The Prime Minister continues to emphasise the need of technology for driving the development in the country. Rightly so. On every occasion that I met the PM in a meeting or informally, his focus on technology was unwavering. Yet, all Ministries in Government of India haven’t taken even the rudimentary steps towards use of technology. There is no reason to see hard files on the tables of the officers of moving (when they do move despite the proverbial red tape) in the corridors of government offices. But you can still find them.
My first brush with the technology came in 1991 when I was District Magistrate, Lakhimpur-Kheri. This was by way of installing a photo-copying machine in the Record Room despite resistance form “interested” parties. This single technological intervention reduced the unavoidable drudgery of copying each document manually and, above all, eliminated “speed money” that was otherwise being paid to obtain a copy of land records. The possibility of manipulating documents was also eliminated.
I continued to use technology subsequently in every assignment. It helped me and the institutions enormously. Technology enabled the launch and roll out of the largest health insurance scheme (Rashtriya Swasthya Bima Yojana –RSBY) IN 2007. This scheme was not only cashless and arguably the first paperless scheme in the world. It was the first scheme in the country that provided portable benefits to the beneficiary. The scheme benefitted millions of poor and came to be recognised world over and was selected as one of the social security scheme by UNDP and ILO for publication. It was the technological backbone of the scheme that enabled the scheme to cashless, paperless and portable. The Prime Minister’s Jan Arogya Yojana (PMJAY) has benefitted enormously from the lessons emerging out of RSBY.
Later in the year 2013 I was asked to head the Project Monitoring Group (PMG) to fast track large projects (Rs 1000 crore and above) that were stuck for want of clearances. This was the time when all the scams were breaking out and civil servants were averse to committing themselves on files. Technology was put to use yet again. On this occasion it was to fast track clearances. A web-based programme was put in place. Any industry proponent could create his own login and password and upload their cases pertaining to a specific ministry and/or state. Simultaneously, each ministry was asked to designate a Joint-Secretary level officer as the nodal officer. Once the project was accepted for consideration by the PMG, the project details and the issues relating to the Ministry went automatically to the concerned nodal officers along with an automatic mailer. The nodal officer was mandated to provide the comments on the portal itself. These were then discussed in a tri-partite meeting so that status could be updated directly on to the portal. Thus the progress was transparently monitored clearly bringing out where the decision was stuck. Similar discussions were held at the state level. Use of technology to usher in transparency had startling results. In jus fifteen months, projects worth more than Rs five lakh crore were cleared and one Cabinet Minister lost her job for sitting on files.
Use of technology played an extremely important role in sorting out the problems of the coal sector. Anything that could have gone wrong had gone wrong with the sector. There was acute shortage of coal. There was a mad rush for acquiring coal mines some way or the other. This led to the alleged coal scam. The Supreme Court cancelled all the mines allotted since 1990s. The mines had to be allocated afresh through a bidding process. Yet again, technology came handy. A two-stage online electronic process was put in place. The entire data base of coal mines (including Geographical Reports) was made available in electronic format to the bidders. The bidders could bid only for such mines whose documents they purchased online. In the first stage of the auction, an initial price offer (IPO) was to be submitted, along with the technical bid, on an e-auction platform in encrypted form. For the eauction, the window was for 2 hours with the auto extending option of 8 minutes each till bids ceased within that period. The coal block auctions clearly demonstrated that the transparent use of IT applications could help realising the “fair” value of natural resources. There was no complaint against any part of the process.
Technology can be a game changer in any sphere of governance. However, the problem is not with technology. It is available. The real problem is with the attitude of those that have to use it. Hence, there is a need to push it from the top. Doing away with files and papers both in the Ministry of Coal and the Department of School Education and Literacy where I was posted as Secretary enabled me to travel to the states and interact with them. There was no pendency of files when I travelled as they could be cleared on the move. Much of what happened in both these sectors was on account of the interaction with the state level officials in the field. Coal production reached unprecedented levels by taking the states on board, by listening to them and by persuading them to play ball. This could not have been possible sitting in Delhi. I didn’t convene a single meeting of the states in Delhi during my two-year tenure as Secretary in the Coal Ministry. Problems lie in the field and the senior officers of the Central Government have to travel down to the field to understand them and assist in their resolution. This is possible only if technology is used. It can be used and it should be used if we have to fulfil the dreams of the Prime Minister.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
Constitutional framework during Covid-19
To fight against this pandemic, Prime Minister Narendra Modi imposed a nationwide lockdown for 21 days from 25 March 2020 with only a few essential services running, all others like commercial, industrial, religious and cultural activities were shut down. Residents were ordered to self-quarantine themselves. A comprehensive look at its legal and statutory sides.
