The rights available to children with special needs when it comes to their education

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August 1, 2021

This article is written by Anusha Misra from NALSAR University of Law. This article evaluates the educational rights of children with special needs.

Table of Contents

Introduction

Ensuring that children with special needs receive the education to which they are entitled might be one of the most difficult situations for parents. Some children struggle in school, with issues ranging from concentration, learning, language, and perception to behavioural issues and/or making and keeping friends. Others suffer from more serious issues, such as medical or psychological ailments, emotional issues, or learning disabilities. Whatever the situation, these children are still entitled to an education.

All citizens, including the disabled, have the right to education. Article 29(2) of the Constitution states that no citizen shall be refused to enter into any state-run educational institution or receive state-funded help on the basis of religion, race, caste, or language. Article 45 of the Constitution mandates that all children (including the disabled) receive free and obligatory education until they reach the age of 14. On the basis of religion, race, caste, or language, no child can be denied entrance to any state-run educational institution or receive state-funded aid.

The Right of Children to Free and Compulsory Education Act, 2009

The government has taken some special steps to ensure that one’s child receives a good education. To begin, the Right of Children to Free and Compulsory Education Act of 2009 ensures that all children aged 6 to 14 get free and compulsory education in a neighbourhood school. Exercising this privilege entitles students with disabilities to free textbooks, clothing, writing materials, and specific learning and support materials. This is something they can do at any moment, right from class 1 to class 8. Moreover, just like every other fundamental right in the country, any child in this age group, regardless of caste, socioeconomic background, region, language, or gender, can exercise his or her right.

Which disabilities are covered under the Act

Children falling under the following three categories have the right to free and compulsory education in a neighbourhood school as per law:

Children who are blind, have low vision, have been cured of leprosy, have hearing loss, locomotor disability, mental retardation, or mental illness;
Children with any of the conditions relating to autism, cerebral palsy, mental retardation, or a combination of any two or more of such conditions and includes a child suffering from severe multiple disabilities;
Children with severe disabilities, that is eighty percent or more of one or more multiple disabilities.

Specific learning disabilities are not currently recognized under this Act. Although the adoption of the Rights of Persons with Disabilities Act would be a step forward, things may not change until a certification mechanism to identify these disabilities is established under the Act’s standards.

What is one’s child entitled to under the Act

The Delhi School Education (Free Seats for Students from Economically Weaker Sections and Disadvantaged Groups) Order 2011 includes “children with special needs” and “disabled students” (as defined under the Persons with Disabilities Act). As a result, they are classified as children from “disadvantaged groups,” and are eligible for the 25% of seats allotted for children from “disadvantaged groups” in specified schools.

These children can also be enrolled in all schools under the Act through regular intake and are entitled to protections such as:

No holding back or expulsion till class VIII
No physical punishment or mental harassment
Payment of capitation fees is prohibited, and screening processes are required.

Within two years, all accredited, aided and unaided private schools in Delhi must hire special educators and make the school premises barrier-free. If students with impairments were already enrolled in these schools, these procedures have to be implemented at once. Otherwise, the school may lose its accreditation. Children with severe disabilities are also entitled to receive education at home. A special educator must come to the child’s home to teach them in a home-based setting. It is vital to remember that these pupils are not required to attend a home-based school.

Where can one’s child avail these rights

Children can exercise these rights under neighbourhood schools defined as:

Neighbourhood schools are ones that are as close to the child’s home as feasible, yet within a one-kilometre radius, for children in grades I through V.
For children in grades VI to VIII, neighbourhood schools are those located as close as feasible to the child’s home yet within a three-kilometre radius.
Despite the fact that the Act requires a school mapping exercise to be completed in order to identify schools that would be considered “neighbourhood schools,” it appears that this has not been done.
Since other factors are prohibited by the Act, there is a set of criteria in the Recognized Schools (Admission procedure for pre-primary class) Orders (as amended) that allocates 70 out of 100 points to pupils who live within an 8-kilometre radius of the school.

Exceptions

Not every neighbourhood school is required to provide free and mandatory elementary education to all students. Schools that provide religious instruction, for example, are exempt from the Act. Also, not all of the Act’s provisions apply to all other schools. The amount of money a school receives from the government or a local government determines how far it will go to comply with the provisions of this Act.

For instance:

If a school is formed, owned, or managed by the government or a local government, it must provide the following:

Give all elementary school students and pre-school students (where services are given) free and obligatory education; and
If a child is enrolled in a school that does not provide for the completion of primary education, they can request a transfer to one that does.

If an aided school receives government or local authority funding or grants to cover all or part of its expenses (Section 2 (n) (ii)), it must provide:

Only a percentage of children accepted (including in pre-school, if services are available) free and compulsory education; the proportion depends on the amount of government help received (subject to a minimum of 25 percent) and,
If a child is enrolled in a school that does not provide for the completion of primary education, they can request a transfer to one that does.

If the school is unaided and does not receive any government or local authority aid or grants to cover its expenses, or if it belongs to a specific category, such as Rajkiya Pratibha Vikas Vidyalayas, Kendriya Vidyalayas, Navodaya Vidyalayas, or Sainik Schools, the school just needs to provide:

Only 25% of the strength of Class I, free and obligatory education for children from the poorer part and disadvantaged groups in the neighbourhood, as well as pre-school students (where services are provided).

What can one do when their child’s right is infringed

There have been various initiatives by parents of disabled children to assure the implementation of their children’s rights. Pramod Arora, a parent of a disabled child was successful in his challenge to an amendment to the Right to Education Act. His efforts were successful in obtaining specific admission procedures for children with exceptional needs. This included the appointment of a Nodal Agency under the Department of Education to supervise all admissions of these children.

While all schools, including private unaided schools, are required to make their campuses barrier-free and hire special educators, the court ordered the Department of Education’s Nodal Agency to keep a zone-by-zone list of schools and the impairments they can accommodate.

What’s the application process for these schools

Admission applications can be sent to any school that can accommodate an applicant’s impairments, and in this case, the Nodal Agency will waive the requirement that the school is located in a neighbouring region.

A similar form for admission of children with disabilities must be sent to both the schools and the Nodal Agency, and the applicant may list up to five schools of their choosing. The application should be sent to the applicant’s top-choice schools as well as the Department of Education.

What are the parents’ responsibilities in the special education process

Parental responsibilities might change depending on a variety of issues, including the child’s disability. Parental obligations, as a result, are less well defined than parental rights.

Some of the following tips, however, may be useful in ensuring that your child’s rights are protected:

Develop a partnership with the school and share relevant information about your child’s education and development.
Ask for clarification of any aspect of the program that is unclear to you.
Consider and discuss with your child’s teacher how your child might be included in the regular school activities program. Do not forget areas such as lunch, recess, art, music, and physical education.
Monitor your child’s progress and periodically ask for a report. If your child is not progressing, discuss this with the teacher and determine whether the program should be modified.
Discuss with the school any problems that occur with your child’s assessment, placement, or educational program. If you are uncertain about how to resolve a problem, you can turn to the advocacy agencies found in most states for the guidance you need to pursue your case.
Keep records. There may be many questions and comments about your child that you will want to discuss, as well as meetings and phone conversations you will want to remember.
Join a parent organization. In addition to giving parents an opportunity to share knowledge and gain support, a parent group can be an effective force on behalf of your child.

The National Education Policy and educational rights for children with special needs

The National Education Policy 2020 (NEP) of India has been lauded as ushering in a new age of educational reform. It does, however, occur within a context of chronic policy inadequacies in the education of disabled children. In India, inclusive education has been defined as the education of children with disabilities. Disabled children rarely graduate from primary school, with only 9% completing secondary school. Around 45% of disabled people are illiterate and only 62.9% of disabled people between the ages of 3 and 35 have ever attended regular schools. Disabilities of particular types and genders are disproportionately affected. Children with autism and cerebral palsy, as well as girls with impairments, are the least likely to attend school. The most common barrier to a child’s access to pre-school and primary education is a disability. Less than 40% of school buildings have ramps, and only about 17% of schools have accessible restrooms.

Despite the fact that technology is a major focus of the NEP. The finalized policy incorporates several recommendations of disability organizations on the 2019 draft. According to the NEP, children with disabilities will be able to participate equally in all aspects of the educational system. The 2016 Rights of Persons with Disabilities Act (RPWD) and its provisions for inclusive education, which is defined as a system of education in which students with and without disabilities learn together, are a big success. Nondiscrimination in schools, accessible infrastructure, appropriate accommodations, tailored supports, the use of Braille and Indian Sign language in the classroom, and monitoring are just a few of the proposals. The policy calls for the hiring of special educators with cross-disability training, as well as the inclusion of disability awareness in teacher education.

Conclusion

The ethics of the dual system are being questioned in light of the struggle to assert and safeguard the rights of the disabled. The common system, which would bring ‘everything’ onto a single platform, is seen as a better choice. As a result, it’s critical to implement a variety of changes at various levels in order to create a ‘school for all’ with an inclusive curriculum. The curriculum must be balanced in such a way that it is accessible to all while also catering to the particular requirements of all students. It’s also crucial to examine educational difficulties. All pupils should be able to access the curriculum, which would necessitate specialized assistance. Then, by providing this specialized help, care must be taken to ensure that learners with special needs are not isolated from the rest of the class.

Another factor to consider is how the school organizes itself to be an effective school that caters to the particular needs of all students. While maintaining flexibility in the curriculum’s timetable and delivery, the school should also make available the necessary resource support in the form of special educators, assistive technologies, and teaching-learning materials. Professional development for teachers and educators is critical, and it must include attitudinal shifts as well as the information and skills required to lead to a more inclusive society. Finally, no inclusive education project would be complete without collaboration with parents and external support from NGOs and special schools for training, curriculum delivery, and assessment, among other things.

References

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Rights of the deceased amidst Covid-19

By

Oishika Banerji

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August 1, 2021

0

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This article has been written by Adarsh Vasudeva, pursuing the Certificate Course in Advanced Civil Litigation from LawSikho.

Table of Contents

Introduction

“The right to life, fair treatment and dignity, extend not only to a living person but also to his dead body”

We have battled for our rights our whole lives and will most likely continue to do so in the future, but we seldom consider the potential of losing those rights when we die. Will they accompany us to our grave or they will die with our death? You will learn about the rights of the deceased after reading this article. Various rights, precedents, and rules exist in this regard.

When news of hundreds of dead bodies floating in the sacred river Ganga surfaced, the whole human race was scared. We want to live a respectable life, but do we also desire a dignified death? The incident was so intense that even the National Human Rights Commission in its advisory for “Upholding the Dignity and Protecting the Rights of the Dead” dated 14th May 2021 has clearly stated that legal position related to the right to life, fair treatment and dignity, derived from the Article 21 of the Constitution of India, extends not only to the living persons but also to their dead bodies and asked all governments to follow the recommendations within 4 months.

The discovery of hundreds of Covid-19 bodies floating or dumped in Indian rivers paints a grim picture for us, and it also suggests that people and governments are unaware of the rights of the dead. As a result, this article serves as a wake-up call to our country’s institutions and citizens, informing them that even the dead have certain rights, including the right to a dignified death.

Laws related to the Rights of deceased

Section 404 of IPC (Dishonest misappropriation of property possessed by deceased person at the time of his death):

According to this section, the offender must have a dishonest purpose and misappropriate or convert to his own use property that belonged to a deceased person at the time of his death. He must also know that such property was in the dead person’s possession at the time of his death and has not come into the custody of any person lawfully entitled to such possession since then when he misappropriated or converted it to his own use. When the criminal was the deceased’s clerk or servant at the time of his death, the section provides for a more severe sentence.

Section 499 of IPC (Defamation):

Defamation is defined as any person who with his spoken or written words, signs or visible gestures makes or publishes any imputation concerning any other person with an intention to harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. The person making the imputation should know or have cause to suspect that the imputation would damage the individual’s reputation.

Explanation No.1- Scope of Section 499 of IPC covers defamation of deceased person as well and creating or publishing any imputation on any deceased person which would harm the reputation of that person if living, and has the intention to hurt the feelings of his family or other near relatives may amount to defamation.

Actio personalis moritur cum persona the Latin expression which means “a personal right of action dies with the person” is not substantive enough in the matter concerning defamation of a deceased person as defamation can legitimately give rise to criminal prosecution for the offence of defamation against a deceased person.

Explanation – It was added to Section 499 IPC by assuming that any person can get triggered to commit offences if a deceased member of his family or any deceased close relative is defamed, which would further cause a breach of the peace as well.

Also, in Pat Sharpe vs Dwijendra Nath Bose, it was held that “Even if Netaji is dead, it is defamation because the imputation would have harmed his reputation if alive and the imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives, thus in any view of the matter the words used do amount to defamation.”

Section 503 of IPC (Criminal Intimidation):

This section deals with Criminal Intimidation which states that if any person threatens another with injury to his person, property or reputation, and the other person is forced to do or omit anything he is not legally compelled to do or omit, that person is guilty of criminal intimidation. The scope of this section also covers the threat to injure the reputation of any deceased person in whom the person threatened is interested.

Section 297 of IPC (Trespassing a burial place):

Trespassing on burial grounds, for example, with a guilty mentality is punishable under this law. According to the provision, anybody who commits trespass in a place of worship or a site of sepulture, or any other area set apart for the fulfilment of funeral rituals or for the deposit of the remains of deceased people, or who provides any indignity to any human dead corpse, or causes a disturbance to any persons who have gathered for the purpose of performing funeral ceremonies, either with the intent of wounding the feelings of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted, shall be punished with simple omission.

Transplantation of Human Organs and Tissues Act, 1994 (THOTA)

The THOTA regulates the removal, storage, and transplantation of human organs and tissues for therapeutic purposes, with the objective of preventing commercial dealings in human organs and tissues as well as matters connected therewith or incidental thereto. THOTA ensures that a deceased person’s human organs, tissue, or both are protected and preserved from being taken without his or her agreement or the approval of close relatives.

International framework ensuring the dignity of the dead

Article 16 of the Geneva Convention 1949 provides for the steps to be taken by each party in armed conflict to protect the dead people from ill-treatments.
Article 3(a) of the 1990 Cairo-Declaration on Human Rights in Islam prohibits the mutilation of dead bodies in the event of force and armed conflict.
UN Commission on Human Rights in a resolution adopted in 2005 emphasised the importance of dignified handling of human remains, including their proper care and disposal, as well as consideration for the concerns of families.
The UN’s Inter-Agency Standing Committee’s Operational Guidelines on Human Rights and Natural Disasters Recommend that suitable efforts be made to “encourage the repatriation of remains to relatives.” Measures should be in place to enable the recovery of human remains for future identification and, if necessary, reburial.
International humanitarian law [Article 130(1) of the Fourth Geneva Convention] provides that it is the duty of States to see that ‘graves are respected, properly maintained, and marked in such a way that they can always be recognized’.

