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Review: Bombay HC Rules That it is the Duty of Driver to Take Proper Precautions When a Vehicle is Stationed on Road
Sai Krishna Muthyanolla
December 13, 2023
In this edition of Court judgements review, we look at Allahabad HC’s ruling that marital rape is an offence only if the wife is aged below 18 years, Delhi HC’s order that a wife is entitled to maintenance even if she is capable of earning and taking care of herself, Bombay HC’s order that it is duty of the driver to take proper precautions when a vehicle is stationed on the road, among others.
Allahabad HC: Marital rape is an offence only if the wife is aged below 18 years
In 2013, Sanjeev Gupta’s wife filed a case against him at a police station in Ghaziabad, accusing him of cruelty, violence and offenses related to insults, sexual acts, and dowry-related matters. The case was registered under sections 498A, 323, 504 and 377 of the IPC and the Dowry Prohibition Act as well.  The trial court found him guilty and convicted him under the aforesaid sections. He then filed an appeal, in which, the appellate court also upheld the trial court’s findings. He then filed the revision petition before the Allahabad High Court.
Justice Ram Manohar Narayan Mishra of the Allahabad High Court noted that there were no mistakes in the factual or legal aspects of the guilty verdict given by the higher court concerning the charges under sections 323 and 498-A of the IPC. However, concerning the conviction related to section 377 of the IPC, the court stated that the country has not made marital rape a criminal offense, yet. The appellant was acquitted of the charges under section 377 of IPC in this backdrop. Referring to the ‘Independent Thought vs Union of India’ case ruling from 2017 of the Supreme Court, the High Court stated that any sexual activity between a man and his wife, where the wife is aged between 15 and 18 years, would be considered as rape.
It also referred to the Madhya Pradesh High Court’s decision that Section 375 IPC includes all possible parts of penetration of the penis and that the consent for such an act is immaterial, leaving no scope for the offence of Section 377 IPC to get attracted where husband and wife are involved in sexual acts. The Bench also noted that the proposed Bhartiya Nyay Sanhita, which is likely to replace the Indian Penal Code, has no provision for section like 377 of the IPC.
Delhi HC: Wife is entitled to maintenance even if she is capable of earning and taking care of herself
In Nidhi Sudan vs. Manish Kumar Khanna, the appellant had filed for divorce on grounds of cruelty and desertion, along with an application for maintenance under Section 24 of the Hindu Marriage Act. Initially, the respondent was willing to mutually consent to divorce but later remained absent from proceedings, leading to the ex-parte proceeding. The appellant had an MBA and LLB qualification and had a monthly income from her business and rental property. She sought maintenance of Rs. 75,000 per month along with litigation expenses.
The appellant approached the Delhi High Court dissatisfied with the decision of the Family Court. The Family Court said that the wife did not require financial support as she had her income. The husband, who was a lawyer, was asked to pay only Rs. 20,000 per month for their child’s expenses since both parents were responsible. The wife was also given Rs. 11,000 for legal costs.
The High Court Bench of Justice V Kameswar Rao and Justice Anoop Kumar Mendiratt mentioned that legally, the responsibility for providing financial support rests more heavily on the husband than the wife. This is because laws regarding maintenance for women and children, found in different statutes, align with the principle outlined in Article 15(3) of the Indian Constitution. Though the court highlighted that both parents share the responsibility for the child’s support, it added that it was important to realistically assess the expenses and the financial situation of both parties. Moreover, the wife is also entitled to enjoy the same amenities of life as she would have been entitled to in her matrimonial home, it noted. On these grounds, the High Court modified the Family Court’s order and ordered that the wife is entitled to monthly maintenance.
Bombay HC: It is the duty of the driver to take proper precautions when a vehicle is stationed on the road
About two decades ago, in 2003, the deceased was riding his motorcycle toward Chakan at night. Near Sudwadi village, there was a parked truck without lights on the Talegaon Chakan road. As it was dark and the truck had no parking lights, the deceased collided with it from behind, leading to fatal injuries. The Motor Accident Claim Tribunal, Pune, found the deceased 65% at fault and the parked truck’s driver 35% responsible. The claimant Nita Narendra Nadgouda appealed in 2011 seeking more compensation.
In Nita Narendra Nadgouda vs. M/s. Garuda Carriers and Shipping (P) Ltd. and Ors, the appellant contended that the trailer/truck was stationed on the road without putting parking lights on because of which the deceased could not see the vehicle parked on the road. Further, it was also argued that it was the sole negligence of the driver of the truck, but this fact was not considered by the Tribunal.
Justice Shivkumar Dige of the Bombay High Court observed that it was the duty of the driver of the stationary vehicle on the road to turn on parking lights. It attributed 100 percent negligence to the driver of the stationary truck. Citing Rule 109 of the Central Motor Vehicle Rules, 1989, the court highlighted the duty of the driver to take proper precautions when a vehicle is stationed on the road, including the use of parking lights. Moreover, neither the driver nor any witness had been examined to prove that proper care was taken. The court instructed the Insurance Company to deposit the increased amount with 7% yearly interest within four weeks.
SC: Innocence or undertaking to participate in trial is not valid reason to grant bail
In the State of Jharkhand vs. Dhananjay Gupta,  an FIR was registered against the accused under several provisions of IPC, including Section 307 (Attempt to Murder) and Section 27 of the Arms Act (Using arms). The accused was arrested in this regard in 2022 but was granted bail by the High Court in January 2023. In the High Court, the accused claimed innocence and promised to take part in the trial. He argued that there were no specific allegations of wrongdoing against him, and the investigation had been finished.
However, the Supreme Court was dissatisfied with the High Court’s decision. The Division-Judge Bench of Justices C T Ravikumar and PV Sanjay Kumar set aside the High Court’s order and observed that simply asserting innocence or agreeing to participate in the trial is not a valid reason for granting bail to an accused in such serious offences.
SC: Treating one position differently, despite the same rules being applicable for all, violates the established norms
In Dr PN Shukla vs. Union of India, the first appellant initially joined the Commission for Scientific and Technical Terminology (CSTT) as a Research Assistant in 1990 and was later promoted to Scientific Officer in 1997. The recruitment was made in terms of the Central Hindi Directorate (Research Assistant) Recruitment Rules, 1980 which were later amended in 1993. In 1994, appellants No.2 to 6 joined CSTT as Research Assistants. The first appellant was promoted to Scientific Officer in 1997. A common seniority list was circulated in 1999, with appellants No.2 to 6 placed at various positions and respondent No.4 at Serial No.13.
Then, respondent No.4 sought a pay-scale upgrade in 2000, but the request was rejected in 2001. Later, when appellants No.2 to 6 were promoted as Assistant Scientific Officers from 2002 to 2006, respondent No.4 left CSTT and pursued a career in Ayurvedic medicine, joining various organizations. In 2006, an order was issued by the Directorate upgrading his payscale from ₹6500-10500 to ₹8000-13500 referencing a Commission report which dealt with the pay scales of doctors. The post of Assistant Scientific Officer (Medicine) was equated with that of a doctor. Even though respondent No.4 was not practicing as a doctor in CSTT, he was granted a higher pay scale. An order in 2007 declared the post of Assistant Scientific Officer (Medicine) as ex-cadre, which aggrieved the appellants.
The appellants wanted the same pay scale and benefits as respondent No.4 since they all followed the same rules and had similar roles. They even filed an application in 2009 requesting this, but it was rejected in 2010, and their review was also turned down. They filed a Writ Petition in the High Court, which was dismissed by the Division Bench, following which they approached the Supreme Court.
The Supreme Court Bench of Justices Rajesh Bindal and Hima Kohli observed that upon joining as a Research Assistant, respondent No. 4 pursued deputations to various organizations. The Court opined that the respondent was not interested in serving his parent organisation but was more interested in getting a higher pay scale while going on deputation.
The Bench clearly stated that treating one post preferentially, despite all positions being governed by the same rules, went against established norms. It added that if governed by the same set of Rules, a single post of the same cadre could not have been isolated and granted a higher pay. Calling it an act of favouritism, the Court cancelled the orders justifying those benefits to respondent no.4, didn’t grant the same pay to the appellants, and instructed the authorities to recover the extra amount paid to respondent No. 4 due to this mistake.
SC: Presidential orders are constitutionally valid for abrogation of Article 370
In Re Article 370 of the Constitution of India, the Supreme Court considered a series of petitions questioning the legality of the abrogation of Article 370 revoking the special status granted to Jammu and Kashmir and bifurcating the state into two separate union territories- Jammu and Kashmir, and Ladakh. In the 476-page long judgement, the Constitution Bench of the Supreme Court led by Chief Justice of India DY Chandrachud upheld the constitutional validity of the Jammu and Kashmir Reorganisation Act 2019, specifically affirming the creation of the Union Territory of Ladakh from the former State of Jammu and Kashmir.
The bench upheld the constitutional validity of the two presidential orders and added that Article 370 was held to be a temporary provision on a historical reading, as per which it was a transitory and temporary provision.  Justice Sanjay Kishan Kaul recommended that a Truth and Reconciliation Commission should be set up in Jammu and Kashmir to investigate and report on the violation of human rights both by State and non-state actors perpetrated in Jammu & Kashmir at least since the 1980s and recommend measures for reconciliation.

