Case BriefsHigh Courts

Bombay High Court: A Bench of Sunil B. Shukre and Pushpa V. Ganedliwal, JJ. quashed a preventive detention order passed against the petitioner and set him at liberty observing, inter alia, that he was deprived of his fundamental right under Article 21 of the Constitution of India.

The petitioner was preventively detained pursuant to the impugned order passed by the District Magistrate, Wardha.  Yogesh V. Nayyar, Advocate for the petitioner challenged the said order on various counts. Per contra, Nitin Rode, Additional Public Prosecutor supported the order of preventive detention.

The High Court perused the record and was of the view that the impugned order became highly suspect in eyes of law as the DM, while passing the impugned order, took into consideration the fact that the petitioner was indulging himself in sale of liquor containing about 20.60% of ethyl alcohol. This, according to the Court, ought to be ignored in the facts and circumstances of the case at hand. Moreover, it was noted that the representation made by the petitioner under Section 10 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 was not considered by the Advisory Board. According to the Court, “This would mean that a valuable right available to the petitioner has been taken away from him. After all, right to liberty is a fundamental right enshrined in Article 21 of the Constitution of India and although this right is subject to reasonable restriction and can also be temporarily taken away in accordance with the procedure established by law, needless to say, the procedure has to be reasonable and the procedure prescribed for restricting this right has also to be followed in letter and spirit. If that is not done, there would be a deprivation of the fundamental right of the petitioner without following the procedure established by law. This is what has happened in the present case and, therefore, in our view, this is a compounding factor to what is seen by us already as an unjustifiable impugned order, making the impugned order as completely vulnerable in law.” Holding as such, the Court allowed the petition and set the petitioner at liberty. [Amir Khan Nasib Khan Pathan v. State of Maharashtra, 2019 SCC OnLine Bom 494, dated 15-03-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, C.J. and V. Kameswar Rao, J. dismissed a petition filed by a practicing advocate, in public interest, challenging the government notification increasing the speed limit for plying motor vehicles on national highways.

The Notification impugned, dated 06-04-2018, was issued by Ministry of Road Transport and Highways, Government of India whereby speed limit was increased for motor vehicles from 100 kmph to 120 kmph. Further, speed limit for motorcycles was increased from 60 kmph to 80 kmph. The petition was filed on the ground that it violated the fundamental right to life available to citizens under Article 21 of the Constitution; the consequence of increasing the speed limit would be loss of life due to increase in number of accidents which may result due to indiscreet plying of vehicles.

The High Court was of the view that the question of permitting plying of vehicles at a particular speed on a particular road like national highway is an administrative action, an executive action, in fact, a policy decision taken by administrative authorities. Such decision is taken by the authorities after due consideration of various factors based on expert and scientific evaluation. The Court held that merely because there was a possibility of accident due to plying of vehicles on the road on a speed, which according to the petitioner was too high, was no reason to interfere into the matter. It was purely a  policy decision within the domain of legislative power of government; it is not for writ courts to interfere in such matters unless statutory provisions in doing so are found to be breached or violated. Therefore, the petition was dismissed. [Siddhartha Singh v. Union of India, 2018 SCC OnLine Del 11138, dated 05-09-2018]

Case BriefsHigh Courts

Calcutta High Court: While deciding the issue of granting compensation to a victim of trafficking, a Single Judge Bench comprising of Rajasekhar Mantha, J., held that the victim was entitled to compensation under W.B. Victim Compensation Scheme 2017 read with Section 357A CrPC.

The victim was identified, traced and brought back from Pune to W.B. Two out of four accused persons were arrested, while the other two remained absconding. The victim filed an application claiming compensation under the Scheme which was framed in pursuance to the mandate provided by Section 357A CrPC. The application was rejected by concerned District Legal Services Authority and the appeal preferred by the victim was also dismissed by State Legal Services Authority. The grounds of rejection being that for providing compensation, both the conditions as envisaged under sub-section (4) of 375A needs to be satisfied; namely, first, the accused not being traced or identified, and second, trial not having commenced. While rejecting the grounds, the High Court observed, if the accused have not been identified, a trial cannot commence anyway. The legislature could not have imposed an occurrence leading to the same result twice over, as a condition precedent. Any multiple conditions must be independent occurrences.

