In our previous trend, we focused on the features of markets in the digital world with respect to high returns to scale and network externalities which went handin-hand with the rise in provision of free services. The exponential growth of this market is underscored by the fact that digital advertising has prevailed over traditional channels such as print and television advertising in many countries, to become the largest medium of advertisements. Targeted advertising is made possible only because of profiling of consumers based on search habits and insights gained from their data.
This data is an essential facet of advertising on the digital medium, as advertisers can choose to target advertisements based on based on browsing behaviour and interests (behavioural targeting), the theme and context of a website (contextual targeting); geographical location of an individual (geographical targeting); social, demographic and economic characteristics such as age, gender, income (sociodemographic targeting) or even based on time, day or week (time targeting). This wide array of options are available to advertisers because consumers increasingly rely on “free” services, such as maps, general search services, etc. in their daily lives, generating vast swathes of data in the process of doing so which allows for a rich development of targeting factors.
Digital Advertising: Establishing the trend
Since user data presents valuable behavioural insights, advertisers increasingly find spending on Digital Advertising gives higher returns on investments. While currently advertising revenues through traditional channels such as print and television advertising is still higher than digital advertising, market studies show that Digital Advertising revenues will eventually surpass print advertising revenues.
If one must name a single enterprise that has revolutionised the internet, it must be Google. We cannot imagine a life without Google, and for this tech boom throughout the world, we all must thank Google. In 1995, Google began as a project of Larry Page who was later joined by Sergey Brin. While initially, it was only a search engine, Google family was to become much more than that in just two decades. Google has brought several innovations that has changed the world, such as Search Engine that has brought all the information on the fingertip of user, Android OS that eased access of smartphones to majority of population and making YouTube the streaming service that gave opportunity to creators to expand their reach globally.
Presently, Google is engaged in provision of number of product and services including Maps, YouTube, Chrome, Android, Play Store, Gmail, online advertisement services etc. which creates an ecosystem of Google around us. In fact, creating an ecosystem is one of the defining features of business model of Google, where integrating several services providers better consumer experience and that eventually eases expansion of the company. Google has established itself as the undisputed market leader in general search, as the global market share of the top 5 search engines across the last 10 years shows.
One of the factors that played a role in establishing Google as a market leader is their acquisition strategy. If one looks at the acquisition history of Google, Google has made close to USD 30 billion on its major acquisitions. Some of these acquisitions have converted into a huge success, such as Android, YouTube, Advertisement acquisitions and Waze for maps. Android has turned out to be one of the cheapest yet the most successful deal for Google. Consequently, such killer acquisitions also gives a strong market power to Google in several markets. Considering the same, there have been several competition law investigations against Google across multiple jurisdictions (EU, US, Turkey, Australia etc).
Google’s Story in India
Google started its operation in India in 2004 with five employees but now has become one of the largest Google office outside USA. Seeing the potential that Indian market has in terms of population, Google has customised its services for Indian population, like providing search services in regional languages, answering queries over phones (in collaboration with Vodafone) etc, thus pioneering and championing the role of innovation in India’s growth story. Additionally, it has also contributed to increase the reach of internet in India by providing free public WiFi (more than 400 stations), Google is already a success in India and with increase in internet penetration, India is likely to become one of the biggest market for Google. There is absolutely no doubt that Google’s contribution to the tech boom in India is paramount and cannot be denied and we must all be thankful to Google for ushering it this boom which has benefited all of us.
Google Advertising business model
Google’s story brings several competition concerns. However, herein, we bring our focus only to Google’s conduct in online advertisement industry. Google acquired Double Click and AdMob at early stage to grow their revenue in advertisement industry. It can be noticed that most of the services offered by Google are for free, therefore business model of Google is such that advertisement revenue is primary revenue source for them.
Difference between Search and Display Advertising
Search advertising and display advertising are two major forms of online advertising. While search advertising is used by advertisers to target consumers who have made a general decision about what they are looking for, display advertising is usually intended to be used for increasing brand awareness. Participants also highlighted that while display advertising is associated with demand generation for a product, search advertising leads to more conversions in terms of actual sales. On other parameters such as creativity in advertising, stakeholders submitted that search advertising being text-based, display advertising provided more avenues in terms of innovative ads that may capture user attention.
In terms of strategies employed by advertisers, the study also found that advertisers were not likely to substitute display advertising with search advertising, and vice-versa. This was also substantiated by the fact that budget allocation for the two types of advertising were kept distinct. However, it was also revealed that depending on what the advertisement campaign objective are, the two methods of digital advertising could often be used in complement to each other. For instance, display advertising may make the consumer aware of the product offering, nudging him/ her towards searching for the product and encountering search advertisements.
Following chart (based on CMA Report) would help in understanding online advertising;
Google works in both segments of digital advertising, a) search advertising and b) display advertising. In this trend, we focus on how Google’s search advertising works.
Google’s Search advertising
‘Google Ads’ is advertising system where advertisers bid on certain keywords for which clickable ads appear on every search and google is paid per click by advertisers. However, this does not work like a usual auction and position of advertiser depends on two factors, viz. advertiser’s bid and ad quality. Herein, ad quality is an important factor because Google as a search engine is determined to provide the most accurate result, which is defining feature of Google. Ad quality is determined through quality core which takes into consideration Google’s expected clock through rate, past performance, quality and relevance of keywords, landing page and Ad text. On basis of these two factors, Google ranks ads on the page of search result.
Why Google does not face competitive constraints
Google provides its general search service free of cost to consumers as monetization of the service occurs through targeted advertisements. The ability to target advertisements towards a group of users come from insights which can be gleaned from consumer data generated from the search service. The attractiveness of a platform, for advertisers, therefore, lies in the reach that the platform commands in terms of number of users to whom the advertisements can be displayed. Therefore, in order to attract advertisers to the platform and compete effectively, it is imperative for the search service provider to acquire a sufficiently large consumer base which uses its search service.
Consumers place a very high value on the relevancy / quality of search results while opting for a search service. Therefore, the ability of a search engine to provide relevant search results and improve the relevancy of search results is a vital factor for competing against Google.
A survey conducted by DuckDuckGo of factors based on which users would switch search engines.
This brings us to the first reason why Google does not face any meaningful competitive pressure for other search service providers:
Significant Barriers to Entry
The key inputs for achieving relevant results include (i) access to necessary data in order to improve the algorithm or framework that returns search results (the “click-and-query data), and (ii) an extensive and updated index of the world wide web. Both these inputs are highly subject to scale-effects.