created: December 13, 2023


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Review: Bombay HC Rules That Non-Issuance of Passport Because of Property Issues Over Residential Address is a Violation of Fundamental Right to Travel Abroad
Sai Krishna Muthyanolla
January 3, 2024
In this edition of the Court judgements review, we look at the Supreme Court’s decision that bail cannot be given on the condition of taking the wife back, Kerala HC’s decision to compound a case of sexual abuse of a minor due to the Solemnization of Marriage, Jharkhand HC’s decision that State Information Commissioner appointed under RTI Act, 2005, without previous pensionable post cannot claim pension, Bombay HC’s order that non-issuance of Passport because of property issues over a residential address is a violation of the fundamental right to travel abroad, among others.
Supreme Court: Bail cannot be given on the condition of Taking Wife back, and Non-Restitution of Conjugal Life cannot be the reason for dismissal of Petitions
In the case of Kunal Choudhary vs State of Jharkhand & Anr, the Supreme Court (SC) held that the conditions such as taking the spouse back home and restitution of conjugal life cannot be imposed for grant of bail and dismissal of petitions by the courts. The facts of the case were that a criminal complaint was filed against the petitioner under section 498A of IPC by his spouse. The Appellant had filed the Anticipatory Bail Application (APA) before the High Court of Jharkhand. The same court allowed the application subject to the condition that the Appellant shall take his wife back home, maintain her with full dignity and honour her as his lawful wife. In another order in another case of the same Appellant relating to the same issue, the Jharkhand HC had dismissed the petition by noting the adamant attitude of the Appellant in not resuming the conjugal life as the reason for dismissal of the petition. Against this order, the Appellant had approached SC, praying for the modification of the order.
The SC had set aside the order of Jharkhand HC by holding that both the condition of taking the wife back home for granting bail and non-resumption of conjugal life as the reason for dismissal of the petition was erroneous and could not be applied by the courts either for grant of bail or dismissal of cases.
Accordingly, the SC had set aside the order of Jharkhand HC.
Kerala HC: Sexual Abuse of Minor Compounded due to the Solemnization of Marriage
In this x vs. y case, the Kerala High Court has compounded the crime of sexual abuse committed against a minor girl in violation of the Indian Penal Code (IPC) and Protection of Children from Sexual Offences Act (POCSO Act), due to the solemnization of marriage. The particulars of the case were that a man, who is the petitioner, and a minor girl were engaged to marriage. After this, while the girl was still a minor, the duo engaged in sexual activity. Later, due to the difference of opinion, the petitioner decided to cancel the marriage. This has resulted in initiating criminal proceedings against the petitioner under several sections of the IPC and POCSO Act. Subsequently, the petitioner was imprisoned. Later, both the parties have reconciled and decided to get married. Based on this fact, the Lower Court had already granted interim bail on 21 November 2023, and the petitioner was released on bail up to 21 December 2023. Following this, the marriage was solemnized on 29 November 2023. The petitioner then approached the High Court of Kerala seeking the quashing of the proceedings initiated against him.
The HC in a single sitting on 21 December 2023, had quashed the criminal proceedings initiated against the petitioner based on two principal facts. Firstly, the solemnization of marriage has taken place. Secondly, the victim, who is the wife, had no further grievance against the petitioner and had withdrawn the case. Accordingly, the HC quashed the criminal proceedings by noting that happy family life is the end of justice and that the continuance of proceedings against the petitioner would be prejudicial to the victim. The court in its judgment had also referred to several similar cases in which the offences of the accused were compounded in a similar set of facts and circumstances.
Accordingly, the proceedings against the petitioner were quashed.
Jharkhand HC: State Information Commissioner (SIC) appointed under RTI Act, 2005, without previous pensionable post cannot claim pension, though being equated to the salaries and allowances of Chief Secretary
In Sashidhar Mahato vs. The State of Jharkhand and Ors, the HC was dealing with a plea of entitlement for post-retirement pension not being extended to the former State Information Commissioner (Ex-SIC), who was appointed with no previous history of holding a pensionable post. The Ex-SIC, who is the petitioner, was appointed as SIC in the year 2005 and retired from the same position in 2011. Section 16(5) of the un-amended RTI Act, 2005, stipulated that SICs are entitled to a pension if only they held the pensionable post before they were appointed SICs. In this case, the petitioner did not hold any government post with pension service. However, the petitioner contended that since his position was being equated with the Chief Secretary (CS) of the State, the same pension benefits of the CS should also be given to him. In his support, the petitioner also sighted section 27 (2) (d) of the RT Act which stipulated that state governments shall formulate rules for paying salaries and allowances to the SICs. These rules were not formulated by the State of Jharkhand.
The court held that the provisions of the un-amended RTI Act, 2005, have stipulated that pension services are only given to those who had previously held any post with pension benefits. Further, although the SICs position is equated with the Chief Secretary, it is only applicable to the salaries and allowances, but they are not entitled to pension benefits. On the argument about rules not being framed by the State of Jharkhand, the court held that the principle of ‘empty field’ cannot be applied in this case. Accordingly, it held that even if the rules were framed, the same cannot supersede the principal act which stipulated for no pension benefits to SICs with no previous posting of the same benefits.
Accordingly, the court dismissed the petition.
Bombay HC: Non-issuance of Passport on the reason of Property issues over residential Address is a violation of Fundamental Right to Travel Abroad
In Rajinder Kaur Jaspal Singh Layal & Ors vs. The Union of India & Ors, the HC was dealing with non-issuance (non-renewal) of passport to the petitioner and her two children (P-2 & P-3) by Passport Authority (R-2) due to the existing dispute over her present address’ property with her brother-in-law (R-3). Petitioners contended that R-2 had earlier issued the passport to the petitioners at the same address as the property in dispute. However, the non-renewal of passports by R-2 with sighted reason is arbitrary and in violation of their fundamental right to travel abroad. The R-3 took the defence of maintainability of Writ of Mandamus when the Passports Act (PPA) specifically stipulated for an Appeal against the orders issued by R-2.
The court addressed the issue of maintainability of the petition by holding that although PPA did stipulate an appeal against the orders of R-2 as an alternate remedy, it does not take away their powers of writ jurisdiction given by the Constitution of India under Articles 226 when the issue is about the violation of fundamental rights and the lack of jurisdiction over the orders issued. The court held that since both these reasons are applicable in this case, the writ petition is maintainable. On the main issue, the court also held that PPA does not stipulate and vest power in R-2 for non-issuance of passports on the reasons of property being in dispute. Therefore, the orders issued for the non-renewal of passports by R-2 suffer from a lack of jurisdiction and violate the fundamental right to travel under Article 21, as settled long ago by the Supreme Court in Maneka Gandhi vs. Union of India. However, the court also clarified that the present judgment does not give any proper rights over the passport address to the petitioners.
Accordingly, the court directed the R-2 to issue passports of petitioners within four weeks.
National Green Tribunal: Notes higher Air Pollution and Levies Penalty on MoEF&CC for Vague reply given
In this case, the National Green Tribunal (NGT) took suo motu cognizance of the link between air pollution and several health ailments that are caused by it, based on the Times of India (TOI) News item titled “Feeling anxious? Toxic air could be to blame.” The news item referred to various scientific studies that have established the link between higher air pollution and several health ailments such as dementia, stress, depression, Alzheimer’s, and others, which people, including children, suffer from.
While referring to these reports, the NGT particularly noted that “Adequate measures are required for control of such air polluting components and their adverse effect on various organs of the human body, especially those which are affecting the brain and emotional, psychological aspect.” Accordingly, the NGT called the respective authorities such as the Central Pollution Control Board (CPCB) and the Ministry of Environment, Forests and Climate Change (MoEF&CC) on what steps have been taken by them to control air pollution.
When the matter was taken up, the NGT noted that CPCB and MoEF&CC’s replies confirmed the presence of several heavy metals and other pollutants in the air, which are above the stipulated standards. However, it also noted that no adequate steps have been taken to control the pollution. In addition, the NGT also noted that funds that are specially assigned for environmental compensation were diverted by CPCB for unauthorized uses. Along with this, the NGT also noted that MoEF&CC has filed a vague reply and had no clarification, despite repeated queries, on the effective measures which have been to control air pollution. Hence, the NGT imposed a fine of Rs. 25,000 on the MoEF&CC.
Factly’s recent articles on the rising level of air pollution among Indian cities can be read here & here.

source: news-factly

created: January 3, 2024

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

author: Sai Krishna Muthyanolla


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Review: Bombay HC Rules That Provisions of Domestic Violence Act Can be Invoked Irrespective of Where the Domestic Violence Took Place
Sai Krishna Muthyanolla
April 26, 2023
In this edition of court judgements review, we look at Supreme Court’s order that Confessional statement is admissible in evidence as per Section 27 of the Evidence Act and cannot be rejected because it was recorded by a translator in a language not known to the accused, that Government employees can’t claim overtime allowances under Factories Act, Bombay HC ruling that provisions of Domestic Violence Act can be invoked irrespective of where the domestic violence took place.
