Right to life as guaranteed under Article 21 of the Constitution of India also includes the right to health and states being the duty bearer to protect the health and wellbeing of its people. The right to health also has its reference in Article 38 — social order to promote the welfare of the people under the Constitution of India.
The novel coronavirus also known as COVID-19 said to be originated in Wuhan, China. Over a period of time, it has been spread almost all the other countries, including India, which observed its very first case in January this year. With the increasing number of cases, the World Health Organization (WHO) declared COVID-19 a “Global Public Health Emergency”. Governments across the globe have taken drastic measures to limit the virus’s spread, including national lockdowns, border closures, and ramped-up medical research. To fight against this pandemic, Hon’ble Prime Minister Narendra Modi imposed a nation-wide lockdown for 21 days in India from 25th March 2020 with only a few essential services running, all others like commercial, industrial, religious and cultural activity were shut down. Residents were ordered to self-quarantine themselves. This lockdown was aimed at slowing down the spread of the coronavirus and breaking the chain to combat corona. Instead of obeying the lockdown order, people started panicking and scrambling to stock daily essentials products and thousands of labours, migrants, who fear dying not from the deadly virus but rather from hunger, have decided not to wait and start moving to their respective state. Many of the fundamental rights of the people are suspended.
Stages of transmission
According to the Indian Council of Medical Research (ICMR), there are four stages of transmission of the Novel Coronavirus:
• Stage 1 – Imported Cases (People with travel history). This includes cases usually from people who had travel history to an already corona affected country.
• Stage 2 – Local Transmission (Transmit virus usually to friends or family member). This includes those cases from people who have brought the virus from other affected countries and transmit it to people living nearby them.
• Stage 3 – Community Transmission This includes those who are not having direct contact with an infected person or not having any travel history to any affected countries yet he/she reports corona positive thus affecting many others around him/ her.
• Stage 4 – Epidemic This is the last and the most fearsome stage as the disease becomes an epidemic in a country with large no of cases spreading across the country and the rising number of deaths with no clear stopping point. China is a perfect example of this situation.
Legal aspects: Constitutional framework
As we know, The Constitution of India is supreme and consider as a “skeleton to guide”. Every passed act derives its validity from the Constitution itself. Any provision or act which is in contravention with the articles mentioned in the constitution is considered to be “void ab initio”.
But article 256 of the Indian constitution grants powers, which deals with the duty of the state and the union’s executive power and also extending the power of Union of giving required instructions to the State as may appear to the Indian Government to be necessary for the purpose. And this lockdown for 21 days announced by the prime minister is valid in this manner as all these are done to protect whole India from the deadly contagious disease and same recognized by the government and prioritise the interests of society at large and suspending some of the rights of the individual for the benefits of the general public. And it is a well-known fact that this pandemic is affecting every country and India as a whole and the declaration of lockdown was to prevent the life of the people
. Here the Union, the state and the citizens came along and decided to voluntarily waive their right to movement and restrict themselves in certain boundaries to fight against this pandemic disease i.e. Coronavirus together and it is completely valid as it is for the welfare of the society. And in Smt Ujjaim bai vs state of UP, it was held that Fundamental Rights are inviolable except under certain conditions. The rights are placed in Part III of the Constitution, which is regulated ‘Fundamental Rights”, and the conditions under which these rights can be abridged are also indicated in Part III. Briefly stated, the conditions are that they can be abbreviated only by a law in the public interest or to achieve a public purpose.
1. Tracing patients: Surveillance vs Right to Privacy. The right to life and personal liberty is most basic of all our rights and gives meaning to our very existence. Every person comes into the world with a right to his person which has the freedom of moving and using it at his own will. This Fundamental Right is guaranteed under Article 21 of the Constitution of India, which states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
Right to life as guaranteed under article 21 of the Constitution of India also includes the right to health and states being the duty bearer to protect the health and wellbeing of its people. The right to health also has its reference in Article 38 – Social Order to promote the welfare of the people under the constitution of India
. It is also stated in Section 2 of Epidemic Law that authorizes a state to inspect people and segregate suspected patients. Measures and procedures for the check-up, vaccination, and vaccination of persons, including their segregation in a hospital, temporary accommodation, or otherwise can also be taken.
“necessitas non habet legem” – necessity knows no law.
In the time of Pandemic, we should not lose vision of the inventive capacity of the law to maintain its significance. Necessity is a doctrine which ties the gap between what the law allows the government to do and the government’s actual response at the time of emergency. Restricting the free movement of the citizens of India and to assemble peacefully in the territory of India, guaranteed under Article 19(1)(b) and (d) of the Constitution of India. The framework of the said laws imposing restrictions have been curtailed to maintain public order and in the interest of the general public. Limiting some of the rights of an individual for the legitimate aim to protect them from this deadly virus is itself a need of the nation right now.
2. Quarantine vs Right to freedom of movement
The consequence of law which curtailed individual freedoms guaranteed by Article 19 would be required to answer the tests of reasonableness stated in clauses 2 to 6 of Article 19 and the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does not amount to an unreasonable restriction within.
All citizens of India guaranteed with protection of certain rights such as Fundamental rights “to move freely throughout the territory of India” and “to assemble peaceably” which guaranteed under 19(1) (d) and Article 19(1) (b), respectively.
Quarantine being a restriction on free movement and assembly of people prima facie violates fundamental right mentioned in Article 19 of the constitution of India. However, Article 19 (3) states “Nothing in subclause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order”. Likewise, Article 19(5) offers the state power to make such laws in the interest of the general public.
The UN Charter and International law principles also implied here as India being party to these which states that “Member states have the sovereign right to implement their health policies, even if this includes the restriction of movement of people. Article 3 of the International Health Regulations (IHR), 2005 lay down rules for implementation of quarantine, ensuring it to be respectful of the dignity, human rights and fundamental freedoms of individuals.
Quarantine includes the restriction of free movement of individuals, or separation from the rest of the population, of healthy persons who may have been infected, with the objective of monitoring their symptoms and ensuring early detection of being infected.
And Epidemic Diseases Act, 1897 empowers the government to provide better prevention of the spread of dangerous epidemic diseases. Any state government, when satisfied the test of reasonableness i.e., any part of its territory is exposed to an outbreak like coronavirus, may authorize all measures, including quarantine, to prevent its spread. This is the main legal defence of the government to combat this situation of crisis.
“Desperate times breed desperate measures.”
Quarantine, across the world, is proving to be the best bet in the containment of Coronavirus disease and the same is prescribed by WHO. It might be interfering with our liberty but such a reasonable restriction is even permissible under our Constitution itself in the interest of general public and order, it is also our duty as a citizen to cooperate with the government and help to break the chain of infecting coronavirus by being at indoors.
Statutory provisions involved
It is clear that no single law can effectively control the present coronavirus outbreak. It is this reason that there are various provisions of Indian Penal Code (IPC), Criminal Procedure Code (CrPC), the Epidemic Diseases Act and the Disaster Management Act (DMA) is being invoked to govern the current outbreak situation.