Firstly, as Google’s market share in general search services above pointed out, Google gets search queries which are orders of magnitude higher than its closest rivals. Google, therefore, benefits from a self-reinforcing process where it receives so many more queries (which are an essential input for making potential improvements in the search algorithm) because it is able to return increasingly relevant search results to its users, who in turn return to google for their general search queries. Secondly, the maintenance of an updated index requires prohibitively high investments because of which even large incumbents in the space had to give way to Google.
It is worth noting that large incumbents such as Yahoo! and Ask.com have found it economically unfeasible to maintain independent search services. Yahoo had stopped investing in its general search technology, in 2009 and now relies on search service of Bing. Similarly, Ask.com also terminated investments in its general search technology in November 2010 and chose instead to adopt Google’s general search technology to power its search service.
Significant Barriers to Expansion
The second reason why Google does not face competitive threat is because of the significant barriers to expansion faced by its competitors in accessing customers and building into stronger competitors over time. This barrier to expansion comes from the default position Google has been able to secure on mobile devices. Mobile manufacturers choose Google as the default search application based on a mix of consumers’ perceived quality of service as well as the level of compensation that Google is able to pay due to its revenues generated from search advertising. This, coupled with the fact that consumers show very strong preference for defaults, especially in mobile devices, acts as a very significant barrier to expansion for existing rivals.
Limited Competitive Constraints from Specialised Search (like Amazon) & other Competition law concerns
Results from the CMA’s market study have confirmed that a major proportion of specialised search providers rely on Google as a point of entry. The difference between general search and specialised search services had been considered by the EC in the Google Search (Shopping) decision, wherein it was noted that the two types of search services operated as complements rather than substitutes. Analysis of traffic data by the CMA in its report has also confirmed that a substantial number of consumers access specialised search portals via general search rather than accessing them independently.
The finding of complementarity in these markets suggest that specialised search, rather than being a competitor to general search, is in fact in a vertical relationship with general search providers like Google. This can be better understood by way of taking an example of how Google acts as a “gatekeeper” to specialised search service providers in majority of the cases.
As a part of our research, we undertook an exercise in India which also shows vertical agreement between Amazon and Google. Take the example of a consumer who is in the (virtual) market for speakers. For the purpose of this illustration, we consider this consumer to fall in the majority category of consumers who use general search services to move towards a specialised search service, such as Amazon, eBay, etc. Since the market for speakers is highly fragmented with a large number of sellers offering various kinds of speakers at diverse price ranges, the consumer enters a search query appropriate to his needs.
The top results that a consumer gets from his search query therefore points him to specialised search providers like Flipkart, Reliance Digital, Amazon, etc. These special search service providers, thus, rely on Google, which acts as a gatekeeper for most of the traffic to their own portals. Since most users do a general search and are then directed to special search services like Amazon, etc., from this page, the user clicks on the speaker that interests him.
Apart from this, users may also choose to use the comparison services that Google offers. Therefore, after entering the query, i.e., speaker, the user can compare the different speakers of offer. Clicking on one of the results on the shopping tab, once again takes user to Amazon’s page, as shown above.
This demonstrates that Google, as a dominant search service provider, becomes a necessary trading partner even for large platforms like Amazon, which are in a vertical relationship with Google and rely on it for majority of the traffic to their platforms and thus, a case may be there to look at their conduct under Section 3(4) of the Act, which deals with analysis of vertical agreements.
Below, we lay down some competition concerns that have already been observed or may come up in the future owing to the way the market is functioning.
Excessive Pricing- Google, being dominant in search advertisements, is in position to overcharge the advertisers. Since advertisement has been the primary source of revenue for Google, it gives it an incentive to increase its profit by charging more from advertisers. This is clubbed with Google’s market power, which is directly linked to access of consumer data, creates high entry barriers for competitors. The closest competitor Google is Bing, , average cost per click on Google is 30-40% more than that of Bing. Similarly, monthly average cost per click for mobile and desktop and average price bid ratio for top ad for Google is more than Bing.
Exclusionary practices-Google can engage in exclusionary practices by restricting its consumer base to engage with any other platform for advertisements. For example, there is always a possibility that Google may impose restrictive clauses in agreements with advertisers prohibiting them to engage with Microsoft Bing. This would, in turn, lead to denial of market access for competitors of Google.
Leveraging dominant position in search advertisement– Further, Google can leverage its dominant position in search advertisement market to expand their market power in open display advertising. Using strong customer base of search advertisements, Google can provide incentive to use Google’s services in another market of display advertisement. Further, as noted in CMA report, huge data collected by Google in search advertisement market may be used in open display advertisements to provide better targeted advertisements.
It may be another concern as Google puts itself in a position where it can always promote its own vertical product and services. There are several services of Google that may be promoted through advertisements, such as Google Pay, Google Meet or YouTube. This may affect the quality of organic search also.
Similarly, there may be products of Google in other markets for which there may be competitors like; in fintech services (Google Pay; competitors being PhonePe, PayTM, MobiKwik); social network (Google +, competitors being Twitter and FB); maps and navigation (Google Maps, competitors being Map Quest, Waze, Bing Maps, HereweGo, Maps.me etc), emailing (Gmail, competitors being Outlook, Zoho, Apple Mail etc.), calendar (Google Calendar; competitors being Outlook, iCal, Spike etc) and other products of Google for which there are competitors in the market. It must be seen as to whether Google is using their dominant position in the search advertising market to enter into or protect their position in the other market.
Tie-in agreement with manufacturers – It has bene noticed that Google has agreements with device manufactures that are exclusionary in nature. In order to make Google Chrome as default browser of such phones, Google offers some revenue share from search advertising. Thus, competitors of Google Chrome like Mozilla Firefox, Safari etc. may be foreclosed from entry and it has been seen that once a default setting has been adopted, consumers rarely change the same. Therefore, technically, Google uses its dominant position in search advertising to ensure that their browser remains a default in mobile devices.
Ad Ranking- It has been observed that Google essentially operates its ranking system in a “black-box” and does not completely disclose the way its algorithm operates. As noted earlier, ad ranking is completely dependent on the quality score of advertisers, the process which is substantially hidden. Therefore, it provides immense opportunity to Google to interfere with the Ad ranking list, and therefore, raising concerns for violation of Section 4(2)(a) (i) for advertisers.