The High Court noted that the object and purpose of the Scheme is, inter alia, that victim of a serious crime, especially women, needs urgent and immediate attention and both physical and mental rehabilitation. Such rehabilitation, from the nature of the scheme and the section, is not dependent on the pace of either investigation or trial. Further, compensation is awarded under the scheme as formulated pursuant to Section 357A, as the fundamental right of the victim under Article 21 (of the Constitution) have been violated. Denial of compensation to such victim would continue such violation and perpetrate gross inhumanity on the victim in question. On the basis of discussion and observations as mentioned hereinabove, the Court held that the State Legal Services Authority was not right in rejecting victims claim. Therefore, the petition was allowed and the above-mentioned order was set aside. The matter was sent back to the State Legal Services Authority for fresh assessment to be completed within ten days. [ Serina Mondal v. State of W.B., 2018 SCC OnLine Cal 4238, dated 25-06-2018]

Case BriefsSupreme Court

Supreme Court:

“Why should I fear death?

If I am, then death is not.

If death is, then I am not.

Why should I fear that which

can only exist when I do not?” – Epicurus

This is one of the several profound quotes quoted by the Constitution Bench in its 538-page long verdict on the issue of Euthanasia.

In 4 separate but concurring opinions, the 5-judge Constitution Bench of Dipak Misra, CJ and AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. The Court said:

“the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery. A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.”

CJI, for himself and Khanwilkar, J:

Explaining why only passive euthanasia is permissible and not active euthanasia, CJI, writing for himself and Khanwilkar, J, said that there is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life. Withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and that once passive euthanasia is recognized in law regard being had to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the doctors‘ dilemma or fear will have any place.

Living Will versus Advance Medical Directive:

The Court also refrained from using the term ‘living will’ and said that the concept ‘advance medical directive’ should be applied in our country. To understand both the concepts, the Court also provided with the definitions:

The Black’s Law Dictionary defines an Advance Medical Directive as,

“a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.”

A Living Will, on the other hand, is

“a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider.”

Advance Medical Directive:

Laying down detailed safeguards and directions with respect to Advance Medical Directive, the Court that:

  • the said document can be executed by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. However, it should be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information and must have characteristics of an informed consent given without any undue influence or constraint.
  • The said document shall be in writing clearly stating as to when medical treatment may be withdrawn, or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
  • It should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by 173 the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
  • If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution.
  • Also, an individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

Absence of Advance Medical Directive:

  • In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board (HMB).
  • HMB, after discussing with the family physician and the family members of the patient, may form a preliminary opinion on whether or not to withdraw the treatment. The final decision, however, will be endorsed by JMFC after it has visited the patient, verified the medical reports, examined the condition of the patient and discussed with the family members of the patient.

Sikri, J:

It is an undisputed that Doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with.

Chandrachud, J:

While upholding the legality of passive euthanasia (voluntary and nonvoluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function. Besides lending assurance to the decision of the treating doctors, the setting up of such committees and the processing of a proposed decision through the committee will protect the ultimate decision that is taken from an imputation of a lack of bona fides.

Bhushan, J:

In   cases   of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such   decision   be   taken   by   specified   competent   medical experts   and   be   implemented   after   providing   a   cooling period to enable aggrieved person to approach the court of law.

Conclusion:

  • Right to die with dignity is a fundamental right.
  • an adult human being having mental capacity   to   take   an   informed   decision   has   right   to refuse medical treatment including withdrawal from life saving devices.
  • A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards.
  • In case of incompetent patients and absence of advance medical directive, “the best interest principle” is to be applied and decision is to be taken by competent experts.

The Court, however, made clear that the Advance Directives and the safeguards as mentioned in the judgment will remain in force till the Parliament makes legislation on this subject. [Common Cause v. Union of India, 2018 SCC OnLine SC 208, decided on 09.03.2018]

To read the background of the case, click here.

