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Policy & Politics

MEDICAL NEGLIGENCE OF DOCTORS: LEGAL COMPLEXITIES IN CULPABILITY

Feroz Pathan

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In these exigent hours of Covid pandemic, the doctor-patient relationship has suddenly come in the eye of storm. The hapless patients are seen left at the mercy of doctors and hospitals. Allegations of medical negligence are surfacing day in and day out.

Medical profession is considered as one of the noblest professions as medical practitioners are at helm of life and death of the ailing. They are charged with the most sacred duty of saving the lives of patients through their reasonable care, skills, expertise, knowledge and experience. Since time immemorial, doctors are morally obliged to exhibit due diligence and care while extending treatment to their patients. They were once administered Charak’s oath (1000 BC) and the Hippocrates Oath (460 BC).

Nevertheless, unscrupulous persons are in every profession and medical is no exception. Whenever doctors have shirked their responsibilities that emerge from doctor-patient relationship, they are bound to face legal implications arising out of it. The doctor-patient relationship presupposes obligations and consequent liability of doctor to the patient. This relationship is based on – 1. Patient’s express or implied request for medical services & 2. Doctor’s acceptance of that request.

After acceptance of such a request, however, if a doctor fails to render proper services through reprehensible ignorance or negligence that follows injury or loss to the patient, then it amounts to medical negligence. He can be held liable in civil or criminal jurisdiction for the same depending on the nature of negligence.

Judiciary has been very vigilant when it comes to cases of medical negligence. It’s because medical negligence is a direct lethal blow to Article 21 i.e. Right to life and liberty. Furthermore, most often the loss suffered by patients and their relatives due to medical negligence is irreparable and irrepayble.

The infamous AMRI Hospital, Kolkata medical negligence case wherein Hon’ble bench of Supreme Court comprising Justices C.K. Prasad and V Gopala Gowda had awarded a whopping compensation of 5.96 crore to Mr.Kunal Shah, the husband of deceased Anuradha Shah proved to be nail in the coffin of all unscrupulous doctors who had reduced their hospitals to money-minting centers putting the lives of patients at risk. Three senior doctors of AMRI hospital namely Dr.Sukumar Mukherjee, Dr B.N.Halder, and Dr. Balram Prasad were also held liable for the fate of the patient. The judgment proved landmark as it reset the standard of medical care in India.

In NIMS, Hyderabad medical negligence case too, a patient named Prashant Dhanaka was awarded a record compensation of one crore who had faced the consequences of medical negligence in a surgery which led to irreparable damage to his spinal cord and he was made wheel-chair bound thereafter.

It’s worth mention that Supreme Court has already pronounced that medical negligence can also be tried under Consumer Protection Act, 1986. In the significant ruling in Vasanth Nair v Smt.V.P.Nair(1991), it has been reiterated that ‘patient is a customer’ and ‘medical assistance is a service’.

Doctors as professionals are under a duty to act when they accept a patient for treatment. In such cases, even their omission to do is bound to make them liable. A doctor is expected to follow generally accepted professional standards while performing his task. People who possess such superior ability or knowledge are held to a higher standard of care than those who don’t.

No doubt, a doctor doesn’t promise a particular result of cure to his patients, yet he is expected to possess the skill-sets, learning, and expertise of the profession commonly possessed by the members of the profession who are considered to be in a good standing. There are two standards to assess the credibility of standard of skills possessed by a doctor-

1. National Standard- Does the doctor have and use the equipment, knowledge, and experience that doctors have and use nationally?

2. Local Standard- Does the doctor have and use the equipment, knowledge and experience that doctors have and use locally where the doctor practices ?

If a doctor has promised a particular result of cure to his patient and it does not follow, then there is a breach of warranty or a breach of contract action. It’s irrespective of the fact that doctor was not negligent when performing the services during treatment. An opinion concerning a likely possible result of a treatment does not constitute a promise or guarantee.

A doctor and patient share fiduciary relationship. He is also not an infallible person like all of us, yet the degree of skill exercised by him is expected to be of reasonable competence, if not of highest level in that branch which he practices. There is a duty of care which a doctor owes towards his patient. If there is breach of duty then under certain circumstances, it would amount to negligence. The consequences of such negligence may be civil or criminal.

The term ‘negligence’ though not defined anywhere in the code, yet ‘good faith’ has been defined in Section 52 of Indian Penal Code,1860. It reads as- “Nothing is said to be done or believed in good faith which is done or believed without due care and attention. A doctor is expected to do everything related to his patient during treatment in ‘good faith’. So a negligent act is contrary to good faith. Thus, it was held in Mahadev Prasad Kaushik v. State of U.P. AIR 2009 SC 125 that ‘negligence is omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do’.

In Jacob Mathew v State of Punjab (2005) 6SCC 1, the supreme court bench of CJI R.C.Lahoti, Justice GP Mathur, and Justice PK Balasubramanyam had dealt the issue of liability of medical professionals for negligence under civil and criminal law. The case was related to CMC hospital , Ludhiana wherein a patient was admitted with difficulty in breathing. Dr. Jacob Mathew and Dr. Allen Joseph were alleged to have put empty Oxygen cylinder to the patient. The son of patient had somehow managed to get another gas cylinder, but the doctors failed to make gas cylinder functional in time which had costed the life of patient.

The JMFC, Ludhiana had framed charges under section 304 A of IPC,1860 against these two erring doctors. The duo had filed a petition in the High Court to quash the FIR, but it was dismissed. An appeal to Supreme Court was thus moved by special leave.

The apex court had held that- it is the amount of damages incurred which is determinative of the extent of liability in tort, but in criminal law, it is not the amount of damages, but the amount and degree of negligence that is determinative of liability. In criminal negligence, inter alia, Mens Rea is an essential ingredient. To hold the existence of criminal negligence, the rashness has to be of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The grossness or degree that distinguishes a negligence ‘actionable in tort’ and a negligence that is ‘punishable in crime’ is that it has to be of a very high degree. Thus it’s the ‘degree of negligence’ plus ‘Mens Rea’ test that is required to make medical acts as criminally negligent.

Justice R.C.Lahoti ruled in this case that – Negligence in the context of medical profession necessarily calls for a treatment with a difference. So long as the doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alternative course or method of treatment was available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. It was thus held that a case of criminal negligence was not made out against doctors under 304 A of IPC, 1860. The hospital was though held liable in civil law.

In Syed Akbar v. State of Karnataka(1980) 1 SCC 30, it was ruled that where negligence is an essential ingredient of an offence, the negligence to be established by the prosecution must be culpable or gross and not a negligence merely based upon an ‘error of judgment’.

The Bolam Test of Medical Negligence as set out in Bolam v Friern Hospital Management Committee(1957), 2 ALL ER 118 also remains a traditional test to determine the culpability of a medical practitioner. It states that ‘a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in the relevant specialty at the material time. This test has been but criticized to be too protective to clinical staff. On the top of it, it doesn’t permit judges to choose between competing expert views.

