Tag: Caselaws

Case Citation

1981 SCR (2) 408, 1981 SCC (1) 627

Bench

Bhagwati, P.N.

Decided on

19/12/1980

Relevant Act/Section/Article

Articles 21 & 22 of the Constitution of India, 1950, Sections 50, 56, 57,167, etc. of the Code of Criminal Procedure, 1973.

Introduction

With about 70% of the country’s population living below the poverty line and perhaps more legally illiterate, it will be difficult for the judiciary of the world’s largest democracy to bring justice to everyone. Legal aid and representation are important elements in the legal remedy of wrongdoing by the guilty, and in countries like India, poor living conditions and financial constraints make it difficult to find oneself before the country’s justice system. Lack of representation is common. The provision of free legal aid under Article 39A¹ of the Indian Constitution, introduced by the 42nd Amendment to the Indian Constitution, is encouraged. But the inclusion of such a provision came at the cost of, an insight into, despicable injustices committed in the past.

Facts of the case

Between 1979 and 1980 there were reports that police poured acid into the eyes of 33 pre-trial detainees in Bhagalpur, Bihar. It was reportedly the worst case of police torture and has come to be known as one of the darkest times in independent India’s history. Bhagalpur Blindings case is another name for this case. Prisoners on trial were blinded by the police and brought before a judge, who failed to investigate any injuries intentionally or unintentionally inflicted on the defendant, and the district and session courts judges visited the alleged Bhagalpur Jail only once a year to review prison conditions. The blind prisoners were later admitted to the Rajendra Prasad Eye Institute in New Delhi, but their eyesight was severely impaired and could not be restored by surgery or treatment. Several briefs were submitted to the Supreme Court and the Court decided to hear them all together.

Issues of the Case

• Whether the state was liable to pay compensation to blinded prisoners for violation of the fundamental right under Article 21² of the Constitution.
• Whether the state failed to provide legal representation to the accused.
• Whether the magistrate failed to discharge his duty of offering free legal aid to the
• accused.

Petitioner Arguments

Articles 21 and 22³ require the state to provide free legal aid to all those in need. It is important to ensure that those accused of crimes receive a proper, fair, and just trial. Article 22(1) expressly guarantees an individual’s fundamental right to be represented by an attorney of their choice. Detainees were blinded intentionally and it violated their constitutional right to live with dignity under Article 21. In many cases, the accused were not brought before judicial authorities at their first appearance and remained in prison without judicial authorities ordering pretrial detention of the accused.

Article 21 implies an obligation to compensate a person who has been deprived of life or personal liberty by means other than those provided for by law. As a result, the state is obliged to compensate blind prisoners. Furthermore, it may not be safe for prisoners released from the Eye Institute to return to Bhagalpur. Arrangements should be made to have them housed in New Delhi at the state’s expense.

In some cases, the accused were not handed over to judicial authorities within 24 hours of arrest, which is a violation of Article 22(2) of the Constitution and Sections 56 and 57 of the 1973 CrPC⁴. They also did not investigate prisoners for “eye injuries.” Most of the blind prisoners said in statements to the Registrar that they had never been brought before a judicial officer, implying that the judicial officers merely signed the review order. In other cases, the accused were detained without remand. District and session magistrates did not inspect Bhagalpur’s central prison at any point in 1980. This is in clear violation of Supreme Court rules regarding joint and personal routine visits to prisons by District Judges, Sessions Magistrates, and Chiefs of Police. The independent judiciary fails to protect constitutional rights.

Respondent Arguments

None of the detainees sought legal assistance. As a result, the judge did not ask if he wanted legal representation at state expense. Financial constraints make it difficult for states to provide free legal aid. The state already bears many costs. As a result, it has become financially and administratively impossible to provide free legal assistance to the accused. It is not yet clear that the prisoner was blinded by the police and the investigation is still ongoing. There is currently no evidence that the state violated the victim’s right to life and personal freedoms beyond the judicial process. The defendant’s testimony alone cannot be trusted. It’s just hearsay evidence with no legal basis. An investigation into the pre-trial detention of suspects by police officers is ongoing. Therefore, the conclusion that the state is responsible at this time is not valid. Even if the police blinded someone and there was a violation of the fundamental rights enshrined in article 21, the state could not be held responsible for compensating the victims. There is no indication of improper conduct by the judicial officer. The blind person’s testimony to the Registrar that he was not brought before judicial authorities have not been substantiated. The accused’s unilateral testimony should not be taken seriously.

Judgment

Courts are in the constitutional obligation to provide free legal assistance to the accused at all stages of a trial if the defendant suffers poverty or hardship to achieve the goals of justice., ruled that it failed to do so. The court must inform the third judge and all courts at large that the judicial officer is entitled to render legal aid free of charge to the accused, if necessary, at the cost of instructing the state to pay for it. The court barred draconian action against the accused who failed to appear before a judge within 24 hours and called on state police to step up vigilance going forward. The court also held the state responsible for its egregious encroachment on the lives and liberties of prisoners by the police and ordered the state to compensate the victims, since the police are directly employed by the state and are also the means of the state.⁵

Analysis of the Judgement

The court began its argument by expressing its disappointment that the defendants were not granted or provided legal assistance by the judge simply because they did not request it. In the case of Hussainara Khatoon v. Secretary of the Interior⁶, the court held that the right to free legal advice is a fundamental right of a person accused of a criminal offense even if the defendant can afford it. The Court’s decision, in this case, is a clear law as illustrated by binding case law under Article 14(1) of the Indian Constitution. And the Court has expressed its displeasure that most states in the country have failed to heed its decisions or make efforts in that direction. The submissions made by the state that the financial condition of the state was not good enough to provide legal assistance to the accused, cannot be used as an excuse to avoid responsibility. To back this up, the court in the case of Rhem v. Malcolm⁷ said, “No government is permitted by law to deprive its citizens of their constitutional rights based on poverty.”

It quotes Justice Black in Jackson v. Bishop, who said, “Humane considerations and constitutional requirements are not to be measured by dollar considerations in this day and age.” The court emphasizes that the constitutional obligation to provide free legal aid to an accused applies not only when the trial begins, but also when remand orders are issued and when the accused is presented before the court from time to time. It makes use of the fact that approximately 70% of people living in rural areas are illiterate, and even more are legally uneducated and unaware of their legal rights and entitlements, which compensates for the additional burden on the state and the judiciary to ensure that such people are served justice. The legal aid movement is mentioned, and it is claimed that leaving the practice of rights to the sole efforts of an uneducated populace would make a mockery of the legal system and that legal aid would end up being a mere paper promise. The court orders that prisoners be transferred to the Blind Relief Association of Delhi after they are released from the hospital, as it may not be possible to return them to jail, where their safety may be jeopardized. It also finds that some of the accused were not brought before a magistrate within 24 hours of their arrest, which is a violation of every person’s legal right under Article 228⁸ and Sections 56 and 57 of the CrPC 1973. It is also shocking that the state continues to detain the accused without remand of orders, which violates the personal liberty guaranteed by Article 21.

