HOW TAX ON OCEAN FREIGHT WORKS
Ocean Freight is a method of transporting huge quantities of goods through the sea. The levy of taxes on Ocean Freight has been a matter of dispute in India for a while now. The GST law requires the importers to pay tax on ocean freight services under Section 9(3) of the CGST Act and Section 5(3) of the IGST Act, better known as the ‘Reverse Charge Mechanism’.
The location of the Service Provider (SP) and the Service Recipient (SR) must be considered. If the location of the SP and the SR is in India, Section 12(8) applies. But when the Location of SP or SR is outside India, the location of the SR is considered, unless the location of the SP is not known, then the SP’s location is considered but only for transportation [under Section 13(9)]. If the SP and SR are both outside India, the Importer is liable to pay IGST @ 5%. In addition to this, the importer also pays customs duty, freight on the CIF (Cost, Insurance and Freight) value and insurance even if the importer has paid IGST on the CIF value, he is still required to pay GST on ocean freight. This, is what any prudent person would term as “double taxation”.
When it comes to import on the CIF basis, the foreign supplier transports goods from a place outside India through a foreign shipping agency, to a port located in India. In CIF, the freight is paid by the foreign exporter to the shipping agency and the foreign supplier transports such shipment through the foreign shipping agency.
From 01.06.2016, transportation of goods from a place outside India up to the customs clearance station in India became liable to service tax, through the Finance Act, 2016. But an exemption was given for services by way of transportation of goods by an aircraft from a place outside India up to the customs clearance station.
If the service provider was situated outside India, the liability to pay service tax would be on the service recipient. In Free on Board (FoB) imports, service tax would be payable by the shipping line, if the shipping line was based in India; and the service tax would be payable by the importer under reverse charge if the shipping line is not based in India.
In case of CIF imports, there was no service tax levy on freight, as the service provider as well as the service recipient are situated outside India.
There existed ambiguity in levy of service tax that was attracted on ocean freight component only in case of FOB imports, and not attracted for CIF imports.
Vide Notifications dated. 12.01.2017 (Notification 3/2017) and 20.06.2012 (Notification 30/2012 ST), some efforts were made to clear the ambiguities. In addition to this, in respect of services provided or agreed to be provided by way of transportation of goods by a vessel from a place outside India up to the customs clearance station in India, the person liable for paying service tax other than the service provider would be the person in India who complies with sections 29, 30 or 38 read with section 148 of the Customs Act, 1962.
In addition to this a series of Notifications were issued pursuant to the problem at hand:
1. Vide Notification dated. 13.04.2017 (Notification 2/2017 ST), the definition of “person liable for payment of service tax” under Rule 2 (1) (d) (i) was amended and a new sub rule (Rule 7CA) was introduced in the Service Tax Rules, 1994.
2. Vide Notification dated. 13.04.2017 (Notification 14/2017 ST), a new rule, Rule 8B was introduced in Point of Taxation Rules, 2011, which spoke about the “Determination of point of taxation in case of services provided by a person located in non-taxable territory to a person in non-taxable territory.”
3. Vide Notification dated. 13.04.2017 (Notification 10/2017 CE NT), the definition of “input service” in the CENVAT Credit Rules, 2004, was amended to further facilitate proper implementation of the respective tax provisions.
The importer was thus made liable to pay service tax for the services of transportation of goods by vessel from a foreign port to Indian port in case of CIF imports.
The above position continued up to 30.06.2017, i.e., until the introduction of GST.
And as per Section 14 of the Customs Act, 1962, the value of the imported goods shall be the transaction value of such goods for the purpose of levy of Customs duty and such transaction value in the case of imported goods shall include, in addition to price, any amount paid or payable for costs and services, including commissions and brokerage, royalties and licence fees, costs of transportation to the place of import, insurance, loading, unloading and handling charges to the extent as per Rule 10(2) of the Customs valuation (Determination of Value of Imported Goods) Rules, 2007.
Section 5(3) of the IGST Act, 2017 empowered the Centre to issue notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and the recipient of such goods or services or both is liable to pay tax under reverse charge in relation to the supply of such goods or services or both.
Where the value of taxable service provided by a person located in non-taxable territory to a person located in non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India is not available with the person liable for paying integrated tax, the same shall be deemed to be 10 % of the CIF value of imported goods.
How ocean freight suffers double taxation
Ocean freight component suffers tax twice; first, it suffers IGST as component of Customs Duty on imported goods on CIF basis and second time IGST @ 5% in the form of Import of Services (Reverse Charge Mechanism) for payment by the importer. Therefore, IGST payment is levied twice on Ocean freight in the guise as part of transaction value of imported goods.
The impugned notifications are contrary to the provisions of Article 265 of the Indian Constitution which says that “no tax shall be levied or collected except by authority of law”. A delegated legislation (includes the notifications herein or rules) cannot provide levy or collection of tax which is not authorised by the parent statute.
Supply of ocean freight service is not covered either by Section 7 (inter-state supply) or Section 8 (intra-state supply) of the IGST Act. The Act does not contemplate levy or collection of tax from a person who is neither the supplier nor the recipient of supply.
A person other than a recipient cannot determine the “time of supply” as per the provisions of Section 13 of the IGST Act. In addition to this, Input Tax Credit can only be availed by the recipient of the supply which are intended to be used in the course of furtherance of business, under the provisions of Section 16 of the Act.
The Supreme Court in case of State of Rajasthan v. Basant Agrotech (India) Limited [2014 (302) E.L.T. 3 (SC)], held that the rule of construction of a charging section is that before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section. No one can be taxed by implication. A charging section has to be constructed strictly. If a person has not been brought within the ambit of the charging section by clear words, he cannot be taxed at all.
Commissioner of Central Excise v. Acer India Limited [2004 (172) E.L.T. 289 (S.C.)], the SC held – “The intention of the legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic result sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plan, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i.e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute, then there is no tax in law.”
The Hon’ble Gujarat High Court in the case of Mohit Minerals Pvt. Ltd. Vs. Union of India [Special Civil Application No. 726 of 2018], has set aside IGST on Ocean Freight and held that no tax is leviable under the IGST Act, 2017 on the ocean freight for the services provided by a person located in a non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India and the levy and collection of tax of such ocean freight under the impugned Notifications is not permissible in law and that taxing ocean freight is ultra vires and leads to double taxation.
Despite the attempts of the judiciary in defending the very concept of negating any occurrence of double taxation, the efforts made to amend the imprudent levy of IGST on ocean freight, or so to say, the lack thereof, is still very unsettling.
A person other than a recipient cannot determine the “time of supply” as per the provisions of Section 13 of the IGST Act. In addition to this, Input Tax Credit can only be availed by the recipient of the supply which are intended to be used in the course of furtherance of business, under the provisions of Section 16 of the Act.
