The recent judgment of the Supreme Court relating to vaccine policy of the Centre, wherein the Court employed a ‘dialogic jurisdiction’ in providing a forum for stakeholders to raise constitutional grievances, has been criticized by a few as an incursion of the judiciary into a policy matter and an example of unwanted judicial activism and overreach.
Such criticism is misplaced. The judgment is, in fact, a model example of the role of a Court in a Constitutional democracy. Aharon Barak, the former Chief Justice of the Supreme Court of Israel, has stated that Court has an important role in bridging the gap between law and society and in protecting the fundamental values of democracy, with human rights at its centre. Barak, while highlighting the example of Nazi-ruled Germany, pointed out that for safeguarding democracy, it is essential to safeguard the basic human values, fundamental rights and dignity. Therefore, in a democratic system, the constitution has to be interpreted in a way that fulfills the ideals which protect human rights and dignity of an individual. The Supreme Court has repeatedly emphasized that it cannot remain passive, inactive or silent spectator if policy is capricious, arbitrary or grossly abusive. This is precisely what has been done by the Court in the vaccine case.
The Court dealt with vaccine policy keeping in mind the second wave of the COVID-19 pandemic that had devastated the country and left individuals in the lurch, exposing the tremendous inadequacies of system. The unreasonableness and capriciousness of the policy was evident from the fact that contagious disease is a Union-list subject and it is the primary responsibility of the UoI to contain such disease, prescribe medical assistance etc.
The Union argued that courts should not interfere and the Government’s wisdom should be trusted as, in battling this unprecedented crisis, it needs discretion in formulating policy in larger interest. This was negated by the Court holding that separation of powers does not exclude its jurisdiction to review the government’s policies in terms of their being reasonable, fair and non-arbitrary.
The Court forensically discussed issues relating to vaccine distribution between different age groups, vaccine procurement process, and the augmentation of vaccine availability in India. The court asked the Centre apt questions with respect to its Liberalized Vaccination Policy, thus, testing the policy on the anvil of reasonableness. The questions highlighted unexplained logical discrepancies in the vaccine procurement policy. For example, on Centre’s submissions that it negotiated a better price by placing large purchase orders, and that the differential pricing was introduced to encourage competition and lower the prices, the Court rightly asked the Union why this rationale was not used to acquire 100% of the doses which would have increased the size of the purchase order. The Court further sought clarification from the Centre on how Rs. 35000 crores earmarked in the Union Budget 2021-2022 for procuring vaccines has been spent. The Court also touched upon important aspects of vaccine accessibility through CoWIN portal such as on the ground of digital divide between urban and rural India, accessibility to CoWIN of visually impaired persons etc.
Further, the policy of the Union of asking States to purchase vaccines at a higher price, and thereby allowing these vaccine manufacturers to make higher profits, ran counter to the position adopted by the Centre before the WTO. There, the Centre asked for a waiver of Intellectual Property Rights relating to vaccines, arguing that commercial interests must give way to humanitarian considerations, in the wake of this unparalleled crisis faced by humanity across the globe.
Having realized the lacunae in the existing policy, within a week of this judgment, the Prime Minister in his address to the nation announced that Centre will procure vaccines for the States along with free vaccination for everyone above 18 years of age, including on-the-spot registration. This fundamental change in Centre’s policy for vaccine procurement was a consequence of the above noted judgment of the Supreme Court.
This judgement is a solemn reminder of why the people of this country repeatedly repose their faith in the Supreme Court as the highest sentinel of the rights of the common man. It was a bold and confident exercise of powers by a Court well-aware of its responsibilities in a constitutional democracy.
The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.
For the latest news Download The Daily Guardian App.
Section 66A of IT Act and its impact: An analysis
In March 2015, the Supreme Court of India in the case of Shreya Singhal vs. Union of India declared Section 66A of the Informational Technology Act, 2020 to be void ab initio. The section made it punishable to send any information through a computer resource or communication device for the purpose of causing “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, or ill-will fall”. The vagueness of the section rendered it incapable of distinguishing between mere discussion or advocacy and when such discussion or advocacy leads to incitement. Therefore, the apex court rightly struck down the section for being vague and violative of the freedom of speech and expression guaranteed by the Indian Constitution, by explicitly stating “What may be offensive to one, may not be offensive to another”.
Normally, declaration of unconstitutionality renders a provision void ab initio and any previous, pending or subsequent actions taken under said provision comes to an immediate halt. However, even after six years of being declared void, the notorious section 66A is still in effect – not only are some of the pending cases still active, but fresh cases are being instituted by the police and judicial administration to prosecute individuals who are found in violation. As of July 2021, independent data suggest as many as 810 cases registered under section 66A are still pending in district courts across 11 states.Official data in this regard is unavailable as the National Crime Records Bureau (NCRB), which is the body responsible for collection and publication of data pertaining to crimes in India, declared in 2016 that it will not publish data on Section 66A in subsequent reports. Interestingly, NCRB published this statement after it stating that the previously published record in 2015 and 2016 which showed that despite the Supreme Court’s ruling, people were still being arrested under the section, was incorrect due to internal data processing system. However, there is ample evidence of the section still being used. For instance, in 2017 a case under Section 66A was registered against an 18 year old Zakir Ali Tyagi who posted a comment on Facebook, after Uttarakhand High Court declared River Ganges to be a living entity, asking that since “The Ganga has been declared a living entity; will criminal charges be initiated if someone drowns in it?”. Further, in the year 2016, the magistrate was notified by the prosecutor in the case of State v. Mohd. Sakir, that the sole section under which the accused was being tried upon had been declared unconstitutional by the apex court and yet a non-bailable warrant was issued against the accused.
After the Supreme Court was approached by a human rights organisation to direct collection of data and to direct state machineries to comply with the Shreya Singhal judgement, the apex court in 2019 granted the same. During the proceedings, it was also brought to notice by the Union of India that all state governments have been already asked to furnish data on Sec 66A cases and also to close them. Some states, like Kerala readily responded that there were 19 pending cases and the same were being closed. However, despitethe direction, cases are still being registered. In March 2020, the Patna High Court granted bail to two petitioners who were registered under sec. 66A and had been in custody for 6 months.
It has been observed that even when the unconstitutionality of section 66A is brought to notice during proceedings, the charge changes in form and not substance. As in the aforementioned case of Zakir Ali Tyagi, the allegations were converted to Section 66, regarding computer related offences, and thereafter once he was released on bail, the offence of sedition was added. Further, in the absence of Sec 66A, an increase in cases of Sec 66 and Section 67, offence regarding online obscenity has been noted.
The systemic failure to ensurecomplete termination of the arbitrary usage of unconstitutional laws results in arbitrary actions by the law enforcement machineries and it undermines freedom of speech and expression as well as the judicial precedential authority.This problem needs more rigorous means to discontinue section 66A from application for all practical purposes, even on the lowest levels of law enforcement. Some possible solutions could be directing supervisory officers at police stations to overlook that no new complaints are registered under the unconstitutional provision. If a complaint is still registered, coercive action must be taken against the erring officer, and if need be, register cases under Sec 166A of the Indian Penal code which provides punishment for disobeying directions under the law. Another point, as pointed out by the Attorney General of India, instead of mentioning in footnotes, unconstitutional provisions should be emphasised upon with brackets near such provisions. Lastly, since most states register complaints under the Criminal Tracking Network and systems (CTNS), which is online in nature, such sections should be disabled.
In a recent study, India ranked 25 out of 33 countries, even lower than Russia, in free speech and it was found that there’s a stark decrease in freedom from 2015 to 2021. In light of allthe facts considered, the factors to assess restriction on freedom of expression need to account for both legal and illegal application of law. Lastly, undermining of the right to free speech in the largest democracy in the world should act as a reminder to Martin Luther King Jr.’s words “Injustice anywhere is a threat to justice everywhere”.
Direction to undergo other sentences after life sentence illegal: SC
In a well-reasoned, well-analysed, well-articulated, well-substantiated, well-presented and well-concluded judgment titled Imran Jalal @ Bilal Ahmed @ Kota @ Saleem @ Hadi Vs State of Karnataka in Criminal Appeal No. 636 of 2021 (Arising out of SLP (Crl.) No. 5183 of 2021 arising out of Diary No. 21455 of 2020) delivered just recently on July 19, 2021, the Apex Court has minced just no words to make it absolutely clear that direction to undergo other sentences after life sentence illegal. The Supreme Court Bench comprising of Justice Uday Umesh Lalit and Justice Ajay Rastogi observed that a court cannot stipulate that other sentences would begin after expiration of life sentence awarded to convict. Very rightly so!
In this case, the Trial Court had convicted the accused Imran Jalal under Sections 121 (waging or attempting to wage war, or abetting waging of war, against the Government of India), 121A (Conspiracy to commit offences punishable by Section 121), 122 (Collecting arms, etc with intention of waging war) of the Indian Penal Code, Section 5(b) of Explosive Substances Act, Sections 20, 23(1) of Unlawful Activities (Prevention) Act, 1967, and Sections 25(1A), 26(2) of Arms Act. The Trial Court had directed that the sentence of imprisonment for the offence punishable under Section 5(b) of Explosive Substances Act, 1908, which is the rigorous imprisonment for 10 (ten) years, shall commence at the expiration of other sentences of imprisonments (life imprisonment) for IPC offences and other sentences under other provisions). The High Court of Karnataka had upheld the conviction and sentence awarded to the accused.
