July 2021 – Page 28

We are looking for a highly motivated professional for the role of Nodal Contact Person & Grievance officer for WhatsApp in India. This person will coordinate with law enforcement agencies in India, including facilitating timely responses to valid legal requests under applicable law and our policies. This person shall also oversee the Company’s redressal and response to user complaints and grievances. The ideal candidate will be an experienced professional with significant prior experience in working with and/or within law enforcement agencies and managing user grievance programs. This person would be passionate about WhatsApp and an avid user of the app. Note: We are monitoring closely the current health situation related to COVID 19 and will adhere to public health directions on the lockdown. As a result, we may need to adjust recruiting, hiring, and timing in light of this situation to ensure appropriate review and safety protocols.Nodal Contact & Grievance Officer, WhatsApp India Responsibilities

Responsibilities

We are looking for a highly motivated professional for the role of Nodal Contact Person & Grievance officer for WhatsApp in India. This person will coordinate with law enforcement agencies in India, including facilitating timely responses to valid legal requests under applicable law and our policies. This person shall also oversee the Company’s redressal and response to user complaints and grievances. The ideal candidate will be an experienced professional with significant prior experience in working with and/or within law enforcement agencies and managing user grievance programs. This person would be passionate about WhatsApp and an avid user of the app. Note: We are monitoring closely the current health situation related to COVID 19 and will adhere to public health directions on the lockdown. As a result, we may need to adjust recruiting, hiring, and timing in light of this situation to ensure appropriate review and safety protocols.Nodal Contact & Grievance Officer, WhatsApp India Responsibilities

Responsibilities

Overseeing 24/7 coordination with law enforcement agencies while working with internal teams to respond to legal requests.
Maintaining high standards of judgement while handling numerous time-sensitive escalations with competing priorities.
Ensuring that law enforcement requests are reviewed and handled pursuant to applicable law and WhatsApp’s policies.
Providing regular feedback to internal teams regarding the company’s law enforcement operations in India, areas of concern for those agencies, and cybercrime trends and issues.
Coordinate with cross-functional teams to ensure timely processing of user complaints in accordance with WhatsApp’s internal policies and applicable law.
Advise cross-functional teams on matters of user grievances, redressal program, and process improvements to improve user experience and internal efficiencies.
Collaborate with relevant teams to support response to government inquiries related to user grievances.

Minimum Qualifications

Bachelor’s degree or equivalent
15+ years of related experience handling law enforcement matters or similar investigative experience with law enforcement or security agencies, including experience related to cybercrime and online investigations
Familiarity with the Indian legal system and protocols, including laws and procedures about legal requests related to online platforms
Experience of managing user complaints and grievances redressal programs
Ability and willingness to work off hours, including weekends and holidays, to support emergency matters and interact with globally-based company employees
Fluency in both English and Hindi (fluency in another Indian language is an advantage)

Preferred Qualifications

Experience and familiarity in the online world, including with internet technologies, cyber laws, security and privacy matters, online safety issues, cybercrime investigations, online content moderation, and related policy topics in India
Experience in reviewing, processing, and tracking legal documents (e.g., civil and criminal subpoenas, court orders, and search warrants)
Experience working within law enforcement authorities and/or security agencies
Experience working on a fast-paced team while exercising strong critical thinking skills, good judgment, agile prioritization, and steady presence of mind in a rapidly changing environment
Experience in analyzing and resolving multiple issues and challenges while meeting tight deadlines in a dynamic, start-up culture, working closely with multiple stakeholders
Willingness to travel frequently within India and occasionally outside the region once the COVID-19 situation resolves

Locations

Delhi

How to Apply?

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About the Institute:

The Gujarat National Law University (GNLU) is a public law school and a National Law University established under the Gujarat National Law University Act, 2003 in the state of Gujarat. The university is located at Gandhinagar, which is the capital of Gujarat and is located 23 kilometers north of the city of Ahmedabad.

The statute provides for the Chief Justice of India or a Senior Supreme Court Judge to serve as the Visitor of the university.

Theme:

It does not follow any particular theme. However, preference would be given to the submissions made pertaining to contemporary legal issues.

Eligibility:

It is open for academicians, practitioners, research scholars, undergraduate and postgraduate students.

Submission Guidelines:

All submissions must be accompanied by an abstract of not more than 250 words. Up to 5 keywords should also be provided.

Word Limit:

Articles (5000-8000 words, excluding footnotes).
Essays (3000-5000 words, excluding footnotes).
Book Reviews/Case Commentary/ Legislative Comments (1500-3000 words, excluding footnotes).

Formatting Guidelines:

The body of the manuscript must be in the font ‘Times New Roman’, font size 12, line spacing 1.5 and the text should be justified.
All footnotes must be in Font ‘Times New Roman’, font size 10, line spacing 1 and justified. All submissions must follow the ‘The Bluebook: A Uniform System of Citation (20th Edition)’. The authors may refer to The GNLU Law Review Citation Guide from here.
Non-conformity will be a ground for rejection.

How to Submit?

