Tag: #Article21

RECONSIDERING THE ROLE OF VICTIMS IN CRIMINAL PROCEEDINGS

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All individuals who have been a victim of crime have had themselves and their families affected, significantly making monetary misfortunes to the people in question. And the effect of these crimes and wrongdoings on the people in question and their families goes from genuine physical and mental wounds to perpetual aggravations. These consequences should immediately be changed and adhered to by giving care and attention to those affected through several measures and laws, giving them simple admittance to equity. Even if they have observed help and help from their family, clan, or the local area, they have, all things considered, stayed “failed to be a remembered individual” in the criminal justice administration system.

DEFINITION OF VICTIM

Within the Indian legal framework, the term victim is defined under Section 2(wa) of the CrPC, 1973 as ‘individual who has endured hurt, either physical or mental injury, torment, financial misfortune or infringement of their freedom, through acts or oversights viewed as violative of Indian criminal regulations including those regulations that endorse criminal maltreatment of influence’. The U.N Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, on 29 November 1985 gave an extensive definition to the victim ‘as a person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, through acts or omissions that are in violations of criminal laws operative within member states, including those laws proscribing criminal abuse of power’.

INDIA’S CRIMINAL JUSTICE ADMINISTRATION SYSTEM

The law enforcement framework which India has adopted stems from what the British called the ‘adversarial legal system’. The working of the Indian law enforcement framework relies upon the four support points and these four points of support are police, prosecution, judiciary, and the correctional institutions. For fair and speedy outcomes, these four points of support need to work actually by coordinating one another. The two primary criminal laws of India are the Indian Penal Code, 1860 which characterizes the offense and gives its discipline and the other is Code of Criminal Procedure, 1973 which recommends the technique for examination, indictment, and a criminal preliminary. The middle has the ability to make regulations and change criminal regulations under the Seventh Schedule of the Indian Constitution. However, it is mostly catered to the rights of the accused and altogether ignores that of the victim in the delivery of justice.

DIFFERENCE BETWEEN THE RIGHTS OF THE ACCUSED AND THE VICTIM

There seems to be a mismatch when it comes to the protection of the accused and the victim. If anything, it appears that the Indian Criminal Justice System has more rights reserved for the accused. This includes different privileges, safeguards, and shields given by the Code of Criminal Procedural Law like the right against self-incrimination, the presumption of innocence, the right to legal assistance, and the others like the ‘right to fair trial’ such as the standard of proof beyond a reasonable doubt, right of the accused to be informed of charges before the trial and the right to a lawyer and be defended, etc. Even the accused is heavily guarded under Articles 20, 21, and 22 of the Constitution.

Thus, it has been said many times that the victim’s role is merely reduced to being a ‘witness’ and has limited rights during criminal proceedings. A case example can be Parvinder Kansal vs State of NCT of Delhi (2020), where the father of the deceased son gave an appeal to enhance the imprisonment sentence of the accused but it was denied on the ground that the victim does not have such right to do so regarding the present provisions in the CRPC. Prior to this, there were recommendations given by the Malimath Committee and the Law Commission, where the legislature inserted a provision in section 372 of the Code through the Amendment Act of 2008 to provide victims their right of appeal and again the National Commission of Women to seek enhancement of appeals.

RIGHTS FOR THE VICTIMS

The definition of the victim provided under the CRPC proves to be insufficient and restricted comparatively to one given by the UN Declaration adopted by the General Assembly. The rights defined for the victim under this includes access to justice and fair treatment, Compensation, Victim’s assistance inter alia, for countries to have a guideline to trace. But India’s system has barely been touching these minimal standards and norms.

It was after many studies about whether victims who have been compensated were satisfied or not like in cases of gang robbers, motor accidents, etc. Issues regarding women victim issues led to mobilizations and protests in the past years resulting in amendments and numerous organizations being formed and introduced like protection of women against acid attacks (Sec. 326A20 and 326B21), voyeurism (Sec. 345C), stalking (Sec. 345D) and sexual harassment (Sec. 345A), and expanded the definition of rape (Sec. 375) under the Indian Penal Code as an addition to the existing
the victim’s right to compensation.

CONCLUSION

Considering the fact that India follows a Common Law system where it is subjected to transformations based on the context and case situations, it is not surprising to determine that the accused is sometimes labeled as a ‘victim’, therefore multiple rights are conferred to them. Keeping that aside, the scenario of the accused having more rights than the victim itself should not be ignored where the system should give importance, if not more to the victim.

However, it is important that the system comes up with different acts and comprehensive plans and programs to cater to the needs of the victim. This can be done through emotional and financial assistance. The support points of law enforcement which are the police, lawyers and prosecutors, NGOs, etc. should be effective in their field of work and correct the flaw of delay. Corresponding to commendable actions taken by the system sometimes, more distributions should be made to the study of ‘victimology’ for expansion so that further steps can be ventured into protecting
the victims.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.

TRAVELLING ABROAD IS A HUMAN RIGHT

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The Supreme Court of India emphasized in Satish Chandra Verma vs. Union of India that the freedom to go abroad, like marriage and family, is a genuine and vital human right. “The right to travel abroad is an important basic human right because it fosters an individual’s independent and self-determining creative character,” wrote a bench led by Justices L. Nageswara Rao and M.R. Shah, “not only by expanding his freedoms of action but also by expanding his scope of experience.

In this case, an IPS officer filed an appeal, from Coimbatore, Tamil Nadu. He claimed in his appeal that he was the subject of a departmental inquiry and that the Central Administrative Tribunal (CAT) had denied him permission to visit relatives overseas because of it. Despite the fact that Inspector General of Police Satish Chandra Verma was not facing any criminal charges, the Madras High Court upheld the Central Administrative Tribunal’s decision that he may not go abroad without first obtaining Vigilance clearance. The Supreme Court overruled the verdict of the High Court, citing Maneka Gandhi vs. Union of India and Kent vs. Dulles, two landmark US Supreme Court cases (1958).

In its judgment in Maneka Gandhi vs Union of India, the bench stated that the right to travel abroad is a fundamental human right since it strengthens an individual’s independent and self-determining creative character by widening his job experience and giving him more freedom of action. The Supreme Court noted the ruling in the latter case, which stated that “freedom to go abroad is a fundamental human right with major societal relevance.” The Supreme Court said that the freedom to travel globally is a core human right that also relates to private life, such as marriage, family, and friendship.

Right to travel internationally

Article 19 of the Indian constitution guarantees the freedom to freely move beyond Indian territory; nevertheless, the right to go abroad is derived from Article 21’s right to life and personal liberty.

Liberal interpretations have given the phrase “life and liberty” huge meanings in this article. Life here refers to both one’s physical existence and one’s quality of life. Personal liberty, on the other hand, encompasses a wide variety of rights in addition to freedom from physical constraint or confinement.

The Supreme Court stated in Maneka Gandhi v. UOI that the term “personal liberty” as used in Article 21 has a very broad meaning and it encompasses a plethora of rights that include man’s personal liberty, some of which have been elevated to the status of separate fundamental rights and given additional protection under Article 19.

