Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., decided on a petition which was filed seeking transfer of investigation in the case arising out from FIR No. 261 of 2021, under Section 302 Penal Code, 1860, Police Station Haldwani, District Nainital from Police to Central Bureau of Investigation (“CBI”).

The petitioner, on 03-03-2021, had lodged a report under Sections 323, 504, 345 IPC and Section 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) against her husband and pursuant to which he was arrested and lodged at Police Station. He was remanded to judicial custody on 05-03-2021 by the court of Additional District Judge/FTC/Special Judge, POCSO. On 06-03-2021, in the hospital of Sub-Jail, Haldwani, in its OPD register an entry was made that he suddenly fell down on the ground and he was referred to Base Hospital and later it was recorded that he was brought dead. His post mortem report suggested that there were ten injuries on his body which was not the case when he was taken into custody.

The petitioner was informed about the death but the reason for injury was not explained to her.

Petitioner thereafter moved an application to the Secretary, District Legal Services Authority (for short, “DLSA”), Nainital giving details as to how her husband died in judicial custody, who killed him and how the petitioner came to know about it. The Secretary, DLSA forwarded the application to SSP for taking necessary action at the earliest. Instead of lodging an FIR, the SSP, Nainital got an inquiry conducted by Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since Magisterial inquiry is underway, any further action may be taken only after the perusal of the Magisterial inquiry.

The petitioner again approached the Magistrate of competent jurisdiction under Section 156 (3) of the Code of Criminal Procedure, 1973 and an order was passed, thereafter, FIR under Section 302 IPC at Police Station has been lodged against four named Guards of Sub-Jail, Haldwani. In this case, the petitioner seeks transfer of the investigation to CBI.

Advocate General argues that there is no provision of law that authorizes SSP to get an enquiry conducted by C.O. Haldwani. He further argued that investigation in accordance with law is underway, therefore, the Court should be slow in interfering at this stage and after the outcome of the investigation, if occasion arises, the matter may be considered.

The Court observed that the FIR in the instant case was lodged after directions under Section 156 (3) of the Code on 26.05.2021. More than 45 days after death of a person in judicial custody. How can a fair investigation be ensured?

Fair investigation and fair trial are necessary ingredients of right to life. It is true that a party may not choose investigating agency at the drop of a hat.

The Court in this aspect relied on the Supreme Court rulings of State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262, D.K. Basu v. State of West Bengal, (2015) 8 SCC 744, Sube Singh v. State of Haryana, (2006) 3 SCC 178, Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 and Mehboob Batcha v. State, (2011) 7 SCC 45.

The Court stressed that it was needless to say that incidences of custodian violence and deaths have come up again and again for adjudication before the higher Courts.  The Court quoted the part of judgment in the case of Inhuman Conditions in 1382 Prisons, In Re., (2017) 10 SCC 658.

“Like most societies, we are not strangers to custodial violence and unnatural deaths but our vibrant democracy permits us to debate and discuss these issues with rational arguments. However, right sounding noises critical of custodial violence (in any form) cannot achieve any useful purpose unless persons in authority hear the voices of the victims or the silence of the dead and act on them by taking remedial steps. There must be a greater degree of sensitivity among those in authority with regard to persons in custody and it has been the endeavour of the constitutional courts in our country, over several decades, to consistently flag this issue.”

The Court relying on Dr Naresh Kumar Mangla v. Anita Agarwal, 2020 SCC OnLine SC 1031 stated that the power which is vested in the superior court to transfer the investigation to another agency, such as the CBI, must be wielded with caution.

The Court finally opined that the instant case was not an ordinary case. Allegations were of custodial death. Having considered the manner in which police proceeded in the case, the Court found that it is a case in which definitely investigation should be transferred to CBI. The Court further issued some directions:

  • Investigation in FIR No.261 of 2021 under Section 302 IPC, Police Station Haldwani, District Nainital be immediately transferred to S.P., Central Bureau of Investigation, Dehradun.
  • The Investigating Officer shall ensure that all the documents relating to investigation are handed over to S.P., CBI, Dehradun within a period of three days.
  • The named accused Devendra Prasad Yadav – Head Guard, Kriti Nainwal – Guard, Devendra Rawat – Guard, Harish Rawat – Guard, at Sub-Jail Haldwani be immediately transferred from Sub-Jail Haldwani to some place outside the district, so as to ensure fair investigation otherwise within those four walls of Sub-Jail Haldwani perhaps nobody would dare to speak the truth and only witness would be those stone walls which unfortunately cannot speak as to what had happened on 06.03.2021, which resulted in the death of deceased Pravesh Kumar.
  • SSP Nainital and CO Police Haldwani be considered for their transfer immediately from district Nainital.
  • Departmental action, as may be deemed appropriate, be considered to be taken against SSP Nainital who despite under legal obligation to lodge an FIR promptly did not lodge FIR and also without any authority under law directed an enquiry by CO Haldwani in a case of ‘custodial death’.

[Bharti v. State of Uttarakhand, 2021 SCC OnLine Utt 767, decided on 22-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

Advocate for the petitioner: Mr Sanjay Kumar

Advocate for the respondent: Mr S.N. Babulkar, Advocate General

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has expressed serious concerns on the ability of the marginalized members of society between the ages of 18-44 years to avail COVID-19 vaccination, exclusively through a digital portal in the face of a digital divide and has said,

“A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

CoWIN Portal and how it works

According to the Union of India,

(i) The CoWIN portal enables one person to register 4 persons using the same mobile number;

(ii) All gram panchayats in the country have Common Service Centres which can effectively enable people residing in rural areas to register online for the vaccination;

(iii) Citizens who do not have access to digital resources could take help from family, friends, NGOs and CSCs;

(iv) Walk-ins cannot be permitted due to the scarcity of vaccines and fears of over-crowding at centres. The online registration requirement counters this fear and also effectively monitors the administration of the second dose. The policy may be re-considered subsequently when more vaccines are available;

(v) Identity proofs are required for the purpose of determining age and keeping a track of persons who are due for the second dose. However, in recognizing the issues arising with the insistence of one of the seven prescribed photo-ID proofs, the Central Government issued an SoP dated 23 April 2021 which enables bulk registration of certain identifiable groups, such as homeless persons, who would be identified and registered by the District Immunization Task Force; and

The Centre clarified that walk-in vaccination facilities will continue for persons over the age of 45 years in separate, designated vaccination centres. This is because vaccinations have been underway for this age group for a while and overcrowding has not been experienced so far.

Data, Drawbacks, and the Digital Divide

In the order, where the Court sought clarification from the Centre on various issues relating to the COVID-19 Vaccination policy, it relied on vaiours reports and surveys that highlighted that:

  • Around 4% of the rural households and 23% of the urban households possessed a computer. In the age group of 15-29 years, around 24% in rural households and 56% in urban areas were able to operate a computer; and
  • Nearly 24% of the households in the country had internet access during the survey year 2017-18. The proportion was 15% in rural households and 42% in urban households. Around 35% of persons in the age group of 15-29 years reported use of internet during the 30 days prior to the date of survey. The proportions were 25% in rural areas and 58% in urban areas.
  • Out of the total population of 1.3 billion, only 578 million people in India (less than 50%) have subscription to wireless data services. The wireless tele density in rural areas is 57.13% as compared to 155.49% in urban areas as on 31 March 2019. The report stated that: “[this] reflects the rural-urban divide in terms of telecom services‟ penetration. Since, the number of wireless data subscribers are less than 50% of the total wireless access subscribers, the number of wireless data subscribers in rural areas would be much lower”.
  • In a few Indian States like Bihar, Uttar Pradesh and Assam the tele density is less than 75%; and
  • The monthly income of persons living below the poverty line in urban areas and rural areas is Rs 1316 and Rs 896, respectively. However, to access internet data services, a minimum tariff plan would cost around Rs 49, which includes 1 GB data every 28 days. This would constitute 4-5% of the month‟s income of such persons accessing data. As such, the report notes that this would bear a considerable cost for persons living below the poverty line.
  • While there are 2,53,134 Gram Panchayats in India, as on 31 March 2020 only 2,40,792 Gram Panchayats are covered with at least one registered Common Service Centres. Hence, approximately 13,000 Gram Panchayats in India do not have a Common Service Centres.
  • The CoWIN platform is not accessible to persons with visual disabilities. The website suffers from certain accessibility barriers. These include:

(i) Audio or text captcha is not available;

(ii) The seven filters, which inter alia, include age group, name of vaccine and whether the vaccine is paid or free, are not designed accessibly. This issue can be addressed by creation of a drop-down list;

(iii) While visually challenged persons can determine the number of available vaccine slots, one cannot find out the day those slots correspond to. This can be resolved by ensuring that table headers correspond to associated cells;

(iv) Keyboard support for navigating the website is absent;

(v) Adequate time should be given to disabled users to schedule their appointment without the possibility of being automatically logged off; and

(vi) Accessibility protocols, such as use of appropriate colour contrasts, should be adhered to

“… there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration.”

Clarifications sought from the Government:

“It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.”

  • The issue of over-crowding may also arise at CSCs in rural areas where people would have to visit constantly in hope of a vaccine slot opening up.
  • Certain vaccination centres may be earmarked for on-site registrations for the population aged between 18-44 years without the existing conditions prescribed in the circular dated 24 May 2021, potentially with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities. Alternatively, whether specific daily quotas may be introduced for on-site registration at each centre or specific centres.
  • This policy may not allay the issue of hesitancy which may arise from approaching a State authority (such as the District Immunization Task Force) to obtain registration for the vaccination. Whether on-site registration with selfattestation of age to ensure widespread vaccination can be provided.
  • The CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages. The timeline for ensuring the availability of the platform in multiple regional languages.
  • Conducting a disability audit for the CoWIN website and other IT application like Aarogya Setu to ensure that they are accessible to persons with disabilities.

[In re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 411, decided on 31.05.2021]


Appearances before the Court

Mr Tushar Mehta, learned Solicitor General

Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici

ALSO READ

COVID-19 Vaccination Policy| Supreme Court seeks clarifications from Centre on these five issues

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has, in a bid to understand the vaccination policy for COVID-19, has sought clarification from the Central Government on various aspects enumerated below. While doing so, the Court clarified that,

“This Court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to the management of the pandemic. Hence, this Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.”

Vaccine Procurement and Distribution among Different Categories of the Population

Asking UoI to undertake a fresh review of its vaccination policy, the Court has sought clarification on the following:

  • The roadmap of projected availability of vaccines till 31 December 2021;
  • The preparedness with respect to specific needs of children in the event of a third wave of the pandemic in terms of medical infrastructure, vaccination trials and regulatory approval, and compatible drugs;
  • Whether under the policy of the UoI, it is permissible for State/UT Governments or individual local bodies to access vaccine supplies of foreign manufacturers;
  • The number of crematorium workers vaccinated in phase 1. A targeted drive can be conducted for vaccination of the remaining crematorium workers;
  • The State/UT Governments are diverting the vaccines (procured by them at a higher price than Central Government) for the persons in the age group of 18- 44 years to vaccinate persons above 45 years of age, due to a shortage of vaccines being supplied by the Central Government. The manner in which the Central Government will factor this quantity and price differential into their subsequent allocation and disbursal of vaccines to States/UTs for the persons above 45 years of age; and
  • The mechanism for redistribution, if the 25:25 quota in a particular State/UT is not picked up by the State/UT Government or the private hospitals.

Effects of Vaccination by Private Hospitals under the Liberalized Vaccination Policy

“… we are not opposed to the involvement of private hospitals in the vaccination drive. Private health care institutions have an important role as well. The UoI has correctly noted in its affidavit that these hospitals will reduce the burden on government facilities. This was also happening earlier for the vaccination of those above 45 years of age, where the Central Government was providing these hospitals with vaccines and they were allowed to charge patients a nominal fee (Rs 250). However, the issue is about the effect of privatizing 50% of all vaccines available for the 18-44 age group.”

  • The manner in which Central Government will monitor the disbursal of vaccines to private hospitals, specifically those who have hospital chains pan India. Further, whether (i) private hospitals are liable to disburse vaccines pro rata the population of States/UTs; and (ii) the mechanism to determine if private players are genuinely administering the lifted quota in that State/UT alone. The UoI shall place on record any written policy in relation to this.
  • Whether the Central Government conducted a “means-test” of the demographic of a State/UT to assert that 50% of the population in the 18-44 age group would be able to afford the vaccine. If not, the rationale for private hospitals being provided an equal quota for procurement as the State/UT Governments.
  • The manner in which the Centre and States/UTs shall ensure an equitable distribution of vaccines across sections of the society, and how this factors into the rationale of equal apportionment between State/UT Governments and private hospitals.
  • The nature of the intervention with respect to the final, end-user price that is being charged by private hospitals, especially when a cap on procurement by the private hospitals has been set.