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.
Unveiling 103rd Parliamentary Standing Committee interim report on functioning of virtual courts
Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process improvement through mechanisation is a primitive first step. Technology in the judicial system needs to unfurl its true potential; today, blockchain artificial intelligence, algorithms and the technology of command have the capacity for calling attention to a fundamental transformation of the judicial process, dispute containment, ensuring only those conflicts requiring judicial resolution enter the court system.
The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinised as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide, i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018, live proceeding was permitted. The Committee persuades the judiciary to speculate solutions viz mobile videoconferencing to licence advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity unless the hierarchy is bound to crumble.
“Vision without execution is hallucination”
—Thomas Alva Edison
COVID-19 descended without a warning, as many pandemics do as history tells us. Access to Justice cannot suffer a lockdown whatever be the circumstances; the criminal justice system can- not function without courts. The courtroom is a service liberating the witnesses meant to give testimony, Clients put out their confidence, Contracts get negotiated, Judges hang down their judgements, and Contracts result in legislation delineating statute. No doubt the British system of administration was superfluous but it has some gross deformities in context of adhering in In- dian Judicial System and has outnumbered repercussions.
Consider the most fertile and dangerous embodiment of disillusionment. Our minds can flip from defending the facts we know into a mode of tearing up the reality.
Taking cognizance of the same, on September 11, 2020, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (Committee) after taking inputs from key stakeholders and best practices across the globe presented its interim report on “Functioning of Virtual Courts/Court Proceedings Through Video Conferencing” (Report) to the Hon’ble Chairman of Rajya Sabha.
How do we conceive of technology and what we can see as the role of technology in? It must be towards fortifying fundamental values of human dignity and equality; our court procedures are just too tardy, too expensive, and unintelligible to common citizens. Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process Improvement through mechanization is a primitive first step. Technology in the judicial system needs to unfurl its true potential, today blockchain artificial intelligence, algorithms and the technology of command today has the capacity for calling attention to a fundamental transformation of the judicial process, Dispute containment ensuring only those conflicts require judicial resolution, enter the court system. Dispute avoidance facilitates those processes which ensure that a dilemma does not reach the stage of an animosity. Disseminating knowledge about privileges and remedies available, so as to entrust citizens & Emphasising on virtual courts, and the future of technology. While Design structure stimulating technology is required to bolster the ambit of courts to implicate dispute avoidance and to endow dispute containment by the courts to mediation and foster dispute resolution. The UK civil justice council report proclaimed one’s incapable to do this would be a fluoride element in the law is asking when someone introduces fluoride into the water and stop to decay. So we’d be able to stop the decay of the system, and that would be a fluoride element in the law. Forthcoming justice that requires all information & data findings of the courts, as well as court proceedings themselves, should be understandable to non-lawyers. Paradoxically The Indian legal System rolled out virtual hearings by the dint of Article 142 of Indian Constitution on 6th April 2020 besides Turkey, Canada & Italy.
General Concern Surrounding Virtual Courts
The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinized as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018 live proceeding was permitted. The Committee persuades Judiciary to speculate solutions viz mobile videoconferencing to license advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity un- less the hierarchy is bound to crumble. If the efficient sub- ordinate judiciary is built, the amount of reducing the dependency on High Courts will reduce or limit their burden. The National Judicial Data Grid can be taken up for a 360-degree assessment of judicial officers not just in the terms of the cases they dispose but also how far the courts incorporate the ICT governance system. Clasping Technology becomes a major consideration as the majority of the advocates are not well versed. Specialized Course needs to be entertained to swap with digital platforms.
Poor Connectivity leading to glitches & crashing of systems. In the middle, both the ends have better connectivity that will facilitate better video conferencing. The need for good infrastructure is like the pre-requisite of a healthy body for a healthy mind. It is absolutely essential that there is an atmosphere conducive for good work and an individual needs to refurbish skills. Delay in justice delivery system or the judicial process is a very well-known problem in India, which is yet to overcome, it’s austere.
