Writ Jurisdiction U/A 226 may be exercised at pre-detention stage in case of potential threat to a person’s fundamental rights: Madras HC - The Daily Guardian
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Writ Jurisdiction U/A 226 may be exercised at pre-detention stage in case of potential threat to a person’s fundamental rights: Madras HC

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In a recent, righteous and remarkable judgment titled D. Aswin Rao v. State & Ors. in W.P.No.1664 of 2021 and WMP No.1871 of 2021 delivered on February 4, 2021, the Madras High Court has recently held that Article 226 of the Constitution empowers the High Court to exercise its writ jurisdiction even at a pre-detention stage, if it is of the view that there is a potential threat of violation of a person’s fundamental right under Article 21 of the Constitution. A single-Judge Bench of Justice N Anand Venkatesh made this significant observation. The remarks were made while deciding a writ petition filed by one D Aswin Rao apprehending detention under the Goonda Act, 1982. The writ petition was filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, to forbear the 2nd and 3rd respondents from passing order against the petitioner now confining at Central Prison, Puzhal by detaining him under the preventive Detention in particularly Tamil Nadu Act No.14 of 1982.

To start with, a single Judge Bench of Justice N Anand Venkatesh of Madras High Court sets the ball rolling by first and foremost observing in para 1 that, “This Writ Petition has been filed for the issue of a Writ of Mandamus forbearing the Respondents from invoking Act 14 of 1982, against the Petitioner.”

While dwelling on petitioner’s case, it is then stated in para 2 that, “The case of the Petitioner is that a complaint was lodged by one Mr. Kurian Poulose before the 3 rd Respondent to the effect that the accused persons were involved in a fraudulent financial scheme and had unjustly enriched themselves to the tune of nearly Rupees Forty-Five crores. Based on the complaint, an FIR came to be registered in Crime No. 453 of 2017 for offences under Sections 406, 420 and 506(i) IPC. The FIR named one Mr. Jayaraj as the accused person and he is A1 in the present case. In the course of investigation, the involvement of the Petitioner also came to surface and he was enquired and on collecting necessary materials, the Petitioner was arrested and he was remanded to judicial custody on 02.01.2021.”

While elaborating further, the Bench then states in para 3 that, “The case of the Petitioner is that he has nothing to do with the entire transaction and he has been falsely roped in this case. According to the Petitioner, A1 has already been detained under Act 14 of 1982 and effective steps are being taken to detain the Petitioner also under the said Act. Therefore, the Petitioner made a representation to the Respondents in this regard on 21.01.2021 and he explained his position and requested the Respondents not to issue any detention order against him. Since the same was not considered, the present Writ Petition has been filed before this Court.”

To put things in perspective, the Bench then states in para 4 that, “Mr. S. Prabhakaran, learned Senior Counsel for the Petitioner submitted that there is a strong apprehension for the Petitioner that he will be detained under Act 14 of 1982 and there are absolutely no grounds to detain the Petitioner since he is not a habitual offender. The learned Senior Counsel further submitted that there is already a Criminal Case registered by the 3 rd Respondent in which the Petitioner has been added as A2 and he has been remanded to judicial custody and the Petitioner will establish his innocence in this case. The learned Senior Counsel submitted that detaining the Petitioner under Act 14 of 1982, will be in direct violation of Article 21 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”), since such a detention will be illegal and it will have adverse consequences on the life and liberty of the Petitioner.”

To buttress his arguments, what the learned Senior Counsel submits is then stated in para 5 that, “The learned Senior Counsel, in order to substantiate his submissions relied upon the following judgements:

i) S.M.D. Kiran Pasha v. Government of Andhra Pradesh and Ors. reported in 1990 (1) SCC 328;

(ii) Selva Kumar v. State of Tamil Nadu reported in 1991 (3) MLJ Crl 516; and

(iii) Addl. Secy. To the Govt. of India v. Alka Subhash Gadia (Smt) reported in 1992 SCC Supp 496.”

On the contrary, it is then stated in para 6 that, “Per contra, the learned Government Advocate appearing on behalf of the Respondents submitted that a Writ Petition can never be entertained merely based on apprehensions. The learned Government Advocate further submitted that a writ of mandamus cannot be issued forbearing a statutory authority from performing his function. It was further contended that the Petitioner cannot anticipate that an illegal detention order will be passed against him and such anticipation cannot give raise to a cause of action to file the present Writ Petition.”

