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Police personnel cannot be appointed jail superintendent, says Uttarakhand HC

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In a significant judgement pertaining to prisoners rights and affecting them directly, the Uttarakhand High Court has in a latest, landmark, laudable and learned judgement titled Sanjeev Kumar Akash v. State of Uttarakhand & Ors in Writ Petition (PIL) No. 25 of 2021 delivered on 12 April 2021 has held that police personnel cannot be appointed as Jail Superintendent. A Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma observed that we have come to the age of “Reformation and Rehabilitation of Prisoners”. It held that the purpose of police is very different from that of Jail Superintendents and as a natural corollary, their trainings and psyche are poles apart. Hence the former cannot possess the position of the latter.

To start with, Chief Justice Sri Raghvendra Singh Chauhan who has authored this notable judgment for a Bench comprising of himself and Justice Alok Kumar Verma of the Uttarakhand High Court sets the ball rolling by first and foremost pointing out in para 1 that, “Mr. Sanjeev Kumar Akash, the petitioner, has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021, passed by the Secretary, Department of Home, the respondent no. 2, whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, the respondent no. 3, whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the State of Uttarakhand.”

While elaborating on the facts of the case, the Bench then enunciates in para 2 that, “Briefly stated, the facts of the case are that, as per the structure in the Department of Prison in the State of Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service (IPS). Hence, the present Public Interest Litigation before this Court.”

On the one hand, the Bench first dwells on the petitioner’s contentions in para 3 stating that, “Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has raised the following contentions before this Court :-

Firstly, that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains. The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Since the job responsibilities are of different nature, the psychological makeup, the thinking, the conduct of the Police Officers and the Jail Officers, perforce, has to be quite different. Whereas, generally a Police Officer sees an offender as a culprit, as a person who has violated the law, and thus deserves to be condemned and punished, the Officers of the Department of Prison see prisoners as human beings, who have erred, who need to be reformed, who need to be rehabilitated, and brought back as productive members of the society. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.

Secondly, keeping this distinction in mind, even law has bifurcated these two services into two different classes; the laws have empowered them differently. Therefore, to confuse these two classes would be violative of the fundamental philosophy, which govern these two different services.

Thirdly, this bifurcation of the two departments, and the philosophy behind working of the two departments, is not unique to India. But has universal application throughout the world. According to the learned Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”. These Rules prescribe the “good principles and practice in the treatment of prisoners and prison management”. Rules 74 to 82 deal with “Institutional Personnel”. Rule 74 provides for “careful selection of every grade of the personnel”. It emphasises “on their integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends”. Rule 74(3) further stresses on the need for appointment of prison personnel “on a full-time basis”. Rule 75(2) states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include, at a minimum, training on “rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners, and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment, or punishment.” Rule 79 further states that “the Prison Director (Superintendent of Jail in India) shall devote his or her entire working time to official duties, and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.”

Relying on the Nelson Mandela Rules, the learned Senior Counsel has emphasised that the Superintendents of Jail are required to undergo a particular training, which will inculcate a sense of dignity of all the prisoners, will make them humane, and sensitise them to the plight of the prisoners, to their families, and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent/Superintendent of Jail on a full-time basis, rather than on a part-time basis.

Fourthly, referring to the Uttar Pradesh Jail (Group A and B) Service Rules, 1982 (for short “the Rules, 1982”), the learned Senior Counsel has submitted that Rule 3(k) defines the post of “Superintendent, District Jail” to mean “the whole-time Superintendent, Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules, 1982, the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment, and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail”. Therefore, according to the learned Senior Counsel, the procedure for making an appointment to the post of Senior Superintendent/Superintendent of Jail is clearly prescribed by Rules 14, 15 and 16 of the Rules, 1982. These Rules do not permit ad-hoc appointment of Police personnel on the post of Senior Superintendent/Superintendent of Jail. Therefore, the impugned orders are clearly in violation of the Rules, 1982.

Fifthly, even the Code of Criminal Procedure, prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C, an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days, for offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore, even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise, while keeping an offender in judicial custody, he/she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover, in case the investigation were to be completed within the stipulated period of sixty days or ninety days, and in case bail were not granted by a competent Court, an undertrial is required to be kept in judicial custody. But, by appointing police personnel as Senior Superintendent/Superintendent of Jail, for all practical purposes, the custody is suddenly changed from a judicial one to a police one. Therefore, the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C.

Lastly, despite the fact that a prisoner loses the freedom of movement, he/she continues to enjoy the other fundamental rights, as guaranteed by the Constitution of India. Therefore, Article 21 of the Constitution of India, guaranteeing protection of Life and personal liberty, continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel, once a procedure has been established by law that too a procedure backed by certain penological philosophy- it cannot be violated by the State. Therefore, the State is legally bound to implement the service rules as contained in the Rules, 1982, to implement the requirements of Cr.P.C, to implement the constitutional philosophy, as embodied in the Preamble of the Constitution of India, and to implement the “Nelson Mandela Rules”. Hence, according to the learned Senior Counsel, the impugned orders deserve to be set-aside by this Court.”

On the other hand, the Bench then further states about the States contention in para 4 wherein it is put forth that, “On the other hand, Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State, has raised the following counter-contentions before this Court :-

Firstly, in the order dated 17.11.2006, issued by the Principal Secretary, Uttaranchal Administration, it was clearly mentioned that the Inspector General of Prisons would either be the Secretary, Home, or IAS officers, or of equivalent posts. Similarly, Additional Inspector General of Prisons would be from the post of Additional Secretary, Home/Joint Secretary, Home, or from PCS Cadre. In fact, even presently, the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore, the appointment of police personnel to the post of Senior Superintendent/Superintendent of Jail can certainly be made from Police Officers.

Secondly, considering the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which are lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent/Superintendent of Jail, the State is justified in making Police Officers incharge of these two posts on a temporary basis. Therefore, the learned counsel has supported the impugned orders.”

As a corollary, the Bench then brings out in para 5 that, “In rejoinder, Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has pleaded that the letter dated 17.11.2006 does not support the case of the State. For, while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers, the post of Senior Superintendent/Superintendent of Jail is covered by the Rules, 1982. Once the Rules, 1982 have been promulgated, they cannot be diluted by a mere letter issued by the Principal Secretary. In fact, the appointment to the post of Senior Superintendent/Superintendent of Jail has to be strictly in accordance with the Rules, 1982.”

Needless to say, the Bench then after hearing the learned counsel and perusing the impugned orders as stated in para 6, it is then brought out in para 7 that, “Prisons are as ancient as human civilization. Initially, prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana, an ancient text on the life of Lord Krishna, his parents, Devaki and Vasudeva, were imprisoned by Kansa, the King of Mathura. However, over the centuries, prisons were constructed for the purpose of punishing those, who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens, Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment.”

Quite alarmingly, the Bench then observes in para 11 that, “In 1835, Lord Macaulay presented a note to the Legislative Council in India as he was shocked by the horrifying and inhumane conditions prevalent in the Indian jails. The next year, on 02.01.1836, Lord William Bentick constituted a “Prison Discipline Committee”. The report of this Committee, submitted to Lord Auckland in 1838, revealed the rampant corruption, the laxity in discipline, and the abuse of men and women, who were imprisoned. However, surprisingly, the Committee rejected the thought of reforming the criminals.”

Going ahead, the Bench then further observes in para 12 that, “Over the years, the “Conference of Experts” held in 1877, and the “Fourth Jail Commission” in 1888, recommended that there should be a uniformity in all the Jails functioning in British India. Since Indians were seen as subjects and not as citizens, since the Britishers saw themselves as the Ruler, they recommended rigorous prison sentences, and even punishments within the confines of the Jails, such as whipping and solitary confinement, and keeping the prisoners in gunny clothing. The outcome of the recommendations of the “Conference of Experts” and the “Fourth Jail Commission” was the enactment of the “Prisons Act of 1894”. The Prisons Act, 1894 continues to govern most of the Jails even today.”

