Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a petition filed by petitioner-wife praying for quashing and setting aside the impugned communication dated 18-03-2019 issued by Respondent 2-Regional Forest Officer by which the request for compensation was rejected and seeks further directions against the Respondents to pay compensation to the Petitioner as per Government Resolution dated 11-07-2018, on account of death of her husband due to attack by wild Boar, a Division Bench of G S Patel and Gauri Godse, JJ., directed the State to pay an amount of Rs 10 lakhs to the Petitioner as compensation, within a period of three months from today, as per Government Resolution dated 11-07-2018 along with 6 per cent interest from the expiry of three months from date of her application till the actual payment is made. The Court premised the compensation on failure of State machinery to provide the required protection to human life which is guaranteed by Article 21 of the Constitution of India.

The Petitioner is widow of Arun Arvind Redij who died in an accident that was caused due to an attack by a wild boar. The said accident was reported to the local police station at Ratnagiri, Gramin and FIR was registered. The spot panchanama records that a wild boar attacked and collided with the two-wheeler of the deceased, which resulted into an accident and caused the death. Spot panchanama was conducted on the very same day of the accident by the said police station.

Petitioner on 11th February 2019 made an application to Respondent no.2-Regional Forest Officer, Ratnagiri inter alia seeking compensation for the loss of life of her husband relying upon the Government Resolution dated 11th July 2018 which provides for grant of compensation in case of death of a person due to attack by a wild animal which was rejected by Respondent 2 stating that accident was not intimated to the nearest Forest Officer within 48 hours of the accident and panchanama was not conducted within three days in presence of the forest officer.

The Court noted that the panchanama records that accident was caused due to involvement of wild boar, hence, it was the duty of the said police station to inform the nearest forest office regarding the accident. It was further noted that the State Government has not produced on record copy of any Government Resolution or Order which mandates that such information is to be given within 48 hours. Thus, the Court did not find relevance on the grounds of rejection.

The Court opined that on perusal of records placed before Court, it is clear that the human life is lost in the attack by wild boar, thus the reasons given in the impugned communication are illegal and unjustified.

The Court remarked “it is a twin obligation of the State Government. The first is to protect wildlife (wild animals) and the second is to protect humans from any injuries caused by any wild animal. It is thus an obligation of the State Government to protect lives of the citizens guaranteed under Article 21 of the Constitution of India.” Thus, if any wild animal causes injury to any person, this in fact is a failure of the State Government to protect right to life guaranteed under Article 21 of the Constitution of India.

As per Government Order relied by the petitioner for seeking compensation, the State is under an obligation to protect the human life from wild animals, and even dehors the said GR it is the obligation of the State Government to pay reasonable compensation, as the State Government could not protect the right to life of the deceased guaranteed under Article 21.

Thus, the Court quashed the impugned communication/rejection order and directed compensation of Rs. 10 lakhs within a maximum of three months from the date of the order and Rs. 50,000 as the cost of litigation.

[Anuja Arun Redij v. State of Maharashtra, 2022 SCC OnLine Bom 2871, decided on 26-09-2022]


Advocates who appeared in this case :

For the petitioner Mr RS Apte, Senior Advocate, i/b Ketan A Dhavle;

For respondent- State Mr Milind More, Additional Government Pleader.


*Arunima Bose, Editorial Assistant has put this report together.

National Green Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal | Passing a revolutionary directions to the State for controlling Noise Pollution, a bench comprising of Sheo Kumar Singh (Judicial Member), J. and Dr. Arun Kumar Verma (Expert Member) come down heavily on the State government on their insouciant and careless feet dragging over controlling noise pollution from vehicular horns and modified exhausts in the State and directed the State to compulsorily abide and implement the existing legislative framework on the subject matter.

Applicant’s gravamen

That applicant vide letter to RSRTC, brought its attention on agonizing effects of use of air pressure horns by the State-owned buses on daily basis in their normal course of commutation throughout the State leading to violation of the laws on the noise pollution. Several newspapers also published articles related to the same issue. But no actions were taken by the State machineries/ respondents regarding repeated violation of the law laid in statutes and the judgments passed by the Supreme Court and this Tribunal. The applicant approached the Tribunal regarding flagrant violation of laid laws on noise pollution

The applicant contended that unchecked noise pollution levels impair the right to life, health, and wellbeing of around nine crore citizens residing in the State of Rajasthan. The applicant stated newspaper reports which contended that 70% of the noise pollution in the city of Jaipur is being caused by a single source i.e., vehicular noise pollution. Moreover, the intensity of vehicular horns in some cases is well above 100 decibels which is much more than the safety standards of 55 decibels as prescribed by law in Residential areas.

Tribunal’s Observation

The Tribunal stated that

Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21.

The Tribunal relied on Free Legal Aid Cell Sugan Chand Aggarwal v. State (NCT of Delhi), 2001 SCC OnLine Del 713 and P.A. Jacob v. Superintendent of Police, 1992 SCC OnLine Ker 170, where it was held that the right to live in an atmosphere free from noise pollution is guaranteed by Article 21 of the Constitution.

The Tribunal opined that Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21.

The Tribunal observed that non-recognition of noise pollution problems will ultimately affect human health and comfort in the same manner as air and water pollution problems have. The effects of noise pollution could lead to physical effects such as hearing defects, physiological effects such as increased blood pressure, irregularity of heart rhythms and ulcers and psychological effects, such as disorders, sleeplessness and going to sleep late, irritability and stress and finally and can also affects the work performance by reduction of productivity and misunderstanding what is heard.

The Tribunal also observed that directions issued by the Supreme Court in In Re: Noise Pollution, (2005) 5 SCC 733, were in exercise of power conferred on it under Articles 141 and 142 of the Constitution and thus, would remain in force in the State until it is modified by the Supreme Court or superseded by an appropriate legislation. These directions are as follows:

i. The State should organize special talks and lectures in the schools to highlight the menace of noise pollution and the role of the children and younger generation in preventing it.

ii. The Police and civic administration should be trained to understand the various methods to curb the problem and also the laws on the subject.

iii. The State should encourage Residents Welfare Associations, Service Clubs and Societies engaged in preventing noise pollution and should be actively involved by the local administration.

iv. The State should raise special public awareness campaigns in anticipation of festivals, events and ceremonial occasions where firecrackers are likely to be used or need to be carried out.

Tribunal’s Direction

The Tribunal directed the State to comply with the directions laid by the Supreme Court in In Re: Noise Pollution, (2005) 5 SCC 733 and Balwant Singh v. Commr. of Police, (2015) 4 SCC 801 amongst various other judgments covering the issue. The Court wherein directed the States to ensure:

  1. No noise source shall exceed 10 dB(A) limit above the ambient noise standards for the area or 75 dB(A), whichever is lower; and
  2. No horn should be allowed to be used at night (between 10 p.m. and 6 a.m.) in residential areas except in exceptional circumstances; and
  3. The States shall make provision for seizure and confiscation of any noise source which is found to be creating noise beyond the permissible limits.

The Tribunal directed the State to comply with the directions laid in Vardhaman Kaushik v. Union of India, 2016 SCC OnLine NGT 3812, where the Tribunal prescribed a fine of Rs. 5,000/- in the form of Environment Compensation per act of noise pollution, which is to be collected by Traffic Police and maintained in a separate account with a liberty to authorities to approach the Tribunal in event of default of payment by a defaulter of Environment Compensation as the existing provisions of the Motor Vehicle Act, 1988 were insufficient to fulfil and secure the mandate of the Noise Rules, 2000. The Tribunal also directed the State to comply with ‘Scales of Compensation’ devised by the CPCB in exercise of its powers and under directions of the Tribunal in Hardeep Singh v. South Delhi Municipal Corporation., 2019 SCC OnLine NGT 221.

The Tribunal directed the State to direct the automobile manufacturers to provide information on sound levels of vehicles at the point of sale and in technical promotional material, information to the consumers about the sound emissions of a vehicle and also the horns based on Precautionary Principle. The automobile manufacturers shall also provide the certificate of compliance issued under R. 120(2) of Motor Vehicle Rules, 1989 or even that of horn/silencer etc. to the automobile purchaser and the same shall be available on automobile manufacturer’s website in public domain, for each prototype of vehicle.

The Tribunal directed the State PCB to notify the noise emission standards for vehicles at manufacturing and in-use stage and then issue necessary directions under S. 20 of the Air (Prevention and Control of Pollution) Act, 1981, to the concerned Authorities for enforcement of such standards.

The Tribunal further directed the State to ensure strict compliance of R. 115(7) of the Central Motor Vehicle Rules, 1989 wherein it is stipulated that only vehicles that carry valid PUC Certificate issued by authorised agency will permit to run in the State. The Tribunal also directed the State:

i. To record the PUC data which shall be automatically linked with the Central Server by way of uniform standardized software;

ii. To limit the number of PUC centres and upgrade them under strong supervision and control so to foster quality;

iii. To link annual vehicle insurance and vehicle registration with PUC certificate;

iv. To develop and adopt uniform and standardized data recording and reporting format by way of software which shall automatically transmit PUC data through online network to the Central Server;

v. To properly analyze PUC data for remote auditing of PUC centres;

vi. To strengthen inspection of PUC centres for quality control;

vii. To strengthen the licensing programme to ensure proper calibration authentic test;

viii. To float annual maintenance contracts for the maintenance of all testing equipment and accessories training of operators, calibration of equipments;

ix. To upgrade testing centers for high level of automatic emission testing so that operators and vehicles drivers are prevented from manipulation of results;

x. To introduce well equipped mobile test centres;

xi. To introduce a programme to detect and check visibly polluting vehicles.