All submissions shall only be made at tglr[at]gnlu.ac.in with the subject ‘Manuscript Submission for Volume VIII – Issue II’.
Submissions must be made in Microsoft Office (doc./docx.) formats only.
The paper should be free from all grammatical and spelling errors.

Submission Deadline:

The deadline for making submissions is 31st August 2021.

General Instructions:

The contributions submitted towards publication in TGLR must not have been previously published or currently submitted for publication elsewhere.
The contributions shall be evaluated on the basis of originality, innovativeness, clarity, and technical correctness. Authors shall solely be responsible for the accuracy of statements in the article.

Contact Info:

E-mail ID: tglr@gnlu.ac.in
Dr. Anjani Singh Tomar, Editor-in-Chief, Email: atomar@gnlu.ac.in.
Preet Choksi: 9924113899
Karan Ahluwalia: 9810340006

Official Details:

CFP-TGLR-Vol-VIII-Issue-II Download

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About Caupa

Coupa Software (NASDAQ: COUP), a leader in business spend management (BSM), has been certified as a “Great Place to Work” by the Great Place to Work organization. We deliver “Value as a Service” by helping our customers maximize their spend under management, achieve significant cost savings and drive profitability. Coupa provides a unified, cloud-based spend management platform that connects hundreds of organizations representing the Americas, EMEA, and APAC with millions of suppliers globally. The Coupa platform provides greater visibility into and control over how companies spend money. Customers – small, medium and large – have used the Coupa platform to bring billions of dollars in cumulative spend under management. Learn more at www.coupa.com. Read more on the Coupa Blog or follow @Coupa on Twitter.
Do you want to work for Coupa Software, the world’s leading provider of cloud-based spend management solutions? We’re a company that had a successful IPO in October 2016 (NASDAQ: COUP) to fuel our innovation and growth. At Coupa, we’re building a great company that is laser focused on three core values:
1. Ensure Customer Success – Obsessive and unwavering commitment to making customers successful.2. Focus On Results – Relentless focus on delivering results through innovation and a bias for action.3. Strive For Excellence – Commitment to a collaborative environment infused with professionalism, integrity, passion, and accountability.

Responsibilities:

Source and build a text corpus of UCM language samples, for AI training purposes
Help to manage and track how the text corpus is growing in size, scope, and quality
Assist with UCM documentation
Assist with legal research tasks for UCM refinement and expansion
Assist with customer requests regarding UCM mapping expansion

Requirements:

3 to 5 years of experience in drafting, reviewing, classification and negotiating some commercial legal documents.
Professionally trained in legal matters, a degree in law
Demonstrated past experience performing research activities in the legal space
Experience drafting, reviewing and negotiating some commercial legal documents
Strong written language skills
Attention to detail
Good analytical & collaboration skills
Self-confidence in challenging professional environments
Experience in software and understanding of data modeling

How to Apply?

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CASE NUMBER

Special Leave Petition (Crl.) No. 6432 Of 2012

EQUIVALENT CITATIONS

(2012) 8 SCC 795, AIR 2012 SC 3316.

BENCH

P. Sathasivam and Ranjan Gogoi.

DECIDED ON

September 12, 2012

RELEVANT ACT/ SECTION

The Salt Cess Act, 1953.
Section 438 in the Indian Penal Code.
The Indian Penal Code.
The Special Courts Act, 1979.
Article 136 of the Constitution of India.
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Section 438 in the Code of Criminal Procedure, 1973

BRIEF FACTS AND PROCEDURAL HISTORY

In this case, the complainant was of a lower caste. She lived with her family. On 15.06.2012 they allowed the rain water accumulated in their field to flow to the field of the petitioner. The petitioner then abused on their caste and then assaulted her whole family by using stones, sticks, etc., the reason being that the complainant allowed the rain water to flow on their field. The complainant then on the same day filed an FIR against the petitioner. The petitioner along with the other accused members filed an anticipatory bail under section 438 of CrPC before the Additional Sessions Judge, who rejected their application for anticipatory bail. Then the petitioners moved the anticipatory bail to the High Court. The Hon’ble High Court allowed the anticipatory bail to 13 accused out of 15. The two petitioners moved to the Hon’ble Supreme Court of India. And the SC also rejected the application for anticipatory bail.

ISSUE BEFORE THE COURT

The main issue was that whether an accused charged with various offences under the IPC along with the provisions of the SC/ST Act is entitled for anticipatory bail (also called as pre-arrest bail) under Section 438 of the CrPC or not.

RATIO OF THE CASE

The Hon’ble Supreme Court of India rejected the application for anticipatory bail of the petitioners because the Section 18 of the SC/ST Act creates a bar over Section 438 of CrPC that denies the anticipatory bail for the person against whom the allegations has been filed under this Act and therefore no court can entertain such applications for anticipatory bail unless, the court prima facie finds that the offence made under the SC/ST Act is not made out.

DECISION OF THE COURT

The anticipatory bail is not maintainable in the cases of the offence committed under SC/ST Act as there is a bar under section 18 of this Act. Therefore the Hon’ble SC has held that the petitioners have committed the offence under SC/ST Act, and hence they are not entitled for release on pre-arrest bail.