SC: Confessional statement is admissible in evidence as per Section 27 of the Evidence Act and cannot be rejected because it was recorded by a translator in a language not known to the accused
Siju Kurian, a Malayalee, was a labourer working in the farmhouse of the deceased Jose Kafan. Kurian was accused of having entered the farmhouse and murdering the deceased. He was also accused of stealing and selling the articles in the farmhouse and of selling the land of said farmhouse to others to make undue monetary gain. He was also accused of concealing the evidence by hiding the body of the deceased, his clothes, and the iron rod used for murder. Following the complaint filed by the deceased’s son, the police initiated proceedings against the accused. The accused had confessed to the crime and led the police to where the body was hidden during the enquiry.
In this case, the Trial Court had concluded that the prosecution did not establish the guilt of the accused beyond reasonable doubt and acquitted him. However, in an appeal, the High Court reversed the Trial Court’s acquittal noting that there was an erroneous appreciation of evidence and accused the convict. In the appeal, Siju Kurian vs. State of Karnataka, before the Apex Court, the appellant’s counsel argued that the confession statement of the appellant-accused was not admissible evidence under Section 27 of the Evidence Act, as the method of recording the confession was quite unusual. To translate the confessional statement from Malayalam for the Karnataka Police, a translator’s help was taken. The translation was made from Malayalam to Tamil and then written down in Kannada.
The Supreme Court Bench of Justices Surya Kant and Aravind Kumar held that the ultimate test was if the statement was noted down as told by the accused. They added that a confessional statement is admissible in evidence as per Section 27 of the Evidence Act and that it would not be rejected merely because it was not recorded in the accused’s mother tongue. The Bench also noted that it did not find any irregularity in the circumstantial evidence relied on by the prosecution and upheld the conviction of the accused and dismissed the appeal.
SC: Government employees can’t claim overtime allowances under Factories Act
In Security Printing & Minting Corporation of India Ltd. & Others, etc vs. Vijay D. Kasbe & Others, etc, the issue before the Supreme Court was whether the employees working as supervisors at the Security Printing & Minting Corporation of India are entitled to double overtime allowance as per Chapter VI of the Factories Act 1948. The Security Printing & Minting Corporation of India is a company under the Ministry of Finance that is responsible for printing currency notes. The appeal was raised following the Bombay High Court’s decision that the employees were entitled to overtime benefits as per the Factories Act.
The Supreme Court bench of Justices V Ramasubramanian and Pankaj Mithal clearly explained 3 different types of employment such as those which require protection under legal welfare, those which are governed by terms of the contract, and employment of persons to civil posts or in the civil services of the Union or the State. The Bench observed that unlike those employed in factories and industrial establishments, persons in public service who are holders of civil posts or in the civil services of the Union or the State are required to place themselves at the disposal of the Government all the time and that the respondents had no scope to seek double overtime allowances.
Noting that workers in factories who did not enjoy automatic wage revision while those holding civil posts or in the civil services of the State enjoy certain privileges, the Supreme Court held that the Central Administrative Tribunal, as well as the High Court, did not test the claims made by the respondents. Further, the distinction between persons in Government service and those in private service and the effect of the statutory rules upon the conditions of service of the respondents, including their liability to work for extra hours was not considered by the Tribunal or High Court, according to the Bench. The Supreme Court Bench, thus, set aside the Bombay High Court’s orders and held that government employees cannot claim double overtime allowance as per the Factories Act.
NGT: Firecrackers, amplifiers, music systems and playing Dhols are banned around Fatehsagar Lake
In Anil Mehta vs. State of Rajasthan & Others before the National Green Tribunal, the issue raised was to protect the wetland ecosystem of Fatehsagar Lake and curb pollution in the area. It was stated that the local communities residing near the area were persistently affected by air pollution caused by the playing of loud music via sound amplifiers, bursting crackers, and the beating of dhols, nagadas, etc, by private groups during the day for religious events and weddings. NGT stated that a substantial issue of the environment was raised and constituted an expert committee to file a report on the issue.
The committee report noted that the noise pollution did exceed the prescribed limits in some areas. It noted that firecrackers were used in residential and commercial areas violating the ambient noise quality. Permissible limits are bound to be non-complied with in such situations and the effect of the same would persist for a long distance, violating the noise standards at a faraway place too. The committee made a few recommendations like an application for the public to lodge their grievance, installation of CCTVs, display of boards on ill-effect of noise pollution, a ban on music systems in vehicles and processions, etc. The NGT Bench of Justices Sheo Kumar Singh and expert member Dr Arun Kumar Verma called for enforcing the committee’s recommendations and directed the Collector/Municipal Corporation to file their responses. The matter will be next heard on 17 May 2023.
Kerala HC: It is not proper to grant anticipatory bail to a person absconding from India well aware of the non-bailable offence registered against them
In Anu Mathew vs. State of Kerala, the accused was charged with morphing photographs of a minor girl and posting them on pornographic websites, sending threatening messages, and defamation of the child and mother. The accused was not in India and had filed an Anticipatory application under section 438 of Cr. P.C before the Kerala High Court. The issue before the Kerala High Court was whether an accused is eligible for interim bail under Section 438 (1) of the Cr.P.C. after they absconded from the country knowing that a non-bailable offence was registered against them.
The High Court Bench of the division bench of Justices Alexander Thomas and C S Sudha noted that if such an accused had fled from India knowing about the registration of a non-bailable offence, then thereafter, he may technically have the locus standi to maintain a pre-arrest bail plea. However, if the Court is convinced that he has absconded and fled away from the law enforcement agencies, then it may not be the right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad. Further, the Bench added that the requirements that the accused must be available for questioning by a police officer whenever necessary and must not leave India without the court’s prior approval should be considered.
Bombay HC: Section 27 (1) (a) and (b) of Domestic Violence Act can be invoked irrespective of where the domestic violence took place
In a criminal application before the Nagpur Bench of Bombay High Court, the Applicant is the respondent in the complaint filed before the Magistrate and the non-applicant is the complainant. Following their marriage in 2020, both the complainant and her husband left for Germany. After going to Germany, she was subjected to domestic violence by her husband. Even during her stay with the in-laws, she claimed that she was subjected to humiliation for not performing the marriage up to their standards. She was finally sent back to India by her husband, the respondent following which she filed the case under the Protection of Women from Domestic Violence Act, 2005.
The husband then filed an application to dismiss the charges against him on the grounds that the alleged acts had taken place in Germany and not in India and so the Indian Courts did not have the jurisdiction. In response, the wife filed that the mental stress and trauma carried by her from Germany continued in India. The Additional Chief Judicial Magistrate had rejected the husband’s application following which he approached the High Court.
The Bombay High Court Bench of Justice GA Sanap held that judicial magistrates in India can take cognizance of domestic violence committed on foreign soil under the Domestic Violence Act, 2005. It added that sections 27(1)(a) and (b) of the Act are applicable irrespective of the place of cause of action. That is, it does not matter where domestic violence occurred.
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Review: Bombay HC says IT Rules 2021 manifestly unreasonable, bring chilling effect on free speech
Sai Krishna Muthyanolla
August 18, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on the effect of new IT rules on freedom of speech, implications of public order vis-à-vis the U.P. Prevention of Cow Slaughter Act, 1955, safety of women in public transport, and vacancies in consumer disputes redressal commissions.
Bombay HC: IT Rules 2021 manifestly unreasonable; bring chilling effect on free speech
In the case Agij Promotion of Nineteenonea Media Pvt. Ltd. Vs. Union of India, and Nikhil Mangesh Wagle Vs. Union of India, the Bombay high court stayed Rules 9(1) and 9(3) of the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 which mandate that digital news media and online publishers should adhere to the “Code of Ethics” prescribed by the Rules.
The supreme court is hearing two petitions challenging the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, which was announced to regulate the social media intermediaries, OTT platforms, and online news and current affairs websites. The Rules prescribing a Code of Ethics and a three-tier content regulation mechanism have been framed under the Information Technology Act, 2000. The Code of Ethics applies to publishers of online curated content and intermediaries. It stipulates that an applicable entity shall exercise due caution and shall take into consideration the following factors when deciding to feature any content on its platform:
The high court opined that dissent is vital for the functioning of any healthy democracy but with the Rules operating in their present form, a journalist or news organisation exposes themselves to punishment even without transgressing the boundaries of reasonable restriction under Article 19(2) of Indian Constitution.
The Court made a prima facie observation that the Rules relating to digital media are beyond the substantive powers of delegated legislation given to the Union Government by the Information Technology Act.
The judgement explains that Rule 9 also prima facie appears to be infringing the constitutional guarantee of Freedom of Speech and Expression as conferred by Article 19(1)(a) in subjecting the publishers of news/current affairs content and publishers of online curated content subject to action under the statutory regime of the Press Council Act and the Cable TV Network (Regulation) Act, which provides for an independent mechanism for any violation of the provisions of such legislation.
Under the recently notified IT Rules, adherence to moral standards in the code has been exalted to the status of mandatory compliance. This would mean that violation of the guidelines would expose a person to more rigorous action than what was envisaged under the Press Council Act.
Therefore, the high court observed that the new 2021 IT Rules can have a chilling effect on freedom of speech, with a journalist or news publisher having to think twice before criticizing the State administration.