Article 21 defines the state’s negative duty, although it does not totally nullify restrictions or limitations if carried out in line with the “process” prescribed by law. An individual’s personal liberty and the rights that come with it, as well as the individual’s duties and obligations to the state and other citizens, must be balanced. Satwant Singh Sawhney v. D. Ramarathnam: The Supreme Court ruled in Satwant Singh Sawhney v. D. Ramarathnam that the “expression” of personal liberty includes freedom of movement and travel internationally. The necessity to hold a passport in order to
legitimately going overseas may raise the question of whether it is a barrier to an individual’s right to travel abroad, however, the Supreme Court found against this in the same case.

In a nutshell, the right to freely travel throughout India’s territory and the right to freely travel abroad both fall under the umbrella of “personal liberty,” although being provided under separate parts of the constitution. Specific limits on traveling overseas may apply, which must be followed in compliance with legal regulations. There are several fair restrictions on roaming freely throughout India.

Article 12 of the 1966 International Covenant on Civil and Political Rights addresses the freedom to travel abroad in international law. It empowers anybody, including themselves, to exit any country. As a result, it enhances the basic freedom of foreign travel. However, the Covenant, like the Indian Constitution, places limitations on the right “as may be needed by law to protect national security, public order, health, or morality in the interests of others’ rights and freedoms,” and these restrictions are compatible with the Covenant’s other rights.

The United Nations Human Rights Committee, which oversees the Covenant’s implementation, has underlined that Article 12 covers both the freedom to leave for permanent emigration and the right to travel abroad. It also safeguards a person’s freedom to pick his or her own travel destination.

While the UN Human Rights Council asserts that the right to dwell in a country includes the right to get the necessary travel documents, the Supreme Court has a different view on the passport and travel document problem. In Satwant Singh Sawhney v. D. Ramarathnam, the Supreme Court argued that a passport is a political document with no absolute right to get one because it is up to the state to give or deny one. The government does not appear to need to assert someone it does not think acceptable because the document states the holder’s respectability.

When there is a dispute between national and international law, the Supreme Court stated in Gramophone Company of India vs. Virendra Pandey in 1984 that national law shall prevail.

The right to travel freely across the world has been recognized by the Supreme Court as a fundamental right. Following Article 21, it is suggested that a new article, namely Article 21A, be included with the words “A21. (2) Nothing in section (1) stops the State from implementing legislation that sets appropriate boundaries in the interests of India’s sovereignty and integrity, friendly relations with other states, and the general public.” An individual provision for the right to travel abroad might help to accelerate the implementation of this critical right, which is now underway.

Written by Muskan Patidar student at Kirit P. Mehta School of law (NMIMS), Mumbai.

RIGHT TO FOOD AND SHELTER ON THE TOUCHSTONE OF ARTICLE 21

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ABSTRACT

Interpretation of Article 21 has been given the widest amplitude post the judgment of Maneka Gandhi and since then it has included rights such as the right to food, the right to shelter, and a host of other rights.

INTRODUCTION

Article 21 is one of the most vital and indispensable fundamental rights that is enshrined in part III of the Indian constitution. It guarantees the right to life and personal liberty to each and every individual irrespective of his citizenship and states that no individual would be deprived of the above-mentioned rights except according to the procedure established by law.

The interpretation of article 21 was initially given a very restrictive and narrow meaning soon after the commencement of our constitution. It was after the landmark judgment of Maneka Gandhi v UOI1 that the scope of article 21 was drastically widened. Prior to Maneka Gandhi’s judgment, Article 21 guaranteed the right to life and personal liberty only against arbitrary and unreasonable executive actions and not from legislative actions. The arbitrary and unfair state actions that interfered with the life and personal liberty of the individuals could be protected and upheld if it was validated by the law. However, after the judgment of the Maneka Gandhi case, it was held that Article 21 protects an individual’s fundamental right of life and personal liberty from the arbitrary, unjust and unreasonable actions of both the executive and the legislature. To deprive a person of his rights under Article 21, there has to be a valid law and the procedure prescribed by the law has to be just, fair and reasonable.

RESTRICTIVE INTERPRETATION OF ARTICLE 21

  1. A K Gopalan v. UOI 2
    The petitioner contended that Article 21 must be read together with the rights encompassed in Article 19 (1) and 19 (5) as Article 19 dealt with substantive laws and Article 21 dealt with procedural laws. Moreover, the phrase “procedure established by law” meant the due process of law and included the principles of Natural Justice. The court, rejecting the above contentions gave a narrow and restrictive interpretation of Article 21 and held that Article 21 protected an individual only from those arrests and detentions that are made without the due authority of law or in other words Article 21 protected the physical liberty of a person and did not include any other rights. Moreover, the state-made laws did not include within its sweep the principles of natural justice.
  2. Kharak Singh v. State of UP 3
    The court, in this case, held the domiciliary visits by the UP police that led to surveillance of the petitioner as illegal because the police action was not validated by any law and it led to an invasion of personal liberty as the term personal liberty was not only limited to prison confinement but also other forms of restrictive bodily restraint.
  3. Govind v. State of M.P 4
    The court in this case upheld the whimsical and unreasonable domiciliary visits by the MP police which was violative of the fundamental right of life and personal liberty under Article 21 as the same was validated by Section 46 of the Police Act. Since the regulations had the force of law and were duly prescribed by the law, hence they were deemed as valid.

LIBERAL INTERPRETATION

Maneka Gandhi v. Union of India 5
This landmark case examined the amplitude of the phrase “personal liberty” used in Article 21. The passport of the petitioner in the given case was impounded by the government under the Passport Act 1967 in the interest of the general public. The majority judge bench, in this case, construed the term ‘personal liberty in the widest possible manner and thereby, exercising the rules of natural justice held the act of impounding of the passport as illegal. The court overruled AK Goplan and held that Article 21 was inclusive of Articles 19 and 14. The court held that in order to deprive an individual of his personal liberty, there must be valid law, prescribing a procedure and the procedure so prescribed should be fair, just, and reasonable.

The judgment of Maneka Gandhi paved way for the liberal interpretation of Article 21, thereby leading to the inclusion of a host of rights as fundamental to life and personal liberty under Article 21. These included the right to livelihood, right to clean air, right to privacy, right to gender expression, right to food, right to shelter, right to health, right to education, right to sleep, right to die, and a bunch of other derived rights.

RIGHT TO FOOD AND SHELTER

Food is one of the most crucial compelling necessities of human life after air and water. All the activities of mankind are directed towards satiation of this very need. It provides the much-needed nutrition to the human body which is vital for survival, growth, and bodily development. It is needless to further underscore its importance further given its prima facie absolute importance for the continuation of life on earth. Juxtaposed to this very importance of food for survival, there exist several lakh people in self-sufficient and food secure countries like India who die every day out of hunger and starvation. The vicious circle of the twin evils of poverty and unemployment often leads to hunger, prolonged malnutrition, and distress. Even if the direct cause of many such deaths may not appear to be from starvation prima facie, the somber reality remains unchanged that lack of food and avenues of employment often leads to prolonged periods of malnutrition, making them more vulnerable to diseases and distress, thereby, ultimately resulting in their deaths. On one hand, where the poor dies of hunger, it is even more appalling to note that the granaries of the FCI abound in food grains and often rot over there. Policy changes for appropriate nutrition requirements and distribution of food grains free of cost to the needy and destitute have to be executed with due diligence in order to correct this perpetuating wrong and ensure justice.

