scholar and his guide?

“…thesis publication of the research scholars cannot be reasonably even brought under any of the suo motu components of disclosure envisaged under Section 4 of the RTI Act, thereby reinforcing the proposition that the protection of Section 8 and 9 exemptions is very much available to the CPIO in the instant case.”

Read more: https://bit.ly/3fbpI23

Delhi State Consumer Disputes Redressal Commission

 

Deficiency of Service

Will Camera Manufacturer — Nikon be liable for deficiency of service caused to a consumer who lost all his photographs due to memory card getting corrupted?

“…Nikon was neither the manufacturer, dealer, importer, wholesaler of the Memory Card which got corrupted leading to the loss of the photos.”

Read more: https://bit.ly/3fbqg87

Builder-Buyer Dispute

Builder handing over possession of plot with incomplete development beyond agreed time. Is buyer entitled to refund of deposit with interest? Commission decides

“Possession of the plot land booked by the complainant was not handed over within the time agreed to despite the complainant has made the payment to the extent sought from time to time.”

Read more: https://bit.ly/2WJUV6d

National Consumer Disputes Redressal Commission

Medical Negligence

  • Can Wheelchair injuries be covered under the ambit of medical negligence?

“Wheelchairs are usually thought of a medical device that is meant to help those who are injured or have physical challenges; they can also be a source of injury when not properly used. Most wheelchair injuries that happen in a medical setting due to the negligence of medical staff and such could be easily prevented by a hospital or nursing home.”

Read more: https://bit.ly/3fimrOy

  • In case a medical practitioner chooses to follow one procedure instead of another, which turned out to be a failure, Can the said act be negligent?

“…The medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.”

Read more: https://bit.ly/3idk4hG

National Company Law Appellate Tribunal

 

Insolvency Proceedings

An Arroyo for OYO | While allowing it to work independently, closed insolvency proceedings; Disallowed external parties to impinge

“We are of the considered view that before Constitution of Committee of Creditors (CoC) mere filing of a ‘Claim’ does not constitute a default per se. It is only on the basis of the ‘Claims’ that the CoC is constituted. In a catena of Judgments, the Supreme Court has reiterated that the prime objective of the Court is not recovery, but revival”.

Read more: https://bit.ly/3rO12BU

National Company Law Tribunal

Personal Guarantor

Personal Guarantor not liable to be prosecuted under S. 95 IBC where corporate debtor concerned is not under corporate insolvency resolution process

https://bit.ly/2Vmxnn0

National Green Tribunal

No Odour control system required to prevent odour from Sewage Treatment Plant. Why? NGT imposes costs on Delhi Jal Board: Why DJB is shirking its responsibility?

“Mere spraying of chemical solution and other superficial steps is not effective in installing an effective odour control unit.”

Read more: https://bit.ly/3rMxOTD

National Human Rights Commission

Fr. Stan Swamy | Medical Treatment

  • Ensure every possible medical treatment to imprisoned FR. Stan Swamy as part of life saving measure and protection of his basic human rights: NHRC

https://bit.ly/3yk7ov5

Manual Scavenging

  • Manual scavenging and hazardous cleaning still remain a stinking truth of our nation: NHRC

https://bit.ly/3yi3seb

Post-Poll Violence in West Bengal

  • NHRC refutes allegations in a section of media regarding leakage of report relating to post poll violence in West Bengal

https://bit.ly/3BZMT9h

Securities Exchange Board of India

Fraudulent Scheme

 Manipulation in prices, fraudulent scheme results in debarment-Global Infratech, Directors and 12 other entities ousted from the market

https://www.scconline.com/blog/post/2021/07/23/manipulation-in-prices/

Insider Trading

Financial Racket: Kundra, Shetty into murky waters again | Imposes fine for insider trading on Viaan Industries

https://bit.ly/2V0zFZq

 Securities Appellate Tribunal

 

Collective Investment Scheme

Unregistered Collective Investment Scheme violative of S. 12(1)(b) of SEBI Act and Regulations, order to pay 10% p.a. interest on refundable amount not vitiated

https://bit.ly/3j728EJ

Tribunals/Regulatory Bodies/Commissions Monthly Roundup | June 2021

Case Briefs

Justice Shri A.K. Mishra, Chairperson of, National Human Rights Commission, India today said that leaving widows to fend for themselves has to be discouraged by making it punishable under law to stop this practice. Expressing serious concerns over the living conditions of the widows in Mathura-Vrindavan and Varanasi, he said that the property rights of widows need to be restored to redress their plight and make a way for their dignified living.