The court condemns the police for such fundamental violations of arrest and detention rules and warns them not to repeat the same mistakes. As to whether Bihar is responsible for blinding detainees, the court was right for making them accountable that it was because the police officers were public servants in Bihar and were working for the state. The Court was also disappointed to learn that an inspection of Bhagalpur Prison by the District Court and the present court in 1980 had not taken place in violation of Supreme Court rules, and asked the High Court to thoroughly consider the matter and ordered law enforcement to conduct a thorough investigation to ensure law enforcement. The whole judgment is quite impressive and right. The court has given due regard to the principles of natural justice and made decisions that empower the poor and marginalized while bringing the guilty to conviction.

Conclusion

It is one of the most commendable decisions that has been given by the Hon’ble Supreme Court. The decision was made by Justice P.N. Bhagwati, a pioneer in the judicial movement and one of the Supreme Court’s most prominent jurists. This is a brutal and shameful way in which the state police, paid and stationed solely to maintain peace and harmony, and public safety, exercise their power to hold the lower courts wrong. On the one hand, the decision remains as important as it is today, providing a strong precedent and hopefully serving as a strong deterrent against similar events in the future. The ruling strongly supports the provision of free legal aid and brings justice to those who cannot afford it, as the court articulated in the Hussainara Khatun case.

---

References

1. The Constitution of India,1950, Art. 39 A
2. The Constitution of India,1950, Art. 21
3. The Constitution of India,1950, Art. 22
4. The Code of Criminal Procedure,1973, Sec. 56 and 57
5. Khatri vs State Of Bihar 1981 SCR (2) 408, 1981 SCC (1) 627
6. Hussainara Khatoon vs. Home Secretary, State of Bihar 1979 AIR 1369 1979 SCR (3) 532 1980 SCC (1) 98
7. Rhem v. Malcolm, 377 F. Supp. 995 (S.D.N.Y. 1974)
8. The Constitution of India,1950, Art. 228

This case commentary is authored by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second year of BBA LL.B.(Hons.).

Case Number

Special Reference No. 1 of 1964

Case Citation

AIR 1965 All 349, 1965 CriLJ 170

Bench

J Takru, G Mathur

Decided on

10 March 1965

Relevant Act/Section/Article

Art. 211, Art. 22, Art. 194, Art. 21, Art. 143

Introduction

The Kesavananda Bharti case is well-known and frequently discussed, yet few people are aware that the Kesavananda Bharti case was assigned to a bench with less than half the judges who decided the Keshav Singh case. It required the combined efforts of numerous justices of the Supreme Court, High Court judges, MPs and MLAs, and ultimately the Prime Minister and the Chief Justice of India to take on this case. One of the most remarkable examples from Nehru’s presidency is this one. This case is of utmost significance to the Indian judicial system, but it has never been talked about.¹

Facts: Who was Keshav Singh?

In the Uttar Pradesh city of Gorakhpur, Keshav Singh was born. He belonged to the socialist party or served in municipal politics. The Congress Party was in power during the time. When a leaflet titled “exposing the shortcomings of Narsingh Narain Pandey” was published, it implied that Pandey, a legislator for the Congress Party, was dishonest. Narsingh Pandey started working on a case against Keshav Singh as soon as he learned about the booklet or leaflet. Pandey and other MLAs from the Congress party disagreed with the leaflet. They claimed that the leaflet violated their right to privacy. When Singh was asked to confirm his name on this issue by the district of the legislative assembly in Lucknow, he remained silent regarding the accusations made against him. When queries were directed at him, he stood with his back to the speaker and stayed silent. On February 19, 1964, Keshav Singh was supposed to go before the assembly and accept a reprimand, but he didn’t because he didn’t have the money to go (according to his excuse). The assembly decided that whatever that couldn’t be achieved amicably would have to be taken by force after Keshav Singh’s defense. On March 14, Singh was apprehended and brought before the assembly. If it weren’t for the decision dismissing Keshav Singh and his attorney’s appeal, the litigation and the issue might have been over at that point.

When the speaker of the legislature keeps asking questions, Singh chooses the challenging course. After then, things started to get worse, and the speaker called Congress MLAs to the assembly. Singh had written to the speaker to protest his conviction, attest to the veracity of the charges made in the leaflet, and denounce the authoritarian nature of the arrest warrant. By entering the home, Chief Minister Sucheta Kripalani imposed seven-day house detention on Singh after the MLAs had enough consensus on the same. The legislature approved a resolution in the format suggested by the chief minister, and Singh was then taken to prison for his one-week sentence. One day before Singh was scheduled to be released after serving his sentence, a lawyer on his behalf submitted a petition to the Allahabad High Court asking for his immediate release. The petition claimed that Singh’s imprisonment was unlawful because the assembly lacked the right to imprison him and because he was not allowed to defend himself after being brought before the court.

Issues

1. Whether or not the Legislative Assembly has no criminal jurisdiction and no authority to punish anyone for its contempt;
2. Whether or not the Legislative Assembly has such authority, the petitioner’s detention is illegal and violates Article 22(2) of the Constitution.
3. Whether or not the Legislative Assembly’s action in punishing the petitioner was malicious.

Observations and Decisions of the Court

The Supreme Court concurred, pointing out that the resolution of the assembly violated the independence of the judiciary. Article 211 was an essential component of the system that allowed courts to make difficult decisions, even if they were wrong, without worrying about political retaliation, therefore it could not be reduced to a meaningless assertion. The Supreme Court ruled that Keshav Singh can be granted bail while awaiting a decision and that the high court has the authority to consider his appeal. The parliament lacked the legal right to order Solomon’s arrest or to ask Justices Beg and Sehgal for an explanation. If the consent of the justice addresses the audience, the drama may compromise the independence of the judiciary. On the other hand, if they show up and make a strong defense, the assembly might be forced to stop acting to avoid being accused of harassing well-meaning judges. The judges have the option of filing a petition with the supreme court, but there was no guarantee that the judges would share the same outcome as the justices who heard the plea. They petitioned the Allahabad High Court, arguing that the assembly’s actions were against Article 211 of the Constitution, which forbids state legislatures from discussing the conduct of any high court or Supreme Court judge. While the case was still pending in court, Justices Beg and Sehgal requested a hold on the resolution against them.²

The court referred to English law, which states that any detention is prima facie unlawful, and the act is justified by the person who ordered the detention. Further, the court held that the appeal was flawed and could only succeed if the petitioner established his or her claims. Prima facie, the detention cannot be considered illegal, and the petitioner must prove that the duty was illegal, the court must decide whether the obligation is lawful. The court does not understand why the defendant should not be allowed to argue that the bond, warrant, and commitments used to detain the petitioner were valid. In any event, the court is entitled to the assistance of the defendant’s attorneys in resolving the issues raised in the case.