3. Penal provisions needed for criminally negligent patients and authorities While dealing with an emergency by the outbreak of a dangerous viral disease, the state may seek the support of its citizens to combat coronavirus. If the desired support is not forthcoming, a regulation may be imposed. For example, Section 144 (Cr.P.C.) empowers the administration to enforce restrictions on the personal liberties of individuals to prevent injury or danger to human life, health, and safety or disturbance of public peace. And section 4 of the Epidemic Diseases Act includes a protection clause that gives state immunity such that “no suit or other legal proceeding can be brought against any person for anything done or in good faith intended to be done under this Act.”
Failure to comply with such restrictions constitutes a punishable violation under the following sections of the Indian Penal Code, 1860.
There are these statutory provisions which direct the authority during this pandemic namely,
The Epidemic Diseases Act, 1897,
The Indian Penal Code, 1860.
The Disaster Management Act, 2005 and
Code of Criminal Procedure, 1973.
The Epidemic Diseases Act, 1897
Section 3 of this Act puts light on the penalty that can be given for potential violations of government order of lockdown. As per this provision, the punishment is given when a person violates any regulation or order made under the Act. The quantum of punishment is recognized under Section 188 of the Indian Penal Code, 1860.
Indian Penal Code,1860: The relevant sections of IPC during this pandemic are Section 188, section 269, section 270, section 271.
i. Section 188 deals with disobedience to the directions promulgated by a public servant, the kind of noncompliance that is most likely to take place during the time of the outbreak and emergency i.e., disobedience which tends to cause danger to human life, health or safety or causes or tends to cause riot or disturbance will be punished with an imprisonment term up to 6 months or a fine up to 1,000 rupees or both.
ii. Section 269 covering negligent act likely to spread infection of disease dangerous to life, which will be punished with an imprisonment extendable up to 6 months or fine or both.
iii. Section 270 covering malignant act likely to spread infection of disease dangerous to life, which will be punished with imprisonment extendable up to 2 years or fine or both.
iv. Section 271 covering disobedience of quarantine rule, which will be punished with imprisonment extendable up to 6 months or fine or both.
The Disaster Management Act
The purpose of this act was to bring to a situation such as an earthquake, flood or fire rather than a disease like COVID-19. However, the Home Ministry on 14th March declared the Coronavirus outbreak as a “Notified Disaster”, thus, bringing into play the provisions of the Disaster Management Act.
Chapter X of this act exclusively talks about offences and penalties.
Section 51 (b) of this act states that whoever, without reasonable cause, refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act. This provision has two facets- Firstly, it is for the persons who leave their homes for nonessential work. Secondly, it is for the persons who are infected from the virus but run away from the isolation ward. Those will be punished with imprisonment of a term up to 1 year or fine or both and can be extended to two years looking at the severity of the offence.
Law to impose a penalty on people spreading misinformation
Section 54 of this act includes punishment for false warning. The section is relevant in present conditions as if a person create or forward fake news and information about coronavirus with an intent to create chaos through social media platforms will be punished with imprisonment of a term up to 2 years and also with fine or both.
This coronavirus is said to have come to India from foreign countries and it must be addressed jointly by the whole nation without internal geographical restrictions and conflicts. As almost all the fundamental rights, right to freedom of movement, right to assemble peacefully right to privacy and various other fundamental rights were practically deferred during nationwide lockdown. But all these are done to protect the public from the deadly virus and government recognized to prioritise the interests of society at large and suspending some of the rights of individual for the benefits of the general public. If we look closely to the need of the lockdown amid an outbreak of coronavirus, we can draw that there was a legitimate aim of the state to impose the lockdown to protect the general public from the contagious virus and protecting the nation from this outbreak. Difference in steps taken by different authorities created confusion and lawlessness and cause panic among the general public. I believe government measures of social distancing under the nation-wide lockdown to prevent the spread of the contagious virus is appreciable and the only way to combat the spread of coronavirus.
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Making it happen: Covid management in Sonipat
Imaginative planning, meticulous execution and untiring efforts by young IAS officer Shyam Lal Poonia and his team have helped the district sail through the second wave.
Like many regions of the country, the second wave of the Covid hit the district of Sonipat (adjoining Delhi) really hard with the positivity rate reaching a high of 54.71% on 25 April 2021. With the second wave came different sorts of challenges of which oxygen supply was most critical, given the non-existent perennial supply system for the hospitals including the 500-bedded Medical College at Khanpur Kalan.
The challenge of medical oxygen was altogether new for Sonipat like many other districts in the country. This, coupled with close to 60% patients coming from Delhi, led to quick saturation of bed capacity in Covid hospitals of the district by 25 April 2021. Consequently, a dual challenge of increasing oxygen beds on one hand and managing oxygen demand within the available quota on the other was faced. As on 24th April, the district was receiving a daily quota of 9 MT liquid oxygen. To add to the worries, the agency responsible for supplying around 4 MT daily oxygen to Medical College had pulled out. As the state allocated oxygen quota was being determined elsewhere, the focus was on mobilization of resources and managing within this quota for which the following line of action was undertaken:
PSA Plant: A 200 LPM capacity PSA plant approved under PM Cares Fund was lying idle since February as the Agency didn’t install it and district health team didn’t realise its importance. With the help of one Prof. Jogendra from Pacific College, Sonipat, PSA oxygen plant was commissioned at Civil Hospital Sonipat on 30th April. This helped increase the number of oxygen beds at Civil hospital.
Oxygen Audit: Nodal officer was appointed for oxygen supply and officers were positioned at each of the bottling plants and hospitals. A multi-pronged approach was adopted to prevent wastage and siphoning off of medical oxygen at bottling plants and in hospitals. A formula was put in placeabout average consumption on the basis of guidelines issued by MoFHW. Accordingly, average consumption in all hospitals was calculated. A committee was also constituted for oxygen consumption audit in all hospitals. Quota was now being allocated to hospitals based on their patient load. These steps helped save 2-3 MT of LMO per day. This resulted in the increase of oxygen beds from 605 to 791 by 1st May. Moreover, the district quota was increased to 13 MT on 2nd May by the Government which helped further increasing the number of oxygen beds to 950 including 90 ventilators.
Augmenting Oxygen Storage: By end of April, 2021, the district had only one Bottling Plant with storage capacity of 20 MT which was catering to more than 25 hospitals. Through concerted efforts two more bottling plants licenses were facilitated for medical oxygen and a storage capacity of 50 MT was added within 15 days.
LMO Tank at BPS Government Medical College, Khanpur: With a daily oxygen demand of more than 450 D-Type cylinders, the Medical College was the major consumer for oxygen in the district. With every passing day and increase in patient load, it was becoming difficult to maintain regular supplies through cylinders. With the help of one of the Bottling Plants, an LMO storage tank with 12 MT capacity was installed within a week at BPSGMC. This gave a major boost to oxygen supply at the Medical College and the number of oxygen-supported beds increased from 150 to 350. This also resolved issues related to oxygen flow pressure and refilling and transportation of oxygen cylinders.