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REMEMBERING GORKHA CONTRIBUTIONS TO THE INDEPENDENCE MOVEMENT
Under the leadership of Hon’ble Prime Minister Sh. Narendra Modi ji as our nation commemorates ‘Azadi ka Amrit Mahotsav,’ we take a solemn moment to remember all those brave hearts who sacrificed their lives so that we could live in a free country. The struggle for Independence attracted active participation from all the communities across the nation, however the contributions of smaller communities, especially those from North East India have remained relatively unknown. All that is changing, thanks to the ‘Azadi ka Amrit Mahotsav’ commemoration as envisioned by Modi ji, more and more people are coming to know about the freedom fighters from smaller regions and communities too.
The sacrifices and contributions of the Indian Gorkha community towards our freedom struggle and nation building is immense, sadly majority of the people across our nation are unaware of the sacrifices made by our Gorkha ancestors. As a Member of Parliament from Darjeeling Lok Sabha constituency, which is the heart of Gorkha community in India, and being a Gorkha by ethnicity, here is my humble attempt at highlighting some of the icons from Indian Gorkha community whose contributions in the history of India’s Independence remains relatively unknown among the general population.
INA CAPT. RAM SINGH THAKURI – HIMACHAL PRADESH
Among the very many celebrated Gorkha Freedom Fighters, perhaps the one with the most iconic contribution, yet the least known, remains Capt. Ram Singh Thakuri of Himachal Pradesh.
Call it a coincidence or destiny, Capt. Thakuri was born on the 15th of August 1914 to a Gorkha family in Khaniara village, Dharamshala, HP. In 1924, he had joined the 2/1 Gorkha Rifles as a unit musician. He was a talented young man, who was proficient in many fields including football, athletics, and wrestling. In the Second World War, his Battalion was shipped overseas to Singapore. In 1942, Singapore fell and the Allied forces surrendered to the Japanese. This is when Capt Ram Singh Thakuri joined the Indian National Army (INA). Soon he became very popular due to his musical talents, so much so that Netaji himself took a note of his talents. Netaji an astute military strategist understood the power music could have on the morale of the soldiers asked him to raise a marching band for the INA.
Capt. Thakuri didn’t let Netaji down, as he produced some of the most well know songs from India’s freedom movements like Kadam Kadam Badhaye Ja, Sare Jahan se Accha, Inquilab Zindabad, Hind Sipahi, the Rani of Jhansi Regiment marching song “Hum Bharat ki Ladki Hai,” and others.
The Azad Hind Government had strongly felt that a National Anthem was required which would connect all Indians through a common thread of music. While some had favoured the great poet Bankim Chandra Chatterjee’s ‘Vande Mataram’ as the national anthem, some others felt it wasn’t inclusive enough. It was Capt. Lakshmi Sahgal who introduced Gurudev Rabindranath Tagore’s ‘Jana Gana Mana’ to Netaji, by having it performed at INA women’s wing meeting, which Netaji had attended. Following which, Netaji instructed Capt Ram Singh Thakuri to re-compose the music of Gurudev Rabindranath Tagore’s version of Jana Gana Mana in a martial tune to which INA soldiers could march to.
In one of his interviews, Capt. Thakuri fondly recalled Netaji instructing him, “the song should have such an indelible impact and force that the Cathay Building [in Singapore] should ‘break’ into two parts and the sky should become visible.”
While Capt Abid Ali and Mumtaz Hussain rewrote Gurudev’s “Jana Gana Mana” to “शुभ सुख चैन – Subha Skhuh Chain ki Barsha Barse”, Capt. Ram Singh Thakuri gave music to it.
Subha Skhuh Chain ki Barsha Barse was adopted by the Provisional Free Government of India (Arzi Hukumat-e-Azad Hind) led by Netaji as the Qaumi Tarana – National Anthem. “Subha Sukh Chain” was played as the national anthem of free India first time on 11 September 1942 at Hamburg, when on October 31, 1943, when the INA came to power, the orchestra led by Capt. Thakuri played the Qaumi Tarana, the Cathay Building did indeed reverberate thunderously.
The music of Capt. Thakuri’s ‘Qaumi Tarana’ became a base on which our current national anthem “Jana Gana Mana” is set. In 1944, Capt. Thakuri was decorated by Subhas Chandra Bose with a gold medal for his contribution. Capt. Thakuri also received a violin and a saxophone as personal gifts from Netaji.
Capt. Thakuri was especially invited to play the ‘Quami Tarana’ when Pt. Jawahar Lal Nehru unfurled the Tiranga from Lal Quila on the 15th of August, 1947, he had used the violin presented to him by Netaji, who had told him, “you will play this violin when India gets her Independence”.
Sadly, after Independence, the brave INA Freedom Fighters were neglected by the then governments. Capt. Thakuri was appointed as a DSP with the Provincial Arms Constabulary (PAC) band of Uttar Pradesh Police, and he continued to serve our nation through his music till his last days.
PUSHPA KUMAR GHISING – DARJEELING
The Naval Uprising of 1946 is among the lesser-known moments of the Indian Freedom Movement, but perhaps it is the most significant. This is when the Indian Navy soldiers staged a revolt against the British in Karachi and Bombay. Inspired by the Indian National Army over 20000 mutineers joined the Freedom Fighters from Karachi to Calcutta, taking
over the 78 ships afloat and onshore establishment. This had inspired other servicemen in the army, air force and even the civilians to join the protests.
During the rebellion, navy personnel Puspa Kumar Ghising from Darjeeling fought with at least three British soldiers and managed to take control of the Bombay naval ammunition dump alone. The weapons from the ammunition dump were used by the rebelling Indian sailors to hold back the British for 5 days. However, on the fifth day, the leaders from the Indian National Congress had intervened and coaxed the sailors to lay down their arms. Ghising and his friends were arrested and taken to the Mulundi Jail where he was court-martialled but acquitted during the trail.
He resigned from the Navy on September 8, 1946, and plunged into the independence movement.
Even though the Naval Uprising has not been given due importance in the history books, unlike the other important incidents in the Freedom Movement, however, many contemporary historians attribute Naval Uprising as the pivotal movement that hastened the British decision to quit India.
In recognition of Ghisingh’s role in the Independence movement, the government
felicitated him with the Tamra Patra on August 15, 1989.