Basis and Impact of Differential Pricing

If the Central Government’s unique monopolistic buyer position is the only reason for it receiving vaccines at a much lower rate from manufacturers, it is important for us to examine the rationality of the existing Liberalized Vaccination Policy against Article 14 of the Constitution, since it could place severe burdens, particularly on States/UTs suffering from financial distress.”

While the Court commended the co-operative efforts of the UoI and the private manufacturers in developing and distributing vaccines which are critical to mitigate the pandemic, it sought clarifications on the process of development and augmentation of vaccine production and its pricing for States/UTs and private hospitals.

  • Since the Central Government has financed (officially, Rs 35 crores to BBIL and Rs 11 crore to SII for phase 3 clinical trials) and facilitated the production (or augmentation of production) of these vaccines through concessions or otherwise, it may not be accurate to state that the private entities have alone borne the risk and cost of manufacture. Additionally, the Central Government would have minimized the risks of the manufacturers by granting Emergency Use Authorization to the vaccines, which should factor into its pricing.
  • The manner in which public financing is reflected in the procurement price for the Central Government, which is significantly lower than price for the State/UT Governments and private hospitals. Given that the R&D cost and IP have either been shared between the Central Government and the private manufacturer (in case of Covaxin) or the manufacturer has not invested in R&D of the vaccine (in case of Covishield), the manner in which the pricing of vaccines has been arrived at, with the Central Government refusing to intervene statutorily. The justification for intervening in pre-fixing procurement prices and quantities for States/UTs and private hospitals, but not imposing statutory price ceilings.
  • Comparison between the prices of vaccines being made available in India, to their prices internationally.
  • Whether ICMR/BBIL formally invited contracts for voluntary licensing and if so, whether they have they received viable offers. The manner in which the UoI is independently trying to assist manufacturers for developing BSL3 labs which are essential for Covaxin production.

Vaccine Logistics

  • The manner in which cold storage equipment capacity is being balanced between the Central and State/UT Governments. The manner in which the States/UTs are managing the logistical burden for vaccinating persons aged between 18-44 years, along with persons aged over 45 years.
  • Whether cold storage facilities in India have increased for the COVID-19 vaccination drive; the present numbers, and comparison with the numbers prior to March 2020;
  • Whether the cold storage equipment is indigenously manufactured or is imported. If it is imported, the steps which have been taken to start indigenous manufacturing.
  • The steps being taken to improve the cold storage management for vaccines which may require lower temperature to be stored, compared to the ones which currently have approval in India.

Digital divide

“… there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration. A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

  • It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.
  • The issue of over-crowding may also arise at CSCs in rural areas where people would have to visit constantly in hope of a vaccine slot opening up.
  • Certain vaccination centres may be earmarked for on-site registrations for the population aged between 18-44 years without the existing conditions prescribed in the circular dated 24 May 2021, potentially with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities. Alternatively, whether specific daily quotas may be introduced for on-site registration at each centre or specific centres.
  • This policy may not allay the issue of hesitancy which may arise from approaching a State authority (such as the District Immunization Task Force) to obtain registration for the vaccination. Whether on-site registration with selfattestation of age to ensure widespread vaccination can be provided.
  • The CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages. The timeline for ensuring the availability of the platform in multiple regional languages.
  • Conducting a disability audit for the CoWIN website and other IT application like Aarogya Setu to ensure that they are accessible to persons with disabilities.

Final directions

The Court directed UoI to file an affidavit, with each of the abovementioned issues responded to individually and no issue missed out.

The affidavit should also provide the following information:

  • The data on the percentage of population that has been vaccinated (with one dose and both doses), as against eligible persons in the first three phases of the vaccination drive. This shall include data pertaining to the percentage of rural population as well as the percentage of urban population so vaccinated;
  • The complete data on the Central Government‟s purchase history of all the COVID-19 vaccines till date (Covaxin, Covishield and Sputnik V). The data should clarify: (a) the dates of all procurement orders placed by the Central Government for all 3 vaccines; (b) the quantity of vaccines ordered as on each date; and (c) the projected date of supply; and
  • An outline for how and when the Central Government seeks to vaccinate the remaining population in phases 1, 2 and 3.
  • The steps being taken by the Central Government to ensure drug availability for mucormycosis.

The affidavit is to be filed within 2 weeks.

[In re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 411, decided on 31.05.2021]


Appearances before the Court

Mr Tushar Mehta, learned Solicitor General

Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has stayed the Delhi High Court’s order holding the levy of IGST on oxygen concentrators imported as gifts for personal use violative of Articles 14 and 21 of the Constitution.

The Ministry of Finance had, through Attorney General K K Venugopal, had argued that on 28 May 2021, at the Forty-Third meeting of the GST Council, a decision was taken to constitute a Group of Ministers to scrutinize the need for “further relief to Covid-19 related individual items immediately”. The Group of Ministers is to submit its report by 8 June 2021.

“… the judgment of the High Court trenches upon a pure issue of policy.”

It was further argued that the exemption which has been granted in respect of the concentrators which are imported by the State or its agencies falls in a clearly distinct classification.

Issuing notice returnable after 4 weeks, the Court directed,

“Till the next date of listing, there shall be a stay of the operation of the impugned judgment and order of the High Court dated 21 May 2021.”

[Ministry of Finance v. Gurcharan Singh, Special Leave to Appeal (C) No.7226/2021, order dated 01.06.2021]


Also read our full report on the Delhi High Court’s order dated May 21, 2021:

Del HC | “I can’t breathe”; HC calls oxygen shortage a ‘George Floyd moment for the citizens’; holds imposition of IGST on oxygen concentrators imported by individuals, unconstitutional

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ravindra V. Ghuge and B. U. Debadwar, JJ., addressed the issue of dysfunctional ventilators supplied through PM Cares Fund. The Bench remarked,

We find the above situation as regards the dysfunctional ventilators supplied through the PM Cares Fund, to be quite serious. We, therefore, call upon the learned ASGI to state, as to what action would the Union of India initiate in these circumstances.

MUCORMYCOSIS TREATMENT

The State had submitted before the Court that about 1000 hospitals were empanelled in two schemes namely, ‘MJPJAY’ and ‘PMJAY’for treating patients. Out of these 1000 hospitals, 131 were specifically identified as being appropriate facilities for treating Mucormycosis treatment free of cost. It was also submitted that non-governmental hospitals which were amongst these 131 hospitals would be prohibited from charging as per their normal rates while treating patients for Mucormycosis considering the decision of the Government to extend free treatment in such facilities to all the residents of Maharashtra. Further, those private hospitals which were not empanelled under the said schemes would not be covered by the Government Resolution and if any Mucormycosis patient desires to approach a hospital which is not empanelled under the said two schemes, he would have to pay the charges as per the bills raised by such private hospitals.

P. M. CARES FUND VENTILATORS

Insofar as the 150 ventilators received through the PM Cares Fund were concerned, the State government indicated that a company by name, Jyoti CNC had manufactured the said 150 ventilators with the model name ‘Dhaman III’. It was highlighted before the Court that the GMCH had deployed 17 ventilators of which 6 were flawed and was likely to impact the treatment process of the patients. Two extremely serious flaws pertaining to ‘no in-let O2 pressure’ display and ‘patient becoming hypoxic’when on ventilator were noticed which could be life threatening.

It was further demonstrated that 41 ventilators were allotted to 5 private hospitals with the rider that they would not claim ventilators charges from the patients who used them but not a single ventilator was functional and the hospitals had declined to utilise them as a serious threat to the life of the patients exists. Similarly, 37 ventilators available with the GMCH had yet not been un-boxed as the Dean of the GMCH decided not to un-box the remaining 37 ventilators as 113 ventilators which had been put to use suffer from malfunctioning. It was clarified that, on the other hand all the 64 ventilators supplied by several Industrial Establishments were perfectly operational. Considering the above mentioned, the Bench remarked,

We find a serious issue before us as regards the defective functioning of the ventilators. Except the 37 ventilators which are yet to be un-boxed, 113 ventilators put to use are found to be defective.

Noticing some of the politicians have started visiting the Government Medical College and Hospital to find out whether the ventilators are functioning properly or not and some of the politicians have declared that all the ventilators are in good working conditions and some have stated that as the ventilators were lying idle, they have become dysfunctional. Opining that political colour should not be attached to the issue of dysfunctional ventilators as it would cause more botheration to the medical faculty than render assistance, the Bench remarked,

We express our displeasure as regards such indulgence by the people’s representatives. Contrary statements are being issued by the politicians which we find distasteful as some politicians have visited the hospital, posing as if they have the knowledge and the expertise to inspect the ventilators and recommend correctional steps.

In the above backdrop, holding that the situation as regard to the dysfunctional ventilators supplied through the PM Cares Fund was quite serious, the Bench asked the ASGI to state as to what action would the Union of India initiate in these circumstances and what remedial steps would it take.

[Registrar (Judicial) v. Union of India, 2021 SCC OnLine Bom 751, Order dated 25-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Chief Justice and Aravind Kumar J. gave a slew of directions regarding vaccine allocation, oxygen supply, food security and dignified burial of COVID dead bodies.

Issue 1: Delay in test result reporting

The Court taking stock of the situation in light of a recent incident where a staff of High Court died due to covid as the test result was not communicated to the deceased on time and hence he could not take treatment for COVID-19.

Directions:

  • State Government must initiate appropriate action in accordance with law against all concerned who are responsible for this lapse and place on record a report on the action taken on the next date.
  • State Government shall issue a direction to all the Laboratories to ensure that such incidents are not repeated and test reports are made available within 24 hours.

Issue 2: Vaccine Allocation

About 26, 00,000 beneficiaries in the State who have taken the first dose of COVISHIELD or COVAXIN have not received the second dose though it is overdue as per the prevailing norms of the Central Government. The total stock of vaccines available in the State is only 9, 37,780 of doses. Hence, there is no possibility of majority of 26, 00,000 beneficiaries getting the second dose which is already overdue. The situation which prevails today clearly shows that if all the available 9, 37,780 doses are to be used for administering the second dose, a substantial number of beneficiaries who have taken the first dose will not get the second dose.

The Court observed that there cannot be any distinction between the words ‘due’ and ‘overdue’ when it comes to administration of the second dose. Once as per the existing timelines, the second dose is due, it is an obligation of the Governments to ensure that the second dose is provided. If the second dose is not provided, it will be a violation of the fundamental rights of the citizens under Article 21 of the Constitution of India.

The Court further observed that If those who have taken the first dose are not administered the second dose on the respective due dates, apart from violation of the fundamental rights of the said citizens under Article 21 of the Constitution of India, if they are required to take the first dose again, it will be a huge national waste of the first dose already administered to them.

A mandatory direction to both the Governments regarding ensuring sufficient procurement of quantity of vaccine doses however was not issued in light of submission made by the Additional Solicitor General. It was stated that a decision on allocation of vaccine is likely to be taken and it was assured that the Central Government will make every endeavour to bridge the gap to ensure that no one is denied the second dose which has become due.

The sum and substance of the guidelines by the Central Government appears to be that the first priority of the State Government should be to provide vaccine to those who have taken the first dose.

“By way of an illustration, we may record here that if a person has taken the first dose of COVISHIELD more than eight weeks back, he must get priority over the person who has completed seven weeks from the date of taking the first dose of COVISHIELD. Thus, it is mandatory for the State Government to ensure that a rational and fair formula is adopted for giving second dose of vaccination.”

Directions:

  • State Government must abide by the said guidelines considering the desperate and critical situation created due to failure to administer second dose to about 20,00,000 citizens.
  • State Government shall place on record all the facts and figures (district-wise) regarding the second dose administered throughout the State

Issue 3: Food Security

The Government of India decided to allocate free of cost food grains at 5 Kgs, per person, per month to nearly 80 crore beneficiaries covered under the National Food Security Act, 2013 (NFSA) over and above NFSA Food grains for next two months i.e. May and June 2021 on the same pattern as the earlier “Pradhan Mantri Garib Kalyan Anna Yojana (PM-GKAY)”. Under this Special scheme (PM-GKAY) around 80 crore NFSA beneficiaries covered under both the categories of NFSA, namely Antyodaya Anna Yojana (AAY) and Priority Householders (PHH) will be provided with an additional quota of free of cost food grains (Rice/wheat) at a scale of 5 Kgs per person, per month, over and above their regular  monthly entitlements under NFSA.