Burial rights and COVID-19

During the waves of COVID 19, while several dead bodies were discovered dumped in the river, many others were discovered buried in the sand with no means of cremation. Concerns have developed over the handling of the deceased during the epidemic, with improvised crematoriums, pyres overflowing with bodies, and corpses floating in waterways. The manner in which we offer death to these people raises major concerns regarding the burial rights that were meant to be granted to them.

Body disposal comprises proper burial facilities, the right to be buried with dignity, and the right not to be pulled from the grave for any cause other than those listed in the law for any crime investigation or for the welfare of society. These were seriously infringed amid Covid-19. Corpses, it is believed, have the right to lay undisturbed and unmolested. This involves protecting the bodies from damage or contempt. Even in the Christian community’s tomb, an inscription such as RIP (Requiescat in Peace), which means Rest in Peace, may be seen.

If our system is required to fulfil the desires of the deceased by carrying out his will, the same system is also required to provide appropriate directions for the preservation and disposal of the dead bodies, and for that purpose, to give an expanded meaning of the term “person” under Article 21 of the Constitution to include dead bodies of persons who were human beings in a resuscitation.

The National Human Rights Commission issued the notifications after observing that public authorities had failed to take concerted measures to educate the public and prevent the immersion of half-burned or unburned dead remains in the Ganga.

NHRC recommendations

The NHRC’s ruling, which included 11 important recommendations, was prompted when it received a complaint based on multiple media stories expressing concerns that, deceased corpses which were found floating in our holy Ganga River, belonged to Covid victims. The disposal of deceased bodies in this manner may have a significant impact on all those people who rely on the holy river for their daily activities, according to the complaint.

The commission’s first significant recommendation is to establish special law to safeguard the rights of the deceased, based on its understanding that the right to life, fair treatment, and dignity derived from Article 21 of the constitution extends not just to living people but also to their dead bodies. Given the enormous number of deaths during the second wave of the COVID-19 epidemic, as well as the difficulties in managing dead corpses, the commission issued the advice for maintaining dignity and safeguarding the rights of the deceased. The recommendations included:

Making immediate interim measures to minimise unnecessary delays in cremations was one of the proposals.
It also emphasised the importance of sensitising cremation/burial ground workers about proper dead corpse handling, as well as the necessity to provide them with the required safety equipment and facilities.
The NHRC recommended that in cases where family members or relatives are unable to perform last rites because they are infected or are unwilling due to fear of becoming infected, or where repatriation of the body to the family is not possible, the state/local administration perform the last rites of the body, taking religious/cultural factors into account.
The use of electric crematoriums is recommended by the suggestion in order to prevent the health risks associated with the large-scale emission of smoke from burning pyres.
The panel also advised the authorities to verify that no dead corpses were stacking up during transit or anywhere else, and that mass burial or cremation should not be permitted to take place since it violates the dead’s right to dignity.
Prices for hearse or ambulance services should be controlled so that people are not exploited and do not experience difficulties in transporting the deceased.

Judicial contribution in protecting burial rights of the dead

The Right to Existence, as guaranteed by Article 21 of the Indian Constitution, encompasses several facets of a person’s life, including the Right to Dignity. This privilege has been extended to dead people by numerous Supreme Court and High Court judgements.Major Supreme Court cases and their judgements

The Supreme Court of India in Ashray Adhikar Abhiyan v. Union of India held that the dignity of the deceased must be maintained and respected and homeless deceased persons have the right of receiving a decent cremation according to the religious customs to which one belongs. The court also established that it is the duty of the state to ensure that decent cremation is served to the person.
The right of dignity and right enshrined in Article 21 is extended to cover the scope of dead people also and the right of life means a meaningful life and not merely animal existence.
In the case of Pt. Parmanand Katara Vs. Union of India, it was upheld by the Supreme court that “the word and expression ‘person’ in article 21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect and the State must respect a dead person by allowing the body of that dead person to be treated with dignity”.

Major High Court cases and their judgements

The right to life includes the right for a deceased person’s corpse to be treated with the same respect as if he were alive. The state must treat the dead with dignity and only use post-mortem if absolutely necessary.
On July 27, 2020, the Karnataka High Court ruled that it is the responsibility of the state government and civic body Bruhat Bengaluru Mahanagara Palike (BBMP) to issue guidelines with the goal of ensuring people a dignified death and directed the Karnataka State Government to ensure that dead bodies are properly buried or cremated.
Article 21 of the Constitution guarantees a person’s right to dignity and fair treatment not just while they are alive, but also after they have died. Whether a person dies of Covid-19 or not, disposing of a human body, whether by cremation or burial, should be done with care and solemnity.

Conclusion

It’s a matter of concern that we as humans and citizens of this country are not able to provide oxygen to the living and cremation to the dead. National policy subject to the number of deaths in a state should be framed in order to provide a dignified death to people, in states where a greater number of people are dying, the policy should concentrate more resources and vice-versa. It’s the responsibility of the state, hospital administration and citizens to uphold the dignity of the dead. States should ensure proper disposal of dead bodies and also maintain burial grounds; the medical fraternity should ensure proper handling of dead bodies and as citizens, we have the duty to inform the nearest police station/ambulance/administration about any incident of a death. Providing respect to the dead is the least we can do for humanity.

References

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The process of appearance evolution and codification of citizenship rights in the period of constitutionality

By

Rachit Garg

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August 1, 2021

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367935-citizenship — Image source: https://bit.ly/3yM5Zx5

This article has been written by Smaranika Sen from Kolkata Police Law Institute. This article exhaustively deals with citizenship rights in the period of constitutionality.

Table of Contents

Introduction

Citizenship refers to the legal recognition of a person who is a citizen of a country. Every country has certain legal provisions for the persons living there to be identified as legal citizens. In India, there is special legislation dedicated to the rights of citizens. The Constitution of India also states some provisions for a person to be identified as a legal citizen of India. Through this article, we will be understanding the evolution of appearance and codification of citizenship rights in India.

History

The concept of citizenship began with the commencement of the Indian Constitution in the year 1950. India got its independence in 1947. At that same time, there was a partition of the Indian subcontinent. This partition led to the division of India and formation of a new country called Pakistan. It is believed that the most important cause for the partition of India was religious conflict. During the partition, large numbers of Hindus and Sikhs arrived in India. Later on, some of the Indian Muslims also returned to India who had previously migrated to West Pakistan. This immigration of Indian Muslims caused unrest amongst the countries. Former Prime Minister Jawaharlal Nehru had also acknowledged this problem.

In regard to this problem, the Constituent Assembly, while drafting the Constitution, stated some provisions for the identification of the citizens of India. In India, the population is divided into two classes – citizens and aliens:

A citizen of a state enjoys all civil, political rights.
On the other hand, aliens are those who do not enjoy any rights.

Certain rights are only available to the citizens of India. These rights are such that no one could be discriminated against any other citizen on the grounds of religion, race, caste, sex, or birthplace. The citizens also enjoy the opportunity of equality in the matter of public employment. Article 19, Article 29, Article 30 are only enjoyed by the citizens of India. Besides these fundamental rights, the citizens of India also enjoy some other powers like holding offices of the president, vice president, judges of the supreme court, High court, attorney general, governor, advocate general, etc. Another most important right enjoyed by the citizens of India is the right to vote for elections during Lok Sabha and Vidhan Sabha elections. However, rights guaranteed under Article 14 and Article 12 are also available to an alien.

Constitution regarding citizenship

Part II of the Indian Constitution lays down some provisions relating to citizenship in India. The Constitution, however, does not lay down any permanent or comprehensive provisions regarding citizenship.

Provisions regarding citizenship at the commencement of the Indian Constitution

According to Article 5 of the Constitution, at the commencement of this Constitution, every person who had a domicile in India and any person who was born in the territory of India, or whose either of the parents was born in the territory of India, or who had been residing in the territory of India for not less than 5 years immediately before the commencement of the Constitution, will be deemed as a citizen of India.

The term ‘domicile’ is observed to be very important in Article 5. In India, a domicile is denoted as an essential requirement for acquiring the status of Indian citizenship. However, the term domicile had not been defined in the Constitution. Domiciles can be of three kinds – the domicile of origin, domicile by operation of law, and domicile of choice. In the case of (1984), the Supreme Court of India held that Article 5 only recognizes one domicile, that is, domicile of India. In India, a State domicile is not recognized. For example, Pradeep Jain v. Union of India (1984), if a person used to reside in a state permanently and later on move to another state to reside permanently, the domicile of a person will not change, it will remain the same. In this case, it was also stated that as India is not an absolute federal state, it recognises only one citizenship, that is, citizenship of India.

Two essentials are required for the existence of a domicile:

Residence of a particular kind
An intention of a particular kind

In the case of Louis De Raedt v. Union of India (1991), the petitioners were foreign nationals. They challenged the order of the central government, that is, expelling them from India as they had failed to acquire citizenship of India. They stated that they had acquired citizenship under Article 5(c) of the Constitution. The court held that the petitioners had not established any intention to permanently reside in India. A residence without an intention to permanently reside is insufficient. The intention might not always be direct, it can be indirect too.

Provisions for citizenship of those persons who have migrated to India from Pakistan

Article 6 of the Constitution lays down these provisions specifically for those persons who have migrated and came to India before July 19, 1948, and who had come on or after July 19, 1948. The Article states that those persons who have migrated to India from Pakistan will be deemed as a citizen of India at the commencement of the Constitution subject to certain conditions. The conditions are:

Such person’s either of the parents or the grandparents were born in India as defined in the Government of India Act, 1935.
In such cases where the persons who had migrated to India before 19th July 1948 and had been ordinarily a resident in the territory of India since the day of migration.
In such cases where the persons had migrated on or after 19th July 1948 and had been registered as a citizen of India by any officer appointed by the government of the Dominion of India.

However, no person will be registered unless he/she has been residing in the territory of India for at least six months.

Provision of citizenship for those migrants who had migrated to Pakistan

Article 7 lays down the provisions for those persons who had migrated to Pakistan after 1st March 1947. The Article states that if a citizen by domicile as per Article 5 or by migration as per Article 6, will no longer be considered as a citizen of India, if the person had migrated to Pakistan after 1st March 1947. However, if any person decides to return to India with an intention of resettlement, then such person can become a citizen of India, by fulfilling all the necessary conditions provided under Article 6.

The term ‘migrated’ has been interpreted in the case of Kulathi Mammu v. State of Kerala (1962). The court held that the term migrated referred to any voluntary going from India to Pakistan. In a wider sense, it means moving from one country to another country permanently or temporarily. In regard to this, a question arose in the minds of the people, that whether a short or temporary visit to Pakistan would amount to migration. It was stated that citizenship rights will not come to an end if there was a temporary visit for business or any other purpose.

Provisions for the rights of citizenship of those persons who have Indian origin but are residing outside India

Article 8 lays down these provisions. The Article states that any person whose either of the parents or any of the grandparents was born in India, as defined in the Government of India Act, 1935, and ordinarily residing outside India will be deemed to be a citizen of India. The person will only be a citizen of India if such person had been registered as a citizen of India by the diplomatic or consular representatives of India in the country, where he had been residing for the time being through an application made by such person to the competent authority.

Provisions for citizenship for those persons who have voluntarily acquired citizenship of the foreign state

Article 9 lays down such provisions. The Article states that if any person had voluntarily acquired citizenship of any foreign state, then such person will no longer be determined a citizen of India under Article 5, Article 6, or Article 8.

Provisions regarding the continuance of the rights of citizenship

Article 10 states that any person who was previously deemed to be a citizen of India will continue to be a citizen of India under any provisions mentioned under Part II of the Constitution. However, a citizenship right can only be taken from any person, if the Parliament had expressly made any laws. In the case of Ebrahim Wazir Mavat v. State of Bombay (1954), the constitutional validity of the Influx from Pakistan (Control) Repealing Act, 1952 was involved. According to this Act, no person domiciled in India or Pakistan shall enter India from Pakistan without permission, and if any person does so without permission then it will be treated as a punishable offence under Section 7. In this regard, the Supreme Court held that Section 7 was ultra vires. The right to citizenship under Part II of the Constitution can be only taken away if any law has been made expressly by the parliament of India.

Parliament can regulate laws regarding the right of citizenship

According to Article 11, the Parliament has the power to make any provisions regarding the acquisition, termination, and any other matters regarding citizenship. Any provisions under Part II of the Constitution, will not derogate the Parliament from making any such laws.

The right of citizenship of a company or corporation or association

A corporation or a company or an association is considered a legal person under Indian law. The question which arises is whether any company or corporation or association can be deemed as a citizen of India. To answer this, let us first analyze the provisions of the constitution regarding the acquisition of citizenship.

Citizenship under Part II of the Constitution recognizes only natural persons and not any juristic persons like corporations or companies, etc. In the case of State Trading Corporation of India v. Commercial Tax Officer (1963), the Supreme Court held that a company or corporation is not a citizen of India, and therefore it cannot claim any of the fundamental rights guaranteed by the constitution.

However, in the Bank nationalization case (1970), the court held that even though the rights of the company may be impaired, the rights of a shareholder of the same company cannot be impaired. The fundamental rights of the shareholders are similar just like any other citizen, and therefore their fundamental rights cannot be denied. This judgment was taken as a precedent and later applied to other cases. In another case of Godhra Electric Co. Ltd. v. State of Gujarat (1974), the court held that though a company was not a citizen under Article 19, shareholders of a company had the right to carry on business through the agency of the company.

Evolution of citizenship rights under legislation made by the Parliament

Under Article 11 of the Constitution, the Parliament has been given the right to form laws regarding citizenship. The Parliament had passed The Citizenship Act, 1955 for the acquisition and termination of citizenship after the commencement of the constitution. The Act provides for the acquisition of Indian citizenship in five different ways. The five ways are:

Citizenship by birth: It refers to the citizenship which is acquired by an individual when they are born in India if either of the individual’s parents is a citizen of India, or both the parents are citizens of India.
Citizenship by descent: Under this type of acquiring citizenship, a person living outside India can also get Indian citizenship, if the father of such individual was an Indian citizen at the time of day individual’s birth, or if either of such individual’s parents was a citizen of India at the time of the birth of the individual.
Citizenship by registration: A person may acquire Indian citizenship through an application given to a competent authority to register himself as an Indian citizen. However, it is subjected to certain conditions.
Citizenship by naturalization: Under this process of citizenship, any person may acquire citizenship by legal means.
Citizenship by incorporation of territory: Through this process of citizenship, if any new territory becomes a part of India, then the Government of India will denote every single person living in that territory as a citizen of India.

