Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has expressed serious concern over the rising incidents of sexual assault and, taking suo motu cognizance of media reports in this regard today, issued notices to Centre, States and UTs calling for reports on SOP to deal with such cases and use of Nirbhaya Fund.

The Commission has observed that there is a dire need for all the stakeholders to come together to work jointly to get rid of this evil.

Issuing the notices, the Commission has further observed that the largest democracy of the world, which has adopted the longest written constitution and has a rich cultural heritage of gender equality, is today being criticized for having the most unsafe environment for women. The incidents of rapes, molestation, gender-based discrimination and other such atrocities against women have, unfortunately, become routine media headlines.

The Commission has said that these incidents indeed involve violations of the human rights of the victims. It is well awake to the seriousness of the issue. Being the apex body for the protection and promotion of human rights at the national level, it considers its intervention into the matter necessary to understand as to where the state agencies and other stakeholders are lacking on their part and what can immediately be done.

There have been constitutional and statutory provisions to ensure that the women are not subjected to any kind of discrimination and harassment but there is an alarming trend indicating that things are getting worse amounting to a violation of right to life, liberty, dignity and equality of women across the country.

Recently, a number of such cases have been reported by the media wherein, the women have been subjected to sexual abuse, utmost cruelty and inhuman treatment by the perpetrators showing grave disrespect towards law. There have been instances where the incidents have been reportedly, occurred due to gross negligence by the administration and the law enforcing public agencies.

In Telangana, a 26-year-old veterinarian was reportedly, brutally gang-raped and killed by four accused persons. The culprits not only outraged the dignity of the victim but also killed her and burnt her body. As per media reports, the brother of the victim had approached the Shamshabad police station at around 11.00 PM reporting that his sister is unreachable for the last two hours but his worries were shrugged off by the police personnel and after occurrence of the incident, the FIR was also registered after delay. Though the accused have been arrested but had the timely action been taken by the police, the gruesome incident could, perhaps, be stopped. In another incident, a 25-year-old law student was also reportedly gang-raped by a group of armed men, in Ranchi, Jharkhand.

In another media report, carried today on 02.12.2019, a 6-year-old girl was and strangled with her school belt in Tonk district of Rajasthan on 01.12.2019. The victim was reportedly missing since the previous day. The police have not made any arrest in this case. There have been number of such cases occurred across the country during the recent past. All these incidents have indicate that making stringent laws and funds for the victims alone cannot change the scenario unless the police officers are specially trained and their attitude towards women’s issues also changes.

There seems to be a lack of “Standard Operating Procedure” (SOP) to deal with such kind of incidents and panic situations. It is alleged that whenever anyone goes to a police station for help after disappearance a major or minor female member, the answer of the police officials generally remains that she might have gone with someone. This humiliating and stereotype mindset is needed to be changed. There is need to effectively address the core issue as this serious challenge has not only created an atmosphere of fear and uncertainty in our society but has also badly tarnishing the image of our country.

Through media reports, the Commission has also come to know that the amount made available under the “Nirbhaya Fund” has been reduced and also not being appropriately utilized by the state governments. A news report, carried today on 2.12.2019 reveaLS that since the year 2014, the UT of Chandigarh has been given a sum of rupees 7.46 crores under Nirbhaya Fund but the administration has spent only 2.60 crore out of it. Mere announcements of schemes, making of laws and formation of funds are not going to serve the purpose unless these are properly implemented.

The Commission, knowing that the subject is being looked into by various fora, has issued notices to the Chief Secretaries of all the State and UTs calling for a report within 6 weeks about the status of Nirbhaya Fund in their states including the details about availability of the fund and the money spent, during last 3 years.

The Commission has also issued notices to the Directors General of Police of all the states and UTs calling for their response within 6 weeks about the Standard Operating Procedure and the best practices adopted by them to deal with the matters relating to sexual abuse and atrocities against women including the details of the action taken against the police officers/officials found insensitive and guilty of negligence towards issues related to women.

The Commission has also considered it necessary to call for a detailed from the Secretary, Union Ministry of Women and Child Development, giving details about the schemes/guidelines initiated by the union government and status of their implementation, including Nirbhaya Fund, by the States/UTs. The response is expected within 6 weeks.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram comprising of Justice Adarsh Kumar Goel (Chairperson) and S.P. Wangdi (Judicial Member), Justice K Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) while addressed an original application in respect to the problem of contamination of groundwater and availability of clean drinking water.

The present application has been filed with a major concern of the contamination of groundwater due to arsenic and availability of clean drinking water in certain districts of Uttar Pradesh and other similarly affected areas in the country including in Assam, Bihar, Jharkhand, Karnataka, Punjab and West Bengal is the issue for consideration.

After considering the matter for more than three years, tribunal undertook an extensive review on the subject and noted the gravity of situation shown by high arsenic content leading to serious diseases and environmental damage in several districts of Uttar Pradesh.

Team of Ministry of Environment, Forest and Climate Change (MoEF&CC) found a number of deaths from the diseases on account of the problem. Ministry of Drinking Water and Sanitation also took cognizance and identified mitigation measures. Ministry of Agriculture also identified certain steps to be taken. The matter was further discussed in Parliament as well and a report for the same was submitted.

Tribunal noted that the matter was highlighted in news item in Hindustan Times under the heading “Arsenic contamination on the rise: 1 lakh dead, 3 lakh suffering”. After the said, a joint inspection report was filed before the tribunal by the Central Pollution Control Board, MoEF&CC, CWGA and Uttar Pradesh Pollution Control Board to the effect that Arsenic Removal Units were not working properly. Tribunal directed dismantling of hand pumps with concentration of Arsenic beyond permissible limits.

The tribunal noted that the subject of regulation and control of groundwater management have been held to be covered by Entry 13 of List I as these subjects covered by international treaties.

Having regard to the fact that more than 1 Crore population of the country is affected by the Arsenic contaminated water which is carcinogenic, issue of making available potable drinking water to the said population is an inalienable constitutional duty for which the Central Government, as well as the States, have to make all possible efforts.

“Arsenic is one of major public health concern identified by WHO. Under the new 2030 Agenda for Sustainable Development, the indicator of “safely managed drinking water services” calls for tracking the population accessing drinking water which is free of faecal contamination and priority chemical contaminants, including arsenic.”

Further, the bench stated that the existing plan of action needs to be relooked as it has quite relaxed timelines and the strategies needs to redrawn by a suitable mechanism because of urgency in the matter. This needs to be monitored by Central Government on war footing to enforce Fundamental Right to access potable drinking water which is part of ‘Right to Life’ under the Constitution of India. [Sunita Pandey v. Union of India, 2019 SCC OnLine NGT 277, decided on 11-09-2019]

OP. ED.

Introduction

On the whole technology has been a powerful force in the development of civilisation, all the more so as its link with science is forged. In today’s world, technology is a complex social enterprise that includes research, design and crafts but also manufacturing. Technology extends our abilities to change the world. We use technology that tries to change the world to suit us better. But the result of changing the world is often complicated and unpredictable. They can include unexpected benefits, costs, and unexpected risks.