To be sure, before the Apex Court the accused-appellant contended that this direction [that the sentence of imprisonment for 10 years would commence at the expiration of other sentences of imprisonment] runs counter to the decision of the Constitution Bench in Muthuramalingam v State. While agreeing with the appellant’s contention, the Bench then accordingly modified the sentence part of the Trial Court’s order. Very rightly so!
To start with, after granting leave in para 1, the Bench of Apex Court comprising of Justice Uday Umesh Lalit and Justice Ajay Rastogi then puts forth in para 2 that, “This appeal challenges the judgment and order dated 29.11.2019 passed by the High Court of Karnataka at Bengaluru in Criminal Appeal No.2066 of 2016.”
To put things in perspective, the Bench then envisages in para 3 that, “The aforesaid appeal had challenged the conviction and sentence imposed upon the appellant by the Court of 55th Additional City Civil & Sessions Judge (CCH-56), Bangalore City, in Sessions Case No.1031 of 2008. The order of sentence passed by the Trial Court was as under:
“1) The accused No.1 is sentenced to undergo imprisonment for life and shall pay the fine of Rs.50,000/- (Rupees fifty thousand only) for the commission of offence punishable under section 121 of IPC and in default of payment of fine amount he shall further undergo the imprisonment for 2 (two) years.
2) The accused No.1 is sentenced to undergo simple imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under section 121-A of IPC and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
3) The accused No.1 is sentenced to undergo simple imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under Section 122 of IPC and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
4) The accused No.1 is sentenced to undergo rigorous imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under Section 5(b) of Explosive Substances Act, 1908 and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
5) The accused No.1 is sentenced to undergo simple imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under Section 25(1A) of Arms Act, 1959 and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
6) The accused No.1 is sentenced to undergo simple imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under Section 26(2) of Arms Act, 1959 and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
7) The accused No.1 is sentenced to undergo imprisonment for life and shall pay the fine of Rs.50,000/- (Rupees fifty-thousand only) for the commission of offence punishable under Section 20 of Unlawful Activities (Prevention) Act, 1967 and in default of payment of fine amount he shall further undergo the simple imprisonment for 2 (two) years.
8) The accused No.1 is sentenced to undergo imprisonment for life and shall pay the fine of Rs.50,000/- (Rupees fifty thousand only) for the commission of offence punishable under Section 23(1) of Unlawful Activities (Prevention) Act, 1967 and in default of payment of fine amount he shall further undergo the simple imprisonment for 2 (two) years.
9) Except the sentence of imprisonment for the offence punishable under section 5(b) of Explosive Substances Act, 1908, which is the rigorous imprisonment for 10(ten) years, the other sentences of imprisonments, which are simple in nature, shall run concurrently. The sentence of imprisonment for the offence punishable under section 5(b) of Explosive Substances Act, 1908, which is the rigorous imprisonment for 10(ten) years, shall commence at the expiration of other sentences of imprisonments.
10) The accused No.1 is entitled for set-off, under section 428 of Cr.P.C., of the period of detention undergone during the period of trial of this case.””
As it turned out, the Bench then states in para 4 that, “The order of conviction and sentence passed by the Trial Court having been affirmed by the High Court, the present appeal has been preferred. The notice in the matter was confined to the nature and quantum of sentence imposed upon the appellant.”
On the one hand, the Bench points out in para 6
that, “The only submission advanced by Mr. Siddhartha Dave, learned Senior Advocate, on nature and quantum of sentence is that the last part of paragraph 9 of the order of sentence which observed that the sentence of imprisonment for 10 years awarded in terms of paragraph 4 of the order of sentence would commence at the expiration of other Vsentences of imprisonment is incorrect.
Taking exception to this direction, Mr. Dave submits that this direction runs counter to the decision of the Constitution Bench of this Court in Muthuramalingam v. State (2016) 8 SCC 313. Paragraphs 18 and 35 of the decision were to the following effect:
“18. The legal position is, thus, fairly well settled that
imprisonment for life is a sentence for the remainder of the life of Vthe offender unless of course the remaining sentence is commuted or remitted by the competent authority. That being so, the provisions of Section 31 under CrPC must be so interpreted as to be consistent with the basic tenet that a life sentence requires the prisoner to spend the rest of his life in prison. Any direction that requires the offender to undergo imprisonment for life twice over would be anomalous and irrational for it will disregard the fact that humans like all other living beings have but one life to live. So understood Section 31(1) would permit consecutive running of sentences only if such sentences do not happen to be life sentences. That is, in our opinion, the only way one can avoid an obvious impossibility of a prisoner serving two consecutive life sentences. … … …
35. We may, while parting, deal with yet another dimension of this case argued before us, namely, whether the court can direct life sentence and term sentences to run consecutively. That aspect was argued keeping in view the fact that the appellants have been sentenced to imprisonment for different terms apart from being awarded imprisonment for life. The trial court’s direction affirmed by the High Court is that the said term sentences shall run consecutively. It was contended on behalf of the appellants that even this part of the direction is not legally sound, for once the prisoner is sentenced to undergo imprisonment for life, the term sentence awarded to him must run concurrently. We do not, however, think so. The power of the court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 CrPC. The court can, therefore, legitimately direct that the prisoner shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31 CrPC. The converse however may not be true for if the court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence. Whether or not the direction of the court below calls for any modification or alteration is a matter with which we are not concerned. The regular Bench hearing the appeals would be free to deal with that aspect of the matter having regard to what we have said in the foregoing paragraphs.” (Emphasis supplied).”
As against this, the Bench then states in para 7 that, “On the other hand, Mr. Shubhranshu Padhi, learned Advocate for the State has relied upon paragraph 25 of the decision, which is to the following effect:
“25. In O.M. Cherian case [O.M. Cherian v. State of Kerala, (2015) 2 SCC 501 : (2015) 2 SCC (Cri) 123] the prisoner was convicted and sentenced to imprisonment for the offences punishable under Sections 498-A and 306 IPC. The courts below had in that case awarded to the convicts imprisonment for two years under Section 498-A IPC and seven years under Section 306 IPC and directed the same to run consecutively. Aggrieved by the said direction, the prisoners appealed to this Court to contend that the sentences awarded to them ought to run concurrently and not consecutively. The appeal was referred [O.M. Cherian v. State of Kerala, (2015) 2 SCC 501, 506-507 (para 5)] to a larger Bench of three Judges of this Court in the light of the decision in Mohd. Akhtar Hussain v. Collector of Customs [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921]. Before the larger Bench, the prisoners relied upon Mohd. Akhtar Hussain case [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] and Manoj v. State of Haryana [Manoj v. State of Haryana, (2014) 2 SCC 153 : (2014) 1 SCC (Cri) 763] to contend that since the prisoners were found guilty of more than two offences committed in the course of one incident, such sentences ought to run concurrently. This Court upon a review of the case law on the subject held that Section 31 CrPC vested the court with the power to order in its discretion that the sentences awarded shall run concurrently in case of conviction of two or more offences.
Please read concluding on thedailyguardian.com
declared that it was difficult to lay down a straightjacket rule for
the exercise of such discretion by the courts. Whether a sentence
should run concurrently or consecutively would depend upon the nature
of the offence and the facts and circumstances of the case. All that
could be said was that the discretion has to be exercised along
judicial lines and not mechanically. Having said that, the Court
observed that if two life sentences are imposed on a convict the court
has to direct the same to run concurrently. That is because sentence
of imprisonment for life means imprisonment till the normal life of a
Be it noted, the Bench then enunciates
in para 8 that, “In the instant case, the appellant was awarded life
sentence on three counts and sentence of 10 years each on five counts,
out of which it was only the sentence in respect of the offence
punishable under Section 5(b) of the Explosive Substances Act, 1908,
which was subject matter of the last part of the directions in
paragraph 9 of the order of sentence.”
Most significantly, the Bench then makes no bones to
make it known in para 9 that, “Paragraph 9 of the order of sentence
contemplated commencement of the sentence awarded under paragraph 4 of
the order of sentence, after the expiration of other sentences of
imprisonment. It would, therefore, mean that the sentence in paragraph
4 would begin after the expiration of other sentences including
sentence for life awarded under three counts. This stipulation would
be against the law laid down by this Court in Muthuramalingam v State
(2016) 8 SCC 313, especially paragraph 35 of the decision as quoted
Finally and far most significantly, the Bench then holds
in para 10 that, “Considering the fact situation, in our view, the
following sentence appearing in paragraph 9 of the order of sentence:
“The sentence of imprisonment for the offence punishable under section
5(b) of Explosive Substances Act, 1908, which is the rigorous
imprisonment for 10 (ten) years, shall commence at the expiration of
the other sentences of imprisonments.”
must stand deleted. Ordered accordingly.”
At the risk of repetition, it has to be said again
that all the courts starting right from the Trial Courts to the Apex
Court must always while ruling in similar such cases always remember
the sum and substance of this notable ruling that direction to undergo
other sentences after life sentence is illegal. Without mincing any
words, the Bench of Apex Court comprising of Justice Uday Umesh Lalit
and Justice Ajay Rastogi have very clearly, cogently, commendably and
convincingly held in this latest, learned, laudable and landmark
judgment that a court cannot stipulate that other sentences would
begin after expiration of life sentence awarded to convict. This must
be always adhered to in letter and spirit. The lower courts especially
err many times on this but from now onwards they must always adhere to
what has been laid down so unambiguously by the two Judge Bench of the
Apex Court in this noteworthy case!
