Case BriefsHigh Courts

Madras High Court: N. Seshasayee, J., said that if the allegations made in the present petition were true then it exposes the callousness with which District Authorities deal with citizens’ right to property.

In the instant matter, it has been stated that some 16 years back, on 30-12-2004, a 4(1) notification was issued under the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 for acquiring the lands of the petitioners.

The above was challenged by the petitioners. Court had provided legal advice to the State Government/authorities concerned to go for fresh acquisition following the due process of law.  Till date, nothing has been done.

Further, it was added that the petitioner has been running from pillar to post to have their properties re-mutated in their names.

After no relief, petitioners approached the Court with the instant petition.

Bench expressed that, if the allegations were true then it only displays the apathy with which the Authorities deal with the right to property of the citizens of this country. They need to be told that right to property has a close nexus to right to life within the meaning of Article 21 of the Constitution of India.

By the inaction, the authorities had denied the right to these citizens at least for 10 years, and to that extent, they have transgressed the quality of life of the citizens of this country within the meaning of Article 21 of the Constitution of India.

D. Raja, Additional Government Pleader took notice for the respondent. He was directed to make a statement as to the correctness of the allegations made. The matter was posted for 11 -1-2021.

[Report will be updated when further order is available.]

[Jayalakshmi v. State of T.N., WP No. 181 of 2021, decided on 08-01-2021]

Case BriefsCOVID 19Supreme Court

Supreme Court: Concerned with the COVID-19 pandemic spreading like a wild fire despite Guidelines and SOPs in place, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has said that a strict and stern action should be taken against those who are violating the Guidelines and SOPs, whoever he may be and whatever position the violator is occupying.

On 27.11.2020, the Court took suo motu cognizance of the incident which happened in Rajkot, Gujarat on 26.11.2020 resulting in death of COVID patients in the COVIDHospital. The Court also took notice of earlier incidents of fire in Covid Hospitals.

Stressing upon the right to health being a fundamental right guaranteed under Article 21 of the Constitution of India which includes affordable treatment, the Court said that either more provisions are to be made by the State Government and the local administration or there shall be cap on the fees charged by the private hospitals, which can be in exercise of the powers under the Disaster Management Act.

“It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished.”

Asking States to rise to the occasion, the Court said that every State must act vigilantly and to work with the Centre harmoniously.

Further, people should understand their duty and follow rules very strictly. It is the duty of every citizen to perform their fundamental duties as guaranteed under the Constitution of India.

“By not following the Guidelines/SOPs issued by the State from time to time, such as, not wearing the masks, not keeping social distances, to participate in the gatherings and the celebrations without maintaining social distances, they are ultimately not damaging themselves but they cause damage to the others also. They cannot be permitted to play with the lives of the others and they cannot be permitted to infringe the rights of other citizens, like right to health guaranteed under Article 21 of the Constitution of India.”

Calling for strict implementation of the SOPs and the guidelines issued from time to time, the Court reiterated the following measures:

i) More and more police personnel shall be deployed at the places where there is likelihood of gathering by the people, such as, Food Courts, Eateries, Vegetable Markets (Wholesale or Retail), sabzi Mandies, bus stations, railway stations, street vendors, etc.

ii) As far as possible, unless must, no permission shall be granted by the local administration or the Collector/DSP for celebration/gathering even during the day hours and wherever the permissions are granted, the local administration/DSP/Collector/Police In-charge of the local police station shall ensure the strict 7 compliance of the Guidelines/SOPs. There should be a mechanism to check the number of people attending such function/gathering, such as, the particulars with respect to how many persons are going to attend the celebration/gathering, timings during which the celebration/gathering is to take place etc.

iii) There shall be more and more testing and to declare the correct facts and figures. One must be transparent in number of testing and declaring the facts and figures of the persons who are Corona Positive. Otherwise, the people will be misled and they will be under impression that everything is all right and they will become negligent.

iv) Whenever directions are issued under the Disaster Management Act directing the corporate hospitals/private hospitals to keep 50% or any other percentage free municipal beds, it must be strictly complied with and there shall be constant vigilance and supervision.

v) There shall be free helpline numbers to redress the grievances of common man, when there is noncompliance of the directions by the private hospitals/corporate hospitals.

vi) Curfew on weekends/night be considered by States where it is not in place.

vii) In a micro containment zone or in an area where number of cases are on higher side, to cut the chain, they should be sealed and there should be complete lockdown so far as such areas are concerned. Such containment areas need to be sealed for few days except essential services. The same is required to break the chain of virus spread.

viii) Any decision to impose curfew and/or lockdown must be announced long in advance so that the people may know and make provisions for their livelihood, like ration etc.

ix) Another issue is a fatigue of front row health care officers, such as, Doctors, Nurses as well as workers. They are already exhausted physically and mentally due to tireless work for eight months. Some mechanism may be required to give them intermittent rest.

On the issue relating to gatherings organised by Political parties in light on upcoming elections in various States, the Court directed all the States / Union Territories to issue necessary directions to ensure compliance of guidelines for conduct of General Elections/Bye-Elections during Covid-19

The Court said that guidelines although were issued by General Election/Bye Election, can be implemented by different States with suitable modifications with reference to Elections of other organisations to ensure safety of people in general from Covid-19.


Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Vineet Saran and Ajay Rastogi, JJ has allowed the 3 accused in the Dr. Payal Tadvi suicide case to complete their Post-Graduation from the same college.

“While balancing the competing claims, in our view, the Appellants must be allowed to go back to their courses of study otherwise the pendency of prosecution against them will add further penalty in the form of prejudicing their career. Any such adverse impact will negate their rights under Article 21 of the Constitution.”

Background of the case

Dr. Ankita Kailash Khandelwal, Dr. Hema Suresh Ahuja and Dr. Bhakti Arvind Mehare (the appellants), after completing MBBS course were pursuing Post Graduate Degree course (M.D.) in Gynaecology and Obstetrics in Topiwala National Medical College, Mumbai. Dr. Payal Tadvi was also student of Post Graduate Degree Course (M.D.) in Gynaecology and Obstetrics in the same college and was junior to the appellants. On 22.05.2019, Dr. Payal Tadvi committed suicide by hanging herself in her room and in the complaint lodged by her mother, it was stated that Dr. Payal Tadvi was harassed by the Appellants and that they were directly responsible for the suicide committed by her. Hence, a case was registered under Section 306 read with Section 34 IPC, under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989 and also under Section 4 of the Maharashtra Prohibition of Ragging Act, 1999, following which the Appellants were suspended by the Dean of the Hospital and the College. The Appellants were arrested on 29.05.2019.

“During the course of investigation, statements of more than 100 witnesses were recorded by the Crime Branch. After completion of investigation, charge sheet running into 1200 pages was filed and the matter is still at the stage of consideration whether the charges are required to be framed or not.”

In the present case, the Supreme Court was called upon to consider the competing claims in such a way that the individual rights of the Appellants to pursue their courses of study are secured and, at the same time, the conduct of prosecution also runs smoothly and without any interference and possibility of witnesses getting won over.

Key points considered by the Court

  1. The Appellants before have completed two years out of three years’ of course.
  2. The Appellants do not appear to be original residents of Mumbai and, as such, it cannot be said that they or their families have deep-rooted presence in Mumbai.
  3. As noticed in Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570 , if the law presumes an accused to be innocent till his guilt is proved, the Appellants as presumably innocent persons, are entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution and are entitled to pursue their course of study so long as exercise of said right does not hamper smooth conduct and progress of the prosecution.
  4. The stand taken by the State through the affidavit filed by the Deputy Secretary, Medical Education and Drugs Department, Government of Maharashtra, is that the Appellants can complete their Post Graduate course in future after conclusion of the trial. The Court, however, found this stand incorrect and said that even a convict is allowed to have academic pursuits while undergoing sentence and develop his potential as a human being to the fullest.

“The State apparatus must facilitate such pursuits rather than hamper any attempts in that behalf. The Appellants, therefore, by any standard, are entitled to continue their courses of study subject to the caveat expressed earlier.”

  1. It is a matter of record that the statements of all material witnesses have been recorded under Section 164 of the Code. In fact, the High Court went to the extent of ensuring that such statements are recorded so that witnesses could not be won over by the Appellants after they were enlarged on bail. Therefore, the apprehension that the witnesses could be influenced is not quite correct.
  2. The majority of witnesses to be examined by the prosecution appear to be in permanent employment of the College and the Hospital. It will be difficult to imagine that three lady doctors who do not otherwise belong to Mumbai will be able to influence any such witnesses by their mere presence in the College and the Hospital.
  3. The Appellants require to put in the last year of their course and the actual period that they need to undergo by way of training is only nine months.

“It is, thus, a question of putting those nine months in one scale and see whether the other scale becomes so weighty that the request to allow them to pursue their courses must be rejected.”


Considering the matter in its entirety and especially when the Appellants have to undergo training under the same guide and in the same institution where they were registered, the Court was of the opinion that ends of justice would be met if the Appellants are permitted to go back to the College and the Hospital to pursue their studies, subject to the following conditions:-

  1. The Appellants shall not, in any manner, influence or even attempt to influence any of the witnesses.
  2. The Appellants shall present themselves on each of the dates that the matter gets posted before the Trial Court, unless their presence is specifically exempted.
  3. If it is permissible, and subject to the appropriate permission from the Dean of the College and the Hospital, the Appellants may not reside in the quarters allocated to the residents in the College and the Hospital. However, if the registration as Post Graduate students requires the Appellants to be full time residents in the College and the Hospital, then the Appellants shall do so.
  4. The Appellants shall avail study leave so that their actual period of stay inside the College and the Hospital gets reduced to the maximum possible level.
  5. If there be any holiday or vacation and it is permissible for the residents to be outside the College and the Hospital, the Appellants shall avail that and keep themselves away from the Hospital and the College.
  6. If there be any untoward incident or even likelihood of such incident, the concerned authorities shall immediately report to the Police Station of the area and ensure that the life and liberty of everyone including the Appellants are well protected.

Making clear that the Appellants shall be permitted to pursue their courses of study regardless of the Order of Suspension dated 27.05.2019, the Court directed that

“This Order shall come into effect at the beginning of the second term of academic session 2020-2021 and if such term has already begun, it shall come into effect from 12.10.2020.”