The commercialisation of pharmaceuticals has led the corporation to seek patent protection for their pharmaceuticals inventions. Pharmaceuticals help mankind in manifold respects. In the areas of health sector due to inventions made by the pharmaceutical industries, the human life and standard of living has improved alarmingly. However, in the modern intellectual property era, where it gives exclusive right to inventor to exploit his invented technology, it is becoming a cost affair concept and it is not in the hands of a common middle class man.

Intellectual property law regulates the creation, use and exploitation of mental as well as the creative labour.[1] Patent is one of the prominent among all the intellectual property rights. In the modern scientific era, patent is proved to be most used or abused intellectual property. It is expected that grant of patent will reward to original creativity and would thereby foster advanced research and development leading to further inventions and progress.  However, more often the patent rights may be subject to abuse by the patent owner.[2]

Drug patenting is the grant of negative right to the holder which excludes others from right of manufacturing of that drug. Monopoly rights granted by IPRs were regarded as crucial to prevent the developing countries from further undergoing the “catching-up” process towards industrialisation based on imitating and copying technologies, as the developed countries themselves had done. In other words, IPR protection was a tool to guarantee the comparative advantage that had so far ensured the developed countries technological supremacy.[3]

Affluent societies are spending vast sums of money understandably on the search for new products and processes to alleviate suffering and to prolong life. In the process, drug manufactures have become a powerful industry. The situation was furthermore complicated after the TRIPS agreement which grants patent to both the product as well as the process as contrast to earlier process protection. The product patent will grant absolute protection of the product while process patent will provide protection to the technology and method of manufacture. Prior to the implementation of the TRIPS agreement various developing countries did not grant patent protection to pharmaceuticals as it was incumbent for the promotion of access to drugs at competitive price. Assenting to TRIPS provisions by recognising and strengthening protection of IPRs on pharmaceutical products and processes will lead to many hardships for developing countries. Implementation of the TRIPS agreement will consequently lead to high drug prices, low access and a weakening of national pharmaceutical industries. The current legal scenario is evidently helping the pharmaceutical industry to flourish in India.

The author opts for the study of Indian patent law as how it is in conflict as well as in sync with the international agreement of TRIPS, that is, the Agreement on Trade-Related Aspects of Intellectual Property Rights, signed by the members of World Trade Organisation. Keeping in view the international obligations, the researcher will address two major issues, what are the repercussions of complying TRIPS on pharmaceutical patenting and the repercussions of TRIPS on public access to health.

Public Health VIS-à-VIS Pharmaceuticals Patent

(i) Right to Health as Fundamental Rights

It is also pertinent to note that Article 21 of our Constitution guarantees right of life, which further includes right to good health. The courts through judicial pronouncements concluded that right to life includes right to health and “access to medical treatment” as well.[4] The Government must make every effort to provide access to the life saving drugs to its citizens.[5] The State is under constitutional obligation to see that there is no violation of fundamental right of any person.[6] The Preamble and the Directive Principles of State Policy (DPSP) of our Constitution need policies in order to balance social and economic rights. So, while formulating patent legislations the balance must be made between public health and the economic interests of pharmaceutical industries.

According to the Ayyangar Committee Report[7], India being a developing nation, grant of patent confers monopolistic rights which will deny major population of our nation from access to medicines. So policies which grant monopolistic rights violate the Preamble and also the fundamental rights guaranteed under Article 21 of our Constitution. Meeting the needs of its population came before meeting the needs of foreign innovators. As quoted by the former Prime Minister of India, Indira Gandhi in the World Health Assembly in 1982, The idea of a better ordered world is one in which medical discoveries will be free of patents and there will be no profiteering of life and death.

Affluent societies are spending vast sums of money understandably on the search for new products and processes to alleviate suffering and to prolong life. In the process, drug manufactures have become a powerful industry. My idea of a better ordered world is one in which medical discoveries would be free of patents and there would be no profiteering from life or death.

(ii) Patent and  Right to Health

Health is a basic human right and access to medicine is a basic tool to ensure health. However, the right as well as the means to secure the same are facing a major issue in the current regime. Pharmaceutical patent play a major role in access to medicine in order to guarantee health.

It has been argued that a fully functional patent system would result in an inverse relationship between the cost of such products and affordability of access. This has led some to suggest that the global intellectual property system may be facing a crisis of public legitimacy as patents may be blocking the access of ordinary people to medicines and their “right to health”.

Impact of TRIPS on Pharmaceutical Patents

One of the significant and fundamental changes in the global trade policy is set out by the Uruguay Round of trade negotiations, with the commitment by the World Trade Organisations member to comply with the requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which lays down minimum standard of protection for intellectual property rights and their enforcement, which are mandatory for WTO member countries for implementation. The TRIPS agreement is the most comprehensive multilateral agreement on intellectual property which in its clear terms specifies the idea of patentable subject-matter along with substantive and procedural aspects of patentability.[8]

(iii) Objectives of TRIPS

The prime objective of TRIPS is the protection and enforcement of intellectual property rights which will contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) attempts to strike a balance between the long-term social objective of providing incentives for future inventions and creation, and the short-term objective of allowing people to use existing inventions and creations.

The introduction of patent to pharmaceutical industries has provided incentive to the private sector in the area where they are granted.  In the pharmaceutical sector, the private health sector finds them indispensable.[9] One of the advantages for grant of patent to pharmaceutical industries is that it motivates the private players to indulge themselves more in research and development for finding cures for the disease prevalent in developing countries.[10] Invention and creativity in themselves should provide social and technological benefits. Intellectual property protection encourages inventors and creators because they can expect to earn some future benefits from their creativity. This encourages new inventions, such as new drugs, whose development costs can sometimes be extremely high, so private rights also bring social benefits.[11] With such broad objective in consideration, the pharmaceutical patents was made compulsory under TRIPS agreement in member countries of WTO.

(iv) TRIPS not a Beneficial Bargain

However, contrary results have been manifested. Instead of welcoming TRIPS regulation, developing countries have objected the implementation of the same. The developing and the least developed countries did not consider TRIPS to be a favourable negotiation as regime will consequently hike the prices of drugs which will ultimately make the drugs inaccessible to their citizens. Although TRIPS agreement may also lead to increased research on diseases common in developing countries, these benefits can be obtained in alternative ways, without high costs. Thus, TRIPS agreement is not in the national interest, hence it is not a beneficial bargain.[12]

The legislature enacted Patents Act, 1970 which significantly favoured the Indian player as well the poor sections of the society, as the Indian legislation only recognised process patent and not the product patent. This also resulted in the decline of share of multinational firm as the pharmaceutical companies based on developing countries were expecting an increase in sales and profits by the grant of worldwide patent. Pursuant to this, the patent applications filed by foreign entities decreased from 4248 in 1968 to 1010 in 1979.[13] It also resulted in the rise of generic drug manufacturing industry and a reduction in drug prices in India.[14] The domestic players were granted a rapid boost to reproduce and market the newly invented drugs in the Indian market by merely changing the process of production. With such prevailing circumstances, Indian pharmaceutical managed to produce drugs at lower price, thus making the drugs available for the poor sections of society.

However, this smooth functioning of system was interfered with TRIPS agreement. All the countries who are the members of WTO were compelled to implement TRIPS as a result of the dispute settlement body of WTO. India was initially reluctant but India was forced to implement the same, when US complained against India that it was not implementing the TRIPS properly by not providing an appropriate procedure for the filing of patent application and secondly, by not providing the exclusive marketing rights. Consequently, India changed the patent law in 2005. This instance manifests that complying with TRIPS is not a choice rather it is a matter of compulsion.