This Act had gone through several amendments, the latest was made in the year 2019. The main purpose of the Citizenship (Amendment) Act 2019 is to grant citizenship of India to illegal immigrants who belong to Hindus, Sikhs, Jains, Parsis, Christians, Buddhists from Afghanistan, Pakistan, and Bangladesh and had entered India illegally on or before 31st December 2014. However, this amendment was exempted from the northeast states.

Conclusion

Citizenship is one of the crucial rights that every person of a country should possess. It has been observed that citizenship rights give huge gains to the economy of a country. The right of citizenship also ensures certainty for both the immigrants and employers, enhances the strength of the country, and promotes a sense of equality among the citizens. Citizenship also plays a huge role among the students. With the passing of each year, globalisation has increased all over the world. Many students want to go abroad for further studies or acquire degrees from foreign universities. Many laws regarding education differ for the natives and the outsiders. Therefore, it is important to have effective citizenship. It is similar also for those people who want to do jobs outside India.

References

Dr. JN Pandey, Constitutional Law of India.

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Ayushman Bharat and Covid-19

By

Oishika Banerji

-

August 1, 2021

0

m10c064_coronavirus-india-afp_625x300_27_April_20 — Image source: https://rb.gy/wishkg

This article has been written by Adarsh Vasudeva, pursuing the Certificate Course in Advanced Civil Litigation from LawSikho.

Table of Contents

Introduction

Ayushman Bharat is a flagship scheme of the Indian government aimed at achieving the vision of Universal Health Coverage (UHC). The aim of this effort is to achieve the Sustainable Development Goals (SDGs) and the underpinning promise to “leave no one behind.” Ayushman Bharat is an effort to transition from a sectoral and segmented approach to a comprehensive, need-based health care system. This program seeks to implement ground-breaking approaches at the primary, secondary, and tertiary levels to approach the healthcare system holistically (including prevention, promotion, and ambulatory care). Ayushman Bharat being the largest health insurance scheme has a vital role to play during Covid-19 and therefore this article analyses the effectiveness of the Ayushman Bharat scheme pre and post Covid-19. This article also covers key features, budget and coverage of the Ayushman Bharat policy.

Policy key features

Ayushman Bharat was initiated with the aim of establishing 1,50,000 “health and wellness centres” in the country and providing health insurance coverage of INR 5 lakh to 10 crore families (50 crore people). This policy has two components:

Health and Wellness Centers will offer Comprehensive Primary Health Care (CPHC), which will provide free essential medications and diagnostic facilities for both mothers and children.
Pradhan Mantri Jan Arogya Yojana (PMJAY) – To deliver health protection of INR 500,000 per family per year (on a family floater basis) for secondary and tertiary care hospitalization through public and private empanelled hospitals in India, to poor and needy families against financial danger resulting from devastating health episodes.

The aim for this part is to reach 10.74 crore poor and needy families (roughly 50 crore beneficiaries) who make up the bottom 40% of India’s population. The households included are dependent on the Socio-Economic Caste Census 2011 (SECC 2011) deprivation and occupational standards for rural and urban areas, respectively.
It includes up to 3 days of pre-hospitalization and 15 days of post-hospitalization costs such as diagnostics and medications for the recipient at the point of operation, which is the hospital. There are no restrictions about the height, age, or gender of the household. The scheme’s benefits are portable around the world, meaning that a beneficiary can seek cashless care at any empanelled public or private hospital in India.
Benefits provide about 1,393 treatments to include all prescription expenses, including but not limited to medications, equipment, laboratory facilities, physician’s bills, room charges, surgeon charges, OT and ICU charges, and so on. Public hospitals are reimbursed at the same rate as commercial hospitals for healthcare services.

Roll out/ Implementation

The aim of Ayushman Bharat of covering PAN India is fragmented as the Ayushman Bharat – Pradhan Mantri Jan Arogya Yojana is not being enforced in the National Capital Territory (NCT) of Delhi, Odisha, Telangana, or the West Bengal States as of 10.03.2021. The Government of the National Capital Territory of Delhi declared during the 2020 budget session that AB-PMJAY will be introduced in the State, but no further action has been taken. The AB-PMJAY scheme was introduced in West Bengal from September 23, 2018, to January 10, 2019, with a central share of Rs. 31.28 crore released to cover scheme-related expenses. On the 10th of January 2019, however, the state government agreed to stop implementing the program. In the cases of Odisha and Telangana, ongoing consultations with the respective state governments are underway to persuade them to introduce the AB-PMJAY. Rest all other states have implemented the aforesaid scheme. Irrespective of the fact that public health is a state responsibility and the State government in charge of implementing AB-PMJAY has the final say, the vision of this scheme is incomplete without implementing it in the national capital itself, including other major states.

Coverage

As of 25.11.2019, 1,363.14 lakhs beneficiary families are covered under this scheme and 62,49,095 no of hospital admissions have taken place under the benefit of this scheme.
Some important researchers have pointed out that the programme is off-track for the ones who need it the most. According to a report by the Federation of Indian Chambers of Commerce and Industry and EY, a comparison of the cost of select procedures and the reimbursement tariffs offered under Ayushman Bharat reveals that the tariff just covers 40-80% of the total cost, which is less than the variable cost (which includes cost of materials – drugs, consumables, implants, patient food, linen and clinician payout).
According to a study, while an additional 3.5 lakh beds would be needed to fulfil the demands of PM-JAY at a gross capital expenditure of Rs 1 lakh crore, existing hospital operators would not be able to raise bed allocation by more than 25% even after cost optimization.

Role and implementation of Ayushman Bharat amid Covid-19

At the start of the coronavirus epidemic, the national government included treatment for Covid-19 under the ‘Ayushman Bharat Yojana.’ According to a March 2020 circular, Covid-19 therapy and testing will be provided free of charge in any of the private institutions that have been approved for the initiative.

However, in order to make use of the Ayushman Bharat scheme’s benefits, a person must be hospitalised in a hospital for at least one day. If you test positive for Covid-19, you can only use the programme until you are admitted to a hospital. With the condition of being eligible for Ayushman Bharat Yojana, a person can receive treatment for Covid-19 at private facilities affiliated with the scheme.

The COVID19 epidemic and accompanying pan-India lockdown, which has been in effect since March 2020, has slowed AB PMJAY’s growth and uptake in several states. Different states, with varying levels of experience and infrastructure for plan implementation, reacted to the pandemic in different ways. Following the implementation of Covid-19, AB PM-JAY aided the healthcare ecosystem by ensuring that the beneficiary registration procedure remained active and that empanelled institutions continued to deliver services to scheme beneficiaries. However, issues such as constraints on movement, limits on elective operations, reluctance from scheme users to attend hospitals owing to fear of infection, and classification of public institutions as special Covid centres had a considerable influence on the plan’s effectiveness.
Since its establishment, the Ayushman Bharat-Pradhan Mantri Jan Arogya Yojana (AB PMJAY) has authorised nearly 1.26 crore hospital admissions as of 21.09.2020. Out of which 5.13 lakh hospital admissions have been dedicated towards testing and treatment of COVID-19. (Ref: Lok Sabha unstarred question no. 2122 answered on 23rd September 2020). Under Ayushman Bharat, packages for ‘Testing for COVID-19’ and ‘Treatment of COVID-19’ have been notified for treatment of Covid patients in private hospitals.

Utilization of Ayushman Bharat scheme for Covid-19

With a population of over 11 crore people, just 19 individuals in Bihar availed treatment for Covid-19 through the Ayushman Bharat Scheme. According to statistics supplied by the National Health Authority (NHA) of the government of India in response to an RTI request, 875 and 1,419 individuals in Uttar Pradesh and Jharkhand, availed treatment.
Under the Ayushman Bharat initiative, three states — Andhra Pradesh, Karnataka, and Maharashtra — each treated over 1.5 lakh individuals. However, no patient is said to have taken advantage of the plan in Punjab, Gujarat, or Daman. Furthermore, under the programme, ten states reported zero testings.
Up to the first week of June 2021, a total of 23.78 lakh (17.73 lakh testing and 6.05 lakh treatments) admissions have been allowed for free testing and treatment under the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana (PMJAY) which shows that The number of people who have been tested is about three times more than the number of people who have been treated through this system.
Ahead of the announcement of the first nationwide lockdown on March 23, 2020, ABPMJAY saw a 50% reduction in use. From a daily average of 19,161 hospital admissions before the lockdown, the early lockdown period saw a decline to 7,432 admissions per day.
Several external causes have led to the sharp decline in usage for the states indicated above. For example, due to increased strain on empanelled hospitals, states like Maharashtra and Karnataka have seen a decrease in case of bookings on the PMJAY IT system.

Hospitals

Before the lockdown, 51% of the empanelled hospitals were operational. This percentage decreased to 25% during the late lockdown phase. The study reveals a downward trend in the number of active hospitals in both the public and private sectors, with the number of active hospitals falling by over 40% compared to active hospitals before the lockdown. In comparison to before the shutdown, 63 percent of hospitals were open during the late lockdown (59 percent for public and 66 percent for private active hospitals). Small and medium-sized hospitals with less than 100 beds were the most hit, with activity dropping at a faster rate than other empanelled institutions.
Fear of getting COVID-19 infection among hospital owners and employees, or fear of being stigmatised and losing business if they treat COVID-19 patients, might explain the drop-in hospital activity in private hospitals. At the same time, the decrease at public hospitals might be attributed to a lack of staff and resources due to the fact that they are responsible for the bulk of COVID-19 treatments.

Budget of Ayushman Bharat Amid Covid-19

The Government of India’s health insurance allocations has improved substantially since the start of PMJAY. Allocations in the Revised Estimate (RE) were 2,400 crores when PMJAY was launched in FY 2018-19 and raised to 6,400 crores in FY 20 Budget Estimates (BEs), which were the same as Interim Budget allocations. However, there is no raise in funding for the central government’s flagship programme, Pradhan Mantri Jan Arogya Yojana— Ayushman Bharat (PMJAY-AB) for the fiscal year 2020-21. It was Rs 6,400 crore in 2019-20, and it will be the same in 2020-21. COVID-19 has impacted those who have the least access to health services, so the health scheme, which mostly focuses on underprivileged society, should have received more attention before allocating the budget. The INR 6400 crore budgeted for the scheme is insufficient to cover the target population. Even if the beneficiaries spend only 1% of their INR 5 lakh quota in a year, the annual spending will be about INR 50,000 Cr, which is much more than the government’s current estimate and allotment.

Shortage of funds amid Covid-19

Funds Data of AB-PMJAY since the inception of the scheme as on 21.09.2020
Year	Budget Amount (Amount in Crores)	Disbursed Amount (Amount in Crores)	Percentage
2018-19	2,400	1,849.50	77.06%
2019-20	6,400	2,993	46.76%
2020-21	6,400	631	9.86%
Total	15,200	5,473	36.01%

Ref: Lok Sabha unstarred question no. 2122 answered on 23rd September 2020.

The above table compares the budgeted amount and disbursed amount for Ayushman Bharat -Pradhan Mantri Jan Arogya Yojana (AB PMJAY) and observes the following points:

Since the inception of the scheme, only 36% of the budgeted amount has been released.
In 2019-20, less than 50% of funds were released for the scheme.
In the year when the COVID-19 disaster struck and when the scheme was required the most, only 10% of the total funds allotted was released.

According to the aforementioned data, Ayushman Bharat, which was designed particularly for the poor, should have got 100% of the budget allotted. Health flagship programmes should be on their toes at a time when COVID is taking away millions of jobs and lives. But we should also look at the other side of the coin which shows that following the announcement of the first nationwide lockdown on March 23, 2020, ABPMJAY saw a 50% decline in utilisation.

Major State-wise fund allocation in the time of Covid-19

Major States\ Funds (Crores)	Allocation in 2018-19	Allocation in 2019-20	Allocation in 2020-21	% Change during Covid-19 (2019-2021)
Assam	68.67	97.6	89.69	-8.1
Bihar	88.5	88.78	119.22	34.3
Chhattisgarh	36.42	65.66	28.08	-57.2
Gujarat	44.64	49.98	69.75	39.6
Jharkhand	26.02	75.81	0	-100.0
Madhya Pradesh	87.74	87.82	140.35	59.8
Maharashtra	91.27	97.64	138.6	42.0
Uttar Pradesh	176.1	330.85	279.52	-15.5

The table shows an allocation of Ayushman Bharat funds to major states.

Observations

Assam (-8.1%), Chhattisgarh (-57.2%) and Uttar Pradesh (-15.5%) have observed a decline in their fund allocation from 2019 to 2021. Whereas, no fund has been allocated to Jharkhand in the year 2020-21.
There has been a significant increase in fund allocation to the states of Maharashtra (42%), Madhya Pradesh (59.8%), Bihar (34.3%) and Gujarat (39.6%).
While Covid-19 is at its peak in India, the allocation of funds has increased in most of the states whereas states like Uttar Pradesh which was severely affected by Covid-19 has witnessed a decrease in their fund allocation.

Conclusion

As every scheme has the scope of improvement, constant development even in this scheme will help it to achieve its objective. The scheme is somehow underfunded and is impossible to function with 100% compliance. A policy brief paper published by the National Health Authority (NHA), the apex body in charge of implementing Ayushman Bharat, exposes flaws in budget use, especially in poor states. To understand the demand and supply-side concerns that must be addressed, it will be necessary to perform deep dives at the state level through conversations and beneficiary and provider surveys. Based on state-specific studies, guidelines, and inputs, many state health authorities are beginning to perform deeper investigations to examine the feasibility and suitability of these changes for the local environment. In order to guarantee that poor and disadvantaged people have access to vital healthcare, it is critical to harness the ever-growing potential of the private healthcare sector, as well as dramatically improve the infrastructure and quality of care offered in public hospitals. Monitoring the quality and appropriateness of care, as well as having a clear set of standards for hospitals to make their employees and beneficiaries aware of the preventative measures and protect their safety during this epidemic, are also crucial.

During COVID19, AB PMJAY plays a key role in delivering healthcare to impoverished and vulnerable people. All efforts must be ramped up to guarantee that all essential and non-essential hospitalisation treatment is supplied through public and private empanelled hospitals under the AB PMJAY programme, in conjunction with primary care supplied through the public health infrastructure.

References

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A critical implication of the public trust doctrine

By

Sneha Mahawar

-

August 1, 2021

0

Public trust doctrine — Image Source: https://rb.gy/9vamsz

The article is written by Nikhil Thakur from Manav Rachna University. In this article, the author has attempted to provide a glimpse of the critical implication of the public trust doctrine.

Table of Contents

Introduction

The public trust doctrine in India has been developed and evolved through various landmark judgments pronounced by the Hon’ble Supreme Court of India. The Supreme Court of India has deduced this doctrine of public trust from a plethora of sources such as Article 21, Article 39 of the Indian Constitution, and the Common Law.