The doctors can be charged to commit a ‘battery’ if they make physical contact with any part of the patient’s body without his consent. They must obtain an ‘informed consent’ from the patient or the person who is in charge of patient. Moreover, the patient must be informed of the risks associated with the treatment that was rendered. Failure to inform the patient about the probable risks involved during treatment/operation prevents him from being able to make an intelligent and considered decision on what treatment to seek or whether to have an operation.

Hospitals often use consent forms for providing information as well as avoiding liability. In Samira Kohli v Dr. Prabha Manchanda case, it was held by apex court that surgical removal of uterus and ovaries from the appellant’s body who was having menstrual problems without her ‘informed consent’ was an unauthorized invasion and interference with the appellant’s body. This had amounted to tortious act of assault and battery and therefore deficiency in service. A doctor can however at times give treatment to patient without his consent depending on factors such as seriousness of patient’s condition, availability of time, extent of emergency, et cetera.

It’s imperative to understand that even making out a case against a doctor under 304 A i.e. causing death by negligence, the two elements either of which or both may be proved to establish guilt are ‘rashness’ and ‘negligence’. Such a negligence and rashness must be attributable to state of mind to be made punishable. Section 304 A provides for cases where death is caused by doing a rash or negligent act which doesn’t amount to culpable homicide not amounting to murder within the meaning of section 299 or culpable homicide amounting to murder under Section 300 of IPC. Thus, Section 304 A excludes all the ingredients of Section 299 as well section 300.

304-A applies to those cases where there is no intention to cause neither death nor knowledge that the act in all probability will cause death. It applies to only such acts which are rash and negligent. If doctor is found guilty under 304A, he can be punished for imprisonment for 2 years and fine. The other Sections of IPC such as 52, 80,81, 83,88,90,91,92, 337 and 338 also cover acts of medical malpraxis.

Moreover, the burden of proving medical negligence of doctor is upon the complainant/ prosecution. Meaning thereby, he has the task of convincing the court that his version of facts is correct one.

The ‘expert opinion’ plays a crucial role in deciding medical negligence of a doctor.(Sethuraman Subramaniam Iyer v Triveni Nursing Home and anr.,1998)

The doctor and patients are often at loggerheads. No doubts it’s important to protect the doctors from floodgates of medical claim as mankind has received greater benefits from their services than their cost of errors we’ve borne. The medical fraternity also needs to adhere to the Code of Medical Ethics laid down by MCI under Indian Medical Council Act,1956. The Act also consists of chapters relating to disciplinary actions for professional misconduct. The movies like ‘Ankur Arora Case Files’ and ‘Deadline- Sirf 24 Ghanta’ acted as eye opener for unscrupulous doctors recently.

According to Justice R.C. Lahoti, negligence in the context of medical profession necessarily calls for a treatment with a difference. So long as the doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alternative course or method of treatment was available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. It was thus held that a case of criminal negligence was not made out against doctors under Sec 304 A of IPC, 1860. The hospital was though held liable in civil law.

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Policy & Politics

Pakistan: Failing economy, polarised politics

Friendly relations with India and Afghanistan, abandoning the policy of exporting terrorism are only recipes available for Pakistan to realise its economic potential.

ASHOK BHAN

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At the Heart of Asia Conference at Amritsar in December 2016, Pakistan’s Advisor on Foreign Affairs Sartaj Aziz had to eat crow after he offered a $500 million grant to Afghanistan. The conference had taken place just a month after Prime Minister Modi decided to boycott the 19th SAARC summit which was scheduled in Islamabad. Amid cheers, Afghanistan President Ashraf Gani told Aziz to keep the 500 million dollars and use it to contain extremism in their own country. I don’t know what happened to this grant thereafter. But the economic potential of all South Asian nation has indeed taken a break, due to the obstinacy of Pakistan supporting terrorism and violence in its neighbouring countries. It has also harmed the country domestically.

Recently Pakistan government presented the country’s deficit budget of Rs. 8,400 billion in the National Assembly. This is the third budget presented by Prime Minister Imran Khan government, since he assumed office in August 2018.

According to the Economic Survey, the performance of the agricultural sector this year was 2.7 per cent as against 3.3% last year. The decline in the agricultural sector has led to a record decline in cotton production, the country’s main crop, which will fall by 22% to 7 million bales in the current fiscal year. Its production in the last financial year was more than 9 million bales. Cotton is the country’s main textile export major raw material. According to the Economic Survey, the area under cotton cultivation has also declined in the financial year under review.

The foreign investment in Pakistan has also declined due to global conditions caused by the coronavirus. Most of the foreign investment came from China which was for CPEC projects in Pakistan which is about 47% of the total investment. The volume of investment in Pakistan from other parts of the World has been very low this year.

The survey, which provides foreign trade data for the first ten months of this financial year, shows that the country’s trade deficit has increased by more than 21% in those ten months. During the period under review, the country’s exports increased by 6.5 per cent, but the sharp rise in imports wiped out the benefits of the increase in exports. It may be recalled that Pakistan had set a total import target of 42 billion this year, but in ten months, the country’s imports exceeded this target, leading to a widening trade deficit.

According to Uzair Younus a senior fellow at The Atlantic Council, Pakistan’s economy used to be in good shape at the turn of the century, when compared with India, Bangladesh, and Vietnam. Twenty years later, it is at the bottom of the group. Political upheaval, supporting terrorism in Afghanistan and India, and the inability of successive governments to carry out reforms are to blame for this decline. The polarized political environment and elite intrigue among civilian, judicial, and military institutions have made sustainable economic growth and reforms that much more unlikely.

IMRAN KHAN REVERSING HIS EARLIER STAND

When Pakistani Prime Minister Imran Khan entered office in August 2018, Pakistan’s economy was facing twin deficits—the country’s foreign exchange reserve was running low and its fiscal deficit had reached the breaking point. A return to the International Monetary Fund (IMF), along with bilateral support from countries like China and Saudi Arabia, was necessary to stabilize the economy.

Within a few months of coming to power, Khan, a charismatic populist who had derided Pakistan’s addiction to debt, famously saying that he would rather commit suicide than beg for money, had to reverse course and seek international help.

The economic upheaval in those early months of Khan’s government led to declining economic growth, devaluation of the currency, double-digit inflation, and sky-high interest rates. The government’s initial attempts to fend off an IMF bailout did not help. Asad Umar resigned from the job of finance minister in April 2019 after losing Khan’s trust. His replacement, the technocrat Abdul Hafeez Sheikh, who also served as finance minister in the Pakistan People’s Party (PPP)-led government from 2010 to 2013, was brought in to negotiate and execute the IMF bailout.