Sanjeev Sirohi, Advocate,
Not permitting mentally challenged rape victim to undergo medical termination of unwarranted pregnancy violative of her bodily integrity, says Madhya Pradesh HC
In a well-written, well-articulated, well-reasoned and well-substantiated judgment titled X vs State of Madhya Pradesh and others in Writ Petition No. 12155/2021 that was delivered just recently on July 14, 2021, the Madhya Pradesh High Court has recently, rightly and remarkably observed that not permitting a rape victim, suffering from severe mental problems, to undergo Medical Termination of unwarranted pregnancy would be violative of her bodily integrity which would not only aggravate her mental trauma but would also have devastating effect on her overall health including on psychological and mental aspects. This was held so while allowing medical termination of pregnancy of 23 year old rape victim survivor whose mental age was found to be that of minor, being only 6 years. It was a Division Bench of Madhya Pradesh high Court comprising of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla who pronounced this brief, brilliant, bold and balanced judgment.
To start with, this latest, learned, laudable and landmark judgment authored by Chief Justice Mohammad Rafiq for himself and Justice Vijay Kumar Shukla of Madhya Pradesh High Court sets the ball rolling by first and foremost observing in para 1 that, “This writ petition has been filed by praying for a direction to the respondents to allow her daughter (hereinafter referred to as “Victim-A”) to undergo medical termination of pregnancy at the State expense. The petitioner has also challenged the constitutional validity of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (for short “the MTP Act”) to the extent it stipulates a ceiling of 24 weeks for medical termination of pregnancy with the prayer the same be declared as ultra virus Article 14 and 21 of the Constitution of India. The petitioner has also challenged the order dated 6.7.2021 passed by the Third Additional Sessions Judge, Hoshangabad in MJC-R No.207/2021 rejecting application of the petitioner for permission to terminate pregnancy of Victim-A.”
While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The petitioner is resident of Village Baagratwa, Tehsil Babai, District Hoshangabad of State of Madhya Pradesh. She belongs to Scheduled Tribe community. She is wholly illiterate, living below poverty line. She does not have any moveable or immoveable property. According to the petitioner, she and her husband work as a labourer. Her daughter Victim-A is aged about 23 years and she is mentally retarded. The petitioner and her husband left their village for Ujjain for earning livelihood by doing labour work. When they returned back after some time, the petitioner found that her daughter Victim-A was behaving in a peculiar manner. Their daughter Victim-A informed them in sign language about certain stomach pain. On making further enquiry, she learnt that one of her neighbours had committed rape upon her. She immediately took her to the doctor, who found that she was pregnant. The petitioner lodged a First Information Report with the Police Station Babai. District Hoshangabad, which has been registered for offence under Section 376(2)(1) of the IPC as Crime No.301/2021. The accused was arrested on 20.6.2021. The police got Victim-A medically examined and also obtained the medical report about her mental health. Victim-A was thereafter sent for further medical examination on 22.6.2021, upon which it was confirmed that she was carrying pregnancy of 22 weeks. The petitioner immediately filed an application under Section 3 of the MTP Act on 30.6.2021 before the Judicial Magistrate First Class, Hoshangabad, seeking permission for termination of her pregnancy, who rejected the same on 2.7.2021. Since 3 rd and 4th July, 2021, being Saturday and Sunday, were holidays, the petitioner filed application under Section 3 of the MTP Act with the same prayer before the Third Additional Sessions Judge, Hoshangabad on 5.7.2021, which was registered as MJC-R No.207/2021. The same was however rejected on the very next working day i.e. 6.7.2021 under the ignorance about the latest law whereby maximum length of pregnancy under Section 3(2)(b) of the Act, which was earlier 20 weeks, was raised to 24 weeks by amendment to that effect by the Act 8 of 2021 published in the Gazette of Government of India on 25.3.2021.”
To be sure, the Bench then after observing in para 7 that, “We have given our anxious consideration to rival submissions, perused the material on record and studied the cited precedents.” then goes on to hold in para 8 that, “A perusal of the afore-quoted opinion of the Medical Board in condition no.1 indicates that the survivor is a case of severe mental retardation with behavioral problems. Mental age of the survivor is approximately 6 years. She is unable to take care of herself and therefore, obviously she will not be in a position to take care of the baby, if she delivers the one. In conclusion no.2 of the aforesaid opinion of the Medical Board, the victim-A is opined to be a single live intrauterine fetus of gestational age by USG is 25 week 5 days +/- 2 weeks with the possibility of age being either less or more by 2 weeks, which is indicated by “+/- of 2 weeks”. This is also the opinion given by the Radiologist. We have to therefore now examine whether in the facts like these, this Court would be justified in refusing to grant permission for medical termination of the pregnancy on the law available on the subject.”
It would be instructive to mention here that the Bench then points out in para 9 that, “Section 3 of the MTP Act is relevant for the purpose of deciding the present case, which reads as under:-
“Section 3. When pregnancies may be terminated by registered medical practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks, in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are of the opinion, formed in good faith, that,-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health ; or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Explanation 1.- For the purposes of Clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.- For the purposes of Clause (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
(2-A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.
(2-B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.
(2-C) Every State Government or Union territory, as the case may be, shall by notification in the official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.
(2-D) The Medical Board shall consist of the following, namely-
(a) a Gynaecologist;
(b) a Paediatrician
(c) a Radiologist or Sonologist; and
(d) Such other number of members as may be notified in the Official Gazette by the State Government or Union Territory, as the case may be.
(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.””
Please read concluding on thedailyguardian.com
Be it noted, the Bench then found it quite strange as is mentioned in para 10 that, “It is indeed surprising that the Third Additional Sessions Judge, Hoshangabad relied on unamended Section 3 of the MTP Act rather than considering the amended provision, which has now increased the permissible outer limit for termination of pregnancy from 20 weeks to 24 weeks. This means that if the law was correctly read and applied by him, the permission of medical termination of the pregnancy could have been granted as the period of 24 weeks had yet not passed on the date the said Court was approached. Be that as may be, Section 3(2)(b), which is relevant for deciding the medical termination of pregnancy, inter alia provides that subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are of the opinion, formed in good faith that; (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. The first Explanation thereto relates to Clause (a), which provides that where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. This Explanation may not be relevant for deciding the present case, but the second Explanation of Section 3(2) would in the facts of the present case have bearing on the interpretation of Section 3(2)(i) of the MTP Act, which stipulates that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (emphasis supplied).”
To put things in perspective, the Bench then envisages in para 11 that, “Admittedly, in the present case, the Victim-A, daughter of the petitioner, was subjected to rape and according to experts, her mental age is only 6 years and therefore, regardless of her biological age, the consent for sexual intercourse in her case would be irrelevant. The First Information Report was lodged by her mother for the offence of Section 376(2)(1) of the IPC against the accused with the Police Station Babai, District Hoshangabad in Crime No.301/2021. This therefore would bring the case of her daughter within the purview of Explanation (2) which provides that the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman, who in this case is Victim-A. Moreover, what is peculiar about this case is that the Medical Board itself has opined that duration of pregnancy is variable by two weeks. The victim is unable to take care of self, her hygiene is poor, her intellectual abilities are poor, her mental age is only 6 years and therefore, obviously she will not be in a position to take care of the baby, even if she delivers it.”
As it turned out, the Bench then observes in para 12 that, “This Court is cognizant of the fact that the Victim-A is mentally retarded, and her mental age having been adjudged by the experts to be only 6 years, therefore, all the steps on her behalf could be and were in fact taken by her mother, who is her natural guardian. She immediately filed an application before the Court of JMFC, Hoshangabad on 30.6.2021 which was rejected on 2.7.2021 and thereafter, immediately on the very first next working day i.e. on 5.7.2021, she filed the application before the Third Additional Sessions Judge, who being ignorant of the amended provision, which came into effect from 25.3.2021, rejected the same under the misconception that the outer limit for grant of permission of medical termination of pregnancy was 20 weeks and not 24 weeks. Sub-section (4) of Section 3 requires consent of the guardian of a minor, or a major who is mentally ill person. The exceptions to this rule of consent have been given in Section 3(4)(a) of the MTP Act, which provides that when the pregnant woman is below eighteen years of age or is a “mentally ill” person, then consent of her guardian would have to be obtained. Since in the present case the mental age of the Victim-A was determined approximately 6 years, her pregnancy can be medically terminated with the consent of the guardian who is actually natural mother of Victim-A. The permission/consent has to be therefore necessarily assumed.”
While citing the relevant case laws, the Bench then observes in para 13 that, “In Murugan Nayakkar (supra), the petitioner, who was 13 years of age, was a victim of alleged rape and sexual abuse. She preferred a writ petition for termination of her pregnancy. The Medical Board opined that termination of pregnancy at this stage or delivery at term will both have equal risk to the mother. The Supreme Court held that considering the age of the petitioner, trauma which she prima facie suffered due to sexual abuse and the agony she is going through at the present, it would be appropriate to allow termination of pregnancy. In Tapasya Umesh Pisal Vs. Union of India and others (supra), the victim, who was 24 years old, was seeking permission to undergo medical termination of the pregnancy, which had progressed to 24 weeks. The Supreme Court held that it is difficult to refuse the permission to the petitioner to undergo medical termination of pregnancy as it is certain that if the foetus is allowed to be born it would have a limited life span with serious handicaps which cannot be avoided. In Kalpana Singh vs. Government of NCT of Delhi & others (supra), the victim had pregnancy of 25 weeks and 5 days, which was permitted to be terminated medically.”