[Ankita Kailash Khandelwal v. State of Maharashtra, CRIMINAL APPEAL Nos.660-662 OF 2020, 11.10.2020]

Hot Off The PressNews

The Commission took suo-motu cognizance of alleged suicide of 40 years old rape accused in police custody and directs issuance of notice to the Commissioner of Police, Delhi calling for a detailed report in the matter within two weeks. The Commission has noticed that this case of custodial death has not been reported by the authorities within 24 hours of its occurrence, the authorities are expected to explain the reasons.

All the reports, including the inquest and the post-mortem examination reports accompanying video CDs and medical report, of the deceased before being lodged in the lockup to be forwarded to the Commission. The Commission would also sought the details of the persons, who were put in the lockup in both the police stations for any reason, during the period the victim was lodged. It is expected that the magisterial enquiry in the matter will be completed without any further delay.

According to media report that the deceased was out on parole after being convicted in a case of robbery & murder and another of rape, a 40-year-old man allegedly raped a 14-year-old girl in an outer Delhi locality on 19th September,2020 and died allegedly by suicide hours later after being arrested for rape of minor.

It is also mentioned in the news report that the family members of the deceased saw policemen beating him in the police station. The Deputy Commissioner of Police, outer North District, Delhi, has stated history about deceased, being accused and convicted of robbery & murder and sexually assaulted a 10 years old boy. The deceased was released on parole on 02.02.2020 and later, his parole period was extended due to pandemic.

Also, the news report states that the single mother of rape victim was not at home when the incident took place. The deceased was arrested on the allegations of rape under POCSO Act and was kept in police custody. The nephew of the deceased has reportedly stated that when he reached the Swarup Nagar police station, he saw a group of policemen beating his uncle.

The next day, the family was informed about the incident of man hanging himself at Samaypur Badli police station. The Deputy Commissioner of Police has reportedly stated that the CCTV camera footage has been preserved and the guard on duty has been placed on suspension.

The police personnel have apparently failed to do their lawful duty at two stages, first when a person with a history of committing crime was out on parole; it was expected from the local police station to keep an eye on his activities through Beat Constable and other sources. Secondly, when such a person was kept in the police lock up, it was normal to be more vigilant to keep check on him during his stay inside the lock up.

The deceased was in the lawful custody of the police. “Right to life” of the deceased has been violated and the state cannot escape its liability. This is a case of violation of human rights.

Apart from this, considering the trauma suffered by the poor victim who is a minor girl, the Chief Secretary, Government of NCT of Delhi is directed to inform about her health condition as well as the relief, rehabilitation and counseling provided to her by the administration.


[Press Release dt. 21-09-2020]

Case BriefsCOVID 19Supreme Court

“A worker’s right to life cannot be deemed contingent on the mercy of their employer or the State.”

Supreme Court: The 3-judge bench of Dr. DY Chandrachud. Indu Malhora and KM Joseph, JJ quashed the Notification dated July 20, 2020 issued by the Labour and Employment Department of State of Gujarat under Section 5 of the Factories Act to exempt all factories registered under the Act “from various provisions relating to weekly hours, daily hours, intervals for rest etc. for adult workers” under Sections 51, 54, 55 and 56 till October 19, 2020.

“This Court is cognizant that the State of Gujarat aimed to ameliorate the financial exigencies that were caused due to the pandemic and the subsequent lockdown. However, financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy.”

The Court, hence, directed that overtime wages shall be paid, in accordance with the provisions of Section 59 of the Factories Act to all eligible workers who have been working since the issuance of the notifications.


On 17 April 2020, the Labour and Employment Department of the State of Gujarat issued a notification with the aim to provide “certain relaxations for industrial and commercial activities” from 20 April 2020 till 19 July 2020. On its lapse by the efflux of time, the State government issued another notification on 20 July 2020 . Similar in content, the new notification extended the exemption granted to factories from 20 July 2020 till 19 October 2020.


NOTE: Section 5 of the Factories Act provides that in a public emergency, the State Government can exempt any factory or class or description of factories from all or any of the provisions of the Act, except Section 67.

The Court noticed that the existence of a public emergency is a pre-requisite to the exercise of the power. Whether there exists a public emergency is not left to the subjective satisfaction of the state government. The absence of the expression “subjective satisfaction” in Section 5 is crucial.

“The existence of a public emergency must hence be demonstrated as an objective fact, when its existence is questioned in a challenge to the exercise of the power. Left to itself, the expression ‘public emergency’ may have a wide and, as we say in law, an elastic meaning.”

Under Section 5 a situation can qualify as a public emergency’, only if the following elements are satisfied:

  • there must exist a “grave emergency”;
  • the security of India or of any part of its territory must be “threatened” by such an emergency; and
  • the cause of the threat must be war, external aggression or internal disturbance.

It was, hence, noticed,

“The co-relationship between the cause and effect must exist. Implicitly therefore, the statutory provision incorporates the principle of proportionality.”


The power under Section 5 of the Factories Act can be exercised in a “public emergency”. The explanation states that to constitute a public emergency, there must be a grave emergency. The emergency must be of such a nature as to threaten the security of India or a part of its territory. The threat to the security of India or a part of the territory must be caused by war, external aggression or an internal disturbance. The expression ‘internal disturbance’ cannot be divorced from its context or be read in a manner divorced from the other two expressions which precede it. They are indicative of the gravity of the cause which threatens the security of India or a part of its territory. An internal disturbance must be of a similar gravity.

“… it is necessary to evaluate whether a situation of internal disturbance threatens the security of India, or a part of its territory to qualify as a ‘public emergency’. In the absence of any one or more of the constituent elements, the conditions requisite for the exercise of statutory power will not exist.”


“The brunt of the pandemic and of the lockdown has been borne by the working class and by the poorest of the poor. Bereft of social security, they have no fall back options.”

The Court noticed that global pandemic caused by COVID-19 is an unprecedented situation with which countries all over the world are grappling. In India, when the Central Government imposed a nationwide lockdown to take effective measures to contain the spread of COVID-19, there was a widespread migration of labour from the cities, where all avenues for work had closed. There was an unprecedented human migration, countless of the marginalized on foot, to rural areas in search of the bare necessities to sustain life. There has been a loss of incomes and livelihood.

“The respondent has in exercise of its powers under Section 5 of the Factories Act issued the impugned notifications purportedly to provide a fillip to industrial and commercial activities.”

The Court said that even if it accepted the argument of the State that the pandemic has resulted in an internal disturbance, it cannot be said that the economic slowdown created by the COVID-19 pandemic would qualify as an internal disturbance threatening the security of the state.

“The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005.12 However, it has not affected the security of India, or of a part of its territory in a manner that disturbs the peace and integrity of the country.”

The economic hardships caused by COVID–19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law.

“Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist under Section 5. That is absent in the present case.”

It was further noticed that the impugned notifications do not serve any purpose, apart from reducing the overhead costs of all factories in the State, without regard to the nature of their manufactured products. It would be fathomable, and within the realm of reasonable possibility during a pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would be exempted by way of Section 65(2) of the Factories Act, while justly compensating the workers for supplying their valuable labour in a time of urgent need.

“A blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalize on the pandemic to force an already worn-down class of society, into the chains of servitude.”


The Indian Constitution is born from a transformative vision which aims to achieve social and economic democracy. Labour welfare is an integral element of that vision.The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed.

“It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the state administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats.”

The principle of paying for overtime work at double the rate of wage is a bulwark against the severe inequity that may otherwise pervade a relationship between workers and the management.


“Ideas of ‘freedom’ and ‘liberty’ in the Fundamental Rights recognized by the Constitution are but hollow aspirations if the aspiration for a dignified life can be thwarted by the immensity of economic coercion.”

The Factories Act is an integral element of the vision of state policy which seeks to uphold Articles 38,22 39,23,24 and 25 of the Constitution. It does so by attempting to neutralize the excesses in the skewed power dynamics between the managements of factories and their workmen by ensuring decent working conditions, dignity at work and a living wage.

The Court said that the Constitution allows for economic experiments. Judicial review is justifiably held off in matters of policy, particularly economic policy. But the Directive Principles of State Policy cannot be reduced to oblivion by a sleight of interpretation.

“To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them.”

The notifications, in denying humane working conditions and overtime wages provided by law, are an affront to the workers’ right to life and right against forced labour that are secured by Articles 21 and 23 of the Constitution.


The Court quashed the Notifications and said that Section 5 of the Factories Act could not have been invoked to issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an ‘internal disturbance’ of a nature that posed a ‘grave emergency’ whereby the security of India is threatened. In any event, no factory/ classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an ‘internal disturbance’ causes a grave emergency that threatens the security of the state, so as to constitute a ‘public emergency’ within the meaning of Section 5 of the Factories Act.

The notifications in question legitimize the subjection of workers to onerous working conditions at a time when their feeble bargaining power stands whittled by the pandemic.

“Clothed with exceptional powers under Section 5, the state cannot permit workers to be exploited in a manner that renders the hard-won protections of the Factories Act, 1948 illusory and the constitutional promise of social and economic democracy into paper-tigers. It is ironical that this result should ensue at a time when the state must ensure their welfare.”

[Gujarat Mazdoor Sabha v. State of Gujarat, 2020 SCC OnLine SC 798, decided on 01.10.2020]

Hot Off The PressNews

The National Human Rights Commission has taken suo motu cognizance of media reports about the death of eight persons and over five thousand others falling sick due to leakage of styrene gas in Vizag District of the State of Andhra Pradesh early morning today. The leakage of the gas has reportedly affected people within a radius of about 3 kilometers. Many people could be seen lying on roads while some complained of difficulty in breathing and rashes on their bodies.

The Commission has observed that though prima-facie, as of now, there are no reports regarding human error or negligence but the fact that so far at least 8 innocent citizens have lost their lives and thousands have fallen sick, is indeed a serious issue of violation of human rights. Right to life of the victims has been grossly violated. At a time when the human lives across the country are at stake due to spread of COVID-19 virus and everyone is forced to stay indoor, the gruesome tragedy has come as bolt from the blue for the people.

Accordingly, the Commission has issued a notice to the Chief Secretary, Government of Andhra Pradesh calling for a detailed report in the matter including status of the rescue operation, medical treatment provided to the people fallen sick and relief and rehabilitation provided by the state authorities to the affected families.