The case analysis has been done by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Introduction

The concept of parliamentary privileges was taken from the British Constitution. Article 105 and 194 talk about privileges or advantages to the Member of The Parliament. Such provisions are crucial for the democratic functioning of the country. The main motive of these provisions in the constitution is to uphold the supremacy of The Parliament’s office and its members. But the President, who is an integral part of The Parliament, does not have parliamentary privileges. Initially, the constitution of India provides only two parliamentary privileges. In other privileges, they were to be the same as those of the House of Commons on its commencement date ( 26 January 1950 ) until The Parliament defines. The 44^th amendment act, 1978 states that the other privileges of each House of Parliament, its members, and its committees are those which we had on the date of commencement ( 20 June 1979) until The Parliament defines.

The main motive of this amendment was to make verbal changes by dropping a direct reference to the British House of Commons. The Parliament has not made any specific law to codify all the privileges till now.

History of Parliamentary Privileges in India

The Government of India Act of 1919 takes the first step to regulate parliamentary privileges in the country. The act provided limited Privileges to legislators in India. Freedom of speech for the members of the central legislature under the act. Freedom with so many limitations. Neither were any punitive powers conferred on the legislators nor was Freedom from Arrest provided. The act of 1935 also did not change anything materially. Legislators loudly protested against having no parliamentary privileges. But no attention was paid by the British Government of India. From 1919 to 1947, there was a lot of struggle between Indian legislators and the British Government for parliamentary privileges. But the battle was worth waging.

Privileges That Is Provides To Member of House Individually

They cannot arrest in civil matters only during the session,40 days before the beginning, and 40 days after the end of the session.
They have Freedom of Speech.
During the parliament
ary session, they can refuse to appear as a witness. And give pieces of evidence in a case that is pending in courts.
House of Parliament

Provides Privileges Collectively

It has the right to publish its debates, reports, and proceedings. Along with it, it also has the right to prohibit others. The 44^th amendment allows the press to publish the Report of parliamentary proceedings without prior permission. But in the case of Secret sitting, this amendment is not applicable.
It has the right to hold secret sittings to discuss some important matters and can exclude strangers from its proceedings.
It can make rules to regulate the conduct of its business and its procedure.
It can punish its member for the breach of privileges or its contempt by imprisonment, suspension, expulsion, or reprimand.
The court has no right to inquire into the proceedings of a house or its committees.
No person can be arrested and no legal process can serve within the boundaries of The Parliament without the permission of the presiding officer.

Breach of Privilege

When Rights of the House or the members individually are

Ignored or attacked any of the privileges, immunities, is called the Breach of Privilege. Likewise, disobedience to its authority, members, or officers is also punishable as Contempt of the House. Any act or omission that either hinders or obstructs the House of Parliament in the performance of its functions or hinders any member or officer of such a house in the execution of his duty or which tends to produce such result which is directly or indirectly considered as a Contempt of Parliament.

Landmark Judgments

P.V. Narsimha Rao v. State

In this case, some Members of Parliament take bribes to vote against Prime Minister P.V. Narsimha Rao against a no-confidence motion. Afterward, he was charged under the Prevention of Corruption Act and IPC. The question raised in this case was that under Article 105(2) does any parliament member have any immunity to protect himself in criminal proceedings against him? Thus the court interpreted the “anything” term in the broader sense and did not prosecute P.V. Narsimha Rao and hence dismissed the case.

Keshava Singh v. Speaker, Legislative Assembly

In this case, Keshava Singh, a non-legislative member of the assembly, printed and published a pamphlet. He was criticized for contempt and breach of Privileges by the speaker of the U.P legislative assembly speaker. The same day in the House, Mr. Keshava committed a Breach of Privileges by his conduct. The court held that it does not amount to contempt.

Sir John Eliot Case

In this case, the court of King’s Bench convicted Eliot for seditious speeches made in the House of Commons. The House of Lords reversed the decision. Afterward, Bills of Right laid down that the courts or any place outside The Parliament have no right to decide on speeches and debates or proceedings in The Parliament.

Tej Kiran Jain and others v. N. Sanjeeva Reddy and others

In this case, plaintiffs were disciples of Jagadguru Shankaracharya. But at the World Hindu Religious Conference, Jagadguru made certain remarks on untouchability. After a discussion takes place in Lok Sabha in which derogatory words are delivered against Jagadguru. His disciples filed a suit against six members. The Supreme Court dismissed the plea by giving reasons. Under Article 105(1), whatever happens in Parliament during sitting or in the course of business was immunized.

Conclusion

As under Article 105(3), The Parliament has powers to codify the privileges. But no laws have been enacted by the Parliament so far. The Judiciary and Legislature must work in cooperation for any democratic constitution. These institutions have an ultimate motive for the smooth functioning of democracy. But the constitutional provisions of the Privileges of Parliament are vague. The easiest way to solve this conflict between Judiciary and Parliament lies in harmonizing the relationship between the two organs by properly codifying the privileges to remove unclear interpretations.