In addition to the above, another concern of general import is the fact that Google’s super-dominance in search advertising presents a risk whereby Google may choose to start investing in creating barriers to entry and expansion rather than on innovating new and better products. In case of search advertisement, this may happen when excessive reliance on Google for advertising revenues comes to a point where Google may even impact the organic search results to the detriment of search quality where user may interact more with ads. This is important to consider because Google’s current position makes it immune to any competitive constraints. As a result of lack of effective competitors in the market., there would be no one to inflict competitive pressure on Google which may keep it on the path of innovation.
Adv. Abir Roy is Partner, Sarvada Legal.
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DRUG ABUSE IN INDIA: POLICY REFINEMENT FOR EFFICIENT CONTROL
“Drug abuse is a social evil. It destroys vitals not only of the society but also adversely affects the economic growth of the country…..” Y K Sabarwal, Former Chief Justice of India (2006)
It is no secret that despite being illegal, marijuana, also known as cannabis, can be availed very easily. As per the Indian law, the consumption or possession of marijuana is a criminal act and those found guilty can face a jail term up to 10 years or a fine of Rs. 1 lakh or both. When the Britishers arrived in India, they found the widespread trade of cannabis and its massive consumption as a source of revenue. Accordingly, they had levied a tax on it and were the first one to pass a law in connection with the usage of marijuana in 1838, 1871, and further in 1877.
The vogue of substance abuse in young generation has assumed alarming dimensions in India. Changing cultural values, increasing economic stress and dwindling supportive bonds are leading to initiation of substance abuse. According to the World Health Organization (WHO) substance abuse is persistent or sporadic drug use inconsistent with or unrelated to acceptable medical practice. Drug addiction causes immense human distress and the illegal production and distribution of drugs have spawned crime and violence worldwide. Today, there is no part of the world that is untouched from the curse of drug trafficking and drug addiction. Millions of drug addicts, all over the world, are leading miserable lives, between life and death. India too is caught in this vicious cycle of drug abuse, and the number of drug addicts is gradually increasing. Cannabis, heroin, and Indian-produced pharmaceutical drugs are the most frequently abused drugs in India. Cannabis products, often called charas, bhang, or ganja, are massively abused throughout the country
According to a 2019 study, National Survey on Extent and Pattern of Substance Abuse in India, by the Ministry of Social Justice and Empowerment, there are nearly three crore cannabis users in India.
THE CONSTITUTIONAL APPROACH AND DRUG POLICY
India’s approach towards Narcotic Drugs and Psychotropic Substances is enshrined in Article 47 of the Constitution of India which mandates that the ‘State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health’. Article 47, which is based on Gandhian principle, provides social security and justice to the citizens by enumerating duties of the state which are important for achieving the goal of a better society, and it includes better conditions of living, access to healthy and nutritious food and public health and hygiene. As intoxicating drinks and drugs are injurious to health and therefore it has been expressly provided by article 47 that state should take steps to reduce or stop the consumption of such injurious drinks or drugs. The same principle of preventing use of drugs except for medicinal use was also adopted in the three international conventions on drug related matters, viz., Single Convention on Narcotic Drugs, 1961, Convention on Psychotropic Substances, 1971 and the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. India has signed and ratified these three conventions. India’s commitment to prevention of drug abuse and trafficking predates the coming into force of the three conventions.
THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985: A CRITICAL ANALYSIS
The NDPS Act prohibits cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes in accordance with the law. Preparation to commit certain offences is punishable as is attempt. Accessory crimes of aiding and abetting and criminal conspiracy attract the same punishment as the principal offence.
The NDPS Act lays down the procedure for search, seizure and arrest of persons in public and private places. Safeguards such as prior recording of information, notifying a superior, limiting powers of arrest to designated officers, informing the person being searched of her/his rights have been scrupulously enforced by the courts, in light of the stringent punishments prescribed under the Act. At the same time, norms for investigation and evidence are permissive and have been interpreted in a manner that prejudices the accused. In 1988, the NDPS Act was supplemented by the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act to provide for preventive detention of people suspected or accused of involvement in drug trafficking
Adolescents are adventurous, self confident and often do new things to show that they can. By and large, this is the age at which most addicts get initiated into drugs. Section 32B of the NDPS Act lists ‘the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or facility or in other place to which school children and students resort for educational, sports and social activities’ as one of the aggravating factors which may be considered by the Court for imposing higher than the minimum penalty prescribed for the offence.
THE JUDICIAL RESPONSE
The Indian judiciary is considered as one of the most proactive adjudicatory wings when it comes to judicial review of the Indian legislations and policies. In 2008, a division bench of the Supreme Court of India in the case of ‘E Michael Raj v Intelligence Bureau, Narcotics Control Bureau had ruled that punishment under the NDPS Act will depend on the quantity of offending drug present in a consignment seized by the police. Five grams of heroin would classify as a small quantity while 250 grams of the same contraband would be considered a commercial quantity attracting a punishment of up to 20 years of imprisonment. Drug peddlers would sell heroin mixed with caffeine, chalk powder, zinc oxide, to get around the law and escape with minor sentences. Reversing the 2008 decision of E Michael Raj, a three-judge bench of Justices Arun Mishra, Indira Banerjee and MR Shah in the case of Hira Singh And Another v. Union Of India And Another held that, “The problem of drug addicts is international and the drug mafia are working throughout the world. It is a crime against society and it has to be dealt with an iron hand. The use of drugs by young people in India has increased. The drugs are being used for weakening the nation.” Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it is a small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated,” the court said.
The evil of drug abuse not only creates shackles on the very idea of a better life but it also acts as an impediment to the growth of the country. The legal framework which is present to counter the abuse of drugs is based on a solid foundation. As far as the drug law enforcement is concerned, the Narcotics Control Bureau (NCB) has been compiling statistics on seizures, etc. from various State and Central law enforcement agencies and has been compiling the National Drug Enforcement Statistics (NDES) every month. These statistics represent the drug law enforcement as well as the comparative performance of various agencies and the compilation need to be done within the appropriate time so as to comply with the provisions of the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985.
THE AMELIORATIVE APPROACH FOR EFFICIENCY
In 1988, the Prevention of Illicit Traffic in NDPS (PITNDPS) Act was enacted to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substances and for matters connected therewith. The act may be used to secure preventive detention of the major drug traffickers. As the drug traffickers deal in large volumes, and earn substantially through trafficking, every effort should be made by the concerned organization to identify, seize and freeze their properties and follow up the case vigorously till the properties are forfeited. Moreover, the need of the hour is to improve the quality of estimates and statistical reports on narcotic drugs and ensure that these reports are submitted in a timely manner, including the reports on consumption of narcotic drugs, in conformity with the definition of “consumption” in the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol.
