BREACH OF RIGHT TO LIFE DURING COVID-19 ERA: FIXING GOVERNMENT’S LIABILITY TO COMPENSATE - The Daily Guardian
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BREACH OF RIGHT TO LIFE DURING COVID-19 ERA: FIXING GOVERNMENT’S LIABILITY TO COMPENSATE

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Life of an individual is of paramount importance and due to the spread of novel Coronavirus (Covid-19), people across the world are struggling to save their life and the lives of their loved ones. Once the life is lost, it cannot be restored. It is for this reason, Right to Life of a person is recognised as the most pivotal fundamental right enshrined under Article 21 of the Constitution of India (hereinafter referred to as ‘the Constitution’). The framers of the Constitution ensured that this right is available to citizens as well as non-citizens. Article 21 of the Constitution uses the word “person” in contrast to the word “citizen” in Article 15, 16, 18, 19 and 29 of the Constitution. This most pivotal right has been interpreted in its widest sense by the Courts in India to include various other important rights including the Right to Health which are not expressly provided under the Constitution. The Courts have interpreted “Right to Health” to be covered under the ambit of expression “life” as envisaged under Article 21. Reading Article 21 in consonance with various other provisions of the Constitution namely Article 38, 42 and 47, it is quite conspicuous that right to health is inherent to right to life and duty is casted on the State to ensure the effective realisation of this right.

Various newspapers across the nation are flooded with reports of non-availability of beds, shortage of oxygen cylinders/injections in both Government and Private Hospitals. The Central and State Government are taking corrective measures to ensure that appropriate medical facilities are provided to all persons. But despite all these efforts, a vast number of people were not able to get timely treatment. Here, a distinction is required to be drawn between the patients who were rendered medical treatment but could not be saved despite the best efforts of the Doctors, and patients who succumbed to death on account of the non-availability of medical facilities in the hospitals such as beds, oxygen, medicines, etc.

Article 21 stipulates that no person shall be deprived of his life and liberty except according to the procedure established by law. Nowadays, when the people of this Country are lying at the mercy of Central and State Authorities seeking medical aid, it is excruciatingly obvious that these authorities have failed to perform their constitutional duty. The question is whether failure on part of authorities to provide medical treatment results in deprivation and violation of the fundamental right of Right to Health?

VIEWPOINT OF THE COURTS ON RIGHT TO LIFE VIS-A-VIS RIGHT TO HEALTH AND COMPENSATION FOR ITS BREACH

The Supreme Court in the landmark case of Parmanand Katara v/s Union of India & Ors. (1989) 4 SCC 286 has categorically held that it is the obligation of the State/ Government to preserve life. The Court further observed that death by negligence does not tantamount to legal punishment. Every Doctor whether at Government Hospital or not, has a duty to extend medical assistance for the preservation of life. No law or state action can interfere to avoid/ delay the discharge of the paramount obligation casted on the members of the medical profession.

In the case of Paschim Banga Khet Mazdoor Samity v/s State of W.B.(1996) 4 SCC 37 the Supreme Courtrelying upon Parmanand Katara’s (supra) judgmenthas categorically held that it is the primary duty of the Government to secure the welfare of the people and it is the constitutional obligation of the State to provide adequate medical facilities for the people. In this case, the patient was denied medical treatment in a government hospital for non-availability of bed, the Supreme Court held it to be violative of Article 21 and directed the Government to pay compensation of Rs. 25,000/- to the patient. In another important decision of Delhi Jal Board v/s National Campaign for Dignity and Rights of Sewerage and Allied Workers & Ors., (2011) 8 SCC 568, the Supreme Court directed the State and its agencies/instrumentalities to pay Rs. 5 Lakhs as compensation individually, to the families of sewage workers died due to failure on the part of Government to put in place appropriate mechanism for protection of sewage workers and also to provide protective gears and equipments.

In the case of D.K. Basu v/s Union of India (1997) 1 SCC 416 the Supreme Court while dealing with violation of Article 21 on account of custodial violence has held that monetary compensation is an appropriate and effective remedy for redressal of established infringement of fundamental rights and the State is not entitled to the defence of sovereign immunity. The compensation granted under Writ proceedings either by High Court or Supreme Court is without prejudice to any other action like a civil suit for damages.

