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Kerala High Court concludes that Medical Services' fall within ambit of Consumer Protection Act, 2019
Sai Krishna Muthyanolla
March 9, 2022
In this roundup of the Court Judgements, we look at the Supreme Court’s directions to the Odisha government to implement the comprehensive wildlife management plan, the Allahabad High Court’s observations on the service conditions prescriptions, the Karnataka High Court’s observations on section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the Kerala High Court’s observations regarding the scope of Consumer Protection Act, 2019 and telecast banning of Media One.
SC: Implement Comprehensive Wildlife Management Plan before permitting any mining activity in Eco-Sensitive Zone
In Binay Kumar Dalei vs. State of Odisha, the Supreme Court bench of Justice L. Nageshwar Rao and Justice B.R. Gavai directed the Odisha Government to undertake the implementation of a comprehensive wildlife management plan as suggested by the National Board for wildlife before permitting any mining activity in eco-sensitive areas.
The apex court was hearing an appeal against the order of the National Green Tribunal (NGT) which refused to permit mining activity within and in the areas around the Simlipal- Hadagarh- Kuldiha – Simlipal elephant corridor. The tribunal also ordered the state to complete the process of declaration of conservation reserve as per Section 36 of the Wildlife (Protection) Act, 1972 within three months.
The area comprising portions of Mayurbhanj, Balasore, Bhadrak and Keonjhar was declared as Elephant Reserve under ‘Project Elephant’ by the Government of Odisha. The court then looked at the Notification of the Ministry of Environment and Forests, Government of India, regarding the permission for conducting non-forestry activities in wildlife habitats. In the notification, it was mentioned that environmental clearances for any project that falls within the 10 km boundary of the National Parks and Sanctuaries will be subject to the recommendations of the Standing Committee of the National Board for Wildlife.
The 40 meeting of the Standing committee approved the plan to operate certain stone quarries subject to the implementation of a comprehensive wildlife management plan. In another latest notification issued by the Ministry of Environment, Forest, and Climate Change (MoEFCC), it had notified the area with an extent varying from zero (along with urban areas/NAC areas adjoining the boundary on the Eastern side), 500 metres on South-Eastern side, 7 km on Western Side up to Keonjhar District to 2 km around Kuldiha Wildlife Sanctuary in the State of Odisha as Kuldiha Wildlife Sanctuary eco-sensitive zone. And any activity in this zone is covered by the act.
Accordingly, the stone quarry owners started operations after obtaining permission from the District Environmental Impact Assessment Authority. However, the NGT directed that no mining shall take place even though the quarries lie outside the vicinity of the eco-sensitive zone.  The appellant and the state government felt that this is not justifiable, while the respondent argued that unless the comprehensive wildlife management plan and section 36A of the Wildlife (Protection) Act, 1972 have fully complied with, no mining activity can take place.
Considering the above arguments, the court felt that an amicable solution to close this dispute is to comply and implement the comprehensive wildlife management plan and expedite the process of declaration of elephant corridor as conservation reserve under section 36A of the Wildlife (Protection) Act, 1972. Unless these are achieved, no mining activity shall take place.
Allahabad High Court: Courts can’t direct Govt to have a particular method of recruitment, eligibility criteria for services.
During the hearing of a writ petition, Alok Shukla & another vs. State of Uttar Pradesh and 2 Others, the Allahabad High Court remarked that the prescriptions and service conditions are the exclusive domain of the State and that it is not open for courts to direct the government to follow any particular method of recruitment and eligibility criteria.
The court was hearing a writ petition filed by the petitioner against the recruitment advertisement of UPPSC for 16 posts of Mining officer and a requisition for 36 posts of Mining Inspector that has been forwarded by the State Government for selection and appointment. As per the Uttar Pradesh Geology and Mining Service Rules, 1983, the qualifications for mining inspector are diploma in mining engineering and for the post of mining officer, it is either the diploma in mining engineering with one year experience or degree in mining engineering. The applicants possessed a Postgraduate degree in Geology, which is higher than the requirement specified.
The bench headed by Justice Manju Rani Chauhan acknowledged that the petitioners had the higher qualifications, but it also reminded that the state government did not issue any notification providing for equivalence of any other qualifications to these posts. The bench also remarked that it is the state government that must provide policy decisions regarding changing qualifications and the court cannot judicially review such policy decisions unless they are grossly arbitrary or irrational.
The court relied on judgements in Chandigarh Administration vs. Usha KheterpalWaie and others, (2011) where the Supreme Court held that
In Vasavi Engineering College Parents Association vs. State of Telangana & Ors, the apex court held that ‘Court can neither act an appellate authority nor can usurp the jurisdiction of decision-maker and make the decision itself. ‘It also remarked that:
Accordingly, the court concluded that the above matter is a policy decision, and the policy decisions of the State are not to be disturbed/interfered with unless they are found to be grossly arbitrary or irrational. It also suggested the petitioners file a representation with the appropriate authority, who shall decide on such representation preferably within two months of such representation.
Karnataka High Court: Prenatal Sex Determination – Magistrate can’t take cognizance of a complaint unless filed by ‘Appropriate Authority’ notified by Government
During the hearing of the criminal petition in Dhondiba Anna Jadhav vs. The State of Karnataka, the high court held that the magistrate cannot take cognizance of a complaint filed under Section 28 of the Pre-conception and Pre-Natal Determination Test Act, 1994 (PCPNDT Act, 1994) unless it is filed by the Appropriate authority.
The bench headed by Justice Nagaprasanna was hearing a petition for quashing criminal proceedings against Dhondiba Anna Jadav and others who run Sri Dhondiba Anna Jadhav Memorial Hospital, based on a complaint given by the Taluk Health Officer (respondent). The primary allegations were that the hospital did not maintain records and it also has equipment installed that can determine the sex of the fetus. This is in contravention to the PCPNDT Act, 1994.
The petitioners argued that the respondent is not the appropriate authority under section 28 of the PCPNDT Act, 1994 to either inspect or complain of the violation. The counsel for the government argued that the state government had issued a notification on 15 October 2011, appointing the Assistant Commissioner as the appropriate authority under Section 17(2) of the PCPNDT Act, 1994 and the appointed authority is well authorized to initiate action under section 17A of the PCPNDT Act, 1994.
The government, therefore argued that on the joint reading of the notification as well as section 17(2) of the act, the Assistant Commissioner is the appropriate authority. However, section 28 of the same act mentions that,
Therefore, the Taluk Health Officer is not the appropriate authority for taking cognizance of the offences under section 28 of the PCPNDT Act, 1994. Considering all the actions taken without jurisdiction, the court concluded that the petition deserved to succeed, failing which could result in a miscarriage of justice.
Kerala High Court: Medical Services’ fall within ambit of Consumer Protection Act, 2019
During the hearing of a petition in Dr Vijil & Ors vs. Ambujakshi T.P & Anr., the bench headed by Justice N. Nagaresh held that medical services will come under the purview of section 2(42) of the consumer protection act, 2019.
The bench was hearing a petition filed by a group of doctors to declare that complaints under medical negligence and deficiency of services do not come under the jurisdiction of the consumer fora under the Consumer Protection Act, 2019 and to quash the orders of district and state consumer dispute redressal commissions. The respondent lost eyesight after consultation with the petitioners and sought compensation of Rs. 32,50,000 on account of medical negligence.
The counsel for petitioners argued that the draft consumer protection bill included the health sector under section 2(42) but was removed in the enacted bill. The counsel also argued that in Indian Medical Association v. V.P. Shantha and others, the apex court held that medical service/profession comes under the purview of section 2(1)(o) of the Act, 1986. The new law, despite medical service/profession being declared to be included in ‘service’ under section 2(1)(o) of the Act, 1986 removed it from the newly enacted section 2(42) of the Act, 2019. This shows the intention of the Parliament not to include medical service/profession under the ambit of the new consumer protection act, 2019. Also, the lack of experts except at the National Commission level in consumer protection courts adds weight to this argument.
The Hon’ble Justice N. Nagaresh observed that both section 2(1)(o) of the old consumer protection act, 1986 and section 2(42) of the newly enacted consumer protection act, 2019 have the same meanings and implications. It is just that the newly enacted section is more descriptive. This definition is inclusive but not exhaustive. The words ‘but not limited to’ in section 2(42) clarify the inclusive intention of the parliament.
Also, the argument that the draft bill did include the health sector, but the enacted bill did not include, does not hold ground as it is unsustainable in the view of well-settled principles of interpretation of statutes. And since the apex court already interpreted that medical service/profession comes under a similar section of the 1986 act, the same logic applies here as the provisions are nearly identical, though both acts of 1986 and 2019 does not specifically include ‘medical service’. Accordingly, the case was dismissed and ruled in favour of the respondents.
Kerala HC: Clear, significant indications impacting public order & security – Kerala High Court while upholding Telecast Ban on Media One.
During the hearing of an appeal against the single judge order which upheld the order passed the Ministry of Information and Broadcasting not to renew the license granted to Media One news channel to broadcast, the division bench in Madhyamam Broadcasting Limited vs. Union of India upheld the single bench order.