Efforts have to be made to keep up and further strengthen the mechanism for collection of statistics on drug law enforcement by the NCB. The mechanism of collection of statistics on legitimate manufacture, trade, use, consumption and stocks of narcotic drugs, psychotropic substances and precursors should be strengthened and streamlined so as to ensure strict compliance of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Apart from this, the authorities must strive for the development of a mechanism to regularly collect statistics on drug and substance abuse in the country and to use such statistics as a yardstick to measure the effect of various interventions.
Efforts have to be made to keep up and further strengthen the mechanism for collection of statistics on drug law enforcement by the NCB. The mechanism of collection of statistics on legitimate manufacture, trade, use, consumption and stocks of narcotic drugs, psychotropic substances and precursors should be strengthened and streamlined so as to ensure strict compliance of the Narcotic Drugs and Psychotropic Substances Act, 1985.
RIP VAN WINKLES HAVE A PLACE IN LITERATURE, NOT IN LAW, SAYS ALLAHABAD HIGH COURT
In a latest, laudable, landmark and learned judgment titled Ganga Sahay & Ors. v. Deputy Director of Consolidation & 14 Ors. in Writ- B No.- 302 of 2021 delivered recently on March 18, 2021, the Allahabad High Court has most rightly, remarkably and rationally observed that the rule of delay and laches as a policy of litigative repose, creates certainty in legal relations and curtails fruitless litigation thereby ensuring that the administration of justice is not clogged by pointless litigation. The observation came from a Single Judge Bench of Allahabad High Court comprising of Justice Ajay Bhanot while dismissing a writ petition filed after a delay of more than 4 years, by observing it to be barred by the rule of delay and laches without there being any satisfactory explanation as to the delay. Justice Ajay Bhanot has done certainly the right thing and has thus once again only reiterated what is well known that a party who does not care in filing the petition in time and wakes up after a long period of time without any reasonable cause is bound to be held barred to file petition after the lapse of a certain period of time as we see in this notable case also!
Needless to say, as goes the well known legal maxim also which is titled “Vigilantibus Non Dormientibus Jura Subveniunt” which means that, “The law assists only those who are vigilant, and not those who sleep over their rights.” There can be no denying it! It must also be mentioned here that this famous legal maxim makes it amply clear that it is the obligation of individuals to not only be aware of their rights under the law, but also to be vigilant while exercising or using the same. If they are not vigilant then they are bound to pay a heavy price for it as we see in this case also where the petitioner’s claim is rejected for not filing the petition well within time! We even see in the Limitation Act of 1963 that if the suffered/aggrieved party does not file a suit for relief within the stipulated period, for the breach of his rights, then it cannot be claimed at a later stage.
To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed that, “Petitioners have assailed the order dated 09.09.2016. The petitioners were not parties in the proceedings before the courts below. The petitioners claim inheritance from one Ram Avtar (since deceased) who had allegedly executed a Will deed in favour of the petitioners. The authenticity of the Will deed and rights of petitioners as successors have first to be approved by the competent court before the petitioners can maintain any petition on behalf of the deceased Ram Avtar. It could not be pointed out what heritable rights of the petitioners devolving from Ram Avtar (since deceased) are being canvassed before this Court.”
As we see, it is then pointed out in para 2 that, “Learned Standing Counsel raises a preliminary objection to the maintainability of the writ petition. He submits that the writ petition is barred by delay and laches and the petitioner has approached this Court after a delay of more than four years.”
To put things in perspective, the Bench then very rightly maintains in para 3 that, “Clearly, the writ petition is barred by delay and laches. The petitioner has approached this Court after more than four years. There is no satisfactory explanation for laches and the delay in filing the writ petition on the part of the petitioner. Further third party rights have been entrenched. The law has long set its face against indolent litigants who approach this Court after a long delay.”
Needless to state, it is then underscored in para 4 that, “The courts have consistently observed that delay and laches on part of the litigant will disentitle him to any relief. In this regard the Hon’ble Supreme Court has settled the law with clarity and observed it with consistency.”
Furthermore, it is then enunciated in para 5 that, “The line of authorities on this point are consistent and long. The discussion will benefit from the authorities in point.”
While citing the relevant case law, the Bench then seeks to substantiate its reasonable stand by pointing out in para 6 that, “The Hon’ble Supreme Court in R & M Trust Vs. Koramangala Residents Vigilance Group and others reported at 2005 (3) SCC 91 held thus:-
“There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights.””
While citing yet another relevant case law, it is then pointed out in para 7 that, “The Hon’ble Supreme Court in Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service reported at AIR 1969 SC 329 held thus:-
“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”
While continuing in a similar vein, the Bench then makes it a point to mention in para 8 that, “A similar sentiment was echoed by the Hon’ble Supreme Court in Shiv Dass Vs. Union of India reported at 2007 (9) SCC 274, the Hon’ble Supreme Court opined as under:-
“The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”
For esteemed readers exclusive benefit, it must be mentioned here that it is then pointed out in para 9 that, “When the issue of delay and laches came up before the Hon’ble Supreme Court in Shankara Co-op. Housing Society Ltd. Vs. M. Prabhakar and ors. reported at 2011 (5) SCC 607, Hon’ble Supreme Court reiterated settled position of law and confirmed the well established criteria which has to be considered before exercise of discretion under Article 226 of the Constitution of India. The relevant portion is extracted herein below:-
“53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the Petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the Petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the Petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay.”
While continuing further, the Bench then also points out in para 10 that, “The Hon’ble Supreme Court also noticed the ingenuous devices adopted by unscrupulous litigants to tide over the delay and laches on part of such litigants. One such commonly used device is by filing a representation to the authorities after a long delay. Such litigants then approach the Court with an innocuous prayer to decide the representation. Once such representation is decided in compliance of orders of the court, it is claimed that a fresh cause of action has arisen. Stale wine does not become fresh in a new bottle. The Hon’ble Supreme Court saw through the designs of such litigants and foiled their intent in no uncertain terms.”
Be it noted, it is then very aptly pointed out in para 11 that, “The Hon’ble Supreme Court considered this issue in C. Jacob Vs. Director of Geology & Min. Indus. Est. and another reported at 2008 (10) SCC 115. The law laid down by the Hon’ble Supreme Court would guide the fate of the case. The relevant extract of the judgment is reproduced hereunder for ease of reference :-
“6. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any ‘decision’ on rights and obligations of parties. Little do they realize the consequences of such a direction to ‘consider’. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to ‘consider’. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.””
