Tag: legalblogs

INTRODUCTION

Marriage brings two individuals together as spouses and their bond is recognized by the community in the form of marriage rituals. Different religions perceive the concept of marriage from different perspectives. Hindu marriages are considered to be a union of two souls so that they can perform dharma (responsibility/duties). The Christian marriage happens for uniting with someone for the rest of their lives. Consummation also is a vital part of all marriages. Our society only takes consummation after marriage as a sacred one and it does not recognize consummation before marriages. Hence, engaging in a sexual activity/intercourse with a person other than their spouse is considered to be a wrongful act. Rape is a serious crime. Rape is defined legally as when a male penetrates a female’s vagina, anus, or mouth with a penis or any other object either with her consent (falling under any of the seven descriptions mentioned in Section 375 of the Indian Penal Code, 1860) or without her consent subject to the exception mentioned therein.

SECTION 375 AND SECTION 90 OF THE INDIAN PENAL CODE, 1860

Section 375 of the Indian Penal Code, 1860 states that a man commits rape when he penetrates his penis or inserts any object or part of the body other than the penis or manipulates any part of the body of a female so as to cause penetration into vagina, anus, urethra or mouth of a woman or applies his mouth in vagina, anus, urethra of a woman with or without consent as per any of the following seven descriptions-

1. Against her will
2. Without her consent
3. With her consent, when consent is obtained by putting her or any other person she is interested in fear of death
4. With her consent, when a man knows that he is not her husband and consent is given by her because she believes that he is another man whom she believes herself to be lawfully married
5. With her consent, where the consent is obtained in the state of intoxication or in the state of unsoundness
6. With or without consent when she is under eighteen years of age
7. When she is unable to communicate the consent.

The person having sexual intercourse on the pretext of a false promise of marriage would amount to rape and he will be punished under Section 376 of the Indian Penal Code, 1860.

The consent is obtained by the misconception of fact under Section 90 of the Indian Penal Code, 1860.  Section 90 of the Indian Penal Code, 1860 has defined consent in negative terms, as it states that consent is not intended to be consent when it is given under fear of injury or misconception of the fact and the person doing the act knows or has the reason to believe that the consent was given in consequence of fear or misconception of fact. Consent implies the freedom of judgement and deliberation. The consent is only free when the person is not blinded by anger or deceived or ignorant or subject to duress. When a person had sexual intercourse on account of a false pretext of marriage, it is clearly a misconception of the fact and such misconception of fact has no value. It may arise out of fraud or misrepresentation of facts. Consent plays a major role in criminal law, its absence or presence makes a difference of crime and innocence. Thus, the promise to marry (upon which the consent is given to have a sexual relationship) which is not fulfilled subsequently, will be a misrepresentation of fact. In Vijayan Pillai v State of Kerala¹ case, consent was defined as the ‘active will’ in the mind of a person to act on the knowledge of what is to be done.

Nowadays, our society gets more influenced by western countries. People may accept free sexual relations with each other while still being unmarried and the law acknowledges live-in relationships too. Choosing to enter a premarital sexual relationship is a part of individual autonomy but the issue arises only when there is a consenting relationship based on misrepresentation of the promise of marriage.

JUDICIAL PRONOUNCEMENTS

There are various judgements pronounced by the various courts of the country regarding the misconception of fact on the false promise of marriage. In Naushad v State of Uttar Pradesh² case, the accused committed sexual intercourse with the aggrieved party by giving false assurance that he would marry her but after she got pregnant, he refused to marry her. It is evident in this case that the aggrieved party had sexual relation with the accused on the promise of marriage but the accused never intended to marry her and had sexual intercourse with her consent which was based on a misconception of fact as defined in Section 90 of the Indian Penal Code, 1860, so it amounts to rape.

In Yedla Srinivasa Rao v State of AP³, the victim use to cook in her sister’s house during the daytime. The accused used to visit the house and persuade the victim to have sexual intercourse by telling her that he would marry her. The accused had forced the intercourse without her will or consent and the accused promised to marry her. When she became pregnant he refused to marry her. The SC observed that it was a false promise made by the accused and the intention even from the beginning was not honest and the consent obtained from the victim is not valid consent so this act amount to rape. In Deepak Gulati v State of Haryana⁴ case, it was stated that intercourse under the promise to marry constitutes rape only if from the initial stage the accused had no intention to keep the promise. The accused is convicted only if the intention is mala fide.

Clause fourthly of Section 375 of IPC will apply when the accused had impersonated the husband of the victim and the victim gives the consent believing him to be a man to whom she is or believes to be lawfully wedded. Thus, the accused who knew that he is not the husband but represented himself to be the husband, is liable for rape.

LEGAL POSITION IN INDIA

Section 114 A of the Indian Evidence Act, 1972 provides that in the case of rape under Section 375 of IPC if the victim states in her evidence before the court that she did not consent then the court shall presume that the victim did not consent for the act. The false promise to marry is clearly a misconception of fact so the court shall not take the consent into account. But many contrary judgements have been given on consent obtained from the misconception of fact like in Jayanti Rani Panda v State of WB⁵ case a fully grown girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she got pregnant, there is no misconception of fact and Section 90 cannot help. However, sometimes the strict interpretation of without consent may be punishable as rape so there must be an amendment in legislation like sexual intercourse with the victim on the pretext of a false promise of marriage so that the accused may not be acquitted of rape.