Justice Mishra was chairing a meeting on the human rights issues of widows residing in shelter homes in Mathura-Vrindavan and Varanasi. He said that Government functionaries have to be made accountable for the non-implementation of the welfare schemes, if basic amenities are not provided to the destitute widows resulting in violation of their human rights including the right to food, shelter, dignity and property. He said that the ground reality of various shelter homes for the widows need to be assessed at the earliest.

Justice Mishra said that formulating schemes for the welfare of destitute widows is not just sufficient enough unless their proper implementation is ensured. He said that the focus should be on their skill development to make them self-reliant for their livelihood.

Some of the other important suggestions that emerged during the discussions were as follows:-

– Conduct a study to assess the number of widows living in Mathura-Vrindavan and Varanasi;

– Increase their monthly pension to ensure that they may have adequate resources to meet their basic requirements;

– Expand the scope of various welfare schemes, including Aayushman Bharat to extend the benefits to the destitute widows.

National Human Rights Commission

[Press Release dt. 20-07-2021]

Hot Off The PressNews

The National Human Rights Commission constituted a Committee to enquire into the post-poll violence in West Bengal, as per the directions of the Calcutta High Court. The Committee submitted its report to the Court on 13th July, 2021.

On the further directions of the Court, the Committee provided a copy of the said report to its Advocate in Calcutta, who shared with the Advocates of all the parties concerned in the related multiple writ petitions.

The matter being sub-judice, the Committee of the NHRC did not share its report to any entity other than those specified by the Court.

Since the report is already available with all the concerned parties as per the directives of the Court, there is no question of leakage at the level of the NHRC.

The attribution regarding the alleged leakage of the said Report to the NHRC is absolutely baseless and factually incorrect.

National Huma Rights Commission

[Press Statement dt. 15-07-2021]

Case BriefsHigh Courts

Calcutta High Court: Full Bench of Rajesh Bindal, ACJ and I.P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ., decided that the arguments in the case begin from 22-07-2021 after the NHRC submitted its final report vide order dated 18-06-2021. The committee submitted five sets of reports in separate sealed covers along with annexures.

On 02-07-2021, the Court had perused the interim report submitted by the NHRC, and it was derived that stand taken by the petitioners was established. Vide order dated 02-07-2021, Court had directed that second autopsy of deceased Abhijit Sarkar, whose dead body was lying in hospital be undertaken by a team of doctors in the Command Hospital, Kolkata.

Mr Y.J. Dastoor, Additional Solicitor General of India apprised the Court that an autopsy of the deceased has been conducted and report was being prepared. It was further submitted that the brother of the deceased expressed his inability to identify the body on account of its bad condition. Sample for DNA analysis of the deceased has been taken to confirm the identity of the body.

The Court ordered that the samples for DNA analysis of Biswajit Sarkar (brother of the deceased) be taken at the Command Hospital on 15-07-2021 at 11 A.M and he should carry his Aadhar Card at the time of giving his sample. Director, CFSL, Kolkata was directed to conduct DNA analysis of both the samples at the earliest on a priority basis and submit a report to the Court in a sealed cover within one week.

The Court directed that the body of the deceased be shifted back to the Hospital Mortuary and shall be retained in a safe condition until further order.[Anindya Sundar Das v. Union of India, WPA(P) 142 of 2021, dated: 13-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Hot Off The PressNews

NHRC Chairperson expresses serious concern over wide spread continuance of manual scavenging and hazardous cleaning; calls for implementation of innovative techniques to end this menace

Justice  A. K. Mishra, the Chairperson, said that the toilets constructed as part of Swachch Bharat Mission were expected to help in the eradication of manual scavenging. But these also suffer from several shortcomings. According to the National Annual Rural Sanitation Survey 2019-20, only 27.3 percent of the toilets surveyed have a double leach pit; 1.1 percent goes into a sewer while all others empty into some form of a septic tank or single pits which requires manual cleaning.

Mr Justice P.C Pant, Member, NHRC, said that the toxicity of the society in the form of denials of basic human rights of manual scavengers needs to be nullified.

