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Supreme Court as The Ultimate Justice Execution Authority

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Introduction to the topic: –

The Supreme Court, also sometimes referred to as the apex court, is the highest Judicial body of India. The motto of the Supreme court of India is ‘where there is Dharma there will be victory’. It is the guardian of the Indian constitution and the rights conferred to the citizens by the Indian constitution. It protects and guards the constitution and keeps a check on compliance of laws with the constitution framed by the Indian parliament to be within the ambit of guidelines provided under the constitution. In Kesavananda Bharati v. the State of Kerala the supreme court laid down the basic structure of the Indian constitution which cannot be compromised or amended in any condition and any law doing so will be unconstitutional. 

Technicalities of last deciding justice authority: –

The Supreme Court is the court of last resort. It is the final pedestal of justice however the convict in criminal cases who is granted capital punishment by the supreme court can file a mercy petition to the president of India for pardon or reduce the intensity of punishment to life imprisonment subject to provisions provided under Article 72 of the Indian constitution. The president must make decisions based on the recommendations of the central government. There are many instances where after the supreme court’s decision a mercy plea is filed to the president of India on behalf of a convict, Like in the case of Md. Ajmal Amir Kasab v. the State of Maharashtra (2012) and in Mukesh and Anr State for NCT of Delhi and Ors (2017). 

Technically the admission rate of granting mercy is low and usually, the petitions are dismissed by the president so it can be said that the supreme court is the final deciding authority.

 Apart from this, many other features make the supreme court the last authority on deciding and doing justice. The Supreme Court is the last court of hearing and no other place the case can be heard thereon. Under the president, only a mercy petition is filed but no hearing of the case takes place; the president acts on the aid and advice of the cabinet. Few mercy petitions are allowed, it is further filtered and very few are granted. As far as the legality of an act goes, the supreme court is the last deciding body on legality, and a mercy petition is a mere consideration of mercy for an act committed. 

The Supreme court’s decisions are binding on all the lower courts within its jurisdiction i.e., the territory of India which hints towards its supreme judicial authority exercised by the supreme court. And for these very reasons the supreme court employs seasoned, most experienced judges and the system of the constitutional bench. One can always file for review or curative petition if there is any violation or ignorance on the part of the Supreme court.        

Why is the Supreme Court the final pedestal of Justice?

The Supreme Court exercises all applicable laws and remedies present under the law in the country to bring justice to the aggrieved party. And in absence of law or precedent on matters, it applies principles of natural justice to bring justice. 

It is committed to bringing justice with utmost fairness between the parties. Judicial decisions are to be measured by their consequences then careful attention needs to be given to the process of accessing and estimating those consequences. There are relatively fewer chances of biases in the decisions given by the judges of the supreme court as they do not decide cases on their own bias and justify it, instead, they decide about the law whether an act is right or wrong. 

The Supreme court is chosen as a last resort because a case must be settled at some point in time and should not be disturbed once settled, this is also the basis of precedents (previously decided cases) and stare decisis (stand by the given decision). In Reynolds v. the United States wherein the United States, Supreme court established the principle that while legislative fiat may not control private opinions and believes it may, nonetheless, control actions “in violation of social duties or subversive of good order” further control facilitated by the supreme court. 

The Supreme Court being the final pedestal of justice decides justice in the first place and then works on the execution of justice. Which would serve justice among the parties not opposed to public policy. The court doesn’t serve justice based just on the facts put up by parties in front of it but also looks into possible impact decisions might create or what possible impact it will have in the society to maintain the status quo.

Ability to serve justice: –

Justice is subjective, what may be just for one may be destructive for others. An equilibrium cannot be reached to attain justice and beyond that courts also have to decide the impact it will have on the society considering this justice is served and wrong is established.

 Civil justice is different from social justice. Aristotle’s commutative justice involves the enforcement of property claims recognized by law. Social justice involves transfers of property interests, through regulation or taxation, utilizing law operating posterior to the formation of property. The one can be converted into other by bending logic and constitutional authority done by Supreme courts. 

The theory of redressive justice governs the enforcement of rights by a wronged party against the party which committed the wrong. This is formed based on corrective justice theory by John Gardner which states the type of justice concerning norms of allocating back. 

The concept of justice by the Supreme Court can be summarized as granting fair trials leading to justice under the law.      

The article is written by Aakarsh Chandranahu, from Alliance School of Law.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.                    

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Recognition Under International Law

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INTRODUCTION

The number of states in the international community is not exhaustive as it is a fluctuating affair with the disintegration of existing States resulting in the formation of new States or already existing States uniting to form one amalgamated State etc. Thus, arising the need for State recognition. Recognition of a State is a formal declaration of intent by one State to acknowledge the existence of another power as a State within the meaning of International law.

THEORIES OF RECOGNITION OF STATES 

  1. Constitutive Theory

The main exponents of this theory are Oppenhiem, Hegal and Anziloti. This theory states that it is the already-established-States that recognize the international status of newly formed States and give it the legal personality as a result of such recognition and not the process that actually gave it the independence. As a result, an “unrecognized State” will be devoid of any legal personality and hence would not have any rights or be subject to obligations under international law such as the prohibition on aggression, etc.

For example- Poland and Czechoslovakia were recognized by the Treaty of Versaille.

  1. Declaratory Theory

Chief exponents of this theory are- Brierly, Fisher, etc. This theory is the total opposite of the constitutive theory and is more in harmony with the practical realities of today. It states that the recognition by other States has nothing to do with the existence of the State that establishes by its own legal efforts and circumstances. It describes recognition as a mere formality that does not affect the statehood that exists before and independent of recognition.

For example- Taiwan is a democratic country & is recognized by some but it has business dealings with almost everyone in the country.

CURRENT STATUS

In the current scenario from the past two decades, one can say that the practice has taken somewhat a middle stance of both theories. It may be right to say that recognition is highly political and is given in several cases for purely political reasons. Recognition is constitutive as it is evidence of acceptance of a new entity as a State with its political status by the community of States. But at the same time, it is declaratory as it does not imply that rights and duties arise out of such a recognition. 