According to the survey conducted by The Hindu⁶, 25% of rape cases filed are the breach of promise to marry. Some male activists argue that these are false cases framed against the accused and could be treated as false rape cases. They also argue that Section 375 is an exhaustive provision under IPC where each explanation has its own meaning and it is distinct from one another and there is only narrow scope of a misconception of a fact, the victim is aware of the facts and circumstance of the act. It cannot be held invalid on a mere false promise.

CONCLUSION

Rape is considered to be a grave offence that has long-lasting effects on the minds of the victims. Rape reduces a woman to an animal used for sexual desires so it must be punished severely. In various cases, it has been seen that sexual intercourse has occurred on the false promise of marriage. If these are not punished then more and more crimes would occur so there must be a proper legislative amendment to deal with the accused who committed sexual intercourse with consent on the false promise of marriage. This sexual exploitation attacks the modesty of a woman. It must not be a chance for any person to exploit a woman in the name of a false promise of marriage. Thus, the accused should be punished for rape under section 376 of the Indian Penal Code, 1860 so that sexual intercourse based on the false promise of marriage will be prevented in the future.

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CITATIONS

1. HC: CRL.A No. 1851 of 2006.
2. AIR 2014: SC 384.
3. SC Appeal (crl.)  1369 of 2004.
4. AIR 2013; SC 2071.
5. 984 Cri LJ 1535 (Cal).
6. Rukmini S, ‘The many shades of rape cases in Delhi’ The Hindu (New Delhi, 29 July 2014), https://www.thehindu.com/data/The-many-shades-of-rape-cases-in-Delhi/article60437026.ece.

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

Court

Supreme Court of India

Case No.

122 of 1958

Citation

1960 SC 1186; 1969 AIR 395; 1959 SCR Suppl.(1) 806.

Petitioner

Pandit MSM Sharma

Respondent

Sri Sri Krishna Sinha & Ors.

Date of Judgment

12/12/1958.

Bench

Chief Justice Sudhi Ranjan Das.
Justice Natwarlal H. Bhagwati.
Justice Bhuvneshwar P. Sinha.
Justice K. Subbarao.
Justice K.N. Wanchoo.

Facts

The applicant was the Editor of the Patna newspaper ‘Search Light’. There was a dispute in the Legislative Assembly of Bihar when one of the oldest members of the Assembly, M.P.N. Singh directed a speech censuring the Bihar administration, which the Chief Minister, Dr. S.K. Sinha, ran on 30th August 1957. Singh also quoted specific occasions of favoritism. The Speaker of the Assembly grasped that a part of the speech was offensive and directed it to be eradicated. However, no particular direction was designated to the Press. On 31st May, ’Search Light’ the daily newspaper published what had ensued in the Assembly. A prerogative motion was proceeded in the Assembly and cited to the Committee of Privileges. There was no polling and no time restriction was prescribed for the presentation of the investigation report, which was mentioned in the Rules of the House. According to Rule 215, if no time boundaries are endorsed, the report was to be presented within a month. After one year, on 18th August 1958, the applicant got a notice to reveal the cause, that is why no measure should be taken against him for the violation of privilege.

Issues

1. Could the British House of Commons utterly interdict the publication of its events or proceedings of such parts of them, as had been aimed to be eradicated?
2. Presuming that the British House of Commons possessed such strength and inevitably the State Legislature also had such privileges under Article 194 clause (3) of the Constitution, could the rights of the Legislature beneath that Article persuade over the fundamental rights pledged under Article 19 (1)(a)?

Contentions of the Petitioner

The bulletin emanated by the Secretary of the Assembly and the suggested measures of the Committee breached the freedom of speech of the petitioner under Article 19 (1) (a) and it also qualifies as the shielding of his personal freedom and liberty under Article 21 of the Constitution of India. As an editor of a newspaper, the applicant was authorized to the Freedom of Press. The notice presented to the petitioner by the Privileges Committee of the Assembly of Bihar was illicit and unlawful. The Constitution of the Privileges Committee is illegitimate as Bihar’s Chief Minister Dr. S. K. Sinha himself became the Chairman of the Committee.

Contentions of the Respondent

The offenders leaned on Article 194 clause (3) of the Constitution of India. Additionally, they argued that in the British House of Commons, the procès-verbal of the Assembly could not be printed. A speech, portions of which were conducted to be obliterated, cannot be published under any situation. Alike, the publication was an incomprehensible violation of the privileges and rights of the Assembly.