Quite remarkably, the Bench then holds in para 13 that, “The Hon’ble Supreme Court after taking into consideration all the earlier judgements again dealt with the scope of pre-execution challenge in Subash Popatlal Dave v. Union of India and Anr. reported in (2012) 7 SCC 533. The relevant portions in the judgement are extracted hereinunder:

“45. Nowhere in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] has it been indicated that challenge to the detention order at the pre-execution stage, can be made mainly on the aforesaid exceptions referred to hereinabove. By prefacing the five exceptions in which the courts could interfere with an order of detention at the pre-execution stage, with the expression “viz.” Their Lordships possibly never intended that the said five examples were to be exclusive (sic exhaustive). In common usage or parlance the expression “viz.” means “in other words”. There is no aura of finality attached to the said expression. The use of the expression suggests that the five examples were intended to be exemplars and not exclusive (sic exhaustive). On the other hand, the Hon’ble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of the said power.

46. It is only in Sayed Taher Bawamiya case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] that another three-Judge Bench considered the ratio of the decision of this Court in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] and observed that the courts have the power in appropriate cases to interfere with the detention orders at the pre-execution stage, but that the scope of interference was very limited. It was in such context that the Hon’ble Judges observed that while the detention orders could be challenged at the pre-execution stage, that such challenge could be made only after being prima facie satisfied that the five exceptions indicated in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] had been fulfilled. Their Lordships in para 7 of the judgment in Sayed Taher case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] held that the case before them did not fall under any of the five exceptions to enable the Court to interfere. Their Lordships also rejected the contention that the exceptions were not exhaustive and that the decision in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] indicated that it is only in the five types of instances indicated in the judgment in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] that the courts may exercise their discretionary jurisdiction under Articles 226 and 32 of the Constitution at the pre-execution stage.

47. With due respect to the Hon’ble Judges in Sayed Taher Bawamiya case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] , we have not been able to read into the judgment in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] any intention on the part of the Hon’ble Judges, who rendered the decision in that case, that challenge at the pre-execution stage would have to be confined to the five exceptions only and not in any other case. Both the State and the Hon’ble Judges relied on the decision in Sayed Taher Bawamiya case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] . As submitted by Mr Rohatgi, to accept that it was the intention of the Hon’ble Judges in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] to confine the challenge to a detention at the pre-execution stage, only on the five exceptions mentioned therein, would amount to imposing restrictions on the powers of judicial review vested in the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution. The exercise of powers vested in the superior courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions by an order of the court of law. Such powers are untrammelled and vested in the superior courts to protect all citizens and even non-citizens, under the Constitution, and may require further examination.

48. In such circumstances, while rejecting Mr Rohatgi’s contention regarding the right of a detenu to be provided with the grounds of detention prior to his arrest, we are of the view that the right of a detenu to challenge his detention at the pre-execution stage on grounds other than those set out in para 30 of the judgment in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] , requires further examination. There are various pronouncements of the law by this Court, wherein detention orders have been struck down, even without the apprehension of the detenu, on the ground of absence of any live link between the incident for which the detenu was being sought to be detained and the detention order and also on grounds of staleness. These are issues which were not before the Hon’ble Judges deciding Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] .

49. The law is never static but dynamic, and to hold otherwise, would prevent the growth of law, especially in matters involving the right of freedom guaranteed to a citizen under Article 19 of the Constitution, which is sought to be taken away by orders of preventive detention, where a citizen may be held and detained not to punish him for any offence, but to prevent him from committing such offence. As we have often repeated, the most precious right of a citizen is his right to freedom and if the same is to be interfered with, albeit in the public interest, such powers have to be exercised with extra caution and not as an alternative to the ordinary laws of the land.”

To put things in perspective, the Bench then most significantly states in para 14 that, “A reading of the above judgements makes it clear that Article 226 of the Constitution empowers the High Court to exercise its Writ Jurisdiction even at a pre-detention stage where this Court finds that there is a threat of a potential violation of the fundamental right under Article 21 of the Constitution. This Court in order to satisfy itself that there is a potential threat of violation of Article 21 of the Constitution, must have some materials before it. In other words, it cannot be based on mere apprehensions and this Court can only act on some overt acts.”