Hot Off The PressNews

On Day 4 of the Aadhaar hearing, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, heard submissions of Senior Advocate Shyam Divan who continued with discussing the various provisions of the Aadhaar Act, 2016. On Day 3 of the hearing, Shyam Divan had discussed the scope and applicability of the 9-judge bench Privacy verdict on the Aadhaar issue and was taking the Court through various provisions of the Aadhaar Act, 2016 when the Bench rose for the day. Below are the highlights from Day 4 of the hearing:

Discussion on Section 59 of the Aadhaar Act, 2016:

  • Shyam DivanSection 59 of the Aadhaar Act, which validates all acts of the UIDAI prior to the Act, applies only to central government actions, as per its text. This section does not control acts of private entities, like enrolment agencies. Their actions are not protected.
  • Sikri, J: Central Government appointed UIDAI in the pre-Act era, and all the acts flow from that.
  • Shyam Divan: The notification establishing the UIDAI might protect the actions of the Central Government in entering into the MoU, but doesn’t cover the actions of the registrars.
  • Chandrachud, J: Actions of the registrars are traced back to the MoU.
  • Shyam Divan: Enrollment agencies are not covered even under the MoUs. As for the Registrars, there actions are not the actions of the central government. Therefore, the enrollment prior to the Act are not validated by Section 59. In any case, you cannot have a retrospective validation of a fundamental right violation.
  • Chandrachud, J: Privacy judgment says that there must be a basis in law. Section 59 attempts to provide that by bringing about a legal fiction. It will have to be considered how you deal with data breaches prior to the Act.
  • Shyam Divan: Informed consent is crucial, and you can’t have a retrospective validation saying that there was always consent, prior to the Act. Even if this provision is to be upheld, it should be given the narrowest reasonable construction.

Heads of challenge to the Aadhaar Act as specified and explained by Shyam Divan :

  • Surveillance: 
    • The State is empowered to collect records over the course of an individual’s lifetime. On the basis of aggregation, over time, the State acquires a profile of an individual, a community, a segment of society. The Constitution does not permit a surveillance State.
    • Every electronic device linked to the internet has a unique number. In addition when the device is linked to CIDR, the devices exchange information.The device is assigned a number qua Aadhaar. A specific ID at the first interaction. Thereafter, the transmission will be recognised as emanating from that device.
    • A unique electronic path attaches to each transmission. This identifies the links through which the transmission is done. Each link is identifiable. It is technically possible to track every transaction. It is possible to track the location of every device in real time.
    • Discussion between Chandrachud, J and Shyam Divan:
      • Chandrachud, J: To what extent the Court can go into questions of technical evidence? There is also a distinction between the existence of a mechanism and its abuse. If the distinction between fingerprints on your iPhone and Aadhaar is only if degree. Should the Court second-guess the decision of the executive government, especially when no system in the world is secure?
      • Shyam Divan: These affidavits confirm that there is a complete mapping of the electronic path, which happens in real time, and that you can track the location.
      • Chandrachud, J: Aren’t we accepting Google Maps tracking us, and other private corporations?
      • Shyam Divan: When you are tracked by the State in real time, it is tantamount to a police State. The Constitution does not allow this. Google is not the Indian State, and the issue is one of consent.  Google, powerful though it is, is not as powerful as the State.
      • Chandrachud, J: I should have no objections to the State knowing whether I’m paying my taxes. So there should be a distinction between collecting data and using it. If the use of data is limited to its purpose, then what is the problem with collection. We live in times of terrorism and money laundering and welfare expenditure, and this has to be balanced. Surveillance is about how data is used, not collected.
      • Senior Advocate Kapil Sibal: The problem is of giving the State that kind of information. ‘Big brother’ will have the information. He may use it and you won’t know it. By the time you do, he will become a bigger brother.
      • Shyam Divan: The point of this whole case is to prevent that situation where ‘Big Brother’ is watching.
  • Violation of Privacy: Between 2010 and 2016, there was no law authorising the violation of privacy. Even after the Aadhaar Act, the violation continues. The citizen is compelled to report her activities to the State through the electronic footprint. Even for availing of subsidies, an alternative means of identification should be allowed. In a digital society, an individual has the right to protect herself by maintaining control over personal information
  • Limited Government: Constitution is not about the power of the State but about limits to that power. Aadhaar allows the State to dominate the individual through an architecture that enables profiling, and by the power to cause civil death by deactivating Aadhaar. Instead of the State being transparent to the individual, the individual is made transparent to the State.
  • Aadhaar Act being passed as a Money Bill
  • Violation of Articles 14 and 21 of the Constitution:
    • There is no informed consent. There is no opt-out option. UIDAI has no direct relationship with the collecting agencies. The data collected and stored lacks integrity.
    • Biometrics are untested, and probabilistic. The use of biometrics has led to exclusion from welfare schemes. If biometrics don’t work, then a flesh and blood individual ceases to exist. If your biometrics don’t match, you become a ghost. A citizen in a democratic society has the right and choice to identify herself in a reasonable manner. Mandating a single highly intrusive form of identity is inconsistent with democracy.
    • Authentication records include the time of authentication and the requesting entity. This can be stored for 2 + 5 years. This enables real-time surveillance.
    • Information about the specific details of the CIDR is not in the public domain because of natural security concerns. (Answering Chandrachud, J’s question as to who maintains the CIDR)
    • Private enrollment agencies cannot be entrusted with the crucial task of ensuring informed consent.
    • Definition of “resident” is arbitrary and has no verification magazine.
    • The individual has a right to remain free of monitoring as long as they have not violated any criminal law.
    • On cancellation of Aadhaar, the services will be disabled personally. You can just switch off a person.