For example– the Arab world and Israel, the USA, and certain communist nations do not imply that the other party does not have any rights or are not subject to liabilities under International law, they just do not recognize them as State due to political reasons. The most important criteria for recognition is the fulfillment of elements of Statehood under international law that are listed below. 

Article 1 of Montevideo Conference, 1933, lists down the following essentials that an entity shall have to be recognized as a State under international law.

  • Permanent population
  • Definite territory controlled by it
  • There should be a government
  • The entity should have the capacity to enter into relations with other States.

MODES OF RECOGNITION

  • DE FACTO RECOGNITION

When an existing State recognizes that the new State fulfills the essentials of Statehood under International Law but lacks stability and there are doubts as to its capability to fulfill obligations under International law, it is granted De Facto recognition. It is a temporary and provisional recognition that could be withdrawn in case of non-fulfillment of the requirements of the recognition. The States are vested with only limited power and obligations against other States and cannot enjoy full diplomatic immunities. De Facto recognition is a process of recognition by a non-committal act. De facto recognition can be considered a test of control for newly formed States and paves the way for De Jure recognition once it generates satisfactory results.

States that have De Facto recognition lack eligibility to be members of the United Nations. 

  • DE JURE RECOGNITION

When a recognizing State feels that the recognized State fulfills all the essentials of Statehood and there are no doubts as to the long-term viability of the State, a De Jure recognition is granted. It is permanent and cannot be revoked. The such States have absolute rights and obligations against other States and enjoy full diplomatic immunities. This recognition is either expressly Stated by the recognizing State through a formal order or maybe impliedly communicated like commencing diplomatic relations.

A State doesn’t need to be given De Facto recognition first to be granted De Jure later, it can be directly granted.

An example of De Facto that was transformed to De Jure is- the United Kingdom recognized the Soviet Union (established in 1917) De Facto in 1921 and De Jure in 1924.

TYPES OF RECOGNITION

  • EXPRESS RECOGNITION

Under this type, a public Statement/declaration through a notification is made to announce recognition. For example- In 1963, a declaration was made by the French President to recognize the independence of Algeria.

  • IMPLIED RECOGNITION

Under this, a formal declaration is not made rather it is implied by some act that clearly communicates the intention.

  • PREMATURE RECOGNITION

Premature recognition is recognizing an entity that does not have elements of Statehood completely. For example- Palestine

  • COLLECTIVE RECOGNITION

It means recognition through an international treaty. For example- in 1975, 5 ASEAN countries recognized Cambodia.

  • CONDITIONAL RECOGNITION

In this, recognition is granted subject to conditions to be fulfilled.

LEGAL EFFECTS OF RECOGNITION

As mentioned before, on gaining recognition, a State is endowed with certain rights, immunities and is subject to certain obligations. Some of the legal outcomes of recognition are as follows:-

  • Gains the right to sue and be sued.
  • Acquires the capacity to enter diplomatic relations
  • After recognition, State succession is possible.
  • Can enter into treaties with other States.
  • Can be a part of UN

Kosovo declared its independence from Serbia in February 2008. This caused a ruckus amongst the States. At first, the United Kingdom, United States, and France recognized it as a State, and China and Russia didn’t. Later ICJ declared that the declaration of independence was not violative of the UN’s provisions of Statehood.

CONCLUSION

Recognition is the most important concept of International law as it determines what entities will be State or not. As mentioned before, current practice is somewhat a blend of constitutive and declaratory theory. Recognition is what endows rights and obligations on a State and consequences on both the international plane and within municipal laws. Hence an understanding of the subject is required. Recognition can most of the time be politically motivated and hence can be of any of the types mentioned above like- De Facto, De Jure, express, implied, etc.

The article is written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

The article is edited by Shubham Yadav, Pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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Privileges Of Parliament

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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 44th 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 44th 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

 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 2nd -year law student at The Mody University of Science and Technology, Laxmangarh, Rajasthan.

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Sustainable Development: The Indian Judiciary

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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.

42nd 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-

  1. Stockholm conference -focused on biodiversity and environment to secure a healthy environment for humans present as well as the future.
  2. 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.
  3. Rio Declaration- introduced principles on biodiversity, climate change and forest management.
  4. 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 3rd Year in Delhi Metropolitan Education, Noida, GGSIPU.

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Novus Actus Interveniens

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Introduction

Novus actus interveniens is a Latin phrase that, when translated, amounts to ‘new intervening act.’ It is a principle of Tort law. 

Novus actus interveniens, in relation to a tortious action for negligence, can be defined as any intervening act that can separate or break off the legal connection between a defendant’s conduct and the final injury incurred by the plaintiff, thus preventing the defendant from being held legally liable for the plaintiff’s harm. For an act to be considered as Novus actus, it must be reasonably unpredictable. If the second and subsequent act could be apprehended or stemmed from the first act itself, then this principle will not be applicable, and the legal burden will not be waived off the defendant. Attributed to this principle is a general rule of measuring the remoteness of damage. If any outside force (Act of God or intervention by a third party) or the plaintiff himself causes interventions subsequent damage to the injury already caused, then it will amount to the remoteness of damage. 

Case Of Martin V Isbard (1947)

For understanding this concept better, let us consider the case of Martin Vs. Isbard, a 1947 English case. In this case, Martin, the plaintiff, was traveling in a taxi which met with an accident because of the negligence of the driver. The plaintiff had experienced a concussion as a result of this accident and, when taken to the hospital, was told that she suffered a major fracture in her skull. After recovering from the initial shock, although she returned to work, she would occasionally feel dizzy and experience headaches. For this reason, she stopped working and went to Melbourne with her parents. However, after a few weeks, she was told that a review of the X-ray showed that she had no skull fracture. After this, she went under another X-ray examination which again said that she did suffer a skull fracture. But a review of this report also resulted in the finding of an erroneous medical report falsely stating that she suffered from a skull fracture. Before this case went into a trial, the plaintiff had another X-ray done, revealing she never suffered any injury in her skull. It was also determined that the occasional periods of dizziness that she faced were more related to the stress induced from the wrong X-ray reports. Now the question put before the Court was to determine the gravity of responsibility the taxi driver ought to bear. Had he not been negligent in the first place, the accident would not have taken place and resulted in the misleading X-ray reports. The judge drew a conclusion that the anxiety caused to Miss Martin was a result of negligence on the part of the doctors. Thus, the Court opined that the two wrong X-rays were ‘Novus actus interveniens’ or a ‘new intervening act’ which cut off the direct link between the final injury suffered and the initial negligence contributed by the defendant.