The phrase public trust doctrine has been utilized to analyse and examine the modern conservation framework. The essence of the public trust doctrine lies in the reasoning that private owners cannot unfairly, arbitrarily, and inefficiently manage or utilize public resources, indeed, it shall be administered and protected by the government on behalf of the current and succeeding citizens.

Meaning

Public trust doctrine

Following the Merriam Webster, “public trust doctrine” means a situation where the state holds the land as a trustee of the public for the sole purpose of benefit of its citizens.

While according to the Cornell Law School, the government protects, preserve, conserve and maintain the resources (cultural or natural) for the public.

In simple terms, the resources namely, air, water, oxygen, sea, forest, and so on, have such an important place in human life that their unreasonable, arbitrary and inefficient utilization by the private owners and enterprises shall not be justified.

The resources as mentioned above are not man-made resources rather natural resources hence, these are a gift of nature that are available free of any cost to every individual irrespective of his/ her status, sex, race, caste, and so on. The doctrine forces the government to protect, preserve and conserve the resources as a trustee specifically for the enjoyment of the public instead of allowing the private individuals or organizations to use them for commercial purposes.

Public trust doctrine ensures two purposes such as:

It ensures effective and efficient state action for the management of resources and
It empowers the citizen to object and raises questions against the state’s inefficient and ineffective management of natural resources.

Historical background

The actual originator of the public trust doctrine was found in Roman law thus, it is not a new concept. The concept of public trust developed during the 6th century when the Byzantine emperor, namely Justinian I, codified the Roman common law. Justinian I in institutes of Justinian, which was published in the year 533 A.D, documented the principle of Jus Publicum, which refers to common ownership upon a few natural resources.

Simply, the said principle was that the resources like air, water, sea, and consequent shores of the sea are the common properties of humans.

The principle Jus Publicum as laid down by Justinian I while codifying the Roman law was utilized and incorporated under the British law, initiating with the Magna Carta. Likewise, Chapter 33 of the Magna Carta was taken from the codified Roman law which stated that entire weirs around the rivers Thames and Medway shall be removed because they interrupt fishing and navigation.

Further, in the year 1217; there were a few insertions in the Magna Carta, the Charter of the Forest, which ensured the protection of public right to access natural resources available at the royal lands

The concept of public trust again got uplifted in the year 1821 under the case Arnold v. Mundy (1821). In the instant case, the plaintiff purchased land alongside the navigable river, where he planted oysters even below the ordinary low-water mark, but when the defendant was attempting to take his oysters from the bed, the plaintiff objected and said that he was trespassing on his submerged land. The court held that the plaintiff could not claim right over the submerged bed because his right is restricted to the landward side of the water edge. The court held that the property submerged is common property, and the proprietor does not have the power to convert the same into private land except by the English Crown.

The court identifies the common property as air, water, sea, fish, and wild beasts, and the title shall be held in the name of sovereign and which shall be protected and regulated for the common benefit. Further, the court observed that following the public trust doctrine and the Constitution, the sovereign itself cannot permit water of the states in favour of any specific person because it would defeat the purpose of common rights available to all the citizens. Later, the US apex court approved the reasoning given under Arnold v. Mundy (1821) in the Martin v. Waddell (1842) case.

Resources that are protected under the public trust

Conventionally, the resources prevailing circumstances and against the plant’s location protected within the ambit of public trust were limited/ restricted to fishing, hunting, boating, air, water, and so on. But, in the contemporary world, the said doctrine allows the state to adopt appropriate actions for effective and efficient management of the public resources along with this, it empowers the public at large to raise questions against such ineffective management of the state.

The public trust doctrine focuses mainly on public resources, whether natural or cultural, and safeguarding those resources. According to Joseph Sax, the public trust shall be protected from private individuals and enterprises. Further, public trust is an amalgamation of procedural and substantial protection hence it would be justified to claim protection against pollution of any kind, strip mining, and so on.

Hence, it can be said that air, water, forest, the sea, oceans, fossil fuels, mountains, and other natural resources are protected under the ambit of public trust.

Public trust doctrine in India

Until 1972, India did not have any legislation concerning “ecology and environment”, but after the Stockholm Conference, 1972 the Indian parliament enacted numerous laws concerning “ecology and environment” such as:

Article 21 of the Indian Constitution encompasses the right to a healthy environment and the right to livelihood. Further, Article 21 also encompasses the public trust doctrine that protects and safeguards the public land and resources. The Indian judiciary, while applying the principle of public doctrine, considered it not only as an international concept but rather as a well-settled and established law in India. The Indian judiciary has applied the doctrine of public trust in the following cases that are.

M.C Mehta v. Kamal Nath (1997)

In the year 1990, Span Motels Pvt. Ltd owner thought of establishing a Span club and to accomplish this, the motel had encroached on a major land area which was explicitly covered under the forest land. At the same time, the then Minister of Environment, Kamal Nath, without any objection and understanding the implications associated with such, gave green chit to the motel to establish a Span club.

Woefully, in the year 1994, a flood took place, which washed away the major portion of the Span club. In response, the motel instead of taking corrective action used bulldozers and earthmovers to divert the flow of the river Beas. But, the next year, a massive flood took place due to such a diversion, and a loss of ₹105 crore was estimated.

The case went to the Supreme Court of India, and it was observed that any kind of harm inflicted to the environment shall be a violation of the fundamental rights as guaranteed under Article 21 of the Indian Constitution. Moreover, the polluter (who has polluted the environment, irrespective of the method used) shall not only be liable to restorative damages but to victim damages also, in case the fundamental rights as enshrined under the Article 14 and 21 are violated due to such an environmental disturbance.

The Hon’ble Supreme Court held that any intrusion to air, water, soil that is essential to one’s life and has been made hazardous should be in clear violation of the phrase ‘life’ within the purview of Article 21 of the Indian Constitution. In simple words, the Supreme Court said that the principle of public trust doctrine rests on the premise that the resources like air, water, the forest which are essential to humankind, cannot be justified if made the subject of private ownership. Thus, the Supreme Court recognizes the doctrine of public trust as an integral part of the Indian legal system.

Furthermore, it was observed that “pollution is a civil wrong and hence it is a tort committed against the whole of the community”. And finally, the Span motels were imposed with a fine of ₹10 lakhs as exemplary damage.

Th. Majra Singh v. Indian Oil Corporation (1999)

Chronologically, the second case concerning the public trust doctrine is Th. Majra Singh v. Indian Oil Corporation (1999). In this case, the petitioner raised an objection against the prevailing circumstances and against the plant’s location that was filling the gas cylinders with liquified petroleum gas.

The Hon’ble Supreme Court observed that the High court’s role is limited to examining whether authorities have taken all the corrective and precautionary steps and the laws concerning environment and pollution have been complied with.

Though the case was decided on the precautionary principle, it was confirmed that the principle of public trust doctrine had become an integral part of the Indian legal system.

In the opinion of the Hon’ble High Court, the doctrine of Public trust is a part and parcel of Article 21 of the Indian Constitution. Further, it was said that the state is under an obligation to ensure the protection and conservation of the environment.

M.I Builder v. Radley Shyam Sahu (1999)

M.I Builder v. Radley Shyam Sahu (1999) is the 3rd case in the series, where the Hon’ble Supreme Court utilized the principle of public trust doctrine. In this case, the Lucknow Nagar Mahapalika sanctioned a private builder to build an underground shopping complex in the historical park. The construction was against the master plan of Lucknow and the Municipal Act.

The builder and the Mahapalika entered into an agreement in which the builder was authorized to lease out the shops to any person of his choice on behalf of the Mahapalika. Even the builder was authorized enough to sign on behalf of the Mahapalika.

The matter went to the High Court, where it quashed the agreement between the builder and the Mahapalika and ordered the Mahapalika to restore oysters to the said historical park. Further, the court considered the construction of the underground shopping complex as illusory because the construction would congest the area.

Later, the matter went to the Supreme Court of India, where the agreement between the builder and the Mahapalika was considered unreasonable and atrocious. It was further observed that the Mahapalika as the trustee of the said historical park, shall be cautious while dealing with it. So, the state act of transferring the said property in the hands of a private individual is a violation of the public trust doctrine.

Moreover, the court held that the construction of the shopping complex is contrary to the public purpose, and allowing such construction would be a deprivation of the resident’s right to the quality of life as enshrined under the Constitution and the Municipal Act.

Conclusion

It has been cleared that the state is not the owner of the natural resources rather, it is the trustee who protects, safeguards, conserves, and preserves the natural resources for its citizens (current and future) irrespective of their caste, sex, race, and so on. These resources cannot be used privately and arbitrarily by the state because these resources are specifically for the benefit of the public at large. The state is empowered to administer the said resources and similarly, the public is empowered to raise questions against such administration or management of resources by the state.

References

https://www.researchgate.net/publication/342851691_A_Short_History_of_the_Public_Trust_Doctrine_and_its_Intersection_with_Private_Water_Law

https://www.lawordo.com/need-of-public-trust-doctrine-in-india/

https://lexforti.com/legal-news/wp-content/uploads/2020/08/Evolution-of-Doctrine-of-Public-Trust.pdf

https://blog.ipleaders.in/public-trust-doctrine-india/

https://www.researchgate.net/publication/287465696_Case_law_analysis_Application_of_public_trust_doctrine_in_Indian_environmental_cases

http://www.legalservicesindia.com/article/1429/Notion-of-Doctrine-of-Public-Trust-In-India.html

https://www.law.gwu.edu/sites/g/files/zaxdzs2351/f/downloads/TheEvolutionofthePublicTrustDoctrineandtheDegradationofResources.pdf

https://www.grin.com/document/584333

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Viewing the scope of contributory negligence in motor accidents in light of the observation of Kerala High Court

By

Rachit Garg

-

August 1, 2021

0

Criminal law — Image source-https://rb.gy/7yubwv

This article is written by Sakshi Singh from the University of Petroleum and Energy Studies, Dehradun. Through this article, an effort has been made to understand the scope of contributory negligence in the Motor Accidents case, in the light of a recent judgment given by the High Court of Kerala.

Table of Contents

Introduction

We all know how often accidents happen these days. Whether it’s our fault or not, we have to deal with it daily. We owe a duty of care towards others while driving, and if we fail to exercise that duty, it can amount to negligence. Negligence means a breach of duty of care or a failure to exercise a standard of care which a reasonable man should have exercised in a particular situation. It results in giving compensation to the plaintiff for their damages. But the question is, what if both the parties are at fault? Would both the parties give compensation to each other? Through this article, we will understand what is contributory negligence, what amounts to contributory negligence, how the law perceives it, and what effect it has on compensation.

Contributory negligence and how law perceives it

Contributory Negligence is where both the parties are at fault, but where the plaintiff is partly at fault for contributing to the damage caused by the negligence of the defendant and would be liable for his contribution to the damage. A claimant ‘contributes’ to his injury when his behaviour falls below what is required by the reasonable person standard, which assesses what a reasonable person would have done to protect themselves from injury. If a person is driving rashly and meets with an accident with a person driving on the wrong side, they will be liable for contributory negligence. It is a defence available to the negligent party which restricts the plaintiff to get compensation.

Instances of contributory negligence

A driver causes an accident to a pedestrian because he neglected to use his seat belt while driving recklessly.
An accident is caused by a worker not wearing the required safety equipment while working on a construction site.

Principles of Contributory Negligence

Two main principles apply to contributory negligence and they are as follows:

If the plaintiff has caused the accident by not using the equipment of appropriate safety, then the plaintiff is not required to obtain compensation for the damages he has suffered.
The defendant will not be able to sue the plaintiff if both parties have taken sufficient precautions to avoid the accident that occurred.

Essentials of Contributory Negligence

There are certain essential elements that must be fulfilled for negligence to be contributory. Otherwise, any individual could complain of contributory negligence and it would create a slippage in the legal system. The essentials are as follows:

There should have been an unforeseeable risk that had occurred to the individual, which any prudent person could have acted upon and taken precautions against.
Evidence must be shown that the available safety device works in nature and is not damaged, and if the person acted reasonably, he could have avoided the accident by using this device.
Evidence must be shown that the individual could access this safety equipment. However, in this case, the individual did not use it.
Proof must be shown that the injury was caused by the negligence of the person not using the specific safety equipment.

The burden of proving contributory negligence

The burden of proving contributory negligence is on the defendant. To avail the defence of contributory negligence, the defendant has to prove that the plaintiff was negligent too, ignored the due diligence, and contributed to his damage.
After it has been proved that the plaintiff has also contributed to the negligence, that is, there is contributory negligence, the court has to decide if the compensation will be given to the plaintiff or not. And if it is given, then how much. Judges have more discretion in determining how much damages should be reduced for the defence of contributory negligence, depending on the facts and circumstances of the case.

Rules in India

In India, there is no central legislation corresponding to Law Reform (Contributory Negligence) Act, 1945. The Law Reform Act, British legislation, intended to dispense liability for compensatory damages as it was considered very fair and equitable between a wrongdoer and an injured party.
Numerous such cases have been brought before various High Courts of India. The courts have relied on the ‘doctrine of apportionment of damages’ of the Law Reform Act to decide compensation in contributory negligence.
Section 8 of the Kerala Tort (Miscellaneous Provisions) Act, 1976 also talks about the apportionment of liability in the case of contributory negligence.
There has been a lot of discussion about how the compensation should be calculated in contributory negligence especially in the case of motor vehicle accidents

Analyzing the case of Kadeeja Musaliyar and Ors. v. Riyas Manakadavan

Facts of the case

In the case of Kadeeja Musaliyar and Ors. v. Riyas Manakadavan (2021), the petitioner was riding his motorcycle carrying his father Mohammedkutty Vaidyakkaran at a moderate speed with due care and caution, and then a Tata Sumo driven by the defendant came in a rash and negligent manner with uncontrollable speed from the opposite direction through the wrong side and collided with the motorcycle. The collision was so strong that Mohammedkutty Vaidyakkaran, the pillion driver was thrown out from the motorcycle. Both the rider and the pillion rider got very serious injuries. The pillion rider, Mohammedkutty Vaidyakkaran passed away as a result of his injuries. Hence, the two claim petitions were filed for compensation before the Tribunal by the legal heirs of Mohammedkutty Vaidyakkaran and the motorcycle’s injured rider.

After going through all the evidence and documents, the tribunal concluded that since the pillion rider that is Mohmmedkutty Vaidyakkaran was not wearing a helmet, he has contributed to his injury as he violated Section 129 of the Motor Vehicles Act,1988, and therefore 20% of the compensation shall be reduced. Aggrieved by the amount of compensation awarded by the tribunal, the third party insurance company and claimants filed a petition before HC.

Issues before the High Court

Whether or not the Tribunal was justified in fixing contributory negligence on the part of the deceased for not wearing a helmet.
Whether or not the compensation awarded by the Tribunal was just and fair.