Obiter Dicta

Article 194 clause (3) granted privileges, powers, and immunities that were not explicit in Article 19. Liberty and freedom of the printing press were inferred in freedom of expression and speech, permitted to the Indian citizens under Article 19(1)(a) of the Constitution. At the beginning of the Constitution of India, the British House of Commons possessed the right to interdict the publication of paradoxically fair reports of the arguments and debates & events of the house. Thus, they also possessed the privilege to intercept the publication of imprecise or expunged genres of the debates and the events. The Assembly of Bihar had not furnished any law administering its powers or privileges.

It would be inappropriate to argue that the powers and privileges afforded by Article 194 and Article 105 to the Parliament and the State Assemblies must capitulate to the fundamental rights under Article 19 (1)(a). The provisos of Article 19(1)(a) must capitulate to the provisos of Article 194(1). Article 194(3) scrutinized the rules, enacted by the Bihar Legislative Assembly in the exertion of its powers under Article 208 of the Constitution, which constituted the privileges, power, and immunities of the Assembly. Any seizure of the personal liberty of the petitioner evolving from the parliamentary proceedings shall corresponding to the procedure established by law.

Judgment

Article 19(1)(a) shall be of no aid to the petitioner. Perhaps there might not be any violation of the rights of the petitioner to his liberty and life under Article 21 as well. However, the court directed that according to Article 194 clause (3) of the Indian constitution, the state assembly of Bihar had equivalent privileges, powers, and immunities as compared to the house of common at the dawn of the constitution. Consequently, the assembly possessed the power to interdict the applicant from publishing any portion of proceedings that was by order of the speaker, to be obliterated. The petitioner contended that Article 19(1)(a) of the Constitution predominated over Article 194(3) of the Constitution which signifies that Article 194(3) is subjected to Article 19(1)(a). The court declined this argument on the grounds that the vernacular of Article 194 put through only “clause (1) explicitly to other provisos of the Constitution”. Furthermore, “clause (2) to (4) [of Article 194] had not been expressed to be under the Article. Consequently, it can be presumed that the makers of the constitution did not mean to concern those clauses to other provisos of the Constitution.” Hence, Article 194(3) is not concerned with Article 19(1)(a) of the Constitution.

Therefore, the applicant crashed in resisting that the rights of the Bihar Legislative Assembly were subject to his fundamental right to freedom of speech and expression. The applicant challenged that Article 194(3) is in breach of his fundamental right to freedom of speech and expression under Article 19(1)(a). The Court expressed that a statute proceeded by a “State Legislature in the execution of earlier bit of Article 194(3) will not be a statute in implementation of constitutional rights, but will be one created in implementation of its ordinary legislative powers. Therefore, if such a statute curtails or abridges any of the fundamental rights, it will violate the provisos of Article 13 and it will be revoked.” However, the powers, prerogatives, or immunities of the Legislative Assembly bestowed by the later part of Article 194(3) preferred not to be revoked even if it is in conflict with fundamental rights since “Article 194(3) is the element of the Constitution and as extreme as Part III of the Constitution.” Considering the clash between Article 19(1)(a) and Article 194(3) of the Constitution, the bench opined that “the idea of euphonious construction must be embraced and so construed, the provisos of Article 19(1)(a), which are common, must capitulate to Article 194(3) which are special”.

Rationale

Simultaneously, the Assembly of Bihar had not enacted any law, considering its potential and proceedings the authorities of the British House of Commons were relevant to the Assembly. At the same time, Article 194(3) and Article 105(3) be considered upright in the same sovereign position as the provisos of the Constitution (part Ill) and could not be found clashing by Article 13; the object of euphonious construction must be embraced. Article 194 clause (3) of the Constitution is a peculiar clause. The freedom of the printing press in India glided from the freedom of expression and speech of the Indian citizens. No peculiar right is affixed to the press.

Conclusion

After the predominance of the court, the verdict in the case endorsed above, the Assembly was annulled several times. The Privileges’ Committee overhauled and lately endowed a new notice to the petitioner. The applicant proceeded to the Court looking around to resume the same disputes and arguments. The court carried that the concept of res judicata solicited, and the court’s decree could not be reopened. The decision is irrevocable to the petitioner.

References

1. Constitution of India.
2. Romesh Thappar v. The State of Madras, (1950) SCR 594.
3. Brij Bhushan v. The State of Delhi, (1950) SCR 605.
4. Express Newspaper Ltd. v. The Union of India (1959) SCR 12.
5. Ramji Lal v. Income Tax Officer, Mohindergarh (1951) SCRN127.
6. Laxmanappa Hanumantappa v. UOI (1955) 1 SCR 769.

This article is written by Ashmita Dhumas, who has completed BA LLB from Agra College and is doing a diploma in
Corporate Law from Enhelion.

Introduction

Social Security is defined as the protection or security that is provided by a community to its members, ensuring that they have proper access to healthcare and a surety of a steady and regular income, especially during unemployment or post-retirement phases. It is classified as a basic human right by the United Nations. It is a benefaction-based system that supports sureties in case of unemployment, health issues, and pensions.

