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Analysing Article 21, humans rights and individual freedom

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“Death must be beautiful. To lie on soft brown earth, with grasses waving above one’s head, and listen to the silence. To have no yesterday, no tomorrow. To forget life, to forgive life, to be departed.”

– Oscar Wilde

INTRODUCTION

The grimace compounding the affliction implicating faith & culture economizing on the despair from the clutches stands out to be a serene sojourn. The complacency in setting to work the health crisis nonetheless politics has doomed the fraternity squandering the attainment. People & their rights must be magnanimous at front & centre. Dignity in casualty is recognized around the world. The cremation of the dead bodies in Covid-19 is not an easy tribulation. The Hygiene Protocols ambling wrapping dead bodies to discerning handing over the bodies to the families increase the efficacy of transmitting body fluids. According to the World Health Organisation plebeians intimidated of their emancipations incarcerated are prone to getting tremendous exposure. The scale of devastation brought on by the second wave of Covid continues to snuff out lives, upend healthcare systems & dwindle the economy broke out with negligence, callousness evincing response as people reckoning with the grief of catastrophe that’s still unfolding.

Emotions Coexist as they aren’t linear or unitary bringing about guilt unobtrusive on some days & overbearing on others. Losing a beloved one is one of the extensively gruelling situations even under the best of episodes. Every congregation brings into the world its sermon to soothe the concussion, Hindus gathering to burn carcasses along the Ganges River to the Jewish folklore of amassing solace at shack during a seven-day mourning stint, Islamic legislation, as in many kith & kin surmises, the management of uneventful is the theme of distinct policies that strive at pledging the elegance and deference of the dead as well as for their living comrade. The disposition and swivel scale of the prevailing pandemic, however, has concocted miscellaneous qualms, asceticism, and straight rumours in Muslim-majority states as well as for Muslim communities around the realm. Oftentimes bar and the legal sorority have beefed up the liberties which are equated to dead soul from stature of the dead person to decent interment. Anticipating the incessant phenomenal pestilence “COVID 19”, the situation has become very catastrophic, and the conundrum of this dilemma makes it a more chaotic one. The horrendous and ungrammatical crisis of sufferers and dead bodies provoke the compunction of the very validity of rights that are functional to dead persons in the glimmer of the status quo.

STANDPOINT: HUMAN RIGHTS & FEDERAL LAW

Human dignity reinforces the right to life in portion the state has an optimistic obligation to insulate & respect life. The Rights are extensive, interdependent & mutually supplementary.

Humanitarian organisations especially the Red Cross (ICRC) evolved a compatriot & drudged knack in disaster supervision and tragedy riposte, catastrophe vindication, and humanitarian forensics. This experience is amassed from quite 150 years of operating in conflict zones and from an operative composure in additional 90 countries, mounting the ICRC to fetch effective recommendation and attend to state authorities & (NSAGs) in the retort to the getaway. UDHR ascribes kinsfolk subsist to be put up with autonomous and equal in dignity and rights” (Article1). These rights are “inalienable” to every person. The Human Rights Convention are for infractions of the treaties outlined in the testimony, while the assertions can be bought in by any victim of the violation a defunct person cannot do the same. The resolution 2005 on human rights & forensic science played up the primacy of distinguished human remains antidote, acclimating adequate composure & discarding similarly as of reverence for the clans’ desire. Geneva Convention 1949 certifies everyone to the dispute forthwith foster the deeds seized to patrol the annihilated – counteracting ill-treatment.” Even in modern days, international humanitarian legislation puts up to corroborate that even during the crossroads of war and conflict; the dead bodies of the combatants are not disdained out of vengeance and enmity. International Human Rights Law recognizes discretion on rights neither arbitrary nor discretionary based on scientific testimony. The convention I of Geneva (Article 17), Convention III of (Article 120), Convention IV (Article 130), Article 8 Additional Protocol II, Cairo Declaration Article 3 on Human Rights & other relevant legitimate instruments, furnish for the honourable entombment of the combatants and prisoners of war. The veneer of the lifeless person ought to be cherished even during the times of crusade & discord, there could be no justification to divest an individual who withers in the eternity of peace of the identical right of a respected burial and funeral rites, which the person would have otherwise been entitled to, if not for the pandemic.