The contention of parties

The learned counsel appearing for the insurance company contended that the consequence of not wearing a helmet could not be taken as a ground to fix contributory negligence. The Tribunal, in the award, said that non-wearing of the helmet resulted in the death of the deceased. No other aspect was discussed by the Tribunal in the award. In other words, the consequence following the accident is not a circumstance to be taken into consideration for fixing negligence in causing the accident. Just because the rider was not wearing a helmet is not the reason for knocking him down, so negligence cannot be fixed upon the shoulder of the rider merely for not wearing the helmet.

In the case of Ajay Canu v. Union of India (1988), it was held by the court, if the protective headgear, that is a helmet, which is mandatory under Section 129 of the Motor Vehicle Act, was not worn by the drivers or pillion riders who suffered a head injury, then contributory negligence can be assumed but not for causing the accident but for suffering injury which could have been prevented or the impact of which could have been reduced if the person was wearing a helmet and complying with the statutory provision.

Findings of the court

The High Court held that simply because there is a violation of Section 129 of the Motor Act 1988 by a victim in an accident, we cannot presume that there is contributory negligence on the part of the victim who was not wearing the helmet. It must be decided based on the facts and circumstances of each case. So, there is no contributory negligence on the part of the deceased.
The court relied on the decision made in the case of Mohammed Siddique v. National Insurance Company Ltd. (2020). Which dealt with the same scenario of an accident involving a violation of Section 128 of the Motor Vehicles Act. What happened in the case of Mohammed Siddique v. National Insurance Company, the motorcycle in which the deceased was travelling, was hit by the car from behind as the car driver was driving rashly and negligently but the deceased was travelling with 2 others which is a violation of Section 128 of the Motor Vehicle Act.
It was stated that because the 3 people were on a motorcycle, it added to the imbalance which contributed to their damage. The fact that the deceased was riding a motorcycle with 2 others, cannot make him guilty of contributory negligence. This would make him only guilty of being part of the violation of S.128 of the Motor Vehicle Act, 1988 which restricts the driver of a two-wheeled motorcycle not to carry more than one person on the motorcycle.
Therefore, the court stated that riding a motorcycle with 2 others may be a violation of law but such violation by itself cannot be a ground of fixing contributory negligence. There must either be a connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. So, in the absence of any evidence demonstrating that the wrongful act of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim cannot be held guilty of contributory negligence. The same principle applied in the present case, and the court held that there is no contributory negligence on the part of the deceased and therefore, reduction of 20% compensation was unjustified and the same has to be set aside.

Judgement of the court

The claimants are entitled to total compensation of Rs.25,66,093/ with interest at the rate of 7.5%. Court added that it is necessary to ensure that the individual has contributed to the accident that occurred, and while referring to the judgment in the case of PJ Jose v. Vanchankal Niyas & Ors (2016)., It stated that to attribute contributory negligence, further additional evidence is required.

Conclusion

From the above discussion, we understand that contributory negligence is the failure of the plaintiff to exercise due diligence for his or her safety. It’s a defence available to the defendant. To obtain the defence of contributory negligence, the defendant must prove that the plaintiff contributed to his damage, and ignore the due diligence which could have avoided such consequences arising from the negligence of the defendant. Through this case, we understand that to prove contributory negligence, there must be some evidence to show that the wrongful act on the part of the defendant contributed either to the accident or to the nature of the injuries he has suffered. There’s a difference between violating a law and contributing to negligence, as it depends on facts and circumstances. And therefore, the compensation cannot be reduced if the helmet is not worn, it won’t amount to contributory negligence.

References

https://www.legaleraonline.com/amp/from-the-courts/kerala-high-court-motor-accident-compensation-cant-be-reduced-if-helmet-not-worn-it-wont-amount-to-contributory-negligence-742842

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Effect of change-of-terms provisions on the enforceability of online terms of use : USA perspective

By

Shoronya Banerjee

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August 1, 2021

0

This article has been written by Niketa Chitnis, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.com.

Table of Contents

Introduction

Every time you access a social media account or use a website or mobile application, you are bound by the terms of such social media platforms or websites. We are very well aware that such online terms of use or terms and conditions for usage of such platforms are one-sided in the favour of the owner/ developer of such platforms. You cannot access such platforms without accepting such terms and conditions. Terms and conditions to access online platforms usually include a condition reserving the right of owner/ developer to review or change any of the conditions at any time and the user on continuing its use assents its acceptance to such changed terms and conditions of the online platform. In this article, we will see the validity of such change in online terms and conditions in a court of law from the USA perspective.

Online terms and conditions

The effect of change of online terms and conditions on its enforceability is based on these three types of website agreements:

Browsewrap agreements: These agreements have their terms on the website itself. They do not ask you for prior consent. According to Browsewrap Agreements, you simply accept the terms and conditions of the website by continuing to browse the website. For browsewrap agreements, you can continue to browse the website without reading or visiting the actual terms and conditions. Many times users are unaware of the existence of such a page containing terms and conditions for the usage of the website.

Eg: Wikipedia, in this you accept their policies simply by browsing their site.

2. Sign-in wrap agreements: With these agreements, you are notified about the existence of the terms and conditions of the website at the time of signing in and are advised to accept the terms and conditions while registering/ signing up to the site. Users are provided with a hyperlink to the page containing such terms and conditions.

Eg. Gmail, to open a Gmail account one needs to accept its terms and conditions, and the link is provided for the same while signing in.

iii. Clickwrap agreements: These agreements are different from the above agreements, they are designed to ensure that the user has a chance to read the given terms and conditions and they agree to such conditions after being fully aware of them.

Eg. Clickwrap agreements are often used for downloading or installing software. Such agreements are commonly set up through a series of pop-ups on the website. This requires a user to agree to the terms and conditions of the website by clicking the box for “I agree” or “I accept” after they are presented with the terms and conditions or a link leading directly to such terms and conditions.

Legal enforceability of website agreements

Since these terms and conditions are actively agreed upon by the user before any action is taken by him, clickwrap agreements hold better legal enforceability. Sign-in wrap agreements are fact-intensive depending upon whether the user has prior knowledge about the terms and conditions of the website, before continuing to use the site. However, in the case of browsewrap agreements, any action is not required on the part of the user to continue usage of the website. It means the user does not actively accept the terms and conditions of the website after being fully aware of the same. Browsewrap agreements do not hold any strong legal enforceability, unlike clickwrap agreements.

Effect of change of terms provided on the enforceability of these agreements

During recent times, there has been a rise in litigation due to changes in mandatory arbitration provisions contained in these online terms and conditions, subjecting to its effect on the enforceability of these user agreements. One of the recent cases highlighting this issue is Stover v. Experian Holdings Inc., No. 19- 55204 (9th Cir. 2020).
In June 2014, Rachel Stover purchased a service called “Experian Credit Score,” which provides subscribers with their credit score. She agreed to the terms and conditions existing at the time of purchasing this service. The 2014 terms stated that all claims arising out of the transaction were subject to arbitration “to the fullest extent permitted by law,” and that Stover was waiving her right to be part of a class action. The 2014 terms also contained a change-of-terms provision stating that “[e]ach time” Stover “accessed . . . the . . . Product Website,” she would be manifesting assent to “the then-current” terms of the agreement.
Stover alleges that Experian fraudulently marketed the credit score as information that lenders review while determining consumers’ creditworthiness. Stover canceled her subscription to the Experian credit score service in July 2014 and accessed the website in 2018 a day before filing the complaint. However, in 2018 the arbitration provisions in the terms of Experian website had been changed accommodating a carve-out for disputes “arising out of or relating to the Fair Credit Reporting Act (FCRA) or other state or federal laws relating to the information contained in your consumer disclosure or report, including but not limited to claims for alleged inaccuracies in your credit report or the information in your credit file.” All other claims remained subject to arbitration “to the fullest extent permitted by law.”
Stover filed a putative case in 2018, alleging various claims including violation of the Fair Credit Reporting Act, against Experian. The District Court granted the motion, stating that the terms of 2018 were applied, because the 2014 terms which the Stover agreed to, included a clause stating continuous use of the website constituted an agreement to any changes or modifications to the terms at any time.
In an appeal, Experian challenged the decisions of the District Court to enforce 2018 terms, stating that a “mere website visit” after the parties terminated their business relationship is not enough to “activate” a change in terms, because Stover had no opportunity to review the new terms prior to her website visit and be bound by them. The 9th Circuit agreed to this claim explaining, “Stover had no obligation to investigate whether Experian issued new terms without providing notice to her that it had done so. Indeed, the opposite rule would lead to absurd results: contract drafters who included a change-of-terms provision would be permitted to bind individuals daily, or even hourly, to subsequent changes in the terms.”
The contract allows for judicial settlement of public injunction claims, but Stover has not claimed Article III supporting such claims. Therefore, the McGill Rule does not exempt Stover from binding arbitration rights for her claims against Experian. The Judgement of the district court is affirmed. To bind parties to new terms subject to change of terms provision, consistent with basic principles of contract law, both parties shall be aware of such change and shall also have an opportunity to review these changes.
In a similar case in Harris v. BlockBuster, Inc., Facebook had an Agreement in which its customers renting videos from Blockbuster would find their choices broadcast to that customer’s Facebook friends. Plaintiff sued, claiming this practice to be a violation of her privacy right under the federal Video Privacy Protection Act. Blockbuster attempted to invoke an arbitration clause in its terms and conditions already accepted by the Customer, which included rights of Blockbuster to modify the terms and conditions at any time, with or without notice, which are immediately effective on posting such modifications on the website. Court refused to enforce the arbitration provision, considering it to be “illusory.” Miracle Pond v. Shutterfly, Inc., decided by the Northern District of Illinois in May 2020, addresses similar issues. Miracle Pond created a Shutterfly account in August 2014 and agreed to its terms and conditions by Clickwrap Agreement while registering.
The agreement included that the products ordered or services used through their site are governed by these terms and Shutterfly can modify these terms at any time. User signifies his assent to the terms and privacy policy by visiting any of their Sites and Apps. The continued use of their Sites and Apps after posting changes will bind the user with modified terms and conditions. In addition, it is presumed that the user has read and reviewed the terms entirely if the user orders a product from their Sites or App or uses their services. In 2015, Shutterfly added arbitration provisions to the terms of use. Miracle Pond continued accessing her account and placed orders in 2015, 2017, 2018, and 2019. Miracle Pond filed a putative case against Shutterfly in 2019. Shutterfly moved to compel arbitration as per the revised terms of use.
Miracle Pound challenged the revised terms and conditions stating them as unenforceable as they constituted a Browsewrap Agreement. However, the court held Shutterfly’s agreement to be a valid Clickwrap Agreement as Miracle Pond registered with a valid Clickwrap Agreement.
Generally, courts uphold the terms and conditions whenever an online platform requires its user to click an “I agree” or “I accept” button. It is presumed that the user has read these terms and conditions.
Although it is not mandatory to give notice of changes in terms and conditions, most sites give notice of material changes in terms and conditions. The question remains as to what is considered as material. Since the changes in online terms and conditions are not made very often, there should be no harm in making such notice of changes as an embedded requirement. It may be a small step, but it will surely be effective to reduce disputes related to such change in online terms and conditions.
In the final analysis, the understanding, and expectations of average users for what they are signing up for should matter. At the very least, it should include knowing even the slightest changes in the online terms and conditions.

Conclusion

As opposed to California and Illinois, Texas Law prohibits parties from retaining unrestrained right to unilaterally modify arbitration agreements retroactively and without notice. Such arbitration agreements are unenforceable. The majority of cases addressing the effect of change of terms provisions in online terms of use do so in the context of arbitration. A federal court applying Texas Law has held the unilateral modifications of terms and conditions that gave an unrestrained right to the operator, as void. As online terms and conditions are displayed on the website and the user agrees to them, with free consent along with a declaration of being competent to enter a contract, such terms and conditions are termed as valid contracts. Accordingly, users shall accept the online terms and conditions again in case of any modifications in the same.

References

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Privacy rights of AIDS patients in India

By

Diganth Raj Sehgal

-

August 1, 2021

0

HIV-AIDS — Image Source: https://bit.ly/3qKHptT

This article is written by Radhika Ghosh, from Hidayatullah National Law University (HNLU). The article discusses the scenario of privacy rights available to AIDS patients in India.

Table of Contents

Introduction

Acquired Immune Deficiency Syndrome (AIDS) is a serious disease whose cure has not yet been discovered, however, it can be prevented. With the misconception of it being a communicable disease, society ostracizes AIDS patients with different kinds of stigmas. Sometimes, even family members and blood relatives corner the patients. Every human being has some unalienated rights and so do AIDS patients. Just because someone acquires a disease, it does not imply that he/she cannot enjoy that right. Even the Supreme Court justifies the rights of AIDS patients through landmark judgements.

In the case of Mr. ‘X’ v. Hospital ‘Z’, the Supreme Court talks about the various rights of AIDS patients from various perspectives. The main issues that were dealt by the court were whether (i) right to marry is an absolute right, (ii) AIDS patients have a right to marry and right to privacy, (iii) the right to health takes precedence over the right to privacy, (iv) Medical practitioners have an obligation not to disclose the AIDS disease and identity of the patient, etc. The issues on privacy were dealt with in detail in other landmark judgments like Justice K.S. Puttaswamy and Ors. Vs. Union of India (UOI) and Ors.

Challenges faced by AIDS patients

Stigma and discrimination

Even though the government has enacted and implemented various preventive measures and laws regarding AIDS patients, they still suffer a huge amount of discrimination every day. In 2006, a report demonstrated that one out of every three AIDS patients has suffered from extreme forms of discrimination in various walks of life. The same ratio was mirrored in a 2016 report as well. Hence, it could be established that the laws and policies are not working in the way they should, therefore, creating a barrier.

Stigmatization and discrimination are very common within the healthcare sector. In 2013, a study among doctors, medical and hospital ward staff in government and non-government clinics in metropolitan cities like Mumbai and Bengaluru found that one attitude and attribute that was common towards the people affected with AIDS was the denial of providing a place to stay, especially women having children. This denial encouraged the mandatory testing for female sex workers and surgery patients, and blatantly accusing them that they deserved the syndrome as it came to them through sexual intercourse and drugs.

Many studies have shown that HIV-positive people are so stigmatized that they delay treatments or tests in the fear that they might turn positive of the infection. The stigma is so prevalent that it at times leads to missing appointments with doctors, non-adherence to the prescribed methods of treatment, delay in updating the prescription, and so on.

Gender inequality

Gender inequality is also a major challenge. Rural women have very little control over important health issues. Moreover, due to the power play between the husband and the wife, one out of every five women face domestic violence and other cruelty in their home. Hence, convincing the husband to wear a condom becomes a challenge for most of them. A condom can prevent the spread of HIV infection through sexual intercourse. Due to the fear of discrimination, women also delay their regular healthcare and hospital visits. Women, more than men, fear being discriminated against and tabooed from society as a result of the infection because of their low social and economic standing.