The division bench headed by Chief Justice S. Manikumar and Justice Shaji P. Chaly remarked that there are serious reports by the intelligence bureau against Madhyamam Broadcasting Limited and its Managing Director. Though the court held that there are clear and significant implications, the gravity and depth of such an issue is not deducible from the confidential files.
The Media One’s permission for uplinking and downlinking was due to end on 29 September 2021. The company applied for renewal on 03 May 2021. Though the application for renewal of license was submitted earlier, the Ministry of Home Affairs informed the company that the security clearances were not issued in the past and it is the same for the present too. And since the security clearances are denied, the eligibility was ceased. A show-cause notice was served as to why the permission should not be revoked or cancelled.
The petitioners argued that the issue of security clearances not issued is not correct and the show cause notice sent to them was vague. They filed a writ petition and the single judge, in that case, observed that the information and broadcasting sector is a sensitive one and,
When the petitioner claimed that they were never granted an opportunity to be heard while denying the security clearance, the court relied upon Ex-Armymen’s Protection Services P. Ltd. vs. Union of India and others and Digi Cable Network (India) Pvt. Ltd. vs. Union of India and others and held that observance of strict principles of natural justice cannot be insisted by the parties and the courts must read for and provide statutory exclusion. And since the intelligence inputs are secretive in nature, the reason for non-disclosure is in the interest of national security.
The court observed that in normal situations, the government cannot interfere with the freedom enjoyed by the press as was held by the apex court. It also observed that there are certain files that show that there is a danger to public order or the security of the state based on the files produced.
The court remarked that:
The court pointed out the inability of the petitioners to establish a jurisdictional error or other legal affirmatives in the order of the single judge bench. Accordingly, considering all the files produced before the bench, the division bench agreed with the order of the single judge bench declining interference with the order of the Ministry of Information and Broadcasting refusing the permission to uplink and downlink to M/S. Madhyamam Broadcasting Limited for telecasting operations.
Featured Image: Important Court Judgements


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Kerala High Court directs the state to treat all notified minorities equally
Sai Krishna Muthyanolla
June 2, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on faulty ventilators, action against the police for beating up citizens on violation of covid protocols, and Kerala’s scholarship policy for minorities. The Supreme Court posed important questions to the Centre on its dual pricing and procurement policy for covid vaccines.
Bombay HC: MoHFW demonstrated insensitivity in defending faulty ventilators and claiming deficiency on part of doctors and paramedics.
Regarding the situation of dysfunctional ventilators supplied through the PM Cares Fund, the Bombay high court expressed displeasure with the Central Government for defending the manufacturer and claiming that the doctors and paramedics are not properly trained to handle the ventilators.
A total of 150 ventilators were received by the Government Medical College and Hospital, Aurangabad through the PM Cares Fund. Out of the 150 ventilators, 113 ventilators were put to use and found to be malfunctioning, while 37 ventilators remained un-boxed. Letters from authorities of government and private hospitals indicating that not a single ventilator was functional and private hospitals have therefore declined to utilise them as a serious threat to the life of the patients exists. Private hospitals have written to the authorities to take back these ventilators.
At the same time, it was clarified that the 64 ventilators supplied by several Industrial Establishments like Good Year Tyres, Cosmo Films, Bajaj Auto limited, Garware Polyester Limited, Hindalco limited, etc. are perfectly operational and are flawlessly working.
In response, the Additional Solicitor General of India (ASGI) tendered before the court an affidavit (dated 28 May 2021). Among other things, the affidavit clarified that:
On the other hand, the Amicus curiae submit that not a single hospital/institution which was delivered with such ventilators has submitted a report that even one ventilator is operating satisfactorily. Since there is one year warranty on these machines and as the entire payment may have been made by the MoHFW through the public exchequer, it would be the duty of the manufacturer to ensure proper operation of the machines or replace them.
Upon examining all submissions, the high court observed that statements demonstrate insensitivity on the part of MoHFW. Instead of expressing wholehearted support to ensure that such costly instruments are made operational and put to optimum utilization, the affidavit found it advantageous to contend that ventilators are in perfect operating conditions and the deficiencies are with the hospitals and the doctors/paramedics/technicians.
The court noted that the affiant should have avoided entering into a blame game and instead shown sensitivity towards the patients. The court remarked that ‘the ASGI has addressed us as if he is holding the brief for the Manufacturer.’
In the backdrop of the above, the ASGI submitted that the MoHFW would take all remedial steps and ensure that the ventilators would operate normally and all defects, if any, would be removed. The matter has been adjourned to 02 June 2021.
Madhya Pradesh: Cannot subject citizens to corporal punishment for not following COVID-19 protocol.
In the case Osheen Sharma and others vs. State of Madhya Pradesh and others, the high court held that police cannot subject citizens to corporal punishment for not following COVID-19 protocol.
The court was hearing a writ petition in the form of public interest litigation filed by Osheen Sharma and others seeking direction to register FIR against Police Constables posted at Pardeshipura, Indore as they misused their powers and subjected innocent rickshaw-puller to merciless beating, allegedly for not wearing the mask in a proper manner.
In an earlier event, two policemen deployed at Malwa Mill Gate stopped an auto-rickshaw driver to explain why he was not wearing a mask properly, dragged him to the police station and beat him mercilessly. Similar incidents were reported from other parts of the state.
The court held that no citizen who is found not wearing a mask or not following social distancing norms or not following lockdown conditions should be subjected to corporal punishment, or beating. The policemen should rather counsel people by sensitizing them about the need of following COVID-19 protocols.
In conclusion, the high court directed the Superintendent of Police, Indore to take appropriate action against the erring police officials on complaints of excesses and beating.
Kerala HC: State must treat all notified minorities equally.
In the case Justine Pallivathukal v. State of Kerala and Ors., the high court quashed orders of the Kerala Government announcing scholarships to Muslim students and other minorities in the ratio 80:20.
The petitioner challenged orders of the Kerala Government announcing scholarships to Muslim students and other minority communities will be in the ratio 80:20 i.e., 80% to Muslim Community and 20% to Latin Christians and Converted Christians. It is contended that the fixation of ratio in is arbitrary, unjust and illegal and accordingly violative of Articles 14 and 15 of the Constitution of India.
The State Government filed a counter-affidavit stating that the Paloli Committee relied on statistics from the Justice Sachar Committee report and the Kerala Padana report for finalizing its report, which reveals Muslims are far behind Christians in the college enrolment (and even behind scheduled castes and scheduled tribes). It is also stated that the unemployment percentage is 55.2% among Muslims, while it is 31.9% among Christians and 40.2% among backward Hindus. With regards to land ownership, there are only 3% Christians who are landless while it is 37.8% among Muslims. In the matter of poverty also, there is a wide gap between Muslims and Christians.
The Court held that there is nothing wrong in the State Government providing facilities to weaker sections of the community, but when it comes to dealing with the notified minorities, ‘it has to treat them equally’. Hence, the court held that the order providing merit-cum-means scholarship at 80% to the Muslim community and 20% to the Latin Catholic Christians and Converted Christians cannot be legally sustained and directed the State to provide merit-cum-means scholarships to members of notified minority communities equally.
Supreme Court: Poses important questions on COVID-19 vaccine drive.
In a suo moto case on COVID-19 issues (In Re-Distribution of Essential Services and Supplies During Pandemic), the Supreme Court posed important questions to the Central Government about the rationale of its dual pricing and procurement policy of the COVID-19 vaccines, its diversion from the National Immunisation Programme and its mandate of COWIN App registration.
The bench expressed concern and questioned Centre’s vaccine procurement and pricing policy wherein the central government confine itself only to the post-45 age group and leave the pre-45 age group entirely to the states to arrange.  The bench noted that different municipal corporations in the different states have issued global tenders. However, the capacity of the Bombay Municipal Corporation is higher than municipal corporations in West Bengal, UP or Tamil Nadu, which may not have the same kind of budget. Additionally, if the Centre leaves a major part of the vaccine procurement to the states, it may present a problem as different states have different economic conditions. To this, the court posed the following questions:
The court held that Article 1 of the Constitution says Bharat is a union of states and not a federation of states. In a time of national crisis, it is the Union that must procure vaccines for the entirety of the country by negotiating. Individual states cannot be left in the lurch trying to negotiate. The court emphasized the Centre needs to give policy guidelines negotiating the price and distribution of vaccines for the entire nation.
The court highlighted that state governments have said that when they approach Serum Institute and Bharat Biotech, they are not dealing with them. The court also has on record that foreign manufacturers, when approached, refused to deal with anybody other than the central government.
The bench also highlighted that we are still in the nascent stage of vaccination and asked if the government has put out any study as regards the urban-rural share among those who have been vaccinated, as about 75% of the vaccination is being done only in the urban areas. Additionally, the court observed that those who have registered on the COWIN portal and do not get appointments at government dispensaries or hospitals are getting calls from the private hospitals to pay 900 or 1000 rupees to get vaccinated. Hence, for a family of 4, one has to pay about Rs. 4000 in a private hospital to get vaccinated immediately. The supreme court felt that for an average Indian family, it is an extremely high price and implies that money is important in order to get vaccinated immediately.
The court also flagged the issue of the digital divide in so far as everybody is required to register on the COWIN App to be able to get vaccinated. The court, thus, asked if it is realistically possible for people in the rural areas to register on COWIN.