According to Cal Health “Cremation” ensues in three strides the constriction of the core of a bygone human to its indispensable components via immolation, transferring or the body during incineration to elicit the system, processing of the remains after exile from the funeral courtyard. “In a country statute which stymies the establishment or upkeep in any one township of surplus than one crematory for the cremation of mortal cadavers cannot be bolstered as a police measure as against a cemetery association located near another crematory and in close proximity to several cemeteries and in a neighbourhood where there are, but irregular dwelling-houses and no buildings devoted to any business except that of burying the dead.”

PLUGGING GAPS OF CONSTITUTIONALITY: DIGNITY IN DEATH

The pestilence hasn’t only exemplified spirit, security and financial crisis, yet a crisis of conviction in the decisive crusade of humans. The Right to Life being an inclusive concept, affirms no soul shall be pillaged of life or liberation or property befitting mulled over the spectrum of Article 21 by insinuating the medication of cadavers in the additional terms – “The perspective of repudiation whacked by Article 21, whether such deprivation is permanent or temporary.” Life sans status is an icky debacle & verve that congregates cessation with dignity is a virtue to be yearned for and a juncture for celebration”.

Article 21, the kick pin of all other rights renders no soul ought to be knocked off of life or liberty by dint of the ‘procedure’ recounted in Article 21 has been skimmed into the ‘due procedure’ by the Supreme Court and implied treatment must be fair, just & reasonable. Over the epoch, the Supreme Court has deciphered Article 14 & 21 to entail myriad privileges within its ruffle.

The Apex Court adduced quoting that illustrated “life” in additional words: “Something more than mere animal existence. The inhibition against its forfeiture amplifies to all those limbs and faculties by which existence is relished. The overhead equally hampers the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul articulates with the outer world” congruently conserving the term ‘life’ meant the freedom to dwell with grace & the analogous embargoing stalled drudgery. The Article flexures “some of the finer graces of benevolent refinement, which propels life worth living” & an intensified notion of cinch may credit “society” of the apprehensive person. Eventually, dignity isn’t the sole sleuth to a living man but after his demise was put as deposition by the Supreme Court has been overstepped in Satyama Dubey v. U.O.I.

Further, the court ratified the diverse undertakings stripped away by the Police and the local body for procuring an adequate crypt to an abandoned dead person, according to the pious morality to which he belonged. The petition was disposed of based on affidavits. The hegemonies, & culture, the indistinguishable compassion with which a living being is anticipated to be cared for, should also be magnified the ones who are dead”. Praxis and heredity stances are innate to the ultimate ceremony of an individual’s vivacity. The decent interring is sketched in Article 25 that waives for leeway of conscience & autonomous profession, practice and propagation of faith subject to civil declaration, righteousness & vigour in Part III of the Constitution. Regime edicts overriding canonical practices for lifeless torsi should in no way be deemed discriminatory but must be a commensurate standard to impede disorders and casualties on the pretext of the virus, while simultaneously assuring public protection and economic wellbeing of India.

Please read concluding on thedailyguardian.com

It is vital to think back that is ephemeral and is the modus Vivendi to steering the ragged waters of rash, individually but concurrently.

EPILOGUE

The contemporary catastrophe dissembles as a spur transgressing the rights of a lifeless person despite on fleek backing of the legal bracket. The Conclusions sound prettier than the present is as the crisis is deep & has led to reports of untold human grief. Death has taken its toll as the health system crumbles the lives could be saved however policy stiffness cropping up blazing pyres shaping the vicinity between the living & the dead. A two-pronged strategy effectuating even-handed botch vaccine allotment must be carried out & tapering off SARS COV 2 transmission whilst the vaccine is rolled out.

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand

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Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.

WHAT IS MATRIMONIAL CRUELTY?

Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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Legally Speaking

‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

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The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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Legally Speaking

VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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Legally Speaking

CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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Legally Speaking

GUJARAT HC GRANTS RELIEF TO DIPLOMA HOLDERS: STUDENTS CAN’T BE FAULTED FOR PHARMACY COUNCIL’S FAILURE TO APPROVE MEDICAL STORES FOR IMPARTING TRAINING.

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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