HELEN LEPCHA – SIKKIM AND KURSEONG
Helen Lepcha was born in 1902 in South Sikkim and is perhaps the only female freedom fighter from Sikkim. The family migrated to Kurseong in search of better education and livelihood prospects. During the floods of 1920 in Bihar, Helen Lepcha worked as a volunteer, providing tireless service to the victims, this brought her to the attention of Mahatma Gandhi, who later named her as Sabitri Devi in honour of her service to the people. Helen Lepcha worked with the coal workers from the coalfields in erstwhile Bihar and among the workers in United Provinces (Uttar Pradesh), strengthening the Freedom Movement and participated in the non-cooperation movement in 1921. She was arrested for “inciting the people against the government” and sent to jail for three months and a further house arrest later that year.
When Netaji was kept under house arrest in Giddhey Pahar in Kurseong from 1939-40, Helen Lepcha played a vital role in smuggling in and out coded messages, ultimately laying the foundation for Netaji’s escape later right under the nose of the British authorities from Calcutta to Germany.
In appreciation of the immense contributions during the freedom movement, the Government of India honoured her with a Tamra Patra the citation.
MAJOR DURGA MALLA – UTTARAKHAND
Born on 1st of July in 1913 at the Doiwala village in Dehradun district of Uttarakhand, Durga Malla joined the Gorkha Rifles in 1931 at the age of 18. In 1942, at the height of the 2nd World War, a group of Indian soldiers led by Durga Malla decided to breakaway and form the Indian National Army under Netaji Subash Chandra Bose. Durga Malla was one of the key figures responsible for the formation of the INA, as he was largely responsible for encouraging fellow Gorkha soldiers to quit the British and join the INA. Seeing his dedication towards the Freedom of India and his military talents, he was promoted to the rank of Major by Netaji, and posted in the intelligence branch of INA, where he performed exemplarily often taking risky missions that helped INA march forward.
It was during one such intelligence gathering missions that he was arrested on the 27th of March, 1944 near Urkhul in Manipur. He along with fellow INA prisoners were kept in a prison at the Red Fort as a prisoner of War. There, the British tried to persuade him to renounce INA and offered him that his life would be saved if he did so. But he flat out refused to bow before the British. When all tricks and coercions failed, the British brought his wife Smt. Sharda Devi to get him to denounce INA, but instead he told his wife, “Sharda, I am sacrificing my life for the freedom of my motherland. You need not be worried and distressed. Crores of Hindustanis will be with you after my death. The Sacrifice I am offering, shall not go in vain. India shall be free. I am confident, this is only a matter of time.”
On 25th August 1944, he was sent to the gallows.
Today, his statue adorns the premise of our Parliament, marking the contribution of Gorkha community towards our Independence.
SUBEDAR NIRANJAN SINGH CHHETRI – MANIPUR
Among the illustrious Gorkha community that has produced so many heroes for our nation, the honour of being the 1st Gorkhali to have martyred for our motherland goes to Subedar Niranjan Singh Chhetri ji, from Manipur.
When the great Manipuri hero Jubraj Tikendrajit Singh decided to resist the British incursions into Manipur, 39-year-old Niranjan Chhetri of Tikuamoh, who was an ex-army sipahi of the 34th native Infantry, joined the native force of Manipur led by Bir Tikendrajit and Thangal General. His past experience as a soldier and bravery was evident, and he was appointed as Subedar by Jubraj Tikendrajit himself.
Following the war, he was tried by the Chief Political Officer, Manipur Field Force and was hanged to death by the British on June 8th, 1891. His last words were, “My birthplace is my Motherland, I am ready to die for this land, and I am ready to kill for this land, but I am not ready to accept surrender and subjugation of my own land”.
For decades, his sacrifice had been relegated to the pages of history. However, under
Hon’ble Chief Minister N Biren Singh ji the history and legacy of this legendary Gorkha
Freedom Fighter is finally being brough to light. On March 7th, 2021, CM N Biren Singh ji unveiled the statue of Saheed Subedar Nirajan Singh Chhetri, he acknowledged the role played by Subedar Niranjan by writing, “Immensely glad to unveil the statue of Saheed Subedar Niranjan Singh Chhetri, one of the heroes of Ango-Manipur War, 1891. His bravery, patriotism & sacrificial spirit for the motherland were unparalleled. He was hanged to death by the British on June 8,1891 for his role in the war.”
Chhetri – the 1st Gorkha Freedom Martyr]
DALBIR SINGH LOHAR – ASSAM
Dalbir Singh Lohar from Assam joined the freedom movement in 1921 during Gandhi ji’s visit to Dibrugarh. He was a labour leader and one of the most prominent Freedom Fighters from Assam, who led the Civil Disobedience Movement in Dibrugarh from the front. He was imprisoned between 1930-31 for his participation in the Civil Disobedience Movement, along with other Gorkha freedom fighters from Assam like Bhakta Bahadur Pradhan, Anantalal Sharma.
In 1939, Assam saw the historic strike at the Asia’s oldest refinery and the birthplace of oil industry in India in Digboi, Assam. Dalbir Singh Lohar was one of the key leaders of the strike called by the non-unionised Digboi Oil Refinery workers. Citing tensions with Germany, the British crushed the Digboi strike with an iron hand sending down eight platoons of Asssam Rifles to crush it. All the prominent leaders like Dalbir Singh Lohar were issued Quit Digboi, Quit Lakhimpur, and finally Quit Assam within 72-hours’ notice by the British.
He was again arrested during the Quit India Movement called by Gandhi ji, and all the Gorkha freedom fighters like Bhakta Bahadur Pradhan, Anantalal Sharma and others and kept in separate jails. However, they soon became the symbols of working-class people’s resistance against the British government.
After Independence, Dalbir Singh Lohar went onto become the first MLA of Gorkha ethnicity to be elected from the Digboi Assembly, by winning the 1951 election with a landslide margin. He continued to serve the working-class people all through his life.
These are only a few, whose contributions I have highlighted today, there are hundreds of others who have played a significant role towards ensuring our Independence, but due to the paucity of space, accommodating them all is not possible.
As can be seen, the Gorkhas no matter which state they were born in, have played a significant role in our Freedom Struggles, and I am hopeful that as we celebrate the “Azadi ka Amrit Mahotsav” more people across the nation will come to know about heroes like them.
*Raju Bista is the Member of Parliament from Darjeeling and National Spokesperson for BJP
SHINDE VS THACKREY – DISSENT OR DEFECTION…?
On 21 June 2022, an unprecedented political movement took place in Maharashtra and once again pop-up the 10th Schedule or anti defection law.