Less than a year later, the COVID-19 pandemic dealt a body blow to Pakistan’s economy. Lockdowns in response to the health crisis turned economic growth negative, a first in decades. The Khan government sought debt relief and secured an additional $1.3 billion from the IMF. The government rolled out an Rs. 1.2 trillion stimulus package. Cash transfer programs were expanded to protect the most vulnerable segments of society. While a significant portion of the total stimulus included already-budgeted spending and more than Rs. 500 billion remained unutilized, the government’s prompt response eased the pain, particularly for the most vulnerable. Additionally, the State Bank of Pakistan sharply cut interest rates and provided monetary stimulus to businesses.

Inflation is still the biggest issue facing the government today. Headline inflation climbed to 9 per cent in September 2020 and double-digit food inflation continues to erode citizens’ purchasing power. This has worsened the situation for millions of households who have seen a decline in their purchasing power since 2016, according to data from the Pakistan Bureau of Statistics. In its most recent monetary policy statement, the State Bank of Pakistan raised its concerns as well, warning that while “core inflation has been relatively stable,” food inflation remains a risk, “especially in the wake of recent flood-related damages and potential locust attacks.” With households spending a larger share of their incomes on food—an emerging wheat crisis is compounding problems—consumption spending on other items will remain subdued, leading to a lack of economic growth in a country where consumer spending drives more than 80 per cent of the economy.

NO STRANGER TO THE BALANCE OF PAYMENT CRISES

While external sector stability is critical for a country like Pakistan, which is no stranger to balance of payments crises, the fact remains that sustainable growth requires more than a stable current account balance. The State Bank of Pakistan is also warning that “the economic recovery remains uneven” and that “growth will recover to slightly over 2 per cent” in the current fiscal year. For a country that needs to generate more than 1.3 million jobs a year, an economy that grows at 2 per cent a year is no cause for celebration.

Another major issue that continues to plague Pakistan is its yawning fiscal deficit. Despite an uptick in economic activity, tax collection in the first two months of this fiscal year has shown a meagre growth of 1.8 per cent.

Due to increasing polarization, Pakistan’s economy has remained hamstrung by the same issues that led to the crisis Khan inherited in 2018. There is broad consensus among economic experts that these reforms need to be pushed through with urgency. However, both civilian and military rulers have failed to usher them in. Successive governments in Pakistan have spent the majority of their term trying to consolidate power, which means that they do not have the will to shake things up. Leaders fear that if they try to change the status quo, then the beneficiaries of the existing rent-seeking economy, both within and outside the government, will weaken their hold on power.

As Mosharraf Zaidi argued in a recent article, political leaders in Pakistan “do not have the will or capability to change even the little things to solve the little problems.”

In 2017, China poured billions of dollars into energy and infrastructure investments into Pakistan and the World Bank praised Islamabad for accelerating gross domestic product growth, which exceeded 5 per cent that fiscal year — the highest in nearly a decade. But after the country’s top court sacked the business-savvy Prime Minister Nawaz Sharif in July of that same year, Pakistan’s military publicly criticized his administration, led by his Pakistan Muslim League Nawaz (PML-N) party, for its handling of the economy.

Government and international statistics show poverty among Pakistan’s rapidly expanding estimated 220 million population is on the rise. International lenders expect poverty to rise to more than 40 per cent from 24 per cent in 2015, and the country could be home to as many as 80 million poor compared to some 55 million in 2015. Ali Malik, a financial adviser and writer in the eastern city of Lahore, says that while the current government’s initial indecision contributed to “stagflation” marked by no growth and rising inflation, his country’s economic troubles are much deeper and need to be analyzed without partisan bias.

Pakistan’s high defence spending, which goes well over the global average of 2 per cent of GDP, comprises some 20 per cent of overall government expenditure and constantly overshadows the economy. Despite the onset of the COVID pandemic last year, Islamabad increased its defence budget 11 per cent to $7.85 billion compared to a paltry $151 million for health care.

LIMITED SPACE FOR GOVERNMENT

This leaves limited space for the government to use fiscal resources on the development. In March, Bangladesh celebrated 50 years of independence from Pakistan. Dhaka was once Islamabad’s impoverished eastern half. But today it is well ahead of Pakistan in key economic indicators. Its $1,855 GDP per capita in 2019 was a third more than Pakistan’s $1,284 as the two countries follow vastly different trajectories of growth and human development.

Pakistani leaders need to take some time out to think about how even Bangladesh and Sri Lanka have stolen a march and performed on the economic front, while their country has gone into the abyss. Friendly relation with India and Afghanistan, abandoning the policy of exporting terrorism are perfect recipes to make Pakistan once again an economic hub in the region, keeping in view its connectivity and potential.

Inflation is still the biggest issue facing the government today. Headline inflation climbed to 9 per cent in September 2020 and double-digit food inflation continues to erode citizens’ purchasing power. This has worsened the situation for millions of households who have seen a decline in their purchasing power since 2016, according to data from the Pakistan Bureau of Statistics. In its most recent monetary policy statement, the State Bank of Pakistan raised its concerns as well, warning that while “core inflation has been relatively stable,” food inflation remains a risk,

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Policy & Politics

MAKING IT HAPPEN: RESTORATION OF WASTELAND

Anil Swarup

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Aishwarya Raj joined the Indian Forest Service in 2017, and Parvati Division was his second posting after Kullu in the state of Himachal Pradesh. Having taken charge in January, 2021, the first task was to assess the ground situation in different areas of his jurisdiction. On one such field visit close to the confluence of the mighty Beas and Parvati rivers, he came across a tract of forest land dumped with garbage and infested with heavy weed overgrowth. This was also a cause of riverside pollution. His staff informed him that the space was being misused by anti-social elements both during day and night to bide their time. These elements were involved in substance abuse as well. There was a threat of encroachment in the near future. Wanting to do something about these challenges, Aishwarya wondered how the forest land could be reclaimed into something safe and how some funds could be sourced to carry out the execution of a plan that he had on his mind. In his previous posting too, he had worked on a 15 hectare wasteland project in Manali that was being developed into an ecotourism project which gave him the confidence to think in terms of a possible revamp here as well.

Interestingly, the Government of Himachal Pradesh, around the same time, declared its intention to set up ‘Swarnim Vatikas’ across the state as part of Himachal’s 50 years statehood celebration. Using this as an opportunity, it was decided to transform this 1 hectare of wasteland into an eco-friendly sprawling, green urban space for town dwellers and nature seekers alike. The green zone was christened as ‘Sangam Swarnim Vatika’ for it stood at the confluence of two mighty rivers. If someone visits the place today, the view is serene, with no evidence of a shabby dump yard that once held ground here. Instead, it has been replaced with a beautifully landscaped garden, with a variety of tree species, creepers, shrubs, herbs along the area, frequented by a variety of beautiful birds.