Since the beginning of civilization, humans have faced numerous economic breakdowns due to pandemics, natural disasters, and even unemployment. These breakdowns are a big threat to the economy even in the 21^st century. Through time we have seen that economic breakdowns have been predicted before they occurred, and hence the community as a whole started to create securities in form of food, finances, and even cattle, to be able to provide themselves with the security of a basic rightful living. With the advancement of times, and a formal specification of human rights, kingdoms and governments started to support the social security of their people, for ensuring a rightful living.

Types of Securities

• Traditional- Securities that are provided through friends and relatives, assets, work, or donation-driven charities are traditional securities or sureties.

• Modern- With the advancement in socio-economic status and development of cities, different organizations came up to provide their members with various economic sureties. Organizations, governments, and so on are modern types of security providers.

Beginning of ‘Social Security‘

With the discovery of the Americas, the English colonialists in the early 1600s brought with them their laws to set up a suitable system of governance. These laws were mostly based on providing support for the poor based on the taxes collected. But with the rise in slavery at the same time as they arrived, the lawmakers discriminated against the poor slaves from the poor whites. The slaves were regarded as undeserving of any support. During this era, the support that was provided was done in the most appalling way to discourage people from using it. People who used these services had their assets confiscated, and lost their voting and free movement privileges.

With the end of the American Civil War and after the confederacy surrendered and joined the Union, the then U.S. Government introduced a pension for the disabled Union veterans of the war, widows, and children of the soldiers who died during the war, on the other hand, the Confederate soldiers created and funded their own pension system. The pension for the Union soldiers depended upon the type of disability and their military rank, the lowest pension was $8 per month for a totally disabled private (lowest rank in the military). With the passage of the Dependent and Disability Pension Act in 1890 by the U.S. Congress, the earlier pension system was changed, and the veteran and other eligible people for pension received a lump sum amount of pension for the time between leaving the military and applying for a pension. Therefore, the Civil War Pensions can be classified as the first official Social Security system introduced.

International Labour Convention on Social Security 1952

In 1952, the International Labour Convention, an agency under the United Nations, stipulated the minimum standards of social security that should be provided. It is the only international instrument that supports basic social security support. These nine basic supports are-

1. Medical Care
2. Sickness Benefits
3. Unemployment Benefits
4. Old Age Benefits
5. Employment Injury Benefits
6. Family Benefits
7. Maternity Benefits
8. Invalidism Benefits
9. Survivor’s Benefits.

Social Security in India

The Indian social security system has been developed using the western example and systems that prevailed in modern industries. With the pressure and urges from social reformers, business leaders, and welfare organizations, social security was introduced in India and became the responsibility of the state to provide for the social security of the citizens of the country, as per Article 43 of the Indian Constitution. Numerous schemes and programs prevail through various laws and regulations in India, yet only a smaller section of the Indian masses receive the security provided by the government.

Policy for Social Security in India

• National Provident Funds
• Universal Social Security Schemes
• Employers Liability Schemes
• Insurance based on Resources and Beneficiaries Pooling Risks

Benefits to Workmen in India

1. Pension – In India, there are provisions for provident funds for employees engaged in corporations and are overseen by the Employees’ Provident Fund Organization, established within the Ministry of Labour and Employment. Schemes under the provident fund organization apply to all businesses with over 20 employees, and contribution to these funds is mandatory to be followed by the firms as well as the employees if they make INR 15,000 a month, while it is voluntary if they make more than that amount. Schemes provided under the Employees’ Provident Fund Organizations-

• The Employees’ Provident Fund Scheme, 1952– This is contributed by the employer and the employee. The employer contributes from 1.63% up to 3.67%, whereas the employee contributed from 10% to 12%.
• The Employees’ Pension Scheme, 1955– This is contributed by the employer and the government. The employer contributes 8.33%, whereas the government contributes 1.16%.
• The Employees’ Deposit Linked Insurance Scheme, 1976– Under this scheme, only the employer contributes 0.5%. Neither the employee nor the government contributes any amount. The pensions that are offered are- 1) Pension for Disability or Superannuation, 2) Pension for Military Widows, 3) Pension for Children and 4) Pension for Orphans.

2. Medical Benefit and Insurance – With the lack of universal healthcare in India, i.e., no free healthcare for the Indian masses and to provide the funds to ensure proper medical care to employees and their families; the government implemented the Employees’ State Insurance Act 1948. It also made available monthly cash benefits in phases of sicknesses, pregnancy, and in cases of deaths or injuries to employees in organizations with at least 10 employees. The monthly coverage was extended to all employees that made less than INR 21,000 a month under the Employees’ State Insurance (Central) Amendment Act, 2016. Maternity benefits were also improved under this Act.

3. Benefit for Disability – Employers have been mandated to compensate employees and their families in case of injuries or death at the workplace under the Employees’ Compensation Act, 1923. Seclude I part I and II of the Employees’ Compensation Act provide for injuries that include partial or permanent disablement, while Section III, Part A, B, and C provide for Occupational diseases. Compensation for disabilities suffered due to employment is estimated as below;

• In the case of permanent disability; 60% of the monthly wage is multiplied by the age of the disabled, or an amount of INR 90,000, whichever is more.
• In case of death; 50% of the monthly wage multiplied by the age of the deceased or an amount of INR 80,000, whichever is more.