[Consumer Unity & Trust Society, Jaipur v. State of Rajasthan, 2022 SCC OnLine NGT 213, decided on 23.08.2022]


Advocates who appeared in this case:

Mr. Tarun Agarwal and Mr. Bhaskar Agarwal, Counsel for the Applicant;

Mr. Shoeb Hasan Khan, Counsel for the Respondents.


*Ritu Singh, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: The bench of Surya Kant and JB Pardiwala, JJ has, in a relief to politician and lawyer Nupur Sharma, has transferred all the FIRs filed against her in Prophet Remark case to the IFSO Unit of the Delhi Police for the purpose of investigation.

The Court also clarified that the directions in the present order will also extend to any other FIRs/complaints which may be registered/entertained against Nupur Sharma in future in respect of the same subject matter. Should such an eventuality arise, the investigation of those FIRs/complaints shall also stand transferred to the IFSO Unit of the Delhi Police for the purpose of investigation.

When it was urged before the Court that the nature of the case is such that a specialized and specific approach is necessary and it would be appropriate to form an SIT to collectively investigate the various FIRs, the Court observed that since the IFSO Unit of Delhi Police is itself a specialized agency, it will be enough, at this stage, to direct the IFSO Unit to investigate all the FIRs/complaints. The IFSO Unit of the Delhi Police shall be at liberty to collect and gather any information from the State Agencies if so required, for the purpose of conducting a thorough investigation and taking it to its logical conclusion.

The Court also extended the interim directions issued by it on 7 19.07.2022 till further orders. It had directed that no coercive action shall be taken against Nupur Sharma pursuant to the impugned FIR(s)/complaint(s) or the FIR(s)/complaint(s) which may be registered/entertained in the future pertaining to the telecast dated 26.05.2022 on Times Now.

Nupur Sharma, who has been accused of hurting religious feelings, was the National spokesperson of the Bharatiya Janata Party until June 2022 after which she was suspended from the party due to controversial comments about the Islamic prophet Muhammad and his third wife.

[N.V. Sharma v. Union of India, 2022 SCC OnLine SC 1003, order dated 10.08.2022]

For Petitioner(s) Mr. Maninder Singh, Sr. Adv. Mr. ANS Nandkarni, Sr. Adv. Ms. Rachitta Rai, AOR Mr. Pandey Sangeet Rai, Adv. Mr. Manan Popli, Adv. Mr. Shaunak Kashyap, Adv. Mr. Vivek Kadyan, Adv. Ms. Deepti Arya, Adv. Mr. Prabhas Bajaj, Adv. Mr. Santosh Salvador, Adv.

For Respondent(s) Mr. Tushar Mehta, S.G. Ms. Garima Prasad, AAG Mr. Rahul Chitnis, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Chirag Shah, Adv. Mr. Utsav Trivedi, Adv. Mr. Abhikalp Pratap Singh, Adv. Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Sachin Patil, AOR Ms. Taruna Ardhendumauli Prasad, AOR Mr. Amritesh Raj, Adv. Ms. Shreya Srivastava, Adv. Mr. Ashish Madaan, Adv. Ms. Ananya Sahu, Adv. Ms. Ruchira Goel, AOR Mr. Shantanu Singh, Adv. Mr. Ravi Sehgal, Adv. Dr. Menaka Guruswamy, Sr. Adv. Mr. Suhaan Mukerji, Adv. Mr. Abhishek Manchanda, Adv. Mr. Sayandeep Pahari, Adv. Mr. Vishal Prasad, Adv. Mr. Yash S. Vijay, Adv. Mr. Utkarsh Pratap, Adv. Mr. Tanmay Sinha, Adv. M/S. PLR Chambers and Co., AOR Mr. Shubanshu Padhi, Adv. Mr. Ashish Yadav, Adv. Mr. Vishal Bansal, Adv. Ms. Rajeshwari Shanker, Adv. Mr. S. Udaya Kumar Sagar, Adv. Ms. Bina Madhavan, Adv. Mr. Sweena Nair, Adv. Mr. Shuvodeep Roy, AOR Mr. Arnab Singh Dev, Adv.

Also read:

Prophet Remark Row| Here’s why Supreme Court has stayed Nupur Sharma’s arrest for now

Case BriefsSupreme Court

Supreme Court: After politician and lawyer Nupur Sharma approached the Court claiming that there is an imminent necessity for the Court to intervene and protect her life and liberty as guaranteed under Article 21 of the Constitution, the bench of Surya Kant and JB Pardiwala, JJ has directed that no coercive action shall be taken against her pursuant to the impugned FIR(s)/complaint(s) or the FIR(s)/complaint(s) which may be registered/entertained in the future pertaining to the telecast dated 26.05.2022 on Times Now.

Nupur Sharma told the Court that:

  • One Salman Chisti claiming to be a Khadim of Ajmer Dargah has circulated a video whereby in a very disturbing manner he has called upon for cutting her throat.
  • One resident of Uttar Pradesh, has made a viral video using abusive language against her and threatened to behead her;
  • Some more FIRs have been registered in the State of West Bengal which were earlier not in her knowledge; and
  • The Kolkata Police has issued a ‘lookout circular’ dated 02.07.2022 due to which she apprehends her immediate arrest and consequential denial of fair opportunity to approach different High Courts for seeking quashing of the FIRs.

During the course of hearing, the Court was apprised of two more instances where there is a serious threat to Nupur Sharma’s life and these instances are reported to have taken place after filing of the miscellaneous application.

Taking note of all this, the Court observed that its concern is to ensure that the petitioner is able to avail the appropriate remedy as permitted by the Court vide order dated 01.07.2022. Hence, notice has been issued to the respondents returnable on 10.08.2022. Meanwhile, as an interim measure, the Court directed that no coercive action shall be taken against Nupur Sharma pursuant to the impugned FIR(s)/complaint(s) or the FIR(s)/complaint(s) which may be registered/entertained in the future.

Nupur Sharma, who has been accused of hurting religious feelings, was the National spokesperson of the Bharatiya Janata Party until June 2022 after which she was suspended from the party due to controversial comments about the Islamic prophet Muhammad and his third wife.

[N.V. Sharma v. Union of India, 2022 SCC OnLine SC 895, order dated 19.07.2022]


For Petitioner: Senior Advocates Maninder Singh and ANS Nadkarni, Advocates Rachitta Rai, Pandey Sangeet Rai, Manan Popli, Shaunak Kashyap, Vivek Kadyan

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court (Dharwad Bench): Suraj Govindaraj, J. while deciding a matter regarding handcuffing of an accused during arrest, held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others.

Some disputes had arisen between a law student studying in Shikshan Prasrak Mandals Law College at Raibag (‘the petitioner’) and Babu Annappa regarding a mortgage deed executed in respect of agricultural lands belonging to the petitioner. Due to this, five criminal cases were filed against the petitioner for offences under Section 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. Pursuant to this, the petitioner was arrested by the Respondent 3- Police Sub-Inspector, Ankali Police Station after a non-bailable warrant was issued Thereafter, he was allegedly paraded with handcuffs in Ankali Town and later on was taken in a bus in handcuffs from Ankali to Chikodi Police Station, without being produced before the Court.

Later on, the petitioner’s bail application was rejected, and he was remanded to judicial custody. He appealed the order of conviction which was thereby stayed The petitioner alleged that despite the conviction being stayed, he was repeatedly harassed by the police as they would illegally arrest or detain him, visit his house, and threaten him. Thus, the petitioner filed the present writ petition seeking relief in nature of compensation under Articles 226 and 227 of Constitution of India, for the damage caused to his life and reputation due to illegal detention and illegal handcuffing even prior to the petitioner being proven guilty.

Issues framed by the Court:

1. Whether the accused who is arrested can be handcuffed? If so, under what circumstances?

2. If there is any violation by the Arresting Officer, would the accused be eligible for compensation?

3. On what basis is the compensation required to be determined and paid?

4. Whether the accused suffered damage to his life and reputation or not? If yes, then what amount of compensation should be awarded?

Relevant Statutory Provisions regarding Arrest and Handcuffing

A perusal of Section 46 of the Code of Criminal Procedure, 1973 ‘CrPC’ indicates that a person can be arrested by touching or confining the body of the person to be arrested, unless there is a submission to custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest.

Section 49 CrPC indicates that a person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Therefore, it is the requirement of law that the restraint has to be reasonable and only to the extent that the person does not escape from custody.

Section 220 of Penal Code, 1860 ‘IPC’ indicates that if a person who has legal authority to confine a person, confines such a person contrary to law, he shall be punishable with imprisonment, which may extend to seven years or with fine or with both.

Sections 831, 832, 833, 834 and 835 of the Karnataka Police Manual provide for instructions for using handcuffs. A perusal of the said provisions would indicate that the prisoner should not be normally handcuffed, unless he is violent or disorderly or circumstances necessitate such handcuffing. In the event of an accused is handcuffed, the facts and reasons for it is required to be recorded in the Station House Dairy.