Test Of Isolation

The test of isolation is a new method that has gained importance while deciding if the defendant can be made liable for the final injury caused to a plaintiff constituting one or more causes of harm. According to this test, if the relation to the illegal conduct (an omission or commission) which resulted in causing damage to the plaintiff is regarded to have been snapped when it is separated from its repercussions, then the defendant is no longer accountable for any consequences that may follow. When the chain of causation is broken in the eyes of the law, making the former act exhausting itself, the wrongdoer can no longer be held liable for any further upshot. This might be the result of an intervention of a third party or an act of God resulting in the second act of violation.

Exceptions To The Rule Of Novus Actus Interveniens:

The exceptions to the rule of Novus actus interveniens are listed as follows:

  1. If the defendant has intentionally undertaken the intervening act in question
  2. If the intervening actor cannot be made fully responsible for the outcome
  3. If the intervening act was reasonably foreseeable
  4. If the intervening acts in question are some involuntary action or a bare reflex

 Relevant Case Laws:

VOSBURG V PUTNEY, 1891 (Defendant made liable even when the injury was not foreseeable.)

In this case, a boy kicked another in the classroom from across the aisle. It turned out that the victim was suffering from an inflamed microbiological infection, which caused him to lose all use of his leg. Undoubtedly no one could have foreseen the severity of the injuries. Despite this, the Wisconsin Supreme court determined that the kicking was illegal because it breached the “order and decorum of the classroom.” Hence, the perpetrator was held entirely responsible for the injuries.

SMITH V LEECH BRAIN & CO, 1962 (Defendant made liable as the initial injury was foreseeable.)

 In the English case of Smith v Leech Brain & Co (1962), molten metal was splashed on an employee. It resulted in a burn on his lips. The tissue which got burned happened to be premalignant. Later, after three years, he died of cancer, which was initially triggered by this injury. The Court held that since the initial damage was foreseeable, the defendant was liable for all the harm.

HABER V WALKER, 1962 (Intervening act in question when combined with the initial wrong does not point towards a mere coincidence.)

In Haber v Walker, the Court arrived at the judgment that a plaintiff cannot be held accountable for a Novus actus interveniens ( a new intervening act) if the chain of causes is broken by a deliberate, human act or an external incident that, which when combined with the wrongful act, is so rare as to be deemed as happenstance.

NADER V URBAN TRANSIT AUTHORITY OF NSW, 1985 (Victim must be considered, including his mental, social, physical, and economic attributes.)

This is an Australian case where the plaintiff, a 10-year-old kid, was struck in the head by a bus stop pole while exiting a slow-moving bus. This injury led him to develop Ganser syndrome, one of the rarest psychological diseases. In response to this, the defendant claimed that the child had developed this illness due to his family’s reaction to the mishap. Judge McHugh, in this case, however, concluded that the plaintiff should be considered with all his weaknesses, beliefs as well as reactions. All of his social, economic, and physical attributes must be considered. Since this accident resulted in a ten-year-old boy reacting to his parent’s apprehension regarding the accident and developing a hysterical condition, the victim must be duly compensated by the defendant.

MAHONEY V KRUSCHICH DEMOLITIONS, 1985(Intervening actor cannot be made fully liable)

The plaintiff, Glogovic, while working on the demolition of a powerhouse for the respondent, had suffered some injuries. When he was being treated by the appellant Mahony due to medical negligence, his injuries were aggravated. The Court held that medical treatment of injuries caused by the defendant’s negligence did not result in Novus actus since it was not inexcusably terrible or utterly outside the confines of what a credible medical practitioner might prescribe.

Conclusion

In conclusion, one can say any act which severs or cuts off the direct link between the defendant and the final injury caused is termed as Novus actus interveniens (a new intervening act). In such a case, the defendant can be made liable only to the extent of the initial negligence caused by him and not for the final injury. For example: If person A suffers an injury on his leg because of B and is then shot by person C on the injured leg, B will only be held liable for the initial negligence and not the gunshot injury.

The article has been written by Debasmita Nandi, a first-year law student of CHRIST (DEEMED TO BE UNIVERSITY), LAVASA.

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The Not-So-Common Provision Of Law- Plea Bargaining

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Introduction

Plea bargaining is a pre-trial practice, wherein the accused pleads guilty in exchange for a lesser punishment or even some of the charges being dropped. This is where negotiation takes place between the accused and the prosecutor on initiation made by the accused only. 

Ever heard of the Salem witch trials? In 1692, in the US, the Salem Magistrates to uncover more witches made the accused witches testify against the others. The deal was they would be left to live in exchange for their confessions and executed otherwise. Salem witch trials are one of the oldest illustrations of the practice of plea bargaining. Plea bargaining as a practice is common in the US and it struggled a long time, from being considered unethical at the least and illegal at its worst. Since the 1920s, there were cases in the US that acknowledged plea bargaining providing the solution to expensive litigation both in terms of time and money. In 1967, the President’s Commission on Law Enforcement and Administration of Justice documented the practice of plea bargaining and recommended the practice to be put in use and since then, it has made its place.

Plea Bargaining In India

Before 2005, India didn’t formally recognize plea bargaining. Courts disapproved of it for the longest time calling the practice to be contrary to public policy, unfair, unconstitutional, illegal, and as something that promotes corruption, collusion, eventually threatening the justice system.  Indian criminal law always had this provision for the accused to plead guilty in place of a trial but that couldn’t possibly be understood as plea bargaining. The 142nd report of the Law Commission of India (1991) recommended giving “concessional treatment” to those who plead guilty on their own accord but didn’t recommend including plea bargaining in its form. Later, in its 154th report (1996), a recommendation was made to include plea bargaining in its experimental form followed by a similar recommendation in the 177th report (2001). This recommendation later found its support in the Malimath Committee Report.