Legislature has not yet passed legislation regulating the powers, privileges, and immunities of the House, but the power to do so is granted by Entry 39 of List II of Schedule VII of the Constitution. The powers and privileges of the Legislative Assembly must therefore be determined according to Article 194(3). There is no express or implied prohibition in the Constitution against the Legislative Assembly exercising the privilege enjoyed by the House of Commons to commit for its contempt. The possession of power or privilege The argument is that the House of Commons had a similar penal power and that the inclusion of a separate provision in Article 193 regarding the penal power indicates that the Constitution’s authors did not intend to include any penal power under Article 194 (3). In other words, the argument is that Article 193 encompasses all penal powers conferred on the Legislative Assembly and that no penal power can be assumed as a result of the provisions of Article 194(3). The court didn’t agree with this assertion. Article 193 merely limits the power and privilege of state legislatures to punish people who sit or vote in the legislature without authority, in our opinion. This Article cannot be read as exhaustive of all the penal powers of the State Legislatures to commit for contempt is a judicial power is, in our opinion, not a compelling reason for denying the power to the Legislative Assembly because our Constitution does not provide for a rigid separation of powers. Since, even according to the petitioner’s learned counsel, Article 193 gives the Legislative Assembly the power to punish a person who sits or votes as a member of the Assembly in certain circumstances, which is also like judicial power, it cannot be said that the idea of the Assembly exercising judicial power was abhorrent to the Constitution-makers.

The HC rejected Keshav Singh’s argument that the facts discovered against the petitioner by Parliament did not constitute contempt of Parliament. The HC also ruled that the defendants did not violate Article 21 or natural rights because the Legislatures had established procedures for investigating allegations of violation of privilege. The HC also said the county jail warden is within the jurisdiction to execute the chairman’s warrant. Noting that the provisions of Part III of the Constitution do not apply where Article 194(3) of the Constitution applies, the HC notes that the fundamental rights of Part III are governed by Article 194(3) of the Constitution. The HC also ruled that the applicant was deprived of his liberties following the legal procedure set out in the last part of Article 194(3). Petitioners also argued that Congress’ decision to arrest him was motivated by political animosity and hatred. The Court couldn’t prove it for that reason alone. The Supreme Court dismissed the Keshab Singh case and refused to infer parliamentary malice. In dismissing Keshav Singh’s motion, the High Court said only the House could decide whether there was contempt of the House of Commons in a particular circumstance and that the court had not addressed the question of legality.

While the case is about violations of fundamental rights and constitutional crises, the focus is on symbolic gestures of solidarity by judicial authorities and how they collectively resolve disputes while they exist. It is about upholding the dignity and basic rights of citizens. enshrined in the Indian Constitution. This case highlights the importance of the separation of powers as one of the key building blocks of the constitution and how each can control excesses and respond appropriately. This decision ensured a proper balance of power between the two peers.

The Supreme Court also ruled that Articles 105(3) and 194 should not be used to limit the rights of citizens and lawyers to bring cases before the court. The Supreme Court has ruled that the House of Commons, as the highest court of record in the country, not Congress, can only try someone for contempt with an unwarranted general arrest warrant. The principles of Fundamental Rights and Judicial Review, especially Articles 32 and 226, not only empower but also impose obligations on the Supreme Court and the Supreme Court to exercise fundamental rights. The Indian Parliament and the State Legislatures are entitled to such privileges. As a result, courts may view the House’s implied warrant as a statutory order to punish someone for contempt. The SC not only wanted to recognize that the House has the power to punish insults and violations of privilege. The independence of the judiciary is seriously undermined if the House asserts the right to question the actions of judges. Not only that, the house has the power to punish disrespect and violation of privilege. Before a decision is made, the Privileges Committee will conduct an investigation and allow the complainant to comment.

Conclusion

If it weren’t for several defects and errors in judgment, the conflicts between the high court and the Uttar Pradesh assembly would never have escalated to the extent that they did. It was unusual for Singh’s attorney to enter a plea with only one day left in Singh’s sentence. The judge would have promptly revoked Singh’s bail if the government’s attorney had arrived at the high court at 3 p.m. with a report on the case. The fact that this case shows how readily constitutional institutions can turn against one another and how tough situations are best resolved by statesmanship rather than brinksmanship makes it noteworthy in and of itself.

References

1. Keshav Singh vs Speaker, Legislative Assembly AIR 1965 All 349, 1965 CriLJ 170
2. Atharva Kulshrestha, Keshav Singh – Case commentary,aishwaryasandeep.com(Last Accessed: 09 July, 2022) https://aishwaryasandeep.com/2021/06/07/keshav-singh-case-commentary/

This blog is written by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second-year of BBA LL.B.(Hons.).

Case No.

Civil Appeal No. 1013-1015 of 1987

Equivalent Citation

• (1997) 4 JT 124
• (1997) 3 SCALE 1
• (1997) 2 SCR 1086
• (1997) 4 Supreme 388
• (1997) 4 SCC 606

Bench

• Hon’ble Justice K. Ramaswamy
• Hon’ble Justice K. Venkataswami
• Hon’ble Justice G. B. Pattanaik

Decided On

14/03/1997

Relevant Acts

Constitution of India, 1950 – Article 14, Article 15, Article 16, Article 25, Article 26. Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983– Section 16, Section 17, Section 18, Section 19, Section 20, Section 20(1), Section 20(2), Section 21, Section 22, Section 22(2), Section 23(2), Section 24(2), Section 25(8), Section 3, Section 4, Section 4(2), Section 5, Section 6, Section 6(1).

Brief Facts and Procedural History

The Supreme Court has received an appeal of the Allahabad High Court’s decision in this case. The two Honorable Justices of the High Court disagreed on whether the Kashi Vishwanath Temple is a place of worship, but they agreed that Parliament has the authority to pass laws governing its administration. The Pujaris commanded pilgrimages, the precincts were filthy, and Lord Shiva’s stolen jewellery was allowed into the premises. A committee was established with the recommendation that the government should seize control of the temple. Accordingly, two ordinances were promulgated one after the other until the Parliament enacted the Act for the management of the temple by the Government.

Issues before the Court

The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which was to manage the temple of Lord Vishwanath, also known as Sri Adi Visheshwara of Kashi, has been questioned for its constitutionality.

The following issues were also up for decision by the Supreme Court:

• Whether Sri Kashi Vishwanath Temple is a denominational temple.
• Do followers of Lord Vishwanath have the constitutionally protected fundamental right to manage their religious affairs and manage the Temple’s assets following the law as guaranteed by Articles 25 and 26 of the Constitution?
• How important and integral are the traditional practices of the religion and religious practice protected by Articles 25 and 26?