It is also worth noting that no differently, it is then also stated in para 12 that, “A similar view was taken by the Hon’ble Supreme Court in S.S. Rathore Vs. State of Madhya Pradesh reported at 1989 (4) SCC 582. The relevant extract of the judgment is reproduced hereunder for ease of reference :-
“It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.””
Most significantly, what forms the cornerstone of this worth emulating judgment is then stated quite elegantly, effectively and eloquently in para 13 that, “Law has long set its face against delay in approaching the court. The courts have consistently declined to condone the delay and denied relief to litigants who are guilty of laches. Litigants who are in long slumber and not vigilant about their rights are discouraged by the courts. Belated claims are rejected at the threshold. Rip Van Winkles have a place in literature, but not in law.”
No less significant is what is then stated in para 14 that, “All this is done on the foot of the rule of delay and laches. Statutes of limitation are ordained by the legislature, rule of laches was evolved by the courts. Sources of the law differ but the purpose is congruent. Statutes of limitation and the law of delay and laches are rules of repose.”
To be sure, it is then also postulated in para 15 that, “The rule of laches and delay is founded on sound policy and is supported by good authority. The rule of laches and delay is employed by the courts as a tool for efficient administration of justice and a bulwark against abuse of process of courts.”
Going ahead, it is then stated in para 16 that, “Some elements of public policy and realities of administration of justice may now be considered.”
While explaining why the rule of laches and delay is strictly adhered to by courts, the Bench then minces no words to hold in para 17 that, “While indolent litigants revel in inactivity, the cycle of life moves on. New realities come into existence. Oblivious to the claims of the litigants, parties order their lives and institutions their affairs to the new realities. In case claims filed after inordinate delay are entertained by courts, lives and affairs of such individuals and institutions would be in a disarray for no fault of theirs. Their lives and affairs would be clouded with uncertainty and they would face prospects of long and fruitless litigation.”
Truth be told, it is then further expounded in para 18 that, “The delay would entrench independent third party rights, which cannot be dislodged. The deposit of subsequent events obscures the original claim and alters the cause itself. The refusal to permit agitation of stale claims is based on the principle of acquiescence. In certain situations, the party by its failure to raise the claim in time waives its right to assert it after long delay.”
Not stopping here, it is then also put forth in para 19 that, “The rule of delay and laches by preventing the assertion of belated claims puts to final rest long dormant claims. This policy of litigative repose, creates certainty in legal relations and curtails fruitless litigation. It ensures that the administration of justice is not clogged by pointless litigation.”
What’s more, it is then most aptly stated in para 20 that, “The above stated position of law on the question of delay and laches on part of the petitioners, controls the facts of the case. There is no satisfactory explanation of the delay in the writ petition. The explanation for laches is self serving and lacks credibility is accordingly rejected. The writ petition is barred by delay and laches and is not liable to be entertained.”
Finally, it is then held in the last para 21 that, “The writ petition is dismissed.”
To conclude, Justice Ajay Bhanot of Allahabad High Court has done certainly the right thing giving the right reasons for holding so and has thus once again only reiterated what is well known that a party who does not care in filing the petition in time and wakes up after a long period of time without any reasonable cause is bound to be held barred to file petition after the lapse of a certain period of time as we see in this notable case also! All the parties must always be cautious of it and adhere to the time limit without fail. It is in their own best interest to do so because if they err then their petition is bound to be rejected as we see so ostensibly in this case also!
Sanjeev Sirohi, Advocate
TAKING THE FREEDOM OF SOCIAL MEDIA SERIOUSLY
Last week, a three-judge bench of the Supreme Court of India comprising Justices Dr. D. Y. Chandrachud, L. Nageswar Rao, and S. Ravindra Bhat issued a strong warning to the Central and State Governments not to curtail the freedom of speech and expression of people who are seeking help on social media platforms to get oxygen, essential medicines, and other things during the covid pandemic.“The Central Government and State Governments shall notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all District Magistrates in the country”, observed the Court for protecting the social media users from harassment by the police and other administrative agencies of the centre and the states. This is a much-needed and timely intervention by the Apex Court that is likely to facilitate the smooth communication of information on the internet during this difficult time when social solidarity needs to be promoted in our society.
The directions given by the Apex Court will certainly protect people from harassment and torture by the police and other government agencies in some states that have shown less tolerance to digest their criticism on social media platforms during this pandemic. Unfortunately, some governments have wrongly interpreted the criticism as an attempt to disrepute them and they also warned the people to face the charges under draconian laws such as the National Security Act. This is nothing but rubbing salt on people’s wounds. Admittedly, social media has been very useful and effective in addressing the grievances of thousands of people who were unable to get any kind of help from the government during this covid crisis. Not only this, but social media has also unearthed the various omissions and commissions of the centre and the states who have failed the people utterly during this covid pandemic. It seems the governments want to clamp down on the use of social media to avoid their responsibility. This is not the way to deal with the people. At this time, the governments should come forward to address the public health issue and take people’s cooperation in fighting against the invisible coronavirus.
Sadly, in some states like U.P., the administration has filed criminal cases against the citizens who were seeking help on social media platforms like Facebook and Twitter. In Amethi, the police registered an FIR against a man who was asking people to send him an oxygen cylinder for his family member who was suffering from covid. Ironically, no government wants to accept the truth. Recently, a Division Bench of the Allahabad High Court had strongly criticized the functioning of the U. P. government during the corona crisis while hearing a PIL. “The ghost of corona is marching on the roads and streets of the major cities of the state…those who are resourceful will survive and the rest as histories of past pandemics tell us, may die for want of proper health care”, the Court had said about the corona infection in the State of Uttar Pradesh. Not only this, but the High Court had also asked the State Government to discard its “my way or no way” attitude. This is the time when the government should listen to the High Court’s suggestion and improve the health infrastructure in the state.
It is a matter of fact that governments have ignored the public health issue in our country. It has never been a big issue for debate and discussion in the elections. The people have also failed to raise this issue on social platforms that build a strong public opinion. Indian politics is badly plagued with caste, community, and religious issues. The time has come when people should make it an election agenda given the poor health infrastructure in the country. Today, thousands of people are dying because of the shortage of oxygen, beds, and essential drugs. People are getting their covid test reports after five-six days. They are badly fed up with the governments and their agencies. Where should they go to seek help if the state does not respond to their calls? This is a matter of national shame. During this time, some public-spirited citizens have come forward to help people on social media platforms. It is indeed an admirable effort that should be carried forward to protect people’s lives and livelihoods at this extremely difficult time. Not only common people, but some honest administrative and police officers have also taken serious note of such calls and sent the required help to the needy people. This is why even the Apex Court appositely admired this gesture in these words: “In these trying times, those desperately seeking help for their loved ones on these platforms should not have their misery compounded through the actions of the State and its instrumentalities. Further, there are two more crucial reasons why such a clampdown on information sharing must be absolutely stopped immediately”.