The article has been written by Megha Patel, a 2^nd -year law student at The Mody University of Science and Technology, Laxmangarh, Rajasthan.

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Introduction

Sustainable Development is defined as “to meet the needs of the present without compromising the ability of Future Generation to meet their own needs”. The concept came into the picture after the International Conference in Stockholm in 1972. It contains three aspects- 1.environment which includes biodiversity, air, land, plants, animals, etc.,2. Economy i.e. income and money employment trade, business, etc., 3.Society, includes education, health, security, peace, and equal opportunities. To meet this concept this compelled the legislature to make rules, guidelines, and legal provisions on the same. Further, these provisions brought the judiciary to set precedents against such degradation of the environment. The Supreme Court in various landmark cases highlighted the importance of controlling public actions to protect the environment through legal processes, statutes, and punishments. This article explores the legal regime of environment protection through Indian Jurisprudence.

Environment Preservation vis-a-vis Development

For a Developing country like India, Economic development clashes several times with environmental preservation. Moreover to achieve sustainable development courts follow only the principle to clean the existing pollution and not focus on precautionary principle to preserve the environment by further laying down rules and regulations which may prevent pollution, which can be construed by courts various decisions which focus on the polluter pays principle rather than precautionary principle.

To support the above contention the landmark case of Narmada Bachao Andolan is apt. In this case, the height of Sardar Sarovar Dam was to be increased which would have affected the local people, their livelihood would have been lost, and a further lot of species of plants and animals would have been submerged. The Supreme Court held that local people should be given a better place of livelihood but construction would take place as it was important for the development of that place. This judgment portrays that Environment Development is important keeping Environment concerns in view.

Sustainable Development Precedents

In India, the Sustainable development concept came into light with the case of the Vellore Citizens Welfare Forum. In this case, the tanneries in Tamil Nadu were releasing harmful untreated effluents into water bodies, agricultural fields, and roads as well. The river named Palar there was highly polluted due to these effluents making a scarcity of potable water, and not only this it also polluted over thirty thousand hectares of land engaged in agricultural activities. The Supreme Court held Tanneries owners liable and stated that the principle of polluter pay is an integral part of the Constitution.

Supreme Court of India

Taj Trapezium case, in this case, refineries of Mathura’s use of coal and also because of vehicles emissions which lead to the release of SO2 mixing with water in rainy seasons making it an Acid rain resulting in corrosion of Taj, turning white marble yellowish, was banned. A Bhuleral Committee was also set up which recommended the use of CNG. Oleum Gas Leak Case in which Absolute and Public Liability evolved. Another case was filed by M.C. Mehta in which several polluting tanneries were ordered to be closed to save water of river Ganga. Court-ordered tanneries to come up with a proper set treatment plant.

Through the case of Murli Deora Smoking was banned in public places.

Other Courts

Landmark cases laying precedent on environment protection and maintaining sustainable development. Rural Litigation & Entitlement Kendra cases– also known as Dehradun Mussoorie Hills quarrying Case. The court observed that quarrying of limestone results in excessive soil erosion and therefore, there is a need to maintain a balance between Environmental & Ecological Integrity. AP pollution control board caseIn this case, the precautionary principle was established. Church of God in India case. In this case, noise Pollution was also given recognition.

Provisions on Environment Protection

Constitution of India

Constitutional guidelines on right to wholesome Environment- Evolution of Application, Relevant provisions are given under Articles 14, 19(1)(g), 21, 48 (A), 51(A)(g) of the Indian Constitution.

42^nd Amendment – Article 48(A)- states about Protection & improvement of Environment & safeguarding forests and wildlife.

Article 51(A)(g)- Fundamental duty to protect & improve the natural environment…living creatures.

List III- Concurrent List– provides Indian parliament power to legislate on subjects on man-made an increase of pollution and environment degradation.

Other Legislations

Under Article 253 of the Indian constitution- legislation for giving effect to International Law. Through which certain legislations inspired by an International Conference in Stockholm 1972 were implemented, such as Water Act 1974, Air Act 1981, Environment Protection Act, 1986, Forest Act1927, Wild Life Protection Act, 1972, etc.

Provisions under Code of Civil procedure– section 91- Reservoir for class action suits against environmental Law. J. C. Galstaun case – one of the earliest cases on environmental pollution in India. The Case is important because it shows how the common law regulatory system can check polluters in a pre-industrialized society.

Indian Penal Code– There are various sections of the Code related to environment nuisance and its punishments, some of them are-

Section 277– fouling Water of public Spring or Reservoir

Section 278– Making atmosphere noxious to health.

Section 284– Negligent conduct concerning poisonous substances.

And many more.

Provision under Code of Criminal Procedure– section 133– Conditional order for removal of the nuisance.