PSA Plant at BPSGMC: To further augment oxygen availability in the district and to tackle any unforeseen situation in days to come, a PSA oxygen generation plant under CSR has been installed at Govt Medical College, Khanpur with a capacity of 1000 LPM. Installation of one more PSA Plant with 1000 LPM capacity by DRDO is under progress.
At one point in time, the district had more than 7000 active cases and 90% of them were under home isolation spread across the geography of the district. To monitor them on a regular basis was a challenge given the inadequate manpower in the field.
With the support from young MBBS/PG medical students from BPS Medical College, a motto – Chase The Patient – was coined. Tele-consultation services were provided for all home isolated patients. 120 PG students of the Medical College were engaged to monitor all the home isolated patients of the district. The students were divided into 15 area-wise teams, each team connected with their respective Community Health Centre (CHCs) and Urban Health Centres (UHCs).
A team of IMA doctors was roped in which constantly supported patients with their COVID treatment, psycho-social care and post COVID recovery issues. Timely tele-consultation meant that scores of patients were provided early medical care and prevented from being hospitalized.
Even as oxygen bed capacity was being increased across the district, it was observed that admission in COVID facilities was leading to disconnection of patients with their family members, due to restrictions. This was especially true for those not possessing smart phones. Covid treatment protocols couldn’t be violated. However, families were especially feeling anxious to talk to patients and know their health status. The District Administration accordingly initiated e-Samvaad wherein 6 tablets have been provided to Civil Hospital, Sonipat and BPS Govt Medical College to facilitate interaction of admitted patients with their family members. During a fixed time slot, the attendant/ family members can now interact with their patient on video call through WhatsApp/ Google Meet/ Zoom. The Nursing Staff dedicates themselves for this purpose in the given time slot.
Given the exponential rise in cases across Sonipat, it was important to set up a central COVID Control Room to address all citizen queries and to manage the situation on-ground. A team of 40 teachers and operators was trained to work round the clock in three shifts. Dedicated helpline catering to all citizen queries around vaccination, testing, bed availability, oxygen cylinders, movement passes and for lodging complaints against black marketing, overcharging, were made operational.
Imaginative planning, meticulous execution and untiring efforts by this young IAS officer, Shyam Lal Poonia and his team have helped the district sail through the second wave. Positivity rate is now below 2% and hospital bed occupancy is less than 20%. They made it happen amidst trying set of circumstances.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
Politics on Central Vista project unreasonable
A modern building equipped with the latest digital technology replacing the 90-year-old Parliament House is the need of the hour. Do you know that 12 ministries of the Central government are functioning from rented buildings and the government spends about Rs 1,000 crore annually to pay the rent? Around Rs 20,000 crore would have been paid towards rent only during the period I was in Parliament. This project is the need of the hour keeping the future in mind. If all the ministries are brought together, it will help them function even more proficiently.
If we just keep trying to prove Prime Minister Narendra Modi wrong on everything, it will weaken the very existence of the Opposition. The voice of the Opposition will carry weight only if the opposition or protest will be constructive, and not just for the sake of it. Today some people are protesting about the Central Vista project, but they should understand that the first initiative was taken by the then Lok Sabha speaker Meira Kumar during the Congress-led government in 2012 to build a new Parliament building. The leaders of other parties including Atal Bihari Vajpayee had supported it.
Under the Central Vista project, the offices of the Vice President, the Prime Minister as well as all the 51 ministries will be housed under one roof. MPs will have offices. All the buildings will be connected to each other. This will benefit from the security point of view and help get rid of the problems people face during the VIP movement too.
The project will cost about Rs 20,000 crore and Prime Minister Narendra Modi wants to complete most of the important work of this project before the end of his second term in 2024. The rest of the work will be done later.
A section of the society is questioning the need to spend such a huge amount on the project in the midst of this pandemic when the economy is badly hit. People are also questioning the purpose and benefits of this project.
Normally, this logic may sound right, but if you understand things with a deeper perspective, you will understand how important the completion of the Central Vista project is from the administrative point of view keeping in mind the future. I have been a part of the Parliament for 18 years so I have seen and understood the requirements closely. Many of these buildings are dilapidated. It is difficult to work sitting there. The legislative section of India sits in the Parliament House whereas the President, Vice President, Prime Minister and officials of 51 ministries sit at different places. Rashtrapati Bhavan, Parliament House, North Block and South Block, and National Museum building were built in 1931. After that Nirman Bhawan, Shastri Bhawan, Udyog Bhawan, Rail Bhawan and Krishi Bhawan were constructed between 1956 and 1968. Today, 39 ministries are housed in different buildings in the Central Vista area while 12 ministries are occupying rented premises outside.
You will be surprised to know that their annual rent is about Rs 1,000 crore and their distance from the PMO and other ministries is quite long too. Obviously, the administrative work gets hampered. So, is it justified to spend such a huge amount on rent? Just calculate how much rent the government would have paid till now. Around Rs 20,000 crore must have been paid only during the period I was in Parliament.
Another important point is that when the buildings were built in Central Vista and its surrounding areas, there was no digitalization like it is today. Now along with the security of Parliament House and ministries, there is always a big question for the security of digital files. Building a new complex will ensure better security for both.
India is a rising power in the world today. Priorities are changing, so it is very important that the entire Central government should be accommodated in a cluster of buildings equipped with modern technology so that ministers can easily reach out to each other, meet and interact. If 51 ministries located in the buildings being rebuilt in the Central Vista project are near each other, it will definitely benefit from the administrative point of view.
We also have to keep in mind that our population is growing, so surely the number of MPs will have to be increased too in future. Keeping this in mind, the new building of Parliament House will be built on about 65,400 square metres of land and have a large Constitution Hall, a lounge for MPs, a library, offices of several committees, etc. The Lok Sabha chamber will have a seating capacity for 888 members and the Rajya Sabha chamber will have the same for 384 members. Along with this, there will be ample space for the National Museum, National Archives and Indira Gandhi Art Museum and our heritage will also be displayed in a dignified manner.
Those who are critical of this project say that an amount of Rs 20,000 crore should be spent on helping the poor and providing healthcare facilities during the pandemic. But the question is whether the government is executing this project by diverting the funds meant for the poor or the needy? Of course not. The government is not rolling back any welfare scheme meant for the poor. All schemes are running as before. I believe that the poor must be helped and every government has been doing this. The point is we have to plan for the future too.
If we look at the post-independence history, be it Pandit Jawaharlal Nehru, Lal Bahadur Shastri, Indira Gandhi, Rajiv Gandhi, Atal Bihari Vajpayee or any other person who has been in power, everyone has worked on planning for the future and that is why India has occupied this prime position today. If Rajiv Gandhi would not have dreamt of a technology-rich India, had we been where we are today? We must worry about the present. Problems should also be solved, but we should also dream of a better future. The office of our Prime Minister should also be state-of-the-art, equipped and secure like the Parliament and Presidential buildings of America, Russia, Britain and other developed countries. That’s why I want to say that there should be no politics, at least in the case of the Central Vista project. There are several other subjects for politicking.
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
India is a rising power in the world today. Priorities are changing, so it is very important that the entire Central government should be accommodated in a cluster of buildings equipped with modern technology so that ministers can easily reach out to each other, meet and interact.