Needless to say, it is quite baffling that why no new Prisons Act has been passed even after 127 years till now? Why our lawmakers care a damn for the prisons? Why they never acted till now to meet the conditions of prisons to the present circumstances and now that of 1894 or 1895?

In this context, it has to be mentioned that the Bench then elucidates in para 13 stating that, “The “All India Jail Committee (1919-1920)” for the first time recommended the reformation and rehabilitation of offenders as one of the objectives of the prison administration. The Committee spoke about the adequate training of the prison staff, and about the separation of executive/custodial, ministerial and technical staff in prison service. The Committee believed that a different sort of training needs to be provided to the prison staff, than the training being provided to the police staff.”

Furthermore, the Bench then mentions in para 14 that, “After independence, a number of Committees have been constituted, beginning with the Jail recommendations made by Dr. W.C. Reckless, a U.N. Expert on Correctional Work. While submitting his report on “Jail Administration in India”, he advocated the reformative theory of punishment; he emphasised on specialized training of correctional personnel; he stressed on the need for a cadre of properly trained personnel staff.”

While underscoring the dire need to ameliorate the condition of prisons and prisoners, the Bench then states in para 15 that, “In 1972, the Ministry of Home Affairs, Government of India, appointed a “Working Group on Prisons”. In its report submitted in 1973, the Committee again emphasised the need for proper training of prison personnel. It also stressed that “prison administration should be treated as an integral part of the social defence components of national planning process”. Thus, the very basis for prison administration was to protect, reform and rehabilitate the prison population. Moreover, the prison population is not a population to be neglected. But it is a population, which needs to be encouraged to be productive. Therefore, skill upgradation is a sine qua non.”

While continuing in a similar vein, the Bench then observes in para 16 that, “In 1980, the Government of India constituted an “All India Committee on Jail Reforms” under the chairmanship of Hon’ble Mr. Justice A. N. Mulla. The Mulla Committee submitted 658 recommendations. According to the Committee, prisons in the country shall endeavour to reform and reassimilate offenders in the social milieu by giving them appropriate correctional treatment. One of the most important recommendations is that “prison services shall be developed as a professional career service. The State shall endeavour to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues. The efficient functioning of prisons depends, undoubtedly, upon the personal qualities, educational qualifications, professional competence and character of prison personnel. The status, emoluments and other service conditions of prison personnel should commensurate with their job requirements and responsibilities. An All-India Service, namely the ‘Indian Prisons and Correctional Service’ shall be constituted to induct better qualified and talented persons at higher echelons. Proper training of prison personnel shall be developed at the ‘national, regional and State levels’.”

Quite significantly, the Bench then lays bare in para 17 that, “On 17.07.2009, the Ministry of Home Affairs, Government of India had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) – All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under:-

(i) Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.

(ii) Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.

(iii) Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.”

While dwelling on the yeoman role of the Apex Court, the Bench then puts forth in para 18 that, “Over the decades, the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners, but has also emphasised on the penological philosophy of reformation, and rehabilitation of the prisoners. It has, thus, stressed on the need for having a well-trained prison staff, who would cater to the needs of the prisoners on a full-time basis.”

Quite pertinently, the Bench then observes in para 19 that, “Recently, in the case of Inhuman Conditions In 1382 Prisons, In re [(2018) 18 SCC 777], keeping in mind the dire necessity of reforming in prison administration, and the prison management, the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of : (i) Hon’ble Mr Justice Amitava Roy, a former Judge of the Supreme Court as its Chairperson, (ii) Inspector General of Police, Bureau of Police Research and Development as its Member, and (iii) Director General (Prisons) Tihar Jail, New Delhi as its Member.

The Committee has made the following recommendations with regard to the staffing patterns in the jails:

“RECRUITMENT OF STAFF

The Hon’ble Court may issue following directions in this regard:-

(a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines.

(i) In case of regular recruitment against permanent vacancies, the recruitment process should start within three months and should be completed within one year in the maximum.

(ii) All promotional vacancies should be filled up within six months”.”

Of immense significance is what is then stated in para 20 that, “At the International level, the United Nations has issued the “Nelson Mandela Rules”, which deal with the “Standard Minimum Rules for the Treatment of Prisoners”.

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As mentioned hereinabove, these Rules prescribe the accepted good principles, and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”.”

On these Rules, it is first and foremost stated in para 21 that, “Rule 74 is as under :-

“Rule 74

1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.

2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.

3. To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison staff and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.””

As we see, the Bench then states in para 22 that, “Rule 75 is as under :-

“Rule 75

1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner.

2. Before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service.

3. The prison administration shall ensure the continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel, after entering on duty and during their career.””

As we progress, we see that the Bench then observes in para 23 that, “Rule 76 is as under :-

“Rule 76

1. Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:

(a) Relevant national legislation, regulations and policies, as well as applicable international and regional instruments, the provisions of which must guide the work and interactions of prison staff with inmates;

(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment;

(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation;

(d) First aid, the psychosocial needs of prisoners and the corresponding dynamics in prison settings, as well as social care and assistance, including early detection of mental health issues.

2. Prison staff who are in charge of working with certain categories of prisoners, or who are assigned other specialized functions, shall receive training that has a corresponding focus.””

Not stopping, the Bench then adds in para 24 that, “Rule 79 is as under :-

“Rule 79

1. The prison director should be adequately qualified for his or her task by character, administrative ability, suitable training and experience.

2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.

3. When two or more prisons are under the authority of one director, he or she shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these prisons.””

Be it noted, the Bench then hastens to add in para 25 that, “Since India is a member of the United Nations, these Rules are equally binding on the country. Therefore, neither these Rules, nor the recommendations of the various Committees, nor the letter issued by the Ministry of Home Affairs, Government of India dated 17.07.2009, can possibly be ignored by the State.”

What’s more, the Bench then observes in para 26 that, “All these recommendations, and Rules are in conformity with the great transformation, which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence”, we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel, for providing rigorous training, both prior to their joining the service, and subsequent thereto, of the appointment being a full-time, regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting, reforming and rehabilitating the prisoners. Otherwise, it is a self-defeating proposition.”

Quite remarkably, the Bench then waxes eloquent to hold in para 27 that, “Needless to say, the purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of a police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. Thus, there is a vast difference in the philosophy that permeates the police administration, and the jail administration. Hence, even their training and the psychology of the police personnel and prison personnel are poles apart.”

No less remarkable is what is then divulged in para 28 that, “Keeping the differences in two systems, the Rules, 1982 clearly provide that the post of Superintendent, District Jail should necessarily has to be filled up in accordance with the Rules, 1982. Rule 5(6) of the Rules, 1982 is as under :-

“5(6) Superintendents, District Jails. – (i) 50 per cent of posts in the cadre by direct recruitment through the Commission.

(ii) 50 per cent of post in the cadre by promotion through the Commission from amongst regularly appointed Deputy Superintendents/Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.””

In the same vein, the Bench then points out in para 29 that, “Rule 14 of the Rules, 1982 is as under :-

“14. Determination of vacancies.- The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Superintendents, District Jails to be filled during the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6.””

Going forward, the Bench then envisages in para 30 that, “Rule 15 of the Rules, 1982 is as under :-

“15. Procedure for direct recruitment.- (1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment, if any.

(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.

(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes, and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of-marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority.

Note. – The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time.”

Also, still ahead, the Bench then states in para 31 that, “Rule 16 of the Rules, 1982 is as under :- “16. Procedure for recruitment by promotion to the post of Superintendent, District Jail.- Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.””

Most significantly, the Bench then minces no words to state it upfront in para 32 that, “A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal.”