Initially Shinde faction case was seeming like usual case of Anti defection but as it took root of the case, it got wider scope to decide few questions of law accordingly,
On 25th of June, Maharashtra Speaker Zirwal issued disqualification notices under the 10th Schedule to Shinde faction after the party sought their disqualification from the state assembly for the wants of non-joining of party meeting even after issuance of whip. Now the notice has been challenged before hon’ble Supreme Court stating failure to attend a party meeting or expression of disagreement with certain policies of the party cannot be a ground to disqualify under para (a) or 2(b) of tenth schedule of the Constitution, however, multiple petitions have been filed by the both the parties before Supreme Court on various ground and is pending before the court for considering whether the matter be referred to Constitutional Bench or not.
Since the Thackrey led MVA Government had majority & the act of rebel Sena leader Shinde has aided to dis- Stabled the government, in such a case does the act of team Shinde fall under the “act against the party”? if yes then right to dissent has no meaning. Because the team Shinde neither voted against the party or has given up their membership. The act of Shinde team seems to be against party policy & not against the party therefore, the friction between right to dissent & Anti defection has taken place.
Right to freedom of speech & expression vs Right to dissent –
The question of law rises here in the present case is whether right to dissent, with voice of majority fall under the ambit of right to dissent or not, if yes then whether the Tenth schedule violating the Basic Structure of the constitution. Because when we call right to dissent is right to freedom of speech & expression, it would gross violation of art. 19 (1) a of the constitution & when there is violation of any provisions of the fundamental rights would be violating the basic structure of constitution & when any law is against the basic structure of the constitution is deemed to be void.
During the hearing of the Shinde’s petition Senior Counsel Harish Salave strongly stressed on Voice of Dissent and Voice of Majority and Minority tyranny and said that voice of dissent can not be suppressed in a democracy.
In Kihota Hollohon Vs Zachilhu and Others, 1992 SCC Supp. (2) 651, the Tenth Schedule was challenged on the ground that, it violates the democratic rights of elected members of Parliament and the Legislatures of the States. It violates the freedom of speech, freedom of vote and conscience of a member. Rejecting the plea, the Apex Court held that, the provisions of Tenth Schedule do not suffer from the vice or subverting democratic rights of elected members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience. In India the freedom of speech of a member is not an absolute freedom. The provisions of the Tenth Schedule do not purport to make a member of a House liable in any ‘Court’ for anything said or any vote given by him in Parliament or State Legislature. It cannot be said that Article 105 or 194 is a source of immunity from the consequences of unprincipled floor crossing. That’s why the provisions of paragraph 2 of the Tenth Schedule do not violate any rights or freedom of elected members of Parliament or State Legislatures under Article 105 or Article 194 of the Constitution, and is thus constitutionally valid.
Inner Party democracy –
In any democratic set up voice of dissent that too when supported with Majority should be accepted along with voice of consent. Disaccord be accepted with accord, in true sense that would be the beauty of a democratic set up.
Till date it has been observed that any dissent against a party policy deemed to be anti-defection but mere dis agreement with party policy or every disaccord cannot be held as voice against party.
Gehlot vs Pilot-
In 2019-20 Pilot group had a rebellion attempt against Gehlot and was facing disqualification by the Speaker C.P. Joshi, wherein it was challenged before the Rajsthan High Court and The Raj High Court had framed 13 issues, question of law. However, in a settlement all such disqualification notices were withdrawn and the issue of Inner party democracy and Voice of Dissent remain unanswered.
Whip versus Disqualification
Another important question of law is regarding Whip “Whether Whip as an instrument of party discipline only applied to the action expected out of legislators inside the house? In this regard I remember, A proposed solution that had created the controversy was suggested by Manish Tiwari, Member of Parliament, Lok Sabha. The suggestion is relating to constitutional amendment to limit the scope of paragraph 2 (1) (b) of the bill. The Bill proposed by Manish Tiwari limits disqualification under Paragraph 2 (1) (b) to be a possible sanction only if the member dissents against a Whip issued in the following instances.
motion expressing confidence or want of confidence in the Council of Ministers,
motion for an adjournment of the business of the House,
motion in respect of financial matters as enumerated in Articles 113 to 116 (both inclusive) and Articles 203 to 206 (both inclusive),
The propositions made by Constitution (Amendment) Bill, 2010 are similar to the recommendations made by the Dinesh Goswami Committee on Electoral Reform where it was suggested that disqualification must be imposed only in case of vote of confidence or no-confidence motions. By limiting the ambit of disqualification, this bill seeks to make the necessary change of creating greater room for policy expression, fearless debate and discussion in the Parliament. Such a law would liberate legislators from the whip imposing fear of losing their membership except in cases where the life of the government is threatened by a no-confidence motion, money bills and some crucial financial matters.
Dissent as Right to freedom of Speech & expression –
The Constitution (Fifty-Second Amendment) Act, 1985 which has since popularly come to be known as the Anti-Defection law, has been the subject matter of a controversy from the very beginning. It has been questioned on several grounds viz, that it is violative of the basic structure of the Constitution, that it is violative of the fundamental principles of parliamentary democracy, its violate democratic rights of the elected members of parliament and the legislatures of the State, and is destructive of the freedom of speech, right to dissent, freedom of vote and conscience, it violates the freedom under Articles 105 and 194 of the Constitution.
Now considering the act of rebel Sena leader, CM Shinde and his group neither left the party at his will nor talked against party.
Because, considering entire facts on record, the act of Shinde Faction, Certain disagreements with Party Policy does not amount to Anti defection or all the dissent does not amount to anti defection same was observed in the case of In Balchandra L. Jarkiholi Vs B.S. Yeddyurappa 2011.
Delivering the dissenting judgement, Mr. Justice N. Kumar of the High Court set aside the impugned disqualification order of the Speaker and held that an act of no confidence in the leader of the legislative party does not amount to his voluntarily giving up the membership of the political party. Similarly, the act of expressing no confidence in the Government formed by the party, with a particular leader as Chief Minister, would not also amount to voluntary act of giving up the membership of the political party. Deserting the leader and deserting the Government is not synonymous with deserting the party. Dissent is not defection and the Tenth Schedule while recognizing dissent prohibits defection. Right to dissent is the essence of democracy, for the success of democracy and democratic institutions honest dissent has to be respected by persons in authority. which was later confirmed by hon’ble Supreme Court.
Therefore, if we believe in Democracy, should also believe in Right to Speech & Expression ensured as fundamental right under Article 21 of the constitution of India, should believe in Party Democracy, & if Right to speech is recognized under party democracy then dissent is not defection. if dissent is not defection, then Para 2 (1) a of the tenth schedule of the constitution violating the Basic Structure of Constitution.
The Maharashtra Political crisis case has great potential to the hon’ble Supreme Court to decide the much waited and unanswered question of law ,which had paved multiple time in Indian politics , Would hope that the Supreme Court will constitute the Constitutional Bench with 05 or more judges and deliver another landmark judgment.
The Author is practising advocate at Bombay High Court.