Analysis and Findings:

Reliance was placed on Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 and Antonio Sebastiao Mervyn Degbertde Piedade Pacheco v. State of Goa 2008 (6) AIR Bom R 585 and observed that normally during arrest an accused cannot be handcuffed. Only under extreme or exceptional circumstances, such as violent tendencies or the possibility of escape, can an accused be handcuffed. Furthermore, there are some requirements to be fulfilled by the authorities in such a case:

  • When an accused is handcuffed, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court.

  • Whenever an accused is produced before the Court of law, it would be required of the Court to enquire if the accused had been handcuffed or not and if handcuffed, to ascertain the reasons recorded by the Arresting Officer on the justifiability on the same.

Thus, the court held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others. The nature of offences and the punishment prescribed for the said offence are not relevant for the matter of handcuffing.

Dealing with the issue regarding compensation, reliance was placed on D.K. Basu v. State of West Bengal (1997) 1 SCC 416 and Nilabati Behera v. State of Orissa (1993) 2 SCC 746 and observed that “if there is a violation by the Arresting officer in putting handcuffs on the petitioner, the petitioner would be eligible for compensation”. Thus, in the present case, the State is responsible for compensating the petitioner and the amount of damage is to be calculated on the basis of any evidence and documents produced by the petitioner.

Regarding the third issue, the court held that there are a few considerations that have to be made while awarding the compensation, these considerations are as follows:

  • The court should take into consideration the loss/damage that might have been caused to the person who has been handcuffed.

  • The court should also consider the imposition of compensation as a deterrent to the Police Officers who do not discharge their duties in a proper manner and/or violate the applicable law. Additionally, although the State would be required to pay the compensation, the State would be at liberty to recover the same from the concerned defaulter(s).

Thus, the court observed that “Compensation which is required to be paid as aforesaid being a Public Law Remedy, there cannot be a straitjacket formula which could determine the amount of compensation that has to be paid. Be that as it may. The compensation which is required to be paid is by applying the principles of strict liability.

Lastly, the court held that the evidence provided by the petitioner does not sufficiently prove that the petitioner was paraded in handcuffs and his reputation has been as immensely damaged as he claims. Thus, for the procedural irregularity of handcuffing, the petitioner was awarded Rs. 2 lakhs as compensation as opposed to Rs 25 lakhs which was originally demanded.

[Suprit Ishwar Divate v. State of Karnataka, 2022 SCC OnLine Kar 1133 decided on 10-06-2022]


Advocates who appeared in this case :

Santosh P. Pujari, Advocate, for the Petitioner;

Praveen K. Uppar, Advocate, for the Respondent.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A writ petition was filed seeking the relief of protection of life and liberty at the hands of family members after the petitioners got married against their will. Considering the competency of the petitioners to enter into a valid contract of marriage and addressing the apprehension raised by them, Jasjit Singh Bedi, J, directed the Senior Superintendent of Police to decide the representation of the petitioners regarding danger to their life and liberty.

In the present case, both the petitioners were Muslims. They fell in love and decided to get married. The boy was 21 years of age while the girl was of 16 years as per their Aadhaar Cards. Both the petitioners solemnized their marriage on 08.06.2022 as per Muslim rites and ceremonies.

The counsel for the petitioners while placing reliance on Kammu v. State of Haryana[1], Yunus Khan v. State of Haryana[2]  and Mohd Samim v State of Haryana[3]submitted that under Muslim law, puberty and majority are one and there is a presumption of majority at the age of 15 years and a Muslim boy or a Muslim girl who has attained puberty is at liberty to marry one he or she likes and the guardian has no right to interfere. The petitioners, however, limited their prayer to the issuance of direction for deciding the representation made to the superintendent of police for protection of their life and liberty which was not acted upon by him earlier. The counsel for respondents 1 to 4 accepted the notice of motion.

Placing reliance on the case of Yunus Khan (supra) and Article195 from the book ‘principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ as was reproduced in the said case, the Court noted that the marriage of a Muslim girl is governed by the personal law of Muslims, which proposition has been made clear in the above mentioned various judgments. The Court addressed the issue of providing protection to the petitioners as envisaged under Article 21 and held that-

“…merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.” and disposed off  the petition directing the senior superintendent of the police to decide the representation made by the petitioners.

[Gulam Deen v. State of Punjab, 2022 SCC OnLine P&H 1485, decided on 13.06.2022]


Appearnces:

For Petitioner: Advocate Sanjeev Kumar

For State: AAG Bhupender Beniwal


[1] 2010(4) RCR(Civil) 716]

[2] 2014(3) RCR(Criminal) 518]

[3] 2019(1) 1 RCR (Criminal) 685

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While allowing a couple to have their frozen embryo transferred to another hospital for infertility treatment, V.G. Arun, J., held that the purpose of the Assisted Reproductive Technology (Regulation) Act, 2021 is to prevent sale of human gametes, zygotes, and embryos; and not to prevent a couple from using their own embryo to develop it into a fetus. The Court noted,

“Close scrutiny of the provision shows that the intention is to prevent/restrict the sale etc. of human gametes, zygotes, and embryos.”

Factual Backdrop

The petitioners-couple were married in the year 2007 and even after fifteen years of marriage, the first petitioner was unable to conceive. Hence, the couple opted for infertility treatment at the Craft Hospital and Research Centre.

As part of the procedure, the first petitioner underwent an Oocytes Retrieval procedure on 02-09-2014. Out of the six eggs injected after retrieval, four fertilised. The embryos were then preserved at the Craft Hospital. However, the treatment was stopped in 2016 on the advice of the Chief Consultant, since the required wall thickness of the uterus could not be obtained.

Later on, the couple re-commenced their treatment at the Sabine Hospital and Research Centre Pvt. Ltd. where the doctors asked the couple to request for transfer of the frozen embryos from the Craft Hospital to the Sabine Hospital.

Commencement of the Assisted Reproductive Technology (Regulation) Act, 2021

During the interregnum, the Assisted Reproductive Technology (Regulation) Act, 2021 came into force on 20-01-2022, imposing restrictions with respect to matters connected to the Assisted Reproductive Technology. Therefore, the Craft Hospital refused to transfer the embryos stating that transfer of the embryos is not permissible after the introduction of the Act.

Analysis by the Court

The preamble of the Act, 2021 shows that the objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.

Further, under Section 29, there is a prohibition against sale, transfer, or use of gametes, zygotes, and embryos, or any part thereof or information related thereto, directly or indirectly to any party within or outside India, except in the case of transfer of own gametes and embryos for personal use with the permission of the National Board.

The Court noted that the intention of the Act, 2021 is to prevent/restrict sale, etc. of human gametes, zygotes and embryos and in the case at hand, there is no such transfer since no donor or third party is involved and the embryos are that of the commissioning couple. Hence, the Court held that Section 29 does not interdict such transfer.

The Court expressed,

“Apart from the aspirations of the first petitioner to conceive and the second petitioner, to beget a child, the right of the life inside the embryo, which is kept frozen for the past 8 years, to develop into a fetus and be born, cannot be stultified by relying on a provision which has no application.”

Considering that the maximum period for which embryos can be preserved is ten years and eight years having elapsed already, the Court held that the petitioners would be put to undue prejudice and misery if the transfer is not permitted.

Conclusion and Directions

Resultantly, the Court concluded that the primary objective of the Act, 2021 is the regulation and supervision of the assisted reproductive technology clinics and banks, by preventing misuse and ensuring safe and ethical practice of assisted reproductive technology services. Holding that the Act, 2021 is not intended to create difficulties for persons opting for the assisted reproductive procedure, the Court issued the following interim directions:

  • Petitioners shall pay the amounts due to the Craft Hospital for preserving the embryos from 02-09-2014 onwards and on such payment being affected, the hospital shall forthwith permit the transfer of the embryos to the Sabine Hospital.

  • The Sabine Hospital shall collect the embryos and transfer it to its Assisted Reproductive Technology Bank and preserve the embryos with due care and protection.

  • The Sabine Hospital shall file an affidavit within five days affirming that it has all the requisite facilities envisaged under the Act.

The matter is posted after a week for further hearing.

[Rakhi Bose v. Union of India,2022 SCC OnLine Ker 3250, decided on 21-06-2022]


Advocates who appeared in this case :

Abraham Vakkanal, Senior Advocate along with M/S. Paul Abraham Vakkanal, Vineetha Susan Thomas & Rohith C., Advocates, for the Petitioners;

Assistant Solicitor General, for Union of India;

Government Pleader, for State of Kerala;

Sherin Varthese, Advocate, for Sabine Hospital and Research Centre Pvt. Ltd.


*Kamini Sharma, Editorial Assistant has reported this brief.

Patna High Court
Case BriefsHigh Courts

Patna High Court: Sanitation is personal and private, inextricably linked to human dignity. At the same time, sanitation has an essential public health dimension. A recent judgment by the Division bench of Sanjay Karol CJ and S.Kumar J. observed that the right to sanitation comes within the scope of Article 21 and therefore, directed the State, National Highway Authority of India (NHAI), and Oil Marketing Companies (OMC) to construct public toilets and public conveniences on highways across the state of Bihar.

Issues in question

1. Whether the failure of the authorities to finalize the setting up of Petrol Pumps leads to a violation of the rights of travelers?