The first step was to clear the area of its waste pile, cactus and weeds. The enthusiastic forest guards organized the clean-up quite efficiently. The garbage of around 25 tippers was collected and disposed. The organic waste was turned into processing vermicompost in nearby nurseries. The quality of soil was checked by deep digging and it was found to be in fairly good condition for plant growth. After mixing with some fertile mountain soil and humus, the soil was readied.

Before planting, the second step was to ensure the protection of the 2.5 acre area from both grazing/biotic pressures and movement of anti-social elements. In part RCC fencing and inter-link chain fencing was carried out for the entire space. Additionally, CCTV cameras were also installed nearby for monitoring purpose.

Technology cam handy. Aishwarya’s I-pad (which he deployed at workplace to minimize paper use) was a huge help in designing the entire lay-out of the Swarnim Vatika. After spending sometime exploring and reading on the local ecology and plant suitability of the ecotone area (Riverine), species of trees, shrubs and ornamental ones were identified. These could be considered for plantation in the park.

In phase I, over 400 species of native varieties such as deodar, silver oak, horse-chestnut, jacaranda, golden shower, bougainvillea, rose, thuja, cycas, ribbon plant, gladiola, peach, apricot, plum and pomegranate, among others have been planted. More than 200 additional species will be planted by the coming monsoon season. Groves of some of these species have been created so that can be enjoyed by visitors in future.

For landscaping, it was decided to go the up-cycling way in three aspects. One, the discarded or used slates, a stone with which houses are made in the hills, from the neighboring settlement were up-cycled to create the walking trails. The local ‘Dhrub’ grass sprouting in between those slates within 2 months is a sight to behold. Two, only riverside stones were used to landscape and beautify the Vatika. In addition to being eco-friendly, they enhanced the natural riverside view. Three, signages regarding nature awareness and seating are being installed. For this purpose, driftwood, obtained during last monsoon, are being put to use.

Parvati Valley is a hugely popular tourist hotspot with a number of breathtaking destinations. The Vatika, however, was primarily created for the local people who actually didn’t have enough urban walking or recreational avenues. Interestingly, there have been a number of avian visitors at the park – including yellow-billed blue magpie, parakeets, Eurasian hoopoe, barn swallow and doves. There is a likelihood of further increase in the number of such visitors.

The local panchayats, Mahila Mandals as well as youth groups have been engaged in this effort to instill a sense of ownership amongst them. This will help sustain the effort of keeping this area clean and green.

Next up, an attempt is being made to identify more such degraded areas in Parvati jurisdiction that can be converted into green zones. With funds and local support in place, this initiative will help revamp such areas and enrich the environment. The Vatika is an example where the Forest Department under the visionary leadership of a young forest officer, Aishwarya Raj and his committed team demonstrated a win-win scenario of nature conservation and development. Such initiatives, though small and in remote locations, can inspire others to do the same as they attempt to restore the beauty of Mother Earth. It is also an effort to demonstrate that a combination of concern for nature and capability to take the stake holders along can help transform the landscape in many regions. There are indeed many parts of the country that require such interventions

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Policy & Politics

WHEN WILL YOU CHANGE, WHEN WILL THE COUNTRY TRANSFORM?

Milkha Singh wished to see an Indian win Olympic gold medal in athletics.

Vijay Darda

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I salute and bow down to the legendary sprinter Milkha Singh who got the sobriquet of Flying Sikh. On his departure, two thoughts come to my mind. First, will we ever see a runner like him again? And the second, when will Milkha Singh’s unfulfilled dream be fulfilled? He had a dream, that one day an Indian will win an Olympic gold medal! I wonder whether true tribute can be paid with an unfulfilled dream!0

When Milkha Singh ran in the Commonwealth Games and set a record that remained unbroken for 40 years, he did not have the resources. He faced immense hardship. He didn’t have a good pair of shoes. The concept of nutritious food was totally unfamiliar then. He used to run barefoot during practice. Yet he excelled, all these difficulties notwithstanding. His wife Nirmal Kaur was the captain of the national volleyball team and son Jeev Milkha Singh is a professional golfer. Milkha Singh always regretted why no Indian could win a gold medal in the athletics section in the Olympics. This regret became his dream. He would always express it. Unfortunately, this dream could not be fulfilled during his lifetime. After his death, the country is invariably remembering his dream and his contribution to sports. The entire country including the President, Vice President and Prime Minister has paid tribute to him. I think the real way of paying tribute to him will be to fulfil the dream he saw all his life. The nation should remember the blisters on his feet when he ran barefoot so as to groom an entire generation of sportsmen. Like Milkha Singh, it was Dhyanchand’s dream too that India should become the world champion in hockey again.

Actually, to fulfil the dreams of Milkha Singh and Dhyanchand, we have to work together on many fronts. First of all, we have to understand that sports is not just a means of enhancing physical ability. Sports are directly related to our patriotism, our self-respect, our progress and our nation’s pride. Remember that when the tricolour flies high in the celebration of victory and when the tune of Jana Gana Mana is played, we are thrilled to the bone. Tears of joy flow from the eyes of the winner. It was the dream of Milkha Singh to celebrate victory in the Olympic arena and hold the tricolour high to the tune of Jana Gana Mana.

Of course, the atmosphere is changing now. Kiren Rijiju is a very competent minister. He wants that an environment of sports should be created in the country. Children who have abilities should get opportunities. It can be said that the government seems to be becoming conscious about sports; the government has started to think that it should spend on sports, but the atmosphere is still not so positive that we can produce another Milkha Singh again. If we really want to create and train a generation of players, we have to learn how children are spotted and groomed by China, Russia or Croatia. Today the players of these countries dominate the playground, and the commitment of the government there is the biggest reason. I remember, I was watching a World Cup match. When the Croatian football team won, their President Colinda Graber walked into the dressing room and hugged the sweaty players and kissed them. When will our players experience such a moment?

We are all witness to the state of affairs about sports in our country. From the schooldays itself, we should keep in mind and identify which child has the potential for which sport. They should be selected there and their training should start. But today, our children are away from the playgrounds and remain obsessed with mobile phones. Neither the parents care much nor our government. Children’s playgrounds are also shrinking. Concrete jungles are encroaching upon them. If Saina Nehwal has risen from amidst us and made a name for herself today, the government has no contribution in it. This is the result of the determination of a mother who trained Saina from the age of five with a pledge to make her a world champion.

Saina Nehwal’s mother Usha Rani Nehwal was seven months pregnant and still played a local match. This shows her passion. Be it Saina Nehwal, Sania Mirza or Mary Kom or other players like them, all of them have been able to excel on their own strength and determination. Many people have potential but they do not get opportunities due to various reasons. Politics has to be kept away from sports, only then will success be achieved. Sometime back, I had heard that Maharashtra’s shooter Anjali Bhagwat, who earned a name in the world, faced a lot of harassment. Many such incidents keep coming to light. If incidents like these happen, why would anyone make sports his or her career?