Adding more to it, the Bench then while citing a landmark case observes in para 14 that, “The Supreme Court in Suchita Srivastava and Another Vs. Chandigarh Administration reported in (2009) 9 SCC 1, held that there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. Reproductive rights include a woman’s entitlement to carry pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women, there is also a “compelling State interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices. The Lordship further held that ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a “continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”. The Explanations to Section 3 however also contemplate termination of pregnancy when the same is the result of a rape or a failure of birth control methods since both of these eventualities have been equated with a “grave injury to the mental health” of a woman.”
Furthermore, the Bench then observes in para 15 that, “This Court in Writ Petition No.20961/2017-Sundarlal Vs. The State of M.P. & others, decided on 6.12.2017, was dealing with the case of minor daughter of the petitioner, who was kidnapped and a First Information Report at his instance was registered under Sections 363, 366, 376 of the IPC read with Section 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 against the accused. The police secured the custody of the minor daughter of the petitioner, who was handed over to the petitioner. On medical examination, she was found to be carrying pregnancy of about 16 weeks. The petitioner being guardian gave consent for termination of the pregnancy of his minor daughter. This Court while directing constitution of a committee of three medical practitioners to form bonafide opinion as to termination of pregnancy and retention of DNA sample of fetus and providing all medical assistance and care to the victim observed as under:-
“12. In Explanation I, the law makers made it clear that where pregnancy is alleged by victim because of rape, a presumption can be drawn that such pregnancy constitute a grave injury to the mental health of pregnant woman. In the present case, this is not in dispute that victim is a minor and petitioner is praying for termination of pregnancy because her daughter is a rape victim. This court in Hallo Bi (supra) (Hallo Bi @ Halima Vs. State of M.P. & others 2013 (1) MPHT 451) opined that we cannot force a victim of violent rape/forced sex to give birth to a child of a rapist. The anguish and the humiliation which the victim is suffering daily, will certainly cause a grave injury to her mental health. Not only this, the child will also suffer mental anguish in case the lady gives birth to a child.””
Going ahead, the Bench then observes in para 16 that, “The Rajasthan High Court in Victim (A) Vs. State of Rajasthan & others, S.B.Criminal Writ Petition No.148/2020, decided on 26.2.2020, was dealing with the case where the Medical Board had opined the age of the fetus to be 23 +/- 2 weeks. Relying on the decision of the Supreme Court in Meera Santosh Pal & others Vs. Union of India & others (2017) 3 SCC 462, where permission was granted for termination of pregnancy of a term of 24 weeks and another judgment of the same High Court in Nisha Vaishnav Vs. State of Rajasthan S.B. Civil Writ Petition No.1271/2019, decided on 29.1.2019, the High Court allowed termination of pregnancy, in view of aforesaid Explanation (2) to Section 3(2) of the MTP Act as it was a case where a minor victim was subjected to rape and held that anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the petitioner.”
As we see, the Bench then observes in para 17 that, “In ABC Vs. State of Chhattisgarh & others, Writ Petition (C) No.2294/2021, vide judgment dated 25.06.2021, the High Court of Chhattisgarh dealing in a case of rape victim bearing pregnancy of 14 weeks and 3 days, relying on the judgment of Supreme Court in Meera Santosh Pal (supra) permitted the termination of pregnancy, holding thus:
“8. The explanation clause of Section 3 of MTP Act takes within its ambit not only the physical injury but also to mental injury and anguish. It is obvious that if the victim is subjected to rape and if she is forced to give birth to a child in the social scenario she has to face a life time anguish apart from the fact the child who is born will also have to face disdain of the society. Under the circumstances, it is directed that the petitioner shall be entitled to Medical termination of pregnancy. In order to carry out the pregnancy State shall form a panel of expert doctors at the District Hospital Durg as early as possible. The hospital shall take due care of the petitioner’s health and provide her all medical support. It is further directed that the DNA of the child shall also be preserved considering the fact that the victim has already lodged a report under Section 373 which will eventually be required at a future date. The petitioner is directed to appear at District Hospital Durg on Wednesday i.e. 23.06.2021.””
Moving on, the Bench then brings out in para 18 that, “The Bombay High Court in X Vs. Union of India & others 2018 (2) Mh.L.J. 46, was dealing with a case of victim who was mentally retarded, deaf and dumb and her pregnancy was of 18-19 weeks. The case of the guardian before the Court, like in the present case, was that the victim was unable to take care of herself and therefore, she would not be able to take care of the fetus. The Court relying on the judgment of the Supreme Court in Suchita Srivastava (supra) held as under:-
“13. The crucial question here is whether permission can be granted to terminate the pregnancy of 22 weeks in this case. The victim in this case is deaf, dumb and mentally retarded; therefore, she is unable to make a choice on her own whether to terminate the pregnancy or to continue with it. She has no such intellectual capacity, therefore, her guardian should be given that right to make choice. This case is also required to be considered from the physical point of view of the victim. Victim is deaf, dumb and mentally retarded. She is unable to take any decision. In fact, she is not even aware that she has been raped and she is pregnant. It has been stated by her guardian and brother that she is not even able to take care of herself. Question therefore arises under such circumstance as to how she would take care of child to be borne? It has been stated in the medical certificate that “On Paediatrics examination, survivor has gross development delay with Down Syndrome”. If we consider “Down Syndrome”, it means “is a genetic disorder caused by the presence of all or part of a third copy of chromosome”. It is typically associated with physical growth delays, characteristic facial features and mild to moderate intellectual disability. The medical literature would show that there is no cure to the “down syndrome”. No doubt, a person with down syndrome may lead a normal life, but in the present case, when the victim is unable to take care of herself, there is every possibility that she will not be able to take care of the foetus. Though the certificate states that the risk of termination of pregnancy is within normal acceptable limits; it would be hazardous to ask her to bear the pregnancy. It is not only dangerous to her, but dangerous to the unborn child also. Apart from danger to the life of the petitioner, this Court has to take note of the psychological trauma the petitioner is undergoing as a result of carrying unwanted pregnancy. The pregnancy of the petitioner is definitely unwanted for her and it is violative of her personal liberty. Since she is unable to take decision due to intellectual disability, her guardian is taking the said decision, which is in the best interest of the victim and her survival. In the circumstances, we do not notice any impediment in permitting petitioner to terminate unwanted pregnancy.” (emphasis supplied).”
Yet while mentioning another case law, the Bench then states in para 19 that, “In Z Vs. State of Bihar and others (2018) 11 SCC 572, the Supreme Court was dealing with a case of mentally retarded rape victim, who was found to be pregnant and was also HIV positive. The issue before the High Court was whether medical termination of pregnancy should be permitted. The High Court having relied on doctrine of “parens patriae” and “compelling State interest” declined medical termination of pregnancy, which had advanced in 23-24 weeks. The Supreme Court on detailed analysis reversed the verdict of the High Court. Explanation 2 to Section 3(2)(b), which has been relied by the learned counsel for the petitioner, was at that time Explanation 1, which provided that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the same has to be presumed to constitute a grave injury to the mental health of the pregnant woman. The Supreme Court held that once such a statutory presumption is provided, the same comes within the compartment of grave injury to mental health of the victim. Following observations made by the Supreme Court in paras 23 are worth quoting:-
“23. We have already anlaysed in detail the factual score and the approach of the High Court. We do not have the slightest hesitation in saying that the approach of the High Court is completely erroneous. The report submitted by the IGIMS stated that termination of pregnancy may need major surgical procedure along with subsequent consequences such as bleeding, sepsis and anesthesia hazards, but there was no opinion that the termination could not be carried out and it was risky to the life of the appellant. There should have been a query in this regard by the High Court which it did not do. That apart, the report shows that the appellant, who was a writ petitioner before the High Court, was suffering from mild mental retardation and she was on medications and her condition was stable and she would require long term psychiatry treatment. The Medical Board has not stated that she was suffering from any kind of mental illness. The appellant was thirty-five years old at that time. She was a major. She was able to allege that she had been raped and that she wanted to terminate her pregnancy. PMCH, as we find, is definitely a place where pregnancy can be terminated.””
As if this is not enough, the Bench then further adds in para 20 that, “The Division Bench of Bombay High Court in a case on its own motion in XYZ Vs. Union of India and others, 2019 SCC OnLine Bom 560=(2019) 3 Bom CR 400 held that a woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health. The Division Bench referred to certain international treaties concerning human rights. In that context, the Division Bench observed that the pregnancy takes place within the body of a woman and has profound effects on her health, mental well being and life. Thus, how she wants to deal with this pregnancy must be a decision she and she alone can make. The right to control her own body and fertility and motherhood choices should be left to the women alone. The basic right of a woman is the right to autonomy, which includes the right to decide whether or not to get pregnant and stay pregnant.”
It is worth noting that the Bench then observes in para 21 that, “While dealing with Explanation 1 of Section 3(2) of the MTP Act, which after amendment is now Explanation 2, the Bombay High Court in the above case observed that this Explanation expands the concept of “grave injury to mental health” by raising a presumption that anguish caused by any pregnancy as a result of rape shall be presumed to constitute a grave injury to the mental health of a pregnant woman. In fact, the Explanation states that where pregnancy is alleged by a pregnant woman to have been caused by rape, anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of a pregnant woman. Therefore, for the purposes of Section 3(2) of the MTP Act, the expression “grave injury to mental health”, is used in a liberal sense by the legislature itself and further Section 3(3) of the MTP Act, in terms provides that in determining whether continuance of pregnancy would involve such risk of injury to the health as is mentioned in Section 3(2), account may be taken of the pregnant woman’s actual or reasonable foreseeable environment. Section 3(3) of the MTP Act, makes reference not merely to physical injury but also to mental injury. In fact, the aspect of a pregnant woman’s actual or reasonable foreseeable environment has greater nexus to aspect of mental health as compared to physical health, particularly in the present context. This legislative liberality when it comes to expanding the concept of the grave injury to mental health cannot evaporate no sooner the ceiling of 24 weeks prescribed in Section 3(2)(b) of the MTP Act is crossed. If the expression “life” in Section 5(1) of the MTP Act is not to be confined to mere physical existence or survival, then, permission will have to be granted under section 5(1) of the MTP Act for medical termination of pregnancy which may have exceeded 24 weeks, if the continuance of such pregnancy would involve grave injury to the mental health of the pregnant woman.”