One ought to surmise that for a law or a penal provision to play a role of deterrence the fallout of a criminal trial in the shape of its final verdict and an actual feat of punishment on the censured is equally crucial that of the gravity of the retribution all this has to be rendered before the public memory fades. Halt and technicality are inoperative in civil actions alone. The condition is not better in criminal justice. Many criminals are never apprehended in contrast to corruption, favouritism.
The most efficacious mechanism to battle docket explosion with the utmost accountability is to unravel commercial disputes of an international nature. Expanding virtual courts becomes the prerogative. Certain laws have to be amended to legalise Virtual Hearings. The peculiar taking of things towards judicial administration heads back to the primary importance of rendering justice between man and man via virtual courts to administer distributive justice as it redeems time. Evaluating evidence becomes necessary to decipher conflict between the opposition. The transformation of handling witnesses, adversaries recoups both litigants & Courts time, undue penny too as the concept of speedy trial falls within the ambit of Article-21 is an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution Kartar Singh v. The State of Punjab. The common or mediocre ones that cannot even solicit the justice availed just because of financial deficit becomes a depreciating asset of their life toiling or haggling with the righteous intentions. Judiciary by the very nature does not have a majoritarian impulse. The attacks on the legal fraternity are out of the technology.
In furtherance to the various concerns received by the stake holders and the adverse prevailing situation owing to the on-going pandemic, the Committee also proposed certain recommendations in order to go on efficiently with the justice delivery system even after the pandemic and keep this avenue open for life long.
Some of the key recommendations included; (a) VCs should function in all the Courts even during non-pandemic time, with the consent of all par- ties for certain categories of cases like appeals etc. and final hearings where on- line virtual hearing would be sufficient. Transfer of certain cases from regular courts to VCs will reduce the pendency of cases. (b) A full-fledged VC should be piloted. This would enable the systems to be tested/ refined and further assist the judiciary in identify- ing the cases best suited to VCs. Petty cases should possibly be the first set of cases that may be disposed easily and quickly. (c) VCs may also be extended to cover arbitration hearings, conciliation and summary trials. If national and international arbitrations are allowed to be conducted through VCs, there will be hardly any requirement for real time travel to distant locations. (d) Further, VCs can be extended permanently to various appellate tribunals such as TDSAT, IPAB, NCLAT etc., located across the country which do not require personal appearances of the parties/ advocates. Permanent VCs can also be established for hearing matters relating to administrative and other tribunals at the time of final hearing.
The committee also took into consideration various infrastructural & training requirements that would be necessary to be taken up in order to be well equipped with the technology. The committee recommended the need for increasing broadband access across the populace by timely implementation of National Broadband Mission by The Ministry of Communications. Prevalence of tech brings concerns regarding the data safety and hence the committee also recommended that Ministry of Law and Justice and Ministry of Electronics and Information Technology should address the data privacy and data security concerns while developing an indigenous new platform for India’s judicial system. The said system could leverage block chain technology to improve reliability of evidence and security of transactions and also case files. The report also based its focus on Improving the quality of courtroom technology to overcome the negative impact on advocacy. Further, a study of courtroom design should be commissioned and customized software/ hardware to facilitate VC should be developed.
All such recommendation would go defeated if proper training is not given to both judges as well as advocates. So, in order to be well versed and adopt this technology in long run, the committee also addressed the need of training and opined that Conducting training and awareness programmes in all court complexes across the country needs to be taken. Along with this, Introduction of a computer course as one of the subjects to train future lawyers on digital platforms should be considered by Bar Council of India, so that the upcoming lawyers can be well equipped with digital justice.
Though, the present Report is only an interim report made by the Committee to bring forth the issues being currently faced by the Indian judicial system. While we await the Committee’s conclusive recommendations as per its final report, it seems that the Re- port has taken a holistic approach towards facilitating VCs and at the same time brings substantial judicial reforms. We are sure of that fact that, the adaptability of technology will not only act as an asset to the justice delivery system but proper implementation of the same will also reduce judicial stress of overburdened courts as well as human wealth.
A jailbird’s right: Understanding India’s legal paradigm apropos of rights of the captured midst Covid-19
The Model Prison Manual, 2016 scrutinises the guidelines for governing the administration of prisoners; these guidelines are framed to maintain the conformity in rules and norms for the prisoners throughout the country.
India also has an obligation towards rights of the prisoners as per the international laws and convention. In the 75th Session, 2038th meeting of the United Nations Human Rights Committee concluding observations were adopted by considering the Report of Maldova, adhered on 18th and 19th July 2002.