A notice has also been issued to the Director General of Police, Andhra Pradesh to inform within four weeks about registration of FIRs in the matter and status of the investigation being conducted.

The Commission also considered it appropriate to bring the matter to the notice of the Union Ministry of Corporate Affairs and has asked through its Secretary to examine whether the norms laid down under relevant provisions of the law are being implemented at the particular industrial unit and to submit a report to the Commission. Responses from all the these authorities are expected within four weeks.

As per early reports in the media, the incident has occurred at a chemical plant at LG Polymers Industry at RR Venkatapuram near Naiduthota area of the district around 3.00 AM today on 7th May,2020. The unit manufactures polystyrene and its co-polymers. An evacuation drive has reportedly been started by the police authorities and the District Collector is monitoring the situation. The NDRF and SDRF teams are also deployed in the area as mentioned in the news report.

National Human Rights Commission

[Press Release dt. 07-05-2020]

COVID 19Hot Off The PressNews

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

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

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

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

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

COVID 19Hot Off The PressNews

Supreme Court:  The bench headed by CJI SA Bobde has slated for April 13 hearing on a public interest litigation seeking immediate direction for the payment of basic minimum wages to migrant workers, adversely affected by the COVID-19 lockdown.

During the hearing through videoconferencing, the bench said that it received the affidavit filed by the Central government this morning and slated the hearing for April 13.

The petition was filed by social activists Harsh Mander and Anjali Bhardwaj through senior advocate Prashant Bhushan. The Court asked the Bhushan to go through the affidavit in the meantime.

Bhushan told the court that more than four lakh migrant workers are living in shelter homes and are making a mockery of social distancing.

“If they’re kept in the shelter homes, even if one person has coronavirus they will all get infected,”

Adding that many people will die by Monday, Bhushan said,

“They should be allowed to go back to their own homes. Families need money for survival because they are dependant on the wages,”

Solicitor General Tushar Mehta said that the Central government is on the top of this situation and that it is looking into the complaints received. A call center had also been set up to address and resolve issues, he added. Mehta said that the Ministry of Home Affairs is monitoring the helpline daily.

The PIL sought an immediate direction to the Central government for payment of basic minimum wages to migrant workers and said that the lockdown, imposed in a bid to prevent the spread of coronavirus in the country, discriminated among the citizens.

Last week, the bench of L. Negeswara Rao and Deepak Gupta, JJ had issued a notice to the Central government on a petition seeking immediate direction for the payment of basic minimum wages to migrant workers, adversely affected by the COVID-19 lockdown.

(Source: ANI)

Case BriefsCOVID 19Supreme Court

“Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”

Supreme Court: Noticing that the issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19), the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ has directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.

The said committee would comprise of:

  • Chairman of the State Legal Services Committee,
  • Principal Secretary (Home/Prison) by whatever designation is known as,
  • Director General of Prison(s)

Giving example, the Court said that the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

The Court, however, left it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.

The Court, further, directed,

  • prison specific readiness and response plans must be developed in consultation with medical experts. “Interim guidance on Scaling-up COVID-19 Outbreak in Readiness and Response Operations in camps and camp like settings” jointly developed by the International Federation of Red Cross and Red Crescent (IFRC), International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and World Health Organisation (WHO), published by Inter-Agency Standing Committee of United Nations on 17 March, 2020 may be taken into consideration for similar circumstances.
  • monitoring team must be set up at the state level to ensure that the directives issued with regard to prison and remand homes are being complied with scrupulously.
  • the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes.

“Looking into the possible threat of transmission and fatal consequences, it is necessary that prisons must ensure maximum possible distancing among the prisoners including undertrials.”

  • the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner.
  • there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS,  2020 SCC OnLine SC 344, order dated 23.03.2020]

Also read:

Coronavirus (COVID-19)| No in-person hearings in SC till further notice; Extremely urgent matters to be heard via video conference

Coronavirus (COVID-19)| SC restricts it’s functioning to avoid mass gatherings in Courts; Only urgent matters to be heard

Coronavirus (COVID-19)| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

COVID-19| SC takes suo motu cognisance of nonavailability of mid-day meals for children due to Coronavirus shutdown

COVID-19| SC takes suo motu cognisance of overcrowding and infrastructure of prisons in the wake of Coronavirus

Case BriefsSupreme Court

Supreme Court: Irked over repeated failures of the Centre and States to file their replies, the bench of N V Ramana, Ajay Rastogi and V Ramasubramanian, JJ came down heavily and imposed cost of Rs. 5 lakh on them for not complying with its directions to file their affidavits on a PIL seeking setting up of community kitchens across the country. During the hearing, the Court said if the Union of India and the States file their affidavit in the next 24 hours then they will have to pay only Rs. 1 lakh fine, whereas those who still fail to submit it by then will have to pay Rs 5 lakh fine.

The Court said that five states, Punjab, Nagaland, Karnataka, Uttarakhand and Jharkhand, and Union Territory of Andaman and Nicobar, who have filed their responses on the PIL filed by Anun Dhawan, will not pay any fine.

The Court said that,

“It is unfortunate to note that even after lapse of considerable period of time, there is no proper response from the State Governments.”

Advocate Ashima Mandla, appearing for the petitioner said that five months have passed since the Court had issued notice and except for five states and one union territory, no other states and UTs have filed their response. She said that 69% of children under the age of five who have lost their lives are due to malnutrition and it is high time that States take steps to set up community kitchens.

Additional Solicitor General Madhavi Divan, appearing for the Centre sought some more time to file response to the PIL. The bench, however, posted the matter for further hearing on February 17 and asked the Centre and state to file their responses at the earliest with the cost.

The Court had on October 18 favoured setting up of community kitchens, saying the country needs this kind of system to tackle the problem of hunger. It had issued notices to the Centre and all states seeking their responses on a PIL seeking directions to all the states and union territories (UTs) to formulate a scheme for community kitchens to combat hunger and malnutrition.

The plea had claimed that many children, under the age of five, die every day due to hunger and malnutrition and this condition was violative of various fundamental rights, including the right to food and life of citizens. The PIL, filed by social activists Anun Dhawan, Ishann Dhawan and Kunjana Singh, had also sought a direction to the Centre for creating a national food grid for people falling outside the purview of the public distribution scheme.

It had also sought issuance of an order to the National Legal Services Authority (NLSA) for formulating a scheme to mitigate hunger-related deaths.

The plea referred to the state-funded community kitchens being run in Tamil Nadu, Andhra Pradesh, Uttarakhand, Odisha, Jharkhand and Delhi that serve meals at subsidised rates in hygienic conditions.

The plea also referred to the concepts of soup kitchen, meal centre, food kitchen or community kitchen, in other countries, where food is offered to the hungry usually for free or sometimes at below-market price.

The petition, filed through advocates Ashima Mandla and Fuzail Ahmad Ayyubi, had said that the Centre and its various ministries have initiated and implemented various schemes to combat hunger, malnutrition and the resulting starvation, although in reality, effective implementation of the schemes was “unclear and fairly limited”.

The statistics on starvation deaths in the country are unavailable and starvation as the cause of death can only be ascertained upon autopsy after death, the plea said, adding that global agencies report that more than three lakh children die every year in India because of hunger, whereas 38 per cent below the age of five are stunted.

“Implementation of community kitchens funded by state or in association with corporate social responsibility by a public-private partnership (PPP) may be implemented to complement the existing schemes,”

The petition also said that a 2010 report by the World Food Programme on the state of food insecurity in India indicates that increasing urban inequality, significant under-investment in urban health and nutrition infrastructure, workforce in casual or contract employment or even less remunerative self-employment, growth of slums and slum population lacking in most basic health and hygiene infrastructure has resulted in a permanent food and nutrition emergency.

[Anun Dhawan v. Union of India, 2020 SCC OnLine SC 165, order dated 10.02.2020]

(With inputs from PTI)

Hot Off The PressNews

Supreme Court: The bench Arun Mishra and Deepak Gupta, JJ has allowed construction activity in the Delhi-NCR region between 6 am and 6 pm, partially lifting its complete ban on it.  The said order of the Court came after Additional Solicitor General A N S Nadkarni informed it that the Centre has constituted a high-level committee following the apex court’s direction to examine the feasibility of using technology like smog towers to combat air pollution.

The bench also directed the governments of Uttar Pradesh, Punjab and Haryana to furnish before it the updated report on stubble burning up to December 11.

The court had on November 25 directed the Centre to constitute a high-level committee within three days to consider and work out modalities regarding other technologies to help combat pollution, and said that a report be filed before it within three weeks on this issue. The various direction that the Court had earlier issued are as follows:

  • It had asked the Delhi government to apprise it of the steps taken with regard to anti-smog gun which sprays atomized water 50 metres in the air to bring down pollutants and had said CPCB should be associated on the issue of anti-smog guns.
  • The court had asked all the states to explain within six weeks as to why they should not be made liable to pay compensation to persons affected by bad air quality saying it is their bounden duty to provide basic civic amenities, clean air and drinking water to citizens.
  • The court had asked the Centre and the Delhi government to sit together and take decision within 10 days with regard to installation of smog towers in Delhi-National Capital Region (NCR) which would help in combating air pollution.

The Court had said that “the right to life of human is being endangered” by the bad air quality and water pollution and the states have to deal with the situation as “life span is being shortened”. The Court also took exception that states and Centre were indulging in “blame game” over crucial issue of air and water pollution and asked them to work in tandem for welfare of the people. It said despite various orders being passed by the top court from time to time in the pollution matter, the situation has worsened over the years and authorities have to be blamed as they have not performed their duties.

Terming the situation of stubble burning in Punjab, Haryana and Uttar Pradesh as “alarming”, the Court noticed that despite its order prohibiting it, burning of crop residues in these states have increased. It, hence, pulled up the chief secretaries of Punjab, Haryana and Uttar Pradesh for their failure to prevent instance of stubble burning despite the Court’s order. It said,

“Only policy making to deal with pollution is not required, the real issue needed was implementation at the ground level.”

The bench is due to take up the pollution related matters on December 16.

(Source: PTI)

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has expressed serious concern over the rising incidents of sexual assault and, taking suo motu cognizance of media reports in this regard today, issued notices to Centre, States and UTs calling for reports on SOP to deal with such cases and use of Nirbhaya Fund.