National Green Tribunal

It is a body specially designed to deal with the cases of Environment protection. India is the 3rd country in the world to make such a body for robust and effective disposal of cases related to the environment. Landmark cases held by NGT are- recently in 2017 in Delhi NGT imposed a ban on plastic bags containing less than fifty microns. In the 2012 Almirtra H. Patel case, NGT prohibited the open burning of wastes on the land surfaces.

However, NGT faces various challenges like the supremacy of the High Court, criticisms on various judgments of NGT which caused repercussions on the environment, the pendency of cases due to lack of judges and financial assistance, which fails the purpose of establishing such a Tribunal.

International Law

Sustainable Development targets cannot be the same for every country as every country is on a different stage of acquiring it. Some have to achieve more whereas some have to achieve less, according to the altogether vision in view to preserve resources of the world at large. Therefore, to meet such vision internationally major summits held are stated below-

Stockholm conference -focused on biodiversity and environment to secure a healthy environment for humans present as well as the future.
United Nations Commission on Environment and development- plays an important role to protect Environment, in its Brundtland Report defined sustainable development to acquire environmental protection, Economic Growth and social equity.
Rio Declaration- introduced principles on biodiversity, climate change and forest management.
United Nations conference on Sustainable Development 2012- adopted eight Sustainable Development goals to be achieved by 2030.

Article 253 of the Indian Constitution states Legislation for giving effect to International Agreements.

Conclusion

Many times, Economic development wins over Environment Degradation. India is a developing country which makes it concerned to become one of the developed countries concerning the economy, technology, Industry, etc., basically, every such thing which degrades the environment resources. Therefore, in various cases, Economic development supersedes Environment preservation. Independence and accountability are also important aspects to acquire Sustainable Development by Judiciary. Implementing legislation, regulatory authority by a specialized body that is NGT may make the dream of Sustainable Development possible which enhances the environmental law regime in the country.

The article has been written by Aakrati Thakur, pursuing BBA Ll. B 3^rd Year in Delhi Metropolitan Education, Noida, GGSIPU.

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Introduction

When India got independence, there were a certain group of peoples who were not as socially, educationally developed as others and the makers of the Constitution wanted to help them and so the concept of reservation came into the picture. To put it out in layman terms, reservation is a system, according to which the above-mentioned group of socially, educationally disadvantaged peoples were provided with representations, by reserving a couple of open spots, with respect to jobs or in the entrance of an educational institute or their minimum mark to enter into an institute was held to be lower than the others to improve them socially and educationally. This is also mention in the Constitution under Article 15(4) and 16(4), which provides the State with the power to make any special provisions for the development of any socially and educationally backward group of citizens, which are known as the Scheduled Castes, and the Scheduled Tribes, like the above-mentioned reservations or allotting quotas, etc. for them.

Who is included?

The people to whom reservation is allotted, forms three main groups, are as follows:

Scheduled Castes (SC) – the people who are included in this group are most commonly considered to be in the lower section of the caste hierarchy. These people were mostly manual laborers and daily wage workers, who were involved in works like agricultural laborers, manual scavenging, tannery, washing clothes, fishing, and more. Most of the works that these people did were considered to be disgusting and something that the people from a higher caste would never do. Article 341 of the Constitution defines who would be in Scheduled Caste. According to which the President has the power to decide if a particular caste, race or tribe, or their group will be considered to a part of SC or not, in regard with a State or Union Territory and in regard with a State, the President should consult with the governor of that State and in regard with a State, the President should consult with the governor of that State. The Parliament also has the power to include or exclude any castes, races or tribes or parts of or their groups in the list.
Scheduled Tribes (ST) – the people who are included in this group are the indigenous people of India. Few of their primary characters are that they have primitive traits, distinct culture, were isolated from others and so did not have a lot of contact with other communities, and were not developed. Article 342 of the Constitution defines who would be in Scheduled Tribe and according to which, the President will decide if a particular tribe or tribal communities or their groups should be considered as a ST or not in a State or Union Territory and in regard with a State, the President should consult with the governor of that State. The Parliament also shall include or exclude and castes, races or tribes or parts of or their groups in the list.
Other Backward Classes (OBC) – the people who are included in this group are those people who are also in socially, economically, and educationally in a backward position but they do not belong in the SCs and STs. The Indian Constitution does not talk about OBC. But, after the Supreme Court’s judgment in Indira Sawhney’s case, the Government enacted the National Commission for Backward Classes (NCBC) Act in April 1993. Under which Section 2 defines Backward classes as backward classes of citizens, other than the SCs and STs, as may be specified by the Central Government in the lists.

Reservation and the India Constitution

Article 16 (1) and (2) of the Constitution forbids discrimination on the ground of residence for employment, and Article 16 (3) and (4) are the exceptions for it. Article 16 (3) gives Parliament the power to make laws that would extend beyond the restriction mentioned in Article 16 (1) and (2). Article 16 (4) empowers the state to make special provisions, as needed, for the reservation in appointments of posts in favor of any backward class of citizens who the State considers are not adequately represented in the services under the State.

Articles 330-342 talk about the special provisions for reservation, representation, and commission for a certain class of people such as SCs, STs, Anglo –Indians, Linguistic minorities, and OBC.