There is an issue regarding implementation of the instant scheme which is being implemented through Indira Canteens throughout the State.

 Directions:

  • It is directed to both the Governments to take a call on the issue whether the benefits of Atma Nirbhara Scheme as applicable last year can be extended to those who are not holding a ration card of any State.
  • State Government shall also identify the vulnerable sections of the society who have been affected by the partial lockdown.
  • State Government shall take a decision immediately on the issue of restoring Dasoha helpline to know who are the persons who are deprived of the benefits of the scheme of the State Government of supplying cooked food as well as well as the scheme of the Central Government.

Highlights of the Report of the Monitoring Committee of the Karnataka State Legal Services Authority

There are two main issues which arise on the basis of the said report. These are as follows:

  • Compensation in Chamarajanagar District Hospital Tragedy

The Court relied on judgments Rudul Sah v. State of Bihar 1983 (4) SCC 141 and Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 and observed “that in a public law remedy in the form of a petition under Article 226 of the Constitution of India, Writ Court can grant compensation for violation of the fundamental rights guaranteed under Article 21 of the Constitution of India.”

  • Responsibility for lapses

The Court observed that the Committee has found instances of tampering with the relevant record. The Court directed that “the record shall be retained in the custody of the Chief Secretary will continue to operate. Needless to add that either the Commissioner appointed under the Commission of Inquiry Act, 1952 or any Investigating Agency needs to look into the record, the Chief Secretary will make available the said record.”

Observations regarding Oxygen

“….it is for the State Government to immediately communicate the requirements of the State to the concerned Authority of the Central Government in view of the assurance recorded therein.”

Observations regarding Dignified Burial or Cremation

The Court observed

“….State Government permit burial of the body of a person who has died due to COVID-19 without obtaining a death certificate.””

The Court finally directed “the learned Advocate General or the learned Additional Advocate General convenes a meeting of the learned counsel appearing for the parties so that the issues regarding compliances can be discussed and a proper response is given on the next date”

[Mohammed Arif Jameel v. Union of India, 2021 SCC OnLine Kar 12301, decided on 13-05-2021]


Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and Avinash G. Gharote, JJ., addressed the issue of Mucormycosis or Black Fungus disease and reluctance of public and private sector companies to abide by their corporate social responsibility. The Bench stated,

When these corporate entities are enjoined with a statutory duty (See section 135 of the Companies Act, 2013), it is expected that these companies discharge their duties whenever they are called upon to do so and in our opinion, there could have been no better opportunity than the present time and present cause to discharge such duty.

Corporate Social Responsibility

By the instant suo motu case, the Court had made an attempt to strengthen the health care system in Vidarbha Region, especially in view of Covid -19 pandemic. This Court had urged not only the State Government, but also the public sector companies and private sector companies to make their contributions to the noble cause. The Bench said that if these companies do not respond to the call, the Court would have to issue necessary directions for waking them up and answer the call of their duty. Accordingly, the Divisional Commissioner, Nagpur and of Amravati were directed to obtain the information as regards the availability of CSR funds with all the companies operating in their respective divisions. The Divisional Commissioner was further directed to verify the correctness of the information so provided by these companies.

Mucormycosis Disease

Counsel for the intervener, Mr. Bhanudas Kulkarni, had highlighted the issue of black fungus or Mucormycosis disease affecting several patients post recovery from Covid-19 disease. He submitted that in last 15 days, 43 eyes had been removed and 26 deaths had occurred, all due to Mucormycosis. Also, in the last two days new 109 cases of Mucormycosis had been reported. He further pointed out that as per the IMA report that some of the relevant factors in the present case include reduction of immunity on account of weakness which develops after recovering from Covid-19 and also due to misuse of steroids. It also points out the treatment to be given to the patients while highlighting the toxicity of some of the drugs which are available for treating this disease in current situation.

Another issue before the Court was regarding high cost of drugs used to treat Mucormycosis and that very high dosage is required of the same which had made it out of reach out several patients. The Bench said that incidence of Mucormycosis has also risen alarmingly. In such a situation, it is necessary that some steps are taken by the Government for bringing down the prices of these drugs to affordable level. Accordingly, the Court urged the National Pharmaceutical Pricing Authority to look into the matter and issue directives reducing the prices of these drugs to affordable level.

Shortage of Drugs

Noticing the problem of short supply of the drugs used for treatment of Mucormycosis, the Bench opined that there are about 26 companies which are involved in manufacturing of the drugs used for treatment of Mucormycosis, hence it would be appropriate if the Central Government regulates the production and distribution of these drugs across India so that there may not be shortage of these drugs in future. Accordingly, request was made to the National Pharmaceutical Pricing Authority and Central Drug Controller to issue necessary directions as regards regulation of production of the drugs, increase of production capacity and distribution of these drugs to different States of India on the basis of caseload of each of the States.

Directions of the Court

  1. Noticing that some of the drugs given to the patients to treat Mucormycosis are highly toxic and affect kidney, the Court directed the State government to issue a detailed and specific SOP for prescription and use of these drugs, preferably giving the contraindications.
  2. In Vidarbha region, the Division Commissioner, Nagpur and the Divisional Commissioner Amravati were directed to start awareness campaign to acquaint members of public with the cause, effect and preventive measures to be taken to tackle Mucormycosis or black fungus disease.
  • Noticing that IMA had already issued the guidelines to be followed to safeguard patients from post Covid-19 black fungus disease, the Bench directed the Divisional Commissioner Nagpur and the Divisional Commissioner, Amravati to give wide publicity to these guidelines in at least three languages Marathi, Hindi and English.
  1. Further, directions were issued to prepare posters of these guidelines and paste at different places and circulate the same on social media.

[Court on its own motion v. Union of India,  2021 SCC OnLine Bom 742, order dated 19-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Amicus Curiae: S.P.Bhandarkar

For Union of India: ASGI U.M.Aurangabadkar with Adv.Santok Singh Sokhi and Adv. Deshmukh
For Respondents: GP. Ketki Joshi Addl. GP D.P. Thakare and AGP N.S. Rao

For Respondent 4 and 10: Adv. S.M.Puranik and Adv. B.G.Kulkarni, respectively

For MADC:  Adv. C.S.Samundra

Case BriefsSupreme Court

Supreme Court: The vacation bench of Vineet Saran and BR Gavai, JJ has stayed the Allahabad High Court’s order wherein it was held that apprehension of being infected with COVID-19 after coming into contact with authorities was a valid ground for anticipatory bail.

The High Court had granted anticipatory bail to one Prateek Jain “on account of special conditions and on special ground”. The applicant had contended that if he is arrested and subjected to the subsequent procedures of detention in lock-up, production before the Magistrate, grant or rejection of bail or incarceration in jail, etc., the apprehension to his life will certainly arise.

In such circumstances, the High Court had noticed that during the compliance of procedures provided under Cr.P.C. or any special act, an accused will definitely come in contact with number of persons. He will be arrested by police, confined in lock-up, produced before the Magistrate and if his bail application is not granted promptly, he will be sent to jail for an indefinite period till his bail is granted by the Higher Court.

“The accused may be suffering from the deadly infections of corona virus, or police personnels, who have arrested him, kept him in lock-up, produced him before the Magistrate and then took him to jail may also be infected persons. Even in jail large number of inmates have been found to be infected. There is no proper testing, treatment and care of the persons confined in jails.”

Challenging the said order before the Supreme Court, Solicitor General Tushar Mehta submitted that the larger issue was involved in the matter, as various directions have been issued by the High Court with regard to grant of bail in the present Covid situation.

The Court, hence, directed,

“Keeping in view the totality of facts and circumstances of the present case, we direct that as far as the general observations and directions in the impugned order are concerned, the same shall remain stayed and the Courts shall not consider the said directions while considering other application for anticipatory bail, which shall be decided on the merit of each case, and not on the basis of observations made in the impugned order.”

Court also appointed Senior Advocate V. Giri as an amicus curiae in the matter.

Warning the respondent Prateek Jain, the Court said that if he fails to appear on the next date of hearing, it shall be considered to be a good ground for cancellation of anticipatory bail granted to him by the High Court.

Read the detailed directions issued by the Allahabad High Court here:

All HC| “Right to life of an accused person can not be put to peril”; Apprehension of being infected with COVID-19 after coming into contact with authorities a valid ground for anticipatory bail

[State of Uttar Pradesh v. Prateek Jain, 2021 SCC OnLine SC 400, order dated 25.05.2021]


Appearances before the Court:

Mr. Tushar Mehta, SG

Ms. Garima Prashad, AAG

Mr. Sarvesh Singh Baghel, AOR

Mr. Abhinav Agrawal, Adv

Op EdsOP. ED.

“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment[1].”

The tussle between the proponents of death penalty and those against it is unrelenting. While the advocates in favour of capital punishment justify their stand on the basis of the deterrent and retributive principles of criminal jurisprudence, and those against it, term death penalty as “barbaric” and a rudiment of uncivilised thought process. Significantly, the Law Commission of India in its 262nd Report[2], inter alia, concluded, “death penalty does not serve the penological goal of deterrence any more than life imprisonment” and accordingly, recommended for the abolition of death penalty for all crimes, “other than terrorism related offences and waging war”. However, despite such recommendation(s), capital punishment continues to remain under the statute books as one of the forms of sanctions, which may be inflicted upon the convicts of serious offences. In fact, even the Supreme Court[3] has consistently upheld the constitutional validity of death penalty by noting, “so far the death penalty remains in the Penal Code the courts cannot be held to commit any illegality in awarding death penalty in appropriate cases”. Nevertheless, court’s power to grant capital punishment is not unrestrained, rather, is required to abide by the strict parameters of law and judicial precedents. Further, the Supreme Court[4] has unswervingly professed,

  1. … A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Pertinently, these restrains, parameters, guidelines, etc., are not only applicable at the stage of actual grant of sanction, rather, restrictions extend until the capital punishment is finally executed.

The provisions under Chapter XXVIII[5] of the Code of Criminal Procedure, 1973 (CrPC/ Code) are illustrations of such statutory guidelines/principles, demanding mandatory compliance, prior to the execution of death sentence(s), awarded by Sessions Court. The Supreme Court in Union of India v. V. Sriharan[6], while dealing with the provisions under the said chapter and terming the same as a separate Code, observed, 84. … Sections 366 to 371 are placed for the relevant consideration to be mandatorily made when a death penalty is imposed by the trial court. Under Section 366, whenever a Sessions Court passes a sentence of death, the proceedings should be mandatorily submitted to the High Court,

100. … the confirmation of the capital punishment of death penalty, the whole procedure has been mandatorily prescribed to ensure that such punishment gets the consideration by a Division Bench consisting of two Judges of the High Court for its approval. Significantly, as per the provisions of Section 366(1) of CrPC[7], “When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.” Clearly, the said provision, unequivocally declares that the sentence of death, passed by Session Court, is automatically suspended on a reference made to the High Court, until the same is confirmed by the High Court. However, as per Section 366(2) of the Code, the Session Court/court passing the sentence of death is obligated to commit such a convict to jail custody under a warrant, until the final determination by High Court.

Significantly, the said provision was inserted under the Code[8], pursuant to the recommendations made by the Law Commission in its 41st Report[9]. Appositely, the Supreme Court in Sunil Batra v. Delhi Admn.[10], inter alia, while dealing with the provisions under Section 366 CrPC, observed,

  1. The purpose behind enacting Sub-section (2) Section 366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. Similarly, the Supreme Court in Triveniben v. State of Gujarat[11], reiterated, 21. … prisoner who is sentenced to death and is kept in jail custody under a warrant under Section 366(2) is neither serving rigorous imprisonment nor simple imprisonment. In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence.

Pertinently, as per the provisions of Section 369 of the Code[12], the death reference(s) made by the Court of Session to the High Court are placed before, decided and signed by at least two of Judges of the said High Court, “when such court consists of two or more Judges”. However, in the case of a conflict/difference of opinion between the Judges constituting such a Bench at High Court, as per the provisions of Section 370 CrPC[13], the said case/conflict has to be decided in the manner as provided under Section 392 of the Code[14]. Significantly, the Supreme Court in Joseph Peter v. State of Goa, Daman and Diu[15], duly acknowledged,

5. … the insistence of the Code on two Judges hearing the matter of such gravity as a death sentence involves is because of the law’s grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are applied.