The Commission has observed that there is a dire need for all the stakeholders to come together to work jointly to get rid of this evil.

Issuing the notices, the Commission has further observed that the largest democracy of the world, which has adopted the longest written constitution and has a rich cultural heritage of gender equality, is today being criticized for having the most unsafe environment for women. The incidents of rapes, molestation, gender-based discrimination and other such atrocities against women have, unfortunately, become routine media headlines.

The Commission has said that these incidents indeed involve violations of the human rights of the victims. It is well awake to the seriousness of the issue. Being the apex body for the protection and promotion of human rights at the national level, it considers its intervention into the matter necessary to understand as to where the state agencies and other stakeholders are lacking on their part and what can immediately be done.

There have been constitutional and statutory provisions to ensure that the women are not subjected to any kind of discrimination and harassment but there is an alarming trend indicating that things are getting worse amounting to a violation of right to life, liberty, dignity and equality of women across the country.

Recently, a number of such cases have been reported by the media wherein, the women have been subjected to sexual abuse, utmost cruelty and inhuman treatment by the perpetrators showing grave disrespect towards law. There have been instances where the incidents have been reportedly, occurred due to gross negligence by the administration and the law enforcing public agencies.

In Telangana, a 26-year-old veterinarian was reportedly, brutally gang-raped and killed by four accused persons. The culprits not only outraged the dignity of the victim but also killed her and burnt her body. As per media reports, the brother of the victim had approached the Shamshabad police station at around 11.00 PM reporting that his sister is unreachable for the last two hours but his worries were shrugged off by the police personnel and after occurrence of the incident, the FIR was also registered after delay. Though the accused have been arrested but had the timely action been taken by the police, the gruesome incident could, perhaps, be stopped. In another incident, a 25-year-old law student was also reportedly gang-raped by a group of armed men, in Ranchi, Jharkhand.

In another media report, carried today on 02.12.2019, a 6-year-old girl was and strangled with her school belt in Tonk district of Rajasthan on 01.12.2019. The victim was reportedly missing since the previous day. The police have not made any arrest in this case. There have been number of such cases occurred across the country during the recent past. All these incidents have indicate that making stringent laws and funds for the victims alone cannot change the scenario unless the police officers are specially trained and their attitude towards women’s issues also changes.

There seems to be a lack of “Standard Operating Procedure” (SOP) to deal with such kind of incidents and panic situations. It is alleged that whenever anyone goes to a police station for help after disappearance a major or minor female member, the answer of the police officials generally remains that she might have gone with someone. This humiliating and stereotype mindset is needed to be changed. There is need to effectively address the core issue as this serious challenge has not only created an atmosphere of fear and uncertainty in our society but has also badly tarnishing the image of our country.

Through media reports, the Commission has also come to know that the amount made available under the “Nirbhaya Fund” has been reduced and also not being appropriately utilized by the state governments. A news report, carried today on 2.12.2019 reveaLS that since the year 2014, the UT of Chandigarh has been given a sum of rupees 7.46 crores under Nirbhaya Fund but the administration has spent only 2.60 crore out of it. Mere announcements of schemes, making of laws and formation of funds are not going to serve the purpose unless these are properly implemented.

The Commission, knowing that the subject is being looked into by various fora, has issued notices to the Chief Secretaries of all the State and UTs calling for a report within 6 weeks about the status of Nirbhaya Fund in their states including the details about availability of the fund and the money spent, during last 3 years.

The Commission has also issued notices to the Directors General of Police of all the states and UTs calling for their response within 6 weeks about the Standard Operating Procedure and the best practices adopted by them to deal with the matters relating to sexual abuse and atrocities against women including the details of the action taken against the police officers/officials found insensitive and guilty of negligence towards issues related to women.

The Commission has also considered it necessary to call for a detailed from the Secretary, Union Ministry of Women and Child Development, giving details about the schemes/guidelines initiated by the union government and status of their implementation, including Nirbhaya Fund, by the States/UTs. The response is expected within 6 weeks.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram comprising of Justice Adarsh Kumar Goel (Chairperson) and S.P. Wangdi (Judicial Member), Justice K Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) while addressed an original application in respect to the problem of contamination of groundwater and availability of clean drinking water.

The present application has been filed with a major concern of the contamination of groundwater due to arsenic and availability of clean drinking water in certain districts of Uttar Pradesh and other similarly affected areas in the country including in Assam, Bihar, Jharkhand, Karnataka, Punjab and West Bengal is the issue for consideration.

After considering the matter for more than three years, tribunal undertook an extensive review on the subject and noted the gravity of situation shown by high arsenic content leading to serious diseases and environmental damage in several districts of Uttar Pradesh.

Team of Ministry of Environment, Forest and Climate Change (MoEF&CC) found a number of deaths from the diseases on account of the problem. Ministry of Drinking Water and Sanitation also took cognizance and identified mitigation measures. Ministry of Agriculture also identified certain steps to be taken. The matter was further discussed in Parliament as well and a report for the same was submitted.

Tribunal noted that the matter was highlighted in news item in Hindustan Times under the heading “Arsenic contamination on the rise: 1 lakh dead, 3 lakh suffering”. After the said, a joint inspection report was filed before the tribunal by the Central Pollution Control Board, MoEF&CC, CWGA and Uttar Pradesh Pollution Control Board to the effect that Arsenic Removal Units were not working properly. Tribunal directed dismantling of hand pumps with concentration of Arsenic beyond permissible limits.

The tribunal noted that the subject of regulation and control of groundwater management have been held to be covered by Entry 13 of List I as these subjects covered by international treaties.

Having regard to the fact that more than 1 Crore population of the country is affected by the Arsenic contaminated water which is carcinogenic, issue of making available potable drinking water to the said population is an inalienable constitutional duty for which the Central Government, as well as the States, have to make all possible efforts.

“Arsenic is one of major public health concern identified by WHO. Under the new 2030 Agenda for Sustainable Development, the indicator of “safely managed drinking water services” calls for tracking the population accessing drinking water which is free of faecal contamination and priority chemical contaminants, including arsenic.”

Further, the bench stated that the existing plan of action needs to be relooked as it has quite relaxed timelines and the strategies needs to redrawn by a suitable mechanism because of urgency in the matter. This needs to be monitored by Central Government on war footing to enforce Fundamental Right to access potable drinking water which is part of ‘Right to Life’ under the Constitution of India. [Sunita Pandey v. Union of India, 2019 SCC OnLine NGT 277, decided on 11-09-2019]

Op EdsOP. ED.


On the whole technology has been a powerful force in the development of civilisation, all the more so as its link with science is forged. In today’s world, technology is a complex social enterprise that includes research, design and crafts but also manufacturing. Technology extends our abilities to change the world. We use technology that tries to change the world to suit us better. But the result of changing the world is often complicated and unpredictable. They can include unexpected benefits, costs, and unexpected risks.

The commercialisation of pharmaceuticals has led the corporation to seek patent protection for their pharmaceuticals inventions. Pharmaceuticals help mankind in manifold respects. In the areas of health sector due to inventions made by the pharmaceutical industries, the human life and standard of living has improved alarmingly. However, in the modern intellectual property era, where it gives exclusive right to inventor to exploit his invented technology, it is becoming a cost affair concept and it is not in the hands of a common middle class man.

Intellectual property law regulates the creation, use and exploitation of mental as well as the creative labour.[1] Patent is one of the prominent among all the intellectual property rights. In the modern scientific era, patent is proved to be most used or abused intellectual property. It is expected that grant of patent will reward to original creativity and would thereby foster advanced research and development leading to further inventions and progress.  However, more often the patent rights may be subject to abuse by the patent owner.[2]

Drug patenting is the grant of negative right to the holder which excludes others from right of manufacturing of that drug. Monopoly rights granted by IPRs were regarded as crucial to prevent the developing countries from further undergoing the “catching-up” process towards industrialisation based on imitating and copying technologies, as the developed countries themselves had done. In other words, IPR protection was a tool to guarantee the comparative advantage that had so far ensured the developed countries technological supremacy.[3]

Affluent societies are spending vast sums of money understandably on the search for new products and processes to alleviate suffering and to prolong life. In the process, drug manufactures have become a powerful industry. The situation was furthermore complicated after the TRIPS agreement which grants patent to both the product as well as the process as contrast to earlier process protection. The product patent will grant absolute protection of the product while process patent will provide protection to the technology and method of manufacture. Prior to the implementation of the TRIPS agreement various developing countries did not grant patent protection to pharmaceuticals as it was incumbent for the promotion of access to drugs at competitive price. Assenting to TRIPS provisions by recognising and strengthening protection of IPRs on pharmaceutical products and processes will lead to many hardships for developing countries. Implementation of the TRIPS agreement will consequently lead to high drug prices, low access and a weakening of national pharmaceutical industries. The current legal scenario is evidently helping the pharmaceutical industry to flourish in India.

The author opts for the study of Indian patent law as how it is in conflict as well as in sync with the international agreement of TRIPS, that is, the Agreement on Trade-Related Aspects of Intellectual Property Rights, signed by the members of World Trade Organisation. Keeping in view the international obligations, the researcher will address two major issues, what are the repercussions of complying TRIPS on pharmaceutical patenting and the repercussions of TRIPS on public access to health.

Public Health VIS-à-VIS Pharmaceuticals Patent

(i) Right to Health as Fundamental Rights

It is also pertinent to note that Article 21 of our Constitution guarantees right of life, which further includes right to good health. The courts through judicial pronouncements concluded that right to life includes right to health and “access to medical treatment” as well.[4] The Government must make every effort to provide access to the life saving drugs to its citizens.[5] The State is under constitutional obligation to see that there is no violation of fundamental right of any person.[6] The Preamble and the Directive Principles of State Policy (DPSP) of our Constitution need policies in order to balance social and economic rights. So, while formulating patent legislations the balance must be made between public health and the economic interests of pharmaceutical industries.

According to the Ayyangar Committee Report[7], India being a developing nation, grant of patent confers monopolistic rights which will deny major population of our nation from access to medicines. So policies which grant monopolistic rights violate the Preamble and also the fundamental rights guaranteed under Article 21 of our Constitution. Meeting the needs of its population came before meeting the needs of foreign innovators. As quoted by the former Prime Minister of India, Indira Gandhi in the World Health Assembly in 1982, The idea of a better ordered world is one in which medical discoveries will be free of patents and there will be no profiteering of life and death.