Most significantly, the Bench then most commendably holds in para 22 that, “Curial question that we posed to ourselves at the beginning of this judgment still is whether this Court in the facts of the present case, would be justified in refusing to permit medical termination of pregnancy? According to Medical Board, the victim has history of delayed milestone, poor understanding, poor self-care, inabilities to speak, drooling of saliva since childhood. The Medical Board further opined that on examination, it was found that patient is unable to take care of self, her hygiene is very poor and her intellectual abilities are poor. In view of these factors, patient was opined to suffer from SEVERE MENTAL RETARDATION WITH BEHAVIORAL PROBLEMS. The Medical Board was further of the view that mental age of the victim is that of a minor, being only 6 years. According to them, she is unable to take care of herself and, therefore, she would not be able to take care of the fetus. In our considered view, in a situation like this, it would be hazardous to allow her to continue with the pregnancy till full duration. It may even be more dangerous to the unborn child too. In facts like these, this Court cannot lose sight of the psychological trauma the victim would have to undergo all this time. She being not in a position to take a decision due to her intellectual deficiency, decision of her guardian to consent for termination of unwanted pregnancy has to be accepted as a move in her best interest. Not permitting the rape victim in the present case to go in for medical termination of unwanted pregnancy would amount to compelling her to continue to bear such pregnancy for full duration and deliver the child, which would be violative of her bodily integrity, which would not only aggravate her mental trauma but would also have devastating effect on her overall health including on psychological and mental aspects. This is violative of her personal liberty, to borrow the words of the Supreme Court in Suchita Srivastava (supra), (para 22) because “a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India”. In the peculiar facts of the case, her personal integrity has to be respected.”
For the sake of clarity, the Bench then notes in para 23 that, “Explanation 2 to Section 3(2) of the MTP Act has expanded the scope of “grave injury to mental health” by raising a presumption that “the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman”. “Such pregnancy” here refers to pregnancy “alleged to have been caused by rape”. Thus, the legislature has by providing for raising such presumption rather expanded the meaning of the expression “grave injury to mental health” of the rape victim for deciding whether it would constitute a grave risk to the mental health of the pregnant woman in the meaning of Section 3(2)(i) of the MTP Act. The Court would also be entitled to reasonably visualise the environment in which the victim will have to live in immediate foreseeable future to decide the question of her mental health.”
As a corollary, the Bench then holds in para 24 that, “In view of the above discussion, the present writ petition seeking permission for medical termination of pregnancy of the Victim-A, daughter of the petitioner, is allowed. She shall be produced before the Medical Superintendent, Hamidia Hospital, Bhopal by tomorrow, who is directed to ensure the medical termination of the pregnancy of Victim-A under the supervision of the experts at the earliest by taking all the precautions. The Superintendent of Police, Hoshangabad shall arrange for transportation of the Victim-A along with her parents to Hamidia Hospital, Bhopal. It is further directed that DNA sample of the fetus shall be saved for the purposes of evidence to be led by the prosecution before the Court in the criminal case of rape registered in the matter. All expenses shall be borne by the State.”
It is then stated in para 25 that, “Since this Court was persuaded to allow the writ petition on applying provisions of Section 3(2)(i) read with its Explanation-2 to the facts of the case, the question of constitutional validity of Section 3(2)(ii) was left untouched.” Finally, the Bench then states in para 26 that, “The writ petition is accordingly disposed of.”
Overall, it is a very learned, laudable and landmark judgment by a Division Bench of Madhya Pradesh High Court comprising of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla. It refers to latest and also relevant case laws like Z Vs. State of Bihar and others (2018) 11 SCC 572 Murugan Nayakkar Vs. Union of India & others (2017) SCC Online SC 1902 Meera Santosh Pal & others Vs. Union of India & others (2017) 3 SCC 462 Suchita Srivastava & Another Vs. Chandigarh Administration (2009) 9 SCC 1 Tapasya Umesh Pisal Vs. Union of India & others (2008) 12 SCC 57 XYZ Vs. Union of India & others, 2019 SCC OnLine Bom 560=(2019) 3 Bom CR 400 Kalpana Singh Vs. Government of NCT of Delhi & others, WP(C) No.115/2021 decided on 11.1.2021 Sundarlal Vs. The State of M.P. & others, W.P.No.20961/2017-decided on 6.12.2017 Victim (A) Vs. State of Rajasthan & others, S.B.Criminal W.P.No.148/2020, decided on 26.2.2020 ABC Vs. State of Chhattisgarh & others, W.P. (C) No.2294/2021 decided on 25.06.2021. A right decision was taken to protect the paramount interest of the mentally challenged rape victim and it was very rightly held that not permitting her to undergo medical termination of unwarranted pregnancy would be violative of her bodily integrity. Very rightly so!
Sanjeev Sirohi, Advocate
Assam-Mizoram border violence: An analysis
Six Assam police officers were killed on July 26 when an ancient boundary issue between Assam and Mizoram erupted in violent violence at a disputed border site. Residents of Assam and Mizoram battled twice in a week over territory in October last year, injuring at least eight people and torching a few homes and small shops. On the 26th of July, Home Minister Amit Shah intervened to restore order.
IN REGARD TO VIOLENCE
Unidentified persons set fire to eight vacant farm cottages near Aitlang stream on Sunday about 11:30 p.m., according to Mizoram deputy inspector general of police (northern range) Lalbiakthanga Khiangte. However, Assam police reported that unidentified protesters threw stones at them on Monday, injuring at least half a dozen of its employees in Cachar district. Locals also said that police officers from Assam were attacked with sticks and rods in Lailapur.
Mizoram Chief Minister Zoramthanga claimed that the Assam government had “intruded” into Mizoram’s territory and displayed “aggression.” “The Government of Mizoram wishes to address the inter-state border dispute with Assam in a peaceful and amicable manner.” Both of the northeastern states’ chief ministers had met.
DISPUTE THAT HAS BEEN GOING ON FOR A LONG TIME
This isn’t a one-time occurrence. It’s been a long-running feud for over a century. The 164.6-kilometer border between Assam and Mizoram is at the centre of the problem. Assam’s Cachar, Hailakandi, and Karimganj districts share a border with Mizoram’s Kolasib, Mamit, and Aizawl districts.
The Northeastern Areas (Reorganisation) Act of 1971 carved out three new states in the region, namely Manipur, Meghalaya, and Tripura, from Assam. The Union Territories of Mizoram and Arunachal Pradesh were also established.
THE HISTORY OF THE DISPUTE
Showdowns between Assam and Mizoram people are less common than, example, Assam and Nagaland residents in the intricate border equations of the Norteast. Despite this, the current 165-kilometer border between Assam and Mizoram comes from the colonial era, when Mizoram was known as Lushai Hills, an Assam region.
The controversy comes from two notifications: one from 1875 that distinguished the Lushai Hills from the Cachar plains, and another from 1933 that established a border between the Lishai Hills and Manipur. According to Mizoram, the boundary should be drawn according to the 1875 announcement. Mizo authorities have previously complained that Mizo society was not consulted when the demarcation was announced in 1933. The Assam administration adheres to the 1933 delineation, which was the source of contention.
Following the Mizo peace treaty struck between the Mizos and the Union government in 1987, Mizoram was proclaimed a state. While the 1933 agreement served as the foundation for the state, the Mizos insist on using the previous boundaries. Along the border, there have been regular conflicts.
DO ASSAM AND MIZORAM HAVE AN AGREEMENT?
Assam and Mizoram have struck an agreement under which the status quo in no-land, man’s or the border area, will be maintained. However, this hasn’t put an end to the squabbles. In 2020, the central government was forced to intervene to break a deadlock after border clashes resulted in an unofficial roadblock on Mizoram’s lifeline, National Highway 306.
Mizoram, a landlocked state, relies on this road to receive supplies from the rest of the country.
Poverty can be addressed through healing touch of law: MP HC issues directions for implementation of poverty alleviation schemes
In a well-written, well-articulated, well-reasoned and well substantiated judgment titled Omnarayan Sharma Vs State of MP & Ors in W.P. No. 1930/2020 (PIL) that was delivered on July 6, 2021, the Gwalior Bench of Madhya Pradesh High Court has issued directions to the District Legal Services Authorities and the State Authority for ensuring implementation of poverty alleviation schemes promulgated under provisions of Legal Services Authority Act, 1987 and NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. It must be apprised here that a Division Bench of Madhya Pradesh High Court comprising of Justice Sheel Nagu and Justice Anand Pathak have observed thus:
“Poverty, which is a Problem (Social Evil) can be addressed through Law (with its healing touch) as its solution to achieve the ultimate destination of Development.” It also must be mentioned here that the remarks came in a petition against alleged corruption and illegality committed by state authorities in construction of toilets under Swachh Bharat Mission in Bhind District.