Amidst this Pandemic COVID 19, the situation is so catastrophic and chaotic that WHO has declared this undetectable pandemic as public health emergency of International concern.
In the absence of any vaccine or medical treatment the only way to restrict the escalation of this disease is to follow and obey the social distancing norms. But proper implementation of social distancing norms is not plain sailing for any country.
In the light of status quo among all these chaos and complications, one of the section which is worst affected and neglected are the Prisoners.
Condition of Prisoners and Prisons
For Indian prisoners in the absence of proper demographic database of prisoners, slow operation and functioning of judiciary, poor infrastructure and overcrowding in prisons and due to various other reasons this unprecedented pandemic acted as a flawless tempest or ticking bomb. Therefore it’s imperative to scrutinize the rights available to prisoners who are locked inside the prisons.
The problem of overcrowding in prisons is one of the major issues for the prisoners during this pandemic as social distancing seems completely missing in prisons. From the year 2008-2018, Indian prisons had an occupancy rate of 117%, which means there are 17% more prisoners than the capacity of prisons. As per the report of National Crime Record Bureau, Ministry of Home Affairs (Prison Statistic 2008) the capacity of prisons to hold the inmates is 3,96,223 while the number prisoners who are locked inside the prisons are 4,66,804 in number which means that there are 70,581 more prisoners than the designated capacity.
The first thing is to consider whether Right to proper healthcare facilities is part of Fundamental rights or not. In the judgement of Paschim Bangal Khet Mazdoor Samity & Others v. State of West Bengal & Others, Supreme Court of India clearly stated that right to proper healthcare facilities is an integral part of right to life which is mentioned in Article 21 of Indian Constitution. Now it is important to scrutinize whether Right to proper healthcare facilities which is an important part of Fundamental Rights is applicable to prisoners in the similar way as it’s applicable on an ordinary citizen.
In the judgement of Charles Sobhraj v. The Superintendent, Central Jail, Tehar, New Delhi, The Supreme Court of India clearly mentioned that all the fundamental rights which are available for an ordinary citizen is available for a prisoner in the same way with slight diminution because the latter is in prison. It was also explicitly mentioned that the prisoners should be provided with proper healthcare facilities and failure to do the same would be considered to be a violation of fundamental rights and involve legal remedy.
Apart from the Judicial Outlook, there are various other legal provisions available for the prisoners which include The Prison Act, 1894 and Model Prison Manual, 2016.
Section 4 of The Prison Act, 1894 includes the provisions for sanitary and hygienic accommodation of prisoners inside the prisons. Section 7 of the act has the provisions for safe and proper custody of all the prisoners who are excess in number and are kept in temporary prisons. This section specifically has provisions to avoid overcrowding in the prisons during the outbreak of any epidemic or during other times as well.
The Model Prison Manual, 2016 scrutinizes the guidelines for governing the administration of prisoners; these guidelines are framed to maintain the conformity in rules and norms for the prisoners throughout the country. The Manual also has a proper framework and guideline for the prisoners during the time of outbreak of any epidemic or infectious disease. It has various provisions like creation of isolated and segregated sheds, treatment of infected barracks and clothes etc. Chapter V includes guidelines for Management of prisons in custody, Chapter VI has provisions for the proper maintenance of all the prisoners, Chapter VII has guidelines for medical and healthcare facilities and many other important rules and guidelines for the proper management of prisoners.
India also has an obligation towards the Rights of the prisoners as per the International laws and Convention. In the 75th Session, 2038th meeting of the United Nations Human Rights Committee concluding observations were adopted by considering the Report of Moldova, adhered on 18th and 19th July, 2002. It specifically mentions that if there is violation of right to proper healthcare facilities during any pandemic and if state fails to take care of their prisoners during the outbreak of some contagious disease then, it would be considered as violation of Right to life mentioned in Article 6 and Right to Liberty mentioned in Article 9 of ICCPR, 1996 (International Convention on Civil and Political Rights). India is one of those countries who have signed as well as ratified the ICCPR. Therefore India has a legal obligation to take preventive measures to stop the spread and escalation of COVID-19 in prisons.
Steps Taken by the Government
The Government of India has also taken measures to protect prisoner’s right amid this pandemic. A suo moto cognizance has been taken by the Supreme Court of India for protecting the rights of prisoners considering the over-crowded condition of prisons. The Supreme Court had directed the government of all the States and Union Territories to grant Parole to the prisoners who charged for minor offences.