Article 335 of the Constitution plays a big role in balancing the process of allotting seats based on reservation. The article says that the state shall look into the claims of the members of the SC and ST regarding the seats in the administrative position, but only if appointing these members will improve the efficiency of the administrative position. The State does not require to grant the members solely based on their social standing. This article acts as a guiding principle for the State in performing its duties without it being restricted to the claims of SC and ST.

Views of the Supreme Court

One of the first cases that handled on the reservation was the State of Madras v. Champakam Dorairajan, the Madras government reserved seats in the government’s medical and engineering colleges in different proportions for different communities based on religion, caste, and race. The plaintiff alleged that this is against the fundamental rights, and the state defended it on the grounds that this was enacted under the requirements of Article 46 of the DPSP to provide social justice for all the groups. This law was repealed by the Supreme Court because students are graded based on caste and religion, regardless of their merits. To change the validity of the decision, the Constitution ( 1^st Amendment) Act of 1951 amended Article 15, and clause (4) was added in Article 15.

In the case, M.R. Balaji v. the State of Mysore, the State of Mysore issued an order, as per which all the communities except the Brahmin community were declared to be socially and educationally backward under Article 15 (4) and 75% of the seats in Educational Institutes were reserved in favor of the Socially and Economically Backward Class and the SCs and STs. This order was challenged in the Supreme Court under Article 32 and the Supreme Court struck down this order because it claimed that backwardness is both a social and educational factor, and though caste in relation to Hindus may be a relevant factor to consider, it cannot be made the sole and dominant test, in determining the social backwardness of a class of citizens. It also said that even though there are no definite rules for granting reservations, it should not exceed 50%.

In the case, State of UP v. Pradeep Tandon, an order issued by the State Government for the reservation of seats for students in medical institutes, which extended to candidates from rural areas, hill areas, and Uttarakhand, was challenged in the Supreme Court. The Court observed that the classification on geographical and territorial areas was made because the candidates from these areas were regarded as socially and culturally backward classes. The Court said the reservation to the students from hill areas and Uttarakhand was valid, because of the absence of a proper means of communication, technical processes, and educational facilities, the poor and illiterate people were kept in the remote and sparsely populated areas. But this did not include the candidates from rural areas, and it was held to be invalid because this division on the ground that the people in rural areas were poor, unlike those in urban was not supported by any relevant facts.

One of the leading landmark cases regarding reservation in the case of Indra Sawhney v. Union of India. In this case, the Supreme Court held that the decision of the Union Government to reserve 27% of the government jobs for backward classes is constitutionally valid, provided socially advanced persons- Creamy Layer- among them are eliminated. The reservation of the seats could include only the initial appointment and does not extend to the promotion and the total reservation should not exceed 50%. After this judgment Article 16 (4-A) and 16 (4-B) were added by the 77th Amendment and 81st Amendment respectively.

CREAMY LAYER:

The term ‘creamy layer’ was first coined in 1974 in the case of the State of Kerala vs N. M. Thomas where the judge noted that the benefits of reservation meant for the socially and economically backward persons were snatched by the people of the same community, but socially and economically developed, who was called as the top creamy layer, and leaving the rest for the weakest. This could be applied only for OBC and not to the SCs and STs. To put it down in simple words, ‘creamy layer’ consists of people who despite being a part of the OBC, are more economically and socially developed. The court developed the ‘creamy layer’ concept to prevent these people from using the policies and reservations made for the people who are economically and socially backward.

Conclusion

So, there is a question in most people’s minds, that, “do we still need a reservation?’. It has been more than 70 years since India became a democratic nation and the reservation was implemented. But the position of the SCs, STs, and OBC have not changed a lot to say that reservation should be barred. In the present-day scenario, a lot of people in the creamy layer are misusing the allotment of reservation and so reservation does not fulfill the role it was established for. The one thing that can be done is that, while the process of reservation is going on, the people selected for a reservation should be chosen after looking into if they would fall into the ‘creamy layer’ category and the concept of ‘creamy layer should be extended to those in SCs and STs too. So, to conclude I would say that, yes, we still need a reservation, because the reason for the implementation of reservation, which is, the development of SCs, STs, and other backward groups, is not yet fulfilled.

This article is written by Santhiya V, who is pursuing BBA LLB (Hons.) at Alliance University.

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The center state relation in federal countries around the world is unbalanced in terms of their resources, powers, and functions, regardless of how detailed and elaborately the constitution describes it. By the opinion of Chief Justice Mirza Hameedulla Beg “our constitution is like an amphibian”. The central at times can move from the federal plane to the unitary one according to the circumstances. From Independence on, the power has been vested more on the central government. Coalition politics is often used as a means to influence the federal polity. India being a multiparty country, coalition governments are inevitable. It is not a new concept in India that in 1967, the coalition government took an immense drift, which has continued today. Moreover, the federal system and the coalition government share the same essence and objective, but one had a greater impact. The term Coalition is derived from a Latin word meaning to grow together. Coalition governments can be traced back to the pre-independence era to be precise the interim government of 14 party representatives in 1946.