2. Within the expanding area of Right to Life, does an entitlement of the right to sanitation arises, more so on the Highway, be it setting up of Petrol Pumps and providing facilities therein or otherwise?

3. What is the nature of obligations imposed upon the State to ensure the availability and upkeep of sanitation facilities on the Highways?

Analysis

Sanitation facilities

The bench was of the view that the State is under the obligation to provide basic amenities to the citizens on the Highways while ensuring that their basic right to sanitation or basic amenities is not defeated. The bench stated that

“… the right to sanitation comes within the expansive scope of Article 21. The nature of obligation imposed upon the State is not only that of being a welfare state but also the realization of fundamental rights for every citizen, even the rights enshrined within Article 21, which forms the nerve center of our constitutional consciousness.”

Further, the bench noted that the lack of sanitation facilities on the highways has a significant impact on our environment and it encourages people to indulge in the unsafe practice of open defecation/ urination which ultimately causes serious health and hygiene issues.

The bench noted that, in order to provide sanitation access to everyone by achieving multiple targets of United Nation’s Sustainable Development Goals (SDG), the bench laid emphasis on the judgment given by the Supreme Court in Citizens for Green Doon v. Union of India, 2021 SCC OnLine SC 1243 wherein the court recognized the important position of sustainable development framework in environmental jurisprudence.

Setting up of Petrol Pums

The bench observed that Roadways and Highways form an essential part of the national economy as they are the connectors between different parts of the country. Easy travel with all necessities being served is a ‘right’. Setting up petrol pumps at regular intervals helps in achieving both economic and social benefits.

“The lapse of time from the initiation of the process to the setting up of these units, take away the ideals of a welfare State where the prime objective of the administration is to serve the people in a way that all their needs are met, also giving them opportunities to grow.”

Therefore, the court concluded that it is essential to note the caution in setting up petrol pumps as petrol is a product of a conventional source of energy i.e. crude oil. Hence, the distribution of the said commodity should be done in such a way that the paramount consideration of environmental suitability and resource conservation is given due consideration.

Directions issued

In the light of the above analysis, the Bench issued necessary directions to the State, NHAI and OMCs-

• The Chief Secretary, Government of Bihar, to convene a meeting of all stakeholders to examine the best and most efficient way to realize the multifarious benefits arising from the establishment of petrol pumps with equal importance being placed upon economic, social and environmental aspects.

• The Development Commissioner, Government of Bihar, who is already seized of the matter shall take expedient steps in furtherance of the action(s) taken thus far.

• The State, NHAI and the OMCs consider constituting public toilets and public conveniences at places easily identifiable and accessible by the public at large, and in this regard, signboards of “Public Toilets” or “Private Toilets” be displayed at the retail outlets.

• The amenities constructed should be done so, keeping in mind accessibility for persons with disabilities. The State has a responsibility to provide them equitable access to basic amenities while undertaking road travel, in light of the Constitution of India and the various international Human Rights obligations.

• All toilets be adequately staffed for taking care and maintaining the same with a proper system for the disposal of sanitary napkins.

• Authorities may also consider making it necessary/mandatory for all the Dhabas/ Restaurants on the highways to make available public toilets and drinking water facilities for the use of the general public. While granting permission to such establishments, authorities should consider incorporating specific conditions regarding the provision of toilets and restrooms. Also, maintain the same hygiene, failing which their registration/permit is cancelled.

• The State Authorities and corresponding Central Authorities will take expedient steps to check the practice of the black-marketing or open unauthorized sale of petrol/diesel.

• The authorities may consider the development of a mechanism to:-

(a) institute a randomized checking system to ensure facilities and resources’ quality and proper availability.

(b) in consultation with OMCs and furtherance of the Statutory obligation take constructive steps to ensure sustainable use of resources and all other related issues.

(c) Prepare a digital platform furnishing complete information of such places of convenience to the general public with a provision of lodging online remarks.

[National Highway Projects v. State of Bihar, 2022 SCC OnLine Pat 1048, decided on 10-05-2022]


Advocates who appeared in this case :

Mr. P.K. Shahi, Senior Advocate, Amicus Curaie, for the petitioner;

Mr. Anjani Kumar, AAG-4, Mr. Alok Kumar Rahi, AC to AAG-4, for the State of Bihar;

Mr. Kumar Priya Ranjan, Advocate, Mr. Pallav, Advocates, for the Union of India;

Dr. K.N. Singh, ASG, Dr. Maurya Vijay Chandra, Advocate, Mr. Devansh, J.C. to A.S.G., Mr. Sriram Krishna, JC to A.S.G., Mr. Amarjeet, Advocate., Mr. Gaurav Govinda, Advocate., Mr. Gaurav Kumar, Advocate., Ms. Anjali Kumari, Advocates, for the NHAI;

Mr. Sarat Kumar Mishra, Advocate, Mr. Ankit Katriar, Advocate, for the IOCL;

Mr. Siddharth Prasad, Advocate, Mr. Om Prakash Kumar, Advocate, for the BPCL;

Mr. Rajeev Prakash, Advocate, for the HPCL.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Apprehension of harassment and violence at the hands of their relatives, led a young couple to knock on the doors of the Court. The bench of M.A. Chowdhary, J., while perusing the facts and the fears presented by the petitioners, made some profound observations vis-a-vis two adults consensually marrying. The Court stated that, Arts. 19 and 21 of the Constitution duly recognises the right of two consenting adults entering into wedlock. “Consent of family or community or clan is not necessary once two adult individuals agree to enter into wedlock and their consent has to be piously given primacy. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and values it stands for”.

As per the facts, the petitioners claiming to be majors, contracted marriage out of their free will and started living as husband and wife. The said marriage was contracted as per Muslim personal laws and traditions. Upon developing a fear for their safety and life, the petitioners approached the Court seeking protection and security cover from their relatives.

Upon examining the prayer, the Court observed that Right to Marry has sanction of the Constitution, therefore it needs to be protected and it cannot succumb to conception of class honour or group thinking and that the Constitutional Courts should act as a watchful sentinel to guard the right to liberty of an individual, as dignified existence has an inseparable association with liberty. “Life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person“. Noting that choice is an inextricable part of dignity, thus no one should be allowed to interfere with the fulfilment of an individual’s choice. “When two adults marry out of their volition, they choose their path… and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation”.

With the aforementioned observations, the Court directed the respondents to provide adequate security cover to petitioners and act in accordance with the law laid down by the Supreme Court in Lata Singh v. State of U. P. (2006) 5 SCC 475, and Shakti Vahini v. Union of India, (2018) 7 SCC 192. The Court also directed the respondents to verify petitioners’ claims vis-a-vis their age and proper solemnization of marriage. The Court also clarified that the observations made in the instant petition do not authenticate the petitioners’ marriage, as the same is dependent on fulfilment of requisites as envisaged under prevalent laws.

[Sugra Fatima v. Union Territory of J&K, 2022 SCC OnLine J&K 472, decided on 14-06-2022]


For the petitioners: Asma Rashid, Advocate

For the respondents: Insha Rashid, GA


*Sucheta Sarkar, Editorial Assistant has reported this brief.

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: A full bench comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ unanimously ruled that imposing consecutive sentences under Section 745.51 of the Criminal Procedure Code, violates Section 12 of the Canadian Charter of Rights and Freedoms. It was observed that “Not only do such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.”

Facts and contentions of the case:

On January 27, 2019, Alexandre Bissonnette opened fire on the worshippers that were gathered in the Great Mosque of Québec for evening prayer. Six people were killed and five were seriously injured. He pleaded guilty to all charges against him, including six counts of first degree murder.

According to the Canadian Law, a person who has committed murder will be sentenced minimum to life imprisonment and would be eligible for a parole after 25 years of period of ineligibility.

The State pleaded for the imposition of Section 745.51 as the accused had committed multiple murders. This provision allows the periods without eligibility for parole for each murder conviction to be served back-to-back (consecutively). Bissonnette challenged the constitutional validity of the section. The trial court made an attempt to provide remedy for the provision by bear reading it and granting the courts to choose an additional period of ineligibility for 40 years before applying for parole. The court of appeal declared the provision unconstitutional and held that the accused serve a 25-year parole ineligibility period on each count before being able to apply for parole.

Observations made by the Supreme Court

While dismissing the appeal filed against this judgment of the Court of Appeal, the Supreme Court made the following observations:

  • Such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.
  • Sentences of imprisonment for life without a realistic possibility of parole may also have devastating effects on offenders, who are left with no incentive to rehabilitate themselves and whose incarceration will end only upon their death.
  • For the objective of rehabilitation to be meaningful, every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of the minimum ineligibility period of 50 years stipulated in the impugned provision for cases involving first degree murders.
  • Imposing consecutive 25 year parole ineligibility periods is unconstitutional must not be seen as devaluing the life of each innocent victim.

Everyone would agree that multiple murders are inherently despicable acts and are the most serious of crimes, with consequences that last forever. This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.

Along with the aforementioned observations, the court pointed out that the Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders. The penological objective is intimately linked to human dignity, that every individual has the capacity to reform and re-enter the society. In the light of this conclusion, the Court unanimously declared section 745.51 invalid from the time it was enacted in 2011. Resultantly, the law that existed before the date will continue to apply.