There is an imperative need for a paradigm shift from viewing the policy changes inequitable food distribution as acts of benevolence to that of it as the right of citizens. Various judicial pronouncements have been rendered in order to correct this perspective and ensure equity. Given the centerpiece importance of the right to food, the right to shelter also forms one of the very vital subsidiary human rights. A permanent roof on the head has traditionally been a sign of social security. It provides the much-needed material support and security for the realization of our avenues. It is an important indicator and buttress for the necessary progress and growth of the human being. The right to shelter, thus, forms an intrinsic part and parcel of the right to live with dignity.

The right to food and shelter, thus, form an indispensable and rudimentary need of human life. They are the bare necessities of life that go into everyday survival and ensure a dignified life. Given the expanding scope of Article 21, which has been given the widest possible interpretation through the various bold judicial enactments and decisions in recent times, Article 21 has included within its sweep an array of rights that have been deemed fundamental for a reasonable survival and realization of the worth of human lives.

The fundamental right under Article 21 that guarantees the right to life includes the right to live with human dignity with such basic amenities of life such as food, clothing, shelter, education, livelihood, medical care, decent environment, etc. that provide a reasonable standard of living, thereby providing scope for the development of human resources as a whole. Besides Article 21, Constitution, through the instrumentality of DPSP under Article 39 A and 47 mentioned in part IV of the constitution have also cast a positive obligation on the state to take affirmative steps, so as to meet the ends of equity and justice. Article 39A requires the State to direct its policies so as to secure all its citizen’s adequate means of employment and Article 47 directs the state to raise the level of nutrition and standard of living of its citizens by providing them avenues of shelter, clothing, education, health, and other amenities for integrated development.

The right to food and shelter can thus be enforced under article 32 of the constitution. The Supreme Court, through its various pronouncements, has rightly held these rights as fundamental to survival and has thereby kept it under the ambit of Article 21 of the Indian constitution.

  1. Chameli Singh v. State of UP 6
    The SC held the right to shelter as a fundamental right under Art. 21 of the constitution. The court held that in given civilized societies, human living did not imply a mere animal existence, but included all those facilities that go into making the human life worthful and dignified. The right to live implied the basic human rights of food, shelter, water, medical care, education, clean environment, sanitation, and other amenities. The right to shelter not only includes the mere facility of a roof over one’s head but includes the right to have all those necessary infrastructures that enable one to live off a meaningful life and develop as a human being.
  2. Francis Coralie v. union Territory of Delhi 7
    The Supreme Court in this case interpreted the Right to Life enshrined under Article 21 and held that the right to life included more than mere animal existence and physical survival. The right to ‘life’ was not confined to those physical faculties or limbs through which we interact with the outside world but includes the right to live with human dignity which includes all those necessities that go into survival such as food, clothing, shelter, and facilities for education and expression.
  3. PUCL v. Union of India 8
    In this case, the Supreme Court held the right to food as a fundamental right of the people under Article 21 that guarantees the right to life. Court held that State ought to provide food grains free of cost from the surplus reserve lying with the States to the starving people such as destitute children /men/ women, aged, infirm, disabled who were unable to purchase food grains. They have the right to get fed under Article 21.
  4. P.G. Gupta v. Slate of Gujarat and Ors 9
    The court held that the basic needs of man in any civilized society traditionally include the trinity of food, clothing, and shelter. The Right to life under Article 21 includes within its sweep right to food, right to reasonable accommodation, and right to a decent environment.
  5. Kapila Hingorani vs State Of Bihar 10
    The court held that the employees of the public sector undertaking have a fundamental right under article 21 to get the salaries paid by the government as the denial of the same may lead to hunger which is a gross violation of human rights. The State cannot claim lack of resource and abdicate from its duty to pay its employees as the same would amount to a denial of basic and indispensable fundamental rights under Article 21.

Conclusion

Article 21 rightly seeks to serve the interests of all individuals irrespective of their by validating their right to life and personal liberty. By including the sets of rights that are crucial and imperative for the survival of human beings with dignity and that form an indispensable part of the basic human rights, it serves the purpose of equity, justice, fairness, and principles of natural justice.

Citations

  1. AIR 1978 SC 597
  2. AIR 1950 SC 27
  3. AIR 1963 SC 1295
  4. AIR 1975 SC 1378
  5. AIR 1978 SC 597
  6. (1996) 2 SCC 549
  7. AIR 1981 SC 746
  8. 2000 (5) SCALE 30
  9. [1995] Supp. 2 SCC 182
  10. 2003 Supp(1) SCR 175

Written by Riya Ganguly student at Bharati Vidyapeeth New Law College, Pune.

Justice Puttaswamy v. Union of India

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Equivalent Citation

Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

Bench

Sanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S. A. Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ

Decided on

24th  August 2017

Relevant Act/ Section

Article 19,19(1)(a), 21 and 25

Brief Facts and Procedural History

The Government of India has launched a scheme called “Unique Identification for BPL Families.” For the initiative, a committee was also formed. The Committee suggested that a ‘Unique Identification Database’ be created for the project. The project will be divided into three phases, according to the decision. The Planning Commission of India then issued a notification on UIDAI in January 2009. (Unique Identification Authority of India). In the year 2010, the Planning Commission also approved the National Identification Authority of India Bill. The current case was filed by retired High Court Judge K.S. Puttaswamy, who is 91 years old, is against the Union of India, or the Government of India. The case was heard by a nine-judge Supreme Court bench that had been created specifically for the Constitution Bench. Following conflicting judgments from other Supreme Court benches, the special bench was constituted to assess whether the “right to privacy” was guaranteed as an independent basic right.

The case emphasized various concerns about the government’s Aadhaar program (a form of uniform biometrics-based identity card). In the near future, the government suggested that the above-mentioned plan become required for access to government services and benefits. Initially, the challenge was brought before a three-judge bench of the Supreme Court, claiming that the scheme invaded the “right to privacy” provided to Indian people by the Constitution. On account of the Union of India, the Attorney General disputed that the Indian Constitution does not give particular protections for the right to privacy. He based this on observations made at various times in the cases of M.P. Sharma vs. Satish Chandra (an eight-judge bench) and Kharak Singh vs. Uttar Pradesh (an eight-judge bench) (a five-judge bench). Following that, an eleven-judge panel determined that basic rights should not be regarded as separate, unrelated rights, upholding the dissenting opinion in the Kharak Singh case. This also acted as a precedent of following rulings by smaller benches of the Supreme Court which expressly recognized the right to privacy. Moreover, it was in this circumstance that a Constitution Bench was established, which found that a nine-judge bench should be established to assess whether the Constitution contained a fundamental right to privacy or not.

Finally, on August 24, 2017, the Supreme Court issued a landmark decision, declaring the right to privacy a Fundamental Right under Article 21 of the Indian Constitution.


Issues before the Court

  • Whether the ‘right to privacy’ is a basic part of the right to life and personal liberty provided under Article 21 and also a part of the freedoms provided by Part III of the Constitution,
  • And whether the judgment was taken in M P Sharma v Satish Chandra, District Magistrate, Delhi was right in the face of law?
  • And was the decision taken in Kharak Singh v State of Uttar Pradesh correct in a legal sense?