Apart from it Segregation cell and Isolation wards are being created at many places inside the prisons, also to avoid overcrowding Interim Bail is also been provided to the undertrials in many states including Maharashtra, Madhya Pradesh, Uttar Pradesh etc. In many states the government has also put various restrictions on the visitors and relatives who come to meet prisoners.
States like Kerala conducted awareness drives regarding COVID 19, Social Distancing, preventive measures etc. These drives helped prisoners to know about the disease so they can adopt preventive measures against the spread of this disease.
This Deadly pandemic COVID-19 makes us realize the loopholes in the implementation of laws and the catastrophic conditions of not only the prisons but also the prisoners. The problem is not just limited to lack of proper legal framework but also in the proper implementation of existing laws and conventions. Thus there is an urgent need for a better legal framework, thoroughgoing surveillance and proper implementation of existing laws and policies for the prisoners, so that the ongoing situation can be healed and made better and we are well prepared for such pandemics in future.
UN Security Council on protecting people with disabilities in humanitarian emergencies and armed conflicts
The children with any kind of disability also face problems in attending schools, unlike other children present there. For example, in the case of armed groups’ attack on various communities in the Central African Republic in the year 2013 to be particular, it was documented that at least 96 of the disabled people were unable to escape when these attacks were made on their houses.
The UN Security Council passed a resolution on 20th June, 2019 to provide protection to people suffering from any disability during armed conflicts and to ensure that they have proper access to humanitarian assistance. This was the first time the Security Council had dedicated an entire resolution to the people with disabilities who face various challenges in armed conflicts, Having said that the major goal was to provide them with a voice in decisions regarding humanitarian actions. It was an important action for the group which was often forgotten during humanitarian emergencies.
Although the impact of this particular resolution depended on how well was it executed in reality but it again reinforced and uplifted the idea that there is an absolute responsibility to protect all innocent civilians during armed conflicts, the UN agrees with the fact that the effect of conflict on people with disabilities is considerably higher and they have to be protected from the impact of war. This move was welcomed by everyone which was followed by extensive advocacy from the disability groups as well. If we refer to the statistics given by the World Health Organization, it clearly points out that 15% of the World’s Population is disabled with some or the other form of disability.
Amongst all these approximately 9.7 million have been forcibly displaced as a result of armed conflict and persecution. In times of armed conflicts or situations of humanitarian emergencies there are some problematic issues that people with disabilities face which includes difficulty in getting access to basic humanitarian needs such as food, medical assistance and sanitation, often issues like abandonment from the family also arises.
The children with any kind of disability also face problems in attending schools unlike other children present there. For example in the case of the Armed Groups Attack on various communities in the Central African Republic in the year 2013 to be particular it was documented that at least 96 of the disabled people were unable to escape when these attacks were made on their houses; they were left abandoned and 11 of them were killed.
Having said that we again come to the conclusion that this resolution basically emphasized on the immediate need for the states to end impunity against the criminal acts committed on the innocent civilians especially the one’s who were disabled, to make sure that every civilian has an equal access to justice and all the available remedies as in Yemen, South Sudan, Lebanon, Myanmar, Greece people with disabilities have expressed their concern over difficulties they face in navigating the uneven terrain to get access to basic necessities like food and medical supplies. The Resolution recognizes the Security Council’s serious concern regarding the disproportionate impact of armed conflict on persons with disabilities and proposes actions to address the barriers faced by the world’s largest minority group. The resolution passed by the Security Council addresses many of the challenges that have been talked about above which includes preventing violence and abuse against all civilians including people with disabilities.
Additionally the resolution passed also called for the member states to ensure meaningful participation of persons with disabilities and the organizations that represent them in decisions related to humanitarian actions, conflict prevention, reconstruction and peace building. The said resolution also urges it’s member states to comply with the said obligations under the United Nations Convention on the Rights of Persons with Disabilities where the Article 11 of the same convention states that “In accordance with their obligations under international law including International Humanitarian Law and International Human Rights Law, all necessary measures are required to be taken to ensure the protection and safety of persons with disabilities in situation of risks, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters”.