To start with, a Division Bench of Gwalior Bench of Madhya Pradesh High Court comprising of Justice Anand Pathak who has authored this learned, laudable, latest and landmark judgment for himself and Justice Sheel Nagu first and foremost points out in para 1 that, “The present petition under Article 226 of the Constitution of India has been preferred by the petitioner as Pro Bono Publico projecting himself to be a public spirited citizen and has raised the grievance regarding illegality and irregularity committed by the respondents, especially respondents No. 6 to 13 who according to petitioner have not undertaken any enquiry over the complaint of petitioner regarding corruption / illegality committed in construction of toilets under Swachh Bharat Mission.”
To put things in perspective, the Division Bench then puts forth in para 3 that, “Precisely stated facts of the case are that on 31/12/2019, one Ramu Chaudhary, resident of village Etahar, District Bhind registered a complaint on Chief Minister Helpline Portal that Sarpanch, Secretary and other officers of the Gram Panchayat Ater, District Bhind have embezzled public fund in the name of construction of toilets but neither toilets have been constructed nor any amount for construction has been received by 93 beneficiaries. Despite making complaint by the petitioner on behalf of the beneficiaries to Collector, District Bhind no affirmative steps have been taken.”
While dwelling on the petitioner’s grievance, the Division Bench then enunciates in para 4 that, “It is the grievance of the petitioner that in other blocks of District Bhind also corruption and illegality have been conducted in construction of toilets under Swachh Bharat Mission. Petitioner placed the list of beneficiaries (94 in number) vide Annexure P/3, who did not receive the benefits of toilets nor any amount. Petitioner also referred the screen shot of app. (Pandit Deendayal Shram Seva App) to demonstrate that allegedly amount has been received by the beneficiaries but in fact bogus papers have been prepared and amount has been siphoned off.”
As we see, the Bench then puts forth in para 5 that, “Learned counsel for the respondents/State opposed the prayer and placed certain documents on record. It is the submission of learned counsel for the State that immediately after issuance of notice in this writ petition (on 27/8/2020), CEO, Zila Panchayat, Bhind vide order dated 14/1/2021 (Annexure R/1) constituted a committee to look into the complaint made by petitioner. He also
referred the show cause notice issued by same authority to then Panchayat Secretary, Gram Rojgar Sahayak and other Secretaries, who worked at the relevant point of time including the then Supervisor.
Therefore, as per respondents, enquiry is under process. Learned Government counsel assured this Court that due enquiry would be conducted and if any illegality or irregularity is found then same shall be taken care of earnestly and consequent action shall be taken as per enquiry report.”
Needless to say, after hearing learned counsel for the parties and perusing the record as stated in para 7, the Division Bench then lays bare in para 8 that, “This is a case by way of Pro Bone Publico; whereby, petitioner as public interest litigant raised the question of alleged illegality and corruption brewing in the Gram Panchayat Etahar, Tasil Ater, District Bhind regarding implementation of Swachh Bharat Mission Scheme, which is a flagship scheme of Government of India to solve problems of sanitation and waste management in India by ensuring hygiene across the country. Primary object of this scheme is to eliminate open defecation and improve solid waste management. In the challenging period of COVID-19 Pandemic cleanliness and public hygiene assumed much significance. Therefore, it is the solemn duty of the District and Local Administration as well as local self government to look into the effective implementation of this scheme.”
Simply put, the Division Bench then envisages in para 9 that, “National Legal Services Authority (NALSA) under the provisions of Legal Services Authorities Act, 1987 has framed certain schemes encompassing wide range of subjects and the compendium of the said schemes reflects one such scheme namely NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. This scheme is built on the foundation that poverty is a multi dimensional experience and is not limited to the issues of income. Multi dimensional poverty includes issues like health (including
mental health), access to water, education, sanitation, subsidies and basic services, social exclusion, discrimination etc.”
Furthermore, the Division Bench then makes it clear in para 10 that, “Further, in identifying the specific scheme for implementation at the State and District Level, Legal Services Authorities as per NALSA are expected to be cognizant of the fact that various vulnerable and marginalized groups experience poverty in myriad and unique ways.”
Please read concluding on thedailyguardian.com
Be it noted, the Division Bench then points out in para 11 that, “To address this exigency faced by people the Scheme of 2015 as referred above has been conceptualized.
In the scheme, following topics have been discussed: Clause 4.-Objectives of the Scheme:-,
Clause 5.-Identification of Poverty Alleviation Schemes:-,
Clause 6.-Organization of Awareness Programmes:-,
Clause 7.- Legal Services Officers and Para-legal Volunteers:-,
1) Every District Authority and Taluka Legal Services Authority shall designate at least three panel lawyers as Legal Services Officers for
the purpose of this Scheme. 2) District Authorities shall constitute teams of PLVs under a Legal Services Officer to implement this Scheme and the Legal Services Officer will supervise and mentor the PLVs in his team to help the beneficiaries access the various schemes of the Govt.
3) District Authorities shall conduct specialised training programs for panel of lawyers, members working in legal services clinics, members of panchayats, law students and other para-legal volunteers to assist in the implementation of the Scheme, to sensitise them regarding the needs of persons belonging to socially and economically weaker sections and the benefits that they can avail through Poverty
Clause 8.- Legal Assistance for Access to Poverty Alleviation Schemes
Legal assistance must be provided to all the Scheme Beneficiaries seeking access to Poverty Alleviation Schemes. Legal Services to be provided by Legal Services Officers or volunteers under this Scheme includes, inter alia:
1) Informing the Scheme Beneficiaries about each of the Poverty
Alleviation Scheme to which they are entitled, and the benefits
2) Assisting the Scheme Beneficiary in procuring the documents
required for availing the benefits under any of the Poverty
3) Informing the Scheme Beneficiary of the name and address of the
designated authority or the officer to be approached for registration
under any of the Poverty Alleviation Schemes
4) Offering to send para-legal volunteers including from the legal
services clinics with Scheme Beneficiaries to the office of the
designated authority or the officer to be approached under any of the
Poverty Alleviation Schemes
5) Informing the Scheme Beneficiary of her option to register a
complaint with the Legal Services Officer or para-legal volunteer,
about any designated authority or officer under any of the Poverty
Alleviation Schemes who refuses to cooperate with the Scheme
Beneficiary in providing her access to the benefits that she is
entitled to under the Poverty Alleviation Scheme.
6) Maintaining a record of all the complaints received under sub-clause(5).
7) Providing Scheme Beneficiaries with the contact number, if
available, of the Legal Services Officer, and availability of the
Legal Services Officer on call during working hours for such Scheme
Beneficiaries to whom contact number is provided.
Clause 9.-Action by Legal Services Officers on complaints;
1) On receiving complaints under sub-clause (5) of clause 8, each
Legal Services Officer shall herself personally accompany the
Complainant Beneficiary to the office of the designated authority or
officer, and assist the Complainant Beneficiary in availing the
benefit that she is entitled to under the Poverty Alleviation Scheme.
2) In case the designated authority or officer fails to register the
Complainant Beneficiary in the Poverty Alleviation Scheme, the Legal
Services Officer shall submit a complaint to the District Authority.
The letter of complaint shall describe the conduct of the designated
authority or officer who refused to register the Complainant
Beneficiary under the Poverty Alleviation Scheme, and circumstances of
such refusal and whether refusal was despite submission of all
Clause 10.- Action by District Authority and State Authority on complaints:-
1) On receiving a complaint regarding the designated authority or
officer, the District Authority shall seek a report from the concerned
officer regarding the reason for denying the benefits under the
Poverty Alleviation Scheme to the complainant Beneficiary. In the
event that sufficient reason is not provided by the concerned officer
for refusal to register the Complainant Beneficiary in the Poverty
Alleviation Scheme or to provide benefits under the Poverty
Alleviation Scheme, the District Authority shall immediately
communicate to the superior officer in the department the details of
the refusal to provide access to the Poverty Alleviation Scheme.
2) If the superior officer, in the opinion of the District Authority,
also withholds the benefits under the Poverty Alleviation Scheme
without sufficient cause, the District Authority shall then
communicate the same to the State Authority.
3) On receiving such communication from the District Authority, the
State Authority may choose to further pursue the matter with the
concerned department or file appropriate legal proceedings to ensure
that the Complainant Beneficiary receives the benefit under the
Poverty Alleviation Scheme.
4) The District Authority, through para-legal volunteers or legal
services clinics, shall provide regular updates to the Complainant
Beneficiary about the status of the complaint.
Clause 11.-Evaluation of the Scheme:-
1)Every Legal Services Officer shall follow-up with each Scheme
Beneficiary who sought legal assistance under this Scheme and record:
a. if such person was able to register under the Poverty Alleviation
Scheme sought to be registered under and whether such benefits were
b. any grievances experienced by the Scheme Beneficiaries in getting
registered and availing benefits under the various Poverty Alleviation
2) The District Authority shall compile the observations made under
sub-clause (1) for all the Legal Services Officers working under the
Scheme in the district and shall send a copy of such observations in a
complied document to the State Authority every six months.
3) The State Authority shall consolidate the compiled documents
received from all the District Authorities under sub-clause (2) and
hold a meeting every 6 months to review the functioning and
effectiveness of this Scheme. The minutes of such meeting shall be
recorded and published as a public document.