However, in the instant case, considering that only one Judicial Commissioner (out of sanctioned strength of two) was functional, the court, held,

5. Even so, exceptional situations may arise where two Judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened. We cannot fault the judgment on this ground either. In fact, while deciding so, the Supreme Court unambiguously noted that the provision[16], “obviously applies only to situations where the court, at the time of the confirmation of the death sentence, consists of two or more Judges”.

Significantly, the proceeding before the High Court in a death reference is not merely a mechanical exercise. On the contrary, it is trite law[17] that in a reference for confirmation of death sentence, High Court is required to examine the entire evidence for itself, independent of the Sessions Court’s findings/views. In this regard, the Supreme Court in Jumman v. State of Punjab[18], while considering the scope of High Court’s duty and power under such scenarios, held,

10. … it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law abovementioned it is for the High Court to come to an independent conclusion of its own.

Similarly, in Subbaiah Ambalam v. State of T.N.[19], the Supreme Court, while reiterating that for confirming death sentence, “the High Court has to consider the evidence afresh and to arrive at its independent finding with regard to the guilt of the accused”, remanded the matter to the High Court, lamenting under the observation,

“we are distressed to find that to the judgment appealed against this statuary requirement has not been complied with and a case involving death sentence has been disposed of in a casual manner”.

Subsequently, in State of Maharashtra v. Sahebrao[20], the High Court of Bombay, reiterating the settled principle(s) of “doctrine of ‘rarest, of rare case’ ” and “sufficient cause”, professed with extreme vehemence,

15. … All the sides of this aspect of confirming the death penalty have to be scrutinised with great care and caution. The “mitigating circumstances”, always play dominant role in confirming the death sentence. The mitigating circumstance has to be gathered and or collected and to be weighed from the facts and circumstances of the case. The confirmation of death sentences therefore cannot be based only on the precedents and or aggravating facts and circumstances of any other case. The essential and relevant mitigating circumstances of the particular case always play a role of negative elements against the positive theory of death punishment.

Appositely, Section 367 CrPC[21] enables/empowers the High Court(s) to make an inquiry into or take evidence, itself or direct such an enquiry to be made or additional evidence taken by a Court of Session(s), where it, “thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person”. Further, noticeably, though, none of the provisions under the instant Chapter confer a right on a convict to be heard before the High Court in the said proceedings,

7. Even so[22], the accused is afforded an opportunity of being heard. He is elaborately heard, both on fact as well as on law. He is also even entitled to show that the decision arrived at by the Sessions Court is not sustainable on facts and law and that he is entitled to be acquitted, considering the sacrosanct principle of audi alteram partem[23].

In fact, in this regard, the Supreme Court in Masalti v. State of U.P.[24], held,

8. Proceedings brought before the High Court for confirmation of a death sentence give a right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter for itself without being influenced by the conclusions recorded by the Court of Session.

Further, moving a step ahead, the High Court of Bombay[25], dispelled the argument the term “inquiry”, as contemplated under Section 367 CrPC would not “take-in”/encompass an examination of the accused under Section 313 CrPC[26], by noting,

22. Putting such a limitation on the powers of the High Court under Section 367 may in proper cases deprive the accused persons of an opportunity to offer explanation in respect of the incriminating circumstances which have been brought in the evidence and exposing him to the risk of a conviction even if he were to have a proper and plausible explanation to offer in respect of that circumstance and put him in the peril of sufferring a conviction for fault of his.

Section 368 of the Code[27], further, contemplates that in any case submitted/referred by Sessions Court under Section 366 thereof, the High Court may either confirm the sentence or pass any other sentence warranted by law or may annul the conviction and convict the accused of any offence of which Sessions Court might have convicted him or order a new trial on the same or amended charges or may acquit the accused. Clearly, the powers conferred on the High Court(s) under the said Chapter are quite wide in nature, for the provisions enumerated therein not only entitle the High Court to direct further enquiry or to take additional evidence, in fact, the High Court, may, in appropriate case, even acquit the accused person. Significantly, as per the Supreme Court[28], the power of High Court, under Section 368(c) CrPC to acquit an accused person, “can be exercised by the High Court even without there being any substantive appeal on the part of the accused challenging his conviction” and that proceeding envisaged therein “is a proceeding in continuation of the trial”. It is to be, however, appreciated that as per the proviso appended to Section 368 CrPC, the power of the High Court to confirm a death sentence may be exercised only, “after the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of”. Appositely, the Supreme Court in Bhupendra Singh v. State of Punjab[29], while dealing with the scope of exercise of power of High Court under a corresponding/pari materia[30] provision, in the event of simultaneous filing of appeal by a convict and death reference by the Sessions Court, observed,

4. … if an appeal is filed by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty under Section 375 of the Code[31] of Criminal Procedure and consequently, the court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed.

Mr Justice Krishan Iyer once remarked[32],

1. A death sentence, with all its dreadful scenario of swinging desperately out of the last breath of mortal life, is an excruciating hour for the Judges called upon to lend signature to this macabre stroke of the executioner’s rope. Even so, Judges must enforce the laws, whatever they be, and decide according to the best of their lights.…

Undoubtedly, task of a Judge in sanctioning a convict is quite unpleasant and even more so when it entails, depriving an individual of his life. However, there are abundant judicial and statutory parameters, which ensure that the powers conferred on Judges are not abused or misused. Simultaneously, the provisions under Chapter XXVIII of CrPC also dictate several guiding principles for the case(s) where a convict of death sentence awaits determination of his fate by High Court. Further, whenever there is any ambiguity or uncertainty regarding the appropriateness and application of law, courts have consciously and voluntarily stepped in to lay down doctrines and codes, which ensure fairness and justice. In fact, the courts have consistently professed in favour of the pertinence of the principles of natural justice in the cases even where the statutory provisions are silent and do not exclude such application, expressly or by necessary implication. Understandably, the principles of natural justice are deep-rooted and pervade even the gaping recesses of gloomy and tedious proceedings such as that of death reference(s) before High Court(s). Such principles, including a right of being hear of a convict; passing of a reasoned and independent finding/ decision by High Court, etc., are, therefore, intrinsic and inextricably intertwined with the proceedings before High Court(s) in death reference, to ensure fairness, both, explicit and implicit in such proceedings. As a famous saying goes, “Justice should not only be done but should manifestly and undoubtedly be seem to be done.” The same holds true even for proceedings before High Court while determining/deciding death reference(s).


Advocate, Delhi High Court

[1] J.R.R. Tolkien.

[2] The Death Penalty, August 2015

[3]Vinay Sharma v. State (NCT of Delhi), (2018) 8 SCC 186

[4] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[5] Sections 366 till 371 of the Code of Criminal Procedure, 1973 dealing with submission of death sentences for confirmation

[6] (2016) 7 SCC 1

[7] Section 366(1) of CrPC 

[8] Initially inserted under the corresponding provision, being, S. 374 of the Code of Criminal Procedure, 1898.

[9] September, 1969 (Vol. I)- Law Commission Report on the Code of Criminal Procedure, 1898. The Law Commission, accordingly, recommended, “It is noticed that when the accused is sentenced by the Court of Session to imprisonment for life, S. 383 expressly provides for the issue of a suitable warrant and the forwarding of the accused with the warrant to the jail in which he is to be confined. It is desirable that a similar provision should be made in S. 374 so that there may be specific statutory authority for holding the accused in prison after the Court of Session has passed sentence of death and until it is executed in due course.”

[10] (1978) 4 SCC 494

[11] (1989) 1 SCC 678

[12] Section 369 of CrPC 

[13] Section 370 of CrPC

[14] Section 392 of CrPC 

[15] (1977) 3 SCC 280 

[16] In the present case, the provision under consideration was S. 377 of the Code of Criminal Procedure, 1898, being pari materia/corresponding provision to S. 370 under the Code of Criminal Procedure, 1973.

[17]Refer to Balak Ram v. State of U.P., (1975) 3 SCC 219

[18]  AIR 1957 SC 469

[19] (1977) 4 SCC 603 

[20] 2004 SCC OnLine Bom 1186 : 2005 Cri LJ 2788

[21] Section 367 of CrPC

[22] Refer to Haidarkhan Lalkhan Pathan v. State of Gujarat, 1990 SCC OnLine Guj 16 : 1991 Cri LJ 1266

[23] One of the principles of natural justice and a Latin phrase meaning, “listen to the other side”, or “let the other side be heard as well”.

[24] (1964) 8 SCR 133 

[25]Kaliram v. State of Maharashtra, 1989 SCC OnLine Bom 56: 1989 Cri LJ 1625

[26] Section 313 of CrPC 

[27] Section 368 of CrPC

[28] Atma Ram v. State of Rajasthan, (2019) 20 SCC 481

[29] AIR 1968 SC 1438 : (1968) 3 SCR 404 

[30] S. 376 of the Code of Criminal Procedure, 1898 corresponds with S. 368 of the Code of Criminal Procedure, 1973.

[31] Section 375 of CrPC 

[32] Refer to Joseph Peter v. State of Goa, Daman and Diu, (1977) 3 SCC 280

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Shakdher and Talwant Singh, JJ., disposed of the petition which was filed in order to decide the constitutionality of imposition of IGST on the imported oxygen concentrators. The Court in its prologue said,

“This is a George Floyd moment for the citizens of this country. The refrain is ―I can’t breathe‖, albeit, in a somewhat different context and setting; although in circumstances, some would say, vastly more horrifying and ghastlier. Chased and riven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair.”

The petitioner was 85 years old and had approached the Court against the imposition of IGST on the import of the oxygen concentrator which had been gifted to him by his nephew. The petitioner asserted that the imposition of tax was discriminatory, unfair, and unreasonable and that it impinges upon his right to life and health. The clearance of the oxygen concentrator from the customs barrier required payment of IGST at the rate of 12%. It is relevant to note that before 01-05-2021, an individual importer would have had to pay IGST at the rate of 28% qua oxygen concentrator gifted to him for personal use.

The State had issued an impugned notification dated 01-05-2021 whereby IGST on oxygen concentrators imported by individuals for personal use, that are supplied free of cost, was scaled down to 12% and it further issued a notification dated 03-05-2021 whereby it exempted, completely, oxygen concentrators imported for the purpose of COVID relief from the imposition of IGST in cases, where the importer was the ―State Government or, any entity, relief agency or statutory body, authorised in this regard by any State Government” till 30-06-2021.

Major submissions made on behalf of the Amicus and the petitioner: –

  1. The interplay of provisions of The Customs Act, 1962 [Customs Act],The Customs Tariff Act, 1975 [CTA], The Goods and Services Tax Act, 2017[GST Act], and The Integrated Goods and Services Tax Act, 2017[IGST Act] allows for the imposition of Basic Customs Duty [in short ―BCD‖] and IGST on goods imported into the country at the rates stipulated in the CTA.
  2. The source of power to levy and collect IGST on imports is rooted in the explanation appended to Article 269A (1) of the Constitution.
  3. With the enactment of the GST Act, it is now possible to levy simultaneously both Central GST as well as State GST. Excluding 6 items, Central Sales Tax Act, 1956 [CST Act] stands substituted by the IGST Act. Article 246A(2) gives Parliament the exclusive power to levy GST on the supply of goods and services that takes place in the course of inter-state trade and commerce.
  4. Section 3(7) of the CTA which allows for levy of IGST on imported goods pegs the ceiling rate at 40%. The provision for valuation is provided under Section 3(8) and 3(8A) of the CTA. Section 3(12) contains the power for exempting, inter alia, the levy of IGST.
  5. Thus, in effect, from 01.07.2017, BCD is levied on imported goods under the Customs Act and IGST is leviable under Section 3(7) of the CTA read with Section 5 of the IGST Act.
  6. A perusal of the Mega Exemption Notification no. 50/2017, dated 30.06.2017, (which superseded notification 12/2012 dated 17.03.2012) [General Exemption no. 190‖] would show that qua several items where BCD is exempt or reduced, the IGST is nil. This has been a longstanding practice even prior to the issuance of Mega Exemption Notification.
  7. In the notification issued by Directorate General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry [in short ―DGFT‖], whereby oxygen concentrators were exempted from customs duty/BCD, IGST, via a separate notification, i.e., notification no. 30 of 2021 dated 01-05-2021 was reduced from 28% to 12% qua imports made for personal use. An exception was, however, made insofar as oxygen concentrators imported by a canalising agency was concerned. In such cases, vide notification no. 4 of 2021 dated 03-05-2021, complete exemption from IGST was granted, albeit, subject to certain conditions.
  8. Furthermore, a perusal of entry no. 607A1 of General Exemption no. 190 would show that complete exemption from BCD and IGST is granted for life-saving drugs/medicines imported for personal use which are supplied free of cost by overseas supplier.
  9. Oxygen concentrators would fall within the ambit of Entry no. 607A, Tariff Item no. 9804 of the General Exemption no. 190, as the definition of drugs as provided in Section 3(b) of the Drugs and Cosmetics Act, 1940 [in short ―Drugs and Cosmetics Act‖] would include medical equipment used for treating and preventing human disease. Furthermore, since an oxygen concentrator is, undoubtedly, a piece of life-saving equipment, it should not be subjected to the rigour of certification by officials, named in condition no. 104 stipulated against entry no. 607A.
  10. The impugned notification violates not only the right to health but also the right to human dignity which is interwoven in Article 21 of the Constitution.