During the pre-TRIPS regime the patent protection granted was relatively less stringent which was far better as the accessibility and availability of medicine was not a problem but the post-TRIPS scenario, the medicines being priced beyond the reach of the poor, working as detrimental to their interest and causing a serious loss as now they cannot obtain new medicines that they could have in the pre-TRIPS era.

Ensuring Right To Health under Current Patents Regime 

Although, TRIPS is not seen as a beneficial bargain, it cannot be criticised thoroughly also. Various clauses of the agreement (Articles 7, 8, 27, 30 and 31) reflects liberal treatment towards the developing nations and seeks to achieve a balance between rights and obligations thereby driving a way towards public policy goals including access to essential drugs.

(i) Article 7 of TRIPS tries to maintain the balance between innovation and social and economic welfare. Intellectual property rights should be regulated in such a way that it should contribute to the promotion of technological innovation, and similarly, it should be transferred in a manner conducive to the social and economic welfare.

(ii) Article 8 provides autonomy to the States that they can adopt measures necessary to protect public health and to promote the public importance in sectors of vital importance to their socio-economic and technological development.[15]

(iii) Article 27(2) allows a State to restrict the patentability of inventions on various grounds such as, threat to human life or health.

(iv) Article 30 of Trips provides that the WTO members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with the normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, provided that the legitimate interests of third parties have been taken into consideration.

(v) Article 31 lays down a list of provisions applicable in all situations where the law of a WTO Member country permits use of the subject-matter of the patent without authorisation of the patent-holder.[16]

TRIPS and Patent Exclusions

The Patents Act should interpret the concept of exclusions from patentability through the literal rule of interpretations. The literal rule always suggests the human right dimension to the exclusions. The ideals of public health and social welfare in consonance with advancement in technology enshrined in the Constitution is given due importance.

(i) Compulsory Licensing

With the introduction of a product patent regime in 2005 for pharmaceuticals and the consequent increase in patent scope thereof, concerns of compulsory licensing have assumed a great significance in India.[17] Compulsory licensing is defined generally as the granting of a licence by a Government to use a patent without the patent-holder’s permission.[18] Compulsory licence is an involuntary contract between a willing buyer and an unwilling seller imposed or enforced by the law.[19] The TRIPS agreement allows compulsory licensing as part of the agreement’s overall attempt to strike a balance between promoting access to existing drugs and promoting research and development into new drugs. But the term “compulsory licensing” does not appear in the TRIPS agreement. Instead, the phrase “other use without authorisation of the right holder” appears in the title of Article 31. Compulsory licensing is only part of this since “other use” includes use by Governments for their own purposes. Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking into account the legitimate interests of third parties.[20] Compulsory licensing is when a Government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patent-protected invention itself. It is one of the flexibilities in the field of patent protection included in the WTO’s agreement on intellectual property — the TRIPS.[21]

The effort of the Government of India to provide a National IPR Policy in 2016 has provided an impetus in enabling “strong and effective IPR laws, which balance the interests of rights owners with larger public interest”.[22]

Further, amendment of 2017 enlarges the scope of compulsory licence as, if any developing country needs to turn to the option of compulsory licensing to produce needed affordable pharmaceuticals, producers overseas can step up and supply that need, even if a compulsory licence is needed in that country.  It is therefore a compulsory licence especially for production in one country, for export, to meet the public health needs of one or more other countries.[23] The rational justifying the idea of compulsory licence is that, patent so granted should not impede protection of public health and should act as an instrument to promote public interest in the sectors of vital importance for socio-economic and technological development of the nation. Patents are granted to make the benefit of the patented product at a reasonable price that is affordable to a large section of public. To access the benefits of patent compulsory licence can be granted.

(ii) Indian Legislation

Provisions related to the grant of compulsory licence in India are prescribed under Sections 82-94 (Chapter XVI) of the Patents Act, 1970, and Rules 96-102 (Chapter XIII) of the Patents Rules, 2003.[24] The Controller of Patents can issue compulsory licence under the following situations: compulsory licence under Section 84; licensing of related patents under Section 91; special provision for compulsory licences on notifications by Central Government under Section 92; and, compulsory licence for export of patented pharmaceutical products in certain exceptional circumstances under Section 92-A.

It is to be noted that Natco case[25] has pioneered a revolution in Indian pharmaceutical industry on working of patents and established a consonance between TRIPS and domestic laws. It has showcased that all the developing countries including India can use the TRIPS flexibility effectively to provide healthcare to public and also fulfil the constitutional obligation of right to life as envisaged under Article 21. Further, even the Bombay High Court agreed with the findings of the Controller General of Patents and the Tribunal regarding compulsory licensing under Section 84 of the Patents Act.

Other applications for compulsory licensing has also been filed, however, they were rejected by the Controller. One such application was filed by BDR Pharmaceuticals to manufacture the generic version of anti-cancer drug Dasatinib, patented by Bristol-Myers Squibb in India.[26] Further, in 2015, Lee Pharma filed an application for seeking the grant of a compulsory licence for manufacturing and selling the drug Saxagliptin used in the treatment of type II diabetes mellitus. Both applications were rejected as they failed to convince the Controller of Patents to make a prima facie case for the grant of compulsory licensing.[27]

Although the comparative study[28] concludes that compulsory licensing provisions in India are fully TRIPS compliant. However, compulsory licences are conceptually oxymoronic and fundamentally problematic.[29] Till date, only one compulsory licence has been granted in India. The prime reason that can be attributed for such restricted usage of flexibilities is the procedural complexities. The paper version of the concept is very overwhelming but the actual construction is in the hands of the patent office. To further strengthen the compulsory licensing provisions in India, there is a need of policy formulations.  A detailed guideline must be issued by Indian Patent office.

(iii) Doha Declaration and Public Health

As regards to the flexibilities various Governments extended their difficulty in interpreting these flexibilities and are also unsure of the boundary of protection of the rights. A large part of these flexibilities and right and obligations of the nations were settled at the Doha Ministerial Conference in November 2001. In the main Doha Ministerial Declaration of 14-11-2001, WTO member Governments stressed that it is important to implement and interpret the TRIPS Agreement in a way that supports public health by promoting both access to existing medicines and the creation of new medicines i.e. without obstructing the research and development. It emphasises that the TRIPS agreement should not restrict the nations to make legislations according to their socio-economic status. They have freedom to act in furtherance of their public health. TRIPS agreement posed a serious threat upon the developing nations as to the impediment caused by it on implementation of measure to promote access to affordable medicines in the interest of public health. While acknowledging the role of intellectual property protection “for the development of new medicines”, the Declaration specifically recognises concerns about its effects on prices.[30] “Doha Declaration”, which affirmed that public health took precedence over private patent rights, and reaffirmed the rights of Governments to use inbuilt WTO public health safeguards and other available measures to gain access to cheap medicines.[31] The Declaration also refers to the exhaustion of intellectual property rights, and therefore addresses the question of a member’s right to allow parallel imports. The Declaration makes it clear that the Trips agreement’s provisions on exhaustion in effect, leave each member free to establish its own regime without challenge but subject to the general TRIPS provisions prohibiting discrimination on the basis of a person’s nationality.[32]

It can be noted that, the TRIPS agreement and the Doha Declaration represent an attempt at the international level to achieve the sensitive task of balancing the need for providing incentives for research and development on the one hand and the need to protect public health interests of making access of drug reality, on the other. Despite having such mechanism the plight of developing countries is not solved. It is pertinent to note that many developing nations choose to issue the same, since it could be perceived as indifference towards intellectual property rights and thereby seriously weakening trade relations with other nations and might discourage investors.[33] It is a well-known fact that developing countries have strict patent regime much flexible in granting compulsory licensing, due to no or minimal incentives. Developed countries have no incentive to issue compulsory licence for exports. Such obstacles are rendering these flexibilities granted by TRIPS inaccessible.