COURTS OUGHT NOT TO SUBJECT TO JUDICIAL SCRUTINY, WHAT IS ESSENTIALLY A PURELY POLITICAL BARGAIN
Welfare measures are political bargains struck by a thinking electorate: The various ‘welfare measures’ (pejoratively called ‘freebies’ by the Petitioner), are political bargains between the ‘electorate’ and the ‘elected’. The ‘electorate’ is capable understanding the terms of this bargain and its implications, which is why we have constitutionally mandated ‘universal adult franchise’. Such decisions are neither justiciable, nor do they exist any judicially manageable standards for such determinations.
Judicial reassessment of such issues makes the court enter into political thicket: A judicial scrutiny of such bargains necessarily presupposes that the electorate is incapable of making an informed decision and makes the court enter into a political thicket, which this Hon’ble Court has refused to do repeatedly. This is because the judicial wing of the state has neither the expertise or the democratic mandate to dictate the terms of the political bargain between the electorate and the elected.
Restrictions envisaged limit right under Article 19(1)(a) and not covered by Article 19(2): The making of promises of welfare measures and the hearing of such promises are both protected under Article 19(1)(a) of the Constitution. Restriction on such speech does not fall under any of the eight heads of exceptions under Article 19(2). In any case, it is impermissible to restrict freedom of speech and expression by judicial directions and the same can only be done by way of a law passed by Parliament/legislature.
If court inclined to examine, it will be in fitness to first refer the matter to Constitution Bench to determine if such issues can be gone into by the Court. In case, this Hon’ble Court is still inclined to consider the legality of welfare measures, it is prayed that the preliminary issue of whether such issues can be adjudicated by Courts ought to be referred to a Constitution Bench.
Public Interest Foundation v Union of India, (2019) 3 SCC 224 where a Constitution Bench of this Court refused to issue directions barring election candidates with criminal antecedants on the ground that the said power was exclusively with Parliament (Paras 105-107, 118-119)
Asif Hameed & Ors. v. State of J & K, 1989 Supp (2) SCC 364 (Paras 17-19)
Welfare measures are in tandem with the socialist and welfare objectives of the Constitution and necessary for ensuring equality and achieving economic development
We have given ourselves a welfare/socialist state whose objective is to promote and achieve social/economic justice and equality, which is realized through welfare measures: The preamble to the Constitution is categorical about the nature of the Indian state (being socialist) and its objectives, which include, inter alia, social/economic justice and equality. These objectives find an echo in various directive principles of state policy such as Articles 38, 39, 39A, 41, 42, 43, 43A and 47 which inter alia, call for securing for citizens the right to adequate means of livelihood for all citizens and equitable distribution of material resources of the community for the common good.
Successful examples of Welfare measures include PDS for food, provision of night shelters for the homeless, free/subsidized education at the school and college level, free drinking water, mid-day meals and many more.
The Scandanavian Countries in particular that offer high amounts of social support in particular, free and equal access to social services, regardless of income or economic need. The essential elements of this modeal are large public sector, broad universal services, productive investment in health education and job training and strong work incentives with progressive taxation. These countries have some of the highest human development index in the world.
Welfare measures develop ‘capacity’ of the people, enabling them to contribute to economic growth: The characterization of ‘welfare measures’ as ‘freebies’ overlooks the fact that such measures are essential for developing ‘capacities’ of the people of the country and hence generate a workforce which can then contribute to economic growth. Given the vastly inequitable distribution of wealth in the country, but for government support, the majority cannot develop any ‘capacity’ to be able to generate wealth.
Our collective consciousness is replete with examples of poor children who have risen from the humblest backgrounds to achieve excellence in various fields. In many of these cases, this has been facilitated by because of the so called ‘freebies’ that have provided opportunities of earning and improvement in standard of living would be restrict to the very few at the top with the wherewithal to develop their ‘capacities’.
In any case, social welfare measures will not cause undue financial strain on the economy: This is because the Fiscal Responsibility and Budget Management Act, 2003 and such similar legislative measures at the state level that restricts the deficits that a government can run. Hence, all social welfare measures will be managed within this framework and the limits imposed thereby.
Privacy implications in India of the overturning of Roe v Wade in the US
The journey from the winters of 1973 to the summer of 2022.
June 24, 2022 witnessed perhaps one of the single-most momentous blowbacks to the notion of privacy, the consequence of which would certainly send ripples across the globe both on an ideological and a judicial-legal plane. On this day, the Supreme Court of the United States of America on this day overturned the watershed case of legal and feminist jurisprudence, Roe v. Wade of 1973 (“Wade”), effectively disrobing women in the country from exercising the erstwhile right to abort. The ramification of this ruling underlines a particularly interesting conundrum – in the wake of Big Tech collecting, storing, and processing personal data and information incessantly and sharing the same with law enforcement agencies (“LEAs”) as and when mandated, how can the most vulnerable and sensitive aspects of a person’s personal life be afforded protection to in the absence of adequate safeguards?
It is common knowledge that the tracking and storage of personal data and information accompany with it a saddening saga of squander and abuse – history is witness to this. With the over-ruling of Wade, it is now open season, wild-wild-west – the LEAs theoretically have a free hand to collect location data, forage through text messages and SMSes, dig through web-browser histories, online purchases, and personal e-mails, and use period-tracking apps surreptitiously to prosecute not only the users but also the intermediaries who may provision the said services.
The logical, unfortunate conclusion to the series of events that may potentially transpire hereon would be an absolute nightmare for all the people and families who were promised significant reproductive autonomy in the US for the past five decades. To chill reproductive freedoms, we may now even notice medical and health services providers track pregnant patients and LEAs exploit tools of surveillance to enforce existing abortion laws.
CALM BEFORE THE STORM?
If a report from Vice News were to be believed, accessing data troves in the US is an absolute breeze – for as meager as $160, one could access a week’s worth of data of the credentials and the geo-indicators of people who visited Planned Parenthood facilities (an American NGO which provides for sexual healthcare services). One possible reason why such a glaring infraction of personal privacy exists in the US in broad daylight is because of a ‘gray area of the law’. This gray area pertains to the Health Insurance Portability and Accountability Act, 1996 (“HIPPA”) which covers such data or information that is shared by the individual with a doctor. However, HIPPA does not secure any such data or information which is shared with a third-party. Hence, taking into consideration the possibility that third-party apps may share such data or information with yet another third party, the risk of abuse is glaring, to say the least.
There are two consequential takeaways for policymakers closer to home in India here. First and foremost, the guardrails for the protection and preservation of personal data and information in India are starkly lacking. And, second, in the absence of an omnibus privacy legislation, individuals and their data are at the mercy of private parties and the government to be exploited and be capitalized on.