Decision

1. Since it does not affect any of the rights of the religious denominations protected by Articles 25 and 26 of the Constitution of India, 1950, the Act passed to manage the temple is constitutional.
2. A denominational temple cannot be found at the Kashi Vishwanath temple. Shaivites are Hindus, and as such, they belong to no particular denomination. They are a part of the religion known as Hinduism. The Act protects the right to participate in ceremonies, rituals, or acts of worship that adhere to long-standing customs. 
3. Although Section 22 is regulated and extends the right to the means of subsistence under Article 21, the rights of those who work as archakas are unaffected.
4. The right to enter the temple, interact with Lord Sri Vishwanath’s Linga, and perform worship there is extended to everyone who practices Hinduism. The Act mandates that the State protect all manifestations of Hindu Lord Vishwanath worship, regardless of whether they are carried out following Hindu Sastras, regional custom, or temple-specific usage.  It is not restricted to a particular sect or denomination.  Shaiva worshipers are Hindus in general and do not belong to any particular denominational sect or group.
5. State regulation may apply to all secular activities that are connected to religion but do not directly relate to it or constitute an essential component of it. However, what constitutes an essential component of religion can be ascertained primarily from that religion’s doctrines following its tenets, historical context, change in evolved process, etc. The concept of essentiality in and of itself does not matter. When determining whether a particular religious matter, practice, or belief is an essential element of the religion, one consideration to make is whether the community as a whole sees the matter or practice as essential.

Analysis

The term “denomination” is extensively covered in this instance. A group that exists as a sect, group, class, or kind and has unique characteristics that set it apart from other groups is referred to as a denomination. The Constitution Bench had to decide on the precise definition of the term “denomination” in The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. It was decided, by the definition provided in the Oxford Dictionary, that the word “denomination” refers to a group of people or a class who are united under the same name as a religious group or body and who are known by a distinctive name. Even though Hinduism has many well-known denominations, not all of these groups are considered to be part of the denomination as a whole.

Every court ruling regarding a temple’s religious affiliation turns on the followers of that religion’s central doctrine. The denomination is not developed in a single day. The rituals will undoubtedly resemble Hindu religious rituals in general. However, that in and of itself is not sufficient to contest the status of a religious denomination. One of the twelve Jyotirlingas is Kashi Vishwanath. Jyotirlingas are worshipped following a predetermined set of rituals.  The temple’s followers provide endowments for such rituals by making donations. The pujaris are now considered to be a class that is a religious denomination for purposes of protection under Articles 25 and 26. Article 14 extracts class legislation. This class shall be accorded equal treatment under Article 14 for rights under Articles 25 and 26. 

The contested Act only affects secular activities; it does not affect religious freedom. The provisions of the Act make it abundantly clear what the purpose of the legislation is. It can only help to enhance the property’s management and upkeep. The Board will have the right to take possession of all real estate, including both movable and immovable property, money, valuables, jewellery, records, documents, tangible objects, and other assets that belong to or are a part of the Temple and its endowments under the terms of Section 13.

In State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and Others¹, it was determined, following the ruling in the Durgah Committee of Ajmer case², that a religious denomination’s right to purchase property is distinct from its right to conduct its own business regarding religion. The former can be controlled by laws that the legislature can lawfully pass, whereas the latter is a fundamental right that cannot be taken away by the legislature.

The management of the endowments and property of the Temple shall be vested in the Board of trust for the deity of Sri Kashi Vishwanath temple. There is no controversy surrounding the selection of unofficial members. It is the appointment of the ex-official member of the board as the member in question. This amounts to the government having direct control over temple affairs. Non-Hindus cannot be appointed as board members, according to Section 3. While section 6 (1) calls for the ex-officio member to be appointed and to be of any religion.  But if ex-officio members are not Hindus, section 6 (3) allows for the appointment of the next available Hindu.

The term “Hindu” is currently undefined. According to the Supreme Court of India, a Hindu may or may not be someone who practices temple worship or professes a religion that originated in India.³ Sikhs, Buddhists, and Jain are all considered Hindus even though they don’t necessarily practice all the same rituals and worship as temple devotees. Hindus are guaranteed the right to enter the temple regardless of their religious affiliation under Article 25(2)(b). Can someone who doesn’t believe in the temple be given to the management of the temple?  Secondly, the non-Hindu official will authorize the Hindu official as a member of the board. Whether a non-Hindu will approve a Hindu’s appointment as a representative? The Act’s single goal is to administer the Temple more effectively and properly. Regarding effective management administration, there is no disagreement. It is only intended to usurp authority for the temple’s management. There are people on the board. These individuals need to be free from governmental control.

It has been decided that the Act protects the practice of Hindu religious doctrines, traditions, and usages.  However, the secular administration of the religious matters in the Temple is a secular component. The legislative branch has the power to impose restrictions on and make interferences with the efficient management of such resources. The Temple is not their property, even though Mahant, Panda, and Archaka are in charge. Simply put, the Act gave the Board control over the Pandas. On the designated day, only the pandas’ management rights were terminated and transferred to the Board for better and more suitable management. Neither does it belong to the State nor was it bought for that purpose. To put it another way, the Board has assumed control over the Lord Sri Viswanath Temple’s management now that the Pandas/Mahant are no longer in charge of it. It cannot be argued that this management change results in the property’s ownership rights being acquired or lost.

Hereditary individuals were in charge of running the temple. In the hands of the appellants, the management could still be carried out properly under the Act. There was no need for the appointment of the ex-officials to the board for the management of the temple. The court determined that managing the temple’s endowments and property, as well as other temple business, is a secular activity and is not protected by the religious freedoms guaranteed by Articles 25 and 26. Because of this, anyone, Hindu or otherwise, can control such activities. The Act only gives Hindus the chance to serve on the board that oversees the temple’s endowments and property and is considered a secular endeavour. Ex-official non-Hindu members who have every right to oversee secular activity are being mistreated.  Because if an activity, is secular, then every citizen of the country shall be eligible to be appointed without any discrimination. If an activity is religious, then it should not be interfered with by the government.

Conclusion

The Temple was managed by the descendants of the Mahant. The Act was enacted only for the excellent management of the temple since there was mismanagement by the descendants. Once the Act is established, it must make provisions for the committee’s creation and hand over management of the temple to the pujaris while making significant provisions for the punishment if mismanagement occurs again.

The case involved an appeal regarding the observance of the religious denomination’s fundamental rights, but it ultimately came down to ownership rights of the property and endowments. The court’s decision thus lies where religious and secular activity is distinguished. To keep balancing on this thin line, either the Act shall be amended to include the non-Hindus for maintaining the secular activities or the court shall include the management of the endowments and property of the temple as religious activity.

References

1. State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and others, AIR 1993 SC 706.
2. The Durgah Committee, Ajmer and Another vs. Syed Hussain Ali and Others, AIR 1961 SC 1402.
3. M.P. Gopalakrishnan Nair And Another vs. State Of Kerala And Others, (2005) 11 SCC 45.