DOES INDIA NEED POPULATION CONTROL LAW?
The biggest problem in this country right now, which is not given any attention, either very narrow political thinking and cheap prejudice is slogans that is POPULATION. Currently the population of India is approximately 1.38 billions.second largest after china.
In 2015 India’s population was a whopping 1.31 billions, Productions shows in 2022 India will over take China to become world’s most populous country.Earlier predictions cited year 2028 for this to happen but India’s Population is growing so rapidly, that mark in 6 years advance.And it is not a matter of pride, over population leads to poverty, unemployment, climate change which pressure the natural resources, like- forest and land, leads to increase in social and religious conflicts, so overpopulation is regarded as the root cause of most of the problems in this part of the world.We are told time and again that India is the country with the youngest population, but the truth is that we have not done as much actively as we should about the population.
The condition has really worsened and is visible everywhere like- markets and public places,if you want to get an idea of the situation, just have an look in your locality
HIGH TIME TO IMPLEMENT THE LAW
At this time the country has come to a situation where there is a dire need of population control law, due to the increasing population day by day, ignoring the huge shortage of resources will prove to be our biggest mistake, because in a country like India without law and order It is impossible to remove any mismanagement of the population, so in view of the current population growth, it is very important to implement a population control law, and it should be such that the public can easily accept it, that is, the law should be made in such a way that the public understands their benefits. Come in and the public does not understand the collective loss in any way, earlier also the initiative was taken by the previous governments to control the population, but there were some such discrepancies in those rules due to which the governments failed.So now there is a need for a structure of such a law, due to which there can be a positive change and the country can move towards a development, due to the implementation of the law, there will be a huge hindrance in population growth and due to the general population rate, the supply of resources. It will also be completed smoothly and will help the country to be a developed country from a developing country.
National population policy:. Needs for planning of families would improve individuals health and welfare. Government of India initiated a comprehensive family planning programme (1952) . Family welfare Programme sought to promote responsible and planned parenthood on a voluntary basis.
Mainly focused on: Provides a policy framework for imparting free and compulsory school education upto 14 years of age, Reducing infant mortality rate below 30 per 1000 live births, Achieving universal immunisation of children against all vaccine preventable disease, Promoting delayed marriage for girls, Making family welfare a people centred programme.
SOME POSSIBLE SOLUTIONS WHICH CAN BE USED TO TACKLE THE PROBLEM OF OVERPOPULATION
China’s one child policy:- Whenever we are discussing solutions for overpopulation China’s one child policy comes first mostly in our mind, they think that Indian government too should follow china and implementation this policy to restrict the birth of more than one child but most of the people don’t know that China’s one child policy was a failure thirty years later in 2015 they ended this policy. This policy lead to a huge gender imbalance and increase in female foeticide. This happened because like India, China to is traditionally a patriarchal society. Where people prefer at least one male child over a female child. So when the government restricted the number of the child to one to go for female foeticide to have a male child not girl, this led to a huge gender imbalance which made china a world’s worst sex ratio country in 2014 .that was 22 male is to 100 females.
This huge gap in made female population led to some ill practice BRIDE PRICE in which brides were bought in return of money, in few cases brides use to runaway with the money within few days of the marriage, so one child policy led to all these problems. So we can conclude the one child policy is not a good solution to fight overpopulation in case of India.
INDIA’S FORCED STERILISATION:- Forced sterilisation too was suggested as a solution to counter over population this infact had already been tried in india.
During the emergency imposed by Indira Gandhi in 1976 when her son Sanjay Gandhi lead a forceful sterilisation program, in which 10 million people were sterilised there were few of forceful sterilization people were compelled to go and get sterilised But surprisingly even after sterilisation 10 million people these was no evident of this on population growth no noticeable change was observed.
This shows forceful imposing of unplanned policies would not lead to a change and above all its very unethical to sterillise someone forcefully because reproduction is a very basic human right. No one should get to decide how many child a person can have its immoral and unethical.
So Forced sterilisation can’t be regarded as a solicitation in today’s world.
True solution to overpopulation :- So, it all melts down to this question that what can be the effective and realistic solutions against overpopulation. And answer of this is a little boring and it is the investment in education and health care and to understand this we must know,
WHAT FERTILITY RATE MEANS?
Fertility rate of a country is the average number of children a woman gives birth to in her life time, if fertility rate of a country is 2 that means every woman in that country gives birth to 2 child, which means the number of people dying are equal to the number of children born. This makes population stable, this is why 2 fertility rate is called REPLACEMENT fertility “theoratically” but in reality many children die during the birth itself so realistically the replacement fertility rate is taken as 2.2 and if any country’s population is near about this replacement fertility rate then in future it will remain stable so to end over population we must aim to maintain fertility rate of country close to 2.2 and why I am saying that education is the only solution to fight against literacy rate, both are surprisingly interdependent higher the literary rate lower the fertility rate this pattern is observed in many places of the world over as well as Indian states for instances Kerala the state with highest literacy rate in india nearly 100% literacy rate has a very low fertility rate as Madhya Pradesh, Rajsthan, Uttar Pradesh literacy rate very low and evidently the fertility rate is very high, infact very few states of India have fertility rates above 2.2 in whole India those are Rajsthan, Madhya Pradesh, Uttar Pradesh and Bihar and because of these states India’s population is increasing because rest of all the other states have come down below this replacement fertility rate.
Population control Bill, 2019:- In July 2019, a bill introduced in the Rajya sabha by Rakesh Sinha. The bill is to control the population growth of India. According to world Population Prospect 2019 report by the United Nations , the population of India will overtake that of china within a decade. The introduced bill was signed by 125 MP and is yet to become an act of law.
•In 1976, population control and family planning were added to the third list of the Seventh Schedule under the 42nd Amendment of the Constitution. Under this, the central government and all the state governments were given the right to make laws for population control and family planning.
Conclusion:- Many myth about increasing population like- Hindu Growth Suppose there is a poor farmer and he is told that you have children and if you get yourself and your wife operated.like-Suppose there is a poor farmer and he is told that you have two childrens and if you get yourself and your wife operated.So you will be given such amount by the government.
So how many things are involved here- Awareness,and he believes that oppression will be successful, In this, they understand the economic benefits, as in many backward classes, there is an ideology that there will be as many earning hands as there are people, then something should be done for them like people who are below the poverty line, if they get an operation on a child. If so, then such amount will be given by the government and legal action will be taken if there are more than two children.
There should be a nationwide discussion on population control, obsessive ideas should be sidelined. The law should be such that it encourages the public to do so, not the law that is forced on the public.
LIBERALISING SAUDI ARABIA’S EDUCATION BY INCREASING TOLERANCE TOWARDS OTHER RELIGIONS
“Saudi Arabia…(is) the heart of the Arab and Islamic worlds, the investment powerhouse, and the hub connecting three continents.”