The matter is still in progress and asked the Government of India to file an affidavit with the detailed vaccination policy in the next two weeks.
Featured Image: Important Court Judgements

source: news-factly

license: Creative Commons - Attribution - https://creativecommons.org/licenses/by/4.0/

author: Sai Krishna Muthyanolla


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Review: Latest World Development Report Suggests a ‘Match - Motive’ Framework for Migration - FACTLY
Sai Krishna Muthyanolla
May 5, 2023
The World Development Report is an annual flagship publication of the World Bank which provides an in-depth comprehensive assessment of a topic related to global development issues. The latest report for 2023 titled, “Migrants, Refugees, and Societies” was published recently. Here is a review of the important issues discussed in the report.
The World Development Report is an annual flagship publication of the World Bank which provides an in-depth comprehensive assessment of a topic related to global development issues. The first edition was published in 1978. Some of the topics covered in the previous reports are data, law and governance, labour, conflicts, gender, health, poverty, environment, climate change, risk management, agriculture, equity, health, and public finance. The latest report for 2023 titled, “Migrants, Refugees, and Societies” was published recently. The report provides an analysis of international migration and its potential to serve as a force for growth and shared prosperity in all countries. We review the important parts of this report in today’s story.
The report notes that migration has been recorded even in the earliest days of civilization, about 2 lakh years ago. Since then, human beings never ceased to move. This movement has been due to a plethora of reasons like seeking better economic opportunities, better education, displacement due to conflicts or natural disasters, among others. With millions of people leaving their country, migration is a development challenge. Migration is also considered a response to global imbalances, such as large welfare differences, and to shocks such as conflict and violence.
Cross-border migration has been covered in the report
In the World Bank Report, migrants have been defined as “people who live outside their country of nationality—whether they moved in search of better economic opportunities or were displaced by conflict or persecution (refugees).” In simpler terms, the report takes into consideration cross-border migration only. Those people who have been naturalized in their country of residence have not been included in this definition. The lack of citizenship for migrants deprives them of the civil, political, and economic rights the citizens enjoy.
The report has also identified 4 types of cross-border movements. These are-
Majority of the migrants live in low- and middle- income countries
As per the report, there are 184 million people who live outside their country including 37 million refugees. Migrants, as per the definition above, account for about 2.3% of the world’s population.
About 40% (64 million economic migrants and 10 million refugees) are in high-income OECD countries. These are mostly high and low-skilled workers and their families with the intent to settle in the destination country, temporary migrants, students, and undocumented migrants and persons seeking international protection. GCC countries host about 17% of them (31 million migrants) and almost all are temporary workers with renewable work visas. The remaining 43% (52 million economic migrants and 27 million refugees) live in low- and middle-income countries and the movement is primarily for jobs or family reunification or to seek international protection.
Share of immigrants in population is high in GCC Countries
The share of immigrants in the population of destination country is among the largest in GCC Countries and is the highest in UAE with 88%. That is, 88% of the population in the UAE is comprised of immigrants. In many high-income OECD countries, the share is about 5 to 15%. Ten countries namely Russia, Pakistan, Bangladesh, Turkey, Poland, Germany, Sudan, Uganda, Colombia, and Peru host more than half of all the refugees. Seeking safety and security, the refugees generally tend to move to neighbouring countries.
Cross-border migration has resulted in substantial increase in income
Migration has helped in reducing poverty in low-income & middle-income countries. This is because migrants, especially with strong skill match, tend to earn higher income in the destination countries than in their countries. For instance, Indians are estimated to earn nearly 120% more abroad in contrast to 40% increase for internal migrants. While Indians working as low-skilled workers in the GCC have a 118% increase in income, the same for Indians in UAE is nearly 300%. However, cross-border migration comes with a cost. In the case of low-skilled South Asian workers moving to some GCC countries, the cost to emigrate can be as high as 10 months of expected earnings. For Indians moving to Qatar or Kuwait, the migration cost is about two months of expected earnings.
Rapid demographic transitions and climate change have been cited as two drivers forcing cross-border movements. In high-income countries as well as many middle-income countries, the populations are aging because of which the labour supply and demand has been affected in these countries. Migration is an integral solution to help reduce the disparity in supply and demand. With respect to climate change, though most movements have been within the countries so far, it has the potential to increase in distressed international migration.
India received the highest remittances in 2021
The benefits from migration for the origin countries include remittances, knowledge transfers, and positive impacts on the labour market. Remittances help improve the income of the country, consumption, and allows increased households’ spending on health and education. India is the biggest recipient of remittances in 2021 with $ 89.38 billion and World Bank had estimated that India would cross the $100 billion milestone in 2022.
‘Match – motive’ Framework has been recommended to help policy formulation
Noting the importance of migration and the challenges arising out of it, the World Bank report has enlisted some recommendations.
A Match – Motive Framework that focuses on two factors- how closely migrants’ skills and attributes match the needs of destination countries and what motives underlie their movements has been proposed. With this approach, policy makers will be able to identify priority areas, differentiate among the different types of movements and design migration policies for each of these movements.
Further, it also called for origin countries to make migration a part of their development strategy and for destination countries to use “strong match” migration to meet their labour needs. Destination countries were recommended to facilitate the inclusion of migrants and address social impacts that raise concerns among their citizens.
It also urges to use bilateral cooperation to strengthen the match of migrants’ skills and attributes with the needs of destination economies. Other recommendations include organizing regional and global responses to address refugee movements and reduce the need for distressed movements. It called for developing new and predictable financing instruments.
The World Bank’s World Development Report contributes to thinking about development from multiple angles. However, the current report has not delved deep into the impact of the COVID-19 pandemic on economic opportunities, and the changes that have emerged along with it like the option for remote work offered in certain sectors, where feasible.


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Review: Law Commission Recommends Complete Overhaul of Archaic Epidemic Diseases Act, 1897
Sai Krishna Muthyanolla
February 19, 2024
The Epidemic Diseases Act, 1897, was enacted by the British during the colonial period in response to the plague epidemic in Bombay. The COVID-19 epidemic exposed the limitations in the colonial-era legislation. The Law Commission of India in its 286th report has recommended a complete overhaul of this legislation.
The Epidemic Diseases Act, 1897, was enacted by the British during the colonial period in response to the plague epidemic in Bombay. This legislation, consisting of four sections, was introduced on 04 February 1897. Section 2 of the Act empowers state governments to take necessary measures to prevent the outbreak of epidemics. This includes the authority to inspect individuals, enforce quarantine measures, and implement other regulations essential for public health. During events like the COVID-19 pandemic, several Indian states invoked this Act to implement measures such as quarantine, isolation, and social distancing to control the spread of infectious diseases. An explainer about the Act by Factly is available here.
COVID-19 exposed the limitations of the colonial-era legislation
The immediate response to COVID-19 such as the imposition of lockdown was invoked under the Disaster Management Act of 2005. In 2020, an amendment was made to the Epidemic Diseases Act which primarily focused on protecting healthcare workers from violence during COVID-19. While it offered relief, it lacked considerations like defining epidemic criteria and citizens’ duties. Previous attempts to create comprehensive epidemic laws through private bills failed in Parliament. The current legal mechanisms lack flexibility for health emergencies, requiring a strengthened law to effectively address life-threatening situations during outbreaks.
Law Commission submitted a report on the Epidemic Diseases Act, 1897
Emphasizing the need for consolidated legislation dedicated to preventing, controlling, and managing epidemic diseases, the 22  Law Commission submitted its 286th report that comprehensively reviewed the archaic law. Consultations were held by the Law Commission with the Ministry of Health, and other experts to improve the current health laws.
According to the report, there are many limitations in the legislation that were exposed during the COVID-19 pandemic. Some of the limitations have been highlighted below:
To sum up, the report noted that the Act lacks modernization and clarity in addressing emergent health hazards, and there is a pressing need for a comprehensive, updated legal framework for managing epidemics effectively.
From definition to penalty, several recommendations have been made by the Law Commission
In light of modern scientific advancements, the amended or new Act should not just confer stipulated powers but actively shape response mechanisms for preventing and controlling epidemics, as suggested by the Law Commission of India. It suggested that the Act should comprehensively define key terminologies including ‘Epidemic.’ Further, it should also specify stages such as ‘Outbreak,’ ‘Epidemic,’ and ‘Pandemic’ for effective containment measures and clear demarcation of powers between the Centre and State.
Similarly, it called for clarifying the difference between ‘quarantine’ and ‘isolation’ as given in The Epidemic Diseases Bill, 2023. Other definitions to be included are that of ‘Physical Distancing’ and ‘Clinical Establishments’.
Proper demarcation of powers between State and Centre through formulation of SOP
Another suggestion was that the Act should decentralize and clearly define the powers of Central, State, and local authorities to regulate epidemics effectively. An adaptable enforcement mechanism is crucial, aligning with the evolving stages of infectious or contagious diseases. Since ‘public health and sanitation’ falls under State jurisdiction, State Governments should take the lead in implementing preventive and management measures during epidemics, the report added. Furthermore, as the prevention of infectious diseases is on the Concurrent List, both the Centre and States can enact laws.