Given the above discussion, it is submitted that all governments should welcome constructive criticism at this time. They should not discourage people from getting help on social media platforms. In a difficult time like this, people’s complaints, criticism, anguish, and anger provide valuable feedback to the policy-makers that must be used in urgently plugging the holes in the public health system, fixing accountability of negligent medical officers, and making self-introspection to learn from the mistakes and prepare for the future in a better manner. No popularly elected government can avoid criticism in a democracy. When people will die, they will cry and the government is duty-bound to protect people’s lives.
DEALING WITH BIOMEDICAL WASTE: A TOUGH GRIND AFTER THE PANDEMIC
Biomedical waste is composed of animal and human waste, treatment equipment, for instance, syringes, needles, and the other different kinds of amenities in the process of research and treatment (Bio-Medical Waste Management Rules, 2016). Adequate biomedical waste management concerning the proper rules and regulations were consistently overlooked for years, specifically in a developing country like India.
India, the second most populated country worldwide after China and the world’s second worst-hit country by COVID-19 officially, and unofficially it is undoubtedly the worst affected. India now has 20.7 million confirmed cases of the deadly Covid-19 virus. However, the recovery rate among Indian population is also very remarkably high. The administration has also taken rigorous steps to tackle Covid-19, but this has resulted in piles of Bio-medical waste. According to Central Pollution Control Board (CPCB) data, approximately 4527 tons of bio-medical waste was generated in December 2020. This has unduly pressurised the waste management system of country. Lack of resources has further added to this problem of waste management. India faced severe consequences during the second wave of COVID-19 and responding to which the medical system is also overburdened. These critical conditions have also posed a challenge in the administration to manage the bio-medical waste generated in treating the patients found positive with Covid-19. The country has a total of 238,170 healthcare facilities, out of which 87,267 are bedded while the remaining 151,208 are non-bedded healthcare facilities (HCFs) generating BMW. According to a study, improper management and disposal of bio-medical waste could expose freely roaming animals and humans with diseases like Covid-19. Thus, it becomes imperative to think for effective management strategies and spare some resources to manage bio-medical waste.
Untreated and improperly managed BMW is a potential source of infection. Millions of contaminated personal protection equipment (PPE) (e.g., facemasks and gloves) would end up as wastes, which, if improperly managed, can pose environmental and health threats. In a recent study (Kampf et al., 2020) finds that the coronavirus can survive on material surfaces (e.g., metals, glass, and plastics) for up to 9 days. Such threats may be ameliorated in developed countries where green and sustainable waste management strategies, capable of containing such viruses, are practiced. However, the threats would be much higher in developing countries that have poor waste management strategies. In many developing countries, solid wastes are dumped in the open and in poorly managed landfills where waste pickers without wearing proper PPE would scavenge for recyclable materials (World Bank, 2019).
Thus, it is the right time to call upon the policymakers to ponder this problem, which could become an uphill climb later if not given due attention.
IMMEDIATE ACTION AND FUTURE POLICY RECOMMENDATIONS:
The lockdown had led to enhancement in the origination of the food and packaging waste from the domestic households, which should be disseminated as per the current waste accumulation rules. The occurrence of the collection of biodegradable waste could be modified according to the locality. However, the recyclable waste could be reduced according to the accessibility of the people as well as the trucks. As they should be helped to accumulate them in the sealed bags for a longer tenure. There would be more generation of infectious waste and toxic waste if more heed is given to sanitary products and other health care products. So, it is very much necessary that it should be accumulated in double lined sealed bags with a particular symbol. The food packaging and the other waste should be handled with possible care and caution as it should be carried in a double layered compostable bag.
There would be less charge on the management of the hazardous waste as more waste from the households is being compensated by the smaller number of wastes from the restaurants, eateries and the other complexes. It is necessary to be conscious for the exposure of the waste as long as it exposes the pathogen to spread. The people living at their home required to be more prudent as there is a need of dissemination of the waste. The propagation of the same should be done through advertisements, newspapers or other source of media.
Few Policy recommendations deliberately made for the policymakers which might assist a system to tackle the pandemic:
a) Identification of the key role: This is the prime duty of the government to recognize the part which has to be played by sanitation workers. For instance, UK government has specifically given key worker status to their workers as the government would be fulfilling all the requirements of their family during the COVID crises so they could continue their services.
b) Formulation of the Global Common Platform of Knowledge: It is very much necessary to formulate a platform as well as foundation of knowledge so that the people should gain the know how of handling the waste as they could curb themselves in need of the hour.
c) Pervasive standardization of the coding: The universal standards for the color coding are very much significant for disseminating the bio medical waste. As it would provide assistance to the identification of the type and the characteristic of the waste. Proper training to the workers in the regard would also be very much helpful.
d) Technology Based Solutions: To deliver the high quality by products, it is very much necessary to emphasize the gasification, hydrothermal, and carbonization kind of techniques. Additionally, there should be investment of research into it.
e) Implementations of the principals from circular economy: To reduce the amount food wasted, re-utilization of the food waste and nutrient recycling are the major fundamentals of the circular economy in the food system and should be executed both at producer as well as consumer level. Furthermore, the circular-based models’ execution would assist in deviation of the accumulated waste from the disposal sites to the recyclable plants; however, it would also help in declining the generation of the waste in the initial place.
f) Propagation Regarding Circular economy: People are not knowing about the methodology behind the circular economy so it is the dire need to aware people regarding the concept of circular economy. The fabrication of the recyclable products would, for instance, bioplastic and biodegradable products should be highly promoted as well rewarded.
g) Moving from awareness to Action: Just by propagating the general public regrading the same would not help rather they should be highly motivated to implement all the schemes practically. Media campaigning would really assist in effecting the people’s behavior and would also assist in the transformation of their musings to converting the economy into a greener one.