Spotting and grooming children with potential is not an impossible task. It just needs perspective. You spot the children and give the responsibility to the industrial houses to mould them. Yes, it will be very important to keep in mind that the government does not interfere and the industrial houses should get full freedom for this purpose. And of course, also ensure that the craze for cricket should not destroy other games. We have to understand that cricket is not a national or international game. It’s neither in the Olympics nor in the Commonwealth Games. This is a club game. But cricket has become a religion in India. Given the amount of money cricket has, it has its share of controversies and scandals too. I would not like to discuss any of them. All I have to say is that to fulfil the dream of Milkha Singh and hold the tricolour aloft in the world of sports, we need to create enthusiasm, passion and love for sports among the children.

And finally, the only question to the system is when will you change, when will the country change, and when will this dream come true?

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

Though Milkha Singh is no longer among us. He has left a dream for all of us to fulfil, that some Indian athlete should win a gold medal in the Olympics. We will pay him a true tribute only when we are able to mould our youngsters into sporting stalwarts who will be able to win gold medals and make us all feel the thrill of the tricolour held high to the tune of ‘Jana Gana Mana…’ in the Olympics.

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Policy & Politics

Significance of attaining the age of majority: Decoding the landmark judgements in the light of Article 21

The 242nd Law Commission Report titled ‘Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework’ demonstrates how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights, “As far as India is concerned, ‘honour killings’ are mostly reported from the states of Haryana, Punjab, Rajasthan and UP. Bhagalpur in Bihar is also one of the known places for ‘honour killings’.”

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If you are a major, you can even solemnize marriage with a criminal and no fetters can be placed on your choice; indeed, it may appear somewhat paradoxical to the ordinary mind but not to a legal mind. I am not pronouncing this verdict on unqualified grounds rather this phenomenon of the right to make a choice is the result of the peculiar stupendous judicial pronouncements. Recently, the right to choose a partner of one choice, the right to renounce one religion and accept another religion are such constructive, progressive, and liberal concepts that have garnered the substantive attention of large public discourse. But with the attention on the topic of choice of partner and religion, few people have paid attention to the subject matter of “Age of the Majority”.

According to Sec 3(1) of the Indian Majority Act 1875, an individual is said to attain the age of majority when he/she completes his/her 18 years. Article 21, does mandate that no person shall be deprived of his/her liberty but there is no such expression, expressly enumerated under this Article that we are having the liberty to marry a person, involved in criminal activities. Interestingly, it is worth mentioning that there are many rights guaranteed implicitly under Article 21 of the Indian Constitution as it is the mother in recognizing the “Unrecognised liberties”. It is desirable to note that one of such recognitions, was recognizing the significance of an individual who attains the age of majority.

The Hon’ble Supreme Court, while recently hearing the contention advanced by the petitioner in the case of Soni Gerry v. Gerry Douglas (2018) 2 SCC 197 that the daughter is under illegal custody/detention and the Court must free her from illegal restraint. The Hon’ble Court considered this particular fact that the daughter had completed 18 years of age on 19.9.2016, thus she had attained the age of majority. In this regard, the landmark observation that was made by the Court that – ‘when an individual attains the age of majority, it has its own significance. It was also observed that he/she is entitled to make his/her choice. The Hon’ble Supreme Court rejected the contention to pass the writ of habeas corpus and held that she was not under illegal detention.

AGE OF MAJORITY: A DETERMINATE FACTOR IN UPHOLDING THE TWO MAJOR RIGHTS

Recognising the two major rights- the right to marry a person of one’s choice and the right to renounce one religion and accept another religion are appositely valued and also its esteemed status is conferred under Article 21 of the Constitution of India.

Article 16 of the Universal Declaration of Human Rights also lays down the importance of age of majority that – “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

“India is a free and democratic country and once a person becomes a major he/she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relation with son or daughter,….”- This was the erudite observation made in the much-celebrated case of Lata Singh v. State of U.P and Another, (2006) 5 SCC 475 that reverberates in the Constitutional guarantee of freedom from the patriarchal tyranny and autocracy.

The notion of liberty was also examined and evaluated in the case of Gian Devi v. Superintendent, Nari Niketan, Delhi (1976) 3 SCC 234, that the girl has attained the age of majority and no restraints can be placed on her choices of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she could stay. Even the Court does not possess the right to determine.

The landmark case of Shafin Jahan v. K.M Ashokan & Ors. AIR 2018 SC 357 cannot be ignored as the same is an important development for the right to choose a partner of one’s choice. It is worth stepping into the facts of the case where a girl namely Hadiya aged 26 years converted herself to Islam and married a Muslim boy namely Shafin Jahan. In this case, the father Ashokan moved a habeas corpus petition before the Hon’ble Kerala High Court alleged that her girl Hadiya was the victim of systematic psychological manipulation and forcefully converted to Islam and in the furtherance of same, her daughter was likely to transport out of the country. The High Court accepted the contentions and allowed him to sustain the writ petition of habeas corpus and annulled the marriage of her with Shafin Jahan. The High Court of Kerala was in the view that even though she has attained the age of majority, she is weak and vulnerable and capable of being exploited in many ways in the circumstances noticed in this instant case. An investigation was also ordered to National Investigation Agency to investigate the ‘education, family background, antecedents and other relevant details of Shafin Jahan and it is fascinating to note that the principal finding of the report was that Shafin Jahan is accused in a criminal case and his Facebook posts show a radical inclination.

When this matter came before the Hon’ble Supreme Court, it was observed that Kerala High Court has failed to recognize the undisputed fact that the girl Hadiya is major, and when an individual attains the age of majority, he/she becomes capable to take her own decision. It was also observed that the annulment order passed by the Kerala High Court is the non-acceptance of her choice that simply transgresses her fundamental rights guaranteed under our Constitution. The Kerala High Court, being a Constitutional Court was not supposed to interfere in this matter as the very interference amounts to a miscarriage of justice and the liberty and dignity of two consenting adults who have been subjected to judicial affront. The Hon’ble Supreme Court also clarified that if there is any criminality in any sphere then NIA may continue its investigation however the validity shall not form the subject matter of the investigation and NIA cannot interfere with the marital status of the two major couples. The appeal was allowed and judgment of the High Court was set aside.

There are other landmark judgments as well but in this overall context, the importance of emphasizing the concept of age of majority and right to make a free choice that the basic elements of a dignified life are also the realization of the significance of the right to choose within the legitimate parameters of the law. The individual’s authority is supreme and no one possesses the right to dictate or limit a person’s choice. Our choices are cherished because they are ours. Indeed, it is not a privilege rather a right of a major and more importantly it is further protected by the Constitution of India which ensures that every person can make the determinations on the matters which is central to the pursuit of happiness and is the intrinsic part of liberty and dignity guaranteed by the Indian Constitution.