Different scenarios of the epidemic have been considered for the SOP
A dedicated Standard Operating Procedure (SOP) was also deemed necessary to avoid conflicts and ensure proper decentralization of implementation powers. Three possible scenarios in the event of an outbreak were listed for formulation of the SOP. One is when an ‘outbreak’ of any infectious or contagious disease has affected any part of the State, the second is when there is an inter-state spread of the epidemic, and the third scenario is when there is an extreme threat across the country. The flowchart illustrating the broad SOP is given below.
An ‘Epidemic Plan’ has been recommended to deal with different aspects of the disease outbreak
Another change suggested is the creation of an ‘Epidemic Plan’. The Law Commission recommended that the Central Government collaboratively formulate an Epidemic Plan with relevant ministries, State Health Departments, health institutions, and expert bodies. State Governments should work in tandem, creating regulations aligned with the Epidemic Plan, considering local health infrastructure. The Epidemic Plan should be given statutory force by amending the Epidemic Diseases Act, imposing a duty on governments for its preparation. The plan should be periodically reviewed and revised, addressing prevention, detection, control, and management of epidemics, with specific aspects mandated through statutory provisions, it suggested.
Appropriate measures for imposing lockdown and for carrying out physical distancing by identifying essential and nonessential services during any epidemic, improved surveillance, and issuance of guidelines for proper disinfection and decontamination, among others have been recommended. Additionally, during crises, the government should set directives to control and regulate the availability of essential healthcare supplies like medicines, vaccines, and PPE Kits, along with regulations for their distribution and sale, in the Plan.
Other provisions to be included are privacy-friendly disease surveillance, effective public information dissemination, overseeing testing and research for vaccines and medicines, and safe infectious waste disposal.
Commission has suggested enhancement of punishment and direct incorporation of punishment into the Epidemic Diseases Act
With respect to the penal provisions, the commission noted that the implementation of the Bharatiya Nyaya Sanhita, 2023, in place of the IPC has enhanced the punishment to imprisonment for up to one year, a fine of up to five thousand rupees, or both. Despite the significant punishment increase, the Commission suggests incorporating this punishment directly into the Epidemic Diseases Act. It proposed categorizing the offence into two heads: first, for negligently contravening provisions with a milder punishment, and second, for wilful contravention with a stricter penalty. The Commission also recommended escalating punishments for subsequent or repeat violations. To expedite enforcement, it proposed making these offences cognizable and non-bailable.

created: February 19, 2024


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Review: Leave applications by 17th Lok Sabha MPs – Who & Why?
Sai Krishna Muthyanolla
August 18, 2022
The Constitution provides for disqualification of a Member of Parliament (MP) if he/she is absent continuously for 60 days from the Lok Sabha or the Rajya Sabha without permission. Hence MPs submit leave applications when they are absent for a longer period. In the 17th Lok Sabha, 86 leave applications are submitted till the 09th session.
The 17 Lok Sabha was formed in 2019 with the Bhartiya Janata Party (BJP) retaining its position as the single largest party, with 303 out of 543 seats, and forming the government for the 2 time in a row. Since then, there have been a total of 9 sessions, including the recently adjourned monsoon session during the 17 Lok Sabha. The 17 Lok Sabha has met for a total of 192 days. However, as observed earlier, the average attendance has been low because of which the Prime Minister urged his party Members of the Parliament (MPs) to be regular to the parliament. But what are the reasons cited by MPs for their absence? Do they submit leave applications? Here is an analysis of the leave applications submitted by MPs of the Lok Sabha during the different sessions of the 17 Lok Sabha.
Article 101 mandates that MPs should take permission to be absent for 60 days or more
Conditions for the disqualification of Members of Parliament (MPs) are laid out in Article 101 of the Indian Constitution. One of the conditions for disqualification is when a member of either house of parliament remains absent for a period of 60 days without permission. If the member doesn’t seek permission for absence for 60 days, then the House will declare the seat vacant. The period of absence is calculated from the day a member is absent from the sittings of the House till the day he next attends it, whether in the same session or in subsequent sessions. However, if the vacancy is due to adjournment of the House for four or more consecutive days, no action will be taken.
Leave applications are examined by a Parliamentary Standing Committee
In the Lok Sabha, a leave application must be submitted by the concerned MP to the Speaker of the House, or the Secretariat, or the Chairman of the Committee on Absence of Members. One single leave application cannot exceed 60 days. The application must include the reasons for absence. The applications received are then placed before the ‘Committee on Absence of Members from the sittings of the House’ for their consideration and report. The committee, which is a standing committee in the Lok Sabha, meets and examines each leave application and cases where a member has been absent for a period of 60 days or more, without permission, from the sittings of the House.
In its report, recommendations are made with respect to each case as to whether the absence should be condoned, a leave is to be granted, or whether the House should declare the seat vacant. The Committee consists of 15 members, nominated by the Speaker, who hold office for one year. Currently, Ravneet Singh from Ludhiana constituency (Indian National Congress), Punjab is the chairperson of the committee. Some of the grounds on which leave are granted to members are illness and medical check-ups, deaths in family, marriage, detention in jail, pilgrimage, visits abroad, etc.
33 MPs and 2 Ministers submitted a total of 86 leave applications seeking leave for 1,768 days
In the 9 sessions of the 17 Lok Sabha, a total of 86 leave applications were submitted by 33 MPs and 2 Ministers. Altogether, the 86 leave applications sought leave for 1768 days. While all the applications were approved, leaves were approved for a total of 1697 days. This is because the committee does not recommend leaves for more than 59 days. The members may be granted leave for 59 days in the first instance and asked to apply afresh for the remaining period for which they seek absence.
BJP MPs had submitted 22 applications followed by TMC and BSP MPs with 13 each
Of the 86 leave applications submitted, MPs of the BJP submitted 22 followed by 13 each by MPs of the Trinamool Congress and Bahujan Samaj Party. 9 applications were submitted by Samajwadi Party MPs and 6 by INC MPs.  MPs of Shiv Sena, YSRCP, and Jammu and Kashmir National Conference Party had submitted 5 applications each while MPs of Shiromani Akali Dal submitted 4 applications. One application each was submitted by the MPs of CPI, DMK, BJD, and Sikkim Krantikari Morcha.
In terms of the number of days of leave, BJP MPs applied for 496 days, Bahujan Samaj Party MPs applied for 331 days while Trinamool Congress MPs applied for 273 days, and MPs of Samajwadi Party applied for 156 days.
More than 53% of the applications cited ‘Self-Illness’ as the reason while 29% was due to ‘Detention in Jail’
Majority of the leave applications cited ‘Self Illness’ as the reason. Self-Illness was the reason cited in 46 applications out of the total 86, accounting for more than 53%. Detention in Jail was the reason cited in 25 applications followed by Elections in 10 applications. Elections include both state elections and other local or bye-elections. 2 MPs cited sickness in the family as the reason for leave while one member each cited marriage in the family, the marriage of self, and work in the constituency as the reason for leave.
Among those MPs who cited detention in jail as the reason for absence, Bahujan Samaj Party MP, Atul Kumar Singh alias Atul Rai had submitted 12 such applications. Former MP Mohammed Azam Khan of Samajwadi Party had submitted 9 applications while Farooq Abdullah of J&K National Conference submitted 4 applications, all with the reason of detention. Farooq Abdullah stated Detention in Jail and Self-Illness as the reason in his applications.
Of the 10 applications seeking leave for elections, 3 were from three BJP MPs. All 4 applications of Shiromani Akali Dal MPs (two MPs) were for elections. 2 applications of leave for elections were submitted by an MP of INC and one from BSP.
Committee recommended all the leave applications
The committee recommended all the leave applications received from MPs. A total of 1,697 days of leave were approved as against the 1,768 requested. In six cases, the committee did not recommend the total number of days as applied by the MP. This was because they had applied for more than 60 days of leave in their applications while the maximum limit is 60 days. As mentioned earlier, the committee recommended that the MPs apply afresh if the leaves requested exceed 59 days.


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Madhya Pradesh HC notes that Police often claims dysfunctionality of CCTVs to cover up instances of unlawful detention
Sai Krishna Muthyanolla
June 23, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on ex gratia compensation to COVID-19 victims, dissemination of COVID-19 death statistics, illegal detention, and miscarriage of justice.
Supreme Court: Reserves judgement on plea for ex-gratia compensation to COVID-19 victims
The supreme court was hearing pleas seeking ex gratia monetary compensation of Rs. 4 lakhs or notified ex gratia monetary compensation to the families of deceased who have succumbed to the pandemic of COVID-19.
The plea emphasises that not only is it the legal obligation of the State to provide adequate relief to the victims of COVID-19 and their family members under the State Disaster Response Fund (SDRF) as it is a “notified disaster”, but it is also the Constitutional obligation of the State to take care of the victims of the calamity and their families. Section 12 of the Disaster Management Act, 2005, states that the National Authority shall recommend guidelines for minimum standards of relief to be provided to persons affected by disaster, which shall include ex gratia assistance on account of loss of life.