[R. v. Bissonnette, 2022 SCC OnLine Can SC 1, decided on May 27, 2022]

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: S.G Pandit, J. disposed of the petition leaving respondent-Railway authorities at liberty to take action against the catering services after affording an opportunity to them, in accordance with the law.

The facts of the case are such that the respondent-Railways invited tenders for Housekeeping, Catering and Loading Unloading support services and the petitioner was one of the successful tenderers in so far as catering services is concerned. Even though the petitioner’s tender was accepted, on the ground that tenderer/petitioner failed to execute the work, the petitioner was debarred under the impugned letter but would not indicate issuance of any notice before debarring the petitioner from participating in any of the contracts of the Indian Railways. Thus, the instant writ petition was filed under Articles 226 and 227 of the Constitution of India praying to set aside the communication dated 05-04-2019.

Counsel for the Railways submitted that no notice was issued to the petitioner prior to the impugned communication.

The Court thus observed that blacklisting or debarring of a contractor from participating in any contract would result in civil consequence. In that, a person against whom debarment or blacklisting is passed, he would not be in a position to participate in any of the contracts and his right to life would be affected. When an action of the authorities would result in civil consequences, a prior notice indicating the reason for blacklisting or debarment shall be communicated and on receiving the reply, such blacklisting or debarment order shall be passed.

Thus the Court held, In the instant case, since there was no notice before debarring or blacklisting the petitioner from participating in catering service of the respondent-Railways, I deem it appropriate to quash Annexure-G dated 05-04-2019, with liberty to the respondent to take appropriate action, after affording an opportunity to the petitioner.   [Crest Facility Management v. Union of India, 2022 SCC OnLine Kar 906, decided on 30-05-2022]


Appearances

For petitioners- Ms Anjana

For respondents- Mr Abhinay YT


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a landmark case, the 3-judge Bench comprising of L. Nageswara Rao, B. R. Gavai and A.S. Bopanna, JJ., upheld sex workers right to identity and issued detailed directions for their protection and upliftment.

The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Adhar Card for them without insisting on address proof.

The Court invoked Article 142 of the Constitution to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. The Court remarked,

“The constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court. Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

Constitution of Special Penal

By an order dated 19-07-2011, the Court had constituted a panel with Mr. Pradip Ghosh as the Chairman, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan to assist and advise the Court for giving suitable directions in the matter. The terms of reference made to the panel were:

“(1) Prevention of trafficking,

(2) Rehabilitation of sex workers who wish to leave sex work, and

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.”

Later on, by an order dated 26-07-2012, the Court had modified the third term of reference to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.

Penal Report and Recommendations

After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report and the recommendations made by the panel were considered by the Union Government and a draft legislation was published incorporating the recommendations so made. Thereafter, periodically adjournments were taken by the Union government on the ground that the Bill is on the anvil.

Noticeably, the panel had recommended in respect of the third term of reference in the following terms:

  • “When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. The panel noted, There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.
  • Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the CrPC, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
  • Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
  • The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
  • Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.

“It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens.”

  • The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.
  • The newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.
  • Measures that sex workers employ for their health and safety (e.g., use of condoms, 12 etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
  • The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work.
  • The Central Government and the State Governments should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.
  • No child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.”

Directions by the Court

Considering that no legislation has been made till date even though the recommendations were made by the Panel in the year 2016, the Court exercised its powers under Article 142 of the Constitution to implement the abovementioned recommendations. Accordingly, the State Governments/ UTs were directed to act in strict compliance of the recommendations by the panel. Similarly, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 were directed to comply with the provisions of the Act while the Union Government was directed to file its response to the recommendations made by the panel within a period of six weeks. The Court added,

“It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India. The Constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act,1956.”

Aadhaar Card for Sex Workers

With regard to non-issuance of Aadhaar Cards to sex workers as they were unable to produce proof of their residence, earlier, the Court had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of residence proof for the sex workers. The UIDAI had proposed that sex workers who are on NACO’s list can be issued Aadhar Cards without having to submit a residence proof, provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO (National AIDS Control Organisation) or the State Health Department certifying the particulars of the applicant.

Some suggestions had been made by the organisations representing sex workers for the procedure to be followed by UIDAI; i.e. the procedure to obtain Adhar by sex workers should be publicize through outreach under the Targetted Intervention Programmes and issuance of the Adhar Cards should not be restricted to sex workers on the NACO list but also be extended to those who are identified by CBOs after verification. Since UIDAI had accepted the given suggestions, the Court directed that Aadhar Cards shall be issued to sex workers. The Court emphasized,

“There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.”

The matter is listed on 27-07-2022 for further hearing.

[Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704, order dated 19-05-2022]


Kamini Sharma, Editorial Assistant has put this report together


Case BriefsSupreme Court

Supreme Court: In a significant case, the 4-judges Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat, P.S. Narasimha and Sudhanshu Dhulia, JJ., issued directions to all the High Courts of the country to submit reports indicating status of cases where bail has been granted by the Supreme Court i.e. if any of such persons are deprived of the opportunity of being released on bail for some reason or the other.

“… where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but  reincarnation of Hussainara Khatoon[1] & Motil Ram[2].”

By an order dated 28-09-2020 the Supreme Court had directed to release the petitioner on interim bail after noting that the petitioner had been in custody since 12-05-2011 and had completed more than 9 years of actual imprisonment. The Court had order that the petitioner be produced before the Trial Court within three days and the Trial Court shall release him on interim bail on such terms and conditions as the Trial Court may deem appropriate.

Despite the aforestated order the petitioner was not bailed out and was kept in custody, on being apprised of this fact the Court had sought explanation from the Police and Jail officials concerned. The Superintendent, Central Prison, revealed that the order dated 28-09-2020 was received in the Prison on 06-10-2020. However, due to Covid-19 Pandemic restrictions, the movement of the prisoner was not immediately possible and the application reached before the Court on 29-10-2022 for consideration of bail when the Trial Court passed the following order: “How the petition is maintainable after expiry of time as per orders of Supreme Court. Hence, returned.”

Hence, despite the order of the Supreme Court the petitioner continued to be in custody.

On being apprised of the fact that the order was transmitted through electronic mode immediately but the physical copy was sent in due course, which was received in the Jail on 06-10-2020, the Court expressed,

“This case portrays very sorry state of affairs.”

Disappointed by the reasoning of the Trial Court the Court clarified that the reason why stipulation was inserted in the order that “the petitioner shall be produced before the Trial Court within three days and the Trial Court shall release him on interim bail” was to expedite the process. The reason was not to put any limitation of a specified period within which time alone the bail could be availed and not thereafter. The Court remarked,

“The order was construed by the concerned Trial Court as if, after the expiry of three days, the petitioner had no right to be released on bail. We are surprised that a Judicial Officer had read the order passed by this Court, in the manner as it gets disclosed from his order.”

Hence, the Court directed the High Court to call for an explanation from the Presiding Officer concerned of the Trial Court and deal with the matter on the administrative side. At the same time, the Court expressed concerns as to whether similar kind of situations have arisen or do arise despite the order passed by the Supreme Court. Pursuant to which the Court suggested for a corrective mechanism—especially where the proceedings are initiated through the Legal Services Authority—and passed the following general directions:

  1. All the High Courts were directed to provide details of all such orders which remain to be complied with and about the persons concerned who are still languishing in jail. The Court proposed for the High Court to maintain a register as to how many matters orders directing release of the persons on bail were issued and if out of such total number of matters, any person stood deprived of the opportunity of being released on bail for some reason or the other. The Register must indicate the reason including whether proper security etc. could be arranged by the concerned person or not. Such matters should then be listed before the concerned court in the succeeding month and the fact that the person has not yet been released on bail, be brought to the notice of the Court concerned under whose orders the relief of bail was afforded to the person(s).
  2. The High Courts were directed to provide the details within six weeks.

With regard to the instant case, the petitioner had been released on bail. As a concluding note, the Court stated,

“We must observe that these matters be taken with utmost seriousness by the High Court and by all the concerned.”

The matter is listed on 11-07-2022 for further hearing.

[Gopisetty Harikrishna v. State of A.P., 2022 SCC OnLine SC 654, order dated 09-05-2022]


[1] (1980) 1 SCC 81

[2] (1978) 4 SCC 47


Appearance by:

For Petitioner(s):  Senior Advocate Mahalakshmi Pavani, AOR Revathy Raghavan, Advocates Divya Singhvi, Neha syal and Jeyam

For Respondent(s): Senior Advocate S. Niranjan Reddy, AOR Mahfooz A. Nazki, Advocate Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Rajeswari Mukherjee, K.V.Girish Chowdary, Akhila Palem, Abhishek Sharma and Sahil Raveen


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In the issue relating to the use of a toxic pesticide called Endosulfan leading to a spread of mental and physical ailments among residents of Kasargod district in Kerala, the bench of Dr. DY Chandrachud* and Surya Kant, JJ has held that the inordinate delay by the State Government in compensating the persons affected by the use of Endosulfan not only reflects its failure to comply with the Court’s order but also further compounds the violation of the fundamental rights of such persons.

“The failure to redress the infringement of their fundamental rights becomes more egregious with each passing day.”