4. Benefit for Maternity – For women, maternity leave in India is a paid maternity leave that lasts up to 26 weeks for the first two children and 12 weeks for the third child, as enforced through the Maternity Benefit (Amendment) Act, 2017. This Act also provides for maternity leave for women who have adopted a child less than 3 months as well as for mothers who underwent surrogacy. Every woman is entitled to receive the average daily wage during the timespan of the maternity leave and a medical bonus of INR 3,500, as per the maternity Benefit Act, 1961. A 6-week paid maternity leave is also applicable in cases of miscarriage, and a month of paid leave due to medical complications.

5. Gratuity – A corporation with at least 10 employees must support an added 15 days of wages to those employees who have worked for at least 5 years with the firm. It is a cash benefit provided by the firm to the employee as a lump sum. However, payment of gratuity can be refused if the employee has been terminated due to misconduct. The formula to calculate gratuity is (15 X last drawn salary X years of service) ÷ 30.

Conclusion

Social Security is an important instrument in supporting a sustainable life for all people in need of such support, and to feel accepted at the workplace. Irrespective of whether a person is above the poverty line or not, Social Security should be provided to all citizens and eligible non-citizens. It is not a free money handout from the government, it is the social support that provides for the better living standards of people in the community, so there are no disruptions in the peaceful continuance of society. With the legislation brought abroad and in India, the governments have ensured that their people do not suffer or are not being taken advantage of by corporations. Maternity long and paid leave for women and provident fund are some of the policies that have been updated every few years to keep up with the changing thought environment of the people. With such dynamic upliftment, the interest of the employer and the employee are considered equal with the core focus on the joint satisfaction and interest of both.

References

1. Facts on Social Security, International Labour Organization, https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_067588.pdf.
2. Civil War Pensions, Centre for Civil War studies, Virginia Tech https://www.essentialcivilwarcurriculum.com/civil-war-pensions.html.
3. Civil War Pensions and Disability, Ohio State Law Journal Vol 62:109.
4. Employees’ State Insurance Act, 1948.
5. The Workmen Compensation Act, 1923.
6. Social Security (Minimum Standards) Convention, 1952 (No. 102).

This article is written by Namay Khanna, a 3^rd year BBA LLB (Hons.) student at Symbiosis Law School, Pune.

INTRODUCTION

In India, it has been calculated that 7.3% of teenagers suffer from a mental disease. Numerous variables can contribute to the emergence of a psychiatric condition, which can then interfere with daily functioning and generate distress that impairs it. A person’s upbringing, parenting methods, social interactions, and local environment can all have an impact on their social roles and obligations. On April 7, 2017, the President gave his vote on the Mental Healthcare Bill and with that, the MENTAL HEALTH CARE ACT 2017 came into existence. This Act provides for the persons who are suffering from mental illness with healthcare and services to protect their rights. This Act came to existence in order to harmonize and put into alignment the local Mental Healthcare Act 1987 with the Convention on Rights of Persons with Disabilities and its Protocol which was adopted by the UN on December 13th, 2006, and came into force on May 3rd, 2008¹.

WHAT IS MENTAL HEALTHCARE?

The Act specifies the following as the definition of mental illness: “a significant mental disorder caused by alcohol or drug abuse that seriously affects thinking, mood, perception, orientation, or memory, as well as judgment, behaviour, the ability to recognise reality, or the ability to meet daily demands. However, it does not classify mental retardation, a condition in which a person’s mental growth is slowed down or stopped altogether and is particularly marked by low IQ, as a mental disorder².”

CRITICAL ANALYSIS

The 2017 Mental Healthcare Act intends to offer mental healthcare services to people who are suffering from mental illness. By preventing harassment or discrimination, it guarantees that these people have the right to live their lives with dignity. This bill has a lot of helpful qualities, but it also has certain drawbacks and is not perfect for the Indian situation. The right to live in dignity, free from sex, religious, cultural, or caste discrimination, is stated in this law. Every person has a right to privacy regarding their disease and medical care. According to new regulations, ECT cannot be administered without anesthesia, and ECT is not available for minors. Such patients shall not be sterilized, and neither shall they be isolated or kept in solitary confinement.

This law makes mental health services more widely accessible. This right is designed to guarantee that services are easily available, reasonably priced, and of high quality. Additionally, it requires that mental health services be built and made accessible in each and every region of the nation. However, the state governments will bear a significant financial burden unless the federal government contributes a higher share of the budget to incur the expense due to the already subpar medical infrastructure at the district and subdistrict levels.

• Rights of those who suffer from mental illness

Everybody will be able to use services for mental healthcare. Such services must be of a high standard, practical, reasonable, and available. Additionally, this law aims to safeguard these people from cruel treatment, give them access to free legal services, guarantee their privacy when it comes to their medical data, and give them the opportunity to complain if any provisions aren’t up to par.

Advance Directive: Under this law, a person with a mental illness has the legal authority to designate a representative and to make decisions about how they wish to be treated for their sickness. This instruction needs to be approved by a doctor.