Affluent societies are spending vast sums of money understandably on the search for new products and processes to alleviate suffering and to prolong life. In the process, drug manufactures have become a powerful industry. My idea of a better ordered world is one in which medical discoveries would be free of patents and there would be no profiteering from life or death.

(ii) Patent and  Right to Health

Health is a basic human right and access to medicine is a basic tool to ensure health. However, the right as well as the means to secure the same are facing a major issue in the current regime. Pharmaceutical patent play a major role in access to medicine in order to guarantee health.

It has been argued that a fully functional patent system would result in an inverse relationship between the cost of such products and affordability of access. This has led some to suggest that the global intellectual property system may be facing a crisis of public legitimacy as patents may be blocking the access of ordinary people to medicines and their “right to health”.

Impact of TRIPS on Pharmaceutical Patents

One of the significant and fundamental changes in the global trade policy is set out by the Uruguay Round of trade negotiations, with the commitment by the World Trade Organisations member to comply with the requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which lays down minimum standard of protection for intellectual property rights and their enforcement, which are mandatory for WTO member countries for implementation. The TRIPS agreement is the most comprehensive multilateral agreement on intellectual property which in its clear terms specifies the idea of patentable subject-matter along with substantive and procedural aspects of patentability.[8]

(iii) Objectives of TRIPS

The prime objective of TRIPS is the protection and enforcement of intellectual property rights which will contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) attempts to strike a balance between the long-term social objective of providing incentives for future inventions and creation, and the short-term objective of allowing people to use existing inventions and creations.

The introduction of patent to pharmaceutical industries has provided incentive to the private sector in the area where they are granted.  In the pharmaceutical sector, the private health sector finds them indispensable.[9] One of the advantages for grant of patent to pharmaceutical industries is that it motivates the private players to indulge themselves more in research and development for finding cures for the disease prevalent in developing countries.[10] Invention and creativity in themselves should provide social and technological benefits. Intellectual property protection encourages inventors and creators because they can expect to earn some future benefits from their creativity. This encourages new inventions, such as new drugs, whose development costs can sometimes be extremely high, so private rights also bring social benefits.[11] With such broad objective in consideration, the pharmaceutical patents was made compulsory under TRIPS agreement in member countries of WTO.

(iv) TRIPS not a Beneficial Bargain

However, contrary results have been manifested. Instead of welcoming TRIPS regulation, developing countries have objected the implementation of the same. The developing and the least developed countries did not consider TRIPS to be a favourable negotiation as regime will consequently hike the prices of drugs which will ultimately make the drugs inaccessible to their citizens. Although TRIPS agreement may also lead to increased research on diseases common in developing countries, these benefits can be obtained in alternative ways, without high costs. Thus, TRIPS agreement is not in the national interest, hence it is not a beneficial bargain.[12]

The legislature enacted Patents Act, 1970 which significantly favoured the Indian player as well the poor sections of the society, as the Indian legislation only recognised process patent and not the product patent. This also resulted in the decline of share of multinational firm as the pharmaceutical companies based on developing countries were expecting an increase in sales and profits by the grant of worldwide patent. Pursuant to this, the patent applications filed by foreign entities decreased from 4248 in 1968 to 1010 in 1979.[13] It also resulted in the rise of generic drug manufacturing industry and a reduction in drug prices in India.[14] The domestic players were granted a rapid boost to reproduce and market the newly invented drugs in the Indian market by merely changing the process of production. With such prevailing circumstances, Indian pharmaceutical managed to produce drugs at lower price, thus making the drugs available for the poor sections of society.

However, this smooth functioning of system was interfered with TRIPS agreement. All the countries who are the members of WTO were compelled to implement TRIPS as a result of the dispute settlement body of WTO. India was initially reluctant but India was forced to implement the same, when US complained against India that it was not implementing the TRIPS properly by not providing an appropriate procedure for the filing of patent application and secondly, by not providing the exclusive marketing rights. Consequently, India changed the patent law in 2005. This instance manifests that complying with TRIPS is not a choice rather it is a matter of compulsion.

During the pre-TRIPS regime the patent protection granted was relatively less stringent which was far better as the accessibility and availability of medicine was not a problem but the post-TRIPS scenario, the medicines being priced beyond the reach of the poor, working as detrimental to their interest and causing a serious loss as now they cannot obtain new medicines that they could have in the pre-TRIPS era.

Ensuring Right To Health under Current Patents Regime 

Although, TRIPS is not seen as a beneficial bargain, it cannot be criticised thoroughly also. Various clauses of the agreement (Articles 7, 8, 27, 30 and 31) reflects liberal treatment towards the developing nations and seeks to achieve a balance between rights and obligations thereby driving a way towards public policy goals including access to essential drugs.

(i) Article 7 of TRIPS tries to maintain the balance between innovation and social and economic welfare. Intellectual property rights should be regulated in such a way that it should contribute to the promotion of technological innovation, and similarly, it should be transferred in a manner conducive to the social and economic welfare.

(ii) Article 8 provides autonomy to the States that they can adopt measures necessary to protect public health and to promote the public importance in sectors of vital importance to their socio-economic and technological development.[15]

(iii) Article 27(2) allows a State to restrict the patentability of inventions on various grounds such as, threat to human life or health.

(iv) Article 30 of Trips provides that the WTO members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with the normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, provided that the legitimate interests of third parties have been taken into consideration.

(v) Article 31 lays down a list of provisions applicable in all situations where the law of a WTO Member country permits use of the subject-matter of the patent without authorisation of the patent-holder.[16]

TRIPS and Patent Exclusions

The Patents Act should interpret the concept of exclusions from patentability through the literal rule of interpretations. The literal rule always suggests the human right dimension to the exclusions. The ideals of public health and social welfare in consonance with advancement in technology enshrined in the Constitution is given due importance.

(i) Compulsory Licensing

With the introduction of a product patent regime in 2005 for pharmaceuticals and the consequent increase in patent scope thereof, concerns of compulsory licensing have assumed a great significance in India.[17] Compulsory licensing is defined generally as the granting of a licence by a Government to use a patent without the patent-holder’s permission.[18] Compulsory licence is an involuntary contract between a willing buyer and an unwilling seller imposed or enforced by the law.[19] The TRIPS agreement allows compulsory licensing as part of the agreement’s overall attempt to strike a balance between promoting access to existing drugs and promoting research and development into new drugs. But the term “compulsory licensing” does not appear in the TRIPS agreement. Instead, the phrase “other use without authorisation of the right holder” appears in the title of Article 31. Compulsory licensing is only part of this since “other use” includes use by Governments for their own purposes. Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking into account the legitimate interests of third parties.[20] Compulsory licensing is when a Government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patent-protected invention itself. It is one of the flexibilities in the field of patent protection included in the WTO’s agreement on intellectual property — the TRIPS.[21]

The effort of the Government of India to provide a National IPR Policy in 2016 has provided an impetus in enabling “strong and effective IPR laws, which balance the interests of rights owners with larger public interest”.[22]

Further, amendment of 2017 enlarges the scope of compulsory licence as, if any developing country needs to turn to the option of compulsory licensing to produce needed affordable pharmaceuticals, producers overseas can step up and supply that need, even if a compulsory licence is needed in that country.  It is therefore a compulsory licence especially for production in one country, for export, to meet the public health needs of one or more other countries.[23] The rational justifying the idea of compulsory licence is that, patent so granted should not impede protection of public health and should act as an instrument to promote public interest in the sectors of vital importance for socio-economic and technological development of the nation. Patents are granted to make the benefit of the patented product at a reasonable price that is affordable to a large section of public. To access the benefits of patent compulsory licence can be granted.

(ii) Indian Legislation

Provisions related to the grant of compulsory licence in India are prescribed under Sections 82-94 (Chapter XVI) of the Patents Act, 1970, and Rules 96-102 (Chapter XIII) of the Patents Rules, 2003.[24] The Controller of Patents can issue compulsory licence under the following situations: compulsory licence under Section 84; licensing of related patents under Section 91; special provision for compulsory licences on notifications by Central Government under Section 92; and, compulsory licence for export of patented pharmaceutical products in certain exceptional circumstances under Section 92-A.

It is to be noted that Natco case[25] has pioneered a revolution in Indian pharmaceutical industry on working of patents and established a consonance between TRIPS and domestic laws. It has showcased that all the developing countries including India can use the TRIPS flexibility effectively to provide healthcare to public and also fulfil the constitutional obligation of right to life as envisaged under Article 21. Further, even the Bombay High Court agreed with the findings of the Controller General of Patents and the Tribunal regarding compulsory licensing under Section 84 of the Patents Act.

Other applications for compulsory licensing has also been filed, however, they were rejected by the Controller. One such application was filed by BDR Pharmaceuticals to manufacture the generic version of anti-cancer drug Dasatinib, patented by Bristol-Myers Squibb in India.[26] Further, in 2015, Lee Pharma filed an application for seeking the grant of a compulsory licence for manufacturing and selling the drug Saxagliptin used in the treatment of type II diabetes mellitus. Both applications were rejected as they failed to convince the Controller of Patents to make a prima facie case for the grant of compulsory licensing.[27]

Although the comparative study[28] concludes that compulsory licensing provisions in India are fully TRIPS compliant. However, compulsory licences are conceptually oxymoronic and fundamentally problematic.[29] Till date, only one compulsory licence has been granted in India. The prime reason that can be attributed for such restricted usage of flexibilities is the procedural complexities. The paper version of the concept is very overwhelming but the actual construction is in the hands of the patent office. To further strengthen the compulsory licensing provisions in India, there is a need of policy formulations.  A detailed guideline must be issued by Indian Patent office.