More precisely, the Bench then goes on to hold in para 15 that, “The Hon’ble Supreme Court in the above judgements has broadly identified certain grounds where this Court can interfere at a pre-execution stage. Even in these cases, the Hon’ble Supreme Court has made a specific reference to pre-detention order which is yet to be executed and which can be interfered with, in any of the following contingencies:

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i. that the impugned order is not passed under the Act under which it is purported to have been passed;

ii. that it is sought to be executed against a wrong person;

iii. that it is passed for a wrong purpose;

iv. that it is passed on vague, extraneous and irrelevant grounds; or

v. that the authority which passed it had no authority to do so.”

Be it noted, the Bench then points out in para 16 that, “The Hon’ble Supreme Court in Subash Popatlal Dave also made it clear that the above five grounds are merely illustrative and not exhaustive. The Hon’ble Supreme Court recognized the fact that the power exercised under Article 226 and Article 32 of the Constitution while reviewing an executive decision can never be subjected to any restrictions and such powers are untrammeled to protect the rights of the citizens.”

Needless to say, it is then made clear in para 17 that, “In the present case, the only apprehension in the mind of the Petitioner is that since A1 has been detained under Act 14 of 1982, there are all chances of the Petitioner also getting roped in and detained under the said Act. This ground is too farfetched for this Court to exercise its jurisdiction under Article 226 of the Constitution. There is absolutely no overt act that is available for this Court to even prima facie satisfy itself that there is a potential threat of violation of Article 21 of the Constitution against the Petitioner. This Court must keep in mind that a writ of mandamus should not be issued where it indirectly restrains an authority from performing or exercising their statutory function. This Court must perform a balancing act in cases of this nature and interfering at a pre-detention stage must be far and few depending upon the exigencies in a given case. In other words, only in exceptional cases, this Court can exercise such a power.”

Now coming to the concluding paras. It is then held in para 18 that, “In view of the above discussion, this Court does not find any ground to grant the relief as sought for by the Petitioner in the present Writ Petition. The Petitioner has already given a representation in this regard to the Respondents and the same will be taken into consideration by the Respondents, if at all any action is taken against the Petitioner.” Finally, it is then held in the last para 19 that, “This Writ Petition is accordingly dismissed. No costs. Consequently, connected miscellaneous petition is closed.”

In conclusion, the single Judge Bench of Justice N Anand Venkatesh of Madras High Court makes it amply clear as to when can the writ jurisdiction under Article 226 of the Constitution may be exercised at pre-detention stage in case of potential threat to a person’s fundamental rights. We have already discussed in this judgment when it can be exercised. It also makes clear as to why the petitioner’s case is rejected in this leading case.

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Legally Speaking

Not permitting mentally challenged rape victim to undergo medical termination of unwarranted pregnancy violative of her bodily integrity, says Madhya Pradesh HC

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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.””

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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

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Legally Speaking

Assam-Mizoram border violence: An analysis

Surya Pratap

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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.

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Poverty can be addressed through healing touch of law: MP HC issues directions for implementation of poverty alleviation schemes

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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

Alleviation Schemes.

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

thereunder

2) Assisting the Scheme Beneficiary in procuring the documents

required for availing the benefits under any of the Poverty

Alleviation Scheme

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

necessary documents.

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

being received

b. any grievances experienced by the Scheme Beneficiaries in getting

registered and availing benefits under the various Poverty Alleviation

Schemes.

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

effective implementation.””

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

problems.”

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

this Court.”

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,

2015.”

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

of 2015;;

(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 /

training programmes.

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,

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TWAIL: Historical approach to understanding international law

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INTRODUCTION

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.”

CRITIQUES

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.

CONCLUSION

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.

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Analysing Article 21, humans rights and individual freedom

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“Death must be beautiful. To lie on soft brown earth, with grasses waving above one’s head, and listen to the silence. To have no yesterday, no tomorrow. To forget life, to forgive life, to be departed.”

– Oscar Wilde

INTRODUCTION

The grimace compounding the affliction implicating faith & culture economizing on the despair from the clutches stands out to be a serene sojourn. The complacency in setting to work the health crisis nonetheless politics has doomed the fraternity squandering the attainment. People & their rights must be magnanimous at front & centre. Dignity in casualty is recognized around the world. The cremation of the dead bodies in Covid-19 is not an easy tribulation. The Hygiene Protocols ambling wrapping dead bodies to discerning handing over the bodies to the families increase the efficacy of transmitting body fluids. According to the World Health Organisation plebeians intimidated of their emancipations incarcerated are prone to getting tremendous exposure. The scale of devastation brought on by the second wave of Covid continues to snuff out lives, upend healthcare systems & dwindle the economy broke out with negligence, callousness evincing response as people reckoning with the grief of catastrophe that’s still unfolding.