UNLESS SELF-ADMINISTERED, NO VACCINATION CAN CURE EVIL OF VIRUS OF COMMERCIAL MINDEDNESS OF EDUCATIONAL INSTITUTIONS: GUJARAT HC
While dealing with a case wherein a students mark sheet and other documents were withheld by the Medical Institute due to non-payment of the penalty and late payment charges, the Gujarat High Court just recently on 20 April 2021 in a latest, landmark, learned and laudable judgment titled Jawal Suruaj Chhasiya vs Dean, Surat Municipal Institute of Medical Education and Research in Civil Application (For Direction) No. 1 of 2021 in R/Special Civil Application No. 2861 of 2021 has minced no words to say in simple, straight and suave language hard hittingly that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or another pretext, thereby demeaning the sanctity of the very concept of the education.” All educational institutions must self-introspect on what Gujarat High Court has said so directly on their conduct and strive to reform in the time of corona when people are so much affected adversely facing acute shortage of money due to rising expenses generated due to this pandemic! There can be no denying it. The Single Judge Bench of Justice NV Anjaria was hearing the plea of a student who sought direction to his Institute not to withhold the mark sheet, degree certificate, attempt certificate and consequential entitlement for internship on account of non-payment of the penalty and late payment charges.
To start with, the Single Judge Bench of Justice NV Anjaria of Gujarat High Court sets the ball rolling at the very outset by observing that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or under one or another pretext, thereby demeaning the sanctity of the very concept of the education.”
While specifying about the prayer made, the Bench then mentions in para 2 that, “By filing the present Civil Application, the applicant-original petitioner has prayed as under.
(i) set aside the letter dated 25.03.2021 bearing No.SMIMER/OUT/5090 and order dated 25.03.2021 bearing No.SMIMER/Out/5097 issued by respondent No.1 as being against the reasoned order passed by this Hon’ble Court and be further pleased to direct the respondents not to withhold marksheet, degree certificate, attempt certificate and consequential entitlement for internship on account of nonpayment of penalty and late payment charges;
(ii) declare that there is willful disobedience of order dated 10.02.2021 passed by this Hon’ble Court in Special Civil Application No.2861 of 2021 by respondent No.1;
(iii) direct the respondent No.1 to allow the petitioner to join his internship training.”
To put it differently, the Bench then observes in para 2.1 that, “In other words, applicant-petitioner seeks release of his marksheet, degree certificate, attempt certificate and consequentially to undergo the internship. The applicant-petitioner is a student who has completed his M.B.B.S. course from respondent No.1-Surat Municipal Institute of Medical Education and Research, Surat, which is self-financed college run by respondent – Surat Municipal Corporation.”
While specifying further, the Bench then states in para 2.2 that, “The main Special Civil Application was notified today together with the present Civil Application, as was directed by the Court in order dated 09th April, 2021 to enable the Court to have the wholesome view of the controversy involved.”
While specifying the purpose of the petition, the Bench then makes it clear in para 3 that, “The prayer made in the main petition is to set aside decision reflected in communication dated 06th February, 2021 of respondent No.1 whereby petitioner No.1-student was debarred from attending classes and taking examination. It was next prayed to permit the petitioner-student to appear and to take examination of 9th Semester which was to commence from 11th February, 2021.”
More damningly, the Bench then points out in para 3.1 that, “When the aforesaid communication dated 06th February, 2021 is seen, the petitioner-student was prevented by respondent No.1-educational institute from appearing in Semester examination on the ground that petitioner-student had not paid the tuition fees, late fees and other charges in the nature of penalty and cheque bounce charges. Along with the said communication dated 06th February, 2021, the statement figured showing the details of the amount demanded from the student.”
While specifying the details, the Bench then lays bare in para 3.3 that, “Thus, the demand raised by respondent No.1 from the student was Rs.05,27,500/- each towards fees for 4th and 5th Semesters and Rs.01,31,875/- being the unpaid installment of fees for the 9th Semester. The total amount of Rs.11,87,875/- was sought to be recovered. It appears that cheques then submitted by the petitioner-student towards fees, were bounced.”
Needless to say, the Bench then states in para 3.4 that, “As the above tabular details shows, amount of Rs.02,43,095/- and Rs.02,31,326/- came to be demanded towards cheque return charges in respect of two cheques respectively in addition to late fee amount. It was on such ground that the petitioner-student was debarred.”
While elaborating further, the Bench then specifies in para 3.5 that, “It appears that this Court considered the controversy and order dated 10th February, 2021 came to be passed. The Court noted the case of the petitioner and that of respondent No.1 as were representated by the respective learned advocates.
“7. Mr. Aditya Pandya learned counsel for the petitioner would submit that the petitioner be permitted to appear in the examinations on an undertaking that the petitioner shall file stating therein that he will clear the entire amount of outstanding fees minus the penalty and the cheque return charges of an amount of Rs.11,86,875/- within a period of four weeks from today.
8. Mr. Kaushal Pandya learned counsel appearing for respondent nos.1 and 2 would submit that the institution has serious doubts on the genuineness of the conduct of the petitioner that the petitioner is willing to offer. He would submit that looking to the past history though the outstanding amounts of Rs.5,27,500/- in two separate installments were due in January 2018 and July 2018, cheques were issued in September, 2018, which were dishonored for which the institution had to initiate an appropriate proceedings. He would submit that the penalty charges and the cheque return charges are justified notwithstanding the principal amount of outstanding fees, the petitioner should not be given any indulgence in paying the fees in installments.””
What next follows is then stated in para 3.5.1 that, “The Court considered the rival submissions as above and then observed and directed as under,
“10. Considering the fact that the petitioner had secured admission to the MBBS course in the year 2016-17 being well aware of the actual fee that he would have to pay of Rs.10,55,000/-, he cannot now be permitted to wriggle out of this commitment. However, looking to the averments made in the petition that the petitioner’s family may have undergone financial crisis as a result of pandemic, only a limited indulgence can be given to the petitioner particularly in view of his past conduct in failing in his commitment by issuing cheques which were dishonored of the amount of Rs.11,86,875/- as the outstanding fees minus penalty and the cheque return charges. The petitioner is accordingly directed to;
(i) Handover cash or bankers cheque or demand draft in the name of the respondent no.1 of an amount of Rs.1,31,875/- to the competent officer of the respondent no.1 institution on or before 12.02.2021.
(ii) An amount of Rs.5,28,000/- in a similar manner shall be paid in the mode as above on or before 18.02.2021.
(iii) The remaining amount of Rs.5,28,000/- shall be paid in the mode as per (i) above on or before 28.02.2021. 11. The petitioner shall file an undertaking to the effect that he will abide by the terms and conditions enunciated herein above within a period of one week from today. Failure to file such undertaking and/or abiding with the terms of such undertaking shall automatically disqualify the petitioner of the benefit of the undergoing of the examinations of the 3rd MBBS-II as per the schedule at page no.23 (Annexure:G).””