One-party Domination and Coalition Phase:

The development of the coalition government was interconnected with the federal and political structures at various times. For more than four decades after independence, Indian governance was governed by a one-party system, which was a unitary system. But the emergence of regional political parties was a great reason that has contributed to the breakdown of a one-party dominant system at the center and has made a substantial contribution to the decentralization of power. We need to examine the history and development of the coalition government through the years to understand its impact on the Indian federal structure.

The First Phase:

The phase of 1952-1967 was a time of one-party rule in India, but in 1967, the first sign of disruption occurred with the introduction of an alternative. Though there are attempts at coalitions between 1967 -1988, they are a failure. The scholars always raise the contention that, the federal system even though it’s immutable it needs to undergo re-examination, re-adjust, reconfirm at particular intervals according to the emerging situations in the society. In 1987, the controversy over center-state relations has become a loud issue when the then prime minister of India Mr. Rajiv Gandhi began to address the District Magistrates and Collectors in different areas, stressing the need to restore a system without chief ministers. This was a process of bringing back the District collectors to the administrative position. This was followed by the flooding of announcements regarding the strengthening of local bodies and panchayat raj which was considered as a virulent attack on the state governments.

It not only during his period the attack of the dominion party over the state government can be observed all way back by the way of the constitution itself. Majorly The invocation of Article 356( example of Communist Government in Kerala was sacked in 1959), unilateral action of the center in the setting up of the of its policy of drawing and redrawing the political map of India (example of the disintegration of Assam to suffice infra nationalist movements), and planning commission, which deceit us the constitutional tools by which unilateral action or oppression of the dominant party was made through which was against the spirit of the Federal Structure.

Development Phase after 1988:

Over the years there was a constant rise of voice against this misuse. It comes into the limelight after the Sarkaria commission report of 1988. However, the committee did not suggest anything regarding the reconsideration of the State, Union, and Concurrent lists, but it placed a great deal of emphasis on the office of the governor. Article 356 was more often invoked against the opposing state through governors by the single dominant party. According to this committee, the office of the Governor was regarded as being a key functionary in ensuring cordial center-state relations. Active politicians were not allowed to be governors, and eminent persons from outside of the state are preferred, according to the Commission. He should not have too much to do with local politics or be active in politics. Although the committee’s recommendations were taken at a later stage, there was a major shift in Indian politics in 1989 when regional parties entered the national arena. The coalition of the regional parties reinforces the shift from centralization to decentralization.

In 1996, there was a failure but it was also considered a landmark event in the coalition as the United Front Government with Congress’ support came to power. This coalition government brings a Programme named as Common Minimum Programme. The concept of political, economic, and administrative federalism was reinforced through various innovations developed through this program.

The most prominent change that happened in the relationship between the coalition politics and federalism in India is a recent example of the replacement of the Planning Commission of India by constituting a new commission named National Institution for Transforming India (NITI) Aayog on January 1, 2015. The Prime minister is the chairperson and the Chief Ministers of states and the UT will remain as the members. This instituted participation and also strengthens the federal system by inclusion and decentralization.

In the era of a coalition government, the center-state relation and the state autonomy issues are resolved to the maximum extent. Through this coalition, the regional parties were able to strengthen their presence in national politics. They can now have a stronger voice about the different views and problems of different societies and sections. Coalition politics, or the system of government, is more participatory and responsive. Thus, the autocratic, dominant single-party monopoly is removed. If well streamed, this can also provide some opportunities for Mutual Adjustment and arbitrations.

Drawback:

Coalition governments cannot simply claim that they uphold the federal system and its objectives. It had a serious drawback that would conflict with the basic welfare of the nation. This coalition government is unstable. From the past, we could observe major coalition government failures due to various reasons. I believe there is a great deal of opportunism, narrow political interest, and unscrupulous political games before the idea of integrity, development, and democratic federalism. Despite the coalition government being the reality of today, they are merely using it now to disrupt the actions of the center and also to undercut their power and authority. Regional parties often disregard the general welfare and do not take a utilitarian approach. Coalitions are often used by regional parties to divide and rule and create immense hatred against others for their dirty political agenda. A participatory, corporation-competitive development must be the goal of the Coalition, but they are often driven toward separatist movements instead of maintaining the integrity of the country.

I would like to conclude with the note of W.H. Riker. He rightly observed that: “Whatever the social conditions that are general, everything sustains the federal bargain, there is one institutional condition that controls the nature of the bargain……. the structure of party system, which is regarded as the main variable intervening the background social conditions and the nature of the federal bargain.” He also observed that “centralizing and decentralizing tendencies of a federal system mainly depends upon the degree to which the parties are operating in the central government and control parties in the present government.

This article is written by Bharatee Preeya A.K. a student pursuing B.B.A.LL.B (Hons) from Alliance University Bangalore.