The resolution passed was a unanimous decision but some permanent members of the security council expressed their concern regarding creating new legal obligations under international law and exceeding the scope of the mandate of the council, Gennady V. Kuzmin of the Russian Federation stated that Russia “shares humanistic principles and tasks to alleviate the plight of persons with disabilities in conflict” but “firmly upholds our position that all social groups should be equally protected during armed conflict as stipulated by the international law. Specific needs of one category of population should not come at the cost of and with prejudice to another category.” The council, Kuzmin explained, “it should not invent any new international legal concepts that are allegedly aimed to fill ‘gaps’ in the protection regime established by the Geneva Conventions” and not “get too preoccupied with devising new categories of individuals who should need specific protection under the international humanitarian law.” Having said that, even Yao Shaojun of the People’s Republic of China cleared his stand that the issues related to the people with disabilities “should be dealt with in full observance of all Council resolutions on the protection of civilians” and that “the countries concerned must shoulder the primary responsibility of assisting such persons, with the United Nations and others playing a complementary role”.
Now if we go through the Article 25 of the U.N Charter, it obligates the states to “accept and carry out” decisions taken by the Security Council but there is no clear understanding as to what type of language indicates that a provision in a security council is of a obligatory nature. If we carefully analyze the provision that was explained in context to the 1971 Nambia Advisory Opinion by the International Court of Justice it says that when a resolution is passed by the Security Council, before jumping down to the conclusion whether it has any binding effect or not, it’s language should be carefully looked into. Taking into account the provision of Article 25 the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. Well, as explained by John Bellinger, the former legal advisor of the United States Department of States there are three factors that indicate whether a resolution of the Security Council has a binding effect, these are:-
Findings which state that there is a threat to International Peace and Security
Statement which clears that the Security Council is acting under Chapter VII of the U.N Charter Use of the verb “decides” in any operative paragraphs has a binding effect
Nonetheless this resolution did not fall under either of these categories. However Resolution 2475 could inform how the Security Council drafts future resolutions authorizing peacekeeping operations, which often fall under Chapter VII authority.
Lastly it is to be said that the resolution passed by the Security Council is also the result of the extensive efforts that the civil societies and organizations representing disabled people had put in for a very long period of time. Nujeen Mustafa, a Syrian activist who suffers from cerebral palsy and uses a wheelchair for her assistance, had put forth her journey as a refugee who flew from Syria to Germany; she indeed was the first woman with a disability to brief the Security Council. No matter how remote the goals of this resolution might sound, it is an extremely important and celebrated step and a landmark resolution for people with disabilities taken by the UN Security Council. It is a clear political commitment towards mainstreaming disability across all UN pillars, including peace and security.
If watershed moment, why farmers are not celebrating, asks Telangana minister
Telangana’s Municipal Administration and Urban Development Minister KT Rama Rao on Monday differed with Prime Minister Narendra Modi’s statement that the passage of Farm Bills in Parliament is a ‘watershed moment’ for the agriculture sector.
“If the agriculture Bill is truly a watershed moment, why is no farmer celebrating and why has a minister of NDA’s ally party resigned?,” Rama Rao asked in reference to Modi’s comment.
After the Rajya Sabha passed farm bills on Sunday after which, the Prime Minister described itas a watershed moment.
A watershed moment in the history of Indian agriculture! Congratulations to our hardworking farmers on the passage of key bills in Parliament, which will ensure a complete transformation of the agriculture sector as well as empower crores of farmers,” Modi had tweeted.
Rama Rao, took to Twitter on Monday and said, “When the Telangana Legislature passed the ‘farmer friendly’ Revenue Bill last week, there was widespread jubilation and cheer among the farming community across the state.”
In another tweet, Rama Rao slammed the BJP MPs from Telangana for claiming that the Centre released a staggering Rs 7,000 crore to Telangana in the fight against Covid-19.
The TRS opposed the Farm Bills in Parliament saying they would do a ‘lot of injustice’ to the farm sector in the country. Telangana Chief Minister and TRS president K. Chandrasekhar Rao had said the Bills would benefit the corporates and adversely impact the farmers.
“For public consumption,it was stated in the Bills that farmers could sell their produce anywhere in the country. But in reality, the Bills would enable the traders to go anywhere in the country to buy the produce. The Bills would also help the corporate lobby to spread to all corners in the country and pave the way for the private traders,” the Chief Minister said.
Making Things Happen: Covid and Mumbai Municipal Corporation
Greater emphasis was laid on testing. Arrangements were made to ensure that results of the tests were made available within twenty- four hours. Mumbai became the only city in the country where all test reports would come within this period without exception.