The decision of the Court

On August 24, 2017, a nine-judge panel of the Supreme Court of India issued a major decision upholding the basic right to privacy guaranteed by Article 21 of India’s constitution. The Supreme Court’s historic nine-judge bench unanimously agreed that Article 21 of the Constitution secured the right to privacy as an essential aspect of the right to life and personal liberty. Privacy is a distinct and independent basic right granted by Article 21 of the Indian Constitution, according to the Supreme Court, which relied on six separate judgments. The decision’s most crucial element conveyed a broad interpretation of the right to privacy. It was clarified that the right to privacy is a broad right that covers the body and mind, including judgments, choices, information, and freedom, rather than narrow protection against physical derivation or an invasion right under Article 21. Privacy was found to be a predominant, enforceable, and multifaceted right under Part III of the Constitution. Overall, the Court overturned the judgments in M.P. Sharma and Kharak Singh because the latter found that the right to privacy was not a fundamental right guaranteed by the Constitution, and the Court found that the judgment in M.P. Sharma was legitimate because the Indian Constitution did not contain any limitations to the laws on search and seizure comparable to the Fourth Amendment in the United States Constitution. Nevertheless, the Court held that the Fourth Amendment was not a comprehensive concept of security and that the absence of a comparable assurance in the Constitution didn’t imply that India lacked a distinctive right to protection by any stretch of the imagination– and thus, the decision in M.P. Sharma was overturned. Kharak Singh’s biased perspective on close-to-home freedom was also invalidated by the Supreme Court. This viewpoint was referred to as the “storehouse” approach obtained from A.K. Gopalan by Justice D.Y. Chandrachud. The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned.

The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned. The Court also pointed out that the majority conclusion in Kharak Singh was internally inconsistent, as there was no legal basis for striking down domiciliary visits and police monitoring on any grounds other than privacy – a right they referred to in theory yet ruled to be unconstitutional. The Court further stated that subsequent cases maintaining the right to privacy after Kharak Singh should be viewed in light of the principles set forth in the opinion. The court also considered whether the right to life, the right to personal liberty, and the right to liberty established in Part III of the Constitution protects the right to privacy in affirmative instances. The court decided that privacy “is not an exclusive concept.” It dismissed the Attorney General’s position that the right to privacy should be ceded in exchange for the state’s welfare rights. Overall, while ruling that the right to privacy is not self-contained, the decision also outlined a legal survey standard that should be applied when the state intrudes on a person’s privacy.

It was decided that the right to privacy could be limited where an intrusion met the three-fold requirement of legality, which assumes the existence of law; need, which is defined in terms of a reliable state point; and proportionality, which ensures a reasonable relationship between the objects and the methods used to achieve them. The fourth point of this criteria was added by Justice S.K Kaul, who demanded “procedural assurances against maltreatment of such obstacles. Chelameswar, on the other hand, feels that the “overriding national interest” threshold should be applied only to privacy claims that demand “close inspection.”

The court found that the fair, just, and reasonable criteria of Article 21 should be applied to additional privacy issues and that whether or not to apply the “national priority” standard depends on the facts. The court also stressed the importance of sexual orientation in terms of privacy. It also examined the negative and positive aspects of the right to privacy, namely, that the state is not only prohibited from interfering with this right but is also required to take reasonable steps to protect personal privacy. Information privacy is part of the right to privacy, according to the ruling. Despite the fact that the court recognized the need for a data protection law, it left the burden of enacting legislation to Parliament.

References

Justice K.S.Puttaswamy (Retired). vs Union of India and Ors., 2017. | LawFoyer

Written by Vidushi Joshi student at UPES, Dehradun.

NAVTEJ SINGH JOHAR V/s UNION OF INDIA

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Citation of the case

AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.

Date of the case

6 September 2018

Petitioner

Navtej Singh Johar & Ors.

Respondent(s)

Union of India & Ors.

Bench/Judges

Dipak Misra, R. F. Nariman, D. Y. Chandrachud, and Indu Malhotra.

Statutes Involved

The Constitution of India, The Indian Penal Code.

Important Sections/Articles

Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

INTRODUCTION

Navtej Singh Johar V/s Union of India1 was one of the most critical cases, which changed our Indian laws and conveyed us with a superior understanding of those laws. Right to Life under Art. 21 of The Indian Constitution isn’t just with regards to allowing an individual to live, yet permitting everybody to live they need to live, in any means not harming those of others. Neither The Indian Constitution discusses the Right to Equality on a separate premise. Each living being is to partake in those freedoms with practically no segregation or imbalance.

An individual’s Natural Identity is to be treated as fundamental. What an individual is brought into the world with is normal, the same way the character an individual is brought into the world with is regular and is to be regarded and acknowledged as opposed to being scorned or peered downward on. Crumbling or deterring an individual’s character and personality would be something like pounding the upsides of Privacy, Choice, Freedom of Speech, and different Expressions. For long, the transsexual local area has been peered downward on, to which once Radhakrishnan, J. expressed, Gender character alludes to every individual’s profoundly felt inside and individual experience of orientation, which could compare with the sex relegated upon entering the world, including the individual feeling of the body which might include an openly picked, adjustment of real appearance or capacities by clinical, careful, or different means and different articulations of orientation, including dress, discourse, and peculiarities. Orientation personality, along these lines, alludes to a singular’s self-distinguishing proof as a man, lady, transsexual, or other recognized class. Numerous strict bodies have gone against the Carnal intercourse against the Order of nature and some remember it as a demonstration disparaging the protected idea of Dignity. The Navtej Singh Johar V/s Union of India was the milestone case which prompted the struck down of S. 377 of The Indian Penal Code, as it expressed – Whoever deliberately has licentious inter­course against the request for nature with any man, lady or creature, will be rebuffed with 1[imprisonment for life], or with impris­onment of one or the other depiction for a term which might stretch out to a decade, and will likewise be responsible to fine.

BACKGROUND OF THE CASE

Writ Petition (Crl) No. 76 of 2016 was petitioned for proclaiming the right to sexuality, right to sexual independence, and right to the decision of a sexual accomplice to be essential for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful. Mr. Arvind Datar learned senior guidance showing up for the writ applicants presented that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been directed by friendly ethical quality in light of majoritarian discernment while the issue, in reality, should have been bantered upon in the setting of sacred ethical quality. Likewise in a Nine-Judge Bench choice in K.S. Puttaswamy and another v. Association of India and Ors., have thought that sexual direction is a fundamental part of freedoms ensured under the Constitution which are not formed on majoritarian discernment. Mr. Arvind Datar expressed that he doesn’t expect to challenge the piece of S. 377 that connects with licentious intercourse with creatures, he limits consenting demonstrations between two grown-ups. The assent between two grown-ups must be the essential pre-condition. If not, the kids would become prey, and insurance of the youngsters in all circles must be monitored and ensured.

FACTS OF THE CASE

Navtej Singh Johar, an artist alongside Sunil Mehra a columnist, a culinary specialist Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, all in all, documented a writ request in the Supreme Court looking for a presentation of the right to sexuality, right to sexual independence and right to the decision of a sexual accomplice to be important for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful, as it was impeding the privileges of the LGBT people group. It was expressed that this segment not just abused A. 21 yet in addition A. 15, 19 alongside the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had likewise been a few cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi2 and Suresh Kumar Koushal v. Naz Foundation3, which were likewise kept in thought during this case.