Equally significant is what is then pointed out in para 33 that, “Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre, the said argument is clearly untenable. For, once the Rules, 1982, which deal with Group A and B services, clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post, the said Rules cannot be deviated from. After all, it is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail.”

As a consequence, the Bench then holds in para 34 that, “For the reasons stated above, the impugned order dated 12.02.2021 passed by the Secretary, Department of Home, respondent no. 2, and the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, respondent no. 3, are hereby set-aside. The State is directed to immediately fill up the posts of Senior Superintendent and Superintendent of Jail either through direct recruitment, or through promotion. Since the Rules permit ad-hoc promotion as a temporary measure, even ad-hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment.” Finally, it is then held in para 35 that, “The Writ Petition is, hereby, allowed.”

No doubt, words cannot be adequate to describe the brilliance with which this judgment is written which is par excellence and substantiating them with relevant Rules followed in India and simultaneously backing them up with rules at international level as for instance the Nelson Mandela Rules issued by UN already dwelt in detail above dealing with the standard minimum rules for the treatment of prisoners. It is now abundantly and manifestly clear from the aforesaid discussion that we had on the ruling by a two Judge Bench of the Uttarakhand High Court comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma that police personnel cannot be appointed as jail superintendents.

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Legally Speaking

UNLESS SELF-ADMINISTERED, NO VACCINATION CAN CURE EVIL OF VIRUS OF COMMERCIAL MINDEDNESS OF EDUCATIONAL INSTITUTIONS: GUJARAT HC

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While dealing with a case wherein a students mark sheet and other documents were withheld by the Medical Institute due to non-payment of the penalty and late payment charges, the Gujarat High Court just recently on 20 April 2021 in a latest, landmark, learned and laudable judgment titled Jawal Suruaj Chhasiya vs Dean, Surat Municipal Institute of Medical Education and Research in Civil Application (For Direction) No. 1 of 2021 in R/Special Civil Application No. 2861 of 2021 has minced no words to say in simple, straight and suave language hard hittingly that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or another pretext, thereby demeaning the sanctity of the very concept of the education.” All educational institutions must self-introspect on what Gujarat High Court has said so directly on their conduct and strive to reform in the time of corona when people are so much affected adversely facing acute shortage of money due to rising expenses generated due to this pandemic! There can be no denying it. The Single Judge Bench of Justice NV Anjaria was hearing the plea of a student who sought direction to his Institute not to withhold the mark sheet, degree certificate, attempt certificate and consequential entitlement for internship on account of non-payment of the penalty and late payment charges.

To start with, the Single Judge Bench of Justice NV Anjaria of Gujarat High Court sets the ball rolling at the very outset by observing that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or under one or another pretext, thereby demeaning the sanctity of the very concept of the education.”

While specifying about the prayer made, the Bench then mentions in para 2 that, “By filing the present Civil Application, the applicant-original petitioner has prayed as under.

(i) set aside the letter dated 25.03.2021 bearing No.SMIMER/OUT/5090 and order dated 25.03.2021 bearing No.SMIMER/Out/5097 issued by respondent No.1 as being against the reasoned order passed by this Hon’ble Court and be further pleased to direct the respondents not to withhold marksheet, degree certificate, attempt certificate and consequential entitlement for internship on account of nonpayment of penalty and late payment charges;

(ii) declare that there is willful disobedience of order dated 10.02.2021 passed by this Hon’ble Court in Special Civil Application No.2861 of 2021 by respondent No.1;

(iii) direct the respondent No.1 to allow the petitioner to join his internship training.”

To put it differently, the Bench then observes in para 2.1 that, “In other words, applicant-petitioner seeks release of his marksheet, degree certificate, attempt certificate and consequentially to undergo the internship. The applicant-petitioner is a student who has completed his M.B.B.S. course from respondent No.1-Surat Municipal Institute of Medical Education and Research, Surat, which is self-financed college run by respondent – Surat Municipal Corporation.”

While specifying further, the Bench then states in para 2.2 that, “The main Special Civil Application was notified today together with the present Civil Application, as was directed by the Court in order dated 09th April, 2021 to enable the Court to have the wholesome view of the controversy involved.”

While specifying the purpose of the petition, the Bench then makes it clear in para 3 that, “The prayer made in the main petition is to set aside decision reflected in communication dated 06th February, 2021 of respondent No.1 whereby petitioner No.1-student was debarred from attending classes and taking examination. It was next prayed to permit the petitioner-student to appear and to take examination of 9th Semester which was to commence from 11th February, 2021.”

More damningly, the Bench then points out in para 3.1 that, “When the aforesaid communication dated 06th February, 2021 is seen, the petitioner-student was prevented by respondent No.1-educational institute from appearing in Semester examination on the ground that petitioner-student had not paid the tuition fees, late fees and other charges in the nature of penalty and cheque bounce charges. Along with the said communication dated 06th February, 2021, the statement figured showing the details of the amount demanded from the student.”

While specifying the details, the Bench then lays bare in para 3.3 that, “Thus, the demand raised by respondent No.1 from the student was Rs.05,27,500/- each towards fees for 4th and 5th Semesters and Rs.01,31,875/- being the unpaid installment of fees for the 9th Semester. The total amount of Rs.11,87,875/- was sought to be recovered. It appears that cheques then submitted by the petitioner-student towards fees, were bounced.”

Needless to say, the Bench then states in para 3.4 that, “As the above tabular details shows, amount of Rs.02,43,095/- and Rs.02,31,326/- came to be demanded towards cheque return charges in respect of two cheques respectively in addition to late fee amount. It was on such ground that the petitioner-student was debarred.”

While elaborating further, the Bench then specifies in para 3.5 that, “It appears that this Court considered the controversy and order dated 10th February, 2021 came to be passed. The Court noted the case of the petitioner and that of respondent No.1 as were representated by the respective learned advocates.

“7. Mr. Aditya Pandya learned counsel for the petitioner would submit that the petitioner be permitted to appear in the examinations on an undertaking that the petitioner shall file stating therein that he will clear the entire amount of outstanding fees minus the penalty and the cheque return charges of an amount of Rs.11,86,875/- within a period of four weeks from today.

8. Mr. Kaushal Pandya learned counsel appearing for respondent nos.1 and 2 would submit that the institution has serious doubts on the genuineness of the conduct of the petitioner that the petitioner is willing to offer. He would submit that looking to the past history though the outstanding amounts of Rs.5,27,500/- in two separate installments were due in January 2018 and July 2018, cheques were issued in September, 2018, which were dishonored for which the institution had to initiate an appropriate proceedings. He would submit that the penalty charges and the cheque return charges are justified notwithstanding the principal amount of outstanding fees, the petitioner should not be given any indulgence in paying the fees in installments.””

What next follows is then stated in para 3.5.1 that, “The Court considered the rival submissions as above and then observed and directed as under,

“10. Considering the fact that the petitioner had secured admission to the MBBS course in the year 2016-17 being well aware of the actual fee that he would have to pay of Rs.10,55,000/-, he cannot now be permitted to wriggle out of this commitment. However, looking to the averments made in the petition that the petitioner’s family may have undergone financial crisis as a result of pandemic, only a limited indulgence can be given to the petitioner particularly in view of his past conduct in failing in his commitment by issuing cheques which were dishonored of the amount of Rs.11,86,875/- as the outstanding fees minus penalty and the cheque return charges. The petitioner is accordingly directed to;

(i) Handover cash or bankers cheque or demand draft in the name of the respondent no.1 of an amount of Rs.1,31,875/- to the competent officer of the respondent no.1 institution on or before 12.02.2021.

(ii) An amount of Rs.5,28,000/- in a similar manner shall be paid in the mode as above on or before 18.02.2021.