4) If in the meeting under sub-clause (3) the State Authority finds a
substantive or procedural defect in any of the Poverty Alleviation
Schemes which makes seeking benefits under the scheme a problem for
the Scheme Beneficiaries, such defect must be brought to the notice of
the Central Government or the State Government as the case may be for
improving the specific Poverty Alleviation Scheme and / or its
To be sure, the Division Bench
then observes in para 12 that, “Perusal of the whole scheme indicates
that certain responsibilities have been bestowed upon the State and
District Legal Services Authorities to train the legal and para-legal
volunteers for providing legal assistance for giving access to
beneficiaries to Poverty Alleviation Scheme and to act upon the
complaints if the benefits have not been extended to him/her or if any
authority refuses to cooperate with the scheme beneficiaries in
providing access to the benefits.”
As it turned out, the Division
Bench then states in para 13 that, “As referred in the Scheme of 2015,
poverty is a multi dimensional experience and it includes basic
services including sanitation etc. and when a duty has been cast upon
Legal Services Authority as per the Legal Services Authority Act, 1987
and Scheme of 2015 then if any complaint is received by the Legal
Services Officer from complainant / Scheme Beneficiary then such
complaint like the present one can be taken care of by the District
Authority as per Clause (9), (10) and (11) of the Scheme of 2015 by
the District Authority and even by the State Authority.”
Quite damningly, the Division
Bench then minces no words to state in para 14 that, “It is being
experienced by this Court that many complaints come regarding poor
implementation, corruption and / or irregularities in Schemes like
MGNREGA and Swachh Bharat Mission regarding construction of toilets or
non-grant of amount to the beneficiaries for construction of toilets,
etc. and by way of Public Interest Litigation, people seek Continuing
Mandamus from this Court, whereas, provisions of Act of 1987 and
Scheme of 2015 are apparently also available to address such
Notably, the Division Bench then brings
out in para 15 that, “Clause 10(3) of Scheme of 2015 gives option to
choose between the Persuasion (with the concerned Department) or
Petition (to file appropriate legal proceedings). Here, appropriate
legal proceedings may include complaint before the Lokayukt, if it
comes under the purview of said Authority or private complaint against
the erring persons or to file a Petition on behalf of complainant
under Article 226 of the Constitution of India as Public Interest
Litigation. It can club cause of more than one beneficiaries also.”
In the present context, the
Division Bench then brings out in para 16 that, “Recently, Ministry of
Panchayati Raj, Government of India has undertaken steps in respect of
Online Audit and Social Audit of 20% Gram Panchayats’ in every Janpad
Panchayat and therefore, it appears that Government also intends to
make these Institutions more accountable which are having direct
bearing over day to day welfare of people at large. In pursuance
thereof, a circular has also been issued by Panchayat Raj Directorate,
Madhya Pradesh, Bhopal dated 17/2/2021 to all CEOs of Zila Panchayats
/ Janpad Panchayats to organize camps in this regard.”
Of course, the Division Bench then hastens to
add in para 17 that, “State Authority may contemplate about
preparation of one Software and Mobile Application ( Mobile App.) for
keeping a tab over the complaints received and their outcome. This
Software / Mobile App. may coordinate amongst the concern departments
so that complaints received over the said application (App.) would be
displayed all over. Concerned stakeholders and State Authority /
District Authority would be in a better position to proceed as per the
spirit of Act of 1987 and Scheme of 2015. State Authority even has
power to make regulations as per Section 29-A of the Act 1987 to
provide for all matters for which provision is necessary or expedient
for the purposes of giving effect to the provisions of Act.”
Quite scandalously, the Division
Bench then puts forth in para 18 in simple, suave and straight
language that, “Here, in the case in hand, it appears that certain
beneficiaries allegedly did not receive the benefits under Swachh
Bharat Mission about construction of toilets. As per the allegations,
neither toilets have been constructed by the concern authorities nor
amount has been transferred in their accounts and it is the
allegations that amount of 93 beneficiaries (or may be 94) has been
siphoned off by Sarpanch / Panchayat Secretary / Gram Rojgar Sahayak
etc. Allegations are prima facie serious in nature.”
Quite categorically, the Division Bench then
puts forth in para 19 that, “This Court cannot go into the
authenticity or otherwise of the allegations at this juncture
especially when CEO, Zila Panchayat is seized of the matter vide show
cause notices issued to erring officers / authorities in this regard.
Therefore, at this juncture, any observation would pre-empt the
controversy. However, Collector and CEO, Zila Panchayat, Bhind are
directed to look into the allegations with utmost promptitude and role
of concerned Sarpanch, Panchayat Secretary, Gram Rojgar Sahayak,
Supervisor and any other person involved in the transaction / or
having any responsibility under the Swachh Bharat Mission Scheme
failed or acted mischievously be enquired into in accordance with law.
If any conclusion has not been drawn in the enquiry up till now then
enquiry be conducted expeditiously within two months from the date of
passing of this order and outcome of the enquiry be intimated to the
office of this Court and office shall place the matter under the
caption “Direction” for perusal of this Court and even if conclusion
is drawn then consequential follow up action be informed to office of
Significantly, the Division Bench then
directs in para 20 that, “Before parting, this Court feels it
appropriate to give direction to the District Legal Services Authority
to update the contents of different schemes promulgated under the
different provisions of Legal Services Authority Act, 1987 including
the Scheme in hand i.e. NALSA (Effective Implementation of Poverty
Alleviation Schemes) Scheme, 2015 and ensure that in their respective
jurisdiction (District) Poverty Alleviation Scheme especially Swachh
Bharat Mission Scheme and Mahatma Gandhi National Rural Employment
Guarantee Act, 2005 (MGNREGA), etc. are being properly executed and
intended beneficiaries get the benefits of the scheme and if any
authority refuses to cooperate with the beneficiary in providing him /
her access to the benefits that she is entitled to under any Poverty
Alleviation Scheme, then the responsible authority under District
Legal Services Authority (DALSA) shall proactively take care of the
situation by proceeding as per Clause 9, 10 and 11 of the Scheme,
More significantly, the Division Bench then further directs in
para 21 that, “It is further expected from the Authority and its
Office Bearers that they shall constantly organize awareness
programmes as well as training programmes for Panel Lawyers / Legal
Volunteers / Para-legal Volunteers as the case may be in a
constructive and proactive manner. The training must sensitize the
volunteers / activists to the notion that they have to act as Healers
of the Society looking to the great responsibility bestowed upon them
of Poverty Alleviation. Poverty, which is a Problem (Social Evil) can
be addressed through Law (with its healing touch) as its solution to
achieve the ultimate destination of Development.”
Most significantly, the Division
Bench then also directs in para 22 that, “In view of aforesaid
discussion, this Court summarizes the following directions:-
(i) If, any complaint is received regarding inaction, inappropriate
execution, corruption or any matter related thereto which comes under
the purview of Legal Services Authority Act, 1987 and NALSA (Effective
Implementation of Poverty Alleviation Schemes) Scheme, 2015 then
District Legal Service Authority (DALSA) shall proactively take care
of the situation by proceeding as per Clause 9,10 and 11 of the Scheme
(ii) State Authority / District Authority may file appropriate legal
proceedings as per Clause 10 (3) of Scheme of 2015 by way of complaint
before the Office of Lokayukt as per relevant provisions or may file
Private Complaint against the erring persons or may file a petition if
subject matter requires so by way of a Public Interest Litigation
under Article 226 of the Constitution of India;
(iii) State Authority is requested to contemplate for framing of
suitable regulations as per the provisions of Act of 1987, especially
under Section 29-A for effective implementation of different schemes
of Government of India / State Government fall under NALSA (Effective
Implementation of Poverty Alleviation Schemes) Scheme, 2015. A further
request is made to contemplate about preparation of a Software /
Mobile Application (Mobile App.) for keeping a tab over the complaints
received and their outcome; and
(iv) District Authority and its Office Bearers are expected to
regularly organize awareness / training programmes for Panel Lawyers /
Para-legal Volunteers in a constructive and proactive manner to
sensitize them with the notion that they have to act as Healers of the
Society, looking to the great responsibilities bestowed upon them.
Secretary, SALSA shall coordinate and guide all such awareness /
Moving on, the Division Bench then
holds in para 23 that, “Consequently, petition is disposed of with a
direction to the respondents especially Collector and CEO, Zila
Panchayat Bhind to look into the matter and complete the enquiry, if
not already completed within two months from the date of passing of
this order and if any person is found guilty then consequential follow
up action shall be ensured in accordance with law. If the enquiry is
already concluded then Collector and CEO are directed to place the
enquiry report before the office of this Court so that same can be
placed before this Court for perusal.”
On a final note, the Division Bench while disposing of the petition as stated in para 24 then holds
in para 25 that, “A copy of this order be sent to Principal Secretary,
Panchayat Raj, Government of Madhya Pradesh, Bhopal as well as to
Member Secretary, SALSA, Jabalpur for circulation to all District
Legal Service Authorities (DALSA) for sensitization and implementation
of the concept as referred above by this Court.”
It merits no reiteration that the District Legal Services Authorities and the State Authority must
comply with this brief, brilliant, bold and balanced judgment by a
Division Bench of Gwalior Bench of Madhya Pradesh High Court
comprising of Justice Anand Pathak and Justice Sheel Nagu so that
poverty can be addressed through healing touch of law as has been
directed also. All such measures if implemented honestly in letter and
spirit then it will certainly go a long way in emancipating the
‘poorest of the poor’ which is the crying need of the hour also! There
is no reason why they should not be implemented at the earliest. It
certainly brooks no more delay anymore!