Certainly, the Supreme Court of India did affirm that the Right to Privacy forms an integral part of the Right to Life and Liberty guaranteed by Law under Article 21 of the Indian Constitution – certainly no two thoughts about it. However, because of its delicate nature, the degree of safety and consideration that protection of medical data warrants is a notch above the safety standards mandated by the protection of general data. Taking into consideration the rapid growth of the Indian telemedicine market, the onus falls upon the Government to ensure that the prospective economic benefits of the proliferating market segment do not imperil the tenets of the Right to Privacy, especially that of health data. A nuanced and considered approach is the call of the day.
FLAWS IN THE INDIAN MEDICAL DATA POLICY FRAMEWORK
Perhaps the most pertinent issue in the framework as it stands today is the ambiguity in the understanding of ‘health data’ or ‘medical data’ and what it constitutes. Case in point, the Information Technology Act, 2000 (“IT Act 2000”), along with the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“SPDI Rules”), accords the status of sensitive personal data or information (“SPDI”) merely on such data which are either related to the physical, physiological, or mental health of an individual. However, the current legal framework does not require such data to be anonymized – hence, it is quite feasible for any entity (government or third-party) which is in possession of such un-anonymized data to ascertain who it pertains to and mine such data, thereby risking misuse.
Despite several administrative attempts, the foul of conceptual legislative clarity remains. For instance, let us take into consideration three frameworks that pertain to or which touch upon personal health data, namely – the ‘Strategy Overview: Making India a Digital Health Nation Enabling Digital Healthcare for all’ document of the National Health Authority, dated July, 2020 (“NHA Strategy Overview”), the draft Digital Information Security in Healthcare Act, 2018 (“DISHA”), and the draft Data Protection Bill, 2021 (“DPB”). In the NHA Strategy Overview, “personal health data” encompasses information and data relating to the medical conditions and subsequent treatments undertaken by a party. In comparison to the standards of the NHA Strategy Overview – where on the one hand, the DPB covers only information regarding the physical or mental health of the individual, on the other, the DISHA goes a notch up and deals with data extracted from body-part donations and data derived from medical tests and bodily examinations as well. The discordance and dichotomy in the data protection frameworks indeed are glaring. Worse still, none of them reflect upon the surveillance misuse that can manifest from the status quo!
It indeed is well established that policy frameworks conceptualize data in general, and medical data in specific, as an incorporeal, intangible resource and an effective enabler for economic progress. Data is predominantly understood as a resource (like oil), available for human extraction, and exists independent of the bodies producing it. The present-day health data policy framework in India is inordinately concentrated on the data and information that is collated and collected by primary healthcare service providers (like hospitals and medical establishments) or secondary healthcare service providers or healthcare-related service providers (like insurance companies). We today have smartwatches and mobile apps which gather data on and monitor a person’s activity levels, heart rates, sleep cycles, and daily moods, and which also can track period-cycles. Hence, the draft DISHA-DPB framework presents a thought-provoking policy and legal lacuna – with the growing use of these smartwatches and third-party apps, can the law protect from exploitation the digital footprint of an individual that is left behind?
Yet another species of unease that arises is the difficulty in dealing with the unfettered access to medical data and information that the government (both at the Central and the State level) and LEAs can procure either from third-party apps or from IoT devices. To cite an instance, it is common knowledge that in the wake of the Covid-19 pandemic, both the Central as well as several State Governments used platforms and apps to track and contain the infection. What is perhaps not so commonly known is that for all the virtue and nobility that such contact tracing mechanisms may have brought about, they also institutionalized mass surveillance to a very large extent – one needs to understand that most of these apps often devolved into mechanisms of trickery by surveilling, monitoring and controlling the movement of individuals in the cloak of ‘lockdown enforcement’. Add to this, by way of the mandate provisioned in the proviso to Rule 6(1), and in Rule 6(2), of the SPDI Rules – sensitive personal data and information (including medical and health data) which is shared by an individual with third-party apps and platforms can legally be procured by LEAs without the explicit permission of the individual to whom such data belongs to. This gives rise to a certainly worrying trend, especially when you look at it from the privacy lens!
WHERE CAN WE GO FROM HERE: STEPS FOR THE TIMES AHEAD
In no uncertain terms, the pressing priority of the day in the Indian data-landscape is for lawmakers to cogitate considerately upon a definition of ‘health data and information’. A good starting point to fortress individual rights over their personal health would be to place digital health data and information collected by third-party apps and platforms, as well as by IoT devices, under the ambit of the draft DPB-DISHA framework.
Subsequently, legislative intent must deliberate over the fact that a certain category of health data is more intimate and sensitive than others (like, mental health issues faced by an individual vis-à-vis the height of that person) and may necessitate a higher degree of care and protection. Hence, to ensure that the individual possesses absolute and unqualified autonomy over such data of such a delicate character, a graded approach to health data is necessary.And lastly, lawmakers in India must take into account that in the wake of ‘data-sharing and interoperability’ practices, the policy-framework governing health data and information does not trade off privacy principles in the veneer of supposedly facilitating public welfare. Both healthcare service providers, medical insurance providers, and other healthcare-service providing third parties should enact protective policies which ought to be designed to keep a tight lid on sensitive personal health data and information and associated medical records and histories. Along these lines, to take a cue from the European General Data Protection Regulation (“GDPR”), wherein data subjects have the ‘right to erasure’ as protected under Article 17 and Recital 65, GDPR – in India as well, individuals should also have the right to ensure that their sensitive personal data and information is erased if and where the said individual objects to the collection or processing of her/his health data and information.
The United States’ decision of Dobbs v. Jackson Women’s Health Organization (the regressive U-turn precedent to Wade) did ensure for certain one thing – that the frigidity of the winters of 1973 would certainly chill the spine of women fifty odd years after, in the summer of 2022. Trust, accountability, and transparency – at a time we need them the most are indeed the absolute, dire necessity of the moment.
CODE ON WAGES: AN IMMACULATE REFORM?
No establishment which depends for existence on paying fees less than living wages to its workers has any right to continue. By living wages, it is meant more than the bare subsistence level- the wages of decent living” – Franklin D. Roosevelt
The multiplicity of labour laws and their compliance burden has often been cited by domestic industries and foreign investors as an obstacle to investment. With the objective of increasing investor confidence and simplifying and rationalising the existing labour laws, the government announced an amalgamation of 44 labour laws into 4 codes, namely on (i) wages; (ii) industrial relations; (iii) social security and welfare; and (iv) occupational safety, health and working conditions. The Code on Wages 2019, the first amongst the four codes, was enacted to amend and consolidate the laws relating to wages and bonus and matters connected therewith or incidental thereto. This code consolidates four major legislations namely the Payment of Wages Act, 1936, Minimum Wages Act, 1948, Payment of Bonus Act, 1965 and Equal Remuneration Act, 1976 which basically regulated the wages received by the workers.