Section 3(d), Patents Act, 1970: A Check on Evergreening

According to the WHO Report 60% of the essential life saving drugs manifests incremental innovations[34] which thereby enhances the need to encourage pharmaceuticals to invest more in innovation and to motivate investment in pharmaceutical industry; companies need to be rewarded with efficient patent protection. However, India places itself in quite different pedestal as reflected in Novartis AG v. Union of India[35] decision. India incorporated Section 3 of the Patents Act, 1970 which limits the scope of subject-matter eligible for patents which are not “inventions” within the meaning of Indian Patents Act. Section 3(d) was enacted primarily to prevent “evergreening” as it specifically rejects the patents for the mere discovery of a new form of known substance unless such product manifests significant enhanced therapeutic efficiency over the original and known substance. Section 3(d) does not allow patent protection for the mere discovery of any new form of known substance unless it enhances the efficacy of the original substance. It also acts as a bar on the new use patents by stipulating that mere discovery of any new property or new use of a known substance would not be patentable.

The term “evergreening” has not been defined in Patents Act, 1970 but this patent strategy consists of securing patents on minor, more often trivial, modifications of existing pharmaceuticals products or process in order to indirectly extend the period of patents protection over previously patented compounds.[36] It is an improper extension of life of patent beyond 20 years without actually being benefiting the pharmaceutical sectors. It is argued that, Novartis has attempted to do so by applying patent for beta form of the compound.

The 2013 judgment of Novartis AG v. Union of India[37] has a major implication in shaping the Indian legislation regarding patent protection. The Novartis pronouncement was made after considering many socio-economic factors. The Supreme Court upheld the intent of the legislature behind Section 3(d) of Patents  Act by providing strict and narrow interpretation of test mentioned therein. As mentioned by the Supreme Court that Section 3(d) was introduced to prevent evergreening, to provide access to the life saving drugs and to discharge their constitutional obligation of providing good healthcare to its citizens.[38] This shows that external economic and social factors are a priority for India.  But this pharmaceutical based specific test of therapeutic efficacy has brought various uncertainties. It is pertinent to note that, more uniform standard also provides a more predictable system for multinational pharmaceutical companies and allows them to invest in research and development aimed at addressing the health needs in developing countries. In 2003, WHO reported that more than 50% of the population in Asia and Africa did not have access to essential drugs.[39] Many factors contribute to this problem of limited access. One of the prime reasons could be the inadequate production and inadaptability to the specific local conditions that can be addressed if multinational corporations have the right incentives, such as patent protection for incremental pharmaceutical innovations in the developing country. The concern of high price of drug is also one of the facets but can be tackled by alterative measures like compulsory licensing.

Remaining Challenge

However, a subsequent study manifested that Section 3(d) has not been effectively utilised in preventing secondary patents from being granted.[40] It has also been noticed that there has been many inconsistencies in the way the “Novartis standard” is dealt with by the Patent Office.[41] Despite the fact that Section 3(d) is useful, it appears that Section 3(d) is being deliberately ignored by the Patent Controller’s office. As a result, it is not being applied correctly always.[42] Further, patent office has provided with unfettered discretion to devise its own policy for determining what constitutes significant enhancement of therapeutic efficacy and goes no further while defining what “therapeutic efficacy” actually means.

Conclusion

In developing countries like India, the way healthcare is organised has created condition for the gross violation of fundamental rights. The principal of justice is being violated when majority of the population do not have access to basic minimum healthcare. The coming future of public health in India largely depends upon the way pharmaceuticals industry responds to the TRIPS agreement. Manufacture of the patented product or application of the patented process in a local industry is generally called as “local working of patent”. Inventive activity  should result in innovation, which thereby leads to the development of technology as well as the industrial and economic welfare which is possible only through local working of patented inventions.

The monetary interest of big players in the drug industry remains under a constant threat to the access of life saving drug at moderate prices in India. Innovation and patent are two sides of the same coin. Innovations should be for serving the humanity especially in the field of medicine and patents should not have only one objective to amass profit.

Suggestions

(i) While recognising its international obligations, each country should shape its patent law according to its socio-economic needs and objectives including public health.

(ii) Moulding patent regulations to improve access to medicines, particularly by the poor is an important public health objective.

(iii) A health sensitive legal regime should allow Governments to act efficiently in cases of emergency, including epidemic crisis.

(iv) Government should create a framework for pharmaceutical patenting, especially regulating the accessibility of life saving drugs.

(v) Flexibilities of compulsory licence should be exercised in reality in developing and least developed nation. Easy process must be formulated for the grant of compulsory licensing.

(vi) Parallel import of some essential life saving drugs should be permitted.

With such reforms we can optimistically foresee a picture where picture people are walking out of the shadow of the incurable disease into the sunshine, singing merrily with smiles, on the green meadows, in refreshing woods or on the breezy beach.


 †  Fourth-year student, National University of Study and Research in Law, Ranchi.

[1]  Bishwanath Prasad Radhey Shayam v. Hindustan Metal Industries, (1979) 2 SCC 511: AIR 1982 SC 1444.

[2]  Kaur A., Chaturvedi R., Compulsory Licensing of Drugs and Pharmaceuticals: Issues and Dilemma, Journal of Intellectual Property Rights, 2015, Vol. 20, 279-287.

[3]Cecilia Oh, Trade-Related Aspects of Intellectual Property Rights and Pharmaceuticals, available at <https://www.globalpolicy.org/component/content/article/209/43854.html> (last accessed on 15-9-2018).

[4]  L.M. Singhvi and Jagadish Swarup (2006), Constitution of India, Vol. 1, Modern Law Publications, (2nd Edn. p. 1100).

[5]  All India Drug Action Network v. Union of India, (2011) 14 SCC 479.

[6]  People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.

[7] Report on the revision of the patent law, Rajagopal Ayyangar Committee, September 1959,  available at <http://nopr.niscair.res.in/bitstream/123456789/2027/1/JIPR%2013%285%29%20414-423.pdf>  (last Accessed on 1-10-2018).

[8]  Overview: the TRIPS Agreement, available at <https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm> (last accessed on 19-9-2018).

[9]  Ida Madieha Azmi and Rokiah Alavi, TRIPS, Patents, Technology Transfer, Foreign Direct Investment and the Pharmaceutical Industry in Malaysia, 4 Journal of World Intellectual Property, 2001 at 948.

[10]  Pradeep Agrawal and P. Saibaba, Trips and India’s Pharmaceutical Industry, 36 Economic and Political Weekly, 2001 at 37-87.