(iii) The remaining amount of Rs.5,28,000/- shall be paid in the mode as per (i) above on or before 28.02.2021. 11. The petitioner shall file an undertaking to the effect that he will abide by the terms and conditions enunciated herein above within a period of one week from today. Failure to file such undertaking and/or abiding with the terms of such undertaking shall automatically disqualify the petitioner of the benefit of the undergoing of the examinations of the 3rd MBBS-II as per the schedule at page no.23 (Annexure:G).””

To put things in perspective, the Bench then states in para 3.6 that, “Upon requiring the petitioner-student to pay the amounts as indicated and directed in paragraph 10 reproduced hereinabove, the Court observed that if the said payment and undertaking to be filed in that regard is not honoured, then only the respondent No.1 shall have right to withhold the marksheet and other testimonials of the petitioner-student. It is not in dispute that the amounts indicated in (i), (ii) and (iii) in paragraph No.10 of order dated 10th February, 2021 above has been paid by the petitioner-student and the undertaking filed in that regard has been honoured. The payment is evidenced by the copies of receipts produced with the Civil Application.”

To be sure, the Bench then observes in para 3.7 that, “It is noteworthy that on behalf of respondent No.1, as recorded in paragraph No.8 of the aforesaid order, the levy of penalty and cheque bounce charges proposed to be justified, but this Court in terms clarified that, it will not adjudicate those aspects in writ jurisdiction.”

As it turned out, the Bench then points out in para 4 that, “Prayers in the Civil Application as above were required to be made by the applicant-petitioner in view of order dated 25th March, 2021 passed by Dean of respondent No.1 Medical College. Thereby despite payment of amount of the fees by the student as directed by this Court, the Dean, by the aforesaid written order, provided that duties assigned to the petitioner-student in South-West Zone (Athwa Zone)for Rapid Antigen Test and COVID-19 vaccination shall be withdrawn as the petitioner had not paid the fees. It is further provided that petitioner shall not be entitled to be considered eligible for internship and that the duty given to the petitioner-student for COVID-19 and his internship were ordered to be suspended.”

As we see, the Bench then also makes it known in para 4.1 that, “In response to the Civil Application, reply affidavit came to be filed by respondent Nos.1 and 2 affirmed by one Dr.Rajkumar K. Bansal, stating to be holding the post of Dean of respondent No.1 Institute. The detailed contentions were canvassed and it was inter alia highlighted that petitioner had not paid the amounts mentioned in the above tabular form which included the penalty and cheque bounce charges. In support of such claim, Resolution No.167/2019 of the Surat Municipal Corporation was relied on which stated that as per the Standing Committee resolution, 18% interest will be recovered for the cheques which may bounce in respect of payments made by the tax payers, ijaradars and other general payments. Another Resolution dated 24th June, 2009 of the Corporation was also relied on which contemplate levy of late fee from the student. Learned advocate for respondent No.1 further relied on paragraph Nos.16 and 26 of the reply affidavit to vehemently defend the stand of respondent No.1.”

While adding more to it, the Bench then also points out in para 4.2 that, “Learned advocate for the petitioner submitted that the said Resolution for 18% interest on the cheque bounce charges was for different purpose and would not apply in the present case. He also disputed requirement of payment of late fees in light of the aforementioned order dated 10th February, 2021 passed by this Court, whereby the applicant-petitioner was required to pay amount of fees and that the petitioner has already paid the said amount. Learned advocate for the petitioner termed the approval and action on part of respondent No.1 educational institute to charge such exorbitant sum for cheque bounce charges etc. as razor-like arbitrary and unreasonable.”

To state the obvious, the Bench then observes in para 5 that, “There is no need for the Court to express anything about the claim of respondent No.1 for late fee to the extent of about Rs.03.00 lakhs and the cheque bounce charges to the extent of almost Rs.04.74 lakhs as in order dated 10th February, 2021 itself the Court has already observed thus,

“13. It is clarified that as far as the stand of the institution with regard to the penalty and the cheque return charges, the Court will not adjudicate those issues in this petition under Article 226 of the Constitution of India. … …””

For the sake of clarity, the Bench then clarifies in para 5.1 that, “By refusing that the Court would not go into the questions of levy of cheque bounce charges and late fee in the present writ proceedings, the Court has in that way rejected the sand of respondent No.1 Institute and the action of debarment against the student taken on the said ground is disapproved.”

More glaringly, the Bench then adds in para 5.2 that, “In the aforementioned order dated 10th February, 2021, the Court has already expressed to provide that the said issues could not be gone into in the writ jurisdiction. In view of that, the action on part of respondent No.1 to withhold the issuance of marksheet and other testimonials and to further withdraw the eligibility of the petitioner-student for internship and preventing the petitioner from undertaking the COVID-19 duty and vaccination duty assigned to him could hardly sustain. Astonishingly, order dated 25th March, 2021 further provided that the dues assigned to the petitioner for Rapid Antigen Test and COVID-19 vaccination shall also stand cancelled.”

Of course, the Bench then rightly points out without mincing any words in para 6 that, “While the arbitrariness is evident, it also smacks commercial approach on part of respondent No.1.”

Most significantly, the Bench then holds in para 6.1 that, “As a result, the Civil Application deserves to be allowed by setting aside order dated 25th March, 2021 passed by Dean of respondent No.1-Medical College, declaring that it is not only arbitrary but stands against the express directions issued by this Court in order dated 10th February, 2021. The respondents in particular respondent No.1 are directed to release the marksheet, degree certificate, attempt certificate and all other testimonials of the petitioner. It is further directed that the petitioner shall be treated as entitled to undergo internship and the said right shall not be denied to him on the ground of non-payment of penalty and cheque bounce charges.”

Finally, the Bench then holds in the last para 7 that, “The application stands allowed in terms of above direction. Direct service is permitted.”

In sum, the Single Judge Bench of Justice NV Anjaria of Gujarat High Court has ruled decisively in favour of the petitioner as he had a strong case which has already been elaborated upon and he was fully entitled to get the relief which he got also from Gujarat High Court. Thus we see that as a corollary, the Civil Application was thus allowed by setting aside the order dated 25th March 2021 passed by Dean of the Medical College declaring that it was not only arbitrary but stands against the express directions issued by this Court in an order dated 10th February, 2021. It is a no-brainer that by this brief, bold, brilliant and balanced judgment, the Gujarat High Court very rightly calls upon educational institutions to reform and refrain from charging exorbitant amounts from students studying in educational institutions and observes that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or under one or another pretext, thereby demeaning the sanctity of the very concept of the education.”

It is the bounden duty of the educational institutions to abide by what the Gujarat High Court has held so decisively and always desist from the urge to make more and more money which makes the students to suffer immensely for no fault of theirs! The virus of commercial mindedness has to be cured and for this the educational institutes must themselves come forward and adhere to what the Gujarat High Court has held so clearly, cogently and convincingly!

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

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

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

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

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

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

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

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

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

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

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

LIABILITY OF HOSPITAL

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

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

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

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

EPILOGUE

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

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

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

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

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UNDERSTANDING THE NOTION OF SPECIAL KNOWLEDGE UNDER INDIAN EVIDENCE ACT UNDER SECTION 106: A SITUATIONAL AND PHILOSOPHICAL ANALYSIS

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1. PRINCIPLE OF THE SECTION

The section 106 of the Indian Evidence Act, 1872 is read as,

“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

This section is an exception to the general rule contained in section 101 of the act, namely, that the burden is on the person who asserts a fact. The basic principle pivoting this section is that it is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by a person other than the defendant. In Gurbakish Singh v Gurdial Singh, it was held that it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.

This section comes into picture only when the prosecution has proved its case beyond reasonable doubt that the accused has to prove the fact within his special knowledge to establish that he is not guilty . The burden of accused is discharged if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt . It is well settled that only when the prosecution led evidence, if believed, which would sustain a conviction, then the burden of proving anything would lie on the accused under section 106 of the act . This section applies only to the parties to a suit. The primary objective of the Court is to meet the epitome of Justice which can be unleashed only on account of the corroboration made by the person knowing the full truth facts and circumstances associated with the matter.