The bench however refused to stay Rules 14 and 16 of the IT Rules 2021, which deal with the constitution of an inter-departmental committee as an oversight mechanism over digital media and the power of the Centre to block access to content.
Allahabad HC: Cutting beef due to poverty, unemployment, or hunger in secrecy is not ‘public order’ issue
In the case Parvez Vs. State of Uttar Pradesh and others, Allahabad high court quashed a detention order passed under the National Security Act, 1980 against 5 men who have been accused of cutting small pieces of beef for selling purposes in a house in secrecy.
The high court was hearing a case against the detention of the five people under Sections 3/5/8 of the U.P. Prevention of Cow Slaughter Act, 1955 and Section 7 of the Criminal Law Amendment Act, 2013. Further, in order to maintain public order and that there was a likelihood of the petitioners/detainees being released on bail, the detaining authority passed an order detaining the petitioners/detainees under Section 3(2) of the National Security Act, 1980.
The detention order was passed on the ground that because of the acts of the detainees and co-accused, the sentiments of the Hindu community were hurt, and Hindu-Muslim harmony was adversely affected. It was alleged by the State of UP that when the news spread in the area, villagers of the Hindu community gathered near the house of the petitioners/detainees and communal amity was disturbed. While the police succeeded in assuaging the general public and taking steps for restoring public order, there was an atmosphere of fear and public order was disturbed.
Taking these submissions into consideration, the high court noted that whether the case involves public order, or is only a matter affecting law and order, depends upon the quality and degree of the act. In order words, whether the act has been done in the public gaze and in an aggressive manner with scant regard to the sentiments of the other community or whether it has been done in a concealed manner.
The Court noted that the incident took place in the secrecy of the petitioners/detainees house at 5.30 in the morning and it was a solitary incident of cutting cow beef in pieces away from the public eye. It is not clear if it was due to poverty or lack of employment or hunger. Therefore, it would perhaps only involve a law-and-order issue and could not be said to stand on the same footing as an act affecting public order.
In conclusion, the high court held that the detention order against them was passed without the presence of any material to indicate that the petitioners/detainees had any criminal history. Therefore, the high court directed the detention order and consequential orders to be quashed.
Calcutta HC: Display women helpline number in public transport
In the case Renu Pradhan Vs. The State of West Bengal and Ors., the Calcutta high court issued a host of directions to ensure the safety and security of women and transgender persons travelling in public transport buses.
The high court was hearing a plea by Ankani Biswas regarding the safety of women and transgender on public transport. The plea highlighted that women are frequently harassed and sometimes sexually assaulted while travelling in public buses.
A bench of Acting Chief Justice Rajesh Bindal and Justice Arijit Banerjee recommended the following:
The court directed the State government as well as the Union to take note of the recommendations and accordingly ensure compliance, and other steps to ensure safety.
Supreme Court: Directs Centre, States to fill up vacancies In NCDRC & SCDRCs within 8 weeks
In a suo motu case taken to address the issue of unfilled vacancies in consumer disputes redressal commissions, the supreme court directed Union and State Governments to fill up the vacancies in the National and State Consumer Dispute Redressal Commissions (NCDRCs & SCDRCs) within 8 weeks.
Some states clarified that selection is held up as the number of posts has not been sanctioned in consultation with Central Government. The bench Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy rejected this excuse given by the States by observing that as per the mandate of Section 42 of the Consumer Protection Act, the consultation with the Central Government is required only if the number of members is more than 4.
During the hearing, the bench considered whether the legislative impact study was undertaken before the new Consumer Protection Act of 2019 came into being. A legislative impact assessment is an informed law-making process under which social, economic, environmental and institutional impacts of legislative proposals are made.
The supreme court directed the Union Government to present the legislative impact study with respect to the Consumer Protection Act 2019 within 4 weeks.
The apex court also directed the Chief Secretaries of States & Centre (Secretary, Consumer) to be present in the virtual hearing on the next date in case of non-compliance with the directions regarding filling up of vacancies in Consumer Redressal Commissions.
Featured Image: IT Rules


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Bombay HC says WhatsApp Group Admins not liable for member’s objectionable post if there is no common intention
Sai Krishna Muthyanolla
April 28, 2021
In this roundup of important court judgments, we look at constitutional court remarks & directions on disregard of COVID safety protocols during election campaigns and rallies, the liability of WhatsApp group admins, obstruction of medical oxygen supply, and inefficient management of COVID-19 pandemic by state governments.
Madras HC: Election Commission singularly responsible for COVID-19 second wave
In taking suo-moto cognizance of the second wave of COVID-19 pandemic, the high court came down heavily on the Election Commission of India (ECI) for allowing political rallies during the COVID-19 pandemic.
The court was hearing a petition pertaining to maintaining COVID-19 protocols at a solitary assembly constituency. The petitioner contended that at the assembly constituency in Karur, special measures must be taken at the time of counting because even though an additional hall has been arranged by the Election Commission for the purpose of counting, that may not suffice to accommodate the counting personnel and the agents of 77 candidates. The high court used this opportunity to take a stand at the larger picture of election campaigns and rallies.
The court observed that the ECI could not ensure that political parties adhered to the COVID-19 protocol at the time of election campaigns and rallies. The judgement notes that despite repeated orders on almost every election petition to maintain COVID-19 protocol during the campaign time, the ECI maintained silence as campaigning and rallies were conducted without distancing norms and in utter disregard of the other requirements of the protocol.
In view of the rapid surge in the number of COVID-19 cases on a daily basis, the bench of Chief Justice Sanjib Banerjee told the ECI’s counsel “Your institution is singularly responsible for the second wave of COVID-19”. The Chief Justice orally remarked that officers of ECI should be booked on murder charges for allowing such blatant violation of COVID-19 protocols during election campaigns and rallies.
With respect to the present petition, the judgement notes that the ECI has assured that six additional counting tables have been organized so that distancing norms can be maintained. The court directed that similar appropriate measures have to be adopted at every counting centre and it is only upon maintaining regular sanitization, proper hygienic conditions, the mandatory wearing of a mask, and adherence to the distance norms, should any counting begin or be continued. The court further states that the State Health Secretary and the Director of Public Health should be consulted by the ECI and the Chief Electoral Officer responsible in the State, to put appropriate measures in place immediately.
Bombay HC: WhatsApp Group Admins not liable for member’s objectionable post if there is no common intention
In the case Kishor Tarone v. State of Maharashtra & Anr., the high court held that group admins of WhatsApp groups are not liable for group member’s objectionable posts unless it is shown that there was a common intention or pre-arranged plan.
The crux of the issue involved is whether an administrator of a WhatsApp group can be held criminally liable for the objectionable post of its member for committing punishable offences. The case was of a WhatsApp group administrator who was accused under sections 354-A(1)(iv) (making sexually coloured remarks), 509 (Word, gesture or act intended to insult the modesty of a woman), 107 (Abetment of a thing) of the IPC and section 67 of the IT Act, for inaction against a group member who made objectionable remarks against a female member.
The woman contended that despite the member using foul language against her, the administrator did not remove him from the WhatsApp group. Further, the admin did not ask the accused to submit an apology to her, and on the contrary, he expressed his helplessness.
The court notes that in order to adjudicate the said issue, it is necessary to understand the functioning of the WhatsApp messaging service. Once a group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group. The Administrator of a WhatsApp group does not have the power to regulate, moderate or censor the content before it is posted on the group. In the absence of a specific penal provision creating liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group.
Therefore, the judgement states that a group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content unless it is shown that there was a common intention or pre-arranged plan. In conclusion, the court quashed the FIR and subsequent charge sheet against the WhatsApp group administrator.
Delhi HC: Ensure no obstruction in transport of oxygen to Delhi.
In the case Balaji Medical & Research Centre Vs. Union of India & Ors., the high court held that the state government should initiate logistical work for efficient internal distribution of medical oxygen.
The court was hearing an urgent plea by Balaji Medical and Research Centre seeking urgent directions as regards the supply of oxygen in Max Hospitals, operating at various branches including Saket, Vaishali, Shalimar Bagh, Patparganj, and Gurgaon.
The Solicitor General of India submitted that a ban has been instructed on industrial use of oxygen and time was given till 22 April 2021 as technological industries require about 72 hours to shut down their operations. The Senior Advocate, appearing for the Delhi Government, also submitted that there were obstructions caused at the Delhi-Haryana border for the movement of oxygen tankers to Delhi.
Questioning the said submission, the bench of Justice Vipin Sanghi and Justice Rekha Palli remarked that it is difficult to accept that even in such urgent situations, industries are being allowed to function and cannot be stopped even for some time, till some alternate arrangements are made. The bench noted that in previous orders, the bench had directed the Centre to divert oxygen from steel and petroleum industries to Delhi.
The bench observed that the Delhi Government should initiate the logistical work for the internal distribution of oxygen allotment. The bench remarked since it is a national emergency, industries with oxygen can be instructed to divert. During the course of the hearing, the bench was informed that oxygen supplies have been received by Max Hospital, Patparganj, and Max Hospital, Shalimar Bagh.