[11]TRIPS and Pharmaceutical Patents, available at   <https://www.wto.org/english/tratop_e/trips_e/tripsfactsheet_pharma_2006_e.pdf>.

[12]  Agrawal, Pradeep and P. Saibaba, TRIPS and India’s Pharmaceuticals Industry, Economic and Political Weekly, Vol. 36, No. 39, 2001, pp. 3787-3790.

[13]  Janice M. Mueller, The Tiger Awakens: The Tumultuous Transformation of India’s Patent System and the Rise of Indian Pharmaceutical Innovation, (2007) 68 U Pitt L Rev 491.

[14]  Ibid.

[15]  Art. 8 TRIPS.

[16]  Abhayraj Naik, Pharmaceutical Patents and Healthcare, 2 Socio-Legal Rev. 46 (2006).

[17]The “Compulsory Licence” Regime in India: Past, Present and Future, available at <https://www.researchgate.net/publication/228173575_The_’Compulsory_Licence’_Regime_in_India_Past_Present_and_Future> (accessed 25-9-2018).

[18]  Review of TRIPS, Int’l Trade Daily News (BNA) (Int’l Trade Rep.) at D7 (9-6-1999).

[19]  Arnold J.G., International Compulsory Licensing: The Rationales and the Reality, IDEA, The Journal of Law and Technology, 1993; 33(2): 349.

[20]  Art. 30 TRIPS.

[21]Compulsory Licensing of Pharmaceuticals and TRIPS, available at  <https://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm> (last accessed on 14-9-2018).

[22]  Objective 3: Legal and Legislative Framework of the National Intellectual Property Rights (IPR) Policy, <http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/National_IPR_Policy_08.08.2016.pdf>.

[23]  Ibid.

[24]  The Patents Act, 1970 (39 of 1970) [as amended by Patents (Amendment) Act, 2005 (15 of 2005)]

[25]  Bayer Corpn. v. Union of India, 2014 SCC OnLine Bom 963.

[26] BDR Pharmaceuticals International Pvt. Ltd. v. Bristol-Myers Squibb Company. CLA No. 1 of 2013, available at http://ipindia.nic.in/iponew/Order_30October2013.pdf (last accessed on 16-10-2018).

[27]  Lee Pharma Ltd. v. AstraZeneca AB, CLA No. 1 of 2015, available at <http://ipindia.nic.in/writereaddata/Portal/News/33_1_2-compulsory-license-application-20jan2016.pdf> (last accessed on 15-10-2018).

[28]  Compulsory Licensing of Pharmaceutical Patents in India: A Research Study, European Journal of Pharmaceutical and Medical Research,  2016, 538, available at <http://shodhganga.inflibnet.ac.in/bitstream/10603/130490/19/19_annexure.pdf> (last accessed on 26-9-2018)

[29]  Daniel R. Cahoy, Breaking Patents, 32 Mich. J. Int’l L. 461, 462 (2010).

[30]  Health Security and National Strategy Under the Patents Regime: Issues and Concern, CNLU LJ (6) (2016-17) 80.

[31]  For a scathing analysis of the actual US response to the mandate laid down at Doha, see, US Bullying on Drug Patents: One Year after Doha (Oxfam International Briefing Paper, 2002), available at: <http://www.oxfam.org/eng/pdfs/pp021112bullyingpatents.pdf> (last accessed on 15-9-2018).

[32]Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, available at <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_Tripse.htm> (last accessed on 14-9-2018).

[33]  5(d), Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, adopted on 14-11-2001, available at <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_Tripse.htm>, last accessed on 23-9-2018).

[34]  White & Case LLP and Dua Consulting, The Value of Incremental Pharmaceutical Innovation: Benefits for Indian Patients and Indian Businesses, Coalition for Innovation, Employment and Development June 2009, p. 4.

[35]  (2013) 6 SCC 1.

[36]  ICTSD, WHO, UNCTAD, Guidelines for the Examination of Pharmaceutical Patents: Developing a Public Health Perspective — A Working Paper (2006).

[37]  (2013) 6 SCC 1.

[38]  Id. 92-93, para 17.

[39] World Health Organisation (2004), The World Medicines Situation Report, available at <http://apps.who.int/medicinedocs/en/d/Js6160e/9.html#Js6160e.9> (last accessed on 16-10-2018).

[40]  Patralekha Chatterjee, Five Years After the Indian Supreme Court’s Novartis Verdict, available at  <http://www.ip-watch.org/2018/05/20/five-years-indian-supreme-courts-novartis-verdict> (last accessed on 20-10-2018).

[41]  Dr Feroz Ali , Pharmaceutical Patent Grants in India: How our Safeguards Against Evergreening have Failed, and Why the System Must be Reformed, available at <https://www.accessibsa.org/media/2018/04/Pharmaceutical-Patent-Grants-in-India.pdf> (last accessed on 20-10-2018).

[42]  Supra 34.

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

Introduction

The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

Under Indian law, Section 497 IPC  makes adultery a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. The offence of adultery under Section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.

Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the offence of adultery[3] which have been held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

 Penal Code

Section 497. Adultery. — Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.

 Criminal Procedure Code

Section 198. Prosecution for offences against marriage. —  (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

* * * * * * * * * *

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

* * * * * * * * * *

Classification of offence

The offence of adultery is non-cognizable (a case in which a police officer cannot arrest the accused without an arrest warrant). Also, it is a bailable offence.

Compoundable offence

The offence of adultery is compoundable by the husband of the woman with whom adultery is committed. Compoundable offences are those where the court can record a compromise between the parties and drop charges against the accused. [Section 320 CrPC].

Cases

Offence of adultery held unconstitutional: Understanding Joseph Shine v. Union of India

Sections 497 IPC and 198(2) CrPC insofar it deals with the procedure for filing a complaint in relation to the offence of adultery, are violative of Articles 14, 15(1) and 21 of the Constitution, and are therefore struck down as being invalid, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

This Note hereinafter discusses various observations of the Supreme Court in Joseph Shine case.

Object

The object of Section 497 is to preserve sanctity of marriage. The society abhors marital infidelity.[4]

However, this object does not find favour with the Supreme Court. In Joseph Shine, the Court observed thus:  

“… the ostensible object, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 at all …”

It was further observed that the sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow which is not penalised by the legislature. Also, if the husband consents or connives at the sexual intercourse that amounts to adultery, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.

History

Section 497 is a pre-constitutional law which was enacted in 1860. At that point of time, women had no rights independent of their husbands, and were treated as chattel or “property” of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft” of his property, for which he could proceed to prosecute the offender.

The first draft of the IPC released by the Law Commission of India in 1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence. The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Ingredients

In order to constitute the offence of adultery, the following must be established:–

(i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

After stating the ingredients as mentioned above, the Supreme Court in Joseph Shine goes on to discuss the vice of unconstitutionality inherent in the offence of adultery, as may be seen presently.

Who may file a complaint

Only husband of the woman with whom adultery is committed is treated as an aggrieved person and only he can file a complaint. However, in his absence, some other person who had care of the woman on his behalf at the time when such offence was committed may file a complaint on husband’s behalf if the court allows. [Section 198(2) CrPC]

In Joseph Shine, this was held to be arbitrary and violative of constitutional guarantees as is discussed below.