India also reports having one of the largest numbers of children orphaned because of AIDS. These children face stigma and an impenetrable barrier in many Indian societies. Enrollment in schools and other development programs becomes very difficult for them. Due to this, it practically encourages the families of these children to shy away from the report lists, and availing the necessary treatments becomes increasingly difficult.

Data issues

Due to a lack of unique patient identifier records, different monitoring and reporting systems used within facilities become incapable of tracking people through the prevalent system in order to provide treatment.

The national need in order to develop and research drugs for HIV infection is to collect medical data of the patients in a systemized and proper way, which does not happen otherwise. This is due to a lack of high-quality data systems that limit the availability of data that can be used for research. In addition to case-based reporting, there lies a substandard structure, and sometimes the population size estimates are outdated, and inadequately trained staff to monitor the epidemic.

Structural and resource barriers

In recent years, there has been a decrease, if not a shortfall in the procurement, management, and distribution of Antiretroviral treatments (ARVs), HIV testing kits, and other HIV commodities, mainly due to supply chain bottlenecks. Even during this pandemic the supply and access of the testing kits and medical attention has seen an abrupt stop in many areas.

Regulating laws to protect AIDS patients in India

Even though there is no robust and comprehensive legislation on HIV/AIDS patients, there are certain basic laws for the protection and welfare of patients, some of them are mentioned below.

The Constitution of India

The Constitution of India, 1950, which is the law of the land guarantees every citizen equal and unbiased justice, liberty, and equality. The following rights are guaranteed to AIDS patients under various provisions of the Constitution.

Article 14 of the Constitution guarantees the right of equality to every person which includes treatment for HIV/AIDS patients.
Articles 15 and 16 protect patients against any forms of discrimination.
Article 21 of the Constitution protects their right to life and personal liberty which also includes their right to privacy.
The Directive Principles of State Policy lays down certain duties of the states towards AIDS patients. Article 38 and 39 talks about the duty of the state to promote social welfare and secure them with social and economic resources respectively. However, these duties are not enforceable in the courts of law.
Article 39 of the Constitution asks the states to ensure all the citizens including the HIV/AIDS patients have an adequate means of livelihood.
Article 42 lays down a duty upon states to make provisions for securing just and humane conditions of work.

Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002

The Medical Council of India entrusts upon certain duties that have to be observed by the doctors towards HIV/AIDS patients in Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002. These are given as follows:

Duty to take care and informed consent from the patient before attending to any medical procedure.
Duty to disclose to the patient the risk associated with the treatment.
Duty to inform about options available and their benefits.
Duty to warn the patient of the harm and precautions.
Duty to admit a patient in an emergency without consent.
The duty of the physician to not abandon his patient for fear of contracting the disease himself.

Immoral Trafficking Prevention Act, 1986

Immoral Trafficking Prevention Act, 1986 deals with sex workers and work-related issues in India. The Act lays down the provision of conducting compulsory medical examinations for the detection of HIV/AIDS. It also states provisions for compulsory testing of the same.

HIV/AIDS Bill, 2007

This Bill is a joint initiative of the government and civil society. It mainly deals with the status and protection of HIV/AIDS patients in all spheres, be it in their domestic spaces or in society. It makes sure that equal rights and opportunities are provided to all of the patients. The Bill aims at providing equal and unbiased opportunities in the areas of education, employment, travel, insurance, healthcare, residence and property, and so on.

The Bill asks for voluntary, free, and informed consent from the patients before their medical history or information is collected and used for research purposes. On the counterpart, the AIDs patients are also imposed with the duty to not spread the disease further through potential means. Hence the Bill confirms the confidentiality clause, but in necessary circumstances, the information or medical history of the patients can be revealed. AIDS patients have access to robust and universal access therapies for prevention, care, and support. The Bill protects risk-reduction strategies from civil and criminal liabilities, as well as harassment by law enforcement. This Bill also provides provisions related to the right to information and education relating to health and the protection of health from the State. It lays special focus on women and children. The bill requires the state to implement IEC programs that are evidence-based, age-appropriate, gender-sensitive, non-stigmatizing, and non-discriminatory.

The Bill has provision for the appointment of a health ombudsman in every district so that easy and quick access to health services could be provided to all persons. Redressal of complaints and a platform to internal complaint mechanisms are also provided. There are fast-track courts that deal with the complaints at a much faster rate and provide creative redressals. The Bill also establishes a link between sexual violence and the victims being prone to the disease more than others, hence it provides for counseling and treatments for sexual assault survivors and asks the states for the setting up of sexual assault crisis centers. It also recognizes certain rights for children and women who are in care homes, and dormitories, as due to their social, and economic conditions they find themselves more prone to AIDS.

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010 contains stringent provisions to curb discrimination against HIV/AIDS patients. The Act penalizes the act of discriminating against any person infected with AIDS. It also punishes people who disseminate such information about the patient which would lead to propagating hatred against the infected person.

According to the proposed bill, the screening process or testing could not be an essential requirement for any kind of employment. Even the patients could not be denied access to public places, education, or any form of enjoyment due to the same reason. Even in the workplace, proper measures must be taken in order to make a healthy and non-discriminatory space for the patients to work.

The Bill also makes a safeguard provision against a minor who hasn’t attained the age of 18 years and any women who are evicted, and they possess the right to live in a shared property. In the aim of deterring rampant victimization of HIV/AIDS patients, the medical costs would be taken into consideration when settlement for maintenance is calculated.

The Bill also says that no one can be forced to take an HIV test. Proper counseling must be accompanied by detailing out the pros and cons before that person goes into the stage of making the choice. The consent must be taken voluntarily, and it must be informed. Under no circumstance can a patient be asked to reveal his status, with an exception of the courts asking to do so.

National Policy on HIV/AIDS and the “World of Work” Policy

The Ministry of Labor & Employment has formulated the “World of Work” and the “National Policy on HIV/AIDS” at the 43rd Session of the Standing Labor Committee. This Policy was developed by the Ministry of Labor & Employment after consultations with ILO (International Labor Organization), NACO (National Aids Control Organization), and Social partners. The policy aims at creating awareness about AIDS alongside working on encouraging actions in order to prevent the spread of AIDS. It also aims to make the workplace supportive and encouraging of suffering patients. The objective of the policy is to curb the stigmas involved with this whole disease and bring in an atmosphere of equal treatment and opportunities at the workplace. It aims to create an open space for the victims of these social stigmas and discriminations and prevent the spread of HIV amongst co-workers and make people aware of the issues regarding the same.

Persons with HIV infection can work as long as they are fit. If there is a test conducted, the person can wish to remain anonymous throughout the process. A special, written and informed consent is required when the research centers come in to collect the medical reports of those patients. No other than professional nurses and qualified authorities can conduct the tests and perform research on them.

The other legislation, policies, and agencies that protect HIV/AIDS patients

Legal provisions in international conventions

The United Nations Declaration of Human Rights

The United Nations, with time, has come up with a lot of steps in order to provide equality and human rights to all individuals including AIDS patients. The United Nations Declaration of Human Rights provides the right to equality to all human beings including AIDs patients. It also lays down certain provisions dealing with equal opportunity of work, personal liberty, opportunity, and security. Various conventions aim at eliminating discrimination and stigmas related to patients’ rights, especially AIDS. Everyone including HIV positive persons has the right to work and take part in the cultural and social life in the community, and be able to enjoy art and share scientific advancement. UN conventions time and again have objectively worked on all persons including the AIDS patients to be treated equally before the law and are entitled to equal protection by the law. The International Community is always searching for various measures in order to protect HIV/AIDS persons. This lays down the fact that not only in India but also in various other countries AIDS patients find it hard to avail themselves of the same rights and opportunities.

The Joint United Nations Programme on HIV/AIDS (UNAIDS)

The guidelines provided by The Joint United Nations Programme on HIV/AIDS (UNAIDS) have provided all the grounds on which rights of HIV-affected people are recognized. But certain factors must be considered after all these efforts like that of penalized people and sex workers who inject themselves with drugs, criminalizing acts like men having sexual intercourse with other men (MSM), or transgender people. It also drives them away from health and social services that could protect them because they fear criminal sanctions. It also lends legitimacy to discrimination and social stigmas that increase risk-taking behavior because they are usually more prone to be victims of sexual violence those tabooed populations will hesitate in accessing justice systems because of the fear of being prosecuted and being discriminated against while appointing them in jobs. Hence, it defeats the whole purpose of the policy as people are already stigmatized or hesitant to interact. or come under the umbrellas of policymakers to design workable HIV programs. Therefore, it could be established that marginalizing or criminalizing the conduct of the vulnerable stakeholders not only violates their human rights but also deteriorates their health but presses the bigger purpose of the conventions and enactments. An overview of all the Rights available to AIDS patients.

Legal provisions under Indian law- Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017

The Indian Parliament has passed the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017 that recognizes and talks about the rights of HIV/AIDS persons. This Act establishes antiretroviral therapy as a legal right of HIV/AIDS patients and states that “every person in the care and custody of the state shall have right to HIV prevention, testing, treatment, and counseling services.” This act also asks the states to provide treatment that shall be accessible and with management centers. It also talks about measures that could be taken by the states to curb the issue of stigmatization of the stakeholders as explained in the following points.

I) Right to Treatment

This Act provides a special right to HIV/AIDS persons regarding treatment. This Act, in addition to providing treatment, specifies the treatment of Antiretroviral Therapy (ART) and holds governments accountable for providing it. The following provisions are crucial in this regard.

Section 13 states that the Central Government and State Government, as the case may be, shall take all such measures as it deems necessary and crucial for the prevention of the spread of HIV infection or AIDS in accordance with the guidelines.
Section 14 states that the measures to be taken by the Central Government or the State Government under section 13 shall include the measures for providing, as far as possible, diagnostic facilities relating to HIV or AIDS, Antiretroviral Therapy, and Opportunistic Infection Management to patients living with HIV or AIDS. Further, the Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to diagnostic facilities, Antiretroviral Therapy, and Opportunistic Infection Management which shall apply to all persons and shall ensure their wide dissemination.

2) Confidentiality

According to Section 8 of the Act, Notwithstanding anything contained in any other law for the time being in force:

(i) No person shall be compelled to disclose his HIV status except by an order of the court that the disclosure of such information is necessary for the interest of justice for the determination of issues in the matter before it;

(ii) No person shall disclose or be compelled to disclose the HIV status or any other private information of another person imparted in confidence or in a relationship of a fiduciary nature, except with the informed consent of that other person or a representative of such another person obtained in the manner as specified in Section 5, as the case may be, and the fact of such consent has been recorded in writing by the person making such disclosure:

Provided that, in case of a relationship of a fiduciary nature, informed consent shall be recorded in writing.

(2)The informed consent for disclosure of HIV-related information under clause (ii) of subsection (1) is not required where the disclosure is made:

(a) by a healthcare provider to another healthcare provider who is involved in the care, treatment, or counseling of such person, when such disclosure is necessary to provide care or treatment to that person;

(b) by an order of a court that the disclosure of such information is necessary for the interest of justice for the determination of issues and in the matter before it;

(c) in suits or legal proceedings between persons, where the disclosure of such information is necessary for filing suits or legal proceedings or for instructing their counsel;

3) Right against discrimination and Right to Employment

Section 3 of the Act provides that no person shall discriminate against the protected person on any ground including any of the following, namely:

(a) the denial of, or termination from, employment or occupation, unless, in the case of termination, the person, who is otherwise qualified, is furnished with-

(i) a copy of the written assessment of a qualified and independent healthcare provider competent to do so that such protected person poses a significant risk of transmission of HIV to another person in the workplace, or is unfit to perform the duties of the job; and

(ii) a copy of a written statement by the employer stating the nature and extent of administrative or financial hardship for not providing him reasonable accommodation;

(b) the unfair treatment in, or in relation to, employment or occupation;

(c) the denial or discontinuation of, or, unfair treatment in, healthcare services;

(d) the denial or discontinuation of, or unfair treatment in, educational, establishments and services thereof;

e) the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public, whether or not for a fee, including shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads, burial grounds or funeral ceremonies and places of public resort;

(f) the denial, or, discontinuation of, or unfair treatment with regard to, the right of movement;

(g) the denial or discontinuation of, or, unfair treatment with regard to, the right to reside, purchase, rent, or otherwise occupy, any property;

(h) the denial or discontinuation of, or, unfair treatment in, the opportunity to stand for, or, hold public or private office;

(i) the denial of access to, removal from, or unfair treatment in, Government or private establishment in whose care or custody a person may be;

(j) the denial of, or unfair treatment in, the provision of insurance unless supported by actuarial studies;

(k) the isolation or segregation of a protected person;

(l) HIV testing as a prerequisite for obtaining employment, or accessing healthcare services or education or, for the continuation of the same or, for accessing or using any other service or facility:

Provided that, in case of failure to furnish the written assessment under subclause (i) of clause (a), it shall be presumed that there is no significant risk and that the person is fit to perform the duties of the job, as the case may be, and in case of the failure to furnish the written statement under sub-clause (ii) of that clause, it shall be presumed that there is no such undue administrative or financial hardship.

Evolution of right to privacy in India

Regardless of the fact that India passed and implemented the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017 which makes provisions about keeping the patient’s history confidential, however, it is through the landmark judgments that India recognized the right to privacy. Earlier in the cases of Kharak Singh v. the State of U.P, Gobind v. State of M. P., Malak Singh v. State of Punjab & Haryana, and the Auto Shankar the court did identify the right to privacy emanating from Article 21 of the Constitution of India, little was talked about the implementation and challenges. In this section, we further analyze the landmark cases that gave the right of privacy to AIDS patients.

MR. ‘X’ versus Hospital ‘Z’ case

In this case, the appellant Mr X was a doctor by profession and worked with the State government of Nagaland as a surgeon. As a part of his duty, he was asked to accompany a patient suffering from an ‘aortic aneurysm’ to Hospital ‘Z’ in Madras. Initially, the patient’s operation was postponed because of the shortage of required blood. Blood was arranged from Mr X and his driver. On the following day, the operation was conducted and it was successful. Ten days later the hospital discharged the patient.

After the appellant came back to Nagaland, his marriage was set up with Ms Y. Eventually, the marriage was delayed; it was reported that the blood collected from Mr X by the hospital in Madras was HIV positive. He went back to the hospital to conduct various other tests to confirm the report. The marriage was eventually called off when the medical test results showed that the blood was HIV positive. The news spread like wildfire amongst the families of both of the parties to the marriage. The man was stigmatized and the community to which he belonged ostracized him from society. Being unable to bear all this, he had to leave Nagaland and settle down in Madras.