The Bombay High Court in the case of Pratibha Shinde & Ors. v/s State of Maharashtra & Ors.(2021) SCC OnLine Bom 87 while dealing with the case of the unfortunate death of an old lady suffering from Covid-19 on account of negligence on part of hospital administration in providing timely and proper medical treatment, fixed the accountability on the State Government by directing to pay compensation of Rs. 5 lakh to the legal heirs of the patient for violation of her fundamental rights.

The Patna High Court in the case of Shivani Kaushik v/s Union of India & Ors. CWJC No. 353/2021 has observed that inaction on the part of the State in providing adequate health care to the citizens, particularly during the prevailing Covid-19 situation, would be violative of Right to Life under Article 21 of the Constitution.

The Allahabad High Court while hearing the suo-moto petition In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive vide its order dated 04.05.2021 in a very ignominy and infuriated manner observed that “non-supplying of oxygen to the hospitals is a criminal act and not less than a genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of the liquid medical oxygen.”

LIABILITY OF HOSPITAL

When it comes to fixing liability on hospitals, it is important to categorize them into two parts i.e. Government Hospitals and Private/ Non-Government Hospitals. Since the first and foremost obligation for the preservation of life is on the State, any negligence or non-availability of medicals facilities like beds, oxygen, medicines, etc. resulting in the delay of treatment or death of a person would result in deprivation of his life, for which compensation can be awarded to the victims (family members) in light of the aforesaid judgments.

During this period, the Central/ State Government has taken over the supply of oxygen and various other medicines/ vital drugs (like Remdesivir). Delay in supply affects the obligation of the medical professionals in rendering timely medical assistance to the patients undergoing treatment. It is the pious obligation of the Government to ensure timely supply of these essential lifesaving medical supplies to the hospitals at the earliest and delay in supplying of these essential commodities to the Hospitals (both Government and Private) for whatsoever reason would result in deprivation of life of an individual.

When it comes to affixing liability on Private Hospitals, it is quite conspicuous that the Central Government and State Government are liable for providing compensation where delay in supplying of oxygen and vital drugs to the Private Hospitals is on account of the Government authorities.

Though Private/Non-Government hospitals stand on a different footing as they are not owned by the government, however, they are performing public functions and there exists deep and persuasive control of the Government as it can be very well seen during the prevailing Covid-19 pandemic situation. In view of the judgments of the Supreme Court in the case of R.D. Shetty v/s International Airport Authority of India & Ors. (1979) 3 SCC 489and Ajay Hasiav/sKhalid Mujib (1981) 1 SCC 722 Private Hospitals can be construed as an instrumentality of State under Article 12 of the Constitution and also be made liable to pay compensation by the Supreme Court or the High Courts while exercising writ jurisdiction for any kind of medical negligence on their part. Apart from this, the victim always has a right to approach Consumer Forum or Civil Courts for seeking compensation and damages separately.

EPILOGUE

While fighting with the deadly virus of Covid-19, the world has seen multitudinous fatalities due to inadequacy of medical resources and lack of systematic governmental strategies. Talking about the present situation, India being a welfare State, is one of the worst affected country which is struggling hard to overcome the second deadly wave of Covid-19. The role of the Government is considered to be very crucial for fighting with the second wave of Covid-19 as it is the primary duty of the Government to secure the welfare of the people and to protect their life. But unfortunately, the Government has failed to discharge its duty in providing timely medical facilities. The patients have to run from post to pillar seeking proper and timely medical aid from the hospitals but due to inadequacy of proper medical supplies, they have no option but to create hue and cry making the situation abysmal. Had the Government prepared a systematic mechanism to tackle the present situation in advance, the lives of so many individuals would have been saved today. Shortcoming and lapses in providing medical treatment amount to a violation of right to life guaranteed under Article 21 of the Constitution.