Background

Supreme Court had, by its order dated 10 January 2017, directed the State Governments to compensate all the affected persons by distributing an amount of Rs 5 lakhs to each affected person within three months. It also directed the State Governments to consider the feasibility of providing medical facilities and treatment for life-long ailments arising from the effects of Endosulfan, considering the larger number of affected persons.

In the case at hand, a contempt petition was instituted by the residents of Kasargod district in Kerala as the State Government failed to compensate the affected residents. It was argued that the petitioners are yet to be compensated and the medical facilities have not been improved because of which the affected persons in Kasargod District are compelled to travel to Trivandrum, about 600 kms away for their treatment.

Out of the 3704 victims, 102 are bedridden, 326 are mentally disabled, 201 are physically disabled, 119 are afflicted with cancer while 2966 fall in the residual category.

The State Government has, on 15 January 2022, issued a GO to authorize the disbursal of an additional amount of Rs 200 crores for providing compensation to the victims of Endosulfan. However, as of date, an amount of Rs 5 lakhs has been disbursed only to eight persons who are the petitioners who have moved these contempt proceedings.

Observations

The Court observed that the Government of Kerala has done virtually nothing for five years. Besides the fact that the delay is appalling, the inaction is in breach of the orders of the court.

The Court also failed to understand the logic or the rationale of the State Government in disbursing compensation only to those who have the ability to move the Supreme Court.

Noticing that most of the victims are from the marginalized segments of society and many of the victims are in a serious condition to whom compensation on an urgent basis has to be provided, the Court said,

“The right to health is an integral part of the right to life under Article 21 of the Constitution. Without health, the faculties of living have little meaning.”

Stating that it would be justified in taking recourse to the coercive arm of law, the Court confined itself to providing immediate relief and rehabilitation to the victims who are suffering and issued the following directions:

  • Since the payment of compensation has been made, though belatedly to eight petitioners who have moved these proceedings, costs quantified at Rs 50,000 each shall be paid over in addition to each of the eight persons within a period of three weeks from the date of the order;
  • The Chief Secretary shall hold monthly meetings to ensure that the judgment of this Court dated 10 January 2017 is diligently implemented by undertaking the process of (a) identifying the victims of Endosulfan and drawing up a list of beneficiaries; (b) ensuring the disbursement of compensation of Rs 5 lakhs to each of the victims; and (c) taking steps for ensuring due medical facilities within reasonable distance from their places of residence in terms of the earlier directions of this Court
  • An affidavit of compliance shall be filed before theCourt indicating the progress which has been made between the date of this order and the next date of listing

The Court will now hear the matter on July 18, 2022.

[Baiju KG v. Dr. VP Joy, 2022 SCC OnLine SC 624, decided on 13.05.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For Petitioner(s): Sr. Adv, P.N. Ravindran and Advocates P.S. Sudheer, Rishi Maheshwari, Shruti Jose and Bharat Sood

For Respondent(s): Advocates Nishe Rajen Shonker, Anu K. Joy and Alim Anva

Case BriefsSupreme Court

Supreme Court: While addressing an appeal alleging solitary confinement of a death row convict, the 3-Judge Bench of Uday Umesh Lalit, S. Ravindra Bhat and P.S. Narasimha, JJ., directed local inspection by a District Judge to throw light on the ground situation.  

A appeal was filed before the Court alleging that the appellant had been placed in solitary confinement since 29-10-2006 contrary to the law laid down by the Supreme Court in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. The appellant had relied on the letter addressed by the Medical officer to the Superintendent of Prisons dated 06-11-2011 claiming that ‘the aforesaid prisoner is kept in solitary confinement since his admission to this prison on 29-10-2006’ and further that the petitioner was suffering from ‘psychosis with depression’.

Dr. Yug Mohit Chaudhry, counsel for the appellant stressed that the appellant was kept in solitary confinement right from the decision of the Sessions Court awarding him death sentence. To strengthen the argument the counsel submitted various documents including the Prison Manual in support of the submission that, as the petitioner was segregated and kept in a separate Cell that would amount to solitary confinement, in terms of the law laid down in Sunil Batra case (supra).

The State Government opposed the allegation of solitary confinement, however no specific reply was filed in the High Court controverting the basic allegations in the writ petition. The State had only requested that video conferencing be arranged to apprise the Court of the circumstances in which the petitioner had been lodged in a Cell.

The 3-judge Bench opined,

It is true that the Hon’ble Judges constituting the Bench in Sunil Batra’s case had visited the jail premises themselves in order to have first-hand knowledge about the conditions in which said petitioner was lodged. We may at this stage rely upon the local inspection to be conducted by the District Judge, Belgaum who also holds the charge as the Chairman of the District Legal Services Committee, Belgaum.”

Therefore, the Bench directed the District Judge, Belgaum to conduct a local inspection and place a report along with pictures as early as possible and latest by 25-04-2022, to enable the Court to have a clear understanding of the ground situation. To make sure the report deals with required details the Bench issued following additional directions:

  1. “The report shall concentrate on location of the barracks in which the cells of Death Row Convicts are situated.
  2. The inspection shall cover issues whether the inmates of the concerned cells are allowed to intermingle with fellow prisoners, the way the meals are served to them and the duration for which the inmates are allowed to come out of their individual cells. These are only illustrative pointers. What we want to gather is the typical life-style of Death Row Convicts and how their days are spent.”

However, the Bench clarified that the Cells which are close to the gallows and are used for keeping persons about to be executed, are different from the Cells for the Death Row Convicts.

With regard to status of Mercy Petition, the Bench directed the Registry to make copies of the file of Mercy Petition and return the same to the advocate on record concerned in a sealed cover. The matter is to be further heard on 26-04-2022.

[B.A. Umesh v. Union of India, Special Leave to Appeal (Crl.) No(s). 890 of 2022, decided on 21-04-2022]


Appearance by:

For Petitioner(s): AOR K. Paari Vendhan with Yug Mohit Chaudhry, Siddhartha Sharma, Prabu Ramasubramaniam, Payoshi Roy, Raghunatha Sethupathy B., Vishnu Unnikrishnan, Priya R, Advocates

For the Respondent(s): ASG K.M. Nataraj, AOR Arvind Kumar Sharma, AOR Shubhranshu Padhi, AAG Nikhil Goel, Sr. Advocate Sonia Mathur and Khushboo Aggarwal, Prerna Dhall, Simarjeet Singh Saluja, Shailesh Madiyal, Sanjay Kumar Tyagi, Ashish Yadav, Rakshit Jain, Vishal Banshal, Aditya K. Roy, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In the 2006 Meerut fire case, the bench of Hemant Gupta and V. Ramasubramanian, JJ has held the Organizers responsible for the incident and not the Contractor as the Contractor was only responsible for executing work as assigned to him by the Organizers. It observed,

“The contractor has worked for the Organizers and not for the victims. Hence, the Organizers alone are responsible to protect the life and liberty of the victims.”

The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.

The State of Uttar Pradesh had appointed Justice O.P. Garg (Retired) in terms of provisions of the Commission of Inquiry Act, 19521 vide order dated 2.6.2006 but the report submitted by this Commission was not found to be sustainable in Sanjay Gupta v. State of Uttar Pradesh, (2015) 5 SCC 283. The Court then appointed Justice S.B. Sinha (Retired) as a one-man Commission.

Observations

Holding that the report of the one-man Commission does not suffer from any infirmity so as to absolve the Organizers from their responsibility of organizing the exhibition, the Court made the following observations:

  • The victims or their families visited exhibition on the invitation of the Organizers and not that of the Contractor. The Organizers were supposed to make arrangements for putting up the exhibition hall, providing electricity and water and also the food stalls for the facility of the victims/visitors. They cannot now take shelter on the ground that the Contractor who was given work order was an independent contractor and the victims should seek remedy from him.
  • The Court Commissioner found that the contract with the Contractor was neither a turn-key project nor was he appointed as an independent contractor. Therefore, the argument of the Organizers that they are not liable for the acts of omission or commission on the part of the contractor was rejected by the Commission. Even otherwise, the Organizers were vicariously liable for the alleged acts of negligence on the part of the contractor. The Contractor was only responsible for executing work as assigned to him by the Organizers.
  • The ticket proceeds were collected by the Organizers. It is the responsibility of the Organizers, having collected the entry fee, to ensure the safety and well-being of the visitors. The Organizers have failed in that duty causing loss of life of the innocent victims who came to see the exhibition, which was purely a commercial event with an intention to earn profit by the organizers.
  • The argument that the Court Commissioner has not given any conclusive finding on the cause of the fire is not relevant in determining the civil liability. The maxim res ipsa loquitur would be applicable as organizing an exhibition of such substantial magnitude without proper and adequate safety factors which may endanger the life of the visitors, has been rightly found by the Court Commissioner, an act of negligence including negligence of the officers of the State.

Compensation

It is pertinent to note that,

  • The State has paid Rs.2 lakhs each as ex-gratia compensation to the families of the deceased, Rs.1 lakh each for the persons who suffered serious injuries and Rs.50,000/- each for the persons suffering from minor injuries.
  • The Union of India has paid ex-gratia compensation of Rs.1 lakh each for the deceased and Rs.50,000/- each for those with serious injuries. In terms of the order of this Court, the State has paid Rs.5 lakhs each to the deceased, Rs.2 lakhs each to the victims suffering serious injuries and Rs. 75,000/- each to the victims suffering minor injuries, apart from the amount paid by the Union of India.
  • The list of deceased and injured persons has been produced but the amount of compensation payable to each of the victim including the families of the deceased have not been computed and such amount is required to be computed in accordance with the principles of just compensation as in the case of accident under the Motor Vehicle Act, 1988 by the Motor Accidents Claims Tribunal.