• Role of the Central Authority for Mental Health

All mental healthcare facilities under the control of the central government will be listed and registered, and it will fund and oversee the provision of high-quality services for various types of such facilities. It will also include a list of all the medical specialists who should be contacted in an emergency.

• Decriminalization of Suicide Attempt

There is a lack of knowledge regarding the laws relating to suicide, and the majority of them are opposed to making suicide a crime. When having suicidal thoughts, some are unwilling to seek out professional assistance. There is ambivalence and ignorance about suicide in society. The stigma attached to seeking psychiatric help may be the cause of ambivalence. It is legitimate to demand that public health policymakers take these findings into account when developing programs to raise knowledge of Sec. 115 of the MHCA. Through media and hospital-based initiatives, ignorance can be dispelled³.

Awareness is still quite low even after 155 years of Sec. 309 IPC deployment. If steps are not taken to raise awareness, Section 115 of the MHCA will likewise be invalidated. Follow-up studies are also required to determine the results in terms of changes in the suicide rate, requests for assistance, referrals to psychiatry, and epidemiological statistics. The impact of this Act’s implementation, in the long run, can only be determined with time.

Section 309 IPC: “Anyone who makes an attempt at suicide or takes any action that contributes to the commission of this type offence is subject to simple custody for a time that may not exceed one year [or a fine, or both] as a penalty⁴.

According to Section 115,

(1) anyone who attempts suicide is deemed to be suffering from severe stress unless proven otherwise and is not subject to a trial or punishment under Section 309 of the Indian Penal Code.

(2) The appropriate government has a responsibility to offer care, therapy, and rehabilitation to a person who tried suicide due to extreme stress in order to lower the likelihood of another attempt.

• Certain other agencies are responsible

If a police officer in charge of a police station has reason to believe that a mentally ill person is being mistreated or neglected, he must report to the Magistrate. The bill also requires a police officer in charge of a police station to protect any wandering person; such a person will be examined by a medical officer and, based on the results of that examination, will be admitted to a mental health establishment, taken to her residence, or to an establishment for homeless people.

• Financial repercussions

Violations of this Act’s provisions will result in imprisonment for up to 6 months or a fine of Rs. 10,000, or both. Repeat offenders may face penalties of Rs. 50,000-5 lakhs or 2 years in jail.

OBJECTIONS TO THE ACT

According to Section 5 of the Act, minors are not entitled to an advance directive. Both the central and state governments are required to guarantee all services. The anticipated costs do not cover all of the bill’s requirements. According to the Act, both the Center and the State have obligations but a fund-sharing arrangement is not provided. Despite the fact that the financial situations in each State vary, the federal government must guarantee sufficient finances to fulfill its legal commitments. The Act states that a person may continue to reside in a mental health facility as an independent patient if they no longer want an order of supported admission, but it is unclear for what reason.

CHALLENGES TO BE ADDRESSED

India has the highest rate of suicide in the world. The high rate of crime and drug addiction in India is also linked to poor mental health. The pandemic has revealed previously unseen mental health issues, exposing flaws in existing mental health infrastructure and laws/policies. This pandemic has served as a wake-up call that India’s mental healthcare system requires strengthening and additional support from the Central or State governments. In India, there is an utter absence of inclusive mental healthcare and a failure to implement the DMHP. The effects of the COVID-19 pandemic on people’s mental health are visible, and this is only the beginning. Unless we make serious commitments to accumulate capital in mental health right now, the situation will deteriorate.

CONCLUSION

The current healthcare system is ineffective, and we lack the necessary infrastructure and professionals, which harms living conditions and the treatment of mental illness. One of the key features of the act is the decriminalization of suicide attempts, along with the Advance Directive concept and a ban on all treatments that gave these mentally ill people nightmares. The act also attempts to fix the institution system by enlisting institutions and ensuring that they adhere to the standards set by the authorities in the act.

The new Mental Healthcare Act 2017 is intended to change India’s fundamental approach to mental health issues, including a sensible patient-centric approach to healthcare rather than a criminal-centric one. The guidelines should be revisited in three areas: primary prevention, reintegration, and rehabilitation because their implementation would be insufficient without these improvements, and the problem of formerly ill people would persist. To be optimistic about the measure, one must wait and see how it is implemented.

CITATIONS

1. Mental Healthcare Act, 2017.
2. Decriminalization of suicide as per Sec 115 of MHCA, 2017, (2018) Indian J. Psychiatry, 10.4103/psychiatry.IndianJPsychiatry_335_17.
3. Indian Penal Code 1860, s 309.

This article is written by Sneha Sakshi, a second-year BBA LLB student of Symbiosis Law School, Pune.

INTRODUCTION

Human rights are considered to be sacrosanct. It is the set of rights with which a person is born. These rights ensure that a person has a good standard of living. Human rights give people good life full of happiness and prosperity. Each human right plays a very crucial role in shaping a person’s life. Human rights are mostly referred to as fundamental or inherent, birthrights. These rights are not created by any state or any legislation and neither are they subjected to any kind of amendment. The Universal Declaration of Human Rights defines human rights as the right derived from the inherent dignity of a human person. Human rights are inclusive of civil and political rights. These rights usually limit the government authority that may affect the individual’s independence. There are also rights called ‘social rights’ where the government has various ways to improve the life quality of the citizen.