The plea, additionally, submits that it is the right of the family members to know the real cause of death of their family member on any official document, and are therefore seeking directions to States to issue death certificates/any letter to the families of the deceased stating the cause of death. The bench acknowledged the submission of the Petitioners that the guidelines for a minimum standard of relief for ex gratia assistance required a death certificate. However, death certificates of COVID-19 victims did not mention the cause of death, thereby leading to difficulties for the families who would have to run from pillar to post to receive the compensation. To this end, the Court had directed the Central Government to bring on record any policy or guidelines pertaining to death certificates issued to COVID-19 patients, including guidelines by the Indian Council of Medical Research (ICMR).
The Central Government initially informed the Supreme Court that the Centre was actively considering the issues raised in the pleas and afterwards, the Centre informed the apex court that payment of ex gratia compensation to all deceased persons due to COVID-19, is beyond the fiscal affordability of the Governments, as the finances of State Governments and the Central Government are under severe strain, due to the reduction in tax revenues and increase in health expenses on account of the pandemic. The submissions have been made by the Ministry of Home Affairs through an affidavit.
The Ministry of Home Affairs (MHA) submitted that if ex gratia of Rs. 4 lakhs are given for every person, who loses life due to COVID-19, the entire amount of SDRF may possibly be spent on this item alone. While acknowledging that the affected families need help and support, MHA has stated that it is wrong to state that the help can be provided only through ex gratia assistance as that would be a ‘rather pedantic and narrow approach’. According to MHA, health interventions, social protection, and economic recovery for the affected communities would be a more prudent, responsible, and sustainable approach.
Further, MHA has stated that there is no precedent of giving ex gratia for an ongoing disease or for any disaster event of long duration, extending for several months or years, and granting ex gratia for one disease while denying the same for those accounting for a larger share of mortality, would not be fair and would create unfairness and invidious discrimination.
The arguments of both sides have concluded in the case and the court reserved the judgment.
Bihar HC: State obligated to provide accurate and regular information on deaths occurred during the COVID-19 pandemic.
In the case Shivani Kaushik vs. Union of India, the high court observed that the Government, be it for whatever reason, is reluctant to put in the public domain the number of deaths that occurred in Bihar during the last one year i.e., during the time of COVID-19 pandemic.
The issue brought to light was as to whether more than ten crore people of the State of Bihar have a right to know, on a digital platform, the number of deaths that occurred in Bihar during the time of COVID-19. And whether the Government has a corresponding duty to disclose either voluntarily or as mandated by law. The court maintained that the Government has a responsibility to provide accurate, reliable, and up-to-date information to the general public. The mandate to do so also flows under the provisions of the Right to Information Act, 2005 (RTI Act). The provision of the RTI Act casts a duty upon all public authorities to suo motu provide and disseminate information unless it is protected by law.
The judgement explains that on 31 May 2021, the Chief Secretary, Government of Bihar filed an affidavit seeking time to upload the information of deaths resulting from COVID-19. However, despite repeated assurances, the high court found that the Digital Portal was not being uploaded periodically by the functionaries.
In conclusion, the high court held that the resistance by the state government to furnish the said information is uncalled for, for such action is neither protected by any law nor in consonance with good governance’s settled principles.  Considering this, the court issued the following directions:
In a similar vein, the Madras High Court noted that all over the country, there are grievances that all the deaths that have been caused by the pandemic may not have been appropriately recorded.
The high court was hearing a plea that sought framing and implementation of an effective policy to ensure that cause of death is properly and correctly mentioned in the relevant certificate/official document for all cases of COVID-19 related deaths in accordance with the law, ICMR guidelines, and other relevant parameters. The high court sought responses from the State & Central Government and has posted the matter for further hearing on 28 June 2021.
Madhya Pradesh: Police often claims dysfunctionality of CCTVs to cover up instances of unlawful detention
In the case Ritwik Kaushal vs. State of Madhya Pradesh, the high court made a prima facie observation that in order to cover up instances of unlawful detention, the police often take a false stand that the CCTV cameras are dysfunctional.
The court was hearing a plea against the alleged unlawful detention of the petitioner by local police authorities. The petitioner alleged that he was unlawfully picked up on 22 February 2021, was taken to the Piplani police station, and detained for two days. The petitioner’s family was informed that he will be released in some time but subsequently, an FIR was lodged alleging that he was arrested on 23 February for possession of drugs. The petitioner, therefore, filed a plea stating that the CCTV footage from 22 February till 24 February 2021 of the Police Station Piplani be secured and brought before the Court, which would clearly reveal that the petitioner was in unlawful custody during that period.
In response, the prosecutor submitted that the CCTV footage of the said period cannot be shown as that would reveal the identity of the source informant. However, the police report that was given to the high court revealed that the CCTV cameras in the Piplani police station were non-functional from 17 February 2021.
The high court noted contradiction in the statements made by the local Police and by the Prosecutor and observed that the case discloses a larger issue.
The judgement notes that such a stand creates an opportunity for the police to act with impunity in complete disregard to human rights and personal liberty and conveniently give an explanation that the CCTV cameras were dysfunctional during the period which the citizen says that he was unlawfully detained in the police station.
In conclusion, the court has summoned DIG- Bhopal (Urban), and SP (South Bhopal) on the next date of hearing and has instructed them to explain as to why the cameras were dysfunctional from 17 February 2021, whether the concerned authorities were informed about the dysfunctionality by the SHO of PS Piplani, and if they were informed, what were the steps taken by those officials to have the cameras rectified in the shortest possible time.
Uttar Pradesh: Incomplete gang-charts result in easy bail, giving ample room for miscarriage of justice
In the case Nishant v. State of Uttar Pradesh (UP), the high court took note of incomplete and defective gang-charts being filed under the UP Gangster Act 1986, which ultimately helps alleged gangsters in “easily obtaining bail”, thereby threatening the order of the civil society.
The high court was hearing bail applications filed by alleged gangsters and noted that the charts filed by the police against the four accused suffered from the same vice of law i.e., ‘incomplete and defective gang chart’ which does not indicate the accused’s complete past credentials, giving ample room for miscarriage of justice, resultantly, the accused-applicant tends to be bailed out easily.
The current judgement highlights the adverse impact of defective gang-chart on bail as well as a trial of the accused concern. The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 exhaustively defines gangsterism and gangsters and allows the State to make special provisions to curb and cope with “gangsters and their anti-social activities” and for other connected matters. The State legislature brought into force the above-mentioned legislation on 15 January 1986 with a view to handle the menace of ‘Organized Crime’ in the State in a more effective way.
However, the court notes that no rules have been framed even after a lapse of 35 years of the said enactment by the State Government. Taking the advantage of this void when there are no rules or procedures for the present Act, only incomplete and half-backed gang-charts were prepared by the informants of different bail applications which were later mechanically approved by the responsible higher police authorities of the district, against that Gang.
In this respect, the Court made two major observations:
In conclusion, the high court directed the Principal Secretary (Home), Lucknow and the Director-General of Police, Lucknow to frame proper Rules under the 1986 Act, latest by 31 December 2021. Meanwhile, they were asked to issue a proper circular to all the SSP/SPs of the District to appoint any officer (at least CO Rank), to become the author of gang chart and act as Nodal Officer of all the police stations within the district. The judgement also laid down the elements that a cogent gang-chart must reflect:
Further, the high court emphasised that SP/SSP of the district after making an in-depth probe and cross-check, regarding the authenticity of the gang chart shall approve it after putting his signatures. Any laxity by the authority concerned in preparing the gang chart would warrant serious consequences on his own shoulders. The Special Judge (Gangster Act) which is operational in every Session/Division in the State were also directed to speed up the trial and make all necessary endeavours to conclude the same within a year of submission of the charge sheet. The proceeding under the U.P. Gangster Act shall be given priority over any other trial.
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Review: Madhya Pradesh HC Rules That Objection by Husband to Wife About Financially Support Her Parents Amounts to Cruelty.
Sai Krishna Muthyanolla
May 1, 2024
In this edition of Court Judgements, we look at the apex court’s judgement on 100% cross-verification of EVM data with VVPATs, issues with regularization of employees, Karnataka High Court on disclosures in candidate’s affidavits, Madhya Pradesh High Court, and Delhi High Court’s judgment on cruelty in marital relationship.
Supreme Court: Suspicions of EVM tampering are unsubstantiated, reverting to ballot system will undo the progress so far.
In Association of Democratic Reforms vs. Election Commission of India & Anr., the apex court held that returning to the ballot system could undo the reforms over the years, and mere suspicions of mismatch in votes cast through EVMs cannot be considered.
The two-judge bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta was hearing a petition to consider:
The court referred to previous judgements on the efficacy and use of EVMs in the elections in this country. In Subramanian Swamy vs. Election Commission of India, the apex court held that the paper trail was an indispensable requirement of free and fair elections. Accordingly, EVMs were to be set up with VVPATs. In N. Chandrababu Naidu and Others vs. Union of India and Another, the apex court held that five EVMs per assembly constituency or assembly segment in a parliamentary constituency would be subject to VVPAT verification. In Sunil Ahya vs. Election Commission of India, the apex court dismissed a petition seeking an independent audit of the source code of EVMs.
The court also briefly looked at the functioning of EVMs. Upon looking at the process flow starting from the EVM dispatch from the warehouse and the conclusion of the election, it held that EVMs are standalone machines which cannot be connected to the internet. The EVMs do not have any ports to enable a person to have access to the burnt memory. The notion of hacking or tampering with the neutral firmware in the read-only memory to influence results is baseless. Therefore, any suspicion that electronic voting machines (EVMs) can be programmed or manipulated to record votes repeatedly or inaccurately in favour of a specific candidate should be dismissed.