Recently, it had been in news that the Government is eyeing to enforce these legislations shortly. In the backdrop of this development it becomes essential for one and all to become aware of some of the problematic elements of the Code and the Draft Central Wage Rules such that one may be prepared to deal with the same and if required devise appropriate ways to mitigate its effects.
AREAS FOR RECONSIDERATION AND IMPROVEMENT: FIXATION OF NATIONAL LEVEL FLOOR WAGE
In 2018, the Government of India constituted an Expert Committee under the Chairmanship of Dr. Anoop Satpathy for fixing the National Minimum Wage. In the final report titled Report of the Expert Committee on determining the Methodology for Fixing the National Minimum Wage of January 2019, the committee submitted its recommendations after considering the existing labour conditions, the guidelines of the Indian Labour Conference of 1957 and the Supreme Court case of Workmen v. Reptakos Brett & Co., and fixed the National Minimum Wage equal to Rs. 375/ per day, irrespective of the sector of employment, skill or whether the place of employment was rural or urban. However, the recommendation, was not incorporated in the Code and the National Floor Minimum Wage was fixed as low as Rs. 178 per day, perhaps less than even the existing wage rate at certain places.
Section 9 of the Code provides for the determination of a National-level floor wage, which would basically set a minimum benchmark for payable wages. For the purpose of making the quantum of wages reasonable as well as uniform this is a welcome policy measure introduced by the Government. In that regard, Rule 3 of the Draft Central Rules states, that the size of a general working class family would be deemed to be 4 members, wherein the earning member would be counted as 1 consumption unit, spouse as 0.8 and 2 children as 0.6 consumption unit each. This is where some problem creeps in to the Code. This calculation does not account for the elderly and other dependents who are generally present in an Indian family. Even as per the data available from the 2011 Census, the average household size in India was 5 (exact mean value 4.8). Thereafter, the said rule refers to a requirement of 2700 calories per day per consumption unit, which again is barely enough in consideration of the nutritional requirements. It is assumed that women will consume 20% less and children will consume 40% less than that assigned for a male member, thus making the law insensitive to women and static and unresponsive to the increasing nutritional requirements of growing children (a 14-year-old child may not have the same diet as that of 7-year-old child). Though this rule might not lead to nutritional deficiencies per se, yet provided the opportunity, it might neither contribute expectedly in improving the condition of health and malnutrition among women and children nor in improving the social status of women in the society.
Further, the method provided for calculating house rent as 10 percent of food and clothing expenditure disregards the realities of workers living in cities and the existing cost of living and might fail to ensure them liveable housing conditions. Lastly, the provision for setting aside 25% of minimum wages for expenditure on children’s education, medical needs, recreation and to meet contingencies, also appears to be insufficient, as the difference in cost rises to over seven times in urban centres, where the average expenditure in government hospitals is Rs 7,189 as against Rs 42,540 in private hospitals.
Observing the high costs of education, medical facilities etc. these days, the provisions do not seem adequate.
PERIODICITY OF FIXATION OF FLOOR WAGE
Rule 11(4) of the Draft Central Rules states, that the Central Government “may” revise the floor wage, ordinarily every five years and also “periodically” undertake to adjust the variations in the cost of living, in consultation with the Central Advisory Board. Use of these uncertain terms open scope for delay in the process of revision and can lead to interpretations and misinterpretations that may result in stagnation of floor wage rates in future and thus defeat the purpose of floor wage rates itself. Thereafter, even the period of revision of floor wages coincides with the period of revision of minimum rate of wages and since former is the point of reference for the latter, the periodicity of revision of floor wages should be shortened, for the expected realisation of its raison d’être.
BONUSES TO ALL
Initially the scope of guaranteed bonus (not linked to the performance of an individual) was restricted only to those employees who earned up to Rs 21,000 per month. The new Code refers to stipulation of a wage threshold by the appropriate government, and employees whose wages did not exceed this amount would be entitled to a guaranteed bonus which would be in the range of 8.33 percent to 20 percent, depending upon the allocable surplus available in the organisation. However, the Code provides that even those employees who earn above this threshold, would be entitled to receive a bonus (in the same percentage range) and the amount payable would be calculated as if their wage was such an amount, so determined by the government or equal to the minimum wage fixed by the appropriate government, whichever would be higher. Now this, would not only dilute meritocracy and add to an organisation’s cost burden but also lead to issues in compliance, for Companies having operations in different states of the Country, if the different state governments fix a different ceiling for payment of bonus. Thus, employees receiving the same pay might become eligible for different amounts of bonuses.
CODE SANS WAGE THRESHOLD
Obligations relating to payment of minimum wages have been extended to all employees that is individuals even in administrative and managerial roles, without any wage threshold, as per Section 5 of the Code. In comparison, the existing Payment of Wages Act currently extended only to those individuals whose wages did not exceed Rs 24,000 per month. Since no such wage limit has been contemplated by the Wage Code, these provisions might consequently be applicable even to senior employees, including even the one’s in the highest position in the organisation. This makes matters cumbersome and onerous for employers, especially when it comes to re-devising and structuring the pay and other benefit agreements of those senior employees, considering such arrangements generally involve claw back and other deduction provisions (which take away a substantial part of that which has been given to them), which may not be consistent with this law.
The Code on Wages, 2019 is no less, than a landmark in the Indian Labour industry, especially with respect to the extent of simplification it has brought with respect to the various enactments, by meticulously consolidating the same in one single enactment. The new Codes are about to be enforced shortly but yet there are certain aspects which are problematic and require reconsideration. Firstly, neither the quantum National Floor Wage corresponds with the guidelines of the Expert Committee nor does it acknowledge the ordinary Indian family size and structure and adequately account for the actual needs and requirements of its beneficiaries.
Secondly, use of uncertain terms with respect to the periodicity of wage revisions and coinciding periods of revision of National Floor Wages and Minimum Wage Rates can lead to misinterpretations and consequently result in stagnation and delay in the process of revision of wages. Thirdly, issues such as lack of wage threshold and lastly, provision for payment of bonus to all, adds further uncertainty in the law and results in increased costs for the employers, thereby defeating one of the very fundamental objective of introducing this Code itself, that is of increasing the ease of doing business in India and providing an employer friendly work environment to the investors.