(iii) Doha Declaration and Public Health

As regards to the flexibilities various Governments extended their difficulty in interpreting these flexibilities and are also unsure of the boundary of protection of the rights. A large part of these flexibilities and right and obligations of the nations were settled at the Doha Ministerial Conference in November 2001. In the main Doha Ministerial Declaration of 14-11-2001, WTO member Governments stressed that it is important to implement and interpret the TRIPS Agreement in a way that supports public health by promoting both access to existing medicines and the creation of new medicines i.e. without obstructing the research and development. It emphasises that the TRIPS agreement should not restrict the nations to make legislations according to their socio-economic status. They have freedom to act in furtherance of their public health. TRIPS agreement posed a serious threat upon the developing nations as to the impediment caused by it on implementation of measure to promote access to affordable medicines in the interest of public health. While acknowledging the role of intellectual property protection “for the development of new medicines”, the Declaration specifically recognises concerns about its effects on prices.[30] “Doha Declaration”, which affirmed that public health took precedence over private patent rights, and reaffirmed the rights of Governments to use inbuilt WTO public health safeguards and other available measures to gain access to cheap medicines.[31] The Declaration also refers to the exhaustion of intellectual property rights, and therefore addresses the question of a member’s right to allow parallel imports. The Declaration makes it clear that the Trips agreement’s provisions on exhaustion in effect, leave each member free to establish its own regime without challenge but subject to the general TRIPS provisions prohibiting discrimination on the basis of a person’s nationality.[32]

It can be noted that, the TRIPS agreement and the Doha Declaration represent an attempt at the international level to achieve the sensitive task of balancing the need for providing incentives for research and development on the one hand and the need to protect public health interests of making access of drug reality, on the other. Despite having such mechanism the plight of developing countries is not solved. It is pertinent to note that many developing nations choose to issue the same, since it could be perceived as indifference towards intellectual property rights and thereby seriously weakening trade relations with other nations and might discourage investors.[33] It is a well-known fact that developing countries have strict patent regime much flexible in granting compulsory licensing, due to no or minimal incentives. Developed countries have no incentive to issue compulsory licence for exports. Such obstacles are rendering these flexibilities granted by TRIPS inaccessible.

Section 3(d), Patents Act, 1970: A Check on Evergreening

According to the WHO Report 60% of the essential life saving drugs manifests incremental innovations[34] which thereby enhances the need to encourage pharmaceuticals to invest more in innovation and to motivate investment in pharmaceutical industry; companies need to be rewarded with efficient patent protection. However, India places itself in quite different pedestal as reflected in Novartis AG v. Union of India[35] decision. India incorporated Section 3 of the Patents Act, 1970 which limits the scope of subject-matter eligible for patents which are not “inventions” within the meaning of Indian Patents Act. Section 3(d) was enacted primarily to prevent “evergreening” as it specifically rejects the patents for the mere discovery of a new form of known substance unless such product manifests significant enhanced therapeutic efficiency over the original and known substance. Section 3(d) does not allow patent protection for the mere discovery of any new form of known substance unless it enhances the efficacy of the original substance. It also acts as a bar on the new use patents by stipulating that mere discovery of any new property or new use of a known substance would not be patentable.

The term “evergreening” has not been defined in Patents Act, 1970 but this patent strategy consists of securing patents on minor, more often trivial, modifications of existing pharmaceuticals products or process in order to indirectly extend the period of patents protection over previously patented compounds.[36] It is an improper extension of life of patent beyond 20 years without actually being benefiting the pharmaceutical sectors. It is argued that, Novartis has attempted to do so by applying patent for beta form of the compound.

The 2013 judgment of Novartis AG v. Union of India[37] has a major implication in shaping the Indian legislation regarding patent protection. The Novartis pronouncement was made after considering many socio-economic factors. The Supreme Court upheld the intent of the legislature behind Section 3(d) of Patents  Act by providing strict and narrow interpretation of test mentioned therein. As mentioned by the Supreme Court that Section 3(d) was introduced to prevent evergreening, to provide access to the life saving drugs and to discharge their constitutional obligation of providing good healthcare to its citizens.[38] This shows that external economic and social factors are a priority for India.  But this pharmaceutical based specific test of therapeutic efficacy has brought various uncertainties. It is pertinent to note that, more uniform standard also provides a more predictable system for multinational pharmaceutical companies and allows them to invest in research and development aimed at addressing the health needs in developing countries. In 2003, WHO reported that more than 50% of the population in Asia and Africa did not have access to essential drugs.[39] Many factors contribute to this problem of limited access. One of the prime reasons could be the inadequate production and inadaptability to the specific local conditions that can be addressed if multinational corporations have the right incentives, such as patent protection for incremental pharmaceutical innovations in the developing country. The concern of high price of drug is also one of the facets but can be tackled by alterative measures like compulsory licensing.

Remaining Challenge

However, a subsequent study manifested that Section 3(d) has not been effectively utilised in preventing secondary patents from being granted.[40] It has also been noticed that there has been many inconsistencies in the way the “Novartis standard” is dealt with by the Patent Office.[41] Despite the fact that Section 3(d) is useful, it appears that Section 3(d) is being deliberately ignored by the Patent Controller’s office. As a result, it is not being applied correctly always.[42] Further, patent office has provided with unfettered discretion to devise its own policy for determining what constitutes significant enhancement of therapeutic efficacy and goes no further while defining what “therapeutic efficacy” actually means.


In developing countries like India, the way healthcare is organised has created condition for the gross violation of fundamental rights. The principal of justice is being violated when majority of the population do not have access to basic minimum healthcare. The coming future of public health in India largely depends upon the way pharmaceuticals industry responds to the TRIPS agreement. Manufacture of the patented product or application of the patented process in a local industry is generally called as “local working of patent”. Inventive activity  should result in innovation, which thereby leads to the development of technology as well as the industrial and economic welfare which is possible only through local working of patented inventions.

The monetary interest of big players in the drug industry remains under a constant threat to the access of life saving drug at moderate prices in India. Innovation and patent are two sides of the same coin. Innovations should be for serving the humanity especially in the field of medicine and patents should not have only one objective to amass profit.


(i) While recognising its international obligations, each country should shape its patent law according to its socio-economic needs and objectives including public health.

(ii) Moulding patent regulations to improve access to medicines, particularly by the poor is an important public health objective.

(iii) A health sensitive legal regime should allow Governments to act efficiently in cases of emergency, including epidemic crisis.

(iv) Government should create a framework for pharmaceutical patenting, especially regulating the accessibility of life saving drugs.

(v) Flexibilities of compulsory licence should be exercised in reality in developing and least developed nation. Easy process must be formulated for the grant of compulsory licensing.

(vi) Parallel import of some essential life saving drugs should be permitted.

With such reforms we can optimistically foresee a picture where picture people are walking out of the shadow of the incurable disease into the sunshine, singing merrily with smiles, on the green meadows, in refreshing woods or on the breezy beach.

 †  Fourth-year student, National University of Study and Research in Law, Ranchi.

[1]  Bishwanath Prasad Radhey Shayam v. Hindustan Metal Industries, (1979) 2 SCC 511: AIR 1982 SC 1444.

[2]  Kaur A., Chaturvedi R., Compulsory Licensing of Drugs and Pharmaceuticals: Issues and Dilemma, Journal of Intellectual Property Rights, 2015, Vol. 20, 279-287.

[3]Cecilia Oh, Trade-Related Aspects of Intellectual Property Rights and Pharmaceuticals, available at <> (last accessed on 15-9-2018).

[4]  L.M. Singhvi and Jagadish Swarup (2006), Constitution of India, Vol. 1, Modern Law Publications, (2nd Edn. p. 1100).

[5]  All India Drug Action Network v. Union of India, (2011) 14 SCC 479.

[6]  People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.

[7] Report on the revision of the patent law, Rajagopal Ayyangar Committee, September 1959,  available at <>  (last Accessed on 1-10-2018).

[8]  Overview: the TRIPS Agreement, available at <> (last accessed on 19-9-2018).

[9]  Ida Madieha Azmi and Rokiah Alavi, TRIPS, Patents, Technology Transfer, Foreign Direct Investment and the Pharmaceutical Industry in Malaysia, 4 Journal of World Intellectual Property, 2001 at 948.

[10]  Pradeep Agrawal and P. Saibaba, Trips and India’s Pharmaceutical Industry, 36 Economic and Political Weekly, 2001 at 37-87.

[11]TRIPS and Pharmaceutical Patents, available at   <>.

[12]  Agrawal, Pradeep and P. Saibaba, TRIPS and India’s Pharmaceuticals Industry, Economic and Political Weekly, Vol. 36, No. 39, 2001, pp. 3787-3790.

[13]  Janice M. Mueller, The Tiger Awakens: The Tumultuous Transformation of India’s Patent System and the Rise of Indian Pharmaceutical Innovation, (2007) 68 U Pitt L Rev 491.

[14]  Ibid.

[15]  Art. 8 TRIPS.

[16]  Abhayraj Naik, Pharmaceutical Patents and Healthcare, 2 Socio-Legal Rev. 46 (2006).

[17]The “Compulsory Licence” Regime in India: Past, Present and Future, available at <’Compulsory_Licence’_Regime_in_India_Past_Present_and_Future> (accessed 25-9-2018).

[18]  Review of TRIPS, Int’l Trade Daily News (BNA) (Int’l Trade Rep.) at D7 (9-6-1999).

[19]  Arnold J.G., International Compulsory Licensing: The Rationales and the Reality, IDEA, The Journal of Law and Technology, 1993; 33(2): 349.

[20]  Art. 30 TRIPS.

[21]Compulsory Licensing of Pharmaceuticals and TRIPS, available at  <> (last accessed on 14-9-2018).

[22]  Objective 3: Legal and Legislative Framework of the National Intellectual Property Rights (IPR) Policy, <>.

[23]  Ibid.

[24]  The Patents Act, 1970 (39 of 1970) [as amended by Patents (Amendment) Act, 2005 (15 of 2005)]

[25]  Bayer Corpn. v. Union of India, 2014 SCC OnLine Bom 963.

[26] BDR Pharmaceuticals International Pvt. Ltd. v. Bristol-Myers Squibb Company. CLA No. 1 of 2013, available at (last accessed on 16-10-2018).

[27]  Lee Pharma Ltd. v. AstraZeneca AB, CLA No. 1 of 2015, available at <> (last accessed on 15-10-2018).

[28]  Compulsory Licensing of Pharmaceutical Patents in India: A Research Study, European Journal of Pharmaceutical and Medical Research,  2016, 538, available at <> (last accessed on 26-9-2018)

[29]  Daniel R. Cahoy, Breaking Patents, 32 Mich. J. Int’l L. 461, 462 (2010).