Sanjeev Sirohi, Advocate,
TWAIL: Historical approach to understanding international law
Today, the ‘Third World’ country is the term first used by Alfred Sauvy in 1952 which now has come to denote a country which can be categorized as a ‘developing’ country. However, the origins of this term can be traced to the World War/Cold War period when Third World signified the countries who were non-aligned; neither part of the ‘free world’ nor of the ‘communist world’. Scholars vouching for the Third World Approaches to International Law (TWAIL) have stressed on the importance of using the original terminology of ‘Third World Countries’. Global South is another term frequently used as a synonym for Third World countries. The terms North and South emerged during the 1970s but till today no strict definition thereby questioning geographical preciseness of this term.
The Asian-African Conference held in Bandung organised by Egypt, Indonesia, Burma, India, Pakistan, Sri Lanka in 1955 was where Indian PM Jawaharlal Nehru rejected both sides in the ongoing cold war and propounded a principle of ‘non-alignment’. This led to the birth of Non-Aligned Movement (NAM) in 1961. This along with the Organisation of Petroleum Exporting Countries (OPEC), Group 77 shows the building momentum among the Third world countries against the supremacy of the First and Second world countries. Further a rebellious attitude was also shown by the Third World reflected in its calls for a New International Economic Order (NIEO).
TWAIL has undertaken study of international law, its global history, role of international lawyers within the international order, importance of social movements, indigenous people, migrants etc. with a background of such previous organisations who came together with a common agenda. TWAIL has stood as a check to the Eurocentric approach taken by international law over the years. And accelerated efforts to balance out the asymmetries of power. According to Gathii, “TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.” Balakrishnan Rajagopal’s work brings light to the resistance that TWAIL projects to safeguard interests of the third world.
TWAIL was born in 1996 at Harvard Law School when group of students came together to discuss whether if taken a third world approach to international law what might be the major obstacles. The group consisting of Celestine Nyamu, Balakrishnan Rajagopal, Hani Sayed, Vasuki Nesiah, Elchi Nowrojee, Bhupinder Chimni and James Thuo Gathii coined the name of the group as ‘Third World Approaches to International Law’ (TWAIL). Antony Anghie and Chimni coined the terms ‘TWAIL I’ and ‘TWAIL II’: the former consisting of first generation post-colonial and the latter taking cues and developing further scholarship. The struggle of TWAILers II, III, IV and beyond – is to deal with the vestiges of ‘formal’ empire and expanding multi-dimensional forms of ‘informal imperialism’.
APPROACHES TO TWAIL
While discussing about the approaches within TWAIL, Gathii mentions critical, feminist, post-modern, Lat-Crit Theory (Latina and Latina Critical Theory Inc.), postcolonial theory, literary theory, modernist, Marxist, critical race theory among others. With these approaches what is studied is hegemony of dominant narratives along many axes– race, class, gender, sex, ethnicity, economics, trade, etc – and in inter-disciplinary ways – social, theoretical, epistemological, ontological and so on. Gathii discusses some coordinates; strictly refraining from calling them as principles as TWAIL scholarship has always been proposing for an ever-changing methodology and international order. It terms the coordinates as:
History matters: Importance here is given to how history has shaped the current geo-politics. Taking into account history, TWAIL scholars envision to build a south oriented framework for international order.
Empire moves: Imperialism cannot be only located in the country of the British. From local to national, public to private, ideological to material; Empire is traced in each of the components of nation and human life. This coordinate helps the TWAIL scholars to trace the colonial power and its fangs.
South moves: As the North moves, the South also is a term which is dynamic according to local specificities, regional trends, and larger changes to the global economic and political system.
Struggle is multiple: TWAIL is engaged is one fought on multiple fronts and on a diverse and shifting terrain. Thus, TWAIL is a discipline in transition, expansion, definition and internal contestation about the varied agendas of its scholars, all at the same time.
Struggle is here: TWAIL scholars, therefore, the struggle remains, and must remain, always there, and always here. It is, and must always be, about present ‘tactics’, and about a longer ‘strategy’.
CENTRAL THEMES OF TWAIL
As Karin Mickelson argues, history is the most fundamental element of a third world approach to international law. What is important to note here for TWAIL scholarship is the emphasis on seeing international legal history ‘as something alive than dead.’ Makau Mutua’s provocative thesis about redrawing the map of Africa because of the colonial illegitimacy of current borders is yet another example of seeing international legal history as relevant to and constitutive of the present rather than as a relic of the past. Antony Anghie’s book Imperialism, Sovereignty and the Making of International Law, (2005) is the leading TWAIL text revising mainstream international legal history tracing of continuities of coloniality in modern international law.
According to Vikrant Dayanand Shetty, “the ‘post’ in ‘postcolonial’ does not refer to ‘after period of colonialism’ or ‘triumphing over colonialism’ but to the ‘continuation of colonialism in the consciousness of formerly colonized peoples and in institutions imposed in the process of colonization.’” Examples of colonial continuities include, the composition of the UN Security Council, with five veto-wielding Permanent members; the weighted system of voting in the Bretton Woods institutions that gives the world’s richest economies the power to set the economic agenda of the former colonial countries; the rules of customary international law such as pacta sund servanda that bind former colonialized countries to comply with treaties even though they took no part in their formulation or formation; and the fact that self-determination retained the subordinate and dependent position of third world elites to their former colonial powers and to multinational capital interests.
Chimni analyses that, “Today, international law prescribes rules that deliberately ignore the phenomena of uneven development in favor of prescribing uniform global standards.” TWAIL recognises that the domination that US and Europe had over former colonies is in practice till date. In India, it can be seen in the fact that since the British left, we haven’t yet let go of the legal structure that the empire had built for us. India is also still in grips of the Macaulay’s system of Education. She has adopted the foreign terms like ‘secular’ in her constitution, ‘English’ as the official language, morals as per the Christian teachings. As India westernized, she also inherited such institutions which today can be called as the ghosts of the Empire. This has led to many TWAIL and other Indic scholars to question whether since independence has India ever been free. Chimni reiterates that the civilizing mission that the colonisers were on is the same mission with which they are using international law to rehabilitate and govern third world countries especially Africa; thus, legitimizing and justifying both the forms of colonial attitudes. He says, “humanitarianism is the ideology of hegemonic states in the era of globalization marked by the end of the Cold War and a growing North South divide.” This concept of the ‘civilizing mission’ has provided the moral basis of exploitation of the Third World. However, this exploitation, when administered by the colonial power, is legitimate because it is inflicted in self-defence, or because it is humanitarian in character and indeed seeks to save the non-European peoples from themselves. Less is discussed in mainstream international forum on the holocaust that the Victorian Empire committed on the citizens of India. Indian soldiers fought for the British in both World wars; 60,000 sacrificed their lives in world war I itself; she was the second largest contributor to Empire’s War in the 1940s; she bore the brunt of Churchill’s horrifying war policies which aggravated the already existing famine conditions. 5.4 million Indians according to Madhushree Mukherjee were killed amounting to war crimes justified under the garb of colonialism. She writes in her book ‘Churchill’s Secret War’, “if provisions protecting civilians had been in place before the war, the denial policy and the failure of His Majesty’s Government to relieve the famine could conceivably have been prosecuted as war crimes.”
TWAIL has failed to produce a single authority but has stirred the waters of international law with the ladle of colonial history. James Thuo Gathii also acknowledges the criticisms levelled against TWAIL on the basis of it being anachronistic, nihilistic and lacking methodological clarity. Secondly, its own critical attitude has been accused of being baseless. The absence of hierarchy and authority has given rise to flexible and fluid ways but has also proved as a disadvantage to organize the movement effectively. However, TWAIL is not a mere deconstructive and oppositional movement or network of scholars, but rather one that sees the potential of reforming if not remaking international law for the greater good. It also questions some third world countries and hence cannot be alleged to have been assuming innocence of these countries.
For the first time in history, emerging economies are counterparts on more than half of global trade flows, and south–south trade is the fastest-growing type of connection. South–south and China–south trade jumped from 8 percent of the global total in 1995 to 20 percent in 2016. Emerging economies, led by China and India, have accounted for almost two-thirds of global GDP growth and more than half of new consumption in the past 15 years. The founder of TWAIL Gathii has expressed that TWAIL-ers have transcended boundaries. There have been efforts from non-third world living scholars along with third world living scholars. He calls it a decentralized network which has been given exposure across not only in academies but also as course leaders, council members, etc. Some suggestions toward a new economic world order on the basis of TWAIL are to increase transparency and accountability of international institutions; increasing sensitivity towards problems of the third world; accepting that the solutions applied to western countries aren’t the exact solutions for third world problems; indigenous culture to be used to maximise the reach of international principles; Human Rights should be interpreted by keeping an account of the conditions of the third world countries; accepting that other than minority and acknowledged class there can be oppression of majority in such countries too; Ensuring Sustainable Development With Equity. Such suggestions to make international law more sensitive, equitable and far-reaching can be done only with the help of TWAIL. TWAIL scholars from and outside third world countries need to undertake this task and make the other side of the narrative aware of their side. Ramping up needs to take place since the third world countries are the future of tomorrow.
Opinion10 months ago
South Block’s mistakes will now be corrected by Army
Sports1 year ago
When a bodybuilder breaks Shoaib’s record
News1 year ago
PM Modi must take governance back from babus
Spiritually Speaking12 months ago
Spiritual beings having a human experience
News1 year ago
Chinese general ordered attack on Indian troops: US intel report
Sports1 year ago
West Indies avoid follow-on, England increase lead to 219
Legally Speaking1 year ago
Law relating to grant, rejection and cancellation of bail
Royally Speaking10 months ago
The young royal dedicated to the heritage of Jaipur