~ Vision 2030
Saudi Arabia being a flag-bearer of Islam, serves as a home for more than 30 million inhabitants in which the majority (about 85 to 90 percent) includes adherents of the Sunni sect of Islam. Other sects include Shias that account as minority population and face severe persecution along with other religions like Christianity, Buddhism, Hinduism, etc. Saudi Arabia is known as the birthplace of Islam as it acts as a custodian for two holy cities of Islam – Mecca and Medina – that is why it has a major say and political legitimacy among other Muslim nations of the world. We can infer the same from a recent instance where under the chairmanship of Saudi Arabia, the OIC supported Gambia that referred genocide of Rohingya Muslims in Myanmar to the International Court of Justice (ICJ). Moreover, even the issue was referred by the Gambia to ICJ under the already provided implicit support of Riyadh.
Saudi Arabia in various instances in United Nations (UN) stated that it is committed in order to ensure the preservation of stability and the conservation of International peace and security as well as acted as a crucial partner of the US on counterterrorism. However, the progress remained slow and steady in nature, which is why various times Saudi Arabia faced international criticism stating that it supports the Islamic radicalization that leads to terrorism and impedes International stability. After the new ruler of Saudi Arabia set the stage, the country is becoming more and more liberal in nature. Recently, Saudi Arabia banned flogging as a punishment and said that convicts to be handed jail sentences and fines instead.
In another major step, recently, Saudi Arabia will introduce a new education curriculum, including textbooks of other religions, including ‘Ramayana’ and ‘Mahabharata’ of Hinduism, to expand the cultural knowledge and exposure of Saudi youth and prevent them from going on the path of radicalization. The article elucidating the importance of Saudi in the International arena, attempts to delve into the fact why this step is a crucial one that would increase tolerance among Saudi youth and encourage other orthodox Islamic nations in the world in becoming liberal. Further, it also talks about what still needs to be done so that it might not hamper international peace and stability in the future.
RELIGIOUS FREEDOM IN SAUDI ARABIA
The policies and laws of Saudi restrict religious freedom and prohibit any other religious practice in public except Islam. ‘Sunni Islam’ is the official religion, and the constitution of the country is the Quran and Sunnah (traditions and sayings of Prophet). Moreover, the Saudi government does not respect religious freedom. However, it allows Shia religious gatherings and other non-Muslim private religious practices sometimes.
Furthermore, the reports state that the Muslims that are liberal in their mindset and do not comply with the conservative rules of the Saudi government face significant political, social, legal, economic, and religious discrimination. Conservative vigilantes sometimes even harass and assault citizens and foreigners who follow other religions. Several times various human rights groups, activists, including the United States Commission on International Religious Freedom (USCIRF) have raised concerns about the same. The USCIRF has even included Saudi Arabia in the list of ‘countries of particular concern.’
Several human rights watchdogs have already severely criticized Saudi Arabia concerning the education imparted to Saudi children and youth. As per the Human Rights Watch, the [Saudi Arabia religious] texts disparage Sufi and Shia religious practices and label Jews and Christians as ‘unbelievers’ with whom Muslims should not associate themselves. Thus, in alleviating such aggravating situation, this step will play a major role not only in liberalizing the mindset of the citizens of the country but would also lead to the unleashing of the restrictions that residents of other religions as well as Islamic religions face. However, this plan is still, in theory, we have to see in the future how Saudi Arabia implements it or whether it implements the same or retracts it.
WHY THIS STEP IS CRUCIAL
As a part of Vision 2030, the introduction of significant elements of Indian cultures such as Yoga, Dharma, Karma, Ayurveda, Ramayana, Mahabharata, along with elements of Buddhism and other religions in the school curriculum, is a first step from the side of Saudi Arabia’s government to increase tolerance for other religions. Various other Islamic nations, such as the United Arab Emirates (UAE), have a few Hindu Temples allowing Hindus to profess their religion freely within the country, and further, a new Hindu temple is also constructing in Abu Dhabi. Similarly, Oman also has a few Hindu temples allowing Hindus to profess their religion. However, Saudi Arabia since time immemorial remained parochial towards other sects of Islam as well as other religions. After this step, the tolerance for other sects of Islam and religions will increase in Saudi Arabia. This step would also give a message to other nations that restrict the freedom of religion and might pave a way for them to liberalize in their mindset as well.
Moreover, this step might help Saudi Arabia in the future in enjoying more closed ties with India. Saudi Arabia is the fourth-largest partner of India in terms of economic relations. The ties with other nations such as EU countries would also get strengthened as Human Rights NGOs and watchdogs would enhance the ranking of Saudi Arabia in Religious tolerance. It will also help in boosting the tourism sector of Saudi Arabia as the individual following other religions will not fear traveling to Saudi Arabia. Foreign investment might also get increased as companies might get a conducive work environment. Further, it might also be possible that Saudi Arabia request Indian professors having good knowledge in the field of customs and traditions to train the Saudi teachers, or it might also recruit Indian professors to teach in Saudi schools. Thus, it shows that not only Saudi Arabia but various other nations of the world also get benefitted from this step.
WAY FORWARD AND CONCLUSION
Since September 11 attacks, Saudi Arabia has faced pressure from the side of the US and other western nations to reform its education curriculum after it was found that 15 out of 19 hijackers were Saudi citizens in the attacks. Thus, the major plans laid down in ‘Vision 2030’ of Saudi Arabia, including education reforms, might play an important role in transforming the country and making it to lead a new path of development. The document primarily aims to culturally as well as economically alter the problems intrinsic in the political, economic, and social system of Saudi Arabia. This step will also act as a beacon of hope for ostracized and persecuted minorities living in Saudi Arabia.
However, only this step will not uproot all the problems prevalent in Saudi Arabia, still, it has a lot to do in the realm of religious freedom. Saudi Arabia should allow the citizens of other religions residing as minorities to profess their religion publicly without any discrimination. Article 18 of the International Covenant for Civil and Political Rights (ICCPR) states that “everyone shall have the right to freedom of thought, conscience, and religion. This right shall include the freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or in private, to manifest his religion or relief in worship, observance, practice, and teaching.” Saudi Arabia being a signatory of this covenant, should adhere to its principles and provide the freedoms.
Thus, this is a much appreciated and welcome step, which will help in maintaining peace and stability in international atmosphere in the near future, but there is still more to do on the part of Saudi Arabia as well as other Islamic nations. Saudi Arabia and the United Arab Emirates being two major powers of the Islamic sphere, would play a crucial role in leading this movement.
Central Vista Project case: Is PIL about public or publicity?
Central Vista Avenue Redevelopment Project referred to as the Central Vista Project (CVP) has attracted a lot of eyeballs in the recent past due to the PILs filed in Supreme Court and then Delhi High Court and the political statements issued by opposition in this context. A set of media articles has also spent bottles of ink highlighting the problems with this project. Delhi High Court while judicially reviewing a case against CVP (PIL: Anya Malhotra vs. Union of India), declared the CVP as “an essential project of National Importance”, and went ahead to mention in the order that “this is a motivated petition preferred by the petitioners and not a genuine public interest litigation” with imposing a cost of Rs. 100,000/- (one lakh). Pradeep Kumar Yadav has now challenged the May 31st decision of the High Court in an appeal before the Supreme Court. Interestingly, Supreme Court has already in a 611 page order (2:1) in the case of Rajeev Suri vs. Delhi Development Authority & Ors (decided on 5th January 2021) has given a green signal to the project. Hon’ble Justice Sanjiv Khanna dissented from the majority on the issues of “public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee (HCC) and the environmental clearance order passed by the Expert Appraisal Committee (EAC)”; however, concurring with the majority on “the aspects of Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission”.