The meeting was attended by Mr. Bimadhar Pradhan, Secretary-General, Mr. R.K Khandelwal, Additional Secretary, NHRC and representatives from Ministry of Housing and Urban Affairs, Ministry of Social Justice & Empowerment, Municipal Corporations of Hyderabad, Chennai, Kolkata, Mumbai, Civil Society Organization members & NGOs.

The key pointers were

• Replicate Best Practices across selected Municipal Corporations (Hyderabad, Chennai etc.)

• Evaluating the impact of Mechanisation & Technology on Manual Scavenging

• Various centrally sponsored schemes & programs run by Ministries to be implemented to fill existing gaps.

The NHRC has on many occasions expressed grave concern on the persistence of the practice of manual scavenging in the past through its various letters, National Seminars and Regional Workshops urging concerned stakeholders to take adequate steps towards eradicating these hazardous practices.

National Human Rights Commission

[Press Release dt. 5-07-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

As per the press release by NHRC dated 4-07-2021, the Chief Secretary, Government of Maharashtra has been issued a notice to ensure every possible medical treatment to imprisoned FR. Stan Swamy as part of life saving measure and protection of his basic human rights.

Background

The Commission has also called for a report in the light of the allegations made in the complaint and the treatment record of FR Swamy, who is very old and lodged in Taloja Jail, Navi Mumbai. This direction has come in continuation with the earlier order of the Commission wherein it had advised the State Government of Maharashtra to provide adequate medical care and treatment to Stan Swamy, who is hospitalized in Holy Family Hospital and submit a report within four weeks.

Earlier, the Commission had received a complaint on 16-05-2021 that FR. Stan Swamy (aged 84 years), lodged in Taloja Central Jail, Navi Mumbai was being denied medical facility during the COVID-19 period. It was also alleged that he had not been vaccinated yet and that there was no proper medical care in the jail hospital.

The Petitioner further alleged that the Majority of jail staff had tested Covid positive especially most of the kitchen staff. Number of under-trial prisoners had also contracted the corona virus and no RT-PCR tests were conducted there.

UPDATE: As per news reports, FR. Stan Swamy passes away [5-07-2021]

National Human Rights Commission

Case BriefsHigh Courts

Calcutta High Court: The Full Bench of Rajesh Bindal, ACJ and  I.P. Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar, JJ., on 02-07-2021 perused the interim report filed by the NHRC in pursuance to court order dated 18-06-2021 on 30-06-2021.

After perusal, it was established that there had been post poll violence and the state was found on a wrong foot, where throughout it was on a denial mode. In violence, number of persons were killed. Many suffered sexual violence and grievous injuries. Even minor girls were not spared. They have been brutally assaulted sexually. The properties of many of them were damaged and number of them were forced to leave their houses and even migrate to neighbouring states. Investigation of the cases registered was in slip shod manner and hardly any arrests were made in such heinous crimes. Some of the cases have not been registered although prima facie they disclosed commission of cognizable offence. In most of the cases accused have been bailed out.

The Court was taken to surprise by the fact that state authorities, had been claiming throughout, that there were no complaints received by them but when opportunity was given to the complainants to file complaints with the State Legal Services Authority or the NHRC, the authorities were flooded with complaints. The report suggested that there is more to conceal than to reveal.

The Court issued certain directions in relation to the same,

  1. The police is directed to register cases in all matters which have either been reported to it or have been placed before the NHRC or any other authority/Commission. Steps be taken to get the statements of the victims recorded under section 164 CrPC immediately, as per law.
  2. The State shall make all arrangements for medical treatment of all who have been injured in the violence, post assembly elections.
  3. Supply of rations be ensured to the persons, even if they have lost their ration cards.
  4. The state is directed to place before the committee complete details of the cases in which the accused were arrested and have been enlarged on bail by the courts, so as to enable it to place the same before the court.
  5. Whatever information has been asked for by the committee from different authorities in the state, be supplied immediately. Any delay may call for adverse inference.
  6. Second autopsy of Abhijit Sarkar, Vice President of Bhartiya Mazdoor Trade Union Council in district Kolkata, whose body is lying in hospital be got done from a team of doctors to be constituted by the head of the Hospital at Command Hospital, Kolkata. For the purpose, the Chairperson of the Committee constituted by the National Human Rights Commission shall coordinate with the hospital concerned where the body of the deceased is lying and also the Head of the Command Hospital. The body shall be shifted to the Command Hospital for carrying out the second autopsy. The report shall specifically mention about the condition of the body as to whether it was properly preserved in the hospital where it was.
  7. Let a notice be issued to Rashid Munir Khan, Deputy Commissioner of Police, South Suburban Division, Kolkata to show cause as to why proceedings for contempt be not initiated against him for violation of the order passed by this court on June 18, 2021.
  8. All the central agencies and service providers of various services to assist the committee and provide the requisite information wherever required, to the extent permissible in law.
  9. The Chief Secretary of the State is directed to ensure preservation of the correspondence of the Special Branch/ Intelligence Branch of the State Police. Logs of different control rooms should also be preserved. The entire material from May 02, 2021 till date be kept in a sealed cover duly signed by the members of the committee, immediately. Any lapse or delay in the matter will invite adverse inference.