Major submissions advanced on behalf of the State: –

  1. Since GST rates and general exemptions are notified based on the recommendations of the GST Council, the request received by the Government of India for extending GST exemptions qua COVID-19 related supplies shall be placed before the GST Council. The GST Council will consider the same and take steps having regard to the relevant factors and the situation prevalent in the country.
  2. The Government of India has provided considerable relief insofar as oxygen concentrators imported for personal use are concerned- BCD hasbeen reduced from 38.5% to nil while IGST has been scaled down from 28% to 12%. The reduction in the rate of IGST from 28% to 12% has been brought about for bringing about parity between oxygen concentrators imported for commercial purpose as against those imported for personal use.
  3. The decision to impose a tax and/or the fixation of the rate at which tax is to be imposed cannot be subjected to judicial review.
  4. The imposition of IGST on imported oxygen concentrators, which are gifted, and are for personal use, does not violate Article 21 of the Constitution. If this argument of the petitioner is accepted, it will lead to absurd consequences in as much citizens will attempt to seek exemption from property tax, and food items since both housing and food items have been considered as a facet of the right to life as encapsulated in Article 21 of the Constitution.

Analysis and Decision

The Court laid down some immutable ground rules to examine challenge laid to tax legislations and levying of tax in extraordinary times and formed main issues to be dealt with.

  1. Whether the State’s action, of imposing IGST on oxygen concentrators, which were directly imported by individuals, albeit free of cost, without the aid of a canalising agency runs afoul of Article 14 of the Constitution?
  2. Whether Article 21 of the Constitution, which includes the right to health and affordable treatment, would require the State to demonstrate that levy and collection of the impugned tax in times of pandemic, war, famine, floods, and such like conditions would subserve public interest?
  • Whether Article 21 of the Constitution, imposes on the State, a positive obligation to provide adequate resources for protecting and preserving the health and well-being of persons residing within its jurisdiction?
  1. What relief, if any, can be granted to the petitioner?

Issue 1

The Court found, The exclusion of individuals, such as the petitioner, from the benefits of the 03.05.2021 notification only because they chose to receive the oxygen concentrators as a gift, albeit directly, without going through a canalizing agency is, in our opinion, violative of Article 14 of the Constitution. While it is permissible for the State to identify a class of persons, to whom tax exemption would be extended, it is not permissible for the State to exclude a set of persons who would ordinarily fall within the exempted class by creating an artificial, unreasonable, and substantially unsustainable distinction.

Issue 2 &3

Exaction by the State, in the form of tax, in good and normal times, is, ordinarily, sustained by the Courts as they defer to the legislative wisdom that the imposition of the tax is for the greater good of the public; unless proved to the contrary. However, in times of peril, the Courts must examine the stand taken by the State to defend an action instituted to lay challenge to a tax – on anvil of Article 21 of the Constitution; as it is not the form but the impact of the tax which will determine its tenability. The Court said that in this context it must be said that there was a positive obligation on the State to take ameliorative measures so that adequate resources are available to protect and preserve the health of persons residing within its jurisdiction. The Court quoted from the Supreme Court verdict in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1,

“―495. The jurisprudence of this Court, in recognising the right to health and access to medical care, demonstrates the crucial distinction between negative and positive obligations. Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health. [ Jayna Kothari, ―Social Rights and the Indian Constitution‖, Law, Social Justice and Global Development Journal (2004).]‖”

In the same vein, the notification dated 03-05-2021 exempts imposition of IGST on oxygen concentrators which are imported free of cost, albeit, via canalizing agency up until 30-06-2021. The State could have, if it intended to treat, persons who are similarly circumstanced as the petitioner, at par with those who fall within the sway of the notification dated 03-05-2021- extended the exemption to them as well and withdrawn the same once normalcy was restored.

Issue 4

The Court opined that a declaratory relief can be accorded, to the effect, that imposition of IGST on oxygen concentrators, imported as gifts, i.e., free of cost, for personal use, is violative of Article 14 of the Constitution on the ground that an artificial, unfair and unreasonable distinction has been drawn between persons, who are similarly circumstanced as the petitioner and those who import oxygen concentrators through a canalizing agency.

The logical sequitur of this would be that persons who are similarly circumstanced as the petitioner, i.e., those who obtain imported oxygen concentrators as gifts, for personal use, cannot also be equated with those who import oxygen concentrators for commercial use. Therefore, notification bearing no. 30 of 2021-Customs, dated 01-05-2021, will also have to be quashed.

The State had argued that the Court cannot issue a writ of mandamus directing the State to issue an exemption notification in favour of the petitioner or persons similarly circumstanced. The power to issue an exemption notification under Section 25 of the Customs Act is vested in the State however the Court was not prevented from judicially reviewing an exemption notification once it is issued by the State.

The Court concluded that imposition of IGST on oxygen concentrators which were imported by individuals and were received by them as gifts [i.e. free of cost] for personal use, was unconstitutional.

[Gurcharan Singh v. Ministry of Finance, 2021 SCC OnLine Del 2312 , decided on 21-05-2021]


 

Suchita Shukla, Editorial Assistant has put this report together 

For the petitioner: Mr Sudhir Nandrajog, Senior Advocate with Mr Siddharth Bambha, Mr Shyam D Nandan and Mr Chirag Ahluwalia

For the respondent: Mr Zoheb Hossain, Sr. Standing Counsel, Mr Arvind Datar, Senior Advocate as Amicus Curiae with Mr Rahul Unnikrishnan

Case BriefsHigh Courts

Tripura High Court: The Division Bench of Akil Kureshi, CJ. and S. Talapatra, J., perused the latest affidavit filed by the State dated 16-05-2021 in which had several details particularly concerning the preparedness of the State-administration to deal with emerging Covid related situation.

The affidavit contained availability of Covid beds in different hospitals with continuous oxygen supply and other support systems. It was stated that in addition to the existing hospital beds with pipelined oxygen supply, 150 hospital beds which currently have oxygen cylinders as well as oxygen concentrators, shall be covered with oxygen supply through pipeline within a period of two weeks from today. State assured that this quantity was more than sufficient to cover not only the current requirement but any possible foreseeable future requirements. The affidavit further provided details of the vaccination progress in the State giving category-wise such as, coverage of first and second doses to healthcare workers, frontline workers, citizens over 60 years, those in the age group of 45 to 59 years etc.

The Court noted the details provided by the State administration and brought the attention of the administration towards two main aspects which required immediate action which were the high infection cases in State-run orphanages and jails. The Court requested the administration to ensure maximum possible testing of these children, further in the case of jail inmates the State which has restricted the movement of a citizen, of course by authority of law, has the onus to ensure that his health is not jeopardized on account of being kept confined. The Court further brought notice of the State-administration towards the requirement of round the clock helpline which is efficient, functional and provides all necessary information and support to the relatives of the patients who are in need.

The Court listed the matter on 24-05-2021 with a devised plan in relation to abovementioned concerns.

[Court on its own motion, 2021 SCC OnLine Tri 275, decided on 17-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

For Respondent(s): Mr S S Dey, Advocate General, Mr Debalaya Bhattacharya, Govt. Advocate, Ms Ayantika Chakrabroty, Advocate.

Case BriefsHigh Courts

Jharkhand High Court: Taking into consideration the reason of urgency i.e., acute surge in Covid-19 pandemic from which people are suffering and dire need of Oxygen, the Division Bench of Ravi Ranjan, C.J., and Sujit Narayan Prasad, J., directed to release Oxygen cylinders which were lying in judicial custody in connection with various cases.

The AG, Mr. Rajiv Ranjan, had preferred this interlocutory application in which urgency had been shown for passing appropriate order for utilization of Oxygen cylinders which are lying in judicial custody in different districts in connection with various cases for the purpose of using those Oxygen cylinders to the persons who are suffering from Covid-19 pandemic and who are in need of Oxygen. The AG had urged that such Oxygen cylinders may be directed to be released in favour of concerned District Health Committee and once the situation will be normalized or there will no need of such Oxygen cylinders, the same will be returned to the concerned police station.

Opining that Oxygen cylinders are of prime importance in saving life of persons suffering from Covid-19 pandemic and that number of such Oxygen cylinders are lying in judicial custody in connection with various cases and if it would be released after imposing appropriate condition, no prejudice would be caused to the parties to the lis rather it will be more beneficial for the people at large, who are suffering from Covid-19 pandemic and further the State Government will be in better position in facilitating the treatment of persons who are suffering from Covid-19 pandemic and are in dire need of Oxygen, the Bench ordered to release the Oxygen cylinder(s) without prejudicing the right of the parties on following conditions:

  1. The District Health Committee of concerned district shall furnish an affidavit with an undertaking before the concerned court for release of such Oxygen cylinder(s).
  2. The undertaking shall contain all details of cylinder viz. quantity of oxygen or its weight etc. and further with specific undertaking that such cylinder would be returned within a period of three months or even earlier if it will be required by the Court.
  3. The Courts, where cases are pending shall pass necessary order by recording such undertaking furnished by the District Health Committee.
  4. The District Health Committee was further directed to ensure identification of such cylinders before release and further secure return of such Cylinder on “as is where is” basis.

Further, it was also directed that the Deputy Commissioner-cum of the District Health Committee concerned shall with consultation of Civil Surgeon of the respective district ensure efficacy of such cylinder(s) and only after testing its perfection it may be used in order to avoid any casualty.

Additionally, taking note of media report regarding precarious condition of Sadar Hospital and death of five patients there due to interruption in supply of Oxygen, the Bench stated,

It is very unfortunate that in the Sadar Hospital at Ranchi, as reported that five patients, who were suffering from Covid-19, have died due to interruption in supply of oxygen

Accordingly, the State was directed to conduct a detailed enquiry on the issue and fix accountability upon the erring person(s) and submit its report. Further, the AG was directed to apprise the Court by filing affidavit with respect to the arrangement made in the Sadar Hospitals of each and every district of the State as also the arrangement made at Medical College, Dhanbad, containing therein the details of beds supported with Oxygen, number of the doctors and para-medical staffs as also the position of oxygen in the said hospitals.

[Suo Motu v. State of Jharkhand, 2021 SCC OnLine Jhar 368, order dated 08-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Rajendra Krishna, Advocate

For the State: Rajiv Ranjan, AG and Sachin Kumar, AAG-II

For the U.O.I.: Rajiv Sinha, A.S.G.I.

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Rajan Gupta and Karamjit Sing, JJ., addressed various issues with regard to unavailability of ambulance, wastage of vaccine and inadequate medical equipments and staff etc.

Issues before the Court

The Amicus Curiae, Mr. Rupinder Khosla had highlighted before the Court the need for more ventilators in GMSH-16, Chandigarh. According to him, only six ventilators are functional at the moment and the hospital is facing difficulty in view of large number of patients pouring in for medical help. Apart from this, the issue of wastage of vaccine vials which are opened for vaccination in all the three States was also highlighted. The Amicus Curiae emphasized that such wastage needs to be avoided at all costs as the country is facing paucity of vaccine after the eligible age group has been lowered to 18 years. It was also submitted that the ambulance facilities provided by the Government are over burdened. As a result, certain private parties are providing this facility but at a higher cost, making it a business venture. Further, the issue of scarcity of para medical staff was also raised before the Court.