In hearing another similar writ petition filed by Saroj Super Specialty Hospital seeking urgent critical supply of oxygen, the bench of Justice Vipin Sanghi and Justice Rekha Palli remarked that if the supply of Medical Oxygen to Delhi is blocked, then the local authorities such as DMs, SSPs will be held responsible for its movement shall be held criminally liable. During the hearing, another hospital appeared before the Bench saying that they have only 3 hours of Oxygen left. The order emphasised that there should be free movement of oxygen-carrying vehicles into the cities and also directed the authorities concerned, bound by the order passed under the Disaster Management Act, to ensure strict compliance.
Jharkhand HC: Pathetic Situation in State; non-availability of Remdesivir Injection and medicines.
Taking suo-moto cognizance, the high court expressed serious concern over the manner in which the State of Jharkhand has been handling the recent surge in COVID-19 cases and issued directions on COVID management.
The court took note of the non-availability of CT-Scan machines, which an important requirement for detecting the extent of COVID-19 infection in the lungs. It was also brought to court’s attention that private hospitals are charging exorbitant rates for CT scans and other tests. In the light of these concerns, the court was informed by the Principal Secretary Department of Health that CT-Scan machines would be purchased soon.
The court took cognizance of the issue of the non-working condition of Electric Crematoriums in the state. Due to the large-scale death caused by the second wave of COVID-19, the court directed the concerned municipal authorities to remedy the situation at the earliest.
The court also took note of the acute shortage of medicines for treating COVID-19 patients such as Remdesivir Injection, Favipiravir, Doxycycline tablet, and even the tablets of Fluguard, Vitamin-C, and Zinc, which are not available in the open market. It was brought to court’s attention that Remdesivir Injection and Favipiravir Tablets are being black marketed at a high cost. It was further highlighted that there is a lack of adequate supply of medical oxygen in several hospitals. To this, the Court raised the following two issues:
Noting that the State of Jharkhand had not taken any sincere effort to procure the adequate supply of essential medicines, the Court passed following directions:
Featured Image: Important Court Judgements


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Review: CAG Highlights Certain Gaps in the implementation of the RCS-UDAN Scheme
Sai Krishna Muthyanolla
August 22, 2023
Regional Connectivity Scheme – UDAN (Ude Desh Ka Aam Naagrik) is a scheme initiated by the Government of India to enhance regional air connectivity in the country. The scheme was launched in 2016 as a part of the National Civil Aviation Policy. The CAG recently presented its audit report of the scheme covering the first three phases of the scheme. Here is a review.
Regional Connectivity Scheme – UDAN (Ude Desh Ka Aam Naagrik) is a scheme initiated by the Government of India to enhance regional air connectivity in the country. The scheme was launched in 2016 as a part of the National Civil Aviation Policy. The goal of the scheme is to make air travel affordable and accessible to the common people by connecting under-served and unserved airports across India. Under this scheme, airline operators are offered various incentives to operate flights on certain regional routes, which otherwise might not be financially viable. The Airports Authority of India (AAI) was designated as the nodal agency for the implementation of the scheme. The Scheme focuses on encouraging sustainability of operations under RCS in the long term so that the connectivity established is not dependent in perpetuity on Viability Gap Funding (VGF) provided by the government.
The Comptroller and Auditor General of India (CAG) recently presented its audit report of the scheme during the recent Budget Session. The audit was carried out to assess the objectives and indicators of the scheme, its implementation, fund management and the monitoring and control mechanisms. Some of the key findings of CAG have been discussed in this story. Based on these findings, CAG has listed 16 recommendations for the Ministry of Civil Aviation to improve the implementation of the scheme in planning, management, and implementation. The audit covers three phases of the scheme (1, 2, and 3) that have been completed as of March 2021. As of July 2023, the Government has launched version 5.2 of the scheme.
Measures to improve planning
CAG observed that up to UDAN-3, 52% (403) out of 774 awarded routes had not commenced operations. Out of the 371 routes which had commenced operations, only about 30%, or 112 routes, had completed the full concession period of three years. Further, out of these 112 routes, only 54 routes (7% of the 774 awarded routes) that connected 17 RCS Airports could sustain the operations beyond the concession period of three years, as of March 2023. Operations in the rest 58 routes were discontinued after the completion of the concession period.
Likewise, in the case of heliports, up to UDAN-3, out of the 83 heliport routes comprising of 31 heliports identified and awarded, operations could commence only on 34 routes (41%) comprising of nine heliports, and subsequently operations were discontinued in 14 (41%) out of 34 routes comprising of four heliports. The report noted that the majority of the heliports identified for operations based on helicopter operators’ proposals either remained unutilised/underutilised or saw discontinued RCS operations.
Based on these observations, CAG recommended that appropriate mechanisms be formulated to assess the feasibility of routes for achieving the sustainability of long-term operations and to identify unserved/underserved airports, considering the stage length, availability of alternate mode of transportation, terrain, socio-economic scenario and tourism potential, etc. Similarly, it recommended devising mechanisms to identify heliports under the scheme.
Recommendations for management of funds
Analysis revealed that 6 out of 7 airlines in operation in non-RCS routes, between 2019-20 and 2021-22, had collected excess Regional Air Connectivity Fund (RCF) levy of nearly Rs.72 crores from the passengers, which was much more than what they had remitted to the Regional Air Connectivity Fund Trust (RACFT). With respect to the collection and remittance mechanism of the Regional Air Connectivity Fund (RCF) levy, CAG observed that there was no rule to regulate the same. Further, it noted that there was a delay on the part of RACFT in raising RCF levy claims on the airline operators. The average delay was about 21 days for Air Vistara and Air Asia and 24 days for Indigo and Air India. A significant delay was also observed in realizing the RCF levy. The average delay was 71 days until October 2021 ranging from 12 days for Air Vistara to 223 days for Air India.
Monitoring mechanisms to ensure that the collected RCF levy from passengers does not exceed the amount to be remitted to the government or become a profit source for airlines were suggested. It also called for introducing penalties for such delays according to the Draft Standard Operating Procedure.
Even after more than five years, a clear procedure for recording transactions in RCF was not established according to the guidelines of the CAG of India. Additionally, the accounts of the RACFT were also not submitted for CAG audit, and because of this, CAG called for immediately entrusting the accounts to it. It also recommended that an accounting methodology was needed to map the concessions extended to airlines by various stakeholders.
AAI’s Viability Gap Fund’s claims approved through self-certification led to non-compliance to several scheme provisions. The audit identified instances where the scheme’s provisions were breached like excess disbursement of VGF, violation of RCS fare cap, etc.
For instance, in the case of Alliance Air, out of 4.3 lakh tickets sold in 11,017 RCS flights between 2018-19 and 2021-22, a total of 87,702 non-RCS seats were sold prior to selling prescribed RCS seats violating the provisions of the scheme. As a result, Alliance Air not only collected excess fare of Rs. 8.80 crores from passengers but also claimed excess VGF of nearly Rs. 31 crores. In Factly’s story, we saw that Alliance Air had received the highest share of VGF between 2017-18 and 2022-23. About 60% of the total amount released or Rs. 3502 crores went to Alliance Air which had the second-highest share of flights flying under the scheme.
CAG suggested that a mechanism be developed to align the VGF claims submitted by airlines using flight data provided by airport operators, instead of self-certification for VGF disbursement.
Measures suggested to improve implementation of scheme
Significant delays in the revival/development of identified RCS airports were highlighted, despite budgetary support of Rs. 4,500 crores that was sanctioned by the Cabinet Committee on Economic Affairs in March 2017. As of March 2023, work had commenced in only 116 airports/ heliports, out of which works have been completed and operations commenced in 71 airports/ heliports at the cost of Rs. 2,599 crores. In 83 airports/ heliports/ water aerodromes, operations were either discontinued or could not be commenced even after incurring an expenditure of Rs. 1,089 crores. CAG suggested that a better mechanism be devised to identify airports for revival/development considering the experience gained. In 2023-24, the Government has also approved Rs. 1000 crore in the Budget for the revival and development of fifty additional aerodromes in the country.
With respect to helicopter operations, CAG noted that the airfare cap and VGF cap were based on flight duration. However, while disbursing the VGF, instead of the actual time of travel, the time as per the letter of award was considered. This resulted in higher airfare and higher VGF disbursement than what would have been if the actual time of travel was considered.
Observing that the independent audit of airlines was not conducted after 2017-18, the CAG called for an audit of the performance of airlines operating on routes under the UDAN scheme to ensure compliance with the provisions of the scheme as well as the Selected Airlines Operator Agreement.
The CAG report also recommended that airlines establish a transparent seat booking system for RCS flights. This system should be overseen by the Ministry to guarantee that seats covered by the UDAN scheme are given priority over those not included in the scheme when selling seats. Also, the system should be such that airline operators do not charge airfare more than the airfare cap stipulated.
NITI Aayog is also planning to study the relevance of scheme
To sum up, CAG called for measures to have a properly structured procedure in place for each of the stages of implementation of the scheme. Even though there has been improvement in the number of passengers, there still needs to be concerted efforts to ensure that the scheme meets its objectives. Just a few days before CAG presented its report, NITI Aayog floated an RFP document calling proposals to evaluate the relevance of the scheme as well as assess whether it has improved regional connectivity and made air travel economical.