1.1. JUDICIAL TRENDS

a. In Senevirantne v R, the court held that Section 106 does not cast any burden on the accused to prove that he had not committed the offence by proving facts lying specially within the knowledge, that if anything is unexplained which the jury think the accused could explain then they, not only may, but must, find him guilty .

b. In Sawal Das v State of Bihar , the SC held that section 106 is applicable only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did the particular act. The observation of the SC was antonymous to the narrow construction of the section.

c. In Gurubachan Singh v State of Punjab, the court held that Section 106 only puts the evidential burden on the accused and it is not the legal burden which shifts from the prosecution. Section 106 is just a mere tool to assist the prosecution rather than a loophole in the law for prosecution to shrink their responsibility of proving a criminal case beyond a reasonable doubt.

2. INTENTION & MENS REA

In Srinivas Mall v Emperor, it was held that the court should bear in mind that unless the statute rules out mens rea as a constituent part of the crime an accused should not be found guilty an offence against the criminal law unless he has got a guilty mind. Analysing from the front of Section 106, it is well settled that Intention or guilty knowledge of the accused has to be proved by the prosecution and it is not the accused . This was also elaborated and iterated by the Court in the case of Gurubachan Singh.

It is not for prosecution to anticipate and eliminate all possible defence of circumstances which may exonerate an accused. If the accused had a different intention, that is fact especially within his knowledge he must prove .

3. SITUATIONAL ANALYSIS

3.1. IN THE CASE OF ALIBI.

It is well settled in the case of Gurucharan Singh v State of Punjab, that burden to proof of alibi lies on the accused as it is specially within his knowledge but failure to prove does not help the prosecution, which has to prove the guilt beyond a reasonable doubt. This clearly holds and affirms the pivotal concept of the section as elucidated earlier.

3.2. PREVENTION OF CORRUPTION

The Supreme Court held that the offence under Section 5(1)(c) of the Prevention of Corruption Act is constituted when the property has been received by the accused for or in the name, or on account of the master or employer and it is complete when the servant fraudulently misappropriates that property. Therefore, in this regard the accused has to prove his innocence by virtue of the action of Section 106 of the Act .

3.3. N.D & P.S ACT

In Jagdish Budhroji Purohit v State of Maharashtra, it was held that when the factory from where the psychotropic substances were seized belonged to the accused, then burden was on him to prove how the offending articles came to be found in his factory. This again establishes the concept of special knowledge and jurisprudence of Section 106 of the Act.

3.4. NON-DELIVERY OR SHORT DELIVERY OF GOODS- RAILWAY

There is a duty on the part of the railway to disclose the manner of dealing with the consignments, as it includes those facts which are specially within the knowledge of the Railway administration and it must prove them . There is nothing in section 74-D of the Railways Act to indicate any legislative intent to override the dynamic provisions of Section 106 or Section 114 of the Evidence Act .

Under Section 80 of the Railways Act, there is a burden on the plaintiff to prove that the goods sent through railway was lost or damaged and he cannot take advantage of section 106. In the case of claim for compensation from railways, if the plaintiff does not call for any disclosure from railways, it was held that no duty lies on the railway to disclose anything or how the consignment was dealt with during the transit and no presumption can be drawn against the railway. However, the railway gets the immunity under section 74-A of the Railways Act, that short or defective delivery was due to the defective packing .

3.5. NEGLIGENCE

From the general perspective in the case of negligence, the burden of proof of negligence is on the part of the defendant lies on the plaintiff, but in the situations of res ipsa loquiotor, the burden lies on the defendant to show that he was not negligent . Therefore, the principle of section 106 is based on the ideology of res ipsa loquitor.

In the above cited case, where due to rash and negligent driving the bus turned turtle and by virtue of res ipsa loquiotor the negligence on the part of driver was presumed. It is to be noted that the best defence against negligence would be of the driver himself under section 106 of the Evidence Act (as it will amount to. Special knowledge of the fact, as of how bus met with an accident).

3.6. MASTER- SERVANT & HUSBAND-WIFE

In the case of a servant charged with misappropriation of goods of his master, if the failure to account is due to an accidental loss, the facts being within the servant’s knowledge, it is for him to explain the reason of the loss, by the action of Section 106 of the Act . This is analogous to the principle of the section 106, as the person having the special knowledge of the facts needs to assert and prove his case. In an application for maintenance by a wife, the onus is on the husband to disclose his income, by virtue of Section 106 . (As it is only within the knowledge of the husband).

3.7. FACTS WITHIN THE KNOWLEDGE OF THE PARTY

a. In case a dead body of a rape victim is found inside the house of the accused, the burden is on him to explain how the dead body happened to be there .

b. Where a housewife died of drowning in the well in the house of the in-laws, and at the time of the incident only accused were present in the house, burden was on them to prove what events happened that caused the death.

In these scenarios two things are pivotal which bring the role of section 106 into action,

i. Burden of Proof

ii. Special Knowledge of the accused.

This is because, what happened in one’s house or at a specific place and time can only be explained by the person witnessing it.

1. UNDERSTANDING & CONCLUSION

a. The burden of proof has two distinct meanings, the first being the burden of proof on pleadings which and the second being the burden of adducing evidence. While the first kind of burden remains on one side throughout the case, the second one may shift as per the need. Hence it is not the burden of proof that shifts, but the onus of proof that shifts. Thus, there is also a distinction between the terms ‘burden’ and ‘onus’. The first kind of burden is the legal burden while the second can be referred to as ‘evidential’ burden. The legal burden rests on the party which asserts the affirmative of an issue in the beginning of the trial.

b. Evidential burden, on the other hand, is an obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue with due regard being had to the standard of proof demanded by a party under such obligation. The object of placing the evidential burden on the defendant can be seen as a latent force to make the accused to go into the witness box and give evidence.

c. The burden of proof which has been envisaged in Section 101 of The Evidence Act is the legal burden which never shifts from the prosecution. Section 106 is not a proviso to the rule that burden of proving the guilt of the accused is upon the prosecution but on the contrary, the section is subject to the rule. Thus Section 106 is an exception to Section 101 of The Indian Evidence Act. The two judge bench of Gujarat High Court in State v Dhulaji Bavaji held that Section 106 could not be used to undermine that burden never shifts from the prosecution.

d. In Shanbhu Nath Mehra v State of Ajmer it was observed that Section 106 lays down the general rule that in a criminal case, the burden of proof is on the prosecution and Section 10 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience.

e. The word “especially” stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder.

f. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

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THE CONUNDRUM OF EMERGENCY ARBITRATION: CONFIDENTIALITY IN THE COURT OF LAW

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COURT

Confidentiality is taken into account collectively of the key reasons why parties opt to opt for arbitration for settlement of their disputes as they are doing not need their disputes to be a subject of give-and-take. Considering the careful documents and the knowledge that parties exchange in Associate in Nursing arbitration, the thought is to shield the sensitive data, trade secrets, holding might which can be the subject matter of Associate in Nursing arbitration as its revelation may lead to irreparable loss. For the preceding reason, arbitration proceedings area unit unbroken confidential. However, is confidentiality much possible? what’s the legal basis of confidentiality? what’s its scope and what area unit the implications if it’s broken by a party? One of the major expectations of arbitration, namely, confidentiality, inflicts on arbitrators and the parties, the obligation to respect the confidentiality of arbitration. Section 42-A errs to deal with this interest as it lags the commitment of third parties to keep the arbitral record confidential.