[30]  Health Security and National Strategy Under the Patents Regime: Issues and Concern, CNLU LJ (6) (2016-17) 80.

[31]  For a scathing analysis of the actual US response to the mandate laid down at Doha, see, US Bullying on Drug Patents: One Year after Doha (Oxfam International Briefing Paper, 2002), available at: <> (last accessed on 15-9-2018).

[32]Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, available at <> (last accessed on 14-9-2018).

[33]  5(d), Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, adopted on 14-11-2001, available at <>, last accessed on 23-9-2018).

[34]  White & Case LLP and Dua Consulting, The Value of Incremental Pharmaceutical Innovation: Benefits for Indian Patients and Indian Businesses, Coalition for Innovation, Employment and Development June 2009, p. 4.

[35]  (2013) 6 SCC 1.

[36]  ICTSD, WHO, UNCTAD, Guidelines for the Examination of Pharmaceutical Patents: Developing a Public Health Perspective — A Working Paper (2006).

[37]  (2013) 6 SCC 1.

[38]  Id. 92-93, para 17.

[39] World Health Organisation (2004), The World Medicines Situation Report, available at <> (last accessed on 16-10-2018).

[40]  Patralekha Chatterjee, Five Years After the Indian Supreme Court’s Novartis Verdict, available at  <> (last accessed on 20-10-2018).

[41]  Dr Feroz Ali , Pharmaceutical Patent Grants in India: How our Safeguards Against Evergreening have Failed, and Why the System Must be Reformed, available at <> (last accessed on 20-10-2018).

[42]  Supra 34.

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]


The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

Under Indian law, Section 497 IPC  makes adultery a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. The offence of adultery under Section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.

Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the offence of adultery[3] which have been held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

 Penal Code

Section 497. Adultery. — Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.

 Criminal Procedure Code

Section 198. Prosecution for offences against marriage. —  (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

* * * * * * * * * *

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

* * * * * * * * * *

Classification of offence

The offence of adultery is non-cognizable (a case in which a police officer cannot arrest the accused without an arrest warrant). Also, it is a bailable offence.

Compoundable offence

The offence of adultery is compoundable by the husband of the woman with whom adultery is committed. Compoundable offences are those where the court can record a compromise between the parties and drop charges against the accused. [Section 320 CrPC].


Offence of adultery held unconstitutional: Understanding Joseph Shine v. Union of India

Sections 497 IPC and 198(2) CrPC insofar it deals with the procedure for filing a complaint in relation to the offence of adultery, are violative of Articles 14, 15(1) and 21 of the Constitution, and are therefore struck down as being invalid, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

This Note hereinafter discusses various observations of the Supreme Court in Joseph Shine case.


The object of Section 497 is to preserve sanctity of marriage. The society abhors marital infidelity.[4]

However, this object does not find favour with the Supreme Court. In Joseph Shine, the Court observed thus:  

“… the ostensible object, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 at all …”

It was further observed that the sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow which is not penalised by the legislature. Also, if the husband consents or connives at the sexual intercourse that amounts to adultery, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.


Section 497 is a pre-constitutional law which was enacted in 1860. At that point of time, women had no rights independent of their husbands, and were treated as chattel or “property” of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft” of his property, for which he could proceed to prosecute the offender.

The first draft of the IPC released by the Law Commission of India in 1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence. The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.


In order to constitute the offence of adultery, the following must be established:–

(i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

After stating the ingredients as mentioned above, the Supreme Court in Joseph Shine goes on to discuss the vice of unconstitutionality inherent in the offence of adultery, as may be seen presently.

Who may file a complaint

Only husband of the woman with whom adultery is committed is treated as an aggrieved person and only he can file a complaint. However, in his absence, some other person who had care of the woman on his behalf at the time when such offence was committed may file a complaint on husband’s behalf if the court allows. [Section 198(2) CrPC]

In Joseph Shine, this was held to be arbitrary and violative of constitutional guarantees as is discussed below.

Woman has no right to file a complaint

A wife is disabled from prosecuting her husband for being involved in an adulterous relationship. The law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Who can be prosecuted

It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual. The adulterous woman is not even considered to be an abettor to the offence. Woman is exempted from criminal liability.

Presence of an adequate determining principle for such classification was doubted in  Joseph Shine.

Woman treated as property of man

Historically, since adultery interfered with the “husband’s exclusive entitlements”, it was considered to be the “highest possible invasion of property”, similar to theft.[5]

On a reading of Section 497, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 497 violates Articles 14 [Equality before law]

Section 497 treats men and women unequally, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery. Additionally, if there is “consent or connivance” of the husband of a woman who has committed adultery, no offence can be established. The section lacks an adequately determining principle to criminalise consensual sexual activity and is manifestly arbitrary and therefore violative of Article 14, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 198(2) CrPC also violates Article 14 [Equality before law]

Section 198(2) CrPC does not consider the wife of the adulterer as an aggrieved person. The rationale of the provision suffers from the absence of logicality of approach and therefore it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of Article 15(1) [Prohibition of discrimination]

Article 15(1) prohibits the State from discriminating on grounds only of sex. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, the offence of adultery discriminates between a married man and a married woman to her detriment on the ground of sex only. The provision is discriminatory and therefore, violative of Article 15(1), Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of dignity of woman and Article 21 [Right to life]

Dignity of the individual is a facet of Article 21. Section 497 effectually curtails the essential dignity which a woman is entitled to have by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women.

Besides, the emphasis on the element of connivance or consent of the husband tantamount to the subordination of women. Therefore, the same offends Article 21, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of right to privacy and right to choose

This Court has recognised sexual privacy as a natural right, protected under the Constitution. Sharing of physical intimacies is a reflection of choice. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is a denial of this right, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Married woman’s sexual agency rendered wholly dependent on consent or connivance of husband

A man who has sexual intercourse with a married woman without the consent or connivance of her husband, is liable to be prosecuted for adultery even if the relationship is based on consent of the woman. Though granted immunity from prosecution, a woman is forced to consider the prospect of the penal action that will attach upon the individual with whom she engages in a sexual act. To ensure the fidelity of his spouse, the man is given the power to invoke the criminal sanction of the State. In effect, her spouse is empowered to curtail her sexual agency, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 497 denudes woman’s sexual autonomy

Section 497 denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Opposed to “constitutional morality”

It is not the common morality of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires enforcement of the constitutional guarantees of equality before the law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Premised on sexual stereotypes

Section 497 is premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. The notion that women are ‘victims’ of adultery and therefore require the beneficial exemption has been deeply criticized by feminist scholars, who argue that such an understanding of the position of women is demeaning and fails to recognize them as equally autonomous individuals in society[6], Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Breakdown of marriage

In many cases, a sexual relationship by one of the spouses outside of the marriage may lead to the breakdown of marriage. But often, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Case of pending divorce proceedings

Manifest arbitrariness is writ large even in case of a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If during this period, she has sex with another man, the other man is immediately guilty of the offence, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Whether adultery should be treated as a criminal offence?

Adultery is basically associated with the institution of marriage. Treating adultery an offence would tantamount to the State entering into a real private realm. Adultery does not fit into the concept of a crime. It is better to be left as a ground for divorce, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

International perspective

International trends worldwide indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Why did the Supreme Court not wait for the legislature and itself strike down the provisions?

These sections are wholly outdated and have outlived their purpose. Maxim of Roman law, cessante ratione legis, cessat ipsa lex [when the reason of the law ceases, the law itself also ceases], applies to interdict such law. Moreover, when such law falls foul of constitutional guarantees, it is Supreme Court’s solemn duty not to wait for legislation but to strike down such law, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Adultery continues to be a ground for divorce

There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.


Further Suggested Reading

  1. Kumar Askand Pandey B.M. Gandhi Indian Penal Code (IPC) [Buy Here]
  2. C.K. Takwani – Indian Penal Code (IPC) [Buy Here]
  3. Surendra Malik and Sudeep Malik – Supreme Court on Penal Code Collection by Surendra Malik and Sudeep Malik [Buy Here]
  4. Dr. Murlidhar Chaturvedi – Indian Penal Code (Hindi) [Buy Here]

† Assistant Editor (Legal), EBC Publishing Pvt. Ltd.

[1] The New International Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.).

[2] Law Commission of India, 42nd Report, The Indian Penal Code, June 1971.

[3] V. Revathi v. Union of India, (1988) 2 SCC 72.

[4] Malimath Committee Report on Reforms of Criminal Justice System, March 2003, Vol 1.

[5] R v. Mawgridge, (1706) Kel 119.

[6] Malimath Committee Report on Reforms of Criminal Justice System, March 2003, Vol 1.

Image Credits:

Case BriefsHigh Courts

Uttaranchal High Court: A division bench comprising of Manoj Kumar Tiwari, J. and Rajiv Sharma, ACJ., directed the state to implement schemes for the welfare of transgenders.

Petitioners who are transgender were facing interference in their area of operation to which they have sought protection with respect to life and liberty. Hence the Court took judicial notice of the matter as it revolved around right to life by providing a dignified life to the petitioners owing to the miseries faced by them in order to bring them at par with other people in the society by paving their way to the mainstream.

The Supreme Court, in the case of National Legal Services Authority v. Union of India, (2014) 5 SCC 438 has held the word “person” in Article 14 of the Constitution of India was not restricted to male and female and it includes even Hijras/Transgender persons who were also entitled to equal protection of laws and equality in all spheres. They were entitled to benefits as Socially and Educationally Backward class citizens including reservation in public employment. Gender identity was part of the right to dignity as well as personal autonomy and self-expression and thus declared that Hijras, Eunuchs be treated as the third gender giving them a legal recognition.

It was stated that the State Government, till date, has not implemented the directions issued by the Supreme Court. It was also brought to the Court’s notice that the State of Odisha has framed a scheme for Promotion of Transgender Equality & Justice. The scheme speaks of medical assistance to the parents of transgenders.