Plea bargaining was officially introduced in India in 2006, when Chapter XXI-A was inserted by Act 2 of 2006, containing Sections from 265A to 265L. 

Plea bargaining is allowed only in limited cases. 

  • Offenses punishable with imprisonment for a term, not more than 7 years.
  • Offenses that do not affect the socio-economic conditions of the country.
  • Offenses that are not against a woman or a child below 14 years.
  • Available in private complaints in which a Criminal Court has taken cognizance.

Charge Bargaining- Negotiating for dropping a charge in multiple charges or settling for a lesser charge.

Sentence Bargaining-  Admission of guilt and settling for a lesser sentence.

Fact Bargaining- Bargaining as to admission to some facts in exchange for an agreement to not introduce some other facts.

In 2020, the practice of plea bargaining came under the spotlight when foreigners who were members of Tablighi Jamaat attended the religious congregation Nizamuddin Markaz, amid the pandemic and were released through plea bargaining. The charges were a violation of visa conditions and guidelines given by the Government in the wake of the pandemic, etc. They accepted milder charges and paid fines under plea bargaining.

Procedure Of Plea Bargaining Under CrPC, 1973 (Sections 265A TO 265L)

  • Application for plea bargaining is filed by the accused containing a description of the case with the offense along with an affidavit sworn by the accused that he voluntarily applied for plea bargaining, understands the nature of the offense and its punishment, and that he has not been convicted of the same offense in any case previously. 

Note- Use of the statements or facts mentioned by the accused in this application are to be used in plea bargaining only and not for any other purpose.

  • After this, the Court issues notice to the Public Prosecutor/complainant and the accused to appear on a specific date when the accused is examined by the Court in-camera to the satisfaction that the application has been filed by the accused voluntarily. 
  • On satisfaction, both the parties are given time to work out a mutually satisfactory disposition of the case (accused giving compensation, etc to the victim) setting the date for further hearing. A report is then prepared by the Court signed by the parties and the presiding officer of the Court.
  • If the application is found to be involuntarily filed or that the accused has been previously convicted of the same offense earlier, the Court will proceed as per provisions under CrPC from the stage of filing application.
  • After a satisfactory disposition is reached by the parties, a report is then prepared by the Court, signed by the parties and the presiding officer of the Court. The case is then disposed of by awarding compensation to the victim as per the disposition and then a decision upon the quantum of punishment for the accused is made. 
  • If Probation of Offenders Act, 1958 or Section 360, CrPC, or any other law time being in force applies to the case, the accused may be released on probation or provided a benefit of any other law.
  • After hearing this, if minimum punishment for the offense committed is given under law, sentence- ½ of such minimum punishment.
  • But if the accused is not covered in any of the 2 provisions given above, sentence- ¼ of the punishment provided or extendable.

Judgment regarding disposal of the case is given in open court and is signed by the presiding officer.

Benefits Of Plea Bargaining

  • Speedy Trial- Trials are time-consuming and India, having an insurmountable number of pending cases, faces an ardent need for speedy trials. Plea bargaining provides just that.
  • End the anxiety of uncertain outcomes- Trials could be tricky most of the time, where it could turn in any possible direction. With plea bargaining in practice, one did an offense, that one pleaded guilty of it too. Hence, it removes the possibility of being anxious over the unpredictable nature of trials.
  • Saves litigation costs- It wouldn’t come as a surprise to you that going to trial is expensive. If one gets to negotiate pre-trial, it saves huge bucks that would otherwise have gone to the advocates, etc.
  • Impact on conviction rates- Imagine the conviction rates, when it is possible to have speedy disposal of cases. Why do you think the US does so great in this department?
  • Lesser sentence- In exchange for accepting a plea deal, the accused may be given a lesser sentence or even a reduced charge like that of a misdemeanor instead of a felony. 
  • An opportunity for a fresh start- There is a possibility under plea bargaining that an accused gets convicted for a lesser sentence. This allows the convicted to make a change in his life and start afresh.
  • A solution for the problem of overcrowding of jails- Accused awaiting trial are kept in jails that work just as a holding center with little or no scope for rehabilitation or correction. The delay in trials and conviction leads to overcrowding of the jails. With plea bargaining in the picture, faster disposal of cases is possible.

Criticism Of Plea Bargaining

  • May be made under coercion- It is a possibility that plea deals are made under coercion from the prosecutor or are bad in faith.  Hence, the accused might feel threatened and accept the plea deal even when he/she is innocent.
  • Criminal record- When one pleads guilty under plea bargaining, that does not mean that he would escape the conviction somehow. As a consequence, one would always have a criminal record.
  • Misguidance from the counsel itself- Sometimes, plea bargaining comes as a piece of bad advice from the counsel of the accused itself, agenda behind could be to get rid of the case sooner, lack of legal experience, inability to fight the case on its merits, etc.
  • Role of Judges in plea bargaining- Even though both parties agree to plea bargaining, a Judge may declare it void. A judge can even set aside the plea deal and move the case to trial if he feels like it is made in bad faith.
  •  No opportunity to appeal- In a trial, if the accused is not satisfied with the decision of his conviction, in almost all cases he appeals to a higher court against the judgment. But, once an accused pleads guilty, there is no scope for him to appeal against the conviction except special leave petition under Article 136 and writ petition under Article 226 and 227 of the Constitution.
  • Not the most moral practice in the book- Concessional punishments under plea bargains seem unfair to victims of the offenses committed by the accused for which he pleads guilty on the record.
  • Right to free and fair trial threatened- There are arguments that plea bargaining is unconstitutional in the sense that it violates the right to free and fair trial of the accused. If the plea deal is the outcome of coercion, incapacity of the defense attorney, etc. then the possible conclusion makes this practice bad in law. 

Even the justice system suffers because of this practice because plea deals are all about the negotiation skills of the counsels for both the parties and not winning the case on its merits in the trial.