This article is written by Somnath Sharma, a law graduate.

NLIU Cell for Law and Technology and Ikigai Law are organising Policy Case Competition and seeking registrations for the same.

ABOUT

The NLIU Cell for Law and Technology (NLIU-CLT) was constituted at National Law Institute University (NLIU), Bhopal in the year 2019. It aims to create and promote an environment of debate and discussion on issues relating to Technology Law.

The Cell has been continuously taking efforts to engage in a variety of activities to keep up with its vision to be ahead of the curve when it comes to the intricate interactions between technology and legal policy. When it comes to the intricate interactions between technology and legal policy, the Cell wants to be ahead of the curve.

The Cell is excited to organize the second iteration of the Competition this year, which will include participation from law students throughout the nation and abroad. Ikigai Law has consented to be our Law Firm Partner for the same.

This year the Competition will be held entirely in a physical setup. The teams shall be asked to put forth policy proposals that will address the policy questions put before them. The submissions made by them will undergo review by the team at Ikigai and the qualifying teams will be expected to give an oral presentation before a panel of judges.

After the first presentation (Preliminary Round), all participants shall be given detailed feedback pursuant to which they will be given an opportunity to revise their proposal within a day’s time. Mentors shall be provided for the day.

Selected teams shall then present their revised proposals in front of the judges for the final round. The winner shall be decided on the basis of both written submission and final oral presentation.

THEME

Internet Platform Regulation

The internet and large internet platforms are all-pervasive in today’s world. One of the key challenges of our time is to find the sweet spot of regulation that balances user interests, regulatory concerns, and the need to allow innovative businesses to flourish.

These are hard questions that countries all over the world are grappling with at the moment. Participants will be required to suggest a model for platform regulation that is best suited to India. This will involve examining and evaluating approaches to platform regulation across the globe and assessing whether these work for India.

PERKS

• Participants shall be given an opportunity to be a part of the Two Round Table Conferences this year, conducted as part of Techtonic 2023.
• The Round Table Conference shall include panelists who are the corps d’elite of the trade from across the nation and abroad. The Conference shall be graced by academicians as well as industry experts from various renowned law firms who shall present their viewpoints. All the participants of Techtonic shall have the opportunity to witness it on our scenic campus.
• All registered candidates shall have the opportunity to attend an Online Session on ‘How to Write a Policy Proposal’ by Ikigai Law.
• Winners shall have the opportunity to intern with Ikigai Law.
• Various publication opportunities shall be provided to the top ten policy proposals.
• All teams shall get a chance to impress various think tanks and NGOs to land long-term internship and mentoring opportunities on their proposed policies.
• All teams shall have the opportunity to interact with and get mentoring sessions with industry experts from think tanks and law firms.
• All teams shall have the opportunity to interact and collaborate with like-minded peers and colleagues.
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CASE NUMBER

Appeal case filed in Calcutta High Court against the order of acquittal passed by Session Court of Midnapore in trial no 18 of March, 1980.

EQUIVALENT CITATIONS

1984 CriLJ 1535

BENCH

B. Chakrabarthi, J. Chaudhri

DECIDED ON

16 June, 1983

RELEVANT SECTION/ ACT

Indian Penal Code, 1860

Section 90 of the Indian Penal Code states that a consent is not a consent if given by the person under fear of misconception and injury or consent of a person who is of an unsound mind or intoxication unable to understand the nature and consequence of which he has given consent or consent of child unless contrary appears from context if the consent is given by the person who is under twelve years of age.

Section 376 of the Indian Penal Code states the punishment of rape offence except in sub-clause (2) any person proved to commit rape shall be punished with imprisonment that may not be less than seven years but for life or for a term that extends to ten years and also liable with fine unless the women raped was his own wife and is not under twelve years of age, in which he shall be punished with the imprisonment of term extended to two years or with fine or with both. Only in the special case of judgment, the imprisonment would be less than seven years.

FACTS OF THE CASE

It is the case where the de facto complaint is filed against the order of the acquittal passed by the Additional Sessions Judge acquitting the accused charged with section 376 of the Indian Penal Code.

In August 1978, the complainant filed a police report saying that the accused opposite party No. 2, a teacher at the nearby village school, used to visit her home and one day while the complainant’s parents were away from the house, told her he loved her and that he wanted to marry her. The complainant requested that the marriage be consummated. The person is accused of promising to do so and that he would personally secure her parents’ approval. Relying on this promise, she began living with the accused. This cohabitation lasted for a couple of months, during which time the accused would frequently drop by her home at odd hours and occasionally spend the night with her. She eventually became pregnant, and when she requested that the marriage take place as soon as possible, the accused suggested having the child aborted in exchange for agreeing to marry the complaint after the Panchayat elections. The accused eventually abandoned the commitment and ceased coming to the complainant’s house because she had refused to have an abortion. Debra P.S. Case No. 20 was started based on this accusation. The accused asserted his innocence and said that the accusation was brought against him by a political competitor in an effort to extort money from him; the accuser was a woman of easy virtue.

At the trial stage, it was to be seen whether the age of the consent was there and whether the consent was fraudulently obtained by section 90 of the Penal Code. The judge observed that even when there is a whole false promise is given yet the accused is not liable for the rape offence as the consent of intercourse is not given based on the misconception of fact. There is no concept of fake marriage. The accused did not come under the provision of section 376 of Indian Penal Code so the accused was acquitted. The petitioner has filed a revisional application and obtained the rule

ISSUE

1. Whether the girl was below the age of giving consent or not?
2. Whether the consent was obtained fraudulently or using any force or coercion and was hit by section 90 of the Indian Penal Code?

JUDGMENT

During the trial, two questions were asked about the age of the girl; whether the girl was below the age of consent for intercourse or not; and whether there was any fraud in obtaining the consent of the girl or whether the consent of the girl was acquired by the use of any force or coercion. Firstly, on the question of the age of the girl to give consent for this sexual intercourse, it was clear from the trial that the girl was over 16 years old at the time of the commission of the offence by the accused, as claimed by the accused. Regarding the other issue, whether the complainant’s alleged consent fell under the scope of Section 90 of the Penal Code, the learned Judge made the following observation: Given the circumstances of the case, even if it is assumed that a wholly false promise was made, the accused could not be held accountable for the crime of rape because the accused’s consent to the alleged intercourse was not given under a “misconception of fact” as defined by Section 90 of the Penal Code.

His exact finding is “In terms of the Code, a false promise is not a fact. If the accused had ravished the girl while pretending to be the girl’s husband or in a false marriage, the situation might have been different.” The learned Judge concluded that the act done by the accused did not fall under the purview of the Penal Code and, as a result, cleared him of the offence under Section 376 of the IPC. The failure to maintain the promise of marriage does not come under the misconception of fact under section 90 of the Indian Penal Code. In order to come up with the meaning of misconception, there must be proper evidence. This matter would be held differently if there is a belief made that they are already married. If a fully grown girl consents for sexual relationship and the sexual relationship continues until she becomes pregnant it is not an act induced in section 90 of the Penal Code that is the misconception of fact.  The revision application failed.