UNICTRAL Model Law (Model Law) in 2006 entrusted arbitral tribunals to grant interim recourse to parties, a digit of arbitration institutions such as the International Centre for Dispute Resolution (ICDR), Stockholm Chamber of Commerce (SCC), International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC) and Hong Kong International Arbitration Centre (HKIAC) have altered their rules to provide parties with the antidote of emergency arbitration. The substantial upgrade in the position of international trade in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. In India too, the abrupt economic globalization & the transpiring accumulation in competition has headed to an expansion in commercial disputes. Identically, however, the proportion of industrial growth, modernization, and restoration of socio-economic circumstances has, in many instances, outpaced the rate of transition of dispute resolution mechanisms. In many parts of India, brisk development has intensified caseloads for already overburdened courts, further leading to notoriously listless adjudication of commercial disputes. As a consequence, alternative dispute resolution mechanisms, enclosing arbitration, have become more indispensable for businesses operating in India as well as those doing businesses with Indian firms. There has been only a modicum of cases in India which review the enforceability of the award ratified by an emergency arbitrator. The Bench of the Ld. Single Judge of the Delhi High Court, in its acting order dated 21 December 2020, examined & attributed how the award passed by the emergency arbitrator is enforceable in India.

BACKGROUND

Section 75 of the Arbitration and Conciliation Act, 1996 lets out that the parties shall keep confidential all issues about the conciliation. However, the provision does not apply to arbitration proceedings and applies only to conciliation proceedings. Even though there was no statutory referendum in the 1996 Act, there was an implied duty of confidentiality for various reasons including protection of sensitive evidence or intellectual property, etc., the reputation of parties in public, protection from potential declarations in similar matters, no intervention of independent parties, etc. Apart from the parties to the arbitration proceedings, some outsiders are strangers to the agreement but still sit in the arbitration proceedings They are not ruled by the arbitration agreement & have backing to confidential information delivered in the arbitration. Section 42-A wanes to honor this skepticism as it lasts to be voiceless on the obligation of these third parties to conserve the arbitral document confidentiality. The language of the section only imposes confidentiality on the parties, arbitrator and the arbitral establishment. The terminology of the domain only exacts hideaway on the parties, arbitrator and the arbitral institution in compliance with Section 14,15 & 37.

CONCEPT OF EMERGENCY ARBITRATION

Emergency arbitration is like a mode of interim relief, it’s a very forthcoming concept in the realm of arbitration, it’s mostly applicable for the parties that expect to insulate the investments and testimony that might otherwise be lost or diversified so it’s, an emergency arbitration is a game of time. It’s a very temporary and emergency arbitration like any other ADR mechanism that derives its power from the arbitration agreement itself. So, the main role of emergency arbitration comes up when there is no arbitral tribunal in place, or, there is a situation when setting up an arbitral tribunal will take a lot of time and there is no such time. emergency arbitration is the emergency arbitral tribunal is constituted only mostly two situations one, when there is no tribunal in place, and second when the situation is such that there is no time to appoint and go through the entire appointment procedure of the tribunal.

Instead of approaching the national courts, the parties can opt for an arbitrator game to save a lot of time. So, it’s the Tribunal is constituted for a limited period, or for a very limited purpose so as soon as the purpose is served or the timeframe in which the issues had to be decided. They lapse, the arbitration ends the emergency arbitration ends there itself. Emergency Arbitration is based on the concept of “urgent pro tem or conservatory measures.” In other words, it is for the parties who cannot await the long-drawn formation and composition of an Arbitral Tribunal. The reason behind the same is their need for interim relief at the earliest time frame possible, to either protect their position or to prevent the other party from the continuation of the breach they committed until the issue is finally adjudicated. It is agreeable that the Courts are capable of granting interim reliefs as well, but the same comes at the cost of compromise in efficiency and confidentiality, which neither of the parties may appreciate. Two legitimate mottoes that form its genesis are: firstly, the reasonable possibility that the claimant would succeed on merits fumus boni suggested amendments, such as the amendment to Section 9 of the Principal Act and so on, the initial concern of EA was not addressed.

DISCERNIBLE FAILURE OF STATUTORY IMPLEMENTATION OF EA IN INDIA

Future Retail Limited (“FRL”) is a listed corporation amassing retail chains in more than 400 cities across India. In spite of having such a flourishing business, the Covid-19 pandemic has had an overwhelming concussion on it. This had ensued in a rapid attrition of FRL’s assets. Subsequently, pertaining to this circumstance, FRL had agreed with Reliance Industries. Subsidiary this pact, the latter had rented out to compile the retail, wholesale, logistic and warehousing business of FRL. Besides, Reliance had agreed to discharge the liabilities, as well as invest in the concerned company. This transaction, as foreseen by the FRL, would deflect the company from getting on into liquidation. Moreover, the agreement would also sustain Amazon that has stakes in Future Coupons Pvt. Ltd (“FCPL”). In spite of these reasons, Amazon had lifted up an objection before the SEBI. In the fuss letter, Amazon voiced that the aforementioned transaction violated its contractual liberties, that is, its shareholder agreement (“SHA”), that had been entered into with the FCPL. Henceforth, to plop a clasp on the transaction, Amazon instituted emergency arbitration proceedings, as furnished in the SHA, under the SIAC Rules. This had transpired in an interim award being rendered, which purported to injunct FRL from progressing with the transaction entered into with Reliance Industries. India does not have any provisions distressing EA. Although the Arbitration and Conciliation (Amendment) Act of 2015 suggested amendments, such as Section 9 of the Principal Act and so on, the primary concern of EA was not addressed. Before this, the Law Commission of India, in its 246th Report, lucidly suggested the need for a concept of “Emergency Arbitrator”. The Commission intended to bring this under the ambit of Section 2, which defines an Arbitral Tribunal, by broadening the definition and including the concept of EA. However, as already witnessed from the Amendment Act of 2015, the same was not incorporated.

THE ELEMENT OF THE DISPUTATION

As per the outlay of the SHA between Amazon and Future Coupons, Amazon is to acquire 49% of its share capital. The indicated agreement also retains a roster of “restricted persons”, reeling off certain commodities with whom Future Group was not allowed off to come into any agreement. Despite these underlying provisions, Future Group entered into a transaction selling certain assets to Reliance, which is a part of Mukesh Dhirubhai Ambani Group, to save itself from becoming insolvent. It is also vital to recount through this acquisition, Reliance strives to acquire not only Future Group’s Retail assets but also its liabilities amounting to closely Rs 12,801 crores. In addition to this, Reliance has also conceded to fund a sum of Rs 2800 crores into the merged entity which, besides others, will be utilized to pay Future Group’s residual liabilities. Therefore, it is striking that this transaction will avert Future Group’s insolvency and, in the event, the transaction flunks, Future Group will indisputably go into liquidation. Amazon contends that Future Group oversteps the overheads of the SHA by entering into a sale the transaction with Reliance, as Reliance falls under the category of restricted persons enumerated in the agreement. Future Group contends that it is Amazon that stands in violation of the ForeignExchange Management Act (FEMA)-Foreign Direct Investment (FDI) Rules. Reading the conflation of agreements between Amazon and Future Group, Future Group contended that besides, Amazon, creating protective rights it is transgressing into controlling Future Retail, which requires prior approvals of the Government. Bereft such endorsements Amazon would be in violation of FEMA-FDI Rules. Relying on Hira Lal Patni v. Sri Kali Nath and Sushil Kumar Mehta the Court said that prima facie the present suit cannot be held to be not maintainable on two grounds: the EA order cannot be challenged in the present proceedings and secondly, that the grounds urged by FRL before have already been urged and considered by the Emergency Arbitrator. The arbitration between FCPL and Amazon is an International Commercial Arbitration placed in New Delhi, India and overseen by Part I of the A&C Act, however, conducted in conformity with SIAC Rules. Relying on NTPC v. Singer, the Court declared that while it is perfectly legal for the parties to choose a different procedural law, the issue which is required to be considered is whether the provisions of Emergency Arbitration of such procedural law, are in any manner contrary cannot be restricted to mean that the parties agreed to arbitrate before an arbitral tribunal only and not an Emergency Arbitrator.