Delhi HC facilitates school admission
While emerging as a very strong voice for the voiceless, the Delhi High Court in an extremely laudable, learned, landmark and latest judgment titled Kamini Arya Through Perokar vs The State NCT Of Delhi in Bail Appln. 2165/2022 pronounced as recently as on August 3, 2022 has taken suo motu cognizance to facilitate admission of an 8 year old child to school which could not be facilitated for the reason that her parents were in judicial custody in a murder case since July 2021. It must be mentioned here that the Single Judge Bench of Hon’ble Ms Justice Swarana Kanta Sharma minced just no words to espouse child’s cause while observing that, “The court is of the opinion that the child must get admitted in a school at the earliest so that shadow of no unpleasant happening falls upon the child’s life to darken her future.” It is also most pleasing to learn that the Delhi High Court in this notable case made it absolutely clear that the child, being an individual Indian citizen, enjoyed the Fundamental Rights including the Right to Education and that the welfare of child should not only be considered in cases dealing with family disputes but also like the present one.
At the outset, this most commendable, cogent, courageous, composed and convincing judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball rolling most promptly by first and foremost putting forth in para 1 itself that, “The present application has been filed by the petitioner seeking interim bail for two weeks in FIR No. 323/21 registered at P.S. Mohan Garden under sections 302/365/292/397/411/120-B/201 & 34 of the Indian Penal Code, 1860 (‘IPC’). The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11.07.2021. The application has been moved by the mother of the child on the ground that she is concerned about the admission in a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted in any school.”
No doubt, the grounds forwarded by the mother of the child are bona fide and worth considering seriously by the Court. The child is just about 8 years of age and so definitely the mother’s presence is inevitable to get the child admitted to school. This was considered seriously also by the Court!
To put things in perspective, the Bench then envisages in para 2 that, “The interim bail application of the petitioner has been dismissed by the ld. ASJ, Dwarka Court, vide order dated 21.05.2022 wherein the ld. ASJ opined that the ground on which the petitioner has approached the court for bail, i.e. getting her daughters admitted to school, is not of such a nature which can be termed as a compelling circumstance or intolerable grief. The application was thus dismissed by the ld. ASJ.”
As it turned out, the Bench then points out in para 3 that, “The court is informed by the learned counsel for the applicant that the elder sibling of the child is studying in the secondary school branch of Co-Ed Pry. School, West Zone, New Delhi – 110059. It is prayed that the child in the present case may be admitted in Nursery Class in the aforementioned school.”
As we see, the Bench then discloses in para 4 that, “In the present case, it has come to notice of the court that the applicant, i.e. the mother of the minor child, is in judicial custody due to her alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain.”
As things stand, the Bench then brings out in para 5 that, “During the course of arguments on the bail application a query was put forth by this court and the court was informed that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. The same has been duly verified by the Investigating Officer (IO) who has filed a reply from the Principal of SDMC, Co-Ed Pry. School, West Zone, New Delhi – 110059, wherein it is stated that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.”
While unequivocally underscoring the huge importance of education in a child’s life, the Bench then opines in para 6 that, “In my opinion, education is the first step towards tackling social evils, especially poverty, inequality and discrimination. Every child, irrespective of caste, religion, sex, or economic background has been guaranteed right to education. An educated individual can make informed decisions, first for themselves, and then be able to contribute constructively towards the progress of the nation and society at large.”
While sending out the most simple, straightforward and strong message to all the Judges, the Bench then mandates in no uncertain terms in para 7 that, “Once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. The court should not fail in its duty at any point of time in this regard.”
Most remarkably, the Bench then further adds in para 8 that, “Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences, on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. This court is duty bound to enforce fundamental rights of every citizen and in this case right to education of the child.”
Most forthrightly, the Bench then also unambiguously maintained in para 9 that, “The Constitution guarantees protection of independent identity and individuality to every Indian citizen. Constitution of India is the supreme law of the land and this court is bound to protect the rights of every individual enshrined and guaranteed by the same. Especially in the present case, where the right to education of a child is at stake, it is imperative that the court intervenes timely and upholds the right envisaged in the Constitution to protect the future of the child.”
Needless to say, the Bench then notes clearly in para 10 that, “This court is of the opinion that the child must get admitted in a school at the earliest so that shadow of no unpleasant happening falls upon the child’s life to darken her future.”
Most significantly, the Bench then state in para 11 what constitutes the cornerstone of this learned judgment that, “At the cost of repetition, it is opined that in the present case, the child is an individual Indian citizen and enjoys her own Fundamental Rights given to her by virtue of her being born in India, Right to Education is the child’s fundamental right. In the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is education of the child. It is not only in cases dealing with family disputes that the rights and welfare of the child should be considered but also in the cases as the present one, the courts can become and act as the parent of the child and ensure that the child is not deprived of its Fundamental Right to Education. Depriving any child of education due to family circumstances should not be allowed to every extent possible. An educated child educates the entire family and becomes an asset to the nation.”
Quite forthrightly, the Bench then directs in para 12 that, “In the circumstances, at this stage, this court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year i.e. 2022-23. It is therefore directed that the SHO concerned will get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education.”
Furthermore, the Bench then lays down in para 13 that, “The Principal of the school will extend full cooperation for the admission of the child. A compliance report will be filed within 10 days. The identity of the child and the school in question is not being mentioned in this order to protect the privacy and dignity of the child.”
What’s more, the Bench then aptly points out in para 14 that, “It is submitted by the counsel for the petitioner that the petitioner is satisfied with the relief that has been granted. Considering the petitioner was seeking bail only on the ground that she needed to fulfil her responsibilities as a parent and get her child admitted to school, permission is now sought by the counsel of the petitioner to withdraw the present application.”
As a corollary, the Bench then reveals in para 15 that, “In view of this order, the learned counsel for the applicant states that she is satisfied with the order and does not press her application at this stage. Permission is sought to withdraw the same.”
In this context, the Bench then quite ostensibly directs in para 16 that, “In terms of the above, the application is dismissed as withdrawn.” Finally, the Bench then concludes by holding in final para 17 that, “Ordered accordingly.”
All told, it definitely merits no reiteration that all the courts must in similar such cases emulate what the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma of Delhi High Court has laid down so elegantly, eloquently and effectively in this noteworthy case! In essence, the Courts must definitely become the voice of the voiceless as we see so very ostensibly in this leading case. It also must be definitely underscored that the Courts must also prima facie ensure that the process itself does not become the punishment due to which the long term interest of the child gets jeopardised. No doubt, we saw how in this case the Delhi High Court so very commendably took suo motu cognizance to facilitate the school admission of the child whose parents are in custody and thus ensured that the paramount interest of the child to education is safely protected. Of course, it must be said that this is definitely the best way in which ideally all the Courts in our country must always act and not just turn away their face citing process, procedure etc! There can be certainly just no denying or disputing it!
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