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Review: CAG Highlights Multiple Discrepancies in Ayushman Bharat – Pradhan Mantri Jan Arogya, Makes Recommendations
Sai Krishna Muthyanolla
August 18, 2023
Recently, the CAG tabled the performance audit report on the Ayushman Bharat-Pradhan Mantri Jan Arogya Yojana (AB-PMJAY). The CAG’s performance audit report of AB-PMJAY covered five different aspects of the scheme that highlighted multiple discrepancies. The report also made important recommendations. Here is a review.
Ayushman Bharat – Pradhan Mantri Jan Arogya Yojana (PMJAY) is a flagship health scheme launched by Government of India in 2018. It aims to provide ‘Universal Health Coverage’ to the poor and vulnerable sections of the society by ensuring access to healthcare services and reduce the out-of-pocket medical expenditure.  PMJAY provides a health cover up to Rs. 5 lakh per family per year, for secondary and tertiary care hospitalization services. It provides cashless and paperless access to services for the beneficiaries at the point of service.
Recently, the Comptroller and Auditor General of India (CAG) tabled the performance audit report on the Ayushman Bharat-Pradhan Mantri Jan Arogya Yojana (AB-PMJAY). The CAG’s performance audit report of AB-PMJAY covered five different aspects of the scheme – Beneficiary Identification and Registration, Hospital Empanelment and Management, Claims Management, Financial Management and Monitoring & Grievance Redressal.  The sample size of the Performance audit was 964 hospitals across 161 districts in 28 States. Here is a review of the findings, observations, and recommendations from the CAG report on PMJAY.
Obsolete and erroneous information in the Database used for Beneficiary identification.
One of the key focus areas of the audit was around the process of identification and registration of the beneficiaries. Based on the deprivation and occupational criteria of the Socio-Economic Caste Census, 2011 (SECC-2011), PM-JAY envisages to cover 10.74 core families.
States are also given the flexibility to use their own database for the implementation of PMJAY. This was expanded to 12 crore families in Janaury’2022. The National Health Authority (NHA) laid out process for identification of beneficiaries.
CAG’s report noted some inconsistencies across few states in flagging the beneficiaries eligible for central schemes and those that are part of the state schemes. It has suggested a review of the beneficiary registration system to ensure eligible beneficiaries are covered and a clear identification of beneficiaries under Central and State Schemes is available.
Apart from beneficiary identification, the report highlighted the following observations regarding the Registration process.
On the other hand, nearly 38.6 lakh cases out of 94.9 lakh rejected cases have a match confidence score in the range of 51-100.
CAG report also raised apprehensions about the quality of the data available in the Beneficiary Identification System (BIS) Database. One of the concerns was that the data available was for 2011. By 2018, there could have been changes to the status of the families i.e., few would no more be eligible, and few others are newly eligible, making the data obsolete. It also highlighted the concern with erroneous data.
Registration of multiple beneficiaries against same or invalid mobile numbers
Each verified eligible beneficiary is assigned a PMJAY ID and serves a unique identification key. Data analysis as part of the audit revealed that PMJAY ID is not unique in 1.57 lakh approved cases. Among them, in more than 1.05 lakh cases PMJAY ID is appearing twice.
This presence of duplicate IDs indicates the possible presence of ineligible beneficiaries in the database.  Data analysis highlighted further inconsistencies:
In Tamil Nadu, 4761 PMJAY cards were mapped to multiple Aadhar numbers.
Guidelines indicate that a contact number will be used for any communication related to the scheme. Analysis of the database indicates large numbers of beneficiaries have registered against the same or invalid mobile numbers. Overall, 1119 to 7,49,820 beneficiaries were linked with a single mobile number in the BIS database.
NHA has accepted these discrepancies highlighted by CAG and stated that these issues would be resolved with the deployment of BIS 2.0.
CAG also highlighted discrepancies in Hospital empanelment, claims management etc.
Apart from the inconsistencies in the beneficiaries of PMJAY, the CAG audit also highlighted issues with the implementation of the scheme in various other areas including Hospital empanelment, claims management, Finances, etc. Here is a snapshot of a few of these issues highlighted.
During 2018-19, NHA released grant amounting of Rs. 185.6 crores to eight States without ensuring release of upfront shares by the respective States. NHA has also released grants in three different bank accounts to Chhattisgarh during 2018-21.
In 20 State Health Authorities (SHA), administrative grant of around Rs. 368 crores remain unspent during 2018-21.
District Implementing Units (DIUs) were not formed in five states. There is shortage of manpower in 22 states for various posts in SHAs and DIUs.
Only 9.8% of the complaints received were redressed within the turnaround time.
Strengthening the validation process, investing in infrastructure among the recommendations.
CAG made various recommendations for improving the implementation of the scheme. Here are a few important recommendations.
More than 24.51 crore Ayushman Cards created
As per AB-PMJAY dashboard, more than 24.5 crore Ayushman cards were created so far. In the last 30 days, more than 30 lakh cards were created. The highest number of Ayushman cards are in Madhya Pradesh with around 3.63 crores followed by Uttar Pradesh and Chhattisgarh.
Overall, 27.7 thousand hospitals are empanelled of which 15.6 thousand are public hospitals. The dashboard indicates that since the introduction of the scheme, there were around 5.5 crores authorised hospitalisations. Tamil Nadu has recorded the highest number of hospitalizations followed by Karnataka and Rajasthan.
Around 4.7 thousand empanelled hospitals are inactive since empanelment and a further 3.6 thousand were identified as inactive since the past 6 months. The highest number of hospitals inactive since empanelment are in Andhra Pradesh. In fact, 46% of the hospitals empanelled in Andhra Pradesh are inactive since the beginning.
Data indicates that PMJAY was mostly utilised to cover the procedure of Haemodialysis followed by screening test for COVID-19 infection. General Medicine and Infectious diseases top the list of specialties for which PMJAY was utilised.
Featured Image:AB-PMJAY Dashboard


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Review: CAG report on compliance of FRBM act highlights the grim debt situation
Sai Krishna Muthyanolla
August 22, 2022
Recently, the CAG released its fifth report on compliance of FRBM Act, 2003, for the year 2019-20. The numbers in the report though from the period before the onset of the COVID-19 pandemic paint a grim picture of the debt situation. We look at the key findings & observations from this report of the CAG.
The Union Government incurs expenditure of various sorts including welfare schemes, subsidies, infrastructure development & maintenance, and administrative expenditure. This expenditure is met through different sources of income. In the annual budget, the government makes estimates for expenditure & earnings through various revenue sources that include tax and non-tax revenues. Any shortfall in the revenue to meet the expenditure is met through borrowings.  These borrowings are a liability that the government must pay back. In a recent story, we highlighted the increasing trend of market borrowings by the Union government to meet its expenditure, which increased significantly in the light of COVID-19.
While borrowings help governments tide over the fiscal deficit i.e., the excess of expenditure over the revenue, it does not augur well for the longer-term economic stability of the country.
To ensure better fiscal management and introduce fiscal discipline, the Government of India enacted Fiscal Responsibility and Budget Management (FRBM Act, 2003).
Section 7A of the FRBM Act, introduced through an amendment in 2012, entrusted the Comptroller and Auditor General of India (CAG) to conduct a periodical review of the compliance with this Act by the Union Government, starting from 2014-15.  Recently, the CAG released its fifth report on compliance with the FRBM Act, 2003, for the years 2019-20.  We look at the key findings & observations from this report of the CAG.
One of the Key Targets of the FRBM Act is to limit the Fiscal Deficit to 3% of GDP
Since the enactment of the FRBM act in 2003, it was amended 4 times – 2004, 2012, 2015 & 2018. The FRBM Act and the Rules underwent more significant changes during the 4 Amendment, in 2018.
In these amendments, the target for Revenue Deficit (difference between Revenue Expenditure and Revenue Receipts) and Effective Revenue was Removed.
The target of limiting the Fiscal Deficit at 3% of GDP is extended with a target date of 31 March 2021. It targeted to reduce the Fiscal Deficit by 0.1% every year to reach the fiscal deficit target of 3%.
The other target is to ensure that by the end of 2024-25, the General Government debt does not exceed 60% of GDP and Central Government Debt does not exceed 40% of GDP.  The FRBM rules also state that no additional guarantees for any loan or security of the Consolidated Fund of India (CFI) in excess of 0.5% of GDP in a Financial year.
The latest CAG report on Compliance of the FRBM Act, 2003 is the second report after the 2018 amendment was made effective on 01 April 2018.
Fiscal Deficit at 4.6 % of GDP in 2019-20, as per the CAG report
As highlighted, one of the key targets under FRBM is to reduce the Fiscal Deficit to equal to or less than 3% of GDP by 2020-21. The annual reduction target was 0.1%. Therefore, the target for 2019-20 was 3.3% of GDP.
The CAG report refers to the information from the Ministry of Statistics & Programme Implementation, where-in the GDP for the year 2019-20 was around Rs. 200.7 lakh crores.  As per the Budget at Glance Report (BAG), the fiscal deficit for the year was Rs. 9.33 lakh crores. This accounts for 4.65% of the GDP for the year. CAG report also refers to the information from the Union Government Finance Accounts (UGFA), where the fiscal deficit for the year was mentioned as Rs. 10.31 lakh crores i.e., 5.14 % of the GDP. The difference between the Fiscal Deficit of BAG and UGFA is due to the exclusion of certain expenses on capital infusion for Public Sector banks, external assistance for State Government projects and other expenses.