CHARACTERISTICS OF HUMAN RIGHTS

Some notable characteristics that define human rights are-

1. Human rights are inalienable– Human right is a right given to a person even when the person is in the womb. These rights are given to a person irrespective of his religion, creed, sex, or nationality. His mere existence gives him this right.
2. Human rights are necessary and essential– In absence of human rights, a person cannot achieve their fullest potential. Physical welfare, moral welfare, and social welfare are adversely affected without human rights.
3. Human rights are in connection with human dignity– Human rights are about treating people with dignity; giving them respect as normal individuals irrespective of gender or race. Example: African Slaves were treated badly by the Americans, they were given many sorts of punishment like whipping, mutilation, raping, burning, etc.
4. Human rights are irrevocable– Human rights cannot be taken away from any person as they originate from the social nature of the person, merely because he is a human he is enshrined with these rights.
5. Human rights are dynamic– Human rights are not static, they cannot be defined in a restricted sense, and people change with respect to changes in time. Formulation of different treaties and conventions with change in time is a depiction of the dynamic nature of human rights.
6. Human rights are never absolute– Human is a social animal, he can enjoy all of their rights without any restrictions but for a common good, the state may impose some restrictions and they can be only imposed by the state.

ORIGIN OF HUMAN RIGHTS AND ITS EVOLUTION

Human rights originated in 539 BCE, when Cyrus the Great captured Babylon, Cyrus freed all the slaves and said that all men are free, they can choose any religion and must have racial equality. Then in the year 1215 Magna Charta introduced the concept of Rule of Law wherein it defined basic idea of rights and liberties for all persons. Rule of Law concept mentions the sense of accountability, stability, equality and access to justice for all. Magna Charta was signed in 1689.

The Declaration of Rights of Man and of Citizen in 1789 which was adopted by the French National Assembly is a historical event based on the political concerns of civil and political rights. This declaration contained principles that inspired French Revolution. This declaration has specified some aspects of rights of liberty, private property, right to participate in elections, freedom of religion but these rights were not fully established due to the fall of French National Assembly in 1791. During this time the famous principles of some political thinkers like Rousseau, that good government must have freedom of all its citizens and Montesquieu, who argued the elimination of idea of Divine Rights of the King to Rule and if people are not satisfied with the rule of the king then they can rebel; gained popularity. These ideas have enlightened some kind of knowledge about human rights to common people. This resulted in French Revolution of 1789. During the 17^th -18^th century, it was considered an enlightenment stage where the people themselves were taught about their rights of life, liberty and pursuit of happiness.

The Second Generation of Human Rights in 19^th century emerged when people realized that the rights which were stated in the 17^th century were only established for some class of people. The poor and weaker sections hardly had leverage to exercise these rights. They realized that civil and political rights can be established by the people of the elite class. So the primary focus during these times was economic, social and cultural rights. The views originated from socialist thinkers like Marx and Lenin emerged about a stage of communist revolution for the welfare of the people and that state must ensure the welfare to the people so that people can reach up to their maximum potential. There must be democratic centralism and there must be an establishment of one party socialist state. The intervention of state is more here. This included the right to work, right to a standard of living, right to health and right to education. They are termed as the welfare rights as they pertain to the development of the people.

The Third Generation of human rights emerged with dynamic nature of human activities that affected the globe. The world suffered from two world wars. Geneva Convention and Hague Convention promoted basic level of dignity of individuals. The concerns over the protection of certain minority nations and peaceful co-existence were raised by the League of Nations at the end of First World War. Due to some political reasons and rise of dictatorship, it led to the fall of League of Nations. Then Second World War happened and thousands of lives were lost during that time; treatment of Jews in the concentrated camps, atomic bombing in Japan horrified the world and human rights were propagated as the global consciousness and eventually this led to rise of United Nations Organisation in 1945. There are other specialized agencies like International Labour Organisation for protecting workers rights increasing their safety and economic growth. People also did not like the concept of nation state so they thought for the benefit of whole mankind. They thought that all humans must get benefit in the process of human rights, the emergence of solidarity rights came into existence where rights were not spoken for a people in a specific country but in the whole world.

During the Fourth Generation of human rights, there were many technological developments and there were few growing concerns that whether the technology would encroach on human rights. Universal Declaration of Human Rights (UDHR) was established in 1948. Although UDHR is not legally binding it has different ways which keep a check and balance the exercise of state power and how a state should treat its citizens. There were other international covenants on Economic Social and Cultural Rights and Civil and Political Rights constituting the International Bill of Rights. It is mandatory now that all members of the UN must incorporate the provision of human rights in their constitution. UN has also adopted various treaties including conventions to prohibit various kind of crime that is against humanity like Convention on Elimination of All Form of Discrimination against Women and Convention on Rights of the Child.