To sum up, it would be safe to say that it is the paramount obligation of the Government to ensure proper medical treatment, denial of the same by whatsoever reason would results in violation of Article 21 thereby entitling the victims (family members) to receive monetary compensation for violation of the rights. Though no amount of compensation can outweigh the trauma, pain and suffering of the victims, monetary compensation is the manner known to law by which restitution of the family members can be done. The quantum of monetary compensation would depend on individual facts and circumstances of a particular case.

Adv. Mudit Maheshwari, High Court of M.P., Indore And Adv. Hardik Gautam, High Court Of Rajasthan, Jodhpur

Disclaimer: This article is meant for informational purposes only and does not purport to be advice or opinion, legal or otherwise, whatsoever. Views expressed in this article are personal views of the authors and have no connection with their professional duties.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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Supreme Court pulls up the state of Kerala for challenging the seniority of upper division clerk

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The Supreme Court in the case The State of Kerala and Or’s. V. Subeer N.S. And Anr observed assailing the Kerala High Court’s order of affirming the seniority of an upper division clerk for filling a Special Leave Petition pulled up the State of Kerala.

The Government lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR based on the review of the Seniority the Director of Public Instruction and the Government while issuing the impugned orders, none of these aspects wee considered to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list and there was no objection and further there was no objections to the rank and seniority assigned to the applicant in the provisional seniority list. the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same as early as on 8th March 2009., the bench observed While affirming the view by KAT.

The said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant’s seniority was reassigned based on his eligibility on the part of the controlling officer it is only by a mistake that he was granted promotion and was assigned the rank in the seniority list, the counsel said to further persuade the bench.

The Bench of Justice Chandrachud remarked that if the counsel feels there is an error you must rectify the error correctly and there was no fraud on his part and all this must be due on a reasonable dispatch.

The bench comprising of Justice DY Chandrachud further observed and noted when the matter was called upon hearing before the bench that the State is here challenging it the bench further remarked by saying that why don’t you do something better? Build schools, roads or infrastructure as one upper division clerk has got seniority.

respondent’s seniority was revised to the date on which he rejoined duty after the leave and the respondent was on leave without allowance at the time of his promotion as U.D Clerk, the counsel appearing for the State contended before the Court.

The Bench comprising of Justice DY Chandrachud and the justice Surya Kant orally remarked while dismissing the SLP against the order dated 01.17.2022., We are not a court of law but a court of justice as well.

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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Nexus between accused’s negligence and victim’s death has to be established under Section 304A IPC: Supreme Court

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The Supreme Court in the case Nanjundappa vs State of Karnataka observed that would not apply to a criminal case, the doctrine of res ipsa loquitur stricto sensu.

when there is no report of a technical expert to corroborate the prosecution story as The Appellants therefore are entitled to be given the benefit of doubt furthermore It is even more unbelievable that Appellant no. 2 came in contact with the same voltage and managed to get away with a few abrasions.

when such current passed through the Television set, it did not blast and melt the wiring of the entire house and the court further added that it sounds completely preposterous that a telephone wire carried 11KV current without melting on contact.

While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts as In case of circumstantial evidence, there is a risk of jumping to conclusions in haste However the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced, in the present case. The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

The court noted that there is no eye witness to say conclusively that the Appellants were in fact executing the work at the place alleged and further the court notice that no report or even inspection was conducted by a technical expert to assess the veracity of the averments made by the complainants to suggest that it was due to the alleged acts of the Appellants that the incident took place. the allegations against the Appellants are highly technical in nature, notice by the court on perusing the evidence on record.

On 21th November 2003 at 1.00p.m. the deceased was watching TV in his house. Noticing a sudden sound in the TV, the deceased got up to separate the dish wire, the TV connection wire and the telephone wire, which were entwined together, he felt an electric shock and his right hand was burnt and as a result of this shock he succumbed to death at that point of time it was found that the said incident took place because of the negligent act on the part of the accused, the supervisor (an employee in the telephone department ) and daily wage worker employed by him, as it was found out in the investigation. under Section 304A read with Section 34 IPC was upheld by the Karnataka High Court, the appellant is convicted.

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed under Section 304A of Indian Penal Code for causing death by negligence, while acquitting two persons that prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim, for bringing home the guilt of the accused.

The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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