This article is written by Sree Lekshmi B J; third-year law student of Sastra University, Thanjavur.

CITATIONS

1950 AIR 124, 1950 SCR 594.

BENCH

• Justice Fazal Ali, Saiyid
• (CJ) Kania, Harilal
• Sastri, M. Patanjali
• Mahajan, Mehr Chand
• Das, Sudhi Ranjan
• Mukherjea, B.K.

JUDGEMENT GIVEN ON

26 May 1950

FACTS AND BACKGROUND OF THE CASE

Romesh Thappar was a publisher of a weekly magazine called Crossroads; certain articles were published in his magazine regarding the doubtful nature of public policies especially foreign policy. These articles created suspicion among the public about governmental policies leading to a communist movement rising in some regions of Madras forcing the state government to impose a ban on circulation of the magazine in areas where the communist movement was going on with enthusiasm.

LAWS INVOLVED

1. Madras Maintenance of Public Order Act, 1949 Section 9 (1-A): It allows the government to stop the circulation, selling, and distribution of any journal in any part of Madras to ensure ‘Public Safety’ or preserving ‘Public Order’.
2. Constitution of India Article 19 (1) (a): Provides freedom of speech and expression to citizens of India. Freedom of speech and expression gives one a right to speak and express their opinions and ideas about something through traditional media or social media.
3. Constitution of India Article 19 (2): Provides for the reasonable restrictions to freedom of speech and expression granted under Article 19 (1) (a). These restrictions include the sovereignty and integrity and security of the state and friendly relations with foreign states.
4. Constitution of India Article 13: Provides for the laws that may or may not be passed before the commencement of the Constitution of India if violates fundamental rights mentioned in Part 3 of the Indian Constitution must be declared null and void.
5. Constitution of India Article 32: Provides an Indian citizen right to approach Supreme Court if their fundamental right has been violated by any government authority. The article goes as ‘Heart & Soul of Indian Constitution’ due to its protective nature towards other fundamental rights specified in Part 3.  
6. Constitution of India Article 226: Provides High Courts the power to issue writs for enforcement of fundamental rights.

ISSUES

1. Whether the violation of the fundamental right can be dealt with by Supreme Court before State High Court?
2. Whether the order passed by the government under Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) violate the freedom of Speech and Expression?
3. Whether the existence of Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was itself unconstitutional for it violates fundamental rights mentioned in Part 3 of the Indian Constitution?  

DECISION OF COURT

On the issue of whether the Supreme Court can be approached before the State High Court, the court believed that Article 32 gives power to Supreme Court to issue writs if any government authority violates fundamental rights provided in part 3 of the Indian Constitution, which in itself as a fundamental right that cannot be denied. Hence, the Supreme Court as the guardian of fundamental rights cannot refuse to entertain any petition for seeking against infringements of fundamental rights.

The order passed by the Madras government was declared unconstitutional as it violates the Freedom of Speech and Expression mentioned under Article 19 (1) (a) of the Indian Constitution. The ban imposed by the state government on the circulation of magazines prevents the freedom to propagate ideas, opinions, and viewpoints regarding any issue that concerns the general public.

The Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was made with the interest of issues like ‘Public Safety’ and ‘Public Order’. Here, ‘Public Safety’ means the security of health of the general public from dangers that vary according to the situation. ‘Public Order’ means to deal with events that may lead to disruption of peace and tranquility of the province. Regarding the question of the unconstitutionality of the law, the Supreme Court invokes the ‘Doctrine of Severability’ to ensure if severing any law defeats the entire purpose of legislation or not. Thereby, declared that the said order contradicts the fundamental right given under Article 19 (1) (a) hence ultra vires. However, Court is of the view that entire legislation cannot be considered void as Article 13 of the Indian Constitution states that the law can be declared null and void only to the extent of its inconsistency with fundamental rights.

This article is written by Simran Gulia, pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

INTRODUCTION

Intellectual Property (IP) is a kind of invention by a living being in form of literature, artistic, designs, symbols, names, and images in trading.

Intellectual Property Rights (IPR) are granted to the owner of Intellectual Property. These rights protect the property’s misuse by someone other than the owner. Having intellectual property has become common in the modern world. Protection of Intellectual property enhances the publication and its distribution. It helps in boosting economic growth.

To distinguish IP from other forms of property is its intangibility. IP can be owned and owners have the right to protect the property. When you are given rights to protect the property you are also given duties to be fulfilled. As we all know there are various kinds of IP that leads to different kinds of rights and duties in society so that all IPs can exist together. Any IP once sold by its first owner to the other then the first owner’s claim to the property is completed. With new technologies around the world, the new items are making it up to the IP. Facilitating fair trading and competition in the market.

Bajaj Auto Ltd v TVS Motor Company Limited¹ this case has been pending before the court for 2 years leading to losses to parties due to which Supreme Court ordered that cases must be resolved within four months of filling any such related suit.

Yahoo Inc. v. Akash Arora² this case was about the IPR on the internet, in the instant, the domain name of the defendant’s website was identical to that of the plaintiff due to which people can easily get confused. The general public may believe that both the name must have some sort of connection. The court observing the importance of domain name ordered the defendant to stop the usage of an identical name as it is essential for the company’s advantage.

SUI GENERIS

The term ‘Sui Generiss’ is derived from Latin meaning its own kind and in layman’s terms unique. In legal it means a control-free legal classification. Provides a set of laws to protect Intellectual Property Rights, allowing the provider of the invention must be protected and compensated for the contribution made to society. It can also be a law that provides protection to copyright, patents, trademarks, geographical indications etc.

The policy laid down by the Indian government in 2016 aimed at making citizens aware of intellectual property. To promote modernization, acceleration of commercialization, expansion of institutions specialized in IP and development of human skills.

Intellectual property can be classified as—

COPYRIGHT:- The property in tangible form in terms of literature, artistic, poems, novels, songs, and computer codes. The copyright gives one authority over the work and the owner is capable of deriving economic benefits like commercializing the use of work and receiving respect for his/her work. Copyrights are based on the creativity and originality of work. In India, the copyright is governed under Copyright Act,1957.

PATENT:- It is an exclusive right that is granted to the owner of the invention. Invention means a new way of making use of something, the machine-made for some purpose. In India, the patent is governed under Indian Patent Act,1970 providing the owner of the patent to make use, sell, controlling the patented subject. It must be registered for getting the sanction of license. A patent can be given up by the owner of the patent by surrendering.