Emotions Coexist as they aren’t linear or unitary bringing about guilt unobtrusive on some days & overbearing on others. Losing a beloved one is one of the extensively gruelling situations even under the best of episodes. Every congregation brings into the world its sermon to soothe the concussion, Hindus gathering to burn carcasses along the Ganges River to the Jewish folklore of amassing solace at shack during a seven-day mourning stint, Islamic legislation, as in many kith & kin surmises, the management of uneventful is the theme of distinct policies that strive at pledging the elegance and deference of the dead as well as for their living comrade. The disposition and swivel scale of the prevailing pandemic, however, has concocted miscellaneous qualms, asceticism, and straight rumours in Muslim-majority states as well as for Muslim communities around the realm. Oftentimes bar and the legal sorority have beefed up the liberties which are equated to dead soul from stature of the dead person to decent interment. Anticipating the incessant phenomenal pestilence “COVID 19”, the situation has become very catastrophic, and the conundrum of this dilemma makes it a more chaotic one. The horrendous and ungrammatical crisis of sufferers and dead bodies provoke the compunction of the very validity of rights that are functional to dead persons in the glimmer of the status quo.

STANDPOINT: HUMAN RIGHTS & FEDERAL LAW

Human dignity reinforces the right to life in portion the state has an optimistic obligation to insulate & respect life. The Rights are extensive, interdependent & mutually supplementary.

Humanitarian organisations especially the Red Cross (ICRC) evolved a compatriot & drudged knack in disaster supervision and tragedy riposte, catastrophe vindication, and humanitarian forensics. This experience is amassed from quite 150 years of operating in conflict zones and from an operative composure in additional 90 countries, mounting the ICRC to fetch effective recommendation and attend to state authorities & (NSAGs) in the retort to the getaway. UDHR ascribes kinsfolk subsist to be put up with autonomous and equal in dignity and rights” (Article1). These rights are “inalienable” to every person. The Human Rights Convention are for infractions of the treaties outlined in the testimony, while the assertions can be bought in by any victim of the violation a defunct person cannot do the same. The resolution 2005 on human rights & forensic science played up the primacy of distinguished human remains antidote, acclimating adequate composure & discarding similarly as of reverence for the clans’ desire. Geneva Convention 1949 certifies everyone to the dispute forthwith foster the deeds seized to patrol the annihilated – counteracting ill-treatment.” Even in modern days, international humanitarian legislation puts up to corroborate that even during the crossroads of war and conflict; the dead bodies of the combatants are not disdained out of vengeance and enmity. International Human Rights Law recognizes discretion on rights neither arbitrary nor discretionary based on scientific testimony. The convention I of Geneva (Article 17), Convention III of (Article 120), Convention IV (Article 130), Article 8 Additional Protocol II, Cairo Declaration Article 3 on Human Rights & other relevant legitimate instruments, furnish for the honourable entombment of the combatants and prisoners of war. The veneer of the lifeless person ought to be cherished even during the times of crusade & discord, there could be no justification to divest an individual who withers in the eternity of peace of the identical right of a respected burial and funeral rites, which the person would have otherwise been entitled to, if not for the pandemic.

According to Cal Health “Cremation” ensues in three strides the constriction of the core of a bygone human to its indispensable components via immolation, transferring or the body during incineration to elicit the system, processing of the remains after exile from the funeral courtyard. “In a country statute which stymies the establishment or upkeep in any one township of surplus than one crematory for the cremation of mortal cadavers cannot be bolstered as a police measure as against a cemetery association located near another crematory and in close proximity to several cemeteries and in a neighbourhood where there are, but irregular dwelling-houses and no buildings devoted to any business except that of burying the dead.”

PLUGGING GAPS OF CONSTITUTIONALITY: DIGNITY IN DEATH

The pestilence hasn’t only exemplified spirit, security and financial crisis, yet a crisis of conviction in the decisive crusade of humans. The Right to Life being an inclusive concept, affirms no soul shall be pillaged of life or liberation or property befitting mulled over the spectrum of Article 21 by insinuating the medication of cadavers in the additional terms – “The perspective of repudiation whacked by Article 21, whether such deprivation is permanent or temporary.” Life sans status is an icky debacle & verve that congregates cessation with dignity is a virtue to be yearned for and a juncture for celebration”.