Further, the performance of EVMs was also discussed. Since introducing Electronic Voting Machines (EVMs), over 1.18 billion voters have exercised their franchise. The Election Commission of India (ECI) has conducted random verification of Voter Verifiable Paper Audit Trail (VVPAT) in 5 polling booths per assembly segment/constituency for 41,629 EVMs-VVPATs. Additionally, more than 40 million VVPAT slips have been cross-checked with the electronic counts of their corresponding control units. Not a single instance of discrepancy or incorrect vote recording has been identified. EVMs have undergone scrutiny by technical expert committees on multiple occasions, all of which have approved them and found no faults.
The apex court acknowledged the fundamental right of voters to ensure their vote is accurately recorded and counted, however, the same cannot be equated with the right to 100% counting of VVPAT slips, or a right to physical access to the VVPAT slip.
The apex court held that EVMs are simple, secure, and user-friendly, and the VVPAT system fortifies the principle of vote verifiability, thereby enhancing the overall accountability of the electoral process.
Further, to strengthen the integrity of electoral processes, the court issued several directions.
Accordingly, the petitions are disposed of.
Supreme Court: Employee appointed through valid process cannot be denied regularization due to procedural formalities, if served for considerable time in that position.
In Vinod Kumar & Ors. etc vs. Union of India & Ors., the apex court held that procedural formalities cannot be used to deny substantive rights to the employee perpetually. Further, the essence of employment and rights thereof cannot be merely determined by initial terms of appointment when the employment has evolved over time.
The apex court was hearing an appeal filed against the judgement of Allahabad High Court, which dismissed the petitions challenging the order of the Central Administrative Tribunal that rejected the appellant’s plea for regularization and absorption into the post of ‘Accounts clerk’.
The brief facts of the case are as follows: As per a notification dated 21 February 1991, the appellants were initially selected for ex-cadre positions as ‘Accounts Clerks’ through a process involving written tests and interviews. Despite their representation for regularization being rejected by the Divisional Railway Manager in 1999, the appellants pursued their case by filing Original Applications with the Central Administrative Tribunal. However, the Tribunal, in its order dated 21 November 2001, dismissed their applications, asserting that their appointments were temporary and tied to a specific scheme, thereby precluding them from being regularized or absorbed into permanent positions. Subsequently, the appellants appealed to the High Court, which upheld the Tribunal’s decision and dismissed their Writ Petitions. The High Court reasoned that employment under a temporary scheme did not afford the appellants the same rights as permanent employees, citing the Supreme Court’s ruling in Secretary, State of Karnataka vs. Umadevi, which held that temporary or casual employees do not have a fundamental right to be absorbed into service.
The counsel for the appellants argued that the High Court erred in the judgement and incorrectly applied the principles from the case of Umadevi to their situation. Having heard both sides, the apex court held that when the actual course of employment has evolved over time, the essence of employment and rights thereof cannot be merely determined by initial terms of appointment.
The apex court also differentiated between the case at hand and the Umadevi. While the Umadevi case was on the back door entry, the case at hand is that of a valid appointment process. Furthermore, the Umadevi case also distinguishes ‘irregular’ and ‘illegal’ appointments, clearly stating that even if certain appointments were not made in accordance with rules and procedures, they cannot be said to be illegally done if they had followed procedures of regular appointment such as written exams and interviews.
Accordingly, the judgment of the High Court is set aside, and the appellants are entitled to regularization. The respondents are directed to complete the process of regularization within 3 months from the date of service of the judgment.
Karnataka HC: Not every criminal case launched against a candidate has to be disclosed, when charges are not framed, or cognizance of offence has not been taken.
In B G Uday vs. H G Prashanth, the Karnataka High Court held that not all criminal cases against a candidate participating in elections need to be disclosed, particularly if the charges are not yet framed or cognizance of the offence has not been taken.
The single-judge bench comprising Justice Krishna S Dixit was hearing an appeal calling into question the judgement of the sessions judge that dismissed the appeal against the conviction and imprisonment of the candidate under Section 125A of the Representation of Peoples Act for filing false affidavit, passed by XLII Addl. Chief Metropolitan Magistrate, Bengaluru.
The counsel for the petitioner argued that the penal provision outlined in Section 125A should be interpreted strictly, suggesting that no offence could be attributed under such scrutiny. It was argued that the provision to disclose the pendency of a criminal case arises only when it has reached a certain stage, and not before. The counsel for the respondent asserted that the petitioner had failed to disclose the ongoing criminal cases against him, irrespective of the stage of the complaint.
The court looked at the format of the Affidavit format as prescribed in Rule 4A of the 1961 Rules read with section 33A of the 1951 Act, and affirmed that what is required to be disclosed is the pendency of a criminal case in which charges have been framed or cognizance of the offence alleged is taken.
Further, the High Court pointed out the shortcomings of the conviction and held that taking the literal content of Form 26, without adverting to the substantive provisions of section 33A of the parent Act culminated in the conviction & sentence, which are nothing but an abuse of the process of the court.
Accordingly, the impugned orders of the courts below are set aside.
Madhya Pradesh HC: Objection by husband to wife, who is always free to financially support her parents amounts to cruelty.
In Pawan Kumar vs. Dr. Babita Jain, the Madhya Pradesh High Court held that the wife is always free to financially support her parents and if there is any objection from the husband, the same amounts to cruelty.
The two-judge bench comprising Justice Rohit Arya and Justice Sanjeev S Kalgaonkar was hearing an appeal against the judgement of the Family Court that granted the decree of divorce to the couple. The brief facts of the case are as follows: The appellant (husband) and respondent (wife) entered into the marriage in April 2002 following Hindu customs, where the husband claimed to be a Chartered Accountant, when in fact he did not have any such degree. They have been living separately without cohabitation since February 2009, a span of 15 years. Eight years after their marriage, the wife, a doctor, filed a petition under section 13 of the HM Act before the Family Court, alleging that her husband lacked any source of income and married her with the sole aim of living off her earnings luxuriously.
The wife claimed that after their marriage, her husband took her to his residence in Sagar and insisted that she sever ties with her parents. He controlled her finances and prohibited her from seeking employment outside the home. Allegedly, he also interfered with her professional activities, lodging complaints with her employers about her employment without his consent.
The husband contended that he was always open to reconciliation with his wife, but she refused due to her obstinacy. He attributed her unwillingness to reconcile to interference from her mother and brother. He also asserted that the wife’s parents were motivated by greed for her earnings, which hindered any amicable resolution of the matter.
Upon considering the facts of the case, and cross-examination, the Trial Court found that the wife was subjected to cruelty by her husband. The High Court also looked at the findings of the Trial Court during the cross-examination. It further relied on the apex court judgement in A. Jayachandra vs. Aneel Kaur, whereby it was held that Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or mere silence, violent or non-violent. In cases where there is no direct evidence of cruelty, the courts are required to probe into the mental process and mental effects of incidents that are brought out in evidence.
Further, since the couple had been living separately for a long period, it is well settled that such long periods of continuous separation conclude that the marital relationship is beyond repair. The trial court committed no error in granting the decree of divorce. The impugned judgement merits no interference. Accordingly, the appeal is dismissed.
Delhi HC: Unsubstantiated aspersions of perfidiousness attributed to the spouse would amount to worst form of insult and cruelty.
In X vs. Y, the Delhi High Court held that levelling disgusting allegations of unchastity and allegations of extramarital relationship constitute grave assault and would amount to the worst form of insult and cruelty.
The division bench comprising Justice Suresh Kumar Kait and Justice Neena Bansal Krishna was hearing an appeal against the order of the Family Court that dismissed the petition for divorce on grounds of cruelty. The brief facts of the case are as follows. The appellant, divorced and working on deputation in the Central Reserve Police Force in 2004, was contacted by the respondent. They began conversing over the phone and met in September 2004 at ISBT, Delhi, spending about 3-4 hours together. A week later, the respondent expressed affection for the petitioner. He visited her at her residence in Bhiwani, Haryana. The petitioner claimed that, while intoxicated, the respondent initiated a physical relationship with him. Later in November 2004, she informed him of her pregnancy and pressured him into marriage. They wed on 1 January 2005, at Arya Samaj Mandir, Najafgarh, following Hindu customs. However, she confessed afterwards that she was not pregnant, having deceived him to coerce marriage.
The petitioner alleged that the respondent, employed in a government department initially stationed in Bhiwani, was transferred to Delhi in 2006 and urged him to resign from government service, start a business in Delhi, and claim his share of parental properties. He resigned but faced refusal from his parents due to their disapproval of the marriage. The petitioner claimed that the respondent married him to seize his property, mistreated him, threatened suicide, and falsely accused him and his family of dowry-related offences. It is alleged that he was subjected to cruelty, dowry harassment, and also allegations of illicit relationship. Accordingly, he filed a petition seeking divorce on the ground of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955.