TRADE MARK:- It helps us in the differentiation of one product from other products that have the same class. It helps one product stands out from other products. Giving protection to any symbol, phrase, design, or icon helps in the recognition of the product. It is protected under the Trademark Act, 1999 objective of protecting trademarks from misuse of trademark, expanding the usage of trademarks and reputation of a firm’s trademarks.

GEOGRAPHICAL INDICATION:- Name and sign of product based on its geographical location. The indication leads to the defining quality and process for the manufacturing of the product. Geographical indications are governed under the Geographical Indication of Goods Act,1999  in India. It aims at providing protection to the protection considering the interest of the owner. The product that is based on geographical location may be a natural hood, agricultural good or ingredients used in a product taken from that geographical location.

INDUSTRIAL DESIGN:- It aims at protecting visual design created with dimensional or two-dimensional figures or shapes, coloured, lined, textured, and material used.

PLANT VARIETY:- There must be a diversity of plants distinct in nature, offering material used for selling, and providing material for imports and exports.

TRADE SECRETS

Trade Secret is a kind of intellectual property that includes the process of working, formulas to programs, the pattern of work or confidential information that is financially valuable, only a limited number of people are familiar and viable steps must be taken to keep the concerned information a secret. Some examples of trade secrets include Coca-Cola Drink, KFC, McDonald’s etc.

The law based on intellectual property rights forbids others to disclose a trade secret to anyone who is not part of a firm or project or not allowed to know. Trade secrets can be technical in nature including formulas, codes for programming, commercially including advertising, and processes of making.

ORIGIN

The year 1977 saw the rise of Trade Secret in India when the government orders Coke to surrender the formula for Coke due to which Coke pulled out of the Indian market and re-enter the Indian market when the central government changed. India was part of the General Agreement on Tariffs and Trade (GATT) in 1984 as the concept of intellectual property was based on immediate disclosure, publication, and registering the innovation whereas trade secrets are meant to be kept secrets as the term suggests, therefore, India refused to include trade secrets.

In 1991 the liberalisation policy was introduced aiming at private and foreign investment. India was part of the Uruguay Round that leads to the introduction of intellectual property rules into multilateral trade and the treaty was called as Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. Consequently, India became a member of the World Trade Organization (WTO) in the year 1995. As per the agreement, it makes it an obligation towards members of the organisation to protect ‘Trade Secret’. Later, India enacted laws to comply with the terms of the agreement.

With the passage of time, the issue became important and the need for the new law was felt, therefore, the Indian government introduced the National Innovation Bill 2008 aimed at providing a boost to innovations done either privately or publically and codification of set of laws for maintaining trade secrets. Soon, the bill disappeared in thin air. India ignored the subject till 2016 when ministerial-level meetings were held between the U.S.A. and India leading to the mention of the term ‘Trade Secrets’ in the National Intellectual Property Policy.

PROTECTION

The one who owned trade secrets must be responsible for keeping them confidential by both technical and legal measures. The owner must know the importance of trade secrets, and access to such codes, formulas, and data must be protected by stronger security.

Trade Secrets became more prone to the risk of getting misappropriated when a former trustable employee leave and was suspected of using economically valuable information for its own benefit. For the protection of the trade secrets of a company, there must be stronger laws that include the agreement of secrecy and for breach of confidence etc.

The agreement of secrecy was not considered to hold back the practice of trade³. There is always an agreement of confidentiality between employer and employee⁴.

In the instant case of John Richard Brady v Chemical Process Equipment Pvt. Ltd.⁵ the usage of the same information that is provided by the plaintiff to the defendant under the clause of confidentiality was used for the defendant’s benefit hence the confidentiality clause was breached leads to the liability of the defendant.

When secrets are shared among competitors then the competition would be unfair hence, a company that is unable to meet the satisfaction of consumers leads to a lack of promotion of new innovations. Secrets can be kept for a longer time without a bar of certain years will be applicable immediately or at the stated time.

INTERNATIONAL TREATIES

Paris Convention on Protection of Industrial Property,1883: The first treaty in favour of Intellectual Property Rights having 30 articles revised in 1967 aiming at equal treatment to IP of other member nations same to that of its own citizens, the owner may seek protection from more than one country and all countries must have some common rules regarding IPR.

Berne Convention for Protection of Literary and Artistic Work,1886: The original should be given protection instantly from the time stated an equal treatment must be given to all such works. The protection must be given to work in other member countries as well.

Universal Copyright Convention,1952: The treaty aims at national equal treatment for all IP minimum safeguards.

World Intellectual Property Organization,1967: With the objective of providing people with state cooperation towards international applications for intellectual property, technical assistance for issuance of the certification of  IP.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),1994 recognises the international intellectual property dispute resolution and protection mechanism.

WIPO Copyright Treaty,1996 promotes the protection of computer programs, and data stored.

CONCLUSION

Even after so many laws to protect Intellectual Property the owner still suffers the loss by bearing the high legal cost of certification and other losses. Laws are just imposed so one might know the consequence of their action but someone will follow the laws that aren’t necessary so the owners of intellectual property still face many problems. Sometimes, people may use your work as their own without your knowledge and consent, but by the time you cane to know the value of the product diminishes.

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CITATIONS

1 2009 (12) SC 103

2 1999 (19) PTC (Del)

3 1967 AIR 1098

4 130 (2006) PTC 609 Del

5 AIR 1987 Delhi 372

This article is written by Simran Gulia of Maharaja Agrasen Institute of Management Studies.                                                                           

“I think those who have a terminal illness and are in great pain should have the right to
choose to end their own life, and those that help them should be free from prosecution.”

Stephen Hawking

INTRODUCTION

While survival is unquestionably important, life may also be unpleasant and terrifying at times under certain circumstances. Euthanasia is nothing more than permission or license given to a medical provider to end the life of a person. Though the Constitution of India allows a feasible way of living a healthy and dignified life, it does not allow for voluntary death. The practice of euthanasia raises complex questions of legal and execution conformity in countries all over the world. Every individual wishes to live and enjoy life till the end of his or her days. However, there are certain instances when a man wants to end his life on his own volition, no matter how strange it is to end one’s life in such an unconventional way.

The phrases ‘euthanasia‘ and ‘thanatos’ are derived from the Greek words ‘eu’ and ‘thanatos,’ which mean ‘happy death’ or ‘easy death,’ respectively. When a person takes his or her own life, we call it “suicide,” but when others take a person’s life at the desire of the dead, we call it “euthanasia” or “mercy killing”. It is the physician’s painless end of the life of an acutely suffering patient at the patient’s request¹.

As a corollary, euthanasia is identified with those who are suffering from a fatal disease or incapacitation and refuse to live the remainder of their lives in misery and suffering. A terminally sick or disabled individual should be able to choose whether or not to live. Euthanasia is a divisive topic that touches on a society’s ethics, integrity, and principles.

TYPES OF EUTHANASIA

Euthanasia is usually performed when a person wants and requests relief; however, When a person is unable to make such a request, euthanasia is employed as a last resort.