PERTINENCE OF ARBITRATION

The relevance of arbitration often arises in situations where a party is up, one sits constrained to seek and cut back relief. The principle of seeking an interim relief is a substantial notion in the field of arbitration, and instead of, like, oh, it’s a very settled principle of law that any court of law or any arbitral tribunal can only grant such interim relief that isn’t able to find relief. The arbitrary emergency arbitrator gives interim relief that interim Relief has to be the limited purpose of that interim Relief has to be in the aid of the final release. So, the final release will be given by the normal arbitral tribunal, which could be constituted later, but it is basically in continuation. The wavering in cases where arbitration is being passed by the courts to the tribunal where the arbitration is referred, the courts to the tribunal takes a lot of time because the courts have to examine these, they discuss the validity of the agreement clause. So, all of it takes a lot of time, even when sometimes the Tribunal has appointed the proceedings are very consuming, so they cause delay. Also, the damages to the aggrieved party. In such cases, one party can seek emergency arbitration. So, the functioning of the tribunal is limited when the functioning of the courts, like in the present scenario is limited, a lot of parties have opted for emergency arbitration just to save time and get immediate relief sometimes they have to get the assets frozen or have the other side of the other party, or they need a very important state. So, in that case, they can invoke emergency arbitration.

CONUNDRUMS CONCERNING POTENTIAL IMPLEMENTATION OF EA IN INDIA

Firstly, the conundrum of enforceability of EA Awards remains a grey area. Chapter I and II of the Amendment Act of 2015, the foreign awards passed through the New York Convention and the Geneva Convention respectively are enforceable. However, the fix that emanates is that these two conventions discern the recommendations given under the 246th Law Commission Report and the amendment proposed by it in Section 2(1)(d) of the Act would bring India on to the same pedestal as other countries and help attain the global trend for Emergency Arbitrations. The dilemma can be etched in two ways, one in which the seat is in India and the other when the seat of arbitration is decided as a foreign state. The main problem arises in the case of foreign seated arbitration, as Domestic Arbitration Tribunal, emergency orders can be enforced under Section 17(2) of the Act. There remain many more ambiguities concerning India’s take on Emergency Arbitration. For instance, speculating that Emergency Arbitration is doable only under the ambit of institutional arbitration, what will be the outcome when a party has chosen for ad-hoc instead of institutional arbitration, can the party invoke Emergency Arbitration using such an agreement? In such a scenario, should the Courts be conferred the power to appoint an Emergency Arbitrator? Will the parties have to embark into a separate agreement to choose arbitral institutions for providing an Emergency Arbitrator? In the absence of regulatory legislation governing this aspect and judicial clarification, answering such questions is certainly not easy. With the amendments brought by the 2015 Act and the subsequent Arbitration and Conciliation Amendment Bill of 2018 being silent about the assorted concerns scrutinizing Emergency Arbitration, parties, for now, are without guidance as to how they should proceed with Emergency Arbitration if at all. However, it is germane to note that if enforceability of final adjudicated matters only, not EA-related matters. Therefore, the same mandates an address by the Indian Statute. In such a scenario, International Conventions like ICDR, ICC, SIAC, SCC and LCIA that have introduced the concept of Emergency Arbitrator Procedures can be referred to. The second conundrum that we may observe with respect to EA is the Court’s jurisdiction on the non-concerned parties. In other words, we observe that the Courts have the power and jurisdiction to entertain parties other than the two main parties in a suit before Civil Courts under the Civil Procedure Code. However, the same does not seem possible in EA because of the principle of party autonomy. Only those two parties that have signed the arbitration clause/agreement are bound by their respective Arbitration Agreement. Confidentiality of the matter and prevention of interference by any other party is also important. In such a scenario, either the EA is given special powers regarding the same, or any other provision may be made that specifically speaks out about the mandatory inclusion of an EA clause in an Arbitration Agreement to enforce the same.

CONCLUSION & THE WAY FORWARD

The predicaments employing Emergency Arbitration have been increasing globally in massive numbers, however, most of the jurisdictions have failed to cope up with the same. The interim reliefs given by the Emergency Arbitrators are uncertain and many at times, with no enforceability. That is precisely the reason the parties are bound to approach national courts. The Indian arbitration law does eventually embrace Emergency Arbitration, catch-all phrases in the enumeration of interim measures granted by Tribunals should be substituted with a more illustrative rather than an exhaustive list similar to the English Arbitration Act, 1996. Considering that the concept of Emergency Arbitration is at a nascent stage, it certainly does not come without obstacles. It is definitely hoped that with the various arbitration institutions providing for Emergency Arbitration and the Government’s push towards institutional arbitration as highlighted in the Arbitration Amendment Bill, 2018, the incorporation of provisions dealing with Emergency Arbitration in the Indian legislation will be encouraged in the near future.

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THE SUPREME COURT TAKES THE CORONA CRISIS SERIOUSLY

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A three-judge bench of the Supreme Court led by Dr. D Y Chandrachud, and comprising Justices L. Nageswar Rao, and S. Ravindra Bhat has passed an interim order in a Suo Motu Writ Petition (Civil) No. 3 of 2021 yesterday directing the Central and State Governments to put on record efforts taken to curb the spread of coronavirus and the measures that they are planning to take in the future. The Court has also asked the Central Government to revisit its vaccine procurement policy observing that it would “prima facie result in a detriment to the right to public health which is an integral element of Article 21 of the Constitution”. In addition to this, the Court has also urged the Union and the States to consider imposing a lockdown to curb the virus in the second wave in the interest of public welfare. However, before announcing any lockdown, the Court has suggested to the government to make necessary arrangements for the marginalized sections of society. The Court further stated that no person should be denied hospitalization or essential drugs for lack of local residential proof or identity proof. This is a great affirmation of the right to health enshrined under Article 21 of the Constitution. This is the need of the hour. The Court issued a warning to the governments not to harass the users of social media during this trying time. This is an admirable and balanced order that takes care of public health, the national economy, governance issues, and public sentiments.

The Apex Court did not stop the High Courts from exercising their powers during this corona crisis. Let the High Courts continue to monitor the covid crisis in their respective jurisdictions. Fortunately, some High Courts like Delhi, Madras, Allahabad, and Kolkata have been very active in protecting human rights and dignity during this covid crisis. They have strongly reprimanded the respective governments for their failures to address the public grievances. The constitutional courts are expected to protect the fundamental and legal rights of the people when they knock on their doors or even suo motu. In times like these, the Courts need to push the governments to protect people’s lives effectively and quickly. If citizens are dying because of a shortage of oxygen, this is nothing but a total collapse of our health system and the executive cannot avoid its responsibility. The High Courts are within their rights to pressurize the governments to provide oxygen, life-savings drugs, and beds to the covid patients. The governments cannot be allowed to take the plea of the paucity of resources at this time. The Supreme Court has also taken serious notice of some these executive blunders and failures. This order will also be helpful to the Union Executive to prepare a national plan to handle the covid crisis.

Notably, the Supreme Court has given the following interim directions to the Central and the State Governments to handle the Covid crisis. (1) The Union of India shall ensure, in terms of the assurance of the Solicitor General, that the deficit in the supply of oxygen to the GNCTD is rectified within 2 days from the date of the hearing, that is, on or before the midnight of 3 May 2021; (2) The Central Government shall, in collaboration with the States, prepare a buffer stock of oxygen for emergency purposes and decentralize the location of the emergency stocks. The emergency stocks shall be created within the next four days and is to be replenished on a day-to-day basis, in addition to the existing allocation of oxygen supply to the States; (3) The Central Government and State Governments shall notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all District Magistrates in the country; (4) The Central Government shall, within two weeks, formulate a national policy on admissions to hospitals which shall be followed by all State Governments. Till the formulation of such a policy by the Central Government, no patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UT or even in the absence of identity proof;(5) The Central Government shall revisit its initiatives and protocols, including on the availability of oxygen, availability, and pricing of vaccines, availability of essential drugs at affordable prices and respond on all the other issues highlighted in this order before the next date of the hearing, that is, 10 May 2021. Copies of all affidavits to be served upon the Amici in advance.