ISSUES RAISED

  1. Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
  2. Whether S. 377 violates A. 14 and 15 of the constitution?
  3. Whether S. 377 infringes the right to privacy under A. 21?
  4. Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

CONTENTIONS OF THE PETITIONER

  • The Petitioner had lamented that the individuals from the LGBT people group were denied the right to life ensured by Art. 21 of the Constitution of India.
  • The S. 377 of The Indian Penal Code conflicted with the A. 14, 15 of the Indian Constitution as they, as an individual were dealt with inconsistent to other people and segregated on the premise of sex of an individual’s sexual accomplice, and they, had to not to pick an accomplice of their enjoying.
  • 19 of The Indian Constitution out of totally was the most cut off, as the local area was denied to communicate their sexual personality through discourse and decision of an accomplice of their enjoying.
  • Right to protection under the Fundamental Duties was being impacted as they were evaded by society on finding their specific decision of living.
  • It was encouraged to the statement of the S. 377 of The Indian Penal Code, illegal and perceiving the right to sexuality, right to sexual independence, and right to the decision of the sexual accomplice to be essential for A. 21 of the Indian Constitution.

CONTENTIONS BY THE RESPONDENTS

  • The Union of India, taking a nonpartisan side passed on the make a difference to the Hon’ble Court by commenting “It left the topic of the sacred legitimacy of Section 377 to the insight of the Court”. Furthermore, found out if the law set down in Suresh Kumar Koushal v. Naz Foundation, is right or not.
  • Shri K. Radhakrishnan, senior guidance, for the benefit of intervenor-NGO, Trust God Ministries contended, there is no private freedom to mishandle one’s organs and that the hostile demonstrations prohibited by S. 377 are submitted by manhandling the organs. Such demonstrations, according to the intervenor, are undignified and overly critical to the protected idea of nobility and on the off chance that any infraction is caused to the idea of poise, it would add up to established off-base and sacred shamelessness.
  • The people enjoying unnatural sexual demonstrations which have been made culpable under S. 377 are more helpless and defenseless against contracting HIV/AIDS, additionally, the level of commonness of AIDS in gay people is a lot more prominent than heteros, and the right to protection may not be stretched out to empower individuals to enjoy unnatural offenses and in this way contact AIDS.
  • Mr. Suresh Kumar Koushal, intervenor, by a composed accommodation contended in that that the contention of the candidates that consensual demonstrations of grown-ups in private have been decriminalized in many regions of the planet and, hence, it should be decriminalized in India.
  • On the occasion consenting demonstrations between two same-sex grown-ups are barred from the ambit of S. 377, then, at that point, a wedded lady would be delivered remediless under the IPC against her bi-sexual spouse and his consenting male accomplice enjoying any sexual demonstrations.
  • For the benefit of Raza Academy, the intervenor, through its learned direction Mr. R.R Kishore, it was contended that homosexuality is against the nature request and S. 377 properly precludes it.

JUDGMENT

  1. S. 377 of The Indian Penal Code, to the extent that it applied to the consensual sexual direct between the grown-ups in private was announced Unconstitutional.
  2. The choice in the Suresh Kumar Koushal v. Naz Foundation (1) was overruled.
  3. Basic privileges are accessible to the LGBT people group even though they comprise a minority.
  4. S. 377 is violative of A. 14 being entirely discretionary, unclear, and has an unlawful goal.
  5. S. 377 punishes an individual in light of their sexual direction and is consequently oppressive under A. 15.
  6. S. 377 ignores the right to life and freedom provided by A. 21 which includes all parts of the option to live with poise, the right to protection, and the right to independence and self-assurance concerning the coziest choices of an individual.

CONCLUSION

The judgment for the situation was notable as it struck down the S. 377 of The Indian Penal Code and it allowed them to the Homosexuals and every one of the individuals from the LGBT people group to unreservedly put themselves out there and to stroll with a head high in the general public. They don’t need to fear being evaded by society and their right to security being pulverized and pronounced as hoodlums because they communicated their friendship and affections for their sexual accomplice.

This judgment was an overjoy for each individual from the LGBT people group and different Heterosexuals. The choice was valued even abroad by different NGOs and gatherings named The Human Rights Watch, in this manner acquiring global acknowledgment. Different translations were made to clarify what laws said and that they are to cling to and everybody in the general public is to be dealt with similarly.

References

  1. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 8 January, 2018. indiankanoon.org.[Online] https://indiankanoon.org/doc/119980704/.
  2. Naz Foundation v. Govt. of NCT of Delhi. en.wikipedia.org. [Online] https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%20Foundatio
    n%20v.%20Govt.%20of%20NCT%20of%20Delhi,violation%20of%20fundamental%20rights%20protected%20by%20India%27s%20Constitution    ..
  3. Suresh Kumar Koushal and another v. Naz Foundation and Others. www.desikanoon.co.in. [Online] https://www.desikanoon.co.in/2014/02/suresh-kumar-koushal-anr-v-naz.html.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

BACHAN SINGH VS STATE OF PUNJAB

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CASE NUMBER

Appeal No. 273 of 1979

CITATIONS

AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

BENCH

Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria

DECIDED ON

9 MAY, 1980.

This reference to the Constitution Bench raises a question in regard to the constitutional validity of the death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973.

FACTS OF THE CASE

Bachan Singh had been convicted of his wife’s murder and sentenced to life in jail under Section 302 of the Indian Penal Code in the previous case. After serving his term, he was released and spent about six months with his cousin Hukam Singh and his family. Hukam Singh’s family members, including his wife and kid, questioned the appellant’s presence at his apartment.

The family went to bed after dinner on the night of the crime, July 4, 1977. When Vidya Bai (daughter) was woken by the alarm about midnight, she witnessed the appellant inflicting axe blows on the face of her sister, Veeran Bai. When she tried to stop him, the appellant struck her in the face and ear with the axe, knocking her out. Diwan Singh awoke from his rest after hearing the shriek and witnessed the appellant attack Desa Singh with the axe.

The Sessions Court later found the appellant guilty of murdering three individuals, including Hukam Singh’s son, Desa Singh, Durga Bai, and Veeran Bai (Hukam Singh’s daughters), as well as injuring Vidya Bai (Hukam Singh’s other daughter). On appeal, the High Court upheld the death sentence given by the Trial Court. In addition, both the Trial Court and the High Court ruled that Vidya Bai’s injuries were inhumane.

Bachan Singh then sought a special leave to appeal in the Supreme Court, raising the issue of whether “special reasons” exist in the facts of the case, which are required for the death penalty to be imposed under Section 354(3) of the Code of Criminal Procedure.

ISSUES RAISED

  • Whether or not Section 302 of the Indian Penal Code’s provision for the death penalty for murder was unconstitutional?
  • Is Article 19 relevant in establishing the validity of Section 302 of the IPC’s challenged provision?
  • Is Section 302 of the IPC’s disputed limb in violation of Article 21 of the Constitution?
  • Is Section 354(3) of the Criminal Procedure Code, which governs sentencing, unconstitutional on the grounds that it gives the Court unguided and unrestricted discretion and allows the death penalty to be imposed arbitrarily on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code if the answer to the preceding question is no?


DECISION OF THE COURT

The Supreme Court dismissed the constitutional objections to Sections 302 of the Indian Penal Code and 354(3) of the Criminal Procedure Code. The Court went on to say that the six essential rights protected by Article 19(1) aren’t absolute. For starters, they are subject to limitations imposed by an individual’s commitment not to exercise their rights in a way that harms or infringes on the rights of other members of society. This is founded on the maxim sic utere tuo ut alienum non laedas, which states that an individual must use their property in a way that does not infringe on another person’s legal rights.