Woman has no right to file a complaint

A wife is disabled from prosecuting her husband for being involved in an adulterous relationship. The law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Who can be prosecuted

It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual. The adulterous woman is not even considered to be an abettor to the offence. Woman is exempted from criminal liability.

Presence of an adequate determining principle for such classification was doubted in  Joseph Shine.

Woman treated as property of man

Historically, since adultery interfered with the “husband’s exclusive entitlements”, it was considered to be the “highest possible invasion of property”, similar to theft.[5]

On a reading of Section 497, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 497 violates Articles 14 [Equality before law]

Section 497 treats men and women unequally, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery. Additionally, if there is “consent or connivance” of the husband of a woman who has committed adultery, no offence can be established. The section lacks an adequately determining principle to criminalise consensual sexual activity and is manifestly arbitrary and therefore violative of Article 14, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 198(2) CrPC also violates Article 14 [Equality before law]

Section 198(2) CrPC does not consider the wife of the adulterer as an aggrieved person. The rationale of the provision suffers from the absence of logicality of approach and therefore it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of Article 15(1) [Prohibition of discrimination]

Article 15(1) prohibits the State from discriminating on grounds only of sex. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, the offence of adultery discriminates between a married man and a married woman to her detriment on the ground of sex only. The provision is discriminatory and therefore, violative of Article 15(1), Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of dignity of woman and Article 21 [Right to life]

Dignity of the individual is a facet of Article 21. Section 497 effectually curtails the essential dignity which a woman is entitled to have by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women.

Besides, the emphasis on the element of connivance or consent of the husband tantamount to the subordination of women. Therefore, the same offends Article 21, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of right to privacy and right to choose

This Court has recognised sexual privacy as a natural right, protected under the Constitution. Sharing of physical intimacies is a reflection of choice. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is a denial of this right, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Married woman’s sexual agency rendered wholly dependent on consent or connivance of husband

A man who has sexual intercourse with a married woman without the consent or connivance of her husband, is liable to be prosecuted for adultery even if the relationship is based on consent of the woman. Though granted immunity from prosecution, a woman is forced to consider the prospect of the penal action that will attach upon the individual with whom she engages in a sexual act. To ensure the fidelity of his spouse, the man is given the power to invoke the criminal sanction of the State. In effect, her spouse is empowered to curtail her sexual agency, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 497 denudes woman’s sexual autonomy

Section 497 denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Opposed to “constitutional morality”

It is not the common morality of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires enforcement of the constitutional guarantees of equality before the law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Premised on sexual stereotypes

Section 497 is premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. The notion that women are ‘victims’ of adultery and therefore require the beneficial exemption has been deeply criticized by feminist scholars, who argue that such an understanding of the position of women is demeaning and fails to recognize them as equally autonomous individuals in society[6], Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Breakdown of marriage

In many cases, a sexual relationship by one of the spouses outside of the marriage may lead to the breakdown of marriage. But often, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Case of pending divorce proceedings

Manifest arbitrariness is writ large even in case of a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If during this period, she has sex with another man, the other man is immediately guilty of the offence, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Whether adultery should be treated as a criminal offence?

Adultery is basically associated with the institution of marriage. Treating adultery an offence would tantamount to the State entering into a real private realm. Adultery does not fit into the concept of a crime. It is better to be left as a ground for divorce, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

International perspective

International trends worldwide indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Why did the Supreme Court not wait for the legislature and itself strike down the provisions?

These sections are wholly outdated and have outlived their purpose. Maxim of Roman law, cessante ratione legis, cessat ipsa lex [when the reason of the law ceases, the law itself also ceases], applies to interdict such law. Moreover, when such law falls foul of constitutional guarantees, it is Supreme Court’s solemn duty not to wait for legislation but to strike down such law, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Adultery continues to be a ground for divorce

There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

———————————————————————-

Further Suggested Reading

  1. Kumar Askand Pandey B.M. Gandhi Indian Penal Code (IPC) [Buy Here]
  2. C.K. Takwani – Indian Penal Code (IPC) [Buy Here]
  3. Surendra Malik and Sudeep Malik – Supreme Court on Penal Code Collection by Surendra Malik and Sudeep Malik [Buy Here]
  4. Dr. Murlidhar Chaturvedi – Indian Penal Code (Hindi) [Buy Here]

† Assistant Editor (Legal), EBC Publishing Pvt. Ltd.

[1] The New International Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.).

[2] Law Commission of India, 42nd Report, The Indian Penal Code, June 1971.

[3] V. Revathi v. Union of India, (1988) 2 SCC 72.

[4] Malimath Committee Report on Reforms of Criminal Justice System, March 2003, Vol 1.

[5] R v. Mawgridge, (1706) Kel 119.

[6] Malimath Committee Report on Reforms of Criminal Justice System, March 2003, Vol 1.

Image Credits: ndtv.com

Case BriefsHigh Courts

Uttaranchal High Court: A division bench comprising of Manoj Kumar Tiwari, J. and Rajiv Sharma, ACJ., directed the state to implement schemes for the welfare of transgenders.

Petitioners who are transgender were facing interference in their area of operation to which they have sought protection with respect to life and liberty. Hence the Court took judicial notice of the matter as it revolved around right to life by providing a dignified life to the petitioners owing to the miseries faced by them in order to bring them at par with other people in the society by paving their way to the mainstream.

The Supreme Court, in the case of National Legal Services Authority v. Union of India, (2014) 5 SCC 438 has held the word “person” in Article 14 of the Constitution of India was not restricted to male and female and it includes even Hijras/Transgender persons who were also entitled to equal protection of laws and equality in all spheres. They were entitled to benefits as Socially and Educationally Backward class citizens including reservation in public employment. Gender identity was part of the right to dignity as well as personal autonomy and self-expression and thus declared that Hijras, Eunuchs be treated as the third gender giving them a legal recognition.

It was stated that the State Government, till date, has not implemented the directions issued by the Supreme Court. It was also brought to the Court’s notice that the State of Odisha has framed a scheme for Promotion of Transgender Equality & Justice. The scheme speaks of medical assistance to the parents of transgenders.

In the light of the facts and the issues stated the Court gave the following directions:

  • State Government shall provide reservation in admission in educational institutions and for public appointments along with social welfare schemes for the betterment of transgenders by framing the same.
  • Frame a scheme of housing for transgenders by giving suitable accommodation.
  • Provide financial assistance to the parents of transgenders with scholarship to transgenders up to post-graduate level.
  • Constitute a welfare board with representation given to transgenders in the board.
  • Provide free medical access to transgenders in all the hospitals.
  • Transgenders shall have free access to public institutions, public places.
  • Provide separate toilets in every public utility buildings.
  • Frame law/scheme to ensure that no transgender is separated from the parents/guardians and family
  • Criminal cases shall be registered against the persons who forcibly remove transgender from their parents/guardians and family.
  • All the transgenders in the State were ordered to be registered by the District Magistrates to recognize them as such.
  • There shall not be any discrimination against transgenders qua employment or occupation. Also, They should not be treated unfairly and have an absolute right, as enshrined under Article 21 of the Constitution of India to maintain privacy and to live with dignity.

Accordingly, the writ was disposed of. [Rano v State of Uttarakhand, WP (Crl.) No. 1794 of 2018, order dated 28-09-2018]

Case BriefsSupreme Court

Life commands self-respect and dignity.