Article 21, the kick pin of all other rights renders no soul ought to be knocked off of life or liberty by dint of the ‘procedure’ recounted in Article 21 has been skimmed into the ‘due procedure’ by the Supreme Court and implied treatment must be fair, just & reasonable. Over the epoch, the Supreme Court has deciphered Article 14 & 21 to entail myriad privileges within its ruffle.

The Apex Court adduced quoting that illustrated “life” in additional words: “Something more than mere animal existence. The inhibition against its forfeiture amplifies to all those limbs and faculties by which existence is relished. The overhead equally hampers the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul articulates with the outer world” congruently conserving the term ‘life’ meant the freedom to dwell with grace & the analogous embargoing stalled drudgery. The Article flexures “some of the finer graces of benevolent refinement, which propels life worth living” & an intensified notion of cinch may credit “society” of the apprehensive person. Eventually, dignity isn’t the sole sleuth to a living man but after his demise was put as deposition by the Supreme Court has been overstepped in Satyama Dubey v. U.O.I.

Further, the court ratified the diverse undertakings stripped away by the Police and the local body for procuring an adequate crypt to an abandoned dead person, according to the pious morality to which he belonged. The petition was disposed of based on affidavits. The hegemonies, & culture, the indistinguishable compassion with which a living being is anticipated to be cared for, should also be magnified the ones who are dead”. Praxis and heredity stances are innate to the ultimate ceremony of an individual’s vivacity. The decent interring is sketched in Article 25 that waives for leeway of conscience & autonomous profession, practice and propagation of faith subject to civil declaration, righteousness & vigour in Part III of the Constitution. Regime edicts overriding canonical practices for lifeless torsi should in no way be deemed discriminatory but must be a commensurate standard to impede disorders and casualties on the pretext of the virus, while simultaneously assuring public protection and economic wellbeing of India.

Please read concluding on thedailyguardian.com

It is vital to think back that is ephemeral and is the modus Vivendi to steering the ragged waters of rash, individually but concurrently.

EPILOGUE

The contemporary catastrophe dissembles as a spur transgressing the rights of a lifeless person despite on fleek backing of the legal bracket. The Conclusions sound prettier than the present is as the crisis is deep & has led to reports of untold human grief. Death has taken its toll as the health system crumbles the lives could be saved however policy stiffness cropping up blazing pyres shaping the vicinity between the living & the dead. A two-pronged strategy effectuating even-handed botch vaccine allotment must be carried out & tapering off SARS COV 2 transmission whilst the vaccine is rolled out.

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Modern technology and challenges over privacy: An analysis

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INTRODUCTION

Privacy has always been concerned in this technical era. On one hand, where it has been simplified our life, on the other hand, it has always been questioned over Privacy. Once again the privacy concern has become a burning and sensational topic which is being discussed around the globe. Recently, an investigation by international media has revealed that more than 50,000 phone numbers across the globe have been targeted for hacking through the spyware called ‘Pegasus’, which has been developed by the Israeli firm NSO Group. Furthermore, Over 300 Verified phone numbers used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists, and others, were targeted using this malware. 

It has once again called the regulations for surveillance in India. In India, Communication surveillance takes place primarily under two laws one being the Telegraph Act, 1885 and the other being the Information Technology Act, 2000. On one hand, The Telegraph Act deals with the interception of calls, while on the other hand, the IT Act deals with surveillance of all electronic communication. Although, it is also notable that India still lacks a comprehensive data Protection law to fill the gaps in the existing frameworks for surveillance. 

LAWS REGULATING SURVEILLANCE IN INDIA.

Telegraph Act, 1885 

Section 5 (2) of the Telegraph Act states that “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order….”

Under this provision, the government has been authorised to intercept calls only in certain situations like when it is in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offense. Moreover, an additional proviso under section 5(2) states that this lawful interception can’t take place against journalists provided that “press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”

Hon’ble Supreme Court while dealing in the case of Union for Civil Liberties v. Union of India (1996), finds the absence of procedural safeguards in the provisions of the Telegraph Act. In the same judgment, the Hon’ble court also laid down certain guidelines for interceptions. The court observed that authorities who are engaged in interception were not even maintaining adequate records and logs on the interception. Furthermore, the court also states that “Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to a sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of Subrosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day”. The guidelines by the Hon’ble Supreme Court formed the basis of introducing Rule 419A in the Telegraph Rules in 2007 and later in the rules prescribed under the IT Act in the year 2009.