Another question is whether the courts have unfettered discretion in inflicting the death penalty, as well as the nature and scope of the specific reasons. Section 354(3) of the CrPC defines “special reasons” as “extraordinary causes related to the serious nature of the offence.” In granting the death punishment, the Supreme Court established the theory of the “rarest of the rare circumstances.” For individuals convicted of murder, life imprisonment is the norm, with the death penalty being an exception. It would be unusual to use discretion under Section 354(3) of the CrPC, 1973. Only offences that shook society’s collective conscience would receive the death punishment. Only in the rarest of circumstances should the death penalty be used.

This is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.

Analysis of the Pegasus case

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Introduction

Spyware has always been a murky subject in terms of spying between governments. Spyware has been viewed as a critical component since it is thought critically to monitor and identify individuals who may be involved in illegal or terrorist activities. On the other hand, it is hugely controversial because, while ostensibly targeting criminal activity, such organizations or businesses may attack civil citizens or protestors in any region. This is an important point to remember since such meddling might result in a cyberwar or cyberattack, which could affect the political system of a country like Estonia. The Pegasus case has served as a forewarning of forthcoming cybersecurity concerns and the legislation that is required to address them.

Facts

  • NSO group technologies is an Israeli firm that specializes in the investigation. This firm developed the spyware known as ‘Pegasus.’ It is a commercial company that monitors terrorists, drug traffickers, and other criminals, supporting government intelligence and law enforcement in overcoming encryption and technical hurdles.
  • WhatsApp, which is owned by Facebook Inc., filed a lawsuit against NSO Group Technologies in California court on October 29th, 2019.
  • According to WhatsApp, the malware ‘Pegasus’ deployed by the corporation compromised the phone systems of 1,400 users from all over the world. Users included civil society members, journalists, and Human Rights defenders from nearly twenty nations, according to the report.
  • Because NSO Group was unable to respond or attend in court, the court issued a notice of default.
  • It was claimed that the corporation used computer infrastructure and remote monitoring to insert spyware into customers’ devices via WhatsApp, causing a dangerous code to establish a connection between the users and the company without the consumers’ knowledge.
  • NSO groups claimed that they were not properly served with notice of the action in a timely manner, in violation of international law.
  • According to WhatsApp, multiple attempts were made to serve the notification on the firm.
  • On March 6, 2020, NSO filed an application with a California court to have the previous decision overturned because the notice was not served on time, which is a violation of The Hague Convention due to WhatsApp’s incomplete service.
  • NSO filed a separate case against WhatsApp in Israel on November 26th, stating that Facebook had disabled their private accounts. Facebook responded by stating that they had done so for security concerns.

Argument and Decision

NSO stated that the petitioner had breached international law by failing to provide legal notice of the action filed in a California court of law. They further claimed that they were just targeting the customer’s database provided to them and that they had no intention of targeting WhatsApp users. Furthermore, they asserted that the company’s customers are foreign sovereigns and that as a private agent for such users and of a foreign state, they are entitled to immunity under US law. It was also maintained that because they were acting as a supplier and were following the orders of their customers or the government, they could not be held accountable. WhatsApp contended that the NSO’s action was purposeful and intended to spy on those involved in social causes or other civil society members. It requested a permanent order from the court to prevent NSO from interfering with WhatsApp and Facebook’s computer systems. It claimed that NSO had broken the California Comprehensive Computer Data Access and Fraud Act and had trespassed on WhatsApp’s premises without permission. The District Court of California ruled in favor of WhatsApp in July 2020, and the litigation will move forward.

What is Pegasus

NSO, an Israeli cyber arms outfit, developed spyware to track a user’s mobile device. A link is provided to the user or targeted person in this spyware, and as soon as the targeted person opens the link, malware is injected into the device, allowing surveillance of the target. A new version of the same is said to be more powerful and destructive, and it doesn’t even need the user’s help. This spyware was produced by the organization to keep an eye on terrorists and
other criminals. To carry out such actions, the NSO collaborates with other governments and law enforcement agencies.

Effects

The charges stated by WhatsApp in its court application are extremely serious. According to WhatsApp, once this malware has been downloaded to a user’s smartphone, it can access emails, SMSs, passwords, location, network information, browser history, and device settings. The Citizen Lab claims that in addition to contact lists and emails, it has access to the device’s camera and microphone, allowing it to record all calls and messages. Pegasus has also allegedly used WhatsApp’s video and voice call functions, allowing the spyware to infiltrate the smartphone without the user’s knowledge.

Indian Laws governing Spyware Attacks

In India, the Pegasus case served as a wake-up call. Many Indian activists and civil society members were allegedly spied on by this spyware, according to WhatsApp. This calls into doubt India’s data protection and privacy laws. The ‘Right to Privacy’ was recognized as a fundamental right in the case of Justice Puttaswamy v. Union of India, and like any other fundamental right, it is subject to some limitations. There are four tests that can be utilized in privacy cases, according to Justice Chelameshwar:
Under Article 14, arbitrary state action may be subject to a reasonableness inquiry. The verdict makes it apparent that privacy, as a basic right, is a private aspect of citizens’ lives that must be preserved as a right under Article 21, which guarantees the right to life and personal liberty. Even when certain limits are imposed for the sake of public order or national security, people’s fundamental rights should not be violated. The Pegasus case demonstrated how spyware can compromise a user’s privacy and personal information. As a result, it is critical to analyze and implement a solid data privacy policy.

Conclusion

Spyware incidents like Pegasus represent the beginning of a new era of digital warfare. Such situations are likely to become more common as technology advances. It is critical that there are strict rules in place in the event of foreign unauthorised access to devices and spyware control limitations. The Pegasus case also emphasized the necessity for spyware regulation, as the goal of targeting users who are criminals or suspicion of criminal activity might extend to spying on persons like activists and protestors, threatening democracy and individual privacy in the long run.

References–
1. The Pegasus case and the laws concerning spyware in India – iPleaders

This article is written by Vidushi Joshi student at UPES, Dehradun.

Problems and Miseries of Migrant Labourer

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-Report by RAVINUTHALA VAMSI KRISHNA

The sue motto case was taken by the supreme court in May 2020 to deal with the problems of migrant workers during the national lockdown which disposed of with these directions. As we know Covid-19 entered into our Lives in March 2020.

Petitioner’s Contention:

In this sue motto case where we know Covid-19 entered into our Life’s in March 2020. First It was identified in China in the year 2019 December. So, in March 2020, our Government imposed a national wide Lockdown, the courts referred to some news and media reports where migrant workers were fighting for food and transportation because of this imposition of National wide lockdown. So, we saw the fight of this migrant worker, sudden abroad imposing of this lockdown that let to flight of this migrant workers. So, at that time, because of this national wide imposition of lockdowns, where we shut down the manufacturing factories, Construction sites, etc. so because of all this there is no proper livelihood, there is no proper work, and there is no income for this people and there is no transportation even to go to their home towns. And we saw many people have lost their lives. And there was an increase in poverty and an increase in hungry. So, because of all these things, The court also observed that is the fundamental right to life enshrined in Article 21 constitution of India may be interpreted to include the right to live with human dignity which may include the right to food and other necessities. Supreme Court gives some important decisions to Central and state governments. Supreme court said that, so this person also became our part of society, it is the role that it is the government responsible to take care of this people, because of this migrant people, even though Government is providing subsidies food grains to these people were not getting this because due to lack of Ration cards.