Grave Social Symptoms: The Unwarranted Interference and Distressful Silence

It is disheartening to see all the survey carried or report submitted have become veritable documents of the fact that consent of family or the society or the clan is still required to enter into a wedlock. Despite of the fact, no shackles can be placed on the choice of a major, still there is an unwarranted interference of the family or the society or the clan that guillotines the freedom and liberty guaranteed under the Constitution of India and the distressful silence of the protectors of this right succumbs the objective of our Constitutional guarantee of freedom of choice which is the quintessence of the 21st Century.

The 242nd Law Commission Report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” demonstrates that how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights that- “As far as India is concerned, “honour killings” are mostly reported from the States of Haryana, Punjab, Rajasthan and U.P. Bhagalpur in Bihar is also one of the known places for ‘honour killings”. Even some incidents are reported from Delhi and Tamil Nadu. Marriages with members of other castes or the couple leaving the parental home to live together and marry provoke the harmful acts against the couple and immediate family members.”

The Report also underlines the pernicious interference of caste/community assemblies in the guise of ‘Khap Panchayats’ that underscores the liberty and instil the terror by inhuman treatment and inflicting the excessively harsh punishments on those individuals who tried to do exogamous marriage. Unfortunately, these merciless hands haunt the dignity of the individuals in the name of ‘moral vigilantism’ and distressful silence of the society waters them to continue this evil practise.

In 2018, Lok Foundation-Oxford University Survey run by the Centre for Monitoring India Economy (CMIE) reported that just 3 percent of marriages are love marriages. According to the 2011-12 India Human Development Survey, only 13 percent of married women in metro cities knew their husbands prior to marriage. Arranged marriages do not imply forced marriages necessarily however, this fact cannot be ignored that most of the Indian families and communities try to maintain endogamous marriage.

REASON BEHIND SUCH GRAVE SOCIAL SYMPTOMS

It is apt to refer to the case of Bhagwan Dass v. State (NCT of Delhi) (2011) 6 SCC 396 where the Hon’ble Supreme Court stated that many people feel that they are disgraced or dishonoured by the conduct of the young individuals who is related to them or belongs to their caste simply because they marry against their will or wishes or having an affair with someone, and as a result, they take the law into their hands and mentally, physically assault them and inflict the other atrocities which is not lawful in the eyes of law. The 242nd Law Commission Report mentions that the crimes against the young individuals take place as the result of doing exogamous marriage without receiving the family consent. Even the marriages between the young couples outside the gotra often called the violent reaction from the family or clan or society.

Ostensibly, it is clear that that the couples must be freed from the unlawful fetters or hindrances placed by the so-called social guardians who are doing nothing for the benefit for the society rather killing the soul of our Constitution. Hence, it is important to break down the same.

STEPS TAKEN

Undoubtedly, the Courts are playing the active and important role in asserting the choices of majors. For this reason, this particular subject matter becomes of utmost importance. The case of Sakti Vahini v. Union of India (2018) 7 SCC 192 is the evident and glaring example where the Hon’ble Supreme Court directed the police departments and State governments to adopt a robust mechanism to eradicate the crime of ‘Honour Killing’. The Hon’ble Court laid down certain guidelines which was preventive and punitive in nature. Also, the remedial measures were issued. However, if the governments and administrations at the different tiers will not work properly and become silent spectator then the importance of same will languish which is fortunately not in our case.

In order to boost and encourage the inter-caste marriages, the NDA government is providing Rs. 2.5 lakh for every inter-caste marriage with Dalit under the ‘Dr. Ambedkar scheme for social integration through inter-caste marriage’. This financial motivation was started in 2013 but there was a bar that total income must be less than Rs. 5 lakhs so that one can be eligible to receive the one-time monetary incentives of Rs. 2.5 lakhs. Recently, in order to infuse the teachings of BR Ambedkar in the society and to promote the social equity, the Ministry of Social Justice and Empowerment took this bold step and scrapped this bar. This will definitely help in the effective implementation and the administration of this scheme. Many states also have the similar schemes and protective, pre-emptive and corrective measures to curb the menace of crimes against the individuals and to assert their choices. For instance, Bihar government provides the National Saving Certificate amounting to Rs 25,000/- as monetary incentive to women performing inter-caste marriage. The Madhya Pradesh Government has a dedicated cell better known as ‘Crime Against Women Cell” that ensures the safety of couples.

CLOSING OBSERVATIONS

Indeed, The notion of ‘Significance of Age of Majority’ has achieved the landmark growth. Still, in the long growth, the directions issued by the Courts and policy, measures adopted by the Central and State governments has to reach at the grassroot levels and more importantly the society itself has to come forward to stamp out the acts of barbarism against the individuals “WHO HAVE ATTAINED THE AGE OF MAJORITY”.

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Policy & Politics

Second coronavirus wave, administration and Fundamental Rights

The pandemic saw the infringement of various Fundamental Rights guaranteed by our Constitution. The fundamental human rights that are most affected are ‘Right to Health’ and ‘Right to Life’ which also includes ‘Right to die with dignity’. In many well-known judgements, the Supreme Court and several High Courts agreed that the dead corpse should be treated with proper dignity and treated fairly. The Supreme Court recognised that right to life extends not only to living persons but also to their bodies after death.

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In the words of William Shakespeare which says “All that lives must die, passing through nature to eternity.”While death is regarded as a natural occurrence, the basic decent treatment that is anticipated and should be provided to the deceased does not always germinate and materialize naturally. We recently had to witness such tragic cases which have not only shocked the entire country but have also witnessed and drawn intervention towards this grave issue from all over the world.

Sightings of dead bodies floating on the bank of the holy river Ganga were reported in the country’s top newspapers. Villagers in Bihar and Uttar Pradesh discovered bodies in the Ganga and Yamuna rivers on May 11, 2021. Ganga, a holy river where people undertake various rituals in relation to ceremonies that are therein mentioned in their holy book, they not only perform ceremonies but also venerate river Ganga for its purity. On May 11, seven bodies wrapped in plastic bags were discovered floating in Uttar Pradesh’s Ghazipur and Hamirpur districts. Similar incidents have also been reported in the Baksar district of Bihar. The greatest concern among residents was that stray dogs and birds would devour the carcasses which would then result in spreading the coronavirus. However, instead of taking action against those responsible for the malafide attacks, the state authorities are now playing a blame game with one another. The world is in danger and the situation has been seen severely detrimental among masses. The heart-rending incidents from these states remind us of the last Mughal emperor and his poetic lament. Unable to find a final resting place in his beloved homeland (India), the last Mughal emperor quite rightly put forth the plight of the dead – Kitna hai badnaseeb Zafar dafn ke liye/Do gazz amen bhi na milikoo-e-yaar mein (How unlucky is Zafar! For burial, even two yards of land were not to be had in the land of his beloved). In the recent past, a ‘novel’ difficulty, similar to the ‘novel’ Corona Virus, has arisen for our contemplation, which would be guided eventually from the foundations of this present article. The article shall examine three major contentions vis-à-vis the issue of dead bodies which were found floating on the banks of river Ganga. Firstly, whether the actions of state authorities being negligent towards the horrendous issue i.e the floating of dead bodies, be condemned? Secondly, the fundamental right of a dead person, enumerated under the constitution of India violated or do we not owe a duty to cremate the deceased respectfully? Third, is there a need to amend the guidelines issued by the Ministry of Health and Family Welfare on management of corpses?