Public Interest Litigation: PIL is basically a relaxation in the rule of ‘locus standi’ (the right or capacity to bring an action or to appear in a court). The traditional rule is that a person who brings the action must have the cause of action/ locus standi. In cases of fundamental rights, it is the person whose rights have been infringed brings this locus. However, there are situations in which the aggrieved person may not be able to reach Supreme Court or High Courts for vindication of his/her rights, in such situations Supreme Court has allowed any ‘public spirited citizen’ to bring a case on behalf of the aggrieved person. Justice V.R. Krishna Iyer observed in Akhil Bhartiya Soshit Karmachari Sangh Case (1981) that “access to justice through ‘class actions’, ‘public interest litigation’ and ‘representative proceedings’ is the present constitutional jurisprudence”. The concept of class action comes from the American jurisprudence.
Hussainara Khatoon vs. State of Bihar (1979) became the first reported case of PIL which focused on the inhuman conditions of prisons and under trial prisoners that led to the release of more than 40,000 under trial prisoners (petition filed by Kapila Hingorani). Justice P.N. Bhagwati in SP Gupta case (1982) laid down the foundation of modern PIL in India by stating “any member of the public having sufficient interest can maintain an action for judicial redress for public inquiry arising from breach of public duty or from violation of some provisions of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provisions.”
A PIL may be filed against ‘State’ both under Article 32 before Supreme Court (only for breach of fundamental rights) and under Article 226 before High Court. The Court can itself take cognizance of the matter and proceed suo motu as well on the basis of public information received by it through newspapers or any other source. Supreme Court has entertained even letters as petitions in some cases (epistolary jurisdiction). Evolution of PIL as a mode of helping people became the purpose/objective for many Non-Governmental Organisations (NGOs) like Peoples Union for Democratic Reforms, Rural Litigation and Entitlement Kendra, Indian Council for Enviro-Legal Action, People’s Union for Civil Liberties, etc.
There are hundreds of PIL decided by Supreme Court and High courts. These PILs have ushered in the era of judicial activism. Supreme Court has used its jurisdiction under Article 32 in a creative manner, also referred to as Judicial Activism, giving new dimensions, meaning, scope and purpose to many fundamental right, especially Article 21 – the Right to Life and Personal Liberty.
Publicity Interest Litigations: While elaborating the concept of locus standi, Justice PN Bhagwati had also cautioned, “but we must be careful to see that the member of the public, who approaches the court in case of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The courts must not allow its process to be abused by politicians and others….” Supreme Court in several cases has deprecated the practice of PILs turning into ‘Private Interest Litigation’ or ‘Political Interest Litigation’ by imposing heavy costs on the petitioner.
Supreme Court Guidelines on PIL excludes the following cases from being entertained as PIL: (1) Landlord-Tenant matters. (2) Service matter and those pertaining to Pension and Gratuity. (3) Complaints against Central/ State Government Departments and Local Bodies except those relating to the listed matters to be entertained as PIL (4) Admission to medical and other educational institution. (5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts.
In the Central Vista Case, while disposing of a bunch of petitions on this subject, the Supreme Court has observed, “The tool of public interest litigation or “social interest litigation”, as it is more appropriately called, was devised to open the doors of the constitutional Courts for remedying glaring injustices against humans, that is, for securing constitutional rights. It was never meant to transform the constitutional Court as a superlative authority over day-to-day governance.”
Delhi High Court rejected the argument of petitioners being ‘public spirited citizens’ in Central Vista PIL on the ground of being selective of one construction project when similar constructions at other places were not challenged. The court said “It was vehemently argued that the fact that the petitioners have chosen to be ‘public spirited citizens’ only with regard to one project, speaks volumes of their ill-intent behind filing the present petition as well as lack of bonafides, which is the foremost issue that the Court has to consider while entertaining a public interest litigation. The ‘public spirit’ and ‘public interest’ of the petitioners is evidently selective and the present petition being completely motivated must be dismissed on this ground alone.”
The Central Vista Project
In the heart of the national capital, and within the “Lutyens’ Bungalow Zone” (LBZ), lies the Central Vista – the centrepiece and living heritage of Delhi. The Indian National Trust for Art and Cultural Heritage (INTACH) describes Central Vista as the “ensemble with main axis Rajpath…the Rashtrapati Bhawan at Raisina Hills, flanked by the Secretariat (North and South Blocks)…the Parliament House…the hexagonal round-about that has the India Gate and the Canopy…” (Supreme Court). The present Central Vista has emerged out of the urban architectural design of Edward Lutyens and Herbert Baker when British Raj decided to move the capital city from Calcutta to Delhi on December 12, 1911. It all began with the construction of the palatial residence for the Viceroy of India at Raisina Hills. About 300 families were displaced by the application of Land Acquisition Act, 1894. When we got independence and Dr. Rajendra Prasad became the first president of independent India, it was named as Rashtrapati Bhawan. The other buildings which came up surrounding this were the Sansad Bhawan, North and South Blocks and first building of the National Archives. The Rajpath
The policy on the re-development of the Central Vista Avenue emerged out of the need to have larger working space and efficient functioning of the legislature and integrated administrative blocks presently spread in different locations. The first building requiring attention was the Parliament House, a Grade I heritage structure which has been transformed several times during the past 74 years of independence. The population has significantly grown from about 55 crore to 130 crore and the next delimitation exercise to be done in 2026 would require an increase in the number of Lok Sabha seats from the current 545. The new Parliament shall symbolize the 75th Independence Day of the country in 2022. The initiative of redevelopment got a shot in the arm with a letter written by the OSD of Lok Sabha speaker to Secretary, Urban Development Ministry highlighting the stress on the present infrastructure and the need for large space (July 13, 2012).
The second sub-project is the redevelopment of Central Vista Avenue which is basically the public space on both sides of the Rajpath starting from India Gate to Rashtrapati Bhawan where the Republic Day Celebrations are held on 26th January every year. It is proposed to hold the Republic Day parade of 2022 in the new re-developed Rajpath. Solicitor General in his submissions before the Supreme Court had stated that it is very important public place and most widely visited by common public and tourists and hence the scope of the work includes “(i.) Providing public amenities like toilet blocks, paths, parking space, vendor zone; (ii.) Making four pedestrian underpasses below Janpath and C-Hexagon Road. (iii.) Improvement of canals, bridges, lawns, lights etc.”