KEY HIGHLIGHTS

  • Supreme Court instructs the government to ensure that no migrant worker goes hungry.
  • Supreme Court ordered that we need to go for One Nation One Ration.

Judgment:

The Bench observed that it is the bound duty of all states and governments to provide food security to impoverished persons. So, The article mainly saying that Supreme Court give a deadline of July 31st and directed central as well as state to take some steps mainly for these migrant people. Supreme Court held that and ordered states and government’s that we need to go for One Nation One Ration.

Provisions Used In This Case:

Article 21 of the constitution of India
Right to Life and Personal Liberty: This may be interpreted to include the right to live with human decency which may include that the right to food and other necessities.

Distribution of Essential Supplies and Services During Pandemic

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-Report by Manaswa Sharma

Introduction

Proceedings withinside the present suo motu writ petition had been initiated on 22 April 2021, while this Court took consciousness of the control of the COVID-19 pandemic at some stage in the second wave. Subsequently, hearings had been performed on 23 April 2021, 27 April 2021, and 30 April 2021 while submissions had been heard on behalf of the Union of India, States/Union Territories, found out Amici appointed through this Court and a number of the intervenors

Since the remaining listening to on this matter, the second wave of the COVID-19 pandemic has begun out receding throughout the state and the scenario seems to have come to be extra manageable. Hence, a number of the problems mentioned withinside the preceding orders can watch for similar deliberation. However, the problem of vaccination is surely crucial, because fitness professionals globally agree that vaccination of the state’s complete eligible populace is the singular maximum critical project inefficaciously preventing the COVID-19 pandemic withinside the lengthy run. Hence, at some stage in the direction of the court cases on 31 May 2021, this Court has restricted itself to listening to submissions at the UoI’s vaccination coverage and its roadmap for the future. By manner of plentiful clarification, we observe that every one of the problems contained on this Court’s preceding orders nonetheless holds their universal importance, and this Court shall keep to screen them along with the National Task Force and intrude each time necessary.

Submission by Counsel

Tushar Mehta, Solicitor General, based on the affidavit of the UoI dated May 9, 2021, has filed the following additions in the light of recent updates:

  • The vaccination campaign will be completed by the end of December 2021, and the central government is leading at the highest political and level Active diplomatic talks with foreign vaccine manufacturers to ensure sufficient vaccine supplies;
  • It would be wrong to suggest that one consequence of the updated UoI directive on vaccinating 18-44-year-olds is that there will be competition between states / UT; and
  • Anyone over 45 can continue to be vaccinated at a center by registering on-site without pre-booking an appointment through CoWIN.

Mr. Jaideep Gupta and Ms. Meenakshi Arora, discovered Senior suggests and Amici, have raised the subsequent troubles referring to vaccination distribution, augmentation of vaccine manufacturing and differential pricing of vaccines, and the destiny preparedness for handling the COVID-19 pandemic:

  • With admire to the procurement of vaccines, reviews endorse that overseas vaccine producer are commonly now no longer receptive or open to a speak with State/UT Governments on the premise that, as a rely upon company coverage, they handiest cope with federal governments of various countries;
  • The UIP has been changed through the Liberalized Pricing and Accelerated National COVID-19 Vaccination Strategy from 1 May 2021 in segment three of the vaccination force.

National Vaccination Policy

Phase 1 of the National COVID-19 Vaccination Strategy become released on sixteen January 2021 and 1 February 2021 and become centered closer to shielding HCWs and FLWs. Phase 2 become initiated on 1 March 2021 and 1 April 2021, and become directed closer to shielding the maximum susceptible populace withinside the age organization of men and women above forty-five years of age. In sections 1 and 2, the UoI become buying the vaccines and dispensing them to the States/UTs freed from fee for disbursal thru authorities and personal COVID-19 vaccination centers. The personal centers had been now no longer allowed to price a sum above Rs 250 in step with an individual in step with dose (Rs a hundred and fifty for vaccines and Rs a hundred as operational charges) from a beneficiary.

Separation of Powers

First, we try to clarify the nature of the court’s jurisdiction over the administration of the COVID-19 pandemic in India.​​​ The affidavit dated May 9, 2021, listed the following points:

  • The current vaccination policy is in line with Articles 14 and 21 of the Constitution and does not require court intervention, because the administrative department has “room for maneuver” in the face of such a large-scale epidemic;
  • Continue to take measures to deal with the imminent crisis, In the long run, this may be reckless; however, they should be fully evaluated in the short term;
  • Judicial review of administrative guidelines is only allowed in completely arbitrary circumstances. When executives need expert medical and scientific advice to solve a medical crisis, procedures need to be adopted;
  • In the absence of professional advice or management experience, any excessive, albeit in good faith, judicial intervention may lead to undesirable situations. There is almost no room for managers to find innovative solutions.

Issues with the Liberalized Vaccination Policy

1.Vaccine Logistics

We have already stated that attributable to the Liberalized Vaccination Policy, the obligation for the vaccination in segment three is being divided among the Central Government (for the ones above forty-five years of age, HCWs and FLWs) and the State/UT Government together with the non-public hospitals (for the age institution of 18-forty four years). This could suggest that the constrained vaccine logistics to be had in a State/UT could be shared among the State/UT Government and the Central Government. This isn’t the same as the state of affairs beneath neath the UIP, wherein the Central Government buys and allocates vaccines to States/UTs, as a way to make certain that their bloodless garage centers aren’t overwhelmed. Hence, we direct the UoI to offer the subsequent clarifications:

  • The way wherein bloodless garage gadget capability is being balanced among the Central and State/UT Governments. The way wherein the States/UTs are dealing with the logistical burden for vaccinating men and women elderly among 18-forty four years, together with men and women elderly over forty-five years.
  • Whether bloodless garage centers in India have improved for the COVID-19 vaccination drive; the prevailing numbers, and evaluation with the numbers previous to March 2020;
  • Whether the bloodless garage gadget is indigenously synthetic or is imported. If it’s far imported, the stairs that have been taken to begin indigenous manufacturing.

3.Digital Divide

In our order dated 30 April 2021, we had highlighted the issues regarding the cap potential of the marginalized participants of society to avail of vaccination, completely via a virtual portal within side the face of a virtual divide. The UoI’s affidavit made the subsequent submissions in terms of the accessibility of the CoWIN portal:

  • The CoWIN portal allows one individual to sign in four folks the usage of the equal cellular wide variety;
  • Walk-ins can not be accredited because of the shortage of vaccines and fears of overcrowding at centers. The online registration requirement counters this worry and additionally efficaciously video display units the management of the second dose. The coverage can be re-taken into consideration in the end whilst extra vaccines are to be had.

It has been delivered to our be aware that the CoWIN platform isn’t handy to folks with visible disabilities. The internet site suffers from positive accessibility obstacles which have to be addressed. These encompass:

  • Audio or textual content captcha isn’t to be had;
  • The seven filters, which inter alia, encompass age group, call of vaccine, and whether or not the vaccine is paid or free, aren’t designed accessibly. This problem may be addressed with the aid of using the introduction of a drop-down list;
  • While visually challenged folks can decide the wide variety of to be had vaccine slots, one can not discover the day the ones slots correspond to. This may be resolved with the aid of using making sure that desk headers correspond to related cells.