Matter adjourned to 13-07-2021.[Anindya Sundar Das v. Union of India, WPA(P) 142 of 2021, dated: 02-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: Full Bench of Rajesh Bindal, C.J.(A), I.P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ., on 18-06-2021 heard a series of petitions which dealt with the issue of the number of persons been made to run away from their houses to save their lives and are not being allowed to come back. The Court had given liberty to send complaints to the official e-mail ID of the West Bengal State Legal Services Authority and reinstatement had to be done e in the presence of a Committee of the officers nominated by the National Human Rights Commission and the West Bengal State Human Rights Commission and the Member Secretary of the West Bengal State Legal Services Authority.

The Court opined that in a case like where the allegation is that life and property of the residents of the State is in danger on account of alleged post poll violence, the State cannot be allowed to proceed in the manner it likes. The complaints required immediate action. The Court found that such an action was missing and it was the duty of the State to maintain law and order in the State and inspire confidence in the residents of the State.  The Court further added that, “State from the very beginning had been denying everything but the facts as having been placed on record by the petitioners and also as is evident little bit from the report dated June 3, 2021, filed by the Member Secretary of the West Bengal State Legal Services Authority, are different.”

The Court held that keeping in view the fact that there was infrastructure available with the NHRC, directed the Chairperson to constitute a Committee of which the Member Secretary of State Legal Services Authority shall be a member, to examine all the cases, the complaints of which have already been received by the Commission or which may be received. The Matter was adjourned to 30-06-2021.

On 21-06-2021 the Bench dismissed all the petitions which were filed by the State for recalling/modifying the order dated 18-06-2021.

It was contended that the State was not given any opportunity to place complete facts before the Court. In fact, the State had taken appropriate action. Counsel for the non-applicants had raised serious objections to the prayers made in the applications. Arguments raised are that considering the conduct of the State, ever since this Court had taken cognizance of the matter, this Court was constrained to pass the order directing the National Human Rights Commission along with the representatives from the State Human Rights Commission and the West Bengal State Legal Services Authority to go into the various complaints filed by the different persons.

The Court found that no case is made out for recalling, modification or stay of the order passed by this Court on 18-06-2021. The Court added that the way the State was proceeding in the matter which required immediate action, did not inspire confidence. Whatever information the State now wants to produce with reference to the complaints, may be placed before the National Human Rights Commission, which is to examine all the complaints along with the information supplied by the State and submit a report before this Court.

On 21-06-2021 Chairperson, NHRC constituted a Committee to be headed by Mr Rajiv Jain, Member, NHRC to enquire into complaints of post-poll violence in West Bengal.

The Committee is as under:

  1. Shri Rajiv Jain, Member, NHRC, head of the Committee.
  2. Shri Atif Rasheed, Vice Chairperson, National Commission for Minorities.
  3. Smt. (Dr.) Rajulben L. Desai, Member, National Commission for Women.
  4. Shri Santosh Mehra, Director General (Investigation), NHRC.
  5. Shri Pradip Kumar Panja, Registrar, West Bengal State Human Rights Commission.
  6. Shri Raju Mukherjee, Member Secretary, West Bengal State Legal Services Authority.
  7. Smt. Manzil Saini, DIG (Investigation), NHRC.

As per the directions of the High Court:-

a) This Committee shall examine all cases of post-poll violence in West Bengal, complaints about which have already been received in the National Human Rights Commission or which may be received.

b) The Committee shall also examine the complaints which have been received by the West Bengal State Legal Services Authority and also further complaints that may be received by the Legal Services Authority.

c) The cases shall be examined, including by visiting the affected areas and shall submit a comprehensive report to the High Court of Calcutta about the present situation and also steps to be taken to ensure confidence of the people that they can peacefully live in their houses and also carry on their occupation or business to earn their livelihood.

d) The Committee shall also point out the persons, prima-facie, responsible for crime and the officers who maintained calculated silence on the issue.