To put things in perspective, the Bench then states in para 3.6 that, “Upon requiring the petitioner-student to pay the amounts as indicated and directed in paragraph 10 reproduced hereinabove, the Court observed that if the said payment and undertaking to be filed in that regard is not honoured, then only the respondent No.1 shall have right to withhold the marksheet and other testimonials of the petitioner-student. It is not in dispute that the amounts indicated in (i), (ii) and (iii) in paragraph No.10 of order dated 10th February, 2021 above has been paid by the petitioner-student and the undertaking filed in that regard has been honoured. The payment is evidenced by the copies of receipts produced with the Civil Application.”
To be sure, the Bench then observes in para 3.7 that, “It is noteworthy that on behalf of respondent No.1, as recorded in paragraph No.8 of the aforesaid order, the levy of penalty and cheque bounce charges proposed to be justified, but this Court in terms clarified that, it will not adjudicate those aspects in writ jurisdiction.”
As it turned out, the Bench then points out in para 4 that, “Prayers in the Civil Application as above were required to be made by the applicant-petitioner in view of order dated 25th March, 2021 passed by Dean of respondent No.1 Medical College. Thereby despite payment of amount of the fees by the student as directed by this Court, the Dean, by the aforesaid written order, provided that duties assigned to the petitioner-student in South-West Zone (Athwa Zone)for Rapid Antigen Test and COVID-19 vaccination shall be withdrawn as the petitioner had not paid the fees. It is further provided that petitioner shall not be entitled to be considered eligible for internship and that the duty given to the petitioner-student for COVID-19 and his internship were ordered to be suspended.”
As we see, the Bench then also makes it known in para 4.1 that, “In response to the Civil Application, reply affidavit came to be filed by respondent Nos.1 and 2 affirmed by one Dr.Rajkumar K. Bansal, stating to be holding the post of Dean of respondent No.1 Institute. The detailed contentions were canvassed and it was inter alia highlighted that petitioner had not paid the amounts mentioned in the above tabular form which included the penalty and cheque bounce charges. In support of such claim, Resolution No.167/2019 of the Surat Municipal Corporation was relied on which stated that as per the Standing Committee resolution, 18% interest will be recovered for the cheques which may bounce in respect of payments made by the tax payers, ijaradars and other general payments. Another Resolution dated 24th June, 2009 of the Corporation was also relied on which contemplate levy of late fee from the student. Learned advocate for respondent No.1 further relied on paragraph Nos.16 and 26 of the reply affidavit to vehemently defend the stand of respondent No.1.”
While adding more to it, the Bench then also points out in para 4.2 that, “Learned advocate for the petitioner submitted that the said Resolution for 18% interest on the cheque bounce charges was for different purpose and would not apply in the present case. He also disputed requirement of payment of late fees in light of the aforementioned order dated 10th February, 2021 passed by this Court, whereby the applicant-petitioner was required to pay amount of fees and that the petitioner has already paid the said amount. Learned advocate for the petitioner termed the approval and action on part of respondent No.1 educational institute to charge such exorbitant sum for cheque bounce charges etc. as razor-like arbitrary and unreasonable.”
To state the obvious, the Bench then observes in para 5 that, “There is no need for the Court to express anything about the claim of respondent No.1 for late fee to the extent of about Rs.03.00 lakhs and the cheque bounce charges to the extent of almost Rs.04.74 lakhs as in order dated 10th February, 2021 itself the Court has already observed thus,
“13. It is clarified that as far as the stand of the institution with regard to the penalty and the cheque return charges, the Court will not adjudicate those issues in this petition under Article 226 of the Constitution of India. … …””
For the sake of clarity, the Bench then clarifies in para 5.1 that, “By refusing that the Court would not go into the questions of levy of cheque bounce charges and late fee in the present writ proceedings, the Court has in that way rejected the sand of respondent No.1 Institute and the action of debarment against the student taken on the said ground is disapproved.”
More glaringly, the Bench then adds in para 5.2 that, “In the aforementioned order dated 10th February, 2021, the Court has already expressed to provide that the said issues could not be gone into in the writ jurisdiction. In view of that, the action on part of respondent No.1 to withhold the issuance of marksheet and other testimonials and to further withdraw the eligibility of the petitioner-student for internship and preventing the petitioner from undertaking the COVID-19 duty and vaccination duty assigned to him could hardly sustain. Astonishingly, order dated 25th March, 2021 further provided that the dues assigned to the petitioner for Rapid Antigen Test and COVID-19 vaccination shall also stand cancelled.”
Of course, the Bench then rightly points out without mincing any words in para 6 that, “While the arbitrariness is evident, it also smacks commercial approach on part of respondent No.1.”
Most significantly, the Bench then holds in para 6.1 that, “As a result, the Civil Application deserves to be allowed by setting aside order dated 25th March, 2021 passed by Dean of respondent No.1-Medical College, declaring that it is not only arbitrary but stands against the express directions issued by this Court in order dated 10th February, 2021. The respondents in particular respondent No.1 are directed to release the marksheet, degree certificate, attempt certificate and all other testimonials of the petitioner. It is further directed that the petitioner shall be treated as entitled to undergo internship and the said right shall not be denied to him on the ground of non-payment of penalty and cheque bounce charges.”
Finally, the Bench then holds in the last para 7 that, “The application stands allowed in terms of above direction. Direct service is permitted.”
In sum, the Single Judge Bench of Justice NV Anjaria of Gujarat High Court has ruled decisively in favour of the petitioner as he had a strong case which has already been elaborated upon and he was fully entitled to get the relief which he got also from Gujarat High Court. Thus we see that as a corollary, the Civil Application was thus allowed by setting aside the order dated 25th March 2021 passed by Dean of the Medical College declaring that it was not only arbitrary but stands against the express directions issued by this Court in an order dated 10th February, 2021. It is a no-brainer that by this brief, bold, brilliant and balanced judgment, the Gujarat High Court very rightly calls upon educational institutions to reform and refrain from charging exorbitant amounts from students studying in educational institutions and observes that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or under one or another pretext, thereby demeaning the sanctity of the very concept of the education.”
It is the bounden duty of the educational institutions to abide by what the Gujarat High Court has held so decisively and always desist from the urge to make more and more money which makes the students to suffer immensely for no fault of theirs! The virus of commercial mindedness has to be cured and for this the educational institutes must themselves come forward and adhere to what the Gujarat High Court has held so clearly, cogently and convincingly!
BREACH OF RIGHT TO LIFE DURING COVID-19 ERA: FIXING GOVERNMENT’S LIABILITY TO COMPENSATE
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.
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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