In the light of the facts and the issues stated the Court gave the following directions:

  • State Government shall provide reservation in admission in educational institutions and for public appointments along with social welfare schemes for the betterment of transgenders by framing the same.
  • Frame a scheme of housing for transgenders by giving suitable accommodation.
  • Provide financial assistance to the parents of transgenders with scholarship to transgenders up to post-graduate level.
  • Constitute a welfare board with representation given to transgenders in the board.
  • Provide free medical access to transgenders in all the hospitals.
  • Transgenders shall have free access to public institutions, public places.
  • Provide separate toilets in every public utility buildings.
  • Frame law/scheme to ensure that no transgender is separated from the parents/guardians and family
  • Criminal cases shall be registered against the persons who forcibly remove transgender from their parents/guardians and family.
  • All the transgenders in the State were ordered to be registered by the District Magistrates to recognize them as such.
  • There shall not be any discrimination against transgenders qua employment or occupation. Also, They should not be treated unfairly and have an absolute right, as enshrined under Article 21 of the Constitution of India to maintain privacy and to live with dignity.

Accordingly, the writ was disposed of. [Rano v State of Uttarakhand, WP (Crl.) No. 1794 of 2018, order dated 28-09-2018]

Case BriefsSupreme Court

Life commands self-respect and dignity.

                                        -Dipak Misra, CJ

Supreme Court: The bench comprising of Dipak Misra, CJ and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. awarded a compensation of Rs 50 lakhs to the appellant while disposing of an appeal filed against the judgment of a Division Bench of Kerala High Court whereby the decision of the Single Judge quashing the order of State Government declining to take action against the erring police officers concerned was reversed.

In January 1994, a criminal case was registered against one Mariam Rasheeda, a Maldivian National under Section 14 of the Foreigners Act, 1946 and Paragraph 7 of the Foreigners Order. While being interrogated by Kerala Police and Intelligence Bureau, she made certain confessions which led to registration of another criminal case under Sections 3 and 4 of the Indian Official Secrets Acts, 1923 alleging that certain official secrets and documents of Indian Space Research Organisation (ISRO) had been leaked out by scientists of ISRO. In November 1994, investigation of both the cases was taken over by the Special Investigation Team headed by Respondent 1. Pursuant to this, the appellant –  erstwhile scientist at ISRO – was arrested along with other persons. In December 1994, the investigation was transferred to the Central Bureau of Investigation. After the investigation, the CBI submitted a report before the Chief Judicial Magistrate, Ernakulam, under Section 173(2) CrPC stating that the evidence collected indicated that the allegations of espionage against the scientists at ISRO, including the appellant herein, were not proved and were found to be false. This report was accepted vide court’s order and all the accused were discharged. In June 1996, State of Kerala, being dissatisfied with the CBI report, issued a notification and decided to conduct re-investigation of the case by the State Police. Subsequently, the Supreme Court in K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223 quashed the notification of the State of Kerala for re-investigation holding that the said notification was against good governance and consequently, all accused were freed of charges. Another writ petition was filed before the High Court wherein a Single Judge quashed the order dated 29.06.2011 passed by the State of Kerala whereby the Kerala Government had decided not to take any disciplinary action against the members of the SIT (erring police officers) and consequently remitted the matter to the State of Kerala for reconsideration and passing further orders within three months. The said decision was reversed by a Division Bench vide the order impugned. It was urged by the appellant that the prosecution launched against him by the Kerala police was malicious on account of two reasons. Firstly, the said prosecution had a catastrophic effect on his service career as a leading and renowned scientist at ISRO, thereby smothering his career, lifespan, savings, honour, academic work as well as self-esteem and consequently resulting in total devastation of the peace of his entire family which is an ineffaceable individual loss. Secondly, the irreparable and irremediable loss and setback caused to the technological advancement in Space Research in India.

The Supreme Court, at the outset, observed that to say the least, the delineation by the Division Bench was too simplistic. It was stated that the entire prosecution initiated by the State police was malicious and caused tremendous harassment and immeasurable anguish to the appellant. It wasn’t a case where the accused was kept under custody and, eventually, after trial, he was found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to CBI. After comprehensive enquiry, the closure report was filed. An argument was advanced by the respondents that the fault should be found with CBI but not with the State police, for it had transferred the case to the CBI. The said submission was noted only to be rejected. The criminal law was set in motion without any basis. It was initiated on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. According to the Court, such situation invited the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity. The Court made references to D.K. Basu v. State of W.B., (1997) 1 SCC 416; Joginder Kumar v. State of U.P., (1994) 4 SCC 260; Kiran Bedi v. Committee of Enquiry, (1989) 1 SCC 494; etc. In the words of the Court, reputation of an individual is an insegregable facet of his right to life with dignity. In the final analysis, the Court held that it can be stated with certitude that the fundamental right of the appellant under Article 21 had been gravely affected. There could be no scintilla of doubt that the appellant, a successful scientist having national reputation, was compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody made the appellant suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. Keeping in view the report of the CBI and the judgment in K. Chandrasekhar, The Court ordered the State to pay Rs 50 lakhs as compensation to the appellant. It was further held that the obtaining factual scenario calls for constitution of a Committee to find out ways and means to take appropriate steps against the erring officials. For the said purpose, the Court constituted a Committee which shall be headed by Justice D.K. Jain, a former Judge of Supreme Court. The Central Government and the State Government were directed to nominate one officer each so that apposite action could be taken. The Committee shall meet at Delhi and function from Delhi. However, it has option to hold meetings at appropriate place in the State of Kerala. The appeal was accordingly disposed of. [S. Nambi Narayanan v. Siby Mathews,2018 SCC OnLine SC 1500, decided on 14-09-2018]

Case BriefsSupreme Court

Supreme Court: Navin Sinha, J. speaking for himself and A.M. Khanwilkar, J. delivered a decision in a criminal appeal wherein the appellant, a convict under Sections 302 and 324 IPC, was acquitted giving him benefit of doubt on grounds of insanity at the time of the commission of the act.

The appellant was convicted of murder of one Harish Chandra Chauhan. On the day of the incident, he picked up a sickle from a shop and started attacking the people around, and when the deceased came to the rescue of a person being attacked, the appellant rained blows on his back and stomach which resulted in his death. The petitioner tried to flee but was apprehended by the villagers and handed over to the police. The trial court while finding guilt of the appellant, did not accept his plea of unsoundness of mind. He was convicted for the offences mentioned above. The Bombay High Court declined to interfere.

The Hon’ble Supreme Court observed that the prosecution deliberately withheld relevant evidence with regard to appellant’s mental illness and his mental condition during the commission of the act. It was held that both the trial court and the High Court completely failed to discuss this lacuna in the prosecution case. The Court referred to Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495 while noting that in such cases, the accused has only to prove a preponderance of probability. The medical records of the appellant, the fact of the psychiatric treatment even in the prison for continuing ailment, statement of the witnesses, etc., all pointed towards the fact that the appellant was not of sound mind and he suffered insanity while the act was committed. The Court was of the view that the burden of proof under Section 105 of Evidence Act was satisfied by the appellant; by a preponderance of probability, he was able to raise a doubt regarding his mental condition at the time of the act. Accordingly, giving him the benefit of Section 84 IPC, the Court allowed the appeal and acquitted the appellant. Further, it was considered that necessary directions should be given under Sections 335/339 CrPC for proper care and support to the appellant befitting his right to life under Article 21 of the Constitution of India. [Devidas Loka Rathod v. State of Maharashtra,  2018 SCC OnLine SC 645, decided on 02-07-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): The appellant conducted blood group determination test 8 times in both government and privately-owned hospitals, situated in Agra as well as Delhi. Some tests returned his result as blood group ‘B-positive’ while others as ‘B-negative’. The appellant was perplexed and approached the Medical Council of India (“MCI”) under Right to Information Act (“Act”) to ascertain conclusively his blood group, specifically whether he was Rh-positive or Rh-negative.

The Public Information Officer (“PIO”) of the MCI responded saying that the information sought did not qualify as ‘information’ defined under Section 2(f) of the Act, which reads:

“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”

This argument by the respondent-MCI was accepted by the First Appellate Authority (“FAA”) who deemed the PIO’s reply appropriate.

The appellant approached the Central Information Commission (“CIC”) praying for relief, citing the reason that the matter pertained to his health and knowledge of his blood group is essential in case of an emergency where blood transfusion might be required. He, therefore, claimed a right to be informed of his correct blood group.

The MCI maintained that apart from the fact that the solicited information did not fall under the purview of the Act, but the respondent MCI neither possessed such information nor had any jurisdiction or power to obtain such information. The MCI also suggested that the All India Institute for Medical Sciences (“AIIMS”) may be approached to carry out suitable research on the same and put to rest the appellant’s queries.

The CIC held that the clarifications sought by the appellant can be construed as information as different pathology laboratories have provided opposite results and the appellant only wished to obtain concrete and reliable information in case of medical emergency, which is also a part of his Righto Life under the Constitution.

The CIC also observed that as a responsible and sensitive PIO, the respondent ought to have forwarded the appellant’s query to the AIIMS under Section 6(3) of the Act. Hence the respondent was directed to send the documents furnished by the appellant to the AIIMS, which was, in turn, requested to carry out necessary tests and provide the requested information. The appeal was accordingly disposed of. [Soni S Eramat v. Medical Council of India, File No. CIC/MEDCI/A/2017/120881, decided on 10.05.2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of SC Dharmadhikari and Bharati H. Dangre, JJ issued a writ of habeas corpus ordering the release of the petitioner’s son, who had been illegally detained in unlawful continued judicial custody for more than sixty days. The detenu had been arrested by the Central Bureau of Investigation, Economic Offences Wing on 19-09-2017.

Following multiple remand applications requesting extension of custody of the detenu, the total detention period exceeded the maximum limit of sixty days on 23-11-2017. Under Section 167(2) of the Code of Criminal Procedure, a Judicial Magistrate is entitled to authorize a detention not exceeding 60 days for all offences, unless the offence is punishable with death, imprisonment for life or imprisonment for a period of at least ten years.

Though the prosecution contended that the charges framed against the detenu during the course of investigation involved offences that were punishable with death, with life imprisonment or with imprisonment for at least ten years, the Court held the detention beyond the period of 60 days to be in contravention of S. 167(2) CrPC and also violative of the right to life and personal liberty enshrined under Article 21 of the Indian Constitution. [Rajkumar Bhagchand Jain v. Union of India,  2017 SCC OnLine Bom 9435, order dated 08-12-2017]