                                        -Dipak Misra, CJ

Supreme Court: The bench comprising of Dipak Misra, CJ and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. awarded a compensation of Rs 50 lakhs to the appellant while disposing of an appeal filed against the judgment of a Division Bench of Kerala High Court whereby the decision of the Single Judge quashing the order of State Government declining to take action against the erring police officers concerned was reversed.

In January 1994, a criminal case was registered against one Mariam Rasheeda, a Maldivian National under Section 14 of the Foreigners Act, 1946 and Paragraph 7 of the Foreigners Order. While being interrogated by Kerala Police and Intelligence Bureau, she made certain confessions which led to registration of another criminal case under Sections 3 and 4 of the Indian Official Secrets Acts, 1923 alleging that certain official secrets and documents of Indian Space Research Organisation (ISRO) had been leaked out by scientists of ISRO. In November 1994, investigation of both the cases was taken over by the Special Investigation Team headed by Respondent 1. Pursuant to this, the appellant –  erstwhile scientist at ISRO – was arrested along with other persons. In December 1994, the investigation was transferred to the Central Bureau of Investigation. After the investigation, the CBI submitted a report before the Chief Judicial Magistrate, Ernakulam, under Section 173(2) CrPC stating that the evidence collected indicated that the allegations of espionage against the scientists at ISRO, including the appellant herein, were not proved and were found to be false. This report was accepted vide court’s order and all the accused were discharged. In June 1996, State of Kerala, being dissatisfied with the CBI report, issued a notification and decided to conduct re-investigation of the case by the State Police. Subsequently, the Supreme Court in K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223 quashed the notification of the State of Kerala for re-investigation holding that the said notification was against good governance and consequently, all accused were freed of charges. Another writ petition was filed before the High Court wherein a Single Judge quashed the order dated 29.06.2011 passed by the State of Kerala whereby the Kerala Government had decided not to take any disciplinary action against the members of the SIT (erring police officers) and consequently remitted the matter to the State of Kerala for reconsideration and passing further orders within three months. The said decision was reversed by a Division Bench vide the order impugned. It was urged by the appellant that the prosecution launched against him by the Kerala police was malicious on account of two reasons. Firstly, the said prosecution had a catastrophic effect on his service career as a leading and renowned scientist at ISRO, thereby smothering his career, lifespan, savings, honour, academic work as well as self-esteem and consequently resulting in total devastation of the peace of his entire family which is an ineffaceable individual loss. Secondly, the irreparable and irremediable loss and setback caused to the technological advancement in Space Research in India.

The Supreme Court, at the outset, observed that to say the least, the delineation by the Division Bench was too simplistic. It was stated that the entire prosecution initiated by the State police was malicious and caused tremendous harassment and immeasurable anguish to the appellant. It wasn’t a case where the accused was kept under custody and, eventually, after trial, he was found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to CBI. After comprehensive enquiry, the closure report was filed. An argument was advanced by the respondents that the fault should be found with CBI but not with the State police, for it had transferred the case to the CBI. The said submission was noted only to be rejected. The criminal law was set in motion without any basis. It was initiated on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. According to the Court, such situation invited the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity. The Court made references to D.K. Basu v. State of W.B., (1997) 1 SCC 416; Joginder Kumar v. State of U.P., (1994) 4 SCC 260; Kiran Bedi v. Committee of Enquiry, (1989) 1 SCC 494; etc. In the words of the Court, reputation of an individual is an insegregable facet of his right to life with dignity. In the final analysis, the Court held that it can be stated with certitude that the fundamental right of the appellant under Article 21 had been gravely affected. There could be no scintilla of doubt that the appellant, a successful scientist having national reputation, was compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody made the appellant suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. Keeping in view the report of the CBI and the judgment in K. Chandrasekhar, The Court ordered the State to pay Rs 50 lakhs as compensation to the appellant. It was further held that the obtaining factual scenario calls for constitution of a Committee to find out ways and means to take appropriate steps against the erring officials. For the said purpose, the Court constituted a Committee which shall be headed by Justice D.K. Jain, a former Judge of Supreme Court. The Central Government and the State Government were directed to nominate one officer each so that apposite action could be taken. The Committee shall meet at Delhi and function from Delhi. However, it has option to hold meetings at appropriate place in the State of Kerala. The appeal was accordingly disposed of. [S. Nambi Narayanan v. Siby Mathews,2018 SCC OnLine SC 1500, decided on 14-09-2018]

Case BriefsSupreme Court

Supreme Court: Navin Sinha, J. speaking for himself and A.M. Khanwilkar, J. delivered a decision in a criminal appeal wherein the appellant, a convict under Sections 302 and 324 IPC, was acquitted giving him benefit of doubt on grounds of insanity at the time of the commission of the act.

The appellant was convicted of murder of one Harish Chandra Chauhan. On the day of the incident, he picked up a sickle from a shop and started attacking the people around, and when the deceased came to the rescue of a person being attacked, the appellant rained blows on his back and stomach which resulted in his death. The petitioner tried to flee but was apprehended by the villagers and handed over to the police. The trial court while finding guilt of the appellant, did not accept his plea of unsoundness of mind. He was convicted for the offences mentioned above. The Bombay High Court declined to interfere.

The Hon’ble Supreme Court observed that the prosecution deliberately withheld relevant evidence with regard to appellant’s mental illness and his mental condition during the commission of the act. It was held that both the trial court and the High Court completely failed to discuss this lacuna in the prosecution case. The Court referred to Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495 while noting that in such cases, the accused has only to prove a preponderance of probability. The medical records of the appellant, the fact of the psychiatric treatment even in the prison for continuing ailment, statement of the witnesses, etc., all pointed towards the fact that the appellant was not of sound mind and he suffered insanity while the act was committed. The Court was of the view that the burden of proof under Section 105 of Evidence Act was satisfied by the appellant; by a preponderance of probability, he was able to raise a doubt regarding his mental condition at the time of the act. Accordingly, giving him the benefit of Section 84 IPC, the Court allowed the appeal and acquitted the appellant. Further, it was considered that necessary directions should be given under Sections 335/339 CrPC for proper care and support to the appellant befitting his right to life under Article 21 of the Constitution of India. [Devidas Loka Rathod v. State of Maharashtra,  2018 SCC OnLine SC 645, decided on 02-07-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): The appellant conducted blood group determination test 8 times in both government and privately-owned hospitals, situated in Agra as well as Delhi. Some tests returned his result as blood group ‘B-positive’ while others as ‘B-negative’. The appellant was perplexed and approached the Medical Council of India (“MCI”) under Right to Information Act (“Act”) to ascertain conclusively his blood group, specifically whether he was Rh-positive or Rh-negative.

The Public Information Officer (“PIO”) of the MCI responded saying that the information sought did not qualify as ‘information’ defined under Section 2(f) of the Act, which reads:

“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”

This argument by the respondent-MCI was accepted by the First Appellate Authority (“FAA”) who deemed the PIO’s reply appropriate.

The appellant approached the Central Information Commission (“CIC”) praying for relief, citing the reason that the matter pertained to his health and knowledge of his blood group is essential in case of an emergency where blood transfusion might be required. He, therefore, claimed a right to be informed of his correct blood group.