The FD in the earlier two years i.e., 2017-18 and 2018-19 was 3.5% and 3.4% respectively, indicating a jump in the FD for 2019-20.  The GDP grew from Rs. 189.71 lakh crores in 2018-19 to 200.7 lakh crores in 2019-20. Meanwhile, the total expenditure increased from Rs. 23.15 lakh crores in 2018-19 to Rs. 30.48 lakh crores in 2019-20. During the same period, the non-debt receipts increased from Rs. 16.65 lakh crores to Rs. 20.17 lakh crores, i.e., the increase in expenditure was higher than the increase in non-debt receipts. Therefore contributing towards a higher increase in fiscal Deficit.
As per the latest budget documents for 2022-23, the actual Fiscal Deficit for 2020-21, increased to 9.2% of GDP. The impact of the COVID-19 pandemic is clearly visible, where-in, the non-debt receipts were only Rs. 16.91 lakh crores i.e., lower than the previous year. Meanwhile, the expenditure increased to Rs. 35.09 Lakh crores. The total FD for the year was Rs. 18.18 lakh crores. The increase in fiscal deficit was at the time when the GDP fell for the year. As per the information available with MoSPI, the GDP for 2020-21 was Rs. 198.01 lakh crores. This also implies that the FRBM target of limiting Fiscal Deficit to 3% of GDP by 2020-21 is not met. The target might also not be met for the next few years if one goes by the figures for the subsequent years.
The revised estimates for 2021-22, project an improvement over the previous year, yet a higher fiscal deficit of  6.9% of GDP while the budget estimates for 2022-23 peg the fiscal deficit at 6.4% of GDP.  The overall trend indicates that there was an improving trend in the Fiscal Deficit to GDP ratio, until 2018-19, after which it took an opposite turn.
Central Government Debt at 52.3% of GDP in 2019-20
The amendments made to FRBM in 2018, introduced new targets of – Central Government Debt not to cross 40% of GDP and General Government Debt not to cross 60% of GDP by 2024-25.  Central Government Debt includes – Total outstanding liabilities on the security of CFI, total outstanding liabilities in the Public Account of India and the financial liabilities of any of the central government bodies.
As per the CAG report, based on the reference of UGFA, the total Central Government Debt in 2019-20 was Rs. 104.99 lakh crores. This accounts for 52.3% of the GDP. As highlighted, the target to be achieved by 2024-25 is 40% of GDP.
CAG reports note that the target can be achieved by 2024-25, with superior growth in GDP. However, as already highlighted above, there has been a fall in the GDP for 2020-21, compared to 2019-20. This also corresponds with an increase in the debt borrowings of the centre which pushes the Central Government debt to GDP ratio higher.
Data indicates that there is a declining trend of Union Government meeting its expenditure through non-debt receipts. In 2016-17, it was 76.02% and in 2019-20 it reduced to 66.17%. This implies that the government relies on debt receipts to meet its expenditure.   As highlighted in an earlier story, there is a fall in Union’s tax & non-tax revenues and an increased reliance on borrowings.
Another target is to reduce the General Government Debt to less than 60% by 2024-25. General Government Debt is the total debt of the Central Government and the State government.  CAG report refers to Status Paper on Government Debt, as per which the General Government Debt at the end of 2018-19 was 68.6% of GDP. As per the finance ministry’s response in February 2022, the status paper for 2019-20 is in progress.
If the numbers of the subsequent years are any indication, this target would be missed in view of the increasing debt situation of the States. Our story on increasing reliance on borrowings by the States to meet the expenditure can be read here.
The increase in the Debt to GDP ratio also impacts another indicator – Debt Sustainability Indicator. Debt sustainability is defined as the ability of the government to maintain constant Debt to GDP ratio. Debt to GDP ratio increases because of higher levels of debt leading to higher interest expenditures, contributing to higher deficits. In contrast to the trend between 2015-16 to 2018-19, the debt sustainability indicator was negative i.e., more burden on the union government.
Trends indicate that the Union government is far off from meeting the FRBM goals.
The Fiscal deficit and other debt indicators are a reflection of the economy. Lower revenue receipts in the backdrop of increasing expenditure are a direct contributor to Fiscal Deficit. The already increasing trend of fiscal deficit & higher debts was further exacerbated by the COVID-19 pandemic. During the pandemic years, the GDP fell, and the growth was stymied coupled with increased expenditure.
The fall in GDP during the pandemic year and slower than expected growth in the ensuing years contributed to a higher Fiscal Deficit. The projections for even the current year, which is two years past the deadline of 2020-21, are more than double the goal of 3%.
Featured Image: CAG report on compliance of FRBM act


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Review: Calcutta HC Rules That Being Tagged on Social Media by Any Other Person Necessarily Does Not Confer any Liability
Sai Krishna Muthyanolla
June 7, 2023
In this week’s review of Court Judgments, we look at Delhi High Court’s observation regarding a plea of women seeking relaxation of UGC rules allowing for maternity leave, Madras High Court’s intervention to set aside a conviction without proper identification, Bombay high court upholding a case of culpable homicide, Patna High court’s ruling regarding seizure of vehicles due to non-payment and Calcutta’s High court’s ruling relating to fixing liability based on being tagged in a FB post.
Madras HC: Sets aside conviction in robbery case and states that punishment without proper identification directly impinges personal liberty.
The single Judge bench of Madras High Court consisting of Justice Anand Venkatesh has recently set aside a conviction in a robbery case and emphasized that punishing a person without proper identification will directly impinge the personal liberty guaranteed under Article 21 of the Constitution.
In the case, Vadivel and other vs. State, Vadivel, Vetrivel & Gurudev (appellants) were charged with offence of robbery. The prosecution alleged that these appellants have gone to the house of the complainant and threw chilli powder in her eyes. They took away her gold chain weighing 4 pounds. The FIR was registered against unknown persons and later the accused were arrested.
Looking into the case, the court noted that while registering the complaint, the defendant has not identified any of the accused by name. Further, there was no test identification parade conducted as part of the investigation. All through the process of the trial, the defendant has not identified any of the accused.
The court further noted that none of those living in the locality had identified the accused in the court. The only crucial witness of the case were the members of the co-operative bank where the gold chain was pledged. However, this would help only to the extent of recovery of the stolen item but not enough for conviction.
The judge commented that in many cases, the police officers usually show a habitual criminal as the accused. However, this is against the line of investigation. It was further emphasised that this would cause a dent in the criminal justice system. Based on these observations, the High Court felt that it was fit to intervene in the sentence of the trial court and set aside the conviction.
Delhi HC: Observed that Women can’t be forced to choose between right to education and reproductive autonomy.
Delhi High Court observed that women cannot be forced to choose between their right to education and right to exercise reproductive autonomy. It made this observation in the case, Renuka vs. University Grants Commission and Anr and proceeded to grant relief to a female candidate seeking relaxation of her attendance for completing a Master of Education (M.Ed) course, after being denied maternity leave.
In this case, the court was hearing the plea of a woman seeking directions on UGC to frame specific rules and regulations for the grant of maternity leave for post-graduate and undergraduate courses. She was enrolled in December 2011, for a two-year M. Ed regular course. An application for maternity leave was filed with the concerned Dean and Vice-chancellor of the University. This was rejected.
Looking into the case, Delhi High Court noted that while it cannot create a different compartment for the purpose of relaxation of attendance, it ought to find a balance between catering to the interests of candidates seeking maternity leave and also ensuring the application of regulations that require a specific number of days of attendance.
It noted that in various earlier judgments, the right of women to avail the benefit of maternity leave in the workplace is treated as an integral aspect of the right to live with dignity under Article 21 of the Constitution.
It stated that the court and the society have two roads to follow in such cases – either the bare text of existing legal provision be blind to consequences or be sensitive to the person and apply the constitutional values. The former would force a woman to choose between higher education and the right of becoming a mother.
It set aside the decision of the varsity’s Dean and Vice-Chancellor. It instructed that if the petitioner fulfils the minimum 80% attendance criteria in the theory classes, after accounting for the 59 days maternity leave, then appropriate steps need to be taken to allow the petitioner to appear in the examination.
Bombay HC: Upholds culpable homicide charge against contractors over exposed vertical iron bars that lead to worker’s death.
In the case, Pinkesh Dhiraj Patel and Anr vs. State of Maharashtra, the Bombay High Court refused to quash a culpable homicide case against two sub-contractors of a construction site where a worker died after falling on exposed iron bars in an RCC column.
As per the case details, Amit Kumar Gound, a construction worker on a site in Goregaon, fell from a crane on open iron bars in an RCC column and died. His wife alleged that safety equipment – safety belt, helmet, safety jacket etc were not provided by the builder and contractor, and hence, they were responsible for his death.
Police filed an FIR with charges of culpable homicide against two sub-contractors. One of the sub-contractors was granted anticipatory bail. The case was committed to Sessions court for trial for culpable homicide not amounting to murder.