IT ACT, 2000

Furthermore, to address electronic surveillance, Section 69 of the Information Technology and Information Technology (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted. Under the IT Act, all electronic data transmissions are permitted to be intercepted. So, in terms of the Pegasus spyware, it may be legal. Both the IT Act and the Telegraph Act would have to be invoked by the government. Furthermore, in addition to the restrictions imposed by Section 5(2) of the Telegraph Act and Article 19(2) of the Indian Constitution, Section 69 of the IT Act adds another dimension that broadens it — interception, monitoring, and decryption of digital information “for the investigation of an offence.”

Significantly, it does away with the condition precedent established by the Telegraph Act, which requires “the occurrence of a public emergency in the interest of public safety,” broadening the scope of powers under the law.

IMPACT OF SURVEILLANCE

There are plethoras of examples in this world where personal data are misused for many different reasons. Many people and organizations are under surveillance which is vocal and takes active participation against the criticism of the ruling political party. These things make us understand the impact of surveillance on our freedom of privacy, freedom of speech, and expression and curtail our fundamental rights. Surveillance poses threat to press freedom. The World press freedom index published by Reporters without borders ranked India 142 Out of 180 countries in the year 2021. The press needs greater liberty on privacy and speech because these two enable good reporting. They secure journalists against the threat of government reprisal against honest reporting. 

A report on Privacy rights and protection was published by Forrestor, an American company in the year 2019, In India, the laws which allow the government to conduct surveillance over its citizens are very clearly undermining the laws related to the data privacy to its citizens. In the case K S Puttaswamy v. Union of India, the Hon’ble Supreme court of India held that the right to privacy is a fundamental right that comes under the domain of articles 14, 19, and 21 of the constitution but there is a lack of data protection law in India. In absence of this kind of law, it becomes just an executive order which allows the agencies to encroach on the privacy of their citizens. Also, it is very important to note that people who are under surveillance are unaware of the fact that agencies are monitoring them. In the absence of privacy laws, the security of journalists whose work criticizes the government and their safety is jeopardized. In the case of Ritesh Sinha v. State of Uttar Pradesh, the Apex court held that the right to privacy is not an absolute right, it is also subject to restrictions as with other fundamental rights. It was asserted that the right to privacy is not absolute and must bow down to compelling public interest. We still need a number of judicial pronouncements to determine how the right to privacy operates in a practical scenario. Since there is a lack of Judicial pronouncement, the court relies on the German principle “test of proportionality”. This test is used by different countries for the determination of conflicting rights. The Hon’ble supreme court has applied this principle in various cases such as Chintaman Rao v. State of Madhya Pradesh, state of Madras V. V.G. Row, etc to balance between the rights and limitations. In this principle, there are four stages to determine the balance of rights and limitations. The legitimate goal stage, suitability, necessity stage, and balancing stage that help us to strike balance between the two. But this is only effective when a particular case comes under the cognizance of court. 

The Surveillance uproar the spread of Authoritarianism in the government system because the executive uses excessive power on the citizens and impacts personal lives. When it is carried out entirely by the executive curtails article 32 and article 226 of the constitution as it happens in secret and thus affected person is unable to show their breach of rights. This not only violates the ideals of due process of law but it is also against the requirement of procedural safeguards as held in the case of K.S Puttaswamy v. Union of India. 

CONCLUSION AND SUGGESTIONS 

To implement the ideals of due process of law and to satisfy the requirements of procedural safety and natural justice, there needs to be judicial observation. The judiciary is the competent body to determine whether specific instances of Surveillance are proportionate or not to balance the government’s objective and the rights of the individuals. The judicial investigation into the Pegasus hacking is important because the leaked database of targeted numbers includes the phone number of a sitting Supreme court Judges, which again raises the question of the Independence of the judiciary in India. 

In India surveillance reform is the need of the hour, the existing protections are weak and the proposed legislation related to personal data fails to consider surveillance of the citizens. We need greater transparency in our system, governmental agencies are only accountable to the government itself. For the protection of National security, the government is bound to do smaller infringements of Fundamental rights and surveillance reform should incorporate ethics of surveillance which includes the moral values of how surveillance regulates. The government of India is in process of enacting a law for the purpose of protecting of personal data of the citizens. There is an urgent need to include privacy as a fundamental right and to provide a defining mechanism to strengthen the rights of the citizens and to provide a remedy in case of violation. 

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