The Court, hence, requested the Chief Justice of the Allahabad High Court to entrust the work of determination of compensation to a Judicial Officer in the rank of District Judge/Additional District Judge at Meerut within two weeks of the present order to work exclusively on the question of determination of the compensation on day-to-day basis. Further,

  • The High Court shall provide all necessary infrastructure to enable the Officer to discharge his duties.
  • The nominated Judicial Officer may permit the parties to lead such evidence as may be permissible.
  • The nominated Judicial Officer shall calculate the amount of compensation and forward the report to the Supreme Court for consideration in respect of compensation in accordance with law.
  • The amount paid by the State and a sum of Rs.30 Lakhs deposited by the Organizers has been disbursed to the victims. The said amount, excluding the ex-gratia payments made, be taken into consideration while determination of the amount payable by the Organizers and the State.

It is important to note that as per the report submitted by the Commission, the liability between the Organizers and the State was fixed as 60:40 and no dispute was raised regarding percentage of liability determined by any of the party.

The Court will now take up the matter after 4 months.

[Sanjay Gupta v. State of Uttar Pradesh, 2022 SCC OnLine SC 443, decided on 12.04.2022]


Counsels

For Organizers: Senior Advocate Shanti Bhushan

For Writ Petitioners: Senior Advocate Vikas Pahwa

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

The facts of the case are such that the convict prisoner Nand Lal is serving the sentence awarded to him and has undergone imprisonment of around six years out of sentence of life imprisonment awarded to him including remission. Smt. Rekha, wife of the petitioner filed an application averring therein that conduct of his husband  had been exceedingly well in the jail premises and he was granted first parole by this Court for the period of 20 days which he availed satisfactorily and surrendered back to the prison on due date. It is averred in the application that she has not begotten any issue from their wedlock and thus, for want of progeny, she craves for 15 days emergent parole. The said application is pending consideration before the District Collector-cum-Chairman, District Parole Committee, Ajmer, however, no order has been passed therein till date. The instant writ petition has been preferred by convict prisoner Nand Lal through his wife Smt. Rekha seeking emergent parole under Rule 11 (1) (iii) of the Rajasthan Prisoners Release On Parole Rules, 2021 (hereinafter for short ‘the Rules of 2021’) on the ground of want of progeny.

The Court, however, instructed the police officials concerned to make an inquiry regarding family status of the convict-prisoner and place the report on record. The report stated that Smt. Rekha is legally wedded wife of the petitioner and she is residing at her matrimonial home along with her in-laws

The Court observed that having progeny for the purpose of preservation of lineage has been recognized through religious philosophies, the Indian culture and various judicial pronouncements. As mentioned above, the right of progeny can be performed by conjugal association; the same has an effect of normalizing the convict and also helps to alter the behavior of the convict prisoner. The purpose of parole is to let the convict to re-enter into the mainstream of the society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment. Thus, denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife.

Right of Progeny 

  1. Religious Aspect:

As per Hindu philosophy, Garbhadhan, i.e. attaining the wealth of the womb is the first of the 16 sacraments. In Judaism, Christianity, and some other Abrahamic religions the cultural mandate includes the sentence “Be fruitful and multiply and fill the Earth.” The cultural mandate was given to Adam and Eve. The preservation of lineage is also greatly emphasized by the Islamic Shariah and the Cairo declaration of human rights in Islam also supported the protection of lineage in Islam.

  1. Social Aspect

There are four Purusharths, object of human pursuit which refer to four proper goals or aims of a human life. The four purushuarths are Dharma (righteousness, moral values) Artha (prosperity, economic values), Kama (pleasure, love, psychological values) and Moksha (liberation, spiritual values, self-actualization). When a convict is suffering to live in prison, he/she is deprived to perform the abovementioned purusharths, among them, 3 of four purusharths, i.e. Dharma, Artha and Moksha are to be performed alone, however, in order to perform/exercise/pursue the fourth Purushartha, i. e. Kama, the convict is dependent on his/her spouse in case he/she is married. At the same time, the innocent spouse of the convict is also deprived to pursue the same. In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the State is more important as for a married woman, completion of womanhood requires giving birth to a child. Her womanhood gets magnified on her becoming a mother, her image gets glorified and becomes more respectful in the family as well in the society. She should not be deprived to live in a condition wherein she has to suffer living without her husband and then without having any children from her husband for no fault of her. Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt. Our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt.

  1. Legal Aspect

The Court relied on judgment Jasvir Singh v. State of Punjab, 2015, Cri LJ 2282 and observed that Article 21 of the Constitution guarantees that no person shall be deprived of his life and personal liberty except according to procedure established by law. It includes within its ambit the prisoners also.

The Court thus observed that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse.

The Court thus held “though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranted by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition.”[Nand Lal v. State, 2022 SCC OnLine Raj 678, decided on 05-04-2022]


Appearances:

For Petitioner(s) : Mr. K.R. Bhati

For Respondent(s) : Mr. Anil Joshi


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

 “We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

Background

The instant case arose out of unfortunate dispute between the appellant- wife and the respondent – husband over the custody of their minor male child Aaditya Kiran. The parties were married and living in New York, USA and the child held the citizenship of USA. It was for the treatment of the child for hydronephrosis in India, which required surgery that consent for international travel with one legal guardian, was executed by and between the appellant and the respondent on 04-02-2019. The consent was recorded in the said document to enable the child to travel with the mother–the appellant to India for the period between 05-02-2019 to 26-09-2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents.

The child underwent a surgery on 14-03-2019 in Max Hospital, Saket, New Delhi. The certificate issued by Dr. Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max Hospital recorded  that he had examined the child on 12-07-2019 when he found that the child was doing well, however a suggestion was made that the child needed to be reviewed 6 to 7 months post-surgery along with a fresh ultrasound and renal scan.

Apple of Discord and Litigation History

It was the case of the respondent that the appellant had violated the international travel consent by not allowing the minor child to come back to USA by 26-09-2019, hence a petition was filed before the Circuit Court of Benton County, Arkansas, USA seeking primary care, control, and custody of the minor on account of his wrongful detention outside USA by the appellant wherein interim order was pronounced in favour of the respondent.

It was when no heed was paid to the said order by the appellant; the respondent approached the High Court of Punjab and Haryana seeking a writ of habeas corpus to secure release of the minor child from the illegal custody of the appellant. The High Court, by the impugned judgment decided the case in favour of the respondent and directed to hand over the custody of the minor the respondent.

Doctrine of Best Interest

The appellant’s stand was that there was a need to make a departure from the rule of “best interest of the child” or the “welfare principle” as welfare would mean balancing the interests of all the members of the child’s family and the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected.

Rejecting the contention of the appellant, the Bench held that the principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant. Opining that when a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected, the Bench stated that the rights of parents/parent cannot be put on par with welfare of child.

Giving the example of visitation rights, the Bench stated, whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents.

Hence, the Bench concluded that the consideration of well-being and welfare of the child must get precedence over the individual or personal rights of the parents.

Whether the Court, while deciding custody matters, can compel one of the parents to move from one country to another?

Another question before the Court was whether a parent can be compelled to go abroad for enforcing the Court order in custody cases. In that regard, the Bench opined that the welfare of a minor being of paramount consideration in such proceedings, the Courts cannot decide where the parents should reside as it will affect the right to privacy of the parents.

Therefore, the Bench held that a parent has to be given an option to go abroad with the child and it ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child as it will all depend on the priorities of the concerned parent. However, noticing that in the impugned judgment the High Court did provide such an option to the appellant, the Bench held that there was no compulsion on the appellant to go abroad with the child.

Factual Analysis

Considering the submissions made by both the parties and evidence available on record the Bench made following observations:

  • It was not the case of the appellant that there was even a discussion with the respondent for modification of the said consent till date and admittedly, the period of travel mentioned in the consent was not extended by the respondent.
  • Though the doctor recorded that the child needed to be reviewed 6 to 7 months after the surgery along with fresh ultrasound and renal scan, the surgery had taken place 33 months back and the appellant had neither provided any medical opinion on the current health of the child nor any medical certificate recording that the child needs any further treatment or medical care in India.
  • The child had spent more than three years in USA and two and a half years in India. Therefore, it could not be said that there was a complete integration of the child with the social, physical, psychological, cultural and academic environment of either USA or India.
  • The respondent had financial resources to maintain the appellant and the minor child in USA.
  • The welfare report of Visiting Consular of US Embassy recorded that the appellant informed that “her aunt picks up the minor child from school and brings him home each day and stays with him throughout the day while the mother and grand-parents are at work. Moreover, a domestic helper is taking care of the needs of the child.” Therefore, the appellant was not devoting her whole day to take personal care of the minor and to attend to the needs of the minor child.
  • On the other hand, the respondent had submitted that he had an option to permanently work from home and his mother had a valid visa to stay in USA till 23-02-2024 who had expressed willingness to take care of the minor child in USA.