The bench will now continue the hearing on 30.01.2018.

Also read the highlights from Day 1, Day 2 and Day 3 of the hearing.

Source: twitter.com/gautambhatia88

Hot Off The PressNews

Supreme Court: The 5-judge Constitution bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ reserved the verdict on whether or not a terminally ill patient has a right to die with dignity.

The Court was hearing the reference of the 3-judge bench of P. Sathasivam, CJ, Ranjan Gogoi and Shiva Kirti Singh, JJ that has, in  Common Cause v. Union of India, (2014) 5 SCC 338, referred the matter relating to right to die or euthanasia to a Constitution Bench and noted:

“although the Constitution Bench in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive. So, the only judgment that holds the field in regard to euthanasia in India is Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454, which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur had upheld the same.”

The bench had said that it was extremely important to have a clear enunciation of law on euthanasia and hence, invited the Constitution bench to lay down exhaustive guidelines in this regard.

Earlier, in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, the bench of Markandey Katju and Gyan Sudha Misra, JJ, had refused to allow Aruna Shaunbaug, who had been the centre of the euthanasia debate as she spent 42 years of her life in a Permanent Vegetative State, to be euthanised but allowed terminally ill patients to choose to be passively euthanised. It was held that passive euthanasia can also only be allowed by the High Court and an application should be moved before it in this regard. Allowing passive euthanasia, the bench had said:

“if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialisation and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery.”

The 5-judge bench heard the matter for 2 days continuously and will pronounce the verdict soon.

Case BriefsSupreme Court

Supreme Court: In the petition where directions for the rehabilitation of the widows of Vrindavan were sought so as to bring them to a stage where they can live with dignity, the bench of Madan B. Lokur and Deepak Gupta, JJ formed a 6-member Committee to study the 18 reports filed by  the National Commission for Women, the Ministry of Women and Child Development and the State of Uttar Pradesh among others and formulate an action plan within two months and in any case on or before 30th November, 2017.

The petition was filed based on the article “White Shadows of Vrindavan’ written by Atul Sethi and published in the New Delhi edition of the Times of India of 25.03.2007, which highlighted the pathetic and shocking conditions of the widows living in Vrindavan – begging in temples and then huddling together in hovels. It mentioned that the widows congregate in some ashrams or temples where they sing bhajans and are paid about Rs. 18 per day for about 7 to 8 hours of singing and that they were spending the rest of their time begging on the streets. Many of them are too old to look after themselves requiring others to pool in their resources to look after them.