Mumbai has been in the news for all the wrong reasons in the recent past. Even before that, it appeared that the relentless march and the devastating consequences of COVID couldn’t be taken care of in the metropolis. It spread like wildfire during the last week of April 2020. The slums of Mumbai, especially Dharavi, Govandi and Deonar were impacted. On account of limited testing facilities and short supply of COVID beds in the city of Mumbai, there were a number of deaths. Some dead bodies were even found on the streets and road dividers. One of the biggest slums of Asia, Dharavi with a population of 8,00,000 was visibly out of control. There were only around 3700 Covid beds available in the city and approximately 1500 people were reporting positive every day.
Social media was replete with videos depicting dead bodies on the road, more than one patient lying on many hospital beds, dead bodies kept on the hospital beds next to alive patient on the bed etc. Infected patients from slums of Mumbai were flocking hospitals gasping for breath and were dying within few hours of reaching the hospital. The death rate had gone beyond 8%. Municipal Corporation of Greater Mumbai (MCGM) had only 480 ICU beds, 80 Ambulances and 4 Hearse vehicles (for dead COVID patients). When the Central Government COVID Monitoring Team arrived at Mumbai on 5th May, 2020, it pointed out glaring deficiencies in Mumbai and how things were getting out of control. It added that Mumbai would explode leading to thousands of death in the near future. There was utter mismanagement and deficiency of resources in the fight against COVID in Mumbai. Even the media started raising the demand of handing over Mumbai to the army to combat COVID. Mumbai had become the hotspot in the country. There was panic all around and a sizeable number of citizens of Mumbai were fleeing to safer places. Sheer helplessness provided ready fodder or the national media as well. All this resulted in tremendous pressure on the state government. Left with not many options, the State Government shifted the incumbent Municipal Commissioner even before he had completed a year in this assignment. In his place an IAS officer, Iqbal Singh Chahal was asked to take over.
Prior to this posting, Chahal was Principal Secretary, Urban Development, Government of Maharashtra. In this capacity he was functioning as the Nodal Officer for monitoring of COVID situation in 36 districts and 27 Municipal Corporations of Maharashtra since March 21, 2020. Hence, he had a fair idea about prevailing situation in the city of Mumbai. Early morning on the very next day of taking over charge on 8th of May, 2020, he walked into COVID ICU of a hospitals to take stock of the ground reality. It was followed by 4 km. long walk in the containment zones of Dharavi slums to understand actual situation prevailing in these slums of Mumbai.
He was clear in his mind that there were only 4 pillars on which the foundation of COVID fight stood, viz. disciplined and focussed testing, large fleet of ambulances, immediate increase in the number of COVID hospital beds and substantial increase in the availability of trained para-medical and doctors in Mumbai. The focus had to be on testing, tracing, tracking, quarantine and treatment. Between 8th May 2020 and 1st August 2020, massive increase in health infrastructure was ensured under MCGM. Number of COVID beds were increased from 29,282 on 8th of May, 2020 to 88,953 by August, 2020. The total number of ICU beds were also increased from 480 to 1755 during the same period. Similarly, there was manifold increase in ventilator beds and ambulances.
Greater emphasis was laid on testing. Arrangements were made to ensure that results of the tests were made available within twenty four hours. Mumbai became the only city in the country where all tests reports would come within this period without exception. More than 7.50 lacs of RTPCR tests which is the gold standard, were conducted in the city. This is one of the highest in the country. With more than ten-fold increase in the number of ambulances from 80 to 825, it was ensured that they were available on call. A huge pool of trained para-medicals and doctors was created in the city. This was achieved through hiring retired doctors from Defence Services as well as the State and Central Government. More than 100 doctors and nurses were sourced from Kerala on loan. Around 800 MBBS intern students were deployed to manage the Ward War Rooms. IAS Officers were drafted to oversee daily administration of major hospitals in Mumbai. Consequent to these efforts, recoveries have gone beyond 80% and the death rate that was initially 8% in the month of April came down to almost half within a month and finally down to 1.8 %.
MCGM rose to the occasion in the fight against COVID. Through a wellplanned, path-breaking and effective initiatives, the Corporation, under inspired leadership of Iqbal Sigh Chahal, managed to take care of COVID related crisis substantially in Mumbai though the battle is still far from over.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
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