The Supreme Court has extensively dealt with the above issues and also other related issues, with the help of many international conventions, statutory provisions, and decided cases. The duty of doctors to maintain confidentiality in AIDS cases was added. The court also recognized that the right to privacy is a fundamental right and that persons in the medical profession have to maintain confidentiality. The court referred to: (i) Hippocratic Oath administered to doctors; (ii) covenant to maintain secrecy and confidentiality in the International Code of Medical Ethics and the laws relevant in India.

Section 20-A of the Indian Medical Council Act 1956 empowers the Indian Medical Council to prescribe standards of professional conduct, etiquette, and a code of ethics for medical practitioners. Also, section 33 of the Act empowers the council to make regulations, providing inter alia for standards of professional conduct and etiquette of the code of ethics to be observed by medical practitioners. Under these provisions, the code of medical ethics that was drafted by the Indian Medical Council states that doctors are bound to keep the patient’s secret. And it is only before the orders of the judge in a court of law that he/she is allowed to present those. Based on this provision, it was argued before the Supreme Court that the patient’s right to privacy is a correlative right on the doctor to maintain secrecy.

However, the court after going through the entire ground of facts and law referred to the guidelines on HIV infection and AIDS issued by the General Medical Council of Great Britain which inter alia, provide that “a doctor may consider it a duty to ensure that any sexual partner is informed regardless of the patient’s own wishes.” Ultimately the court held that public interest would override the duty of confidentiality, particularly where there is an immediate or future health risk. Because of such provisions, the court upheld the action of the respondent hospital, in disclosing the HIV positive status of the appellant to the hitherto prospective wife and others to be justified.

Thus, the court, in this case, had concluded that regardless of the fact that the appellant was an HIV positive patient, the disclosure of the fact would not qualify to be a violation of either the clause of confidentiality or an encroach of his right to privacy because here Ms Y to whom the appellant could have been married could be saved in time due to the disclosure otherwise she would have been a victim of this dreadful disease if the marriage took place and had it be consummated.

Justice K.S.Puttaswamy and Ors. v. Union of India and Ors. case

When we talk about the evolution of privacy rights in India, the Justice Puttaswamy case cannot be left to discuss. The facts of this case lie with the issue of linkage of Aadhar card details and whether it violated the right to privacy or not. The case, brought by retired High Court Judge Puttaswamy, challenged the uniform biometrics-based identity card that the government had proposed which would be made mandatory for availing government services and benefits. This was the first judgment that dealt with the issue of privacy as a part of a fundamental right as a wide concept.

A nine-judge bench sat to decide on the matter and anonymously held that the right to privacy is a legitimate right that all citizens shall enjoy, and the right emanates from Article 21 of the Constitution of India. The Court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed under Article 21 which provides that: “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

This is a landmark case that would likely raise issues and questions on constitutional challenges to a wide range of Indian legislation, for example, legislation criminalizing same-sex relationships as well as bans on beef and alcohol consumption in the many Indian States. The stakeholders now also expect the Indian Government to establish a data protection regime to protect the privacy of the individual.

Over the years, the issue of privacy has always been argued. In earlier cases, the Judiciary failed to include the Right to Privacy as a Constitutional Right. The Judges felt that the right to privacy is an International Concept and is foreign to the country. However, Justice K.S. Puttaswamy’s judgment was a landmark in this regard which held that the Aadhar Card is not necessary as it is a breach of privacy and the right to privacy is an integral part of the Constitution guaranteed under Article 21 of the Constitution.

Provisions to protect data in digital health

At the National level, the Ministry of Health and Family Welfare (MoHFW) is the regulatory body. Digital health requires to store and analyze the data and medical history of the patients which is a piece of sensitive information that needs to be protected. This is Sensitive Personal Data or Information (“SPDI”) under the Data Protection Rules. The patient whose data is being collected needs to give consent in writing, and the patient should also be informed of the body-corporate or intermediator who is collecting the data. Even while transferring the data, the consent of the patient needs to be taken into consideration. If the patient or its consensual SPDI is planned to be disclosed to a third party, prior permission of the patient is to be obtained. Adequate security practices should also be ensured when the SPDI is being transferred by the body corporate.

Right to Health v. Right to Privacy

According to the Judiciary, the theory of “emanation” invokes Article 21, where the conflict of the two fundamental rights, that is, the right to privacy and the right to health of another person arises. The argument lies when one of them needs to be given priority over the other.

So the person suffering from AIDS needs to be given the basic fundamental rights, which shall also include his keeping of the status of the disease out of the public discussion. Article 21 guarantees him non-discrimination and dignified life, while Article 19 guarantees him the confidentiality of his sensitive information. However, on the other hand, the person who wishes to get sexually intimate with the person with AIDS has the right to know their partner’s medical condition along with the right to health.

In this situation, courts of law always rely on the utilitarian principle. Bentham proposed this principle of utilitarianism where whenever the government needs to lay down some policies or actions, it needs to be done considering the greatest good for the greatest number of people. So the courts decide such matters on a case-to-case basis aiming to provide the maximum good and welfare to society.

Right to Privacy v. Directive Principles of State Policy

Sometimes the conflict that arises is the State’s duty to reveal information of a person under the gape of public interest and the person’s right to protect such sensitive information or data. The issue of prioritizing one of them becomes important. In this section, we shall see the conflicting ideas regarding the fundamental right and the DPSPs through case laws.

In the case of R K Dalmia v. Justice Tendulkar, the court held that Directive Principles of State Policy are important in realizing the goals of the Constitution; the same should not override the fundamental rights guaranteed to the people.

Article 37 of the Constitution of India provides that though directive principles are fundamental in the governance of the country, they are expressly made non- justiciable. On the other hand, fundamental rights are enforceable by the Courts, and the courts are bound to declare as void any law that is inconsistent with the fundamental rights.

In the case of State of Madras v. Champakam Dorarirajan, the court held that the Directive Principles have to conform and run as a subsidiary to the fundamental rights and in case of any conflict between fundamental rights and directive principles, fundamental rights would prevail.

On the other hand, in the case of Keshavananda Bharti v. State of Kerala, the court held that the Directive Principles of State Policy supplement the Preamble, which comprises the basic structure of the constitution. These principles have been characterized as basic to our social order, as they seek to build a socially just society. Courts must strive to give such an interpretation as will promote the match and the progress towards a socialist democratic state. Many rights have been compromised and diluted from time to time to enforce these principles.

In the case, V. Markandeya v. State of A.P the court held that the fundamental rights and Directive Principles constitute true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the welfare state as contemplated by the Constitution.

Since the arguments balance on both sides, it could be well established that the courts decide these kinds of sensitive cases on their own merits along with the principle of utilitarianism.

Conclusion

Even though there are no comprehensive laws on the rights of AIDS patients in India, the judiciary over the years has done a magnificent job in interpreting their rights through landmark cases. The issues that took up a lot of time to decide on were whether AIDS patients have a right to privacy regarding their HIV positive status, whether they have a right to marry and whether that right is absolute or not, and whether doctors have a legal obligation to disclose the HIV positive status to the concerned person and so on. The Apex Court of India has timely dealt with such questions and came up with appropriate and creative solutions.

In April 2017, the government through Bills stressed equality among people and equal opportunity at work and other things. It aimed to cancel out discrimination at the workplace, and provide that even an AIDS patient has the right to employment. It tries to promote the right of the dignity of all human beings and asks to curb the stigmas already associated with it. Everyone including AIDS patients must be treated with equality, and the law tries to cast the same notion.

The judgments and laws also implicitly remind Indian legislators that laws dealing with divorce in India, such as the Hindu Marriage Act, 1955, the Indian Divorce Act, 1869, the Special Marriage Act, 1954, and the Parsi Marriage and Divorce Act 1936, need to be amended to explicitly include AIDS as one of the grounds for divorce Such amendments are needed as it also provides rights to the innocent spouses who have a higher risk to get affected by the infection.

References

https://www.indialawjournal.org/hiv-aids-legislation-in-india-a-primer.php

http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html#:~:text=Article%2014%20guarantees%20the%20right,ensures%20their%20right%20to%20privacy.

https://www.jstor.org/stable/pdf/43951720.pdf?refreqid=excelsior%3Aa586d8e4f2e4ed519ce93fdaac18a552

https://www.avert.org/professionals/hiv-around-world/asia-pacific/india

https://www.jstor.org/stable/pdf/43951720.pdf?refreqid=excelsior%3Aa586d8e4f2e4ed519ce93fdaac18a552

https://lawescort.in/2019/09/right-to-privacy-and-analysis-of-puttaswamy-judgment/

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Analysing the case of ONGC v. Saw Pipes

By

Shoronya Banerjee

-

August 1, 2021

0

Arbitration — Image Source: https://bit.ly/2lVfA4O

This article has been written by Hritika Jannawar, pursuing a Diploma in General Corporate Practice: Transactions, Governance, and Disputes from LawSikho.

Table of Contents

Introduction

This case arose out of the challenge to an arbitral award dated 2nd May 1999 by the Appellant ONGC. It was heard by the bench of M.B Shah J. and Arun Kumar J. and proves to be one of the prominent topics to be discussed in the history of arbitration law in India because it tests the boundaries of the review of arbitral award at length on the grounds of public policy. One of the most important objectives of the Arbitration and Conciliation Act, 1996 is to obtain a resolution of disputes without any unnecessary delays and expense, the judicial intervention was limited to only subjects matter of public interest, but as the Hon’ble Supreme Court liberally interpreted ‘public policy’ under the said Act in this judgment thereby widened the scope of the subject matters to which the judiciary would have last say.

Where the scope of arbitral awards to have judicial interference increases it is pertinent to see to what extent the aforementioned interpretation holds good for the success of any alternate dispute resolution mechanism. In this article, we try to analyse the Court’s reasoning for this pronouncement, whether the said pronouncement was justified, and at last to conclude with what consequences it had.

Facts

Respondent Company Saw Pipes which dealt in the business of supply of equipment for offshore exploration of oil entered an agreement with the appellant ONGC to supply them with casing pipes. Due to the reason for worker’s strike all over Europe at that time, the raw material which was agreed by them, could not be acquired by the respondent in time to complete the order. This had been conveyed by the respondent to the appellant and the appellant in response to it extended the delivery date stipulating that the amount equivalent to liquidated damages for delay in supply of pipes would be recovered from the respondent. There was a clause in the contract that stated – for delay of every week the contractor will be charged 1% of the whole unit price of the order or the part which the contractor has failed to deliver and these liquidated damages can be recovered up to the ceiling limit of 10% of the whole price of the unit. It has also been agreed by the parties that the stipulated liquidated damages are genuine, pre-estimated, not in the form of penalty, and can be deducted from the bill of the payment.

Respondent had caused the delay and when the appellant withheld the US $ 3, 04,970.20 and Rs. 15, 75,559/- on account of customs duty, freight charges, sale tax by way of liquidated damages. The respondent disputed the deduction and the dispute was referred to the Arbitral tribunal. The Arbitral tribunal passed the award in favour of Respondent. Aggrieved by this Appellant filed an appeal challenging the arbitral award before the Bombay High Court which was dismissed and hence the present appeal was filed in Supreme Court.

Issues raised

Whether the Supreme Court has jurisdiction under Section 34 of the Arbitration and Conciliation Act, 1996 to entertain the present appeal?
Whether the award can be set aside if the tribunal has failed to follow the procedure prescribed under the Arbitration and Conciliation Act, 1996?
Whether the award can be set aside on the grounds of ‘public policy’ if it violates provisions of substantial law under Section 34 of the Arbitration and Conciliation Act, 1996?

Judgment

The major and the foremost issue in the present case was the jurisdiction. Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as Act) provides various grounds giving power to the Court to set aside the arbitral award. To discuss the matter of jurisdiction, first, it is pertinent to discuss a few provisions of the Act.

Tribunal is mandated under sub-section (1) (a) of Section 28 of the Act to decide the dispute in accordance with substantive law for time being force in India
Under subsection (3) of Section 28 tribunal is directed to decide the dispute in accordance with the terms of the contract.

It states- ‘rule applicable to the substance of dispute’ provision of our interest is Sub-sec (3) of 28 which is as follows –‘ In all the cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.’

The court held that the decision of the arbitral tribunal led to the violation of the Indian Contract Act, 1872 as it failed to consider Sections 73 and 74 of the Indian Contract Act and the ratio laid down in Fateh Chand v. Balkishan Das and passed the decision in favor of Saw Pipes on the grounds that ONGC did not prove the loss suffered due to the breach even though the contract stipulated the liquidated damages. The Hon’ble Court relied on Fateh Chand’s decision wherein it was specifically held that jurisdiction of the Court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated, and compensation has to be reasonable.
Under Section 73, when a contract has been broken, the party who suffers from such breach is entitled to receive compensation for any loss caused to him which the parties knew when they made the contract to be likely to result from the breach of it. This section is to be read with Section 74, which deals with penalty stipulated in the contract, inter alia [relevant for the present case] provides that when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, the party complaining of breach is entitled, whether or not actual loss is proved to have been caused, thereby to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named. If the compensation named in the contract is by way of penalty, consideration would be different and the party is only entitled to reasonable compensation for the loss suffered. But if the compensation named in the contract for such breach is the genuine pre- estimate of loss which the parties knew when they made the contract to be likely to result from the breach of it, there is no question of proving such loss or such party is not required to lead evidence to prove the actual loss suffered by him.
The tribunal while passing the Award also ignored the terms of the contract which had clearly provided for pre-estimated genuine liquidated damages and not as a way of penalty in case of breach; violating the terms of the contract, further violating Section 28(3) of the Act. Moreover, when the agreement has been executed by the experts in the field it is difficult to conclude that the intention of the party was different than the language used therein.
At this point the question that arose was if the said award has violated the provisions of the Arbitration Act as well as provisions of the substantial law, then whether such award on its face is so erroneous that it could be set aside on the grounds of ‘Public Policy’ under Section 34 of the Act?
On this, the court held that if legislative intent is sought by reading other provisions with Sec 34 of the Act, it appears that violation of the provisions of the Act as well as the substance has occurred leading to miscarriage of justice. Not following the procedure by not giving due consideration to the terms of the contract would mean that the Tribunal has acted beyond its jurisdiction and therefore the award would be patently illegal and could be set aside under Section 34 on the grounds of ‘Public Policy’ as it considerably affects the rights of the party.
Further, to what extent the term public policy should be interpreted as one of the significant points of discussion. Analysing the past judgments and the constitutional spirit the court came to the conclusion that ‘Public Policy’ cannot be restrained and has to be interpreted liberally thereby including one more aspect to the public policy i.e. ‘patent illegality’. Moreover, the court took in stride the comments by jurist and Sr. Advocate late Mr. Nani Palkhiwala wherein he stated that “if the arbitral tribunal does not dispense justice, it cannot truly be reflective of an alternate dispute resolution mechanism. Hence, if the award has resulted in an injustice, a court would be well within its rights in upholding the challenge to the award on the ground that it is in conflict with public policy in India.”
Furthermore, force majeure clauses also could not be invoked in the present case in the face of labour strikes all over Europe because the clause in the contract did not enumerate the possibility of a strike. In a nutshell, the Hon’ble Supreme Court herein set aside the award passed by the tribunal on grounds of patent illegality violating ‘public Policy.’