Various reports were submitted before the Court after a Social Justice Bench was constituted by the Chief Justice of India in 2015. Solicitor General also submitted an Action Plan on 18.07.2017. The Court said that the effort put in by all concerned in the reports should not go waste and it must be gainfully utilized, being in a sense a gold mine of pragmatic and workable suggestions. The Committee constituted by the Court includes:

  1. Suneeta Dhar of NGO Jagori,
  2. Meera Khanna of Guild for Service
  3. Abha Singhal Joshi, Lawyer and activist
  4. A nominee of HelpAge India, an NGO that has rendered valuable assistance in this case,
  5. A nominee of Sulabh International, an NGO that has rendered valuable assistance in this case,
  6. Aparajita Singh, a lawyer practising in this Court to provideany assistance on legal issues.

The Court noticed that all that widows in some parts of the country are socially deprived and to an extent ostracized and perhaps this is the reason why many of them choose to come to Vrindavan and other ashrams where, unfortunately, they are not treated with the dignity they deserve and it is important to give voice to these hapless widows. In order to follow-up on the Agreed Action Plan submitted by the Solicitor General, the Court will take up the matter on 09.10.2017. [Environment and Consumer Protection Foundation v. Union of India, 2017 SCC OnLine SC 916, decided on 11.08.2017]

 

Case BriefsHigh Courts

Delhi High Court: Mr. R.P. Luthra,  a practising advocate had filed a writ petition before the Delhi High Court challenging the recommendation of four names by the Supreme Court Collegium in May, 2016 and certain other reliefs including a declaration that the judgments passed by the Supreme Court from time to time with regard to mechanism of appointment of judges are unconstitutional. The writ petition was dismissed by the Single bench stating that a High Court cannot declare Supreme Court’s judgment as per incuriam and that the question of suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ proceeding.

Now, the petitioner had appealed against the order before Division Bench contending that the same had been passed without affording adequate opportunity to the petitioner to argue the matter. He also referred to the fact that the name of a practicing Advocate had been recommended by the Collegium by the impugned recommendation without considering the candidature of appellant and other similarly placed lawyers and therefore, contended that it was violative of Articles 14, 19 and 21 of the Constitution. He further submitted that the recommendation of the Collegium being an administrative act is open to judicial review under Article 226 referring to Centre for PIL v. Union of India, (2011) 4 SCC 1. The Division Bench rejected the contention stating that there is a basic difference between ‘eligibility’ and ‘suitability’ citing Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273, in which it was held that the appointment of a Judge of the High Court/Supreme Court requires ‘consultation’ and fitness of a person to be appointed is evaluated in the consultation process. Therefore, the evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation, the Bench held.

The advocate also contended that the Collegium should not have made the recommendation without finalising the Memorandum of Procedure for improvement of the Collegium System of appointment of Judges suggested by the Constitution Bench vide judgment dated 16.10.2015 in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1. To this, the Court reverted that in the light of the order of the Constitution Bench in 2015 SCC OnLine SC 1224 dated 19.11.2015 in which while reserving the order, it was made clear that the process of appointment of Judges by the Collegium system need not remain on hold.  The appeal was dismissed accordingly. [RP Luthra v. Union of India, 2017 SCC OnLine Del 7239, decided on 01.03.2017]

 

Case BriefsHigh Courts

Gujarat High Court:A petition was filed under Article 226 of the Constitution praying to obtain a suitable writ for restraining the free public exhibition of the judgments and orders of the Court over internet by Google even if the cases are non-reportable. He pleaded that because of publication by the respondents the judgment is exhibited for free in public domain and is therefore, against the classification made by the Court.

It was also alleged that such an overzealous act of respondents is not just undisciplined and without authority, but also has had an adverse impact on personal and professional life of petitioner. The petitioner was accused in the impugned case that was published. Counsel for respondents simply pleaded that it was neither a proper nor a necessary party in the case as Google, being an automated search engine uses software known as ‘crawlers’ which would crawl the internet and find sites to add to its index and therefore, they were in no way connected to the publication on internet.

The Court observed that there are no specific provisions pointed out by the petitioner which have been violated by publication of the impugned judgment and as prayed by petitioner, it would not be covered under the ambit of Article 21 of the Constitution. It was clarified by the Court that reportable or non-reportable is the classification made for the reporting of a judgment in law-reporter and not its publication anywhere else while taking into consideration the important fact that High Court was a court of record. [Dharamraj Bhanushankar Dave v. State of Gujarat, 2015 SCC OnLine Guj 2019, decided on 19-01-2017]