The MCI maintained that apart from the fact that the solicited information did not fall under the purview of the Act, but the respondent MCI neither possessed such information nor had any jurisdiction or power to obtain such information. The MCI also suggested that the All India Institute for Medical Sciences (“AIIMS”) may be approached to carry out suitable research on the same and put to rest the appellant’s queries.

The CIC held that the clarifications sought by the appellant can be construed as information as different pathology laboratories have provided opposite results and the appellant only wished to obtain concrete and reliable information in case of medical emergency, which is also a part of his Righto Life under the Constitution.

The CIC also observed that as a responsible and sensitive PIO, the respondent ought to have forwarded the appellant’s query to the AIIMS under Section 6(3) of the Act. Hence the respondent was directed to send the documents furnished by the appellant to the AIIMS, which was, in turn, requested to carry out necessary tests and provide the requested information. The appeal was accordingly disposed of. [Soni S Eramat v. Medical Council of India, File No. CIC/MEDCI/A/2017/120881, decided on 10.05.2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of SC Dharmadhikari and Bharati H. Dangre, JJ issued a writ of habeas corpus ordering the release of the petitioner’s son, who had been illegally detained in unlawful continued judicial custody for more than sixty days. The detenu had been arrested by the Central Bureau of Investigation, Economic Offences Wing on 19-09-2017.

Following multiple remand applications requesting extension of custody of the detenu, the total detention period exceeded the maximum limit of sixty days on 23-11-2017. Under Section 167(2) of the Code of Criminal Procedure, a Judicial Magistrate is entitled to authorize a detention not exceeding 60 days for all offences, unless the offence is punishable with death, imprisonment for life or imprisonment for a period of at least ten years.

Though the prosecution contended that the charges framed against the detenu during the course of investigation involved offences that were punishable with death, with life imprisonment or with imprisonment for at least ten years, the Court held the detention beyond the period of 60 days to be in contravention of S. 167(2) CrPC and also violative of the right to life and personal liberty enshrined under Article 21 of the Indian Constitution. [Rajkumar Bhagchand Jain v. Union of India,  2017 SCC OnLine Bom 9435, order dated 08-12-2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal, Principal Bench: In the wake of smog engulfing the NCR for days, posing a serious environmental hazard, the NGT banned all construction work in the area till the next date of hearing. The Tribunal stated that the right to decent and clean environment is a fundamental right under Article 21 of the Constitution of India and that Article 48-A read with Article 21 mandates the State to protect the environment and Article 51-A(g) imposes a fundamental duty upon the citizens to protect the environment.

The Tribunal took note of the statistical data available on suspended particulate matter (SPM) in the NCR for 08-11-2017 and 09-11-2017.On 08-11-2017, the PM10 value was 986 mcg (micro grams) per cubic metre against the prescribed value of 100 mcg per cubic metre and the PM2.5 value was 425 mcg per cubic metre against the prescribed value of 60 mcg per cubic metre. The values were 1136 mcg per cubic metre and 760 mcg per cubic metre respectively on 09-11-2017. The Tribunal also noted that all parameters including SO2, NO2, CO and Ozone were not tested by the Central Pollution Control Board and Delhi Pollution Control Committee, directing the boards to submit reports containing all parameters on the next date of hearing. Citing the doctrines of preventive and precautionary principles with emphasis on inter-generational equity, the Tribunal stated that the doctrines have been violated at all relevant stages and that no party, statutory body or even the citizens can be mere spectators to the environmental crisis at hand.

The Tribunal pointed towards it’s directions in Vardhman Kaushik v. Union of India, 2016 SCC OnLine NGT 4176, on 10.11.2016 stating that the steps that were required to be taken in long and short term remained unexecuted and non-complied with. Failing to find a single plausible explanation as to why the directions in the aforesaid order were not complied with, the Tribunal clearly stated that fundamental rights, particularly the ones which relate to right to life cannot be subjected to economic limitation.

Resultantly, the Tribunal, in an attempt to alleviate the harmful effects of smog and pollution, banned all construction activity in the entire NCR region till the next date of hearing. The Tribunal added that labourers shall not be denied their daily wages. Further, all industrial activities which release emission were also prohibited till the next date of hearing. Further, all the Corporations dealing in health, environment and development were directed to constitute teams to visit different areas under their jurisdiction to check burning of waste or any material in any part of NCR. [Vardhaman Kaushik v. Union of India, 2017 SCC OnLine NGT 7584, order dated 09.11.2017]

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: Paying heed to the grievance of a 35-year-old woman, a victim of sexual assault, who sought for termination of pregnancy on the ground that she is HIV positive, the 3-judge bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ directed the Medical Board at AIIMS, New Delhi to examine the petitioner and submit a report to the Court on the next date of hearing i.e. 08.05.2017 so that attempts can be made to save the life of the petitioner.

Earlier, the Patna High Court had directed the Medical Board at Indira Gandhi Institute of Medical Sciences, Patna to examine the petitioner. The report of the said Board stated that a major surgical procedure was required. The High Court hence held that the Medical Board report has stated that it would be unsafe to the life of the petitioner and further there is compelling State’s responsibility to keep the child alive.

 Stating that the quintessential purpose of life, be it a man or a woman, is the dignity of life and all efforts are to be made to sustain it, the Court said that a woman, who has already become a destitute being sexually assaulted and suffering from a serious medical ailment, should not to go through further sufferings. [Indu Devi v. State of Bihar, 2017 SCC OnLine SC 560, order dated 03.05.2017]

 

Case BriefsHigh Courts

Madras High Court: Deliberating upon a relevant issue as to whether, “a minor daughter’s right to life under Article 21 of the Constitution includes the right to create a life”, the Bench of Dr. S. Vimala, J., observed that it is a woman’s choice and her autonomy to decide what to do with her body,  including conceiving a child and retention of pregnancy. With this observation, the Court thus held that considering the right to life, which includes the right to create a life, the right to dignity, the right to autonomy and bodily integrity, the Court cannot order the abortion of the foetus against the wishes of the victim girl as in the present case.

The present writ petition came up whereby which the petitioner (father) pleaded before the Court to direct the government hospital to medically terminate the pregnancy of his daughter under Section 3 of the Medical Termination of Pregnancy Act as the continuance of such pregnancy would cause grave physical and mental agony to his daughter, however the daughter was reluctant to abort the foetus and expressed her desire to continue with the pregnancy.

Examining the contentions of the parties, the Court first chose to look into the matter as to whether the daughter was a minor or major on the date of the alleged occurrence and on the date of production before the Court. Perusing the evidences, the Court decided that at the time of the sexual intercourse and conception the girl was a minor (17 years), however she attained majority on the date of her production before this Court. The Court further observed that India has ratified the United Nations Convention on the Rights of the Child (UNCRC) which places importance upon the decision-making ability of a child in matters affecting him/her directly or indirectly. Furthermore the Court highlighted the controversies surrounding certain provisions of the Protection of Children from Sexual Offences Act, 2012 and the disadvantages of teenage pregnancies. However, upon observing that the girl has formed a positive opinion regarding continuing her pregnancy, the Court declined to pass any order regarding termination of her pregnancy. The Court also observed that controversies, conflicts and constitutional validity of the POCSO Act can only be decided by the Division Bench of this Court as per the considerations of the Chief Justice of this Court. [Marimuthu v. The Inspector of Police, WP (MD) No. 12212 of 2016, decided on 19.09.2016]