The AG of Punjab, Mr. Atul Nanda had highlighted that out of 82 ventilators supplied to the Punjab 71 are faulty. He further submits that Punjab needs about 4 lakh vials of Covishield vaccine immediately. Similarly, counsel for UT of Chandigarh, Mr. Pankaj Jain had made a  request that a separate quota of 5 MT of liquid oxygen be exclusively kept for PGIMER, Chandigarh as it is a premier medical institute which is catering the needs of nearby States as well, therefore, it needs to be ensured that it does not face any problem in technical and support or oxygen supply.

The ASG of India, Mr. Satya Pal Jain submitted that as regards 71 faulty ventilators to the State of Punjab, the matter would be examined immediately and necessary steps be taken for rectifying the fault at the earliest. He further submitted that sufficient number of PSA Generators had been supplied to various Government Hospitals in UT, Chandigarh which all are functional now. The request of 5 MT of oxygen for PGIMER exclusively, would also be processed expeditiously.

Analysis and Directions by the Court

As regards the wastage of available quantity of vaccination, the Bench opined that the state of Haryana needs to examine whether Rule 24 of the Haryana Services Rule (General) can be invoked. The Rule reads as under:- Every government employee shall get himself vaccinated and re-vaccinated at any time when so directed by the Government by general or special order. State of Punjab was also directed to examine whether there is any pari materia provision in the Punjab Rules as well which makes vaccination compulsory for Government employees. As regards ambulance issue, apart from Government facility, the nodal agencies in all the Districts shall monitor the ambulance facilities being provided by the private operators. They may call upon voluntary agencies, NGOs etc. for providing additional ambulances. Additionally, tele-consultancy shall be made available to general public 24×7 and services of doctors/final year medical students can also be sought.

The central government was directed to examine the possibility of providing more ventilators to GMSH-16, Chandigarh hospital. Considering the critical care PGIMER, Chandigarh is providing, keeping in view its advanced medical expertise, the Bench directed the State governments to cooperate in every respect in order to ensure that its functioning remains smooth and efficient.

Reminding that in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, 1996(4) SCC 37, the Supreme Court had directed that immediate medical help is right to life and similar views had been echoed in cases Parmanand Katara v. Union of India, 1989(4) SCC 286 wherein it was directed to give priority to the health of citizens; the Bench directed all the three States to impress upon the private diagnostic centres to reasonably slash their rates for CT Scan for Covid patients.

Lastly, observing that under Corporate Social Responsibility (CSR) incorporated in Section 135 of the Companies Act, it is obligatory for the Companies to contribute at least 2% of their profit as social responsibility, the Bench asked the States to ask the corporate houses to participate in fighting the crisis by providing ambulances, oxygen beds, ventilators, CT Scan machines etc. to Government Hospitals so that economically weaker strata of the society has easy access to such facilities.

[Rishi v. State of Haryana, 2021 SCC OnLine P&H 836, order dated 12-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ., and G. S. Kulkarni, J. had addressed a suo motu case on the issue of alarming rise in COVID-19 cases in prisons of the State of Maharashtra.

By an earlier order, the Bench had passed several directions to de-congest the correctional homes and to compel adherence to maintenance of COVID-19 protocol in such homes to ensure safety and well-being of the correctional home inmates as well as the staff.

Pursuant to the said order, a report had been submitted by the State asserting that sanitizers had been made available as well as appropriate briefing is given to the authorities for maintaining COVID-19 protocol inside the correctional homes. Additionally, only those staff, who are vaccinated, are being assigned duties and to interact with the inmates. The State had assured that urgent steps would be taken to ensure that the entire prison staff is vaccinated at the earliest.

Another major issue before the Court was, the particulars of medical officers as well as paramedical staff posted in the various central prisons and district prisons present a very dismal picture. In case of both medical officers and para-medical staff, nearly 1/3rd of the vacancies remain unfilled. That though Medical Officers belonging to Classes I, II and III are shown to have been posted at various correctional homes but the principle behind such posting had not been indicated in the brief note submitted by the state. Similarly, the Yerwada Central Prison was found not to have the service of a single Medical Officer Class I. The Bench asked the state how it proposes to deal with the problem of dearth of medical officers and para-medical staff at the various correctional homes. The state was directed to at least make efforts to fill up all the sanctioned posts and ensure zero vacancy qua such posts. The Bench said any omission or failure to deal with the concern at hand by the State in the near future may not be viewed lightly.

While noting the progress made in achieving compliance, the Bench further issued further directions:

  1. The authorities to whom the guidelines/ recommendations are issued by the High Power Committee in furtherance of the avowed object of reducing the problem of overcrowding in the correctional homes shall follow the same in letter and spirit.
  2. The second direction was with regard to devising ways and means to regulate the entry of staff in the correctional homes, since it was apprehended that such staff were the carriers of the virus and contributed to its spread among the inmates.
  3. It is revealed that pulse oximeter reading, temperature reading as well as tests for symptoms common to the infection in issue are required to be undergone by each staff. Such staff also has to wear appropriate masks, properly.
  4. The shall, as far as practicable, have all the prison staff vaccinated as early as possible.
  5. State shall not compel an inmate to obtain release either on interim bail or emergency parole, without his free will/volition.
  6. Ministry of Health and Family Welfare, Government of India has issued Standard Operating Procedure (SOP) on COVID-19 ~ Vaccination of Persons without Prescribed Identity Cards through CoWIN portal which stipulates that if a group of people is found not to have any of the 7 specified identity cards required for vaccination, such group of people may be registered on the CoWIN portal and further steps accordance with the SOP for vaccination. Accordingly, directions were issued to the State as well as the prison authorities not to insist on production of Aadhar Cards by correctional home inmates and to proceed for vaccination of those inmates, not having the specified identity cards, in the manner as laid down in the SOP without any delay.
  7. To ensure that the statutory mandate of the Maharashtra Prison (Prison Hospital) Rules, 2015 framed under the provisions of the Prison Act, 1894 are complied with as early as possible; also, if there be dearth of medical officers, a policy of rotation could be formulated and pressed into service.
  8. Noticing the news report regarding water shortage in Taloja correctional home, the Bench directed the authorities to take immediate steps to restore the water supply.

Lastly, observing the rising number of Covid positive inmates and jail staff, the Bench opined that much is required at the end of the prison authorities to arrest the spread of the pandemic in the correctional homes. Hence, the Court asked the state to take appropriate steps within the limits of its capacity.

[Suo Motu v. State of Maharashtra, 2021 SCC OnLine Bom 715, order dated 12-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the State: Deepak Thakare and Akshay Shinde

Counsel for People’s Union for Civil Liberties (Intervenor): Mihir Desai with Vijay Hiremath, Devyani Kulkarni and Mihir Joshi

For Centre for Criminology and Justice (TISS): Professor Vijay Raghavan

Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ., and Shivaji Pandey, J., addressed the issue of spiraling rise in Covid-19 cases in the state.

The Bench, while resisting to pass any further order stated that the State of Bihar should give the required details on each and every aspect of the matter, such as, availability of medicines, black-marketing and also availability of oxygen gas cylinders in the rural areas, especially the district hospitals because the migrants are coming and there is a chance that the person in the rural area may get infected.

The Bench directed, the State should ensure that the medicines as well as all infrastructures are made available at the district level also. The State must also ensure early vaccination of the age group 18 to 45 years, as it is large chunk of the population and reportedly, the death rate of that class is very high.

[Shivani Kaushik v. Union of India, Civil Writ Jurisdiction Case No. 353 of 2021, order dated 07-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Advocates before the Court:

For the Petitioner/s: Shivani Kaushik (In Person)

For the UOI: Dr K.N. Singh (ASG)

For the State: Anjani Kumar, AAG-4

For the Respondent 5: Mrs Binita Singh

For Respondent 6: Shivender Kishore,

For PMC: Prasoon Sinha

 

Case BriefsHigh Courts

Bombay High Court: Observing that the situation about the supply of oxygen at the Goa Medical College is quite grim, the Division Bench of M.S. Sonak and Nitin W. Sambre, JJ. expressed that,

We have long passed the stage of determining whether patients are suffering from the lack of oxygen or not. The material placed before us establishes that patients are indeed suffering and even in some cases succumbing for want of the supply of oxygen, in the State of Goa.

Opining that the affidavit filed by Dr. Shivanand Bandekar, Medical Superintendent and the Dean of Goa Medical College would deserve greater credence than the affidavit filed by the Under Secretary (Health) since the Dean is monitoring the patients on day to day basis, the Bench taken noted of the said affidavit regarding details relating to deficit of oxygen supply. The affidavit revealed that, “hospitals were facing many interruptions in the supply of central oxygen on daily basis, leading to near critical fall in the oxygen saturations of patients en mass in the intensive care units. That though there is no problem with the availability and supply of Liquid Medical Oxygen, which is stored in the tank of 20,000 litres at the Super Specialty Block, this LMO cannot be directly used for the main GMC building, which is relying on the supply of oxygen via cylinders which are brought on trolleys and as loose cylinders there has been a problem with the supply of these trolleys and loose cylinders as a result of which there have been instances of a drop in supply of oxygen to the patients, which has resulted in casualties.

Noticing the abovementioned, the Bench said that the State Administration have to make further efforts, in addition to the efforts which they have already been making to ensure that Goa Medical College is supplied with the required amount of oxygen. The Bench emphasized, this is vital because the right to life is a fundamental right guaranteed by Article 21 of the Constitution.

There is, therefore, a corresponding duty cast on the State to ensure that this life is not extinguished on account of inability on the part of the State to supply oxygen to these unfortunate victims of the pandemic.

The duty of state can neither be avoided by pleading helplessness nor by putting forth logistical difficulties in sourcing and supplying oxygen. Such logistical problems must be got over at the earliest so that this tragedy of victims gasping for breath in the presence of their near and dear ones and in several cases even dying for want of necessary oxygen supply is arrested at the earliest. Therefore, the Bench directed the State to take all necessary steps to ensure that such logistical difficulties are overcome at the earliest and there are no casualties for want of a supply of oxygen to the pandemic victims.

Additionally, on the request of state the Bench waived the requirement of Covid negative certificate for entering in Goa to two drivers and one helper per goods vehicle making essential supplies of oxygen, medical drugs and equipments, milk, vegetables, food grains, etc. until further orders. However, the Bench made it clear that at each of the borders thermal scan of such persons would be necessary and if they display the symptoms, then, the police authorities or the other authorities should deny access to such persons within the State of Goa. The Bench clarified,

This limited waiver is not to be construed as a general license for permitting any persons to enter into the State of Goa, without having the Covid negative certificate.

The statistics suggest that the positivity rate in Goa is still high. The medical infrastructure is severely overstretched. The Doctors and nurses and the paramedical staff at the forefront of this fight against the epidemic are exhausted. Therefore all concerned must realize that there is no unnecessary insistence of waiver in the name of protecting the interests of the economy. Therefore, the waivers allowed were directed not to be misused by anyone to avoid further spread of the virus. The Bench expressed,

 No doubt, the importance of the economy can never be undermined, but at this stage at least, the priority and emphasis shall have to be on issues of health and survival. Ultimately, the economy is for the people and not the other way round.

Once the position improves, obviously the focus can and perhaps will have to shift on the economy. Accordingly the State administration was directed to focus maximum on improving the position of oxygen supply in the State and in particular at the GMC as the statistics indicate alarming number of deaths taking place in the State of Goa practically every day. Hence, this issue has to be given priority over other issues.

[Roshan Mathias V. State of Goa,2021 SCC OnLine Bom 708, order dated 12-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioners: Nigel Da Costa Frias with Vishal Sawant and G. Malik

Counsels for the State: AG D.J. Pangam  with AAG Deep Shirodkar

For Scoop Industries Pvt. Ltd.: V. Rodrigues,

For Principal Secretary (Finance), State of Goa: Mr. Puneet Kumar Goel

For Secretary (Health), State of Goa: Mr. Ravi Dhawan,

Dr. Tariq Thomas, Secretary, Urban Development, State of Goa.

Dr. Shivanand Bandekar, Dean, Goa Medical College, Bambolim.

Dr. Viraj Khandeparkar, Nodal Officer, Goa Medical College,

Bambolim.