Critical analysis

Burrough J. once said, “Public Policy is a very unruly horse, and when once you get astride it you never know where it will carry.” The objective of the Arbitration and Conciliation Act, 1996 was to provide finality to the arbitral award and minimal court interference, thereby reducing the workload on the courts at least in the cases of commercial disputes. To maintain this objective of the Arbitration Act, the approach adopted to interpret ‘Public Policy’ has been narrow. The narrower approach reduces interference of the courts and it has been a settled international thought that widening the scope of the ‘public policy’ will necessarily mean opening the floodgates to challenging the arbitral Award, diminishing the very objective of why such a Statute has been brought in the first place.

The Hon’ble Court in the present case came up with the principle of ‘Patent illegality’ and thereby widened the scope of the Public Policy and took a contrary stand to the narrower approach taken in Renusagar case, which had limited the scope of public policy under following heads- Fundamental Policy of Indian Law, Interest of India, Justice or morality. Patently Illegal could mean – an error of law that goes to the root of the matter; or violation of the constitution or statutory provisions. This broader interpretation was taken from the case of RattanChand Hira Chand v Askar Nawaz Jung (Dead) By L.Rs as the court observed that the contract which has the tendency to injure public interests or welfare is one against public policy. What constitutes an injury to public interest differs from time to time, to these changing conditions the legislature cannot always catch up and it remains the duty of the judiciary to exercise their authority to fill in this lacuna and when they perform these functions they legislate judicially. By doing this, they prevent the perversion of the goals and values of society and also prevent the frustration of the legislation.

In light of this, the court in the case of ONGC vs. Saw Pipes observed that the award which is in violation of statutory provisions cannot be said to be in the public interest and if the court does not exercise its authority to set aside such awards it would adversely affect the administration of justice. Hence the wider interpretation connoted to the phrase ‘Public policy’ is justified. This interpretation of the ‘public policy’ proved to be a lethal blow to the development of Arbitration law post-1996 by amplifying the possibilities for judicial review. Consequently, this shows that the judiciary has failed to adhere to the principles of ‘separation of powers’ by not paying heed to parliamentary intent behind the 1996 Act, to reduce the supervisory role of the judiciary, and to get quick relief in such commercial disputes wherein almost all cases time is of utmost importance. The question that follows is whether the Indian Judiciary which has already been plagued with a large number of suits will be able to sustain this additional responsibility that it has brought upon itself by adopting a broader interpretation of Public Policy?

Further, a significant criticism is that when the ground for challenging the said arbitral award was present under Section 34(2)(a)v which states that the arbitral award can be challenged if the procedure is not adhered to like in the present case, the need to interpret the public policy in broad light and adding a fourth head to the grounds earlier enumerated was not required. Furthermore, elevating the principle to prove the loss or damage to the pedestal of public policy of India has significantly put a blemish on the operation of the whole Act. The parties who have opted for the mechanism of alternate dispute resolution should be prepared to accept the decision of the Tribunal whatever it may be until the procedure under the Act has been strictly adhered to because if the courts interference increases it will be a failure of Alternate Dispute Resolution mechanism.

It is pertinent to discuss at this juncture the consequences of this judgment and what has parliament proceeded to do towards damage control. Following the trend in the ONGC v. Saw pipes the Hon’ble Supreme Court in ONGC v. Western Geco International Ltd., and Associate Builders v. Delhi Development Authority further widely interpreted ‘fundamental policy of India’ as:

(i) adopting a judicial approach,

(ii) following natural justice, and

(iii) absence of perversity or irrationality tested on the touchstone of Wednesbury principle of reasonableness.

This decision of the Supreme Court rather than minimizing its power has expanded it immensely and to rectify this issue law commission in the 246th report sought to curb the wide interpretation of ‘public policy’ because if it would have not done so the review of arbitral awards would have been on merits of the case. These recommendations by the law commission were adopted by parliament and amended the Act effectively from 23rdof October 2015. While providing for the amendment the law commission admitted that the SC’s decision in ONGC v. Saw Pipes though widely criticised, awards violating the statutory provisions would never be in the public interest. Therefore, sub-sec(2A) in Section 34 of the Act provided patent illegality will be one of the grounds of violating public policy only in cases of domestic arbitral awards. The proviso added makes it more clear stating that this ground cannot be invoked in case of erroneous application of law or by re-appreciation of the evidence. For narrowing the interpretation of the fundamental policy of India Explanation 2 is inserted, clarifying that such a challenge does not entail a review of the merits of the dispute. This narrowed the concept of public policy more and hence legislature brought us to a point from where we had started, that is to Renusagar’s case.

Conclusion

One important aspect which has not been primarily discussed but nevertheless remains prominent is the art of drafting Force Majeure clauses and how one can never put it elaborately enough. But looking at the aforementioned dispute it is advisable that one should always try to cover all the bases of one’s business while drafting a force majeure clause. ONGC V. Saw pipes opened the doors for the review of the arbitral awards on the basis of merits of cases rather than technicalities due to wide and liberal interpretation attributed by Hon’ble Supreme Court to ‘public policy’ which was later rectified by the successive amendment to the Act of 1996 and ultimately preserved the objective sought by it. This case is a lesson learned in the history of Arbitration law that how the independence of alternate dispute resolution mechanism has to be maintained to an extent or otherwise it does not require much for everything to go south.

References

Fateh Chand v. Balkishan Das (1964) 1 SCR 515 at 526
Richardson v. Mellish (1824) 2 Bing 229, 252
Renusagar Power Co. Ltd v. General Electric Co. 1994 Supp.(1) SCC 644
RattanChand Hira Chand vs Askar Nawaz Jung (Dead) By L.Rs. …1991 SCR (1) 327
ONGC v. Western Geco International Ltd. (2014) 9 SCC 263
Associate Builders v. Delhi Development Authority (2015) 3 SCC 49
Ranjit Shetty and Rahul Dev, Argus Partners, available on https://www.argus-p.com/papers-publications/thought-paper/arbitration-law-article-on-fundamental-policy-of-laws/ last seen 27/07/2021

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Election campaigns and COVID-19 protocol : in light of the Calcutta HC order

By

Diganth Raj Sehgal

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August 1, 2021

0

Image source - https://bit.ly/3zgCYuP

This article is written by Saurav Kataria, a BBA LLB student of H.P. National Law University, Shimla. In this article, the author has discussed the order of the Calcutta High Court and analyzed the need for the order.

Table of Contents

Introduction

Electoral campaigning is one important component of the political process that has been considered to be affected by the pandemic. Political parties and politicians use campaigns to disseminate their views on how public policies should change or stay the same in the future. In these campaigns, the discussions are usually about how the country will progress in the future. These campaigns allow people to have more options about whom they should vote at the ballot box. This campaign helps people think about their democratic needs, and these are like the rituals of a democratic process.

However, as this election campaign helps people to decide their leader, in the current scenario these campaigns not only include the conversation of Ideas but there is a major risk of spreading COVID-19. In these campaigns, there is a high number of gatherings due to which there is much more risk of trading coronavirus. So, as a result, there is an argument on whether the campaign should be limited or cancelled for public health or not.

Election campaigns: reason behind the rising COVID-19 cases

It was around late February and early March when the cases of COVID-19 started increasing in the country and the number of cases went past 15000 per day. The second wave of the virus started with the announcements of the Assembly elections of West Bengal, Tamil Nadu, Kerala, and Puducherry. Firstly, Maharashtra began reporting high numbers of COVID-19 cases, whereas the other states were not reporting a huge number of COVID-19 cases. But in late March, most of the places in India had a significant increase in COVID-19 cases.

When the Assembly elections in the states of West Bengal, Kerala, and Assam were announced the election campaigns were arranged. At the same time, COVID-19 cases started increasing in particular states. Although there is no significant establishment that the election campaigns are directly linked with the rise in COVID-19 cases, it seems to be obvious when people started gathering in such a large number that gave the virus a way to spread easily. On the 5th of April 2021, the country crossed 100000 cases in a day for the first time as all were aware of the fact that the West Bengal assembly elections were divided into 8 phases and the campaigning continued in the elections for over 2 months due to which the states suffered a major setback in the COVID-19 cases. The WHO named this mass gathering a perfect storm and also stated that such gathering is the reason for the outbreak of the virus. WHO also said that low vaccination rates in the country are also a reason for the increasing cases in the country. Due to this, the Election Commission was heavily criticized for breaching COVID-19 protocols during the election campaigns.

The Madras High Court said that it was the responsibility of the Election Commission to make sure that the campaigns that were being held should have followed COVID-19 protocols strictly. It was very evident that the protocols were not at all taken seriously and as a result, there was a hike in COVID-19 cases, which showed the irresponsibility of the Election Commission in handling elections during a pandemic. In these campaigns, members of various political parties and candidates were also seen to be not following COVID-19 protocols. The Madras High Court also added that the institution is solely responsible for the second wave of the COVID-19 on the Election Commission.

The judges of the Madras High Court were not satisfied with the Election Commission not coming up with strict rules and regulations for making people follow the social distancing norms. The court said that the elections are necessary but public health is of paramount importance. When it comes to the health of citizens no other thing can come before it. Some safety measures should be followed in which the Election Commission has failed by not coming up with strict safety measures.

When the elections started, the virus was at a modest stage and cases were in control but when the first phase of the eight phases of the West Bengal Assembly Elections started, then the cases gradually started increasing. It only took 34 days to double the number of COVID-19 cases in the state. The positivity rate also increased from 6.43 % to 7.7 %, and this was a clear indication that the election campaign has induced a spike in the COVID-19 cases in the state. Similar situations could be seen in other states like Assam, Tamil Nadu and Kerala where elections were held at the same time.

Experts say that the prolonged election campaign in the West Bengal Assembly Elections is the major reason for the increase in the number of active cases in the state. Due to this, the cases increased to about 48 times in the state. Most of the people started criticizing the election campaign for spreading the virus. Also, it is said that the reason behind increasing cases in rural areas of West Bengal in West Bengal Assembly Elections was that the people did not follow the safety guidelines. Seeing this situation one can easily say that the priority of the political parties was to win the election, and not to take care of public health.

An overview of the Calcutta HC order

After a significant rise in the COVID-19 cases in the state during the sixth phase of the West Bengal assembly election, the Calcutta High Court expressed dissatisfaction with the acts of the Election Commission. The Hon’ble Calcutta High Court opined that the election commission is just issuing circulars and there is no compliance and implementation of such circulars in order to tackle the current coronavirus situation. The bench added that the Election Commission has all the power to maintain safety measures in the election campaigns but they are just passing the circular and leaving it to the people. This was all when the High Court was hearing the case in which it was contended that the Election Commission has no constitutional power to implement COVID-19 guidelines in the state during the polls. The court added that the Election Commission was well aware of the pandemic situation in the country. Even then the elections in West Bengal were held in eight phases. The court added that all the parties with thousands of supporters, not wearing masks and not following social distancing norms were the reason for increasing cases in the state. The court stated that they are not satisfied with the Election Commission’s handling of the West Bengal elections.

It was also said by the court that the country is dealing with extraordinary situations so there should be some extraordinary measures which should be followed, but in the election campaigns, the COVID-19 protocols were not followed and hence there was a spike in the cases of COVID-19. The court also said that the irresponsible behaviour of some of the members of society cannot be permitted to endanger the lives of the other members. The Court ordered the administration that if such a person is found, then there must be some strict action taken against them. The court also ordered all the members of the political parties and also all the candidates of the assembly election to hold the meeting to ensure that there should be some preventive measures to be taken. Wearing a mask should be made compulsory to ensure the safety of the people who are indulged in the election campaigns.

Key points of the order

The Calcutta High Court on 13th April, 2021 directed the strict implementation of COVID-19 guidelines during the West Bengal election campaign, the key directly from the High Court. These were as follows:

All the gatherings should make the wearing of masks mandatory.
Sanitizers must be made available for all and the norms of social distancing should be followed.
The administration must ensure that there is no public gathering for any religious purpose.
Awareness should be spread amongst all the people who are participating in such gatherings.
All the members of the political party and the candidates who were representing their respective parties in the campaign must ensure that the people who are gathering should wear masks and maintain social distance with each other..
The District Magistrate and the West Bengal Chief Electoral Officer will be held responsible for ensuring that the guidelines are followed by everyone.
In case it is difficult to ensure social distancing, the administration can take recourse from the provisions of Section 144 of CrPC so that they can make people follow the norms of COVID-19.
West Bengal Chief Electoral Officer has powers to give further guidelines to check the spread of COVID-19.
West Bengal Chief Electoral officer will have to fill an affidavit form in which he must mention all the measures taken for the implementation of the guidelines for the safety measures against Coronavirus in elections.

Need for the order

The High Court needed to interfere because the people were not serious about COVID-19. The need for the order was because even the Election Commission who had the power to pass guidelines and make strict safety measures for the people who gathered in the election campaign was also not taking any steps. People’s health was not the priority, rather election and election results were. The High Court order was necessary because the cases were rising at a very fast rate and on the day when the order came, the state of West Bengal recorded the highest-ever single-day spike of 4817 Coronavirus cases.

As we all know that India is not the country in which medical facilities are that good and the High Court was aware of that. This order was in favour of the public and it was the need of the hour. It will be very difficult for the states or the country to get control over COVID-19 without having proper medical facilities. Political parties were not concerned about the People’s health who were gathered in their election campaign, their motive was just to win the elections in the state which was a big concern that is why the High Court came and made some strict orders against the election campaign. The election campaign could have made safety measures to prevent the spread of COVID-19 but it was just passed a circular and left to the people which was not correct on behalf of the commission.

Conclusion

Concluding the article, it is very clear that political parties are more concerned about winning the elections. They were not concerned about the voters and we can see this in the West Bengal elections. The Election Commission could have easily made strict norms but due to the pressure of the political parties, the commission was not able to perform its functions properly. In the elections, we can see that political parties are the ones not following any COVID-19 protocols due to which there had been a large number of spikes in the COVID-19 cases not in the particular state, but all over the country. The interference of the High Court was necessary as the cases were rising. Some norms like wearing masks, maintaining social distance, and using hand sanitizer should be made so strict that if any of the people break such rules, they would be fined or imprisoned. The decision given by the High Court and the key directions provided in the order were absolutely okay and in favour of public healthcare because of the condition of medical facilities available in the country.

References

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