Admittedly, these directions are coming at a time when India is receiving lakhs of cases and thousands of people are dying daily. People are unable to get oxygen, beds, and even drugs. Unfortunately, the Centre and the States have failed people badly to provide them relief. Some High Courts, as mentioned earlier, had rightly intervened to mitigate the sufferings of the people. The Supreme Court has pushed to the governments to prepare a mechanism to deal with the unprecedented crisis created by the covid. The governments have no option but to arrange more resources at the earliest to fight against the covid. The Court has rightly intervened to protect the life and personal liberty of the citizens as per the basic spirit of Article 21 of the Constitution. This order reflects the true commitment of our top court to the cause of protection of human rights, dignity, and constitutional morality.

It is apposite to mention that the Court has protected the freedom of social media that has been a great tool for communicating the grievances of the people relating to an oxygen supply, drugs, and hospitalization, etc. Through social media, lakhs of public-spirited citizens have come together to help those who need it during this most difficult period. Sadly, some governments were more concerned about their image rather than public health. The Court has not appreciated that approach of the executive. Appreciating the use of social media, the Court observed as follows: “It is only appropriate then that when many cities in India are suffering through the second wave of the COVID-19 pandemic, many have turned to the internet, using applications/websites to find critical support. On these platforms, online communities led by members of the civil society and other individuals, have assisted the needy in multiple ways – often by helping them procure oxygen, essential drugs or find a hospital bed through their own networks or by amplifying original requests, and even by offering moral and emotional support. However, it is with deep distress that we note that individuals seeking help on such platforms have been targeted, by alleging that the information posted by them is false and has only been posted in social media to create panic, defame the administration or damage the “national image”. We do not hesitate in saying that such targeting shall not be condoned, and the Central Government and State Governments should ensure that they immediately cease any direct or indirect threats of prosecution and arrest to citizens who air grievances or those that are attempting to help fellow citizens receive medical aid. If this does keep happening even after the current order, this Court shall be constrained to use the powers available to it under its contempt jurisdiction. We also direct that all Directors General of Police shall ensure compliance down the ranks of the police forces within their jurisdictions.”

Given the above discussion, it is submitted this the Supreme Court has intervened at a right time when people were looking towards the Court for justice. The Court has not rightly touched the petitions pending in the different High Courts relating to the Covid mismanagement. This is a very difficult time that certainly needs an extraordinary degree of judicial activism to protect the lives and livelihoods of people. People cannot be thrown at the mercy of the centre and states. They need immediate relief to save their lives. All governments have failed them. There should be some uniformity to deal with the corona crisis. We can fight against the coronavirus jointly, not alone. The governments should not unwelcome criticism at this time. This is the time to make self-introspection and feel the public anger and protect humanity. The Supreme Court has demonstrated a great initiative towards the compliance of constitutional morality in this suo motu action. This is what the people expect from the judges of the Supreme Court who decide the legal destiny of a nation. Hopefully, the momentum of this great judicial statesmanship should be continued to mitigate the sufferings of people during this painful time. In difficult times like this, judges should not hesitate to create a new law to protect the human rights and dignity of the people. Let me conclude this discussion with these words of the eminent jurist, distinguished statesman, and renowned public intellectual Salman Khurshid: “Judges should ideally apply the law made by the legislature but where there is no possible answer in the words of the legislature, judges do make new law covertly or explicitly. In doing so, democratic considerations require them to fill up the gaps keeping in mind what the legislature would do if it were asked to.”

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MY FRIEND IMTIAZ AHMED

Salman Khurshid

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My friend, Imtiaz Ahmed, left us all on 29 April after struggling with Covid-19 for several days. One does not imagine the death of any living person easily or indeed be pushed to do so. As I look back, his special presence, the self-assured demeanor, the gentle cynicism, not easily persuaded about bird- brained schemes that people bring, devoted to Aligarh Muslim University and its alumni, quick to expand on elusive religious doctrines, attentive to prayer, nothing about him indicated that a virus of all things could get the better of him. He leaves behind a loving, grieving family and innumerable friends from Azamgarh, Aligarh, Hyderabad, Farrukhabad, and the legal fraternity across India. Of course, in Imtiaz saheb’s demise as indeed of the thousands of others, we are left with the perplexing, niggling pain that we have brought this upon us and lost talent that would have served India for long.

Throughout the pandemic last year, I saw little of him as we were all closeted in our homes. This year he insisted that I visit the Court premises once the Bar library and the canteen were reopened. As usual, he generously insisted on paying for the cold drinks; long ago I had given up trying to claim my right and duty as Senior Counsel over his determined generosity. A few days later he came to my chambers for a virtual hearing that went off satisfactorily. Unlike his normal practice, he did not leave hurriedly and instead opted to stay on to chat about various matters including the threat of the pandemic. And then I was told that he had been infected. We were in touch on the phone even when he was on Oxygen supplement and we were looking for matching AB+ plasma. But sadly, every effort of the medical team ultimately failed. He has gone away but must indeed be proud, wherever he is with his Maker, of the unflinching courage and devotion shown by Naghma, his beloved lawyer wife who shared legal appearances as indeed a wonderful home along with the boys, Zargham and Faraz. How suddenly their world must have stopped with one telephone call from the ICU is heart-rending. Even in the grief, one feels I cannot but vividly see Imtiaz saheb holding forth to an ethereal audience about mismanagement of Indian polity!

Imtiaz saheb had once hoped to become a judge but only fleetingly. Although two Chief Justices of India actively pursued the High Courts recruiting from the Supreme Court Bar there remained a feeling that periodic appearances before the concerned High Court were necessary. There might have been a momentary disappointment but he loved the Bar so passionately that it is difficult to imagine his bidding goodbye. It is therefore very strange to think that he has indeed bid it goodbye and with it his home family life that he was equally passionate about. Having tried many a time to invite him to events late in the evening but seldom having succeeded I took recourse to add that once he crossed the Jamuna for home after chamber work, he was lost to this part of town. He may have crossed over for the last time but he leaves behind many admirers and a school of young followers who will not forget him, as a benevolent guide and a hard taskmaster. Our Bar is varied and vastly talented and the absence of a colleague should in the normal course be filled by others. But I believe that is not the case with Imtiaz saheb because he had made a very special place that had a lot to do with his personality. He will therefore continue to be missed both for work and style. Many institutions and helpless persons he looked after over the years, often pro bono, will of course have a special reason to feel his absence. Unfortunately, his plans, known and discreet, will not unfold to add the excitement to the routine existence he was always looking for. Amongst the many who conveyed condolence was Chief Justice Khehar who said that he recalled him as a young member of the Bar whose eyes said that he would go places.

As he was laid to rest, the pandemic protocol and the prevailing personal precautions kept the mourners to a bare minimum; many of us could not even carry the bier or put a handful of earth on the grave. Some friends he cared for dearly and others often at the receiving end of his humor joined to bid the final goodbye. In a world already turned impersonal and transactional, this pandemic has forced us into greater distance physically but hopefully not emotionally and spiritually. As we close the graves and light the pyres a hollowness remains. I can only recall the quizzical smile Imtiaz saheb used to have whenever a much sought for SLP was summarily dismissed. And then, as though to test me, he would say, ‘shall we file a review?’ Well, this time, in our moment of sorrow there are no reviews or curative petitions except to bow to the Almighty and simply say, ‘As the Lord pleases’ instead of the usual ‘As your Lordships please.’

Salman Khurshid, Senior Advocate, Supreme Court of India & former Union Minister of External Affairs, Law & Justice

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