 

Case BriefsHigh Courts

Allahabad High Court: When one Prateek Jain approached the High Court seeking anticipatory bail on the apprehension of death due to COVID-19 virus, Siddharth, J has granted anticipatory bail “on account of special conditions and on special ground”.

“… the apprehension of an accused being infected with novel corona virus before and after his arrest and the possibilty of his spreading the same while coming into contact with the police, Court and jail personnels or vice-versa can be considered to be a valid ground for grant of anticipatory bail to an accused.”

The applicant had contended that if he is arrested and subjected to the subsequent procedures of detention in lock-up, production before the Magistrate, grant or rejection of bail or incarceration in jail, etc., the apprehension to his life will certainly arise.

In such circumstances, the Court noticed that during the compliance of procedures provided under Cr.P.C. or any special act, an accused will definitely come in contact with number of persons. He will be arrested by police, confined in lock-up, produced before the Magistrate and if his bail application is not granted promptly, he will be sent to jail for an indefinite period till his bail is granted by the Higher Court.

“The accused may be suffering from the deadly infections of corona virus, or police personnels, who have arrested him, kept him in lock-up, produced him before the Magistrate and then took him to jail may also be infected persons. Even in jail large number of inmates have been found to be infected. There is no proper testing, treatment and care of the persons confined in jails.”

The Court also took note of Supreme Court’s order on limiting the arrests and releasing prisoners to decongest the overcrowded prisons and said that in case this Court, ignoring the same, passes order which will result in overcrowding of jails again it would be quite paradoxical.

“The right to life guaranteed under Article 21 of the Constitution of India is paramount and by mere implication in a case of alleged commission of non-bailable offence, right to life of an accused person can not be put to peril.”

The Court said that the allegations may be serious against an accused but the presumption of innocence in his favour cannot be dispelled only on the basis of the allegation. An accused who has not been subjeced to trial and not even police investigation has been completed against him in many cases, cannot be compelled to surrender and obtain regular bail in the current circumstances.

Even in cases where the police report has been submitted under Section 173(2) Cr.P.C., and summons/ warrants have been issued against him, such an accused is also required to be protected till the threat of novel corona virus to his life is minimized or eradicated and normal functioning of the Courts are restored.

Hence, keeping in view the inadequate medical facilities for treating the large number of persons getting infected day by day, common accused cannot be left unprotected from the threat to his life on account of his arrest by police or surrender before the Court as per the normal procedure applicable to accused persons in normal times.

The Court went on to say that,

“The established parameters for grant of anticipatory bail like the nature and gravity of accusation, the criminal antecedent of the applicant, the possibility of fleeing from justice and whether accusation has been made for injuring and humiliating the applicant by getting him arrested have now lost significance on account of present situation of the country and the State on account of spread of second wave of novel corona virus.”

The Court noticed that while the informant/ complainant may take objection to the relief being granted to the applicant and may be dissatisfied from the observations made in this judgment in favour of accused, they should not lose sight of the fact that only when the accused would be alive he would be subjected to the normal procedure of law of arrest, bail and trial.

“… now the situation has arisen which calls for protection of an accused from infection of novel corona virus and death till the police investigation and, if required, trial is concluded against him. This Court is only granting limited protection to the applicant in view of the mandate of Articles 14 and 21 of the constitution of India. The only remedy available to the person who is implicated for commission of non-bailable offence, against his arrest, is to resort to the remedy of anticipatory bail and it can be granted to an accused on the consideration that the situation at present is not conducive to his subjection to normal procedure of arrest and bail provided under the Criminal Procedure Code.”

The Court, hence, allowed, anticipatory bail to the accused for the limited period, till 03 of January, 2022 on the following conditions:-

  1. The applicant shall, at the time of execution of the bond, furnish his address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.
  2. The applicant shall not leave the country during the currency of trial/investigation by police without prior permission from the concerned trial Court.
  3. The applicant shall not obstruct or hamper the police investigation and not play mischeif with the evidence collected or yet to be collected by the Investigating Officer of the police;
  4. The applicant shall surrender his passport, if any, to the concerned Court/Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passport, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.
  5. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade his from disclosing such facts to the Court or to any police officer;
  6. The applicant shall maintain law and order.
  7. The applicant shall file an undertaking to the effect that he shall not seek any adjournment before the trial court on the dates fixed for evidence and when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
  8. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government Advocate/informant/complainant can file bail cancellation application.
  9. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of her bail and proceed against him in accordance with law.
  10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
  11. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
  12. The applicant is warned not to get himself implicated in any crime and should keep distance from the informant and not to misuse the liberty granted hereby. Any misuse of liberty granted by this Court would be viewed seriously against the applicant in further proceedings.

[Prateek Jain v. State of UP, 2021 SCC OnLine All 303, order dated 10.05.2021]

Counsel for Applicant :- Avnish Kumar Srivastava,Priyanka Sharma

Counsel for Opposite Party :- G.A.,Vidya Prakash Singh

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Pankaj Mithal, Cj., and Sanjay Dhar, J., had taken suo moto action for initiating this PIL concerning Covid-19 pandemic; as the Union Territory was in the spate of second wave of Covid-19 Pandemic.

Amicus curiae, Mrs Monika Kohli, had expressed anxiety that as lawyers everyday both in Jammu and Srinagar Wings of High Court are getting infected by Covid-19 and they have not been vaccinated, there is threat to their life which needs to be addressed immediately by getting them vaccinated. She had further submitted that the families of the lawyers who have died recently due to Covid-19 may be provided some financial assistance.

Similarly, the issue of short supply of Remdesivir and deficiency of doctors and nursing staff as well as the oxygen to treat the Covid patients had been highlighted before the Court. In some writ petitions, the petitioners had insisted that the government be called upon to provide complete statistics in regard to the above items and to make operational the oxygen plants which are under erection for some time. The petitioners had also highlighted the shortage of ventilators.

The directions were also sought with regard to supply oxygen cylinders for use by the patients who are not admitted in the hospitals but are otherwise suffering from serious ailments and are home quarantined. And that some mechanism should be evolved so that supply of oxygen to the persons who are getting treatment at home of their serious ailments or those who have been home quarantined due to non-availability of beds in hospitals, may continue uninterrupted.

The Advocate General, Sh. D.C.Raina had submitted on behalf of government that there is no problem of supply of oxygen and there is no ban on use of oxygen for patients at home. They can have the supply of oxygen on medical prescription through Nodal officers. Regarding vaccination of lawyers, it was submitted that there is no difficulty in getting the lawyers above 45 years of age, registered and vaccinated in a group. But the lawyers between the age group of 18 to 45, as per the procedure provided by the government of India, have to get themselves registered online. Once they are registered, they will be vaccinated as per their turn or on the slot available.

The Court remarked that it is conscious of the fact that government is taking due steps for controlling the pandemic and to provide full medical support. However, still much more is required to be done and directions of the Court are primarily needed in respect of registration and vaccination of lawyers, supply of oxygen to patients at home, deficiency of ventilators, oxygen, beds and medication including remedisivir; and doctors, if any.

Insofar as the registration and vaccination of lawyers above the age of 45 years is concerned, the Bench directed the Registry of the Court to discuss the issue with the Finance Commissioner, Health and Medical Education to get some date fixed for the registration and vaccination and to carry out vaccination in groups either at some suitable place in the High Court Campus or Medical College or Hospital within a week. With regard to vaccination of lawyers between the age group of 18 to 45 they were advised to get themselves registered for vaccination and the government was directed to provide them vaccination facilities on priority at the earliest, if possible within a period of two weeks from the date of registration. The Bench said,

In case any family of the lawyer is in need of financial assistance either on account of medical expenditure or due to the death, the family members may approach the Bar Association with an application.

On the application being forwarded, the Court would speedily consider it and endeavor to provide maximum financial aid out of the welfare fund. At the same time, government is also directed to consider for making some additional budgetary allocation, as the funds available may not be sufficient to meet the requirement.

To resolve difficulty faced in the supply of oxygen to the patients at home, the Financial Commissioner, Health and Medical Education is directed to nominate adequate number of Nodal Officers for each city and to publicise their full details with contact number etc so that such patients or their relatives may approach them with proper medical prescription for the supply of oxygen and once they are so approached they shall take immediate and adequate steps to ensure the supply of oxygen where it is found to be needed without causing any harassment to anyone.

Lastly, the Bench stated, we hope and trust that no one would make any effort to draw any mileage out of it so as to reduce it to a personal interest litigation or a publicity interest litigation and the media would also act cautiously in the best interest of the public and country.

[Court on its own motion v. Government of India, 2021 SCC OnLine J&K 334, decided on 05-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioners: Sunil Sethi, U.K.Jalali, K.S.Johal, Abhinav Sharma, Pranav Kohli, Rohit Kapoor and Ajay Bakshi

For Government of India: AG D.C.Raina Dy.  AG K.D.S. Kotwal

Op EdsOP. ED.

The evolution of artificial intelligence (AI) over the years has led to the realisation of the dreams of robot-human interaction. This idea of a robot-human interaction on a whole new level has been a topic of science fiction novels and series right from the early 1950s. The most noted work during this time was Issac Asimov’s literary fiction – I, Robot[1]. The book is famous for introducing the three important laws of robotics that:

(i) A robot may not injure a human being or, through inaction, allow a human being to come to harm.

(ii) A robot must obey the orders given it by human beings except where such orders would conflict with the First Law.

(iii) A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.

Though the idea may have seemed to be farfetched at the time, with the rapid development of technology in recent years, we already have fully working autonomous machines. With debates sparking globally regarding the legal and ethical issues of autonomous weapon systems[2] (“AWS” hereafter), reconsideration of the importance and viability of the aforementioned three laws of robotics becomes pertinent. This article tries to analyse the existing conundrum surrounding the AWS and its usage while simultaneously trying to envision a robust regulating framework governing their functioning and usage.

Autonomous weapon systems: The UN Convention on conventional weapons

The AWS has already been declared a success[3] and it is only a matter of years before we see their active deployment and usage in the battlefields across the globe. However, the concerns regarding their potential usage in armed conflicts have raised many questions not just from experts[4] and scholars[5], but also from common civil bodies[6] and other related organisations. Owing to the rising concerns, a discussion on AWS was held at the 5th Review Conference of the Member States of the United Nations (“UN” hereafter) Convention on Certain Conventional Weapons (CCW). Post the Convention, an expert body was established with the aim to deliberate upon the legal issues surrounding the potential use of AWS. These issues included the question of morality and ethicality as well as compatibility of the use of AWS with international humanitarian law (“IHL” hereafter) and international human rights law (“IHRL” hereafter)[7]. While some believe that a complete ban on AWS usage is the only answer, which is easily deducible from the rise in popularity of the “Stop Killer Robots” movement, however, it is a rational understanding that the AWS in a mere technological advancement and cannot be just “abandoned”. The best way to deal with the potential ill impacts of AWS could be to bring its deployment and usage strictly under international regulations.

Human rights and AWS: Understanding the legal implications

Though the legal debate surrounds the AWS is primarily focus on international humanitarian law[8], it is the need of the hour to steer the discussion towards understanding the human rights angle of the issue. The active assault that AWS could unleash on victims can be seen as the usage of force by humans through AWS. It is a steeled principle that human rights law applies to the use of force at all times. Further, it is complementary to IHL during armed conflict, and where there is no armed conflict it applies to the exclusion of IHL. Thus, even though the IHL implications indeed needs to be deliberated upon, the human rights angle needs to be the pivotal point under consideration. However, to understand this we need to distinguish between three paradigms and the application of human rights law in each of them.

1. Armed conflict

Right to life and the right to dignity are two of the most important human rights that are to be considered in this context. While we have already discussed above that human rights complement the IHL, however, at times of armed conflict, IHL being “more specialised” comes into application.[9] But, even though IHL comes into effect, both sides still maintain their human rights and hence, there is change but merely on the contextual level. This means that during such times we can interpret the provisions of IHL with reference to human rights.

2. Non-armed conflict

There can arise situations where the conflict in question does not qualify the definition of an armed conflict because of the fact that it fails to fall in an area that is an established battlefield, e.g., anti-insurgency, anti-terrorism activities. During these situations, the application of IHL is not possible and hence the issues need to pass the subjectivity test of human rights alone. For example, the usage of drones and other similar activities may fall in the same context as AWS if used for anti-terrorist operations and should therefore be governed by IHRL and not IHL as a potential armed conflict is absent.[10]

3. Domestic law enforcement

While as of now the AWS has no prospects of being used domestically, but then the possibility of a toned-down model with less lethal weapons being used for domestic law enforcement cannot be ruled out altogether. This would include the deployment of AWS for not merely guarding of prisons but to the even wider spheres of daily law enforcement. As such usage of AWS would constitute a use of “force”, it can be easily brought under the ambit of IHRL.