[Anindya Sundar Das v. Union of India, WPA(P) 142 of 2021, decided on 18-06-2021 & 21-06-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

National Human Rights Commission, India, after taking cognizance of a complaint about the brutal assault on a doctor by the relatives of a Covid patient at Udali Model Hospital in Hojai district of Assam 01-06-2021 has called for the action taken report from the Chief Secretary and the Director-General of Police, Government of Assam into the alleged incident within four weeks. Besides an enquiry into the allegations, the report is expected to include the needful preventive and punitive action taken in the matter.

The Commission has also sent a copy of the complaint to the Secretary, Union Health & Family Welfare Ministry to initiate necessary measures to ensure the safety and security of the frontline health workers in the country.

According to the complaint, having attached media reports,

the incident happened after the Covid patient had died. Allegedly, some of the frontline medical workers, Doctors, Nurses and Ward boys managed to escape but also got hurt and are deeply traumatized due to this horrific incident.

National Human Rights Commission

[Press Release dt. 4-06-2021]

Appointments & TransfersNews

Justice Arun Kumar Mishra, former Judge of the Supreme Court of India, has joined as the new Chairperson of the National Human Rights Commission, NHRC, India.

Justice Arun Mishra the 8th Chairperson of the NHRC, India.

Background

He was born on 3rd September 1955. After completing B.Sc. M.A. L.L.B. joined the Bar in 1978 and practised in constitutional, civil, industrial, service and criminal matters.

He was elected as the youngest Chairman of the Bar Council of India in 1998 and particularly focused on the improvement of legal education. During his Chairmanship, the Bar Council of India decided to close the evening Law Colleges and also decided that 5-year Law Course should be started instead of 3 years Course in all the colleges. More than two hundred sub-standard law colleges were closed by the BCI. Also, amount of medical aid to lawyers was enhanced.

He was instrumental in the drafting and implementation of Foreign Law Degree Recognition Rules of 1997 under Advocates Act, 1961; Bar Council of India Employees Service Rules,1996 and Rules pertaining to Foreign Lawyers Conditions of Practice in India.

He was appointed Judge of the High Court of Madhya Pradesh on 25th October 1999 and appointed as the Chief Justice of Rajasthan High Court on 26th November 2010 and held the office till his appointment as the Chief Justice of the High Court at Calcutta on 14th December 2012.

Justice Mishra was elevated as a Judge of the Supreme Court of India on 7th July 2014 and held the position till his superannuation on 2nd September 2020. During his tenure as a Supreme Court Judge, he delivered 236 judgements. Out of this 199 were in two Judges Bench,32 in three Judges Bench and 5 in five Judges Bench.

National Human Rights Commission

[Press Release dt. 02-06-2021]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

The National Human Rights Commission,  India has taken cognizance of a complainant that the mass gatherings of protesting farmers, flouting Covid appropriate behaviour, are against the very rules/norms laid down by the Central Government and the advisory of the Commission itself as safeguards against the pandemic. Allegedly, the situation is likely to worsen day by day due to the increased inflow of the farmers at the sites of protests: they are not only putting their lives at risk but also posing a risk, as the potential carriers of the virus, to the others in the rural areas.

Accordingly, the Commission has issued notices to the Chief Secretaries of NCT of Delhi, Haryana and Uttar Pradesh to submit action taken reports regarding the steps taken to control the spread of Covid-19 infection at the protest sites of the farmers. The report is to be submitted within four weeks.

Issuing the notices, the Commission has observed that the country is passing through an unprecedented and scary second wave of Covid-19, which has already claimed more than three lakh human lives and is still raging virulently in different parts of the country.

It has further observed that the Central and State Governments are struggling against all odds to save lives in the face of inadequate health facilities. Measures like lockdowns, containment zones and Covid protocols are employed to somehow overpower the deadly Covid, which is now leading to other serious diseases like black fungus, white fungus etc. In these extraordinary circumstances, our sole aim has to be saving human lives.

The complainant has also stated that more than 300 farmers have died during this ongoing protests due to several reasons including Covid infections. The Cases of black fungus etc are also rising. He has sought intervention of the Commission apprehending that situation may become more worrisome as the farmers, in large numbers, are planning for observing 26th May, 2021 as the Black Day.