The Family Court looked at the evidence of both parties and concluded that the allegations of cruelty by the respondent were vague, non-specific, and general in nature. Accordingly, the divorce petition was dismissed. When appealed in the High Court, the division bench also looked at the evidence and facts of the case. It held that the appellant has continuously and firmly expressed suspicions regarding the respondent’s character, making baseless and condemnable accusations against her integrity. It is asserted that she was engaged in an extramarital affair, without providing any evidence to support these claims. The High Court relied on the judgement of the apex court in Vijay Kumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, where it was held that such allegations, which constitute a grave assault on the character, honour, and reputation and health of the accused, amount to the worst form of cruelty.
The High Court further held that the appellant hadn’t substantiated any of the accusations made against the respondent. Their claims regarding threats of suicide and involvement in criminal cases are vague and lack specificity. Further, it’s the respondent who has endured cruelty, not the appellant.
Accordingly, the High Court dismissed the appeal petition.


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Review: Madras HC Directs Issuance of Passport to a Man Whose Mother is Indian and Father is a Sri Lankan Refugee
Sai Krishna Muthyanolla
April 12, 2023
In this week’s review of Court Judgments, we look at Madras High Court’s observation and order regarding a passport application of a person whose father was a Sri Lankan Migrant and mother, an Indian, Supreme Court’s denial of relief in a case of school teacher’s dismissal, J&K High court’s intervention to provide a widow with family pension, Delhi High Court’s order upholding right to full reimbursement for medical treatment and Andhra Pradesh High Court’s order against the Insurance company denying payment on basis of late filing of FIR.
Madras HC: Directs issue of Passport to a man whose mother is Indian and father is a Sri Lankan refugee
In the case of Neyatitus vs. The Regional Passport Officer, the Madurai bench of Madras High Court noted that we are still stuck in patriarchal notions and directed the Regional Passport authority to consider the representation of a man who had applied for an Indian Passport.
The court reasoned that this observation was based on the action of the authorities who assumed that the petitioner would partake of his father’s nationality even though his mother remained an Indian citizen making him eligible for an Indian passport.
In this case, the petitioner’s application for Indian Passport was held up because in his birth certificate, he is mentioned to be a Sri Lankan refugee. He was called upon by the passport authorities to give an explanation.
The court referred to various statutes and precedents relating to citizenship. It noted that as per Section 3(1)(b) of the Citizenship Act 1955, every person born in India on or after the first day of July 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth shall be a citizen of India by birth.
The court applied these two criteria in the current case. The petitioner was born before the cut-off date i.e., on 18 January 2002. Furthermore, his mother was an Indian citizen by birth. Therefore, he met both statutory requirements.
In reference to his mention as a refugee, the bench noted that the parliament has yet to enact a law relating to refugees and also cited various precedents in which the courts have actively come forward to grant relief to the refugees.
While the court made the remark about his status as a migrant based on his father and overlooking the Indian citizenship of his mother, it pointed out that the authorities were not at fault since the petitioner’s birth certificate mentioned him as a Sri Lankan refugee.
The court was convinced that the petitioner has made out a case for a grant of relief and directed the authorities to process his application within a period of three weeks.
Supreme Court: Denies relief to School teacher dismissed for degree through Distance education
In the case of Sunil Kumar vs the State of Rajasthan & Ors, the Supreme Court Bench consisting of Justice V Ramasubramanian and Justice Pankaj Mithal reiterated that there can’t be equality in a matter of illegality.
As per the case details, the petitioner was appointed as a teacher in a government school in 1999. Within 15 days, he was terminated on the ground that his bachelor’s degree was through distance education mode. As per the rules, a person with a bachelor’s degree through distance is not eligible for employment as a teacher.
This order of termination was challenged by the petitioner before the High Court, which was dismissed. Hence, the petitioner approached Supreme Court.
In the argument on behalf of the petitioner, it was presented that the same judge has passed an order in favour of candidates who had secured a bachelor’s degree in education through distance education mode.
The Apex Court noted that the High Court judge had ruled in favour of certain other candidates. However, the same principle cannot be applied in this case because it is established that a person holding a bachelor’s degree through distance education mode is ineligible.
It stated that it is well settled that there cannot be equality in the matter of illegality.
Jammu & Kashmir HC: Upholds widow’s rights to family pension despite divorce proceedings pending during husband’s lifetime.
Justice Rahul Bharti of Jammu and Kashmir and Ladakh High Court has recently ruled that a widow cannot be denied family pension after her husband’s death on the ground that there were ongoing divorce proceedings during his lifetime.
The judge was hearing the case Sonika Sharma vs Union of India, wherein a widow has sought the pension of her deceased husband, who was serving in the Border Security Force (BSF) till 2015.
As per the details of the case, after the demise of her husband, the petitioner had moved an application before the commanding officer for sanctioning the release of the family pension. She was the sole legal heir as her husband’s parents were no more and the couple did not have children.
This was rejected on the ground that her name was not found in the pension records of the deceased. The respondents submitted their clarification that her case for the processing of the family pension was not taken up because of the divorce petition. It was also submitted that the petitioner was earning monthly maintenance awarded by the court out of maintenance proceedings against her deceased husband during his life.
It was held by the court that family pension is a right under the law which can be taken away only if permitted by the law.  It noted that there was no provision in the law which would justify the objection of the respondents to deny the petitioner her claim for sanction of the pension.
It noted that the stand taken by the authority was frivolous and without any legal basis. It directed the authorities to sanction and grant family pensions under rules along with any retrospective benefits.
Delhi HC: State can’t deny medical reimbursement on ground that hospital charged amount exceeding approved rates
Delhi High Court ruled that reimbursement of medical expenses under Central Government (Medical Attendance) Rules, 1944 cannot be denied on the ground that the hospital charged an amount more than the approved rates.
It noted that the beneficiary employee cannot be faulted or penalised to pay the excess amount that was charged by the hospital, especially since the patient was referred to the particular hospital and it was not their choice.
As per the case, Mahendra Kumar Verma vs. Govt. of NCT of Delhi & Ors, the petitioner was serving as a reader in the court of Metropolitan Magistrate in Tis Hazari Court, Delhi. The petitioner claimed advances for the medical treatment of his minor child who was suffering from a brain tumour.
He was issued a letter from the respective authority asking him to deposit a sum of Rs. 51,854 against the medical advance of Rs. 2.34 lakhs granted to him from time to time for the medical treatment of his son in Rajiv Gandhi Cancer Institute.
His representation as to why he should not be fully reimbursed for the medical expenses was rejected.  An order was passed by the District & Session Judge for recovery of the amount from the petitioner’s salary.
He filed a writ petition in 2006 challenging the deductions made from his salary and also sought recovery of the amount.  In its submission to the High Court, the government stated that her petitioner is entitled to medical reimbursement only in terms of the Central Services (Medical Attendance) Rules, 1944 (CS (MA) Rules) as well as the instructions issued by the Government of NCT of Delhi from time to time.
It further submitted that after scrutinizing the medical bills and calculating the entitlement, it was found that the petitioner was entitled to a grant of Rs. 1,82,146 and hence is required to deposit the excess amount already sanctioned to him.
The counsel on behalf of the petitioner contended that the Right to health is a constitutional right under Article 21 of the Constitution of India and hence, the State is under the constitutional mandate to reimburse the government servant the expenses incurred on medical treatment. He submitted that the government servant is entitled to full reimbursement and cannot be restricted to the specified rates.
The court observed that as per CS(MA) Rules, 1994, the medical treatment availed by the government servants, or their dependants needs to be free of charge. It noted that any amount paid for such medical treatment has to be fully reimbursed.
Referring to the counter affidavit filed by the State, stated that not even a single provision of law has been cited to justify the deductions made in the petitioner’s claim. It further expressed dismay at how a petition seeking reimbursement of around Rs. 51 thousand remained pending for the past 16 years.
Andhra Pradesh HC: Delay in lodging FIR cannot be main ground for rejecting claim for compensation.
Andhra Pradesh High Court dismissed an appeal filed by an Insurance company against the award of compensation in a road accident case and stated that the delay in lodging FIR cannot be the main ground for rejecting the claim petition.
In the case, The National Insurance Company Ltd. vs. Komaravolu Srinivasa Bharadwaj and ors , the tribunal held that the accident occurred due to the rash and negligent riding of the offending vehicle and awarded compensation of Rs. 2.3 lakhs at the rate of 7.5% per annum from the date of the petition till the realization date against both the rider and the insurance company.
This was contended by the Insurance Company which stated that the tribunal failed to consider the hospital intimation received by the Police wherein it was mentioned that the accident occurred due to a bike skid. It also highlighted that the FIR was lodged two days after the accident and could be an afterthought to claim compensation.
The Court noted that the investigation was conducted based on the report filed before the police and a charge sheet was filed accordingly. It highlighted that there is no indication that the facts relating to the accident are suppressed or fabricated because of the delay. If any, they would have been identified as part of the investigation.
After going through the details placed in front of the court, it is of the view that the tribunal has reached a correct conclusion on the contentions raised. It stated that the Insurance company has failed to place any evidence to show that the contents of the chargesheet were incorrect.


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Madras HC issues Guidelines to prevent harassment of LGBTQIA+ community
Sai Krishna Muthyanolla
June 9, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on pricing and procurement policy of COVID vaccines adopted by the Central Government, freedom of speech and expression, and guidelines against police harassment of LGBTQIA+ persons.