Conclusion

It’s been more than a decade since plea bargaining was inserted in CrPC, but one would observe that it is uncommon in India since its inception. There have been doubts and worries to put the practice in full motion. As mentioned above it has various disadvantages but what one tends to forget is the benefits of it. To conclude a careful and balanced analysis of both the advantages and disadvantages has to be done since It is not justified to exclude something solely based on its demerits. Lack of awareness of the masses about their rights, coercive confessions, etc is the reason for the restricted scope of plea bargaining in India. As per statistics given by GOI in 2015, the plea bargaining rate in India was a mere 0.045% (last available statistics on the subject), pending cases were over 2 crores across the nation and undertrial prisoners were 2.8 Lakhs. If you are wondering what’s the current status, so at present, there are over 4 Crore pending cases all over India. If the future is the same as the present with an insurmountable number of pending cases in Indian Courts, which honestly will be, then the need of the hour is to give plea bargaining the space it needs.

The article has been written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

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Rehabilitation Of Rape Law Victims

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Introduction

Let’s start by discussing what rehabilitation is and how it works. Rehabilitation in the general sense is getting back to the normal life of a victimized person who has done something wrong and has been imprisoned for that, and this process of rehabilitation starts after imprisonment. This process includes more training to get back to normal life and to keep track of their mental health. The path is often paved with so many hours including therapy and education and more. In the legal sense, it means that a criminal needs rehab for the crime to not be repeated in the future again. And the process of rehab doesn’t just include educating and therapy, it is more of the right process or processes to straighten the mind of the convicted person.

What is Rape?

Rape is an unlawful sexual activity; the act of rape is very heinous. This activity is against the will and consent of the person which duly affects the mental health and the physical health of the victim. It may be said that the sexual intercourse of a man with a woman against her will, and it is forcefully. Though the definition of rape has been changed for many years. Rape is a manifestation of a process wherein women are objectified as the property of men. There are many cases in many countries of Rape. The only thought of therapists is to create fear in the minds of the victims and they desire to punish, cause pain and take revenge with them. 

The general age wherein the rape happens more often will be across 14-18 years of age. Sexual intercourse with a person below the prescribed age will be said as statutory rape. Sexual assault or sexual violence will affect a person very badly. 

Who are rape victims?

Generally, the rape victim is the one who has been affected by sexual assault in the form of rape. The activities carried out will be with physical force, violence, and who is incapable of valid consent can be termed as a rape victim. These circumstances will affect the victims very badly.

The consequences of rape to a woman or man can be classified as physical, mental, or emotional. Rape victims are the ones who are faced with sexual assault or violence either way known as rape and this is totally against their wills. There are certain cases, they are raped very badly and which leads to the death of the victim. And, in certain cases, they are raped and this doesn’t lead to the situation of death. Rape victims go through a lot of difficulties.

Consequences of rape:

There are many consequences that any consequences lead to bad situations and decisions in life further, these may be either physically or mentally:

– Unwanted pregnancy: The most immediate of rape may give a rise to chances of pregnancy. Now, it depends upon the age of the victim, for the conceiving of the child. In most rape cases, wherein the women get pregnant they opt to abort the child; it is because of the illegal criminal act done against them.

– Exposure to diseases: They may be exposed to some of the diseases which are transmitted due to sexual intercourse. This would lead to long-term or short-term disease and sometimes it may take life too.

– Damage to the body organs: Rape being forceful intercourse, will appear to damage some of the organs of the body part. The risk is more around the age of teenage girls. During the rape or after the rape they will be torturing or harassing them by beating them up very harshly. This might even end up losing their lives.

– Trauma: The effect of rape is psychologically a trauma. The victims are exposed to some mental and different trauma which may lead to taking any dangerous steps. The effect will be shown whenever they try to socialize with a group of people or especially with men. The effects last longer till the victim’s lifetime. 

– Suicidal tendencies: The most effective thought for a victim would be suicide. Because of the blame, pity, the trauma they n longer have the hope to live their lives and will be in a thought that they might not recover from it anytime sooner.

Rehabilitation of rape victims:

The idea of rehabilitation of rape victims is a very thought-provoking concept. This usually gives victims a better idea of when to start looking for them. The rehab changes everything. It is usually a process that involves long hours of therapy. Therapy is the process to change their thinking. It is to restore a good condition so he or she can effectively operate again in the real world which involves a lot of time and analysis. During the rehab plan, the right decisions should be made so that the process of rehab goes well. 

Rehab for rape victims would be a better idea. Because it gives them another chance to build themselves and face the real world again. This process includes a lot of education, analysis which lasts up to longer hours. They analyze how a victim can be recovered from the trauma. This process of rehab varies from one victim to another. The ultimate aim is to get out the fear, trauma and straighten out the mind of the victim. This process is truly a lifesaver. Rehab processes last longer than usual because it goes in-depth to understand the victim and get that victim to a normal person again. It includes counseling sessions and many more processes which are to make the victim positive and ensure safety. They have suffered a lot, through which they won’t come up easily and tell clearly, the process of rehab involves interactive therapy. By all the processes it is just to ensure that they won’t have any negative thoughts in their mind and which may lead to bad decisions in life.

Conclusion:

Therefore, the process of rehab for rape victims is one of the essential processes these days. It indicates a lot more things, which help them to face the real world again. Hence, this process involves a lot of therapy which involves a lot of hours. It leads to a good path which is by the process of therapy and education given to them. Therefore, Rehabilitation for rape victims plays an important role for the rape victims.

The article has been written by Saba Banu, a 3rd-year law student from Pendekanti Law College Hyderabad.

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Environmental Law And Sustainable Development

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The present article has been written by Aanya Gupta pursuing BBA LLB from Vivekananda Institute Of
Professional Studies, GGSIPU, New Delhi.


Introduction



“Environment” is a very comprehensive term. It includes several phenomena in its scope. This is a dynamic term that can be used to describe a limited area on one side and the entire planet on the other. The term environment can have different meanings. Different countries and international legal instruments have multiple definitions of this term. Broadly speaking, the environment includes the external conditions, resources, and stimuli with which organisms interact. The preamble of the “United Nations Declaration on the Human Environment” adopted in Stockholm in June 1972 stated:

 “Man is both the creator and shaper of the environment. The environment gives him material substance and gives him intellectual, moral, social and spiritual growth. “.  