National Human Rights Commission

[Press Release dt. 25-05-2021]

Case BriefsHigh Courts

Calcutta High Court: The Full Bench of Rajesh Bindal, C.J. (A), I. P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ., took upon a series of petitions which were filed in the matter pertaining to post-poll violence in the State of West Bengal.

On the last date of hearing, the Court had requested the Advocate General to apprise the Court about any designated e-mail id to enable the aggrieved persons to lodge their complaints online. It was on the allegation of the petitioners that they were not permitted to lodge complaints in the police station and in some cases they were unable to do so as that they had to run away from their places of residence. This information could not be furnished and more time has been sought to furnish the same.

The Court in the meantime directed that if any person has suffered on account of post-poll violence, he shall be at liberty to file complaint along with the supporting documents to the National Human Rights Commission, West Bengal Human Rights Commission, National Commission for Women and National Commission for Scheduled Castes and Scheduled Tribes. The same can be either by way of hard copy or online. The aforesaid commissions in turn will forward those complaints to the Director General of Police, West Bengal immediately.

[Anindya Sundar Das v. Union of India, 2021 SCC OnLine Cal 1637, decided on 18-05-2021]

Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Pankaj Mithal, CJ. and Sindhu Sharma, J., upheld National Human Rights Commission’s order regarding compensation, whereby the commission had held the government vicariously liable for the death of children in Udhampur district due to consumption of spurious cough syrup. The Bench expressed,

“We fail to understand the hick-up in paying compensation as directed in the present case.”

Background

The instant petition was preferred by the Union Territory of Jammu and Kashmir for quashing of the orders of the National Human Rights Commission and for quashing of all proceedings in relation thereto. Noticeably, in December 2019 and January 2020, about 10 children died in Ramnagar Tehsil of Udhampur District of UT of Jammu and Kashmir due to consumption of a
spurious cough syrup.

On the complaint by one social activist, alleging that the incident had occurred due to the  negligence of the officials of the Drug and Food Control Department, therefore, appropriate action be taken against its officers and the families of the victims be provided with adequate compensation; the Commission directed for issuance of notice. Pursuant to which a report was submitted by the Under Secretary, Department of Health and Medical Education, Government of Jammu and Kashmir stating that the department had carried out an investigation in
the alleged incident of infant mortality and 33 samples of the left-over/partially consumed alleged cough syrup were collected. The test reports of the Chief Scientist, CSIR IIIM indicated the presence of Parabens, Heavy Metal and Diethylene Glycol and their presence was considered to be the cause of death. Accordingly, an FIR had been lodged under the Drugs and Cosmetics Act against the manufacturers of the alleged cough syrup.

On consideration of the aforesaid report, the Commission found out procedural lapses on the part of the Drugs Department and that it failed to keep a regular vigil on the contents of the medicines. Recording that there was no denial of the lapse on part of the Drugs Department, the Commission held that the UT of Jammu and Kashmir was vicariously liable for the lapses on part of the department and as such it proceeded to recommend for the payment of compensation of Rs. 3,00,000 each to the next of kins of all the deceased.

The grievance of the government was that the manufacture of the cough syrup alone was responsible to compensate the next of kins of the victims and that the State could not be held vicariously liable to pay the compensation.

Court’s Verdict

“Until and unless, the State is held vicariously responsible for such actions or omissions, the Government or its department would never swing into action effectively so as to control the menace of sale of contaminated or spurious drugs. A welfare State cannot escape from the responsibility to compensate the irreparable loss so caused to the families of the victims due to lapses of the Department.”

The Bench observed that lapse on part of the Drugs and Food Control Department was not
denied rather accepted. Thus, the State was rightly held vicariously liable for the omissions of the department in allowing the sale of spurious/contaminated cough syrup so as to compensate the families of the victims. The Bench opined,

“If the said department had acted vigilantly, the sale of the spurious cough syrup which was the cause of the death could have been avoided.”

Lastly, the Bench stated, ordinarily the State of its own always come out with packages and grants of financial help in events of any social carnage or accidental death wherever such incidents gain political mileage. We fail to understand the hick up in paying compensation as directed in the present case. Accordingly, the instant petition was dismissed with the directions to the government to comply with Commission’s order.[UT of J&K v. NHRC, WP(C) No. 388 of 2021, decided on 02-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the petitioner: Sr. AAG H. A. Siddiqui