Conclusion

We direct the UoI to report a testimony, which shall cope with the troubles and questions raised in Section E, in which it shall make certain that every problem is answered to in my opinion and no problem is neglected out. We additionally direct that the affidavit ought to offer the subsequent information:

  • The records on the proportion of populace that has been vaccinated (with one dose and each dose), as towards eligible folks withinside the first 3 stages of the vaccination drive. This shall encompass records relating the proportion of rural populace in addition to the proportion of city populace so vaccinated;
  • The whole records at the Central Government’s buy records of all of the COVID-19 vaccines until date (Covaxin, Covishield, and Sputnik V). The records ought to make clear: (a) the dates of all procurement orders positioned via way of means of the Central Government for all three vaccines; (b) the number of vaccines ordered as on every date; and (c) the projected date of supply.

We additionally notice that UoI’s said to function in its affidavit dated nine May 2021 is that each State/UT Government shall offer vaccination freed from fee to its populace. Person State/UT Governments must confirm/deny this function earlier than this Court. Further, if they have determined to vaccinate their populace free of charge then, as a rely upon principle, it’s far critical that this coverage is annexed to their affidavit, so that the populace inside their territories may be confident in their proper to be vaccinated free of charge at a State vaccination center. Hence, we direct every of the State/UT Governments to additionally report a testimony within 2 weeks, wherein they shall make clear their function and place on file their policies.

……………………………………J. [Dr Dhananjaya Y Chandrachud]

……………………………………J. [L Nageswara Rao]

……………………………………J. [S Ravindra Bhat]

New Delhi.

Mercy Petition: Boon or Bane

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This article is written by Vishrut Gupta, a law student from Lloyd Law College. The article aims to explain to the readers about the Mercy Petition which acts as a lifeguard provision for a guilty person.

Introduction

According to the Cambridge dictionary, ‘mercy’ literally means- the act of forgiving someone more specifically when you have some authority. But, as the word enters the periphery of the legal world, it carries a different meaning altogether. When the punishment of a convict is remitted, it is done through a ‘mercy petition’. A mercy petition is an application filed by an accused or a convicted person to the president of the supreme authority requesting to remit/ reduce the death sentence. It is done usually in the case where a miscarriage of justice or suspicious conviction is done. This concept of mercy petition is followed in many countries such as India, the US, UK, Canada, etc. Different countries have distinct authorities to cater this mercy petition as per the provisions of their constitution but mostly it is addressed to the president of a country. In the US and India, mercy petitions are subject to the discretion of the president. If the whole sentence is canceled, it is known as ‘pardon’ and if it is remitted partly after or before sentence, it is known as ‘clemency’ or ‘mercy’.

Legal Provisions

Article 21 of the constitution of India ensures that no person will be deprived of his right to life. Mercy petition following article 21 and article 14, which talks about the right to equality, clearly has some essence of the human sentiments and protects the basic human rights of every prisoner where the convictions are suspicious. Article 72 of the Constitution says that the President shall have the power to grant pardons and reprieves of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Similar power is given to the governors under Article 161 of the Constitution. The duration taken by the executive for disposal of mercy petition depends on the nature of the case and the gravity of the crime. It also depends upon the number of mercy petitions submitted to the court. The court, therefore, cannot set a time limit for disposal of even for mercy petitions. But, recently the Home Ministry has brought some essential changes in the laws on the mercy petition.

When Can a Mercy Petition be Filed? 

Mercy petition is the penultimate step for a prisoner. A convicted person cannot directly file a mercy petition. There are several other provisions to provide justice and if they don’t work, the person opts for the last option i.e. the mercy petition. The procedure and the steps involved before filing a mercy petition are:

  • A punishment is usually given by a trial court and if there is a suspicion in the conviction or miscarriage of justice is observed, an appeal can directly be filed in the High Court seeking justice.
  • If High Court does not entertain and dismisses the plea, the convicted person can file a review petition directly in the Supreme Court to seek remission in the sentence. If he faces another rejection, a curative petition helps.
  • Curative petition was first introduced in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002). It works on the Latin maxim- “actus curiae neminem gravity” meaning that the court shall not be prejudice in its actions. The main objective is to prevent the abuse of power in due process and eliminating the miscarriage of justice. It is supported by Article 137 mentioned in the constitution of India.
  • If the curative petition also fails, the last resort of mercy petition opts which might help the convict or prisoner. 

Layers Through Which the Mercy Petition Passes

The petition is filed and submitted by the prisoner or his relative to the governor or president depending upon the case. It is then received by the Secretariat of the President. The Secretariat sends it further to the Ministry of Home Affairs for their recommendation. The Home Ministry discusses it with the concerned state and checks the details such as the background of the criminal and the gravity of the crime. The Ministry after consulting with the state prepares a report with suggestions and sends it back to the President. The President after going through everything grants the pardon/remission or dismisses the plea depending upon the facts and need of the situation. This is a very time taking process and sometimes it takes years.

Powers of President

  • Pardon: To cancel the whole sentence and conviction of the prisoner.
  • Remission: The nature of the sentence remains the same with the reduction in the punishment like decreasing the number of years of rigorous punishment.
  • Respite: Certain special situations lead to the change in the punishment such as critical health issues to the prisoner.
  • Reprive: The execution is delayed for some time to provide the guilty person the time to prove his innocence.
  • Commute: The nature of the punishment is changed to decrease the harshness of punishment like converting the rigorous sentence into simple.

Shabnam v. State of UP Classic Case

Shabnam, a postgraduate and holding the post of the government school teacher, along with Saleem, killed all the 7 members of her family including a 10 months-old infant. She was sentenced to death by the Amroha Court which was upheld by Allahabad High Court in 2013 and also the Supreme Court in 2015. While in jail, she gave birth to a child. She filed two mercy petitions citing the reason as for the care of her child, first to the then-governor Ram Naik and then president Pranab Mukherjee but both the petitions were rejected. It was being argued that the convict has the Right to Life under the provisions of Article 21 but the judge dismissed the plea by saying that the family members also had the same rights. The apex court laid down the following observations:

  • The accused must be provided with prior notice and the accused along with its lawyer must be present during the proceedings of the case.
  • The death warrant of the convict must prescribe the exact date and time of the execution instead of a range of dates.
  • There must be a reasonable gap between the date of issuing the warrant and the execution date of the sentence so that the convict gets a reasonable time to seek legal remedies and meet his family. 
  • The convict should be given a copy of the warrant.
  • Legal aid must be given to the convict during these proceedings. 

Mercy Petition: Boon or Bane

Mercy petitions are essentially required everywhere because it is one of those few provisions which ensure the convict a second chance and the right to live which is not only a fundamental right under article 21 of the Indian Constitution but also a human right that cannot be denied. It is acting as a boon in the judicial skeleton. It helps in eliminating the situation where the ignorance of the judiciary results in injustice to the convict leading him to go through trauma and ill-health. In cases where the miscarriage of justice is seen, a mercy petition cures the damage done. Sometimes, it is also said that the mercy plea after crossing several chains lands in the periphery of politics, and recommendations by the ministry are not genuine and the best for the prisoner thereby failing the purpose of the mercy. Time is another crucial aspect in the mercy petition’s disposal. But at the same time, the procedural discrepancies result to delay injustice. This can be seen in the Nirbhaya case where the convicts were hanged after 7 years. So, we can say that the mercy petition acts as both a boon and bane. There is an urgent need to formulate laws specifying the time limit to dispose of with the mercy petitions for quick justice because- “Justice delayed is justice denied”

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