On the basis of informed consent:

1. Voluntary Euthanasia
2. Non-Voluntary Euthanasia
3. Involuntary Euthanasia

On the basis of its manner:

1. Active Euthanasia
2. Passive Euthanasia

● Voluntary Euthanasia: Euthanasia is deemed voluntary when it is carried out with the patient’s expressed wish and agreement. The ability of the terminally ill patient to choose whether or not to end his or her life, a choice that serves his or her best interests as well as the interests of others, is at the heart of voluntary euthanasia. In this circumstance, it can be demonstrated that the permission given should be free of any sense of obligation, i.e., the decision to utilize Euthanasia was an example of unconstrained self-determination. This is the most widely accepted form of euthanasia on a global scale.

● Involuntary Euthanasia: Involuntary euthanasia is euthanasia that occurs against a person’s will and is frequently seen as murder. As a result, involuntary euthanasia happens when the patient has refused to consent to the surgery and is an unwilling participant. During World War II, Nazi Germany carried out similar executions in gas chambers involving physically disabled or mentally handicapped persons. It appears to be immoral and brutal.

● Non-Voluntary Euthanasia: It refers to the death of someone who is not psychologically capable of making an informed death request, such as a comatose patient. The patient has not left a living will or provided any prior directives in non-voluntary euthanasia because he may not have had the opportunity to do so or may not have foreseen any such catastrophe or scenario. Family members are frequently the ones who make the choice in circumstances of non-voluntary euthanasia. This includes cases where a person is in a coma/ too young/ absent-minded/ mentally challenged/ severely brain-damaged.

● Active Euthanasia: The act of intentionally reducing one’s life is known as ‘active’ Euthanasia. Active Euthanasia is the practice of putting people to death without suffering for compassionate reasons, such as when a doctor gives a patient a deadly amount of medicine. In this instance, a person cannot inflict his own death and must rely on the assistance of someone else to administer a lethal prescription. Active euthanasia is banned in India and is a crime under sec. 302 of Indian Penal ode, 1860 or at the very least section 304 of the Indian Penal Code, 1860.

● Passive Euthanasia: Postponing medical care in order to prolong life, such as withholding antibiotics when a patient is likely to die if they are not provided, or removing the heart-lung machine from a coma patient, are examples of passive euthanasia. Passive Euthanasia is the purposeful absence of a life-prolonging act. It entails failing to take action to avoid death, such as when a doctor refuses to use a device that would keep a terminally sick patient or a patient in a persistent vegetative condition alive. In India, passive euthanasia is the sole legal manner to administer euthanasia. The physicians are not intentionally murdering somebody in “passive euthanasia,” they are just not rescuing him.

JUDICIAL VIEW OF EUTHANASIA

The subject of whether or not to allow a person to die has been debated by Indian courts on several occasions. State v Sanjay Kumar² was the first case in which such an issue was raised before an Indian court. The Indian Penal Code, 1860, Section 309, is outdated and unfit for Indian society.

In Maruti S. Dubal v State of Maharashtra³, the Bombay High Court found Section 309 to be unconstitutional because it violated Article 21 of the Indian Constitution’s right to life, whereas the Andhra Pradesh High Court found Section 309 to be constitutionally valid in Chhena Jagadesswer v State of Andhra Pradesh⁴. The Bombay High Court observed in Naresh Marotrao Sakhre’s⁵ case that suicide is, by its very nature, an act of self-killing or self-destruction, an act of ending one’s own life without the help or support of any other human agent. On the other hand, euthanasia, often known as mercy killing, refers to and implies the use of another human agency to end a person’s life. As a result, mercy killing is not the same as suicide. Both legally and factually, the two notions are separate. Whatever the circumstances, euthanasia or mercy killing is nothing more than homicide.

The Supreme Court declared Provision 309 of the Indian Penal Code to be legally legitimate in Gian Kaur v. the State of Punjab⁶, however in the current situation, even though this section is constitutional, it is time for the Indian government to repeal it because it is outdated.

196^th REPORT OF LAW COMMISSION

The Law Commission of India’s 196th report went into great detail on the subject. The main question before the Law Commission was whether or not terminally sick individuals should be denied or denied medical treatment (including artificial nourishment and hydration).

The Law Commission addressed a number of issues, including who are competent and incompetent patients, what constitutes an informed decision, what constitutes a patient’s best interests, and whether patients, their relatives, or doctors can petition a court of law for a declaration that a doctor’s act or omission, or a proposed act or omission, is lawful, and, if so, whether such a decision will be binding on the parties and doctors in future civil and criminal proceedings. The Law Commission suggested enacting legislation to safeguard terminally ill individuals who refuse medical care, such as artificial nourishment and hydration.

The Law Commission further stated that, while medical practitioners will contact the patients’ parents or close relatives, it is the doctor’s right to make a clinical choice based on professional medical opinion and the doctor’s decision should be based on the Medical Council of India’s norms. The treating physician was not given the option of selecting an expert of his own choosing.

CONCLUSION

Euthanasia is an intensely stressful and sensitive topic that sometimes leads to disagreements and misconceptions. Given its wide use in the media and scholarly research, it lacks a consistent set of ideas and meanings. Euthanasia dialogues are frequently ill-informed and ineffective, resulting in more frustration than answers. The debate over good death is an existential, emotionally charged, and ethically controversial discourse that will almost certainly continue to be a severe social and legal burden.

The crux of the problem is that individual autonomy and rights must be fostered in order for an individual to make decisions about his or her own life and death, but the right to life must be vigorously safeguarded. Suicide has become criminal in general as a result of the Gian Kaur case, but euthanasia has not. In Aruna Ramchandra Shanbaug v. Union of India, our Supreme Court has recognized passive euthanasia, stating that while passive euthanasia is admissible under the law in rare situations, active euthanasia is not. When legislation on the subject is drafted to avoid euthanasia malpractices and misuse, the suggestions made in the Law Commission of India’s Reports and the directions offered in the Aruna case must be taken into account. Furthermore, if the aforementioned proposals are adopted, the risks of euthanasia being misused would be considerably decreased.

Aside from religious and moral considerations, the ideas of life and death have been altered as a result of the expansion and development of science and technology. Medical science has advanced to the point that it is now possible to prolong both life and death. This knowledge makes it possible to prevent death in those who are in excruciating agony to a substantial extent.

CITATIONS:

1. Brody Baruch, Life and Death Decision Making, NewYork: Oxford University Press, 1988.
2. 1985 Cr.L.J.931
3. 1987 Cr.L.J.743
4. 1988 Cr.L.J.549
5. Naresh Marotrao Sakhre v. UoI; 1995 Cr.L.J.95 (Bomb)
6. 1996(2) SCC 648; AIR 1996 SC 946

This article is written by Sanskar Garg of the School of Law, Devi Ahilya University, Indore.