The accused approached the High Court seeking to quash the case. The argument presented was that there was no intention to cause death and that the incident was classified as an accident by the Labour commissioner. Hence, it is not a case of culpable homicide not amounting to murder.
The State submitted that leaving exposed vertical iron bars in the column led to his death. The court looked into the allegations and pointed out that a part of the allegations relates to the gross negligence in performing the duty.
The court agreed with the petitioners that as far as the act of omission is concerned, the offence of culpable homicide will not hold. However, having the knowledge that the act could result in the cause of death amounts to culpable homicide.
It observed that in this case there is an overt act on part of the accused in leaving dangerously exposed iron bars embedded in the RCC column at the construction site. They further had the prima facie knowledge that leaving the bars exposed could lead to a disaster.
Patna HC: Ruled that forceful seizure of vehicles by recovery agents is unconstitutional and illegal.
Single judge bench of Patna High Court, consisting of Justice Rajeev Ranjan Prasad passed a ruling that banks and finance companies cannot use recovery agents to forcefully seize vehicles of customers who have defaulted on car loans, without following the due process.
The court was disposing a batch of pleas filed against the action of various contesting respondents – Tata Motor Finance Limited, IndusInd Bank Limited, Shri Ram Finance Company, ICICI Bank, and the State Bank of India.
The grievance of the petitioners was that their vehicles were forcibly seized by the respective banks & financial institutions without taking recourse to the process of law and by using goons during odd hours. Through the writ applications, the petitioners sought a direction to these institutions to hand over their respective vehicles with all the papers. They also sought compensation for the loss of reputation suffered by them.
The court observed that the act of the respondents was in clear contravention of the law. It emphasised that the banks and financial institutions can exercise their rights to recover loans within the limits of the Constitution. Even RBI guidelines emphasize that repossessions clause in the contracts ought to be legally valid and should comply with the provisions of the Indian Contracts Act.
The court asserted that the Banks and Financial Companies have a constitutional obligation to not act in violation of law. Their act of repossession of vehicles without following RBI guidelines and the laws was wholly illegal and it further deprives the petitioners of their fundamental rights of livelihood and the right to live with dignity.
It directed the respondents to exercise their power to seize and repossess the vehicle only in accordance with the provisions of the SARFAESI Act, 2002 and the Rules framed under RBI guidelines.
Calcutta HC: Ruled that being tagged in comments on Social Media by any other person necessarily does not confer any liability
As per the details of the case , Sri Protip Roy Basunia vs. The State of West Bengal, a complaint was filed by the complainant, based on which a case was registered against the petitioner and others with the allegation of spreading communal hatred and violence amongst the people of society through comments on Facebook profiles for certain persons.
Case was filed under Section 504 (Intentional insult with intent to provoke breach of the peace), Section 505 (Statements creating or promoting enmity, hatred or ill-will between classes), Section 506 (Punishment for criminal intimidation) and Section 120B (Punishment of criminal conspiracy) of IPC.
The petitioner approached the High court to quash the proceedings and submitted that he has been falsely implicated due to rival political ideologies and ulterior motives. Submission was also made stating that the allegations in FIR does not disclose any cognizable offence which would justify an investigation by the police.
The petitioner also contended that the alleged social media post was uploaded by another person and that he was merely tagged in the post, due to which it appears on his Facebook profile. It was submitted that he is neither the creator of the post nor had any intention to spew any religious hatred.
However, the counsel appearing on behalf of the State submitted that any material which could implicate the petitioner would be identified as part of the trial and that it is still at a premature stage and requested not to quash the proceedings.
The court noted that the complaint does not identify any specific act which would justify the offence that attracts these sections of IPC. Further, there is no occurrence of any riot which could be linked to this FB post.  Based on the available details, the court ruled that being tagged in comments on social media by any other person does not necessarily confer any liability or responsibility on the person tagged. It proceeded to quash the criminal proceedings against the petitioner.


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Government reiterates guidelines for Premature Retirement of Government Servants
Sai Krishna Muthyanolla
September 8, 2020
The Department of Personnel & Training recently reiterated its consolidated guidelines on the issue of ‘premature retirement’. The guidelines talk about the provisions, process, criteria etc. among other issues related to ‘Premature Retirement’. Here is a review.
Recently, the Department of Personnel and Training (DoPT) issued a memorandum regarding the periodic review of central government employees. With the objective to make the functioning of government more effective, the department has asked all the ministries & departments to review the performance of the officials in order to determine whether or not the official is fit to be retained in service or be retired from service prematurely, in public interest. The current memorandum is a consolidated version & a reiteration of the guidelines issued on the subject  so far at one place.
This story explains the details of the consolidated guidelines pertaining to the premature and compulsory retirement of government officials, issued by DoPT.
All central government employees are governed under Fundamental Rules (FR) and Central Civil Services (CCS) Rules. The objective of FR 56(j)/(l) and Rule 48 of CCS Pension Rules, 1972 is ‘to strengthen the administrative machinery by developing responsible and efficient administration at all levels and to achieve efficiency, economy and speed in the disposal of Government functions’, as per memorandum issued recently by the DoPT.
Further, the notification clarifies that premature retirement of government servants under these rules is different from ‘Compulsory Retirement’ defined under CCS Rules, 1965 which is a major penalty awarded to a government employee for misconduct, similar to dismissal and removal from job. The memorandum clarifies that ‘Premature retirement’ is not a penalty.
Appropriate Authority can retire a government servant if necessary, in public interest.
The Appropriate authority has the absolute right to retire a government servant if necessary, in public interest. The legislations governing the same are- FR 56(j), FR 56(I), or Rule 48(1)(b) of CCS (Pension) Rules, 1972.
Under Rule 56 (j) of FR, ‘The appropriate authority has the absolute right to retire, if it is necessary to do so in public interest, any Government employee as per provisions of Rule’.
A notice of at least 3 months in writing or three months’ pay and allowances in absence of notice must be ensured. For the provision to be applicable, Group A & B officers must have entered service before turning 35 years of age and turned 50 years old or attained 55 years of age in other cases. Various categories of employees come under Group A and Group B.
Under 56(j), the other category of employees, Group C and those posts not entitled to pension, must have completed at least 30 years of service and three months’ notice.
Rule 48(1) (b) of CCS Rules, 1972 states that a government servant who has completed 30 years of service may be required by Appointing Authority to retire in public interest. He must be given a notice three months in advance or be paid the salary and allowance for three months in case such a notice is not present.
The following time schedule has to be followed for the quarterly review exercise of government servants.
A register of the government servants who are due to attain 50/55 years of age or complete 30 years of service, must be maintained which is to be scrutinized at the beginning of every quarter by a senior officer of the Department. A review must be undertaken as per the above schedule for ensuring timely completion of process. To carry out the process, the Department has prescribed the composition of Review Committees constituting two members and a Representation Committee for any appeals. To assist the Review Committee, it has also been suggested to constitute an Internal Committee which would ensure that the service record of the employee being reviewed is submitted to the relevant authorities with all the necessary information.
On what basis will the Review committee make recommendations?
As per the memorandum issued by DoPT, the following broad criteria is to be followed by the review committee while making appropriate recommendations.
The recommendations of the Review Committee will be put up for consideration and approval of the appropriate authority in cases where the review committee has recommended to retire the government servant prematurely. After issue of the orders of premature retirement, the concerned government servant may make a  representation (like an appeal) within three weeks from the date of the premature retirement order. The representation committee must make its recommendations on the representation within 2 weeks.
Few important observations of Supreme Court have been cited to add more clarity
In Union of India V. Col. J N Sinha, the Supreme Court held that show cause notice need not be issued to any government servant before a notice of retirement is issued to him as per the above provisions. It also referred to State of Gujarat V. Umedbhai M Patel, 2001 clarifying that compulsory retirement should not be treated as punishment and that dead wood needs to be chopped off for better administration, implying that whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired in public interest.
For evaluating the integrity of a government servant, all material on record including the actions or decisions taken by the employee which do not appear to be above board, complaints received against him, or suspicious property transactions for which there may not be sufficient evidence to initiate departmental proceedings, must be considered. If conduct of a government employee becomes unbecoming to the public interest, the government servant may be given compulsory retirement.
Compulsory retirement invoked against 163 Group A and 157 Group B officers between July 2014 and January 2020
According to a response in the Lok Sabha in July 2019,  during the period from July 2014 to May 2019, a total of 36,756 Group-A and 82,654 Group-B officers were reviewed under the above-mentioned provisions. The FR 56(j) or similar provisions have been recommended against 125 Group-A and 187 Group B officers. Another Lok Sabha response in March 2020 revealed that 163 Group-A (including all India Service Officers) and 157 Group-B officers were recommended retirement under these provisions during July 2014 to January 2020.  All India Service Officers such as IAS, IPS, etc. are covered under the provision of compulsory retirement as per Rule 16(3) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958 in addition to the above provisions.
It has to be noted that this is not the first time that the government has released these guidelines. Almost every other year, the government has re-iterated the guidelines and issued clarifications regarding the same.  Unless such review process is taken seriously without misuse, there is not going to be much difference in the administration, and such initiatives will fail to achieve the objectives. Transparency in the review process and execution are key for its success.
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created: September 8, 2020