 The environment is threatened by various sources of damage, mainly man-made damage. To solve this problem, we must develop strategies to change human behavior and turn it into environmentally friendly practices, away from practices that damage the environment. Broadly speaking, technologies that change human behavior can be divided into two categories: incentives and inhibitions. The law is important because it creates a framework in which incentives and restrictions can play a role. The law is everywhere. Other methods of influencing human behavior are voluntary or optional to some extent. Education, morality, peer and family pressure – all apply to varying degrees. On the other hand, the law cannot be easily circumvented. The law in society applies equally to everyone at all times. This is the axiom of the “rule of law.”

What Is Environmental Law?



Humanity knows a much longer environment than the law to protect the environment. The Environmental Law, or known as methods of environmental and natural resources, explains the regulatory laws, laws and regulations, regional and international laws, protect the environment from harming and explain the legal impact of such damage to the government, is a term Used to explain the treaty.  As described in the next section, it covers many areas. However, the term “environmental law” is not only covering government law. In addition, by creating a regulation of business licenses and industry standards, companies and other organizations, and their regulators can also work to improve ethical principles.  These are not the “law” but the regulatory framework. It also applies land management methods for a type of understanding of responsibility and ethical action. 

Similarly, the impact assessment is not necessarily required, but it can be rejected if development, construction, modification, engineer, or engineer is not carried out. These are not laws made for the environment and the local population, but any regulation. For various reasons, the environmental law was always the nostalgic point of controversy. The heart of the discussion, the need for such regulations, the attractive friction of government regulations and encouraging the carrier of the market, and making things appropriate for all, and the attractive friction of all. For example, continuous discussions on the effects of specific pesticides in agriculture, greenhouse gas emissions are avoiding recoil legislation in the battle between science and full clay-mud government. The opposite of the discussion means that the regulation and the current law of the industry are insufficient. Both sides have a meeting to discuss the aspects of environmental law, and they have how they should change how they have changed their favorably. 

In the way we are looking at it, environmental law affects the importance of saving individual health, commercial activities, geographical sustainability, geographical sustainability, and future generations and economies.   

When Environmental Laws Were Made?



Some environmental protection laws existed even before the independence of India. However, the real push to implement a robust framework only emerged after the United Nations Conference on the Human Environment (Stockholm, 1972). After the Stockholm Conference, the National Committee for Environmental Policy and Planning was established in the Ministry of Science and Technology in 1972 to establish a regulatory body to deal with environmental issues. Subsequently, the committee evolved into a mature Ministry of Environment and Forests (MoEF). 

MoEF was established in 1985 and is now the highest administrative body in the country to oversee and ensure environmental protection and formulate a legal and regulatory framework for it. Since the 1970s, various environmental laws have been promulgated. MoEF and the Pollution Control Committee (“CPCB”, meaning the Central Pollution Control Committee and “SPCBs”, meaning the National Pollution Control Committee) together constitute the core regulatory and administrative department.

Some of the important legislations for environmental protection are as follows:

1)The National Green Tribunal Act, 2010

2)The Air (Prevention and Control of Pollution) Act, 1981

3)The Water (Prevention and Control of Pollution) Act, 1974

4)The Environment Protection Act, 1986

5)The Hazardous Waste Management Regulations, etc.

WHY ARE ENVIRONMENTAL LAWS ARE IMPORTANT?

1) For Health of Current Generations

Medical care is an expensive business, regardless of where it is around the world. During the oldest environmental protection in the world, it is designed to take into account human health. Even today, people who live in the largest area tend to suffer more health problems.  It is important to clean environmental air, water, and other aspects to improve your health.

2)For Health of Future Generations

We do not have the good health system of the current generation that we should worry about. Our children and their children, etc., sometimes have an increase in the costs of health, and which leads to a larger case of some situations. Even in countries with social health care, health problems and the cost of carrying out a health system continue to increase. In addition, maintaining an additional generation of expenses is the mission of certain environmental health laws to cause more papers and healthier relaxation problems to guarantee the environment.  We are also analyzing new adventive diseases in areas where there have never been cases of existing but controlled, but controlled cases of existing but controlled diseases. It is believed that some of the reasons are an ecological and natural environment that promotes the replication of viruses or the seeds responsible for the duplication of viruses and mosquitoes.

3)Maintaining Resources and Lifestyle

Many methods to maintain resources and lifestyle, environmental laws are a form of future insurance contracts, such as food safety and water, the protection of resources, energy, and ecological equilibrium. Fossil fuel is an exhausted resource, and many metals are finite but may have a potential century.  The rights of fishing are one of these problems. In many areas of the world, not only can they harm our supply of food and industry, but can also be confused with the ecological balance of the sea. That is why many countries agreed to fish quotas.

4)For Ecology

Food chains, water cycles, the security of our resources depends on what environment is protected by any environment. Exhaustion and elimination of resources, such as the introduction of invasive species, maintaining damage emissions, etc., and environments can cause long-term problems. We have already raised the depletion of the ice cover and the maritime levels. The dilution of our sea salt can affect the ecological balance of the sea. It also knows that jet streams and vibrations can change with carbon in the atmosphere, resulting in changes in the long-term unstable climate that can cause imbalances elsewhere. Global ecology is a network that exceeds national benefits and borders.    


What Is Sustainable Development?



The principle of sustainable development is developed based on the basic assumption of the coexistence of two opposed concepts (ie development and environment). But from a practical point of view, the ecological, economic, and social aspects of sustainability are inseparable. As William Rees pointed out, the maintenance of ecological integrity must take precedence over the realization of human social and economic needs. Therefore, there must be an intersection between ecological and economic factors in the development process. The principle of sustainable development emphasizes two basic needs: one is the need for social and economic development and the other is the need to limit the capacity of the environment to respond to current and future needs.

Sustainable Development Goals


The objectives of Sustainable Development suppress poverty and pollution in 2015, thus protecting the planet, protecting the planet, providing peace and prosperity for the emergence. It is established in a plan to become a blue photo towards a better sustainable future. The three main objectives of sustainable development objectives are

 1) economic growth.

 2) Protection of the environment. 