NEGLIGENCE ON PART OF STATE AUTHORITIES

The term other authorities that are enumerated under Article 12 of the constitution of India has given interpretation to the term ‘AUTHORITIES’ by the means of landmark precedents. It is settled law that the State under Article 12 is the custodian of the welfare and wellbeing of its citizens. However, looking at the present scenario the situation seems to be such where the actions on part of state authorities are not at all seems to be custodian but seems to become a warrior against the interest of masses.

Legislation derives its power from the constitutions of India, 1950 which grant the liberal interpretation of Articles 21, 48 and 51(g) by the Hon’ble Judges of Apex court and other courts across the country. In the famous case of Narmada Bachao Andolan v. union of India 2010 SCC 664, The Supreme Court has held that the right to clean water is a fundamental right under article 21 of the Indian constitution. Water prevention and control of pollution act of 1974 is the key specific legislation for preventing water pollution and for taking care and maintaining water bodies. It also aims for promoting for restoration of water bodies. For better implementation of the act, the Central pollution control board and the state pollution control board have been established by the Central and the state government. Under the aforesaid act, the board has the requisite power to encourage and conduct research and investigation with the view of promoting, the prevention of contamination of water in a significant manner and also to add the central government for the matters relating to environmental issues and for the prevention and control of water pollution. In the present issue, the duties and obligations that have been imparted to such boards and the ones enumerated in the aforesaid act have been brazenly ignored by state authorities. They have failed to impart their duties in such remorse condition because of which the lives of masses are now at stake. Hence, because of the aforesaid reason the actions of state authorities should be condemned.

DEAD PERSON TOO HOLDS A FUNDAMENTAL RIGHT

The flagrants acts during the pandemic has resulted in the infringement of various Fundamental Rights guaranteed by our Constitution.The fundamental human rights that are most affected are “Right to Health” and “Right to Life which also includes Right to die with dignity.” In many well-known judgements, the Supreme Court of India and many High Courts agreed that the dead corpse should be treated with proper dignity and treated fairly. The Supreme Court of India recognized that right to life, to fair treatment and dignity, extends not only to a living person but also to their bodies after death. In a landmark judgment (Common Cause, A Regd. Society V. Union of India & Anr.) delivered on 9th March, 2018, the Supreme Court of India held that the right to die with dignity is an intrinsic facet of the right to life under Article 21 of the Constitution of India. In fact, in the year 2007, the Madras high court in the case of S.Sethu Raja vs The Chief Secretary (2007) 5 MLJ 404 had held in Para 18 of the Judgment that the same human dignity (if not more) with which a living being is suppose to be treated by our tradition and our culture should also apply to the dead person and he too holds a right of dignified burial or cremation of a dead body. The right to decent burial is upholding in Indian context, but who is authorized for burial is not explained in any Indian Law. There is a strong societal interest in the proper disposition of the bodies of deceased person. It is universally accepted that a duty is owed to both society and the deceased that the body be buried without any unnecessary delay.

AMENDEDMENT IN THE GUIDELINES AMID COVID-19 IS ‘THE NEED OF THE HOUR’

A document containing ‘Dead Body Guidelines (COVID-19)’ – [hereinafter, ‘Document’], was released by the Directorate General of Health Services (EMR División), Minister of Health and Family Welfare of India on March 15, 2020. To date, it remains unamended and builds on the epidemiological understanding of COVID-19 of the Ministry at present. The aforesaid document lacks some crucial quintessential.

Thereby, the authors would like to propose some takeaways from the other jurisdiction of the nations across the globe, which can be included in the aforesaid guidelines for the benefit of the masses across the country.

The guidelines should be inclusive or seeks to impose a compulsory cremation of the covid-19 victims, which is foremost aimed to prevent local bodies from being able to cremate the body of the deceased overriding his/her religious belief.

In the midst of the global pandemic of covid-19 where graveyards and crematoriums crammed, the locals people of various states are of the view that there emerged shortage of woods for pyre, thereby resulted in the hike in the cost of cremation, whereby this becomes the sole reason why the bodies were buried or seen floating. Hence, the guidelines should impose a reasonable amount or capped a certain amount that crematoriums can charge from families at the time of cremation of a dead body.

Prices should be regulated for hearse or ambulance services so that people are not used and are not exposed to difficulty transporting dead bodies.

The guideline should impose sanction on those people committing horrendous acts such as throwing bodies in rivers, not cremating bodies as per rules enumerated therein.

In order to avoid health risks from smoke emission from burning pyres in large numbers, the use of electric crematoria can be encouraged.

The burial or cremation of masses should not occur because it infringes the right to dignity of the dead.

CONCLUSION

India has been overwhelmed by a devastating second wave of the pandemic in recent weeks. It has recorded more than 25 million cases and 2,75,000 deaths. But the experts say the real death toll is several times higher. The bodies dumped on the river banks and the funeral pyres burning round the clock and cremation grounds running out of space are the proof that the official tally of deaths represent a substantial undercount of the true burdens. In recent times, various eye opening incidents surfaced through media wherein humans were seen to be treated worse than animals. There were interminable news reports which reported incidents like dumping of corpses in a pit at a burial ground without performing their last rites. Many photographs and videos of the half burnt and decomposed dead bodies have gone viral on social media. In order to stop this menace that is bulging the entire nation, all those aforesaid measure as stated hereinabove should be adopted and the the adminstration should pay heed and curb against all those activities that are disturbing not only the rights of dead person but all the right of a living person.

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Freedom of speech & sedition law in India : An analysis in the light of recent controversy

The definition of sedition must be narrowed down to encompass only the problems pertaining to the territorial integrity of India, in addition to the sovereignty of the country. The word ‘sedition’ is extraordinarily nuanced and needs to be implemented with caution. It should rarely be used but kept by and large as a deterrent.

Raju Kumar

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INTRODUCTION

It is an irony for the mostdemocratic nation, ie, India, where freedom of speech and expression has been granted under the Indian Constitu- tion, and while exercising their power enshrined un- der the Constitution of India. they are being booked for the offence of sedition. Accord ing to the report of Rights and Risks Analysis Group, as many as 55 journalists were targeted by the government during 25 March and 31 May for covering facts about the government handling of the Covid-19 pandemic.