Supreme Court: Directed Centre to undertake a fresh review of its vaccination policy
In suo moto proceedings regarding the distribution of essential supplies and services during the pandemic, the Supreme Court (SC) posed several questions on the rationale of the dual pricing and procurement policy of COVID-19 vaccines adopted by the Central Government.
The judgment starts with highlighting the fact that health experts globally agree that vaccination of the nation’s entire eligible population is the singular most important task in effectively combating the COVID-19 pandemic in the long run. From 1978 till 01 May 2021, the Union of India (UoI) has implemented the Universal Immunization Programme under which essential vaccines were procured by the UoI and were distributed to States/UTs free of cost for administering them to the end beneficiary. The said policy has held the test of times. Even during the vaccination drive for COVID-19 in phases 1 and 2 for vaccination of healthcare workers, frontline workers and persons above the age of 45 years, the UoI procured all the vaccines and distributed them to State/UT Governments for administration. The single procurement model has also been followed by other nations for ensuring fast and effective administration of vaccines against COVID-19.
The Universal Immunization Programme has been replaced by the ‘Liberalized Pricing and Accelerated National COVID-19 Vaccination Strategy’ from 01 May 2021 in phase 3 of the vaccination drive, whereby State/UT Governments or private hospitals are required to procure vaccines for persons between the age group of 18-44 years from the private manufacturers on the basis of a pro-rata quota i.e., 50:25:25 (UoI, State government, Private Hospitals) set by the UoI.
The judgement notes that persons between 18-44 years of age have not only been infected by COVID-19 but have also suffered from severe effects of the infection, including prolonged hospitalization and death. Hence, due to the importance of vaccinating individuals in the 18-44 age group, the policy of the Central Government for conducting free vaccination themselves for groups under the first 2 phases, and replacing it with paid vaccination by the State/UT Governments and private hospitals for the persons between 18-44 years is, prima facie, arbitrary and irrational.
The court also observed that many State/UT Governments and local municipal bodies have issued tenders and attempted to negotiate with foreign manufacturers, but they have largely been unsuccessful, as foreign manufacturers are not inclined to negotiate with individual State/UT Governments and prefer negotiating with federal governments of countries. Additionally, it has been indicated Central Government is better placed to use its monopoly as a buyer (India being the second most populous country) to bargain for higher quantities of vaccines at reasonable prices.
The court noted that the end result of the ‘Liberalized Vaccination Policy’ is that the UoI can purchase vaccines at Rs. 150 per dose for Covishield and Covaxin, while the State/UT Governments have to pay Rs. 300 and Rs. 400 per dose respectively. If the UoI were to be the single procurement agency for all vaccines at a fixed cost, then the cost of vaccination to the public exchequer would be substantially lower.
Further consequences of the vaccination by private hospitals, the supreme court highlighted, is that they may sell the vaccine doses procured at a higher price unless regulated stringently. Private hospitals also may not sell all their vaccine doses publicly through appointments on CoWIN, but rather sell them for lucrative deals directly to private corporations who wish to vaccinate their employees. Finally, private hospitals are not equally spread out across a State/UT and are often limited to bigger cities with large populations. As such, a larger quantity will be available in such cities, as opposed to the rural areas.
The court also notes that the facility of only online appointments on the CoWIN portal was initially introduced for the entirety of the population between the ages of 18-44 years. Later, on 24 May 2021, the UoI announced that on-site registration will be made available for the 18-44 years age group. However, this is contingent on: (i) the State/UT Government enabling this policy; and (ii) only in cases of wastage at a particular government COVID-19 vaccination centre due to a no-show by an online appointee. Further, this facility has not been expanded to private COVID-19 vaccination centres.
The court notes that the present system of allowing only digital registration and booking of appointments on CoWIN, coupled with the current scarcity of vaccines, will ultimately ensure that initially all vaccines, whether free or paid, are first availed by the economically privileged sections of the society. Any calculations of the economic ability of a given individual may not directly correspond to the vaccination route (paid/unpaid) they opt for. As such, even those who may have been able to afford a vaccine may opt for a free vaccine simply because of issues of availability, even if it would entail traveling to far-flung rural areas, as highlighted by recent news reports.
The judgement mentions statistics from a survey on “Household Social Consumption: Education” conducted by the National Statistics Office (July 2017-June 2018) and Telecom Regulatory Authority of India’s report titled “Wireless Data Services in India” (2020) to establish that there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. On centre’s clarification that all gram panchayats in the country have Common Service Centres (CSCs) which can effectively enable people residing in rural areas to register online for the vaccination, the apex court takes note of the ‘Annual Report of CSC’ for 2019-20, which highlights that there are 2,53,134 Gram Panchayats in India, and as on 31 March 2020, only 2,40,792 Gram Panchayats are covered with at least one registered CSC. Hence, approximately 13,000 Gram Panchayats in India do not have a CSC.
Therefore, the apex court held that a vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of society that would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.
In the light of the above observations, the court directed the UoI to undertake a fresh review of its vaccination policy and to provide a series of clarifications. Some of them include:
Following these observations by the court, Prime Minister Narendra Modi announced that the UoI will procure 75% of the vaccines being produced by the manufacturers in the country and will be provided free of cost to people. In other words, the UoI will take back the task of procuring the 25% earlier earmarked for States/UTs. Private Hospitals can buy 25% of the monthly production from vaccine manufacturers. The UoI released revised guidelines on 08 June 2021 and these would come into effect from 21 June 2021.
Supreme Court: Every Journalist entitled to protection of the Kedar Nath Singh judgement
In the case Vinod Dua vs. Union of India, the Supreme Court quashed FIR against Journalist Vinod Dua for sedition and other offenses and upheld the principles laid down in the Kedar Nath Singh judgement.
The court was hearing a challenge to an FIR filed against Vinod Dua under provisions of the Indian Penal Code for offenses of sedition, public nuisance, printing defamatory materials and public mischief by BJP leader Shyam at Kumarsain police station in Shimla district on 06 May 2020. The charge is that on 30 March 2020, Vinod Dua in his YouTube show, stated that Narendra Modi has used deaths and terror attacks to garner votes, along with other statements on the ineffective management of the COVID-19 pandemic. On 06 October 2020, a bench of Justices U U Lalit and Vineet Saran had reserved the judgment, after hearing arguments for Dua, Himachal Pradesh government and the complainant in the case.
In the present hearing, the apex court observed that as a journalist, the petitioner was entitled to and did nothing more than critical analysis of the functioning of the Government. After examining all submissions, the court noted that Dua’s remarks were certainly not made with the intent to incite people or showed a tendency to create disorder or disturbance of public peace. The petitioner was within the permissible limits laid down in the decision of the SC in the Kedar Nath Singh judgement. In this case, the Supreme Court had read down Section 124A IPC and held that the application of the provision should be limited to “acts involving intention or tendency to create disorder or disturbance of law and order; or incitement to violence”.
Therefore, the principles culled out in the Kedar Nath Singh judgement show that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.
The court noted that the offences in the FIR are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.
In conclusion, the court quashed the FIR lodged against senior journalist Vinod Dua for sedition and other offences.  The bench, however, refused the second prayer made by Vinod Dua seeking the formation of a committee to verify allegations against journalists before lodging FIR and that no FIR should be registered against a journalist with experience over 10 years unless cleared by the committee. The court observed that this prayer would be an encroachment into the legislative domain.
Madras HC: Guidelines against police harassment of LGBTQIA+ in missing complaints lodged by parents.
In the case of S. Sushama and another v Commissioner of Police and others, the high court issued a slew of guidelines to ensure that LGBTQIA+ persons are not harassed by police in missing complaints lodged by their parents.
The court was hearing a writ petition filed by two lesbian women against police harassment in a missing person complaint lodged by their parents, who did not approve of their relationship. The case has brought to light an important issue requiring de-stigmatization and acceptance in the eyes of the society. The bench of Justice Anand Venkatesh, therefore, consciously and voluntarily underwent psycho-educational sessions and interactions with LGBTQIA+ people to have a better understanding of their emotions and problems. He also admitted his “pre-conceived notions” about same-sex relationships and explained the educative processes undertaken by him to overcome inherent prejudices and biases against them.
Consequent to the previous order in April 2021, the parents of the couple each attended counselling sessions and a report was submitted to the court, highlighting the following:
Justice Venkatesh expressed that the change must take place at a societal level and when it is complemented by law, there will be a remarkable change in the outlook of the society towards same-sex relationships. The judgement mentions how legislative interventions are changing the attitude towards persons with disabilities and mental illness. The court called for similar legislative interventions with respect to the LGBTQIA+ community to eradicate the social discrimination against the community and to ensure the protection of their life and dignity.
The judgement refers to the principles laid down in Navtej Singh Johar v. Union of India,  where it was held that homosexuality is neither unnatural nor is it a “mental disorder or a disease”. The judgement also notes that global jurisprudence on sex, sexual orientation and gender identity has witnessed a sea change.
The Court issued the following interim guidelines/directions for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security:
The court emphasized that it expects the respective departments/authorities and institutions to implement these guidelines in letter and spirit, not for the sake of complying with a judicial fiat but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the society.
Featured Image: Important Court Judgements