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Employees State Insurance Corporation, Regional Office Thrissur invites application for empanelment of Advocate for representing ESI Corporation at District Court, EI Court and other Judicial/ quasi judicial bodies located at Palakkad. Advocates so empanelled would be also be responsible for providing ESI Corporation with legal advice and legal opinions as and when requested.
The applicants should be enrolled with the bar council with a minimum ten years of experience in practicing law, preferably labour laws and Insurance laws. Empanelment of the selected candidates would be subject to agreeing with the terms and conditions as mentioned in Appendix ‘A’.

Eligible candidates may send the application as per performa given to the addressRegional Director, Regional Office ESI Corporation, Panchdeep Bhawan, Thrissur – 680020, to reach the office on or before 15 July 2021. Applicants may note that External interference of any kind will lead to disqualification of the candidate.

Read the official notification hereDownload

Negligence:

Negligence in simple terms translates to failure in taking care of something or keeping things under check.

In legal terms, however, negligence means the breach of duty of care that results in damages. It involves failing to or omitting to do something, which the person was legally bound to do and the other person being caused damages due to such breach. Therefore we can understand that for negligence to take place, 3 essentials must be there. These being as follows:

The defendant is legally bound to the plaintiff to take due care.
Such duty must be breached by the defendant, that is he must fail to take due care.
Such breach of duty must result in damages to the plaintiff.

Once these 3 essentials are satisfied, the defendant is held liable for negligence.

Civil and Criminal Negligence:

Negligence under the law of torts is a civil wrong whereas criminal negligence, as the name suggests is a criminal wrong. While there is no such major difference in both types, there is a distinction in how the determination of liability is done. In torts law, the amount of negligence is examined. Whereas in criminal law, both the degree and amount of negligence are examined to determine the liability. In order to initiate proceedings under criminal negligence, the amount and degree of negligence must be higher than that of civil negligence. The ingredient of mens rea that is “guilty mind” cannot be overlooked.

Negligence by Professionals:

A professional is a person who possesses special skills or skills which are requisite to performing a task. Thus a professional can be said to be a person who has the skills to perform a task which a person without such skills cannot perform. By this meaning, a medical practitioner is a professional too.

Hence anyone who deals with a professional must understand that it is implied for the professional to deal with a reasonable amount of care. It is also essential for the professional to make sure to practice due care and caution.

It is however obvious that a professional is also a human and thus can take wrong decisions which may lead to a breach of duty of care and cause negligence. This raises the question, that when can a professional be held liable. A professional can be held liable on the basis of either one of two findings. These are as follows:

The plaintiff did not possess the requisite skill that he had claimed to possess, due to which damage has been caused or,
He did not take reasonable due care while exercising his professional skills.

The standard for judging the second condition can be determined by various tests. The Bolam test that has been held in Bolan v. Friern Hospital Management Committee is the most well-known test. The standard that had been set was that the level of skill may not be that of the person exercising the highest level of skill in that particular profession, but it should be that of an ordinary competent man practicing that particular profession.

Medical Negligence:

From the above discussion, we can say that medical negligence is the breach of duty by a medical professional to take reasonable care and that such breach causes damage to the plaintiff.

Just like above, it can be deduced that a person can be held liable for medical negligence when they either:

Do not possess the requisite skills of a medical professional that they claimed to possess or,
The medical professional did not take reasonable care that an ordinary person of ordinary competency in the same field would exercise.

In Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka, the doctors had misjudged the patient’s conditioned. Had the patient’s correct condition been noticed, a neurosurgeon would have also been appointed to conduct surgery. But the surgery was performed by a doctor who had expertise in only one area. It was thus held that the doctors were remiss in their performing of the operation and this amounted to negligence.

Medical Negligence during a pandemic:

From the above case laws and essentials constituting medical negligence that have been discussed, it can be clearly said that a medical professional can be held liable for negligence. The question that arises is whether they can be held liable for medical negligence during a global pandemic. Surely if a professional who has acted negligently must be held liable, but what also needs to be considered is that reasonable care during times of a pandemic is subject to many factors. Also, the mental and physical anguish that is faced by the medical professionals at this time cannot be ignored. However, a few petitions have been filed during the pandemic in regards to medical negligence.

An ex-gratia plea had been filed before the Delhi High Court by the family of a COVID-19 patient who died due to lack of oxygen. The petitioners claimed that the patient’s oxygen level had declined tremendously and yet the hospital due to its medical negligence led to the death of the patient. The defense that represented the state government stated that the state government is offering relief of 50,000 Rs to the families of people deceased due to COVID-19.

Conclusion:

Medical negligence during a pandemic is a sensitive topic as during such a scenario, it is important for both a medical professional to be held liable for negligence but also taking into account other factors such as the government’s role in ensuring that all the hospitals are supplied with the necessary equipment and other items and also whether the negligence in question was an unavoidable circumstance or breach of duty of care. I am of the opinion that surely a professional should be held liable for their negligence, but it should be kept in mind while dealing with such a case of negligence that they are humans as well capable of making erroneous judgments especially during such crucial times of the pandemic.

This article is written by Om Gupta, a first-year law student pursuing a BBA-LLB from the University School of Law and Legal Studies.

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