Conclusion

In the backdrop of above mentioned observations the Bench upheld the impugned judgment with some minor modifications and passed the following order:

  • The appellant was given option to travel to USA along with the minor child and to contest the proceedings pending in USA and in such case, the appellant was directed to communicate her willingness to the respondent within two fifteen days and inform him of possible travel dates which was to be within three months;
  • If the appellant opts for travelling to USA, the respondent was directed to sponsor air tickets for round trip, arrange separate accommodation for the appellant and if she wishes to continue in USA, the respondent was to take all possible steps for the extension of visa or for getting a new visa;
  • If the appellant agrees to travel, the respondent was directed to pay US$ 6,500 to the appellant for her initial expenditure in USA and after expiry of period of one month the respondent was to pay mutually agreed amount of maintenance along with proper medical insurance to the appellant and the minor child. Additionally, the respondent was directed to undertake obligation to provide proper medical treatment to the minor child;
  • If the appellant agrees to travel, for a period of three months from the date of her arrival, the respondent was not take any steps to implement or enforce the order passed by the Circuit Court of Benton County, Arkansas to enable her to contest the said case. Hence, for the said period the custody of the minor was to be with appellant; during that period the respondent was granted temporary custody of the minor child from 10 am to 5 pm on every Sunday and liberty to video call the minor child for half an hour on every day.
  • In the event, the appellant deny to visit USA and fails to communicate her willingness to visit USA within a period of fifteen days, the respondent was granted liberty to take custody of the child.

Additionally, the Bench added the parties would be at liberty to adopt agreed joint parenting plan if they wish to.

[Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43, decided on 12-01-2022]


*Judgment by: Justice Abhay S. Oka


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta* and V. Ramasubramanian, JJ., set aside NCDRC’s order granting 14 lakhs compensation to the claimants in negligence claim against doctors. The Bench stated,

“The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.”

In the instant case, the National Consumer Disputes Redressal Commission (NCDRC) had directed the appellants i.e., Bombay Hospital & Medical Research Centre and Dr. C. Anand Somaya to pay a sum of Rs. 14,18,491/- along with interest at 9% p.a. to the claimants. The claimants, namely legal heirs of the deceased – patient Dinesh Jaiswal had alleged medical negligence and deficiency of service on the part of the Hospital and the Doctor in treating the patient.

Factual Analysis

Noticeably, the allegation against the hospital was of failure of the Doctor to take the follow-up action after surgery, a delayed decision to amputate the leg subsequent to re-exploration, and the alleged undue foreign visit of the Doctor.

Admittedly, the patient was in critical condition when the Doctor was consulted and surgery was thereafter performed within two days. Rejecting the claim of negligence, the Bench opined that non-working of the DSA machine and consequent delay in performing the test could not be said to be negligence on the part of the Doctor or the Hospital. The Bench remarked,

“DSA machine is a large, expensive and complicated machine which unfortunately developed certain technical problem at the time when patient had to be tested. Any machine can become non-functional because of innumerable factors beyond the human control as the machines involve various mechanical, electrical and electronic components.”

Since the DSA test of the patient was conducted in the Hospital prior to surgery was a proof that DSA machine was not dysfunctional for a long time. Moreover, the alternative process to determine the blood flow was carried out by angiography and the decision for re-exploration was taken. On the issue of non availability of operation theatres, the Bench held,

“No fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery. Operation theatres cannot be presumed to be available at all times.”

Therefore, the Bench opined that non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients was not a valid ground to hold the Hospital negligent in any manner. In respect of the allegation that doctors failed to amputate legs on time, the Bench observed that efforts were being made to save the limbs as amputation was considered as the last resort. The amputation was done as per the advice of Dr. Pachore, who was the expert in that subject. Similarly, with regard to the contention of the Doctor being on a foreign visit, the Bench held that mere fact that the Doctor had gone abroad could not lead to an inference of medical negligence as the patient was admitted in a hospital having specialists in multi-faculties.

Findings of the Court

Noticeably, it was not the case of the complainant that Doctor was not possessed of requisite skill in carrying out the operation. Also, there was no proof of negligence in performing the surgery or in the process of re-exploration. Therefore, the Bench expressed,

“In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable.”

Opining that there is a tendency to blame the doctor when a patient dies or suffers some mishap, the Bench stated that the doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.

“It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is expected to provide reasonable care which is not proved to be lacking in any manner in the present case.”

Decision

Spotting both legal and factual errors in the findings recorded by NCDRC, the Bench opined that the order holding the Hospital and the Doctor guilty of medical negligence were not sustainable in law. Consequently, the appeals were allowed. The order of the NCDRC was set aside and the complaint was dismissed.

However, the Bench directed that the sum of Rs. 5 lakhs disbursed to the complainant by virtue of interim order passed by the Court should be treated as ex gratia payment to the complainant and not to be recovered by either the Hospital or the Doctor.

[Bombay Hospital & Medical Research Centre v. Asha Jaiswal, 2021 SCC OnLine SC 1149, decided on 30-11-2021]


Kamini Sharma, Editorial Assistant has put this report together


*Judgment by: Justice Hemant Gupta

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,

“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”

The instant Public Interest Litigation was filed to challenge the stand of the office bearers of the resident association of the apartment complex of the petitioner. It was alleged that, by taking shelter under a clause in the bye-laws of the association that prohibits the residents from keeping pets of their choice in their individual apartments, the office bearers of the association had issued notices asking the residents to remove their pets from the premises.

The moot issue before the Bench was whether such stipulations in the bye-laws of resident associations or other agreements entered into by occupiers of residential apartments could withstand legal scrutiny under law?

Opining that the trajectory of animal rights jurisprudence in India had sadly been a retrograde one, the Bench stated that over the years we have virtually moved from an eco-centric worldview where animals, like humans were seen as living beings containing a life force and therefore morally worthy, to an anthropocentric one where humans alone are seen as morally worthy and privileged to enjoy the bounties that nature has to offer.

Prevention of Cruelty to Animals Act, 1960

In Animal Welfare Board of India v. A. Nagaraja,(2014) 7 SCC 547, the Supreme Court while deciding the legality of the practice of ‘Jallikattu’, had held that Prevention of Cruelty to Animals Act, 1960, is a welfare legislation, which has to be construed bearing in mind the purpose and object of the Act and the Directive Principles of State Policy. Since it is trite that welfare legislations have to be construed liberally in favour of the intended beneficiaries, it was found that any regulations or guidelines, whether statutory or otherwise, that purported to dilute or defeat the welfare legislation and the constitutional principles would need to be struck down by the courts so as to achieve the ultimate object and purpose of the welfare legislation. It was emphasized that the court has a duty under the doctrine of parens patriae to take care of the rights of animals, since they are unable to take care of themselves as against human beings.

In interpreting the provisions of the PCA Act, the Bench said,

“We have also to bear in mind the provisions of Article 48A of our Constitution that obliges the State to protect and make all endeavours to safeguard the forests and wildlife, as also Article 51A (g) of our Constitution that imposes a duty on every citizen of our country to protect and improve the natural environment and to have compassion for living creatures.”

Right to Rear Pets

Relying on Prakash v. State of Kerala, 2020 (2) KLT Online 1011, wherein the citizens’ choice to rear pets was held as traceable to their fundamental right to privacy under Article 21 of the Constitution, the Bench held that the impugned clauses in the bye-laws of resident associations, that seek to prevent owners/occupiers of residential apartments from keeping pet animals of their choice in the residential apartments owned/occupied by them, or accessing the elevators and common facilities in the apartment buildings, could not withstand legal and constitutional scrutiny.

Hence, holding that such clauses defeat the objectives of the PCA Act and the principles recognised under the Constitution, and have necessarily to be struck down as illegal and unconstitutional, the Bench expressed,
Fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they may come into operation in considering individual rights. They have been put there, as a matter of public policy and the doctrine of waiver can have no application to provisions of law, which have been enacted as a matter of constitutional policy.

Rights of Pet Owners and Competing Rights of Neighboring Residents

Opining that freedoms recognised in animals, and the co-relational right recognised in pet owners, is by no means absolute or unconditional and must necessarily be qualified by safeguards designed to protect the competing rights of others including the owners/residents of neighbouring apartments, the Bench clarified that to effectively prohibit the keeping and maintaining of pets in the residential apartments and appurtenant premises, the resident associations may stipulate reasonable conditions that must be adhered to by the owners/residents of individual apartments. The Bench also clarified that the judgment should be seen as one operating in rem.

Conclusion

In the backdrop of above, it was held that the impugned clauses should be treated as void and unenforceable in law. Consequently, resident owners’ associations and resident welfare associations were directed to desist from putting up notice boards and signposts prohibiting the keeping or entry of pets in their respective premises. [People for Animals v. State of Kerala, 2021 SCC OnLine Ker 4159, decided on 02-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioners: Sri.K.S. Hariharaputhran, Sri.S.R. Prasanth, Smt. Bhanu Thilak and Smt.Sruthi K.

For Animal Welfare Board of India: Sri.Asok M.Cherian, Addl. Advocate General,

For the State of Kerala: Sri.Shyam Prasanth, Govt. Pleader,

For Respondents: Sri.Jaishankar V.Nair, Cgc, Adv.Smt.Sayujya By Adv.Sri.K.R.Rajeev Krishnan

Amicus Curiae: By Sri.Keertivas Giri