Thus, we can see that three major paradigms exist and what is common with the usage of AWS in all of these is the fact that AWS and its usage would fall under the ambit of IHRL. It is this hypothesis that will help us understand how AWS has a huge impact on human rights and why the demands of international regulations are being made.

AWS and the weapon laws:  Martens clause and the implications

The international human rights are extremely stringent when it comes to the use of force and firearms, however, it in no way poses any restrictions or limitations on what kind of weapons can be manufactured. This is where we can find the answers in IHL which has a separate and special branch of weapon laws that clearly specify as to which weapons are permissible to be used in armed conflicts and which are not. Article 36 of Additional Protocol I to the Geneva Convention[11] makes it mandatory for the State parties to subject new weapons to a review;

to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

It is important to note that the words “or by any other rule of international law” can easily seem to be indicative of the fact that to pass the scrutiny under Article 36[12] review, the weapon in question has to even abide by the international human rights law which prominently includes the right to life, dignity, etc.

The Martens Clause has formed a part of the laws of armed conflict since its first appearance in the Preamble to the 1899 Hague Convention (II)[13] with respect to the laws and customs of war on land and states that:

in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.

The words are clearly indicative of the fact that special emphasis has been supplied to “principles of humanity” and “the public conscience”. At a point in history where people have finally started to understand the importance of human rights, it is only more fitting to have the reasoning that weapons above a certain level of autonomy would be a disgrace to “principles of humanity” and “the public conscience” as probably the two parameters will transform to mere factual matrix of data for the AWS. Further, the clause also states among other things that the absence of an explicit prohibition in no way means that usage of such weapons are permitted.

Right to life and dignity: Analysing the impact

Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR)[14] states that “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”. While the IHL has certain parameters such as “collateral damage” or “combatant’s privilege” to justify the use of force, such concepts are totally alien to the IHR. In place of these, the IHR has other parameters such as “necessity” and “proportionality”. While the formers indicate that usage of force shall be the last resort, the latter points to the maximum force that can be used to achieve a specific legitimate purpose. Further, the basic Principle 9 deals specifically with firearms clearly states that “use of firearms may only be made when strictly unavoidable in order to protect life”.

The doctrine of self-preservation which allows for use of lethal force by policemen in situations of grave danger is not applicable in the case of AWS as it fails to qualify as a human and hence, a danger to it poses no danger to “human life”. The very fact that the kill list is prepared by a machine is highly incongruous with the IHR laws which clearly point towards the premise – “the final decision to use lethal force must be reasonable and taken by a human”.

Article 1 of the Universal Declaration of Human Rights[15] (UDHR) provides that:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Though the ICCPR[16] does not entail the right to dignity as a spate right, it is a constitutive part of a number of the rights contained in that Treaty. The last point deliberated in the preceding paragraph clearly points that death by data matrix means people are treated as interchangeable entities, like inanimate entities and not as a human who has an inherent dignity. Critical decisions such as the ones made to deploy force especially deadly force needs to be only taken after due consideration by a “human being” who has rationally analysed the situation and concluded that there is no other alternative in the specific case and hence holds the responsibility for the outcome of his final decision. Thus, there exists no speck of doubt that the right to life as well as the right to dignity are vehemently violated in the use of AWS.[17]

AWS and human rights: The future

After the above deliberations, we are compelled to hold congruence with the views of Dr Akbar Nasir Khan[18]. He has very often advocated the view that sustainability is a key component that needs to be used as a yardstick to objectify the effectiveness of a policy. As far as the AWS and other related systems are considered, they have been on the receiving end of endless criticism primarily due to human rights violations. The UDHR has become part of customary international law and hence is applicable during both, the war and peace times. Also, the right to life and dignity has become part of jus cogens over time. These considerations and developments keep on posing a huge question when it comes to legitimising such AWS mechanisms. It is to be understood that technology will keep on developing and will keep on encroaching the boundaries of human control. However, it will be up to us to decide in favour of whether to retain human control over life and death decisions or relinquishing it. However, what needs to be understood is that once lost such human control will be impossible to be regained. The international community needs to understand this peril of AWS and come together, after understanding the potentials and drawbacks, to deliberate peacefully and tactfully on the future of AWS for any decision made will have a huge impact on human life in the years to come.


Student, Bachelor of Law at Integral University, India;  Research Analyst for Centre for New Economics Studies, O.P. Jindal Global University, India, e-mail: rameezrazaofficial@gmail.com.

†† BA LLB at National University of Study and Research in Law (NUSRL), Ranchi, and the Coordinator of Think India, Ranchi, e-mail: raj.nusrl@gmail.com.

[1] Isaac Asimov, I, Robot (Bantam Books 2004).

[2] Lethal Autonomous Weapons Systems, Future of Life (4-3-2021, 09:09 P.M.) <https://futureoflife.org/lethal-autonomous-weapons-systems/?cn-reloaded=1>.

[3] Alcides Eduardo dos Reis Peron and Rafael de Brito Dias, “No Boots on the Ground”: Reflections on the US Drone Campaign through Virtuous War and STS Theories, 40(1) Contexto Internacional, (2018) 53-71.

[4] Ibid.

[5] Akbar Nasir Khan, The US Policy of Targeted Killings by Drones in Pakistan, 12(1) IPRI Journal (2011) 21- 40.

[6] Human Rights Watch, Q&A: US Targeted Killings and International Law (7-3-2021, 06:16 P.M.) <http://www.hrw.org/news/2011/12/19/q-us-targeted-killings-and-international>.

[7] K.J. Heller, One Hell of a Killing Machine, Signature Strikes and International Law, 11 JICJ (2013)  91.

[8] Ibid.

[9] Christopher Drew, Drones are Weapons of Choice in Fighting Qaeda, The New York Times, 11-3-2021, 10:43 P.M.) <http://www.nytimes.com/2009/03/17/business/17uav.html>.

[10] Peter Bergen and Katherine Tiedemann, The Year of the Drone: An Analysis of US Drone Strikes in Pakistan, 2004- 2010, Pak Tea House (12-3-2021, 09:33 A.M.)  <http://pakteahouse.wordpress.com/2010/03/02/the-year-of-the-drone-bypeterbergen-and-katherine-tiedemann/>.

[11] Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12-1-1949 (Fourth Geneva Convention), 75 UNTS 287 (1949).

[12] Ibid.

[13] International Committee of the Red Cross, Hague Convention (II) with Respect to the Laws and Customs of War on Land, 29-7-1899.

[14] UN General Assembly, International Covenant on Civil and Political Rights, United Nations, Treaty Series, Vol. 999, p. 171.

[15] UN General Assembly, Universal Declaration of Human Rights, 10-12-1948,  General Assembly Resolution 217 A (III) http://www.scconline.com/DocumentLink/BNEbfDpI.

[16] Supra note 14.

[17] US Drone War Delivers Results, But at What Price?, Dawn (Print) – Islamabad, (10-1-2010) https://www.dawn.com/news/911327/us-drone-war-delivers-results-but-at-what-price

[18] Supra note 5.

Case BriefsHigh Courts

Delhi High Court: After the Jawaharlal Nehru University Students Union and the Teachers Union approached the High Court seeking a direction for setting up COVID care facilities in the University Campus, as also a COVID response team, and certain Oxygen facilities inside the University Campus premises, Prathiba M. Singh, J has asked the Registrar of JNU to file a status report, as to the steps taken by the administration of the JNU for dealing with the COVID-19 pandemic situation in the JNU campus since 2020 and especially since 13th April, 2021.

Background

  • Around the second week of April, the Petitioners wrote a letter to the Registrar, highlighting the alarming situation due to COVID-19 on the JNU campus, seeking various steps to be taken for controlling the situation.
  • A notification was issued on 18th April, 2021, by the Deputy Registrar of the JNU constituting a COVID-10 task force and a COVID-19 response team in JNU.
  • On 18th April, 2021, another letter had again been sent by the Petitioners to the Registrar of JNU, stating the massive surge of the number of positive cases within the JNU campus premises and highlighting the need for urgent steps to be taken. The same was followed up with further letters on 19th April, 2021 to the Vice Chancellor, JNU, and on 23rd April, 2021 to the ADM, New Delhi, requesting immediate intervention for setting up COVID care facilities within the campus.
  • The Petitioners, thereafter, are stated to have contacted the SDM for, setting up of the isolation and quarantine facilities.
  • The petitioners had also requested the faculty of Centre for Social Medicine and Community Health, for drawing of plans for COVID care, which has submitted a proper proposal in this respect. Further, there is also a plan which has been devised by the School of Life Sciences, JNU, for producing Oxygen within the campus itself.
  • As pleaded, there were total of 74 cases around 18th April 2021 which has increased to 211 as on 7th May 2021.

Contentions

The petitioners had highlighted before the Court that the right to life and health of all the residents/occupants in the campus is under severe jeopardy. The petitioners had accused the JNU administration of being guilty of `dereliction of duty’.

They had argued that despite repeated letters to the authorities of the University, the Secretary of Ministry of Education, the Secretary of the University Grants Commission etc., no action has been taken for setting up of a COVID care facility within the campus premises. Further, repeated letters to the SDM of the area have also not evoked any response.

Order

“Considering the rigour of the current COVID-19 pandemic wave and the correspondence which has been placed on record, there is no doubt that the JNU administration ought to have reacted with swiftness and alacrity.”

Noticing that it has been almost a month, since the petitioners have been following up but the same has completely failed to evoke a response, the Court said,

“If this is true, this would constitute gross neglect by the JNU administration in a situation which is completely alarming. The University is bound to take care of the health of the students and teachers, and make available the facilities, to the extent possible, within the University campus, especially considering the prevalent shortages for hospital beds etc.”

The Court also too judicial notice of the fact that various organisations and institutions have gone out of their way, during the current pandemic, to make various facilities available to their employees and other stakeholders, in order to safeguard their health during the current surge of the COVID- 19 pandemic. It, hence, said that JNU ought not to be an exception in this regard.

It, hence, issued the following directions:

  1. The Registrar, JNU to immediately give instructions to the ld. counsel, and file a status report, as to what are the steps taken by the administration of the JNU in respect of the requests made and letters written by the Petitioners to the administration, for dealing with the COVID-19 pandemic situation in the JNU campus since 2020 and especially since 13th April, 2021.
  2. The Vice Chancellor/Registrar of JNU to also ascertain the necessity and feasibility in respect of creation of the COVID care facility in the JNU campus and file a status report thereof. The report shall also take into consideration the proposals given by the Centre for Social Medicine and Community Health (CSMCH) as also the proposal for inhouse production of oxygen, given by the School of Life Sciences. The authorities in JNU to consider if there is any modification required to the said proposals as has been suggested by the students and teachers associations. The modalities for creation of COVID care facility shall be mentioned in the report.
  3. The SDM/ADM of the concerned area to also place on record a status report, as to whether such a COVID care facility can be created at JNU, in accordance with the guidelines applicable, and if so indicating the manner in which the doctors and paramedics, as also nurses, would be made available for the said facility, and whether they would be tied up with any particular hospital, and if so, name the said hospital after obtaining its concurrence.
  4. Two meetings to be virtually convened by the Registrar of the Respondent University, chaired by the Vice Chancellor, one with the other internal administrative staff as also the concerned SDM/ADM of the area and another along with six representatives of the Students and the Teachers Union, as also the departments which have given the proposals, to work out the formalities and the protocols, in this respect.
  5. The status reports explaining the feasibility, modalities and timelines for setting up of a covid care centre, preferably with oxygenated beds, as directed, be emailed by both the JNU administration as also the ADM/SDM of the concerned area, is to be filed by 9 AM on 13th May 2021.

The Court will now hear the matter on May 13, 2021.

[Jawaharlal Nehru University Teachers Association v. Jawaharlal Nehru University, 2021 SCC OnLine Del 2019, order dated 11.05.2021]


For Petitioners: Advocates Abhik Chimni, Lakshay Garg & Shashwat Mehra,

For Respondents: Standing Counsel Monika Arora, with Advocate Shriram Tiwary and Standing Counsel Santosh Kumar Tripathi with Advocate Aditya P Khanna