Recently, the Supreme Court of India has quashed the sedition case registered against senior journalist Vinod Dua in Himachal Pradesh. The verdict was pronounced by a single judge bench led by Hon’ble Justice UU. Lalit.

Vinod Dua was booked for sedition for criticising the Narendra Modi government’s handling of the Covid-19 lock down and had uploaded the same on Youtube last year, While granting the relief the court relied on the principles laid down in the Judgment of Kedar Nath. The judg ment was delivered in the year 1962, where the consti- tutional validity of sedition law in India was validated. However, it was observed that free speech, discussions on matters of government functioning and their criti cism, and freedom of press are “essential for the proper functioning of the processes of popular government Currently, in the Vinod Dua case, the Hon’ble Court has also observed that the jour nalist will be entitled to pro tection under the judgment”.

It was further observed that “It must, however, beclarified that every Journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under Sections 124 and 505 of the IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh”. The Court Held that

HISTORICAL

BACKGROUND OF SEDITION LAW

Sedition laws were enacted during 17th century England, when the lawmakers believed that only good opinions of the government should survive as the criticism of a Govern- ment may result in detri- mental to the government and monarchy. The law was originally drafted in 1837 by the father of the Indian Penal Code, Thomas Macaulay, but it was omitted when the In- dian Penal Code (IPC) was enacted in the year 1860.

Many freedom fighters were charged under this provision which includes the case of Joggendra Chandra Bose, who was the editor of the newspaper, Bangbosi, who wrote an article criticis ing the age of consent Bill for posing a threat to the religion and for its coercive relation ship with Indians.

Great freedom fighters like Bal Gangadhar Tilak and Mahatma Gandhi were also booked under this offense.

SEDITION LAW IN INDIA: CURRENT SCENARIO

Sedition is an offense under Sectio 124A of the Indian Penal Code (Hereinafter re- ferred to as IPC), 1860. See tion 124A IPC, defines the offense sedition when “any person by words, either spo- kenorwritten, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or con- tempt, or excites or attempts toexcite disaffection towards the government established by law in India”. Disaffection also includes disloyalty and all feelings of enmity. How ever, it is here notable that comments without exciting or attempting to excite ha tred, contempt or disaffee tion, will not constitute an offense under this section.

PUNISHMENT FOR SEDITION

Sedition is a non-bailable offense. Punishment un der Section 124A ranges from imprisonment up to three years to a life term. to which fine may be added. It is also notable that if a person is charged under this law, he will be barred from a govern ment Job. They have to live without their passport and must produce themselves in
constitutional. Furthermore, it was also held that the dis turbing the public order will mean nothing less than en dangering the foundations of the Stateor threatening its overthrow: These Judgments prompted the First Constitu tion Amendment, where Ar ticle 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”. In the year 1962, in the historic judgment of Kedar Nath Singh vs State of Bihar. the supreme court decided on the constitutionality of See tion 124A. The Hon’ble court upheld the constitutionality of sedition, but had limited its application to “acts involving intention or tendency tore ate disorder,ordisturbance of law and order, or incitement to violence”. Itdistinguished these from “very strong speech” or the use of “vigor ous words” strongly critical of the government.

In the year 1965, the Su preme Court, in the judgment of Balwant Singh vs State of Punjab, held that mere slo ganeering which evoked no public response did not amount to sedition.

ARGUMENTS FOR SECTION 124A

The Provision of Sedition law has its application in fighting anti-national, secessionist and terrorist elements. It is argued withinside the fa- vour of this law that, it pro tects the elected government from tries to overthrow the authorities with violence and unlawful means. The continued existence of the government set up through regulation is an important circumstance of the stability of the State. Furthermore, it is also believed that if Contempt of court results in the penal action, the contempt of Gov ernment should also attract
the same.

ARGUMENTS AGAINST SECTION 124A

The Provision of Sedition Law isarelic of colonial lega cyand it is not fit for democra- ey This is a restriction on the legal exercise of the freedom of speech guaranteed by the Constitution. Government disagreements and criti cisms are an important part of healthy public debate in dynamie democracy. They should not be constructed as sedition. It is notable that The British who resisted the suppression of the Indians overturned their countrys laws. India has no reason not to abolish this part and
the time has come to amend this portion. It is also argued against this law that the terms usedunder Section 124A like disaffection are vague and subject to different interpre- tations to the whims and fan- cies of the investigating offi- cers. The sedition law isbeing misused as a tool to persecute political dissent. A wide and concentrated executive dis- cretion is inbuilt into it which permits the blatant abuse.

CONCLUSION AND WAY FORWARD

Dr Justice (Retd.) Balbir Singh Chouhan has observed that “The sedition law needs reconsideration”. Since the creation of this British Sedition Law, its application has always been inconsistent. In all cases, its application is vague and self-contradictory. Considering that it is used to suppress the masses, when it serves the masses, its application was initially vague. It is used as a tool to strengthen political motivations by preventing speeches that threaten the authority of the country. A clear and unam- biguous explanation of the crime. In recent years, the ap- plication of the sedition law has been too arbitrary and has become a controversial topic. Although our sedition position was established in 1960, it still exists. Over the past 50 years, Indian society has developed rapidly, and people have shown “toler ance” towards summons and violence. The nature of the government has also changed, and people’s under- standing of the government is different from that of its representatives.

India is the largest de- mocracy of the world and the right to free speech and expression is a vital aspect of democracy. The expres- sion or thought that isn’t in consonance with the policy

Freedom of speech & sedition kew in India: An analysis in the light of recent controversy

of the government of the day must now no longer be taken into consideration as sedition. Section 124A mus now no longer be misused as a device to scale down loose speech. The SC caveat, giver in Kedar Nath case, on pros ecution beneathneath the regulation can test its misuse It needs to be tested under the modified facts and situation: 1 additionally at the anvi of ever-evolving tests of ne cessity, proportionality and arbitrariness. The higher judiciary must use its super visory powers to sensitize the magistracy and police to the constitutional provision: protective free speech. The definition of sedition mus be narrowed down, to en compass only the problem: pertaining to the territoria integrity of India in addi tion to the sovereignty of the country. The word ‘sedition is extraordinarily nuancec and needs to be implement ed with caution. It is sort of a cannon that ought now no longer for use to shoot a mouse; however the arsena additionally needs posses sion of cannons, by and larg as a deterrent, and sometimes for shooting.

India is the largest democracy of the world and the right to free speech and expression
is a vital aspect of democracy. The expression or thought that isn’t in consonance
with the policy of the government of the day must now no longer be taken into
consideration as sedition. Section 124A must now no longer be misused as a device
to scale down loose speech. The SC caveat, given in the Kedarnath case, can test its
misuse. It needs to be tested under the modified facts and situations and additionally
at the anvil of ever-evolving tests of necessity, proportionality and arbitrariness.

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