The Politics of Central Vista: Of late, it has been very difficult for the citizens to differentiate between the issues which has pure political angle versus the legal issues concerning the larger public interest. Unfortunately, the politics have driven itself away from larger public interest towards the short-term election goals. The jibe ‘Modi Mahal’ terming CVP as the project to provide a house for the Prime Minister Narendra Modi is nothing but a gimmick, as any infrastructure created by the Government of India belongs to the public and is to be utilized for the public for the times to come. For example the ‘Nehru Memorial Museum & Library’ (NMML), housed within the Teen Murti complex, cannot at any stretch of imagination be called the “Nehru Mahal”, or for that matter, the large Samadhi sthals created for our beloved leaders. These are all public places and have its own social, cultural and historical importance. Another major political question has also been about the timing of the CPV. Whether it was right to invest in such infrastructure project when the country is fighting with COVID? The logic is indeed emotional and touches our heart, but the question is do we stall all our activities because of the pandemic? Is there a Financial Emergency declared under the Constitution? Interestingly, a bit of a research shows that a Times print in 1964 (when NMML was founded) reported “Hunger grows in India: major crisis in the nation is feared as population growth outpaces that of food production”. Do we say the investment in NMML was not right at that time? If yes, probably we could not have an institution to foster academic research on modern and contemporary history. Any infrastructure developed under this project will be utilized by the successive generations to come, however, yes in the history, the credit of doing the work will go to the political party in power at that point in time. However, as a researcher in law one has to stay away from these logics and political hullaballoo. The harmful effect of muddling the legal and political issues is that the genuine legal issues get subsumed into the chatter and noise around the gimmicks and sloganeering. A series of decisions/ oral remarks in past couple of years by the various courts in India have shown that judiciary cannot remain completely uninfluenced by what is happening around, including the perceptions created by the media reporting. This would require another study.
Another interesting angle of political criticism arose due to the decision of Prime Minister doing Bhumipujan by the Prime Minister. A group of former secretaries raised this issue in an open letter stating “We wonder what locus standi the Prime Minister has to lay the foundation stone of the Parliament building. The Prime Minister is the head of the executive, not of the legislature. For a building that will accommodate the two Houses of Parliament, the appropriate protocol would have been for the President of India to lay the foundation stone. This was a clear instance of breach of Constitutional propriety”. Well, this brings us to an interesting perspective of ‘propriety and law’, which is indeed a grey area. All faith prayer marked the foundation stone-laying ceremony of the new parliament building with Bhumipujan being performed as per Hindu rites. Some may initiative arguments of ‘secularism’ on this, but again not a point to discuss for this article.
There is always a logic given that why do we need such infrastructure development, we could have had hospitals and schools instead. My take is that country requires everything including hospitals and schools, at the same time also a world class infrastructure which we could be proud of. It is about balancing the interests keeping in view the needs of future generation.
Challenge before the Supreme Court: Legal scholars would be looking at the outcome of the appeal against the decision of Delhi High Court, however, keeping in view that Supreme Court’s three judge bench has already decided 2:1 in favour of the project, a different outcome is very unlikely, and moreover when Delhi is unlocking from the pandemic. Supreme Court in its January 5th decision had already said, “No doubt, the Courts are repositories of immense public trust and the fact that some public interest actions have generated commendable results is noteworthy, but it is equally important to realise that Courts operate within the boundaries defined by the Constitution. We cannot be called upon to govern. For, we have no wherewithal or prowess and expertise in that regard.”
Still, if there is a chance that matter is entertained, what could be legal issues before the court? One of the preliminary issue in the appeal against the decision would come on the ground of locus of the appellant as it appears that original petitioners before Delhi High Court have not yet preferred the appeal. Some of the other issues could be:
A. Public Health Issues – violation of Disaster Management Act (DMA) – The main ground of challenge before Delhi High court was violation of DMA in continuing with the construction of CVP and causing thread to public health. Court noted that “the construction activity is not prohibited under paragraph-8 of the order of the DDMA dated 19th April, 2021 issued under Section 22 of the Disaster Management Act, 2005, where workers are residing on-site, contrary to the stand of the petitioners.” It is argued that there were construction workers coming from another site of the vendor. I doubt, there emerges any ‘question of law’ to be entertained in appeal.
B. Welfare of Labour – The PIL espouses the cause of the safety of the labour working at the construction site. Stalling the project in fact affects the labour more, as most of these labour are migrant laborers. In the past, Supreme Court has been called upon by several quarters to order Central and State Government to ameliorate the plight of these migrant workers. A view contrary to this is very unlikely.
C. Breach of ‘Public Trust Doctrine’ – One of the major challenges is about breach of ‘public trust’ doctrine by the Government. It is argued that stakeholders who would be affected by the project have not been consulted while sanctioning the change in land use under the Delhi Development Act, 1957. Supreme Court rejected the argument on sustainable development stating “In the present case, the subject project is an independent building and construction project wherein one-time construction activity is to be carried out. It is not a perpetual or continuous activity like a running industry. It is absolutely incomprehensible to accept that a project of this nature would be unsustainable with the needs and aspirations of future generations.” Supreme Court in its order has already held otherwise, except the dissenting opinion, which provides some hope to the potential appellant. However, this would require a constitution bench of minimum 5 judges to take a contrary view.
D. Heritage Clearances – Supreme Court has already stated that the requisite heritage clearances shall be obtained before proceeding with any alteration to the heritage sites. In this case 7 out of 141 listed heritage sites are of relevance and these are parliament house and campus, central vista precincts (Rajpath), National Archives and campus, grave platform, and vice-president’s house. A clearance made by HCC not in conformity of the laws, may be challenged at appropriate forum. So is the case with environmental clearance, however, Supreme Court did not find any merit for ‘Merits Review’ by National Green Tribunal (NGT). The questions raised in the petition have been termed as ‘mere suspicions’ not meriting any in-depth technical analysis.
E. Cost of the Project – There have been a lot of discussions around the cost of the project pipped at Rs. 20,000 crores, justification is that the project is spread over several years in different phases. The current projects are New Parliament Building and rejuvenation of Central Vista at an estimated cost of Rs. 862 crores and Rs. 477 crores respectively. In Tata Cellular case and subsequent cases, Supreme Court has already been established that it will normally not go into the strategic/policy wisdom of the government. In fact, the courts shall hesitate to stall the projects temporarily, as it would escalate the cost of the project and ultimately a burden on public exchequer. Ultimately, it is the tax payer’s money.
F. Timing of the Project – The project has been caught amidst the storm of COVID pandemic and thus so much of public attention and purported bad publicity. However, there is no legal issue to challenge this unless there is a declared financial emergency. At the most, it is a question to be discussed by the parliamentarians in the parliament. Ironically, will this be discussed in the parliament for not having a parliament building which provides with modern amenities and more space is doubtful.
I leave it to the readers to decide for themselves whether it is a “Public”, “Publicity” or “Political” interest litigation. However, looking at the PILs filed to challenge Central Vista project and the logic advanced reminds me of Delhi High Court’s observation while dismissing a PIL – “Chai peete peete idea aaya toh socha file karo PIL (while having tea you had an idea and decided to file a PIL). That is not how it is done. You may have an idea while walking on the road. “You have to do some homework and then file the petition.” (Economic Times – May 2, 2021). Why these cases can’t be brought before a mock moot court or youth parliament wherein the young generation discuss this at length and if a sound case emerges on legal point, courts may be approached. Country has a large pool of young legal professionals who needs to be nurtured and interest needs to be generated on these issues of public importance.