3) Social inclusion.   

 Sustainable development objectives have been successful in the content and thousands of applicable development objectives. The previous objective was criticized that it was too narrow in a surface implementation if it is too narrow in implementation. A thousand-year development objective focused on the development of each country and supporting the development of other countries. A recently increasing sustainable development objective was much more in context, providing more complete perspectives and frameworks for development according to the country’s relationship. They are applied more worldwide, resulting in the largest UN program, which provided the company’s foundation.   

Conclusion


Undeniably, adhering to sustainable development goals is the need of the hour. It is time that each one of us adopts an ‘energy-efficient and green’ mindset and uses the natural resources available equitably, judiciously, and save them for our future generations, as the best way to predict the future is to create it.

Hence, India needs to hustle towards the attainment of its sustainable development goals through proper planning, coordination, and implementation of practices and policies which aid in the formation and maintenance of a self-sustainable and developed country.

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Euthanasia: Controversy

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The present article has been written by Gracy Singh, a 2nd-year student pursuing a BA.LLB (Hons.) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

Introduction

The term ‘euthanasia’ derives from Greece which means good death. Euthanasia is the practice of ending a patient’s life who is suffering from a painful disease or an irreversible coma. A person is allowed to end their life with the help of medicines prescribed by a physician. Several nations such as the United States, Switzerland, Canada, Netherlands, etc. have legalized this practice and this has led people to move to these countries to free themselves from a terminal illness. 

There are different types of Euthanasia some of which are discussed below:-

  1. Active Euthanasia – a patient is killed by injecting a lethal dose of the drug.
  2. Passive Euthanasia – a patient is killed by withholding artificial support like a ventilator. 
  3. Voluntary Euthanasia – a patient is killed ended by their consent
  4. Involuntary Euthanasia – a patient is killed without their consent
  5. Mercy Killing – a patient is killed  to end the suffering without their explicit consent
  6. Physician-assisted Suicide – a patient is allowed to kill themselves with medications prescribed by the physician.

Indian Perspective

Euthanasia is a very controversial topic in India. IPC provides for the legal status for passive euthanasia and physician-assisted suicide. However, active euthanasia and physician-assisted suicide are still not legal in India. It is an offense under Section 302 or 304 of IPC that states the punishment for murder and culpable homicide not amounting to murder. In 2018, the Supreme Court with a specific guideline, legalized mercy killing for a terminally ill patient. This direction to legalize passive euthanasia in India is derived from International Conventions and foreign decisions. Article 21 of the Constitution of India talks about ‘Right to Life’ but the Right to Die is not given and the state is supposed to aid healthcare for the citizens.

Controversy

      Arguments against Euthanasia

  1. Eliminating the invalid – It is argued by the opposers of Euthanasia that people with incurable illnesses will be disposed from our society if we embrace the right to death with dignity. Palliative care (active and compassionate care for the dying) could be provided for the patient and the caregiver that would relieve pain and distressing symptoms. 
  2. Constitution of India – Right to Life stated in Article 21 is a natural right and is inconsistent with the concept of the right to die. The state must protect life and a physician’s duty is to provide health care. The State may refuse to provide health care or invest in health if euthanasia is legalized. 
  3. Mayfield intention – Euthanasia can be misused by relatives or family members to inherit the property of the patient. Mercy killing would be converted into killing mercy in the hands of medical professionals. Hence, to protect the patient and the medical practitioners from any lawsuits it should not be legalized. 
  4. The commercialization of health care – It is argued that if euthanasia is legalized in India, poor, disabled, or elderly people will be left to die or withdrawn from treatment for the sake of money. This condition is still seen in a majority of hospitals where members refuse treatment because of the huge amount of money.

Counterargument of Euthanasia supporters

  1. Right to Die – The supporters of Euthanasia argue that people with incurable or disabling conditions should be given the Right to die so that they can die with dignity. 
  2. Encouraging organ transplantation – Euthanasia will provide the opportunity for organ donation to help many patients waiting for transplantation due to organ failure. This will not give the Right to Die to terminally-ill patients but the Right to Life to patients with organ failure. 
  3. Refusing Care – Refusing medical treatment can also be regarded as passive euthanasia. For example – A blood cancer patient can refuse treatment or feed through the nasogastric tube. 
  4. Caregivers burden – There is a huge burden on the caregiver in financial, emotional, mental, social, and physical domains. The majority of petitions for terminating the life of a person suffering from chronic illness have been filed by the caretaker and the family members. It is uncommon to hear that either the patient or the family members take poison to end this burden. 

Case Laws

  1. Gian Kaur v. State of Punjab (1996) SC946

In this case, the Supreme Court said that Article 21 which states Right to Life leaves out Right to Die. The constitutionality of Section 309 under IPC was upheld. The difference between Physical Assisted Suicide and Passive Euthanasia was pointed out in the English case Airdale Case. The English Common Law considered Euthanasia as a criminal act. 

The court held that euthanasia and physician-assisted suicide are illegal in India; although the Supreme Court agreed to the concept of English Court yet introduced the right for a terminally-ill patient to die with dignity.

2. Aruna Ramchandra Shanbaug v. Union of India & Ors. (2011)

In this case, the victim was suffering in a persistent vegetative state for more than 36 years. She was a nurse at King Edward Memorial Hospital in Mumbai and was assaulted by a man who immobilized her with a belt that stopped the oxygen supply, damaging her brain functions. The plea was filed for mercy killing but the court rejected it. However, the court recognized the concept of the living will. The Supreme Court legalized Passive Euthanasia as well as issued some guidelines and said that it would be applicable only in rarest of rare cases. The court further said that the right to die does come under the scope of Fundamental Rights and specifies that High Court should approve the request for Passive Euthanasia to make sure there is no minified intention of relatives and friends. 

3.Common Cause ( A Regd. Society) v. Union of India (2018)

In this case, a writ petition was filed for recognition of the ‘living will’ of a person and a strong system for passive euthanasia. This case challenged the constitutionality of Section 306 of the Indian Penal Code. The concept of ‘living will’ was recognized by the court as well as the Right to Die with Dignity, the Right to Self-determination, and the Right to Autonomy was recognized as Fundamental Rights. 