The Publicity Interest Litigations are doing a lot of harm to the genuine causes which are taken up by the courts through various PILs. It casts a shadow of doubt on the legitimate petitions and also eats away into the precious time of the courts, amidst the rising pendency of cases on a daily basis.
Dr Vijay Kumar Singh is Dean, School of Law at UPES Dehradun. Views are personal.
Analysing the importance of online dispute resolution during the coronavirus pandemic
International arbitration has used technology for as long as we know it. That technology may have been from very rudimentary concept such as email, just sending a document by email is the form of technological embrace in ADR.
ADR is something which is worldwide acknowledged and perceived and this is the most financially savvy and productive method of dealing with and taking into account disputes when contrasted with the traditional court framework and prosecution technique. Disputants or the parties these days lean towards ADR over the customary court framework due to several pros of the alternative dispute resolution mechanism. It’s not only because it is cost effective but it is also efficient. Parties have the right to choose their forum & choose the way they want their dispute to be settled. So, we can also say that ADR is Appropriate Dispute Resolution Mechanism, since this freedom of choice can only be available over here and not under the conventional court system.
ADR has not only been given global recognition and acceptance but in Indian law as well, U/S 89 of the Civil Procedure Code, it has been stated, that the court repowers to settle matter outside the court & officially got it notified in the year 2002. So, we can understand the strength of ADR under the Indian legal system through these acceptance and recognition.
Since the whole concept of ADR is to reduce burden of the courts where the litigation is so expensive, tedious and time-taking & at times litigants get frustrated, ADR provides a better opportunity where it ensures that there is more fluency, cost effectiveness and smooth proceedings where you have the right to choose your own forum and get your dispute resolved.
ONLINE DISPUTE RESOLUTION
Online dispute resolution is an arbitration institution or in addition to that it is a technology platform which people can use based on what it is, that they want to do out of that technology. For instance, if a person only wants to use the technology offerings and don’t want to use the institutional rules it is possible. On the other hand it is also a full institution which helps in appointing arbitrator which helps you resolve the dispute through amicable means.
International arbitration has used technology for as long as we know it. That technology may have been from very rudimentary concept such as email, just sending a document by email is the form of technological embrace in ADR. Using video conferencing is another aspect of technology. Online Dispute Resolution is a spectrum which does not fix a particular definition. So, as it is a whole spectrum of it, we need to know where it is on the spectrum we want to be and what the benefits are that being on that part of spectrum wins. The way traditional arbitration has used it, which is for instance only using email as a mode of communication or only using the video conferencing on the adhoc places and limited ability. For realizing the full ability of online dispute resolution we must try and explore a much wider spectrum of where it can be used.
With the following three principles in mind let’s try and analyze if that can be achieved:
• Can we make things faster?
• Can we make things fairer?
• Can we make things more effective?
And those of the three things we need to look at, while considering and analyzing whether online dispute resolution is good, bad, ugly or whether you want to use it or not. For making things faster using technology, the obvious ways can be just the ways you can communicate instantaneously over technology. That’s why when we compare existing court systems to arbitration or at least some arbitration where technology is used in these elements we can see the time advantages.
In real life about 25% of the life cycle of any case is spend just notifying the other party dispatching documents to the other party. If we look at the civil trial in a civil court its 5 yrs. on an average is spending one and a half year just communicating with the other party and sending the other party documents. Now that is the very crucial element where technology can play a huge role.
Firstly on the notification of the parties- when we are notifying the parties we can use technological means of notifications such as emails, messages, WhatsApp chats. In addition to it physical means of delivery can also be used, but not with the same limitations that are there presently. For example using courier with an automated tracking system makes the process of notifying the other party much faster. So this is another aspect where Online Dispute Resolution bodies can go on to resolve the dispute. The next cycle of the case is- after the other party has been notified of the case, he has to make filings. This is another stage where online dispute resolution can make a huge difference and there is the advantage of both the fast element of it and accessible element of it. If there is a situation where the parties are very distantly located, then if the person has to file a petition in the Supreme court then first they have to find a local advocate of that jurisdiction who will further connect with An Advocate on record at the Supreme Court who will further take over the matter at the apex court. So, in spite of all these difficulties the easiest ways could have been the Online Dispute Resolution that would be technology based. Further, the technology over here would have helped in making the things much faster and easier as compared to the conventional court system procedure.
Online dispute resolution has embellished a very positive impact to corporate, legal professionals (Lawyers) dealing in dispute resolution, ombudsmen and regulators, and the court of law. Corporates have to deal with a lot of disputes arising out from the customers, business partners, competitors, as well as from other business entities & corporate personalities.
Corporates have to deal with problems arising from various geographical areas and dealing with them involves a lot of time, money, support and manpower, and many a times, their image is also at stake. Online Dispute Resolution enables the corporates to resolve these disputes and the problems at a faster speed and helps them with out-of-court settlement. Corporates are thus getting benefitted by avoiding expensive litigation and reputation loss by using Online Dispute Resolution.
Legal professionals handling in dispute resolution are getting reap benefits by online dispute resolution techniques as it ameliorate their effectiveness in resolving the cases, and this makes their clients happy and satisfied.
BENEFITS OF ONLINE DISPUTE RESOLUTION
• Cost effective
• Convenient and quick dispute resolution
• Removes unconscious bias
• Increased access to justice
Online Dispute Resolution holds a lot of word of honor in addressing longstanding difficulty of justice delivery. Fortunately, the realization of this honor is not a farfetched one. As has become obvious during the current COVID-19 induced crises, people are very prepared and welcoming of technology to ease their daily lives. In turn, technology has shown to be accessible and adaptive to the demands of its users. The synergy of these occurrences, in the dispute resolution ecosystem, takes the form of Online Dispute Resolution. It would therefore only follow that there has never been a better time to harness Online Dispute Resolution’s potential than now. It will now depend on the various factors and stakeholders to determine the extent to which they are willing for their lives to be truly altered.
With reference to ODR & COVID-19, the mechanism of ODR proves to be a viable situation during the said time. Already courts are over burdened with matters and disputes. Due to the COVID-19 & lockdown the burden has doubled & if the statistics has to be preferred, then during this period at times courts were closed & now each court hear on an average 60-100 matters a day only. So the matter pending can be reflected by the statistics provided.
So, the pendency was already too much & with the COVID-19 they have added to the misery of the courts. So, ODR as a dispute mechanism process would really help in lowering the burden of the court during these times. Parties should go for Arbitration, mediation or any other ODR methods that fits for their dispute resolving process, getting amicable results without having the interference of the conventional court system coming into picture.
The blessing that has come in the period of COVID-19 is the digitalization of the courts and functioning of Judiciary. At the present time, courts are functional, but they are only hearing urgent matters. Therefore, to ease the burden of Courts disputants may prefer ODR over the Conventional Court System.
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