Conclusion

Euthanasia is a controversial topic. It has given rise to many debates for centuries over the legal implication. There is a need to enact a law to protect terminally ill patients and the medical practitioners who provide care to these patients. Also, poor people suffering from severe health issues can get free access. Euthanasia has many implications like the cost of the procedure, pressure from doctors, mental state of both patient and family members. The medical practitioner should also know the mental status of a person seeking euthanasia. The decision given by the apex court to legalize passive euthanasia is appreciated, however, active euthanasia has not been legalized still. 

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Compulsory Licensing And Vaccination

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The present article has been written by Prateek Chandgothia, a 1st year BA LLB student at the Rajiv Gandhi National University of Law, Punjab

Introduction

Under the Indian Patents Act, compulsory licensing is defined as decentralizing the rights over a patented commodity and allowing the production or manufacturing of the commodity without obtaining prior permission from the owner of the patent. Various international treaties and agreements have legislated compulsory licensing as a legal course of action in situations where ramping up the production of a commodity are essential within a shorter period of time. 

  1. Laws Governing Compulsory Licensing 

Chapter XVI (Section 84-92) of the Indian Patents Act of 1970 lays down the provision of compulsory licensing of patents. Section 84 of the Act lays down the following – 

“At any time after the expiration of three years from the date of the [grant] of a patent, any person interested may make an application to the Controller for grant of compulsory license on patent on any of the following grounds, namely: –

  1. that the reasonable requirements of the public concerning the patented invention have not been satisfied, or
  2. that the patented invention is not available to the public at a reasonably affordable price, or
  3. that the patented invention does not work in the territory of India.”

2. Special Granting of Compulsory Licenses

In addition to the essentials of granting compulsory licensing, Section 92 of the India Patents Act of 1970 allows special powers vested unto the central government to grant compulsory licensing – 

“If the Central Government is satisfied, in respect of any patent in force in circumstances of national emergency or circumstances of extreme urgency or case of public non-commercial use, that compulsory licenses must be granted at any time after the sealing thereof to work the invention, it may make a declaration to that effect, by notification in the Official Gazette.” Moreover, Section 100 of the Act allows the usage of Patented inventions for government purposes. 

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement furthered the emergency granting of compulsory licensing in 1994. Before the TRIPS agreement, India singularly allowed compulsory licensing only for process patents and not product patents which allowed companies to only reverse-engineer the patented products. However, the TRIPS agreement facilitated flexibility in terms of granting compulsory licensing by the government of different countries. Article 31 of the agreement deals with the right of granting compulsory licenses. These flexibilities were clarified by the Doha Declaration of 2001. Clause 5(C) of the declaration clearly recognizes the flexibility that “each member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.”

Apart from these provisions and legal agreements, a fairly related case law was laid down in the case of Natco Pharma Ltd. v. Bayer Corporation, wherein the Intellectual Property Appellate Board upheld the decision granting a compulsory license of a life-saving drug for liver or kidney cancer, Nexavar, which was sold by Bayer at an exorbitant cost of Rs. 9 lakhs. Natco Pharma Ltd. offered to manufacture the same drug for Rs 9000. It was held that various international conventions and Indian laws allowed the member countries to grant such compulsory licenses to make medicine cheaply available to the public. The same was reiterated in the Suo Motu Covid-19 Case hearing taken up by the Hon’ble Supreme Court of India recently.

  1. Patent Rights or Access to Essential Medicine?

There has been a long-standing debate on the issue of whether or not, protection of Patent Rights be given priority over the public access to essential and affordable medicine. While the giants of the pharmaceutical industry have constantly argued in favor of prioritizing the protection of patent rights, the governments of various countries have been in the favour of providing public access to essential and affordable medicine. 

A major argument from the side of the Pharma giants has been along the lines of costs of R&D in the development of a ground-breaking invention being the reason for the skyrocketing prices of the drugs. They also argue that excess granting of compulsory licenses stifles innovation in the long run by reducing the period of protection of patent rights. On the flip side, the governments have argued that it is evident that the prices set by the Pharma corporates are highly profit-driven and are solely made to generate increased revenues through sales of the drug rather than accessibility. Therefore, an extension of the period of protected patent rights will only contribute towards increasing the profits of these corporations. Moreover, evidence shows that the level of pharmaceutical patent protection, especially in developing nations, is irrelevant in spurring innovation.

This debate has significantly thrived in the context of the developing nations wherein the income inequalities infest the society at large and directly affect the larger public access to essential medicines in event of skyrocketing prices set by various Pharma Corporates. According to the MDG Gap Task Force Report of 2012, the average availability of essential medicines across the world is an abysmal 51.8 percent in public sector health facilities. This indicates a rather worrying circumstance regarding access to essential medicine.

The classic rationale for allowing compulsory licensing is that public welfare, and particularly health, in the immediate term outweighs the long-term objective of encouraging innovation.24 While this does not, in any manner, indicate an absolute sacrifice of innovation, the pressing nature of public health can necessitate a compromise, placing innovation at a lower priority. Pharmaceutical companies argue precisely against such a compromise. The dealing with this power struggle has varied across different countries. While countries like Brazil have effectively used the provisions of TRIPS for granting compulsory licenses, as a tool to threaten the Pharma Corporates to lower the prices of essential drugs, certain developed countries have argued against this increased practice of granting compulsory licenses and have sided with the Pharma Corporates instead.  

Conclusion

Given the current Covid-19 Pandemic, compulsory licensing of the Covid vaccines is a necessary step towards ensuring fair and affordable access, especially in the Indian Context. The income disparities in India have been at an all-time high as a result of continuous complete lockdowns, increasing unemployment, and poverty. With a population as large as 1.35 billion people, it is essential to ramp up production and supply of the covid vaccine as herd immunity remains a distant reality. Considering the deadly second wave, nationwide and the state-wide lockdown has not resulted in avoiding the resurgence of covid infections and has only facilitated the deferment of the same. Therefore, it is evidently concluded that an efficient and quick-paced vaccination drive is an integral component to ensure victory in the fight against this deadly pathogen.

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