Constitution of India contains basic human rights of all citizens, irrespective of their gender, caste, religion etc. India had signed the Universal Declaration of Human Rights on January 1942. If a part in the constitution is against the fundamental right then it is declared as void. These sections are vital elements of the constitution which includes Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion and Right to Constitutional Remedies among others.

In Kesavananda Bharati v State Of Kerala¹ case it was stated that Universal Declaration of Human Rights may not be legally binding instrument but it shows how India understood the nature of human rights at the time the constitution was adopted. In Consumer Education & Research v Union Of India & Others² case it was stated that the directive principles are the forerunners of UN Convention on right to development. The right to development is inalienably a human and fundamental right and everyone is entitled to it, along with being entitled to enjoy economic, social cultural and political development. In Air India Statutory Corporation v United Labour Union & Ors³ case it was held that right to health and medical care is a fundamental right of a worker under Article 21, read with Articles 39(e), 41, 43, 48A to make the life purposeful. In Mrs. Valsamma Paul v Cochin University And Others⁴ case it was stated that human rights are derived from the dignity and human rights and fundamental freedoms are interdependent.

CONCLUSION

Human rights are the basic rights given to every individual to achieve their maximum potential. Human rights have a very long way of history and development. India has also enshrined human rights in Part III and IV of the Constitution which are the fundamental rights and directive principles. Violation of fundamental rights will eventually cause a legislation to be declared void. All rights are covered under these two parts. Further, as part of the fourth generation of human rights, one needs to be careful about the fast developing technologies. In future there may be fusion of nuclear, biological, chemical and technological aspects which need to be looked at carefully and we must protect the human dignity at any cost. There might be future risks regarding human rights preservation and necessary steps must be taken to protect it. Though the human rights have several articles and conventions among nations, there is only limited progress of human rights as many people suffer from extreme poverty or they suffer from the policies of their own states. So, the human rights in future must be further progressive, giving everyone in this world a dignified life.

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CITATIONS

1. SC Writ Petition (civil) 135 of 1970.

2. 1995 AIR 922, 1995 SCC (3) 42.

3. SC Civil Appeal Nos. 15536-37, 15532-15534 of 1996 (Arising out of SLP (C) Nos. 7418-19/92 and 12353-55/95).

4. 1996(1) SC 571.

This article is written by Sree Lekshmi B J, a third year law student.

Introduction

Due to the COVID-19 outbreak, the whole world including India had gone into lockdown. Even the courts were shut down for a while in March when directed by the Supreme Court of India. The centre and the state governments had put down restrictions that made it difficult for the courts to function. As in the Anita Kushwaha v. Pushap Sadan¹ case, it was declared by the Supreme Court, “It is the constitutional right of rural (and other) citizens to ‘Access to Justice’ under Article 14 and Article 21 of the Constitution of India”. The courts have found a way to prevent human interference and still work exceptionally. Several courts were largely shut down, and only urgent hearings were being held. A few states permitted open courts to operate with partial hearings, but this was terminated due to an increase in cases, and virtual courts were fully implemented instead.

The pandemic paved way for the judiciary to work in virtual mode to prevent the contagiousness of the virus. However, India had its first virtual court in Faridabad. The Supreme Court Vidhik Anuvaad Software was unveiled by the President of India on November 26, 2019, and it has the ability to translate legal documents from English into nine regional languages and vice versa.

The Supreme Court of India’s official multilingual mobile application will also be made available to give lawyers and litigants precise real-time access to case status, review screens, judgments, daily orders, etc. Although the judiciary has seen several technical advancements, such as the ability to record testimony through video conferencing², the ongoing Covid-19 pandemic has had a severe impact on virtual courts.

Positive impacts of the virtual courts

In the wake of the pandemic, the virtual courts have come to the rescue to deliver justice and continue the proceedings of the cases. They have become a mode of advancement of the judicial system through technology. The virtual courts have helped to maintain social distancing and decreased the risk of exposure to the virus.

The judges, counsels, and parties of a proceeding are joined in a video conferencing website within the given time. This process reduces the chances of corruption and brings more transparency. The cost-effectiveness allows people to approach the courts, since, the parties wouldn’t have to travel every time. These courts are also known as E-courts and e- justice is considered to be a stepping stone to e-governance. e-courts make it easier to achieve a number of goals that will aid the judicial administration in the allocation of cases, reduce litigation delay and cost, contribute databases, guarantee e-filing and e-notices, and make witnesses available through video conferencing, create digitally signed court orders, and digitize ADR. Thanks to technology, the open courts in many nations are able to function and serve as a medium to safeguard citizens’ rights throughout the pandemic.

Virtual hearings are used to safeguard the safety of the witnesses too. Court workflow management has been successfully automated with the use of virtual courts. As a result, it would contribute to improving the administration of courts and cases. This also gives the litigants ability to attend the proceedings from their office or home.

The court’s ability to operate around the clock is one of the main benefits we’ll have in the future too. There is a massive backlog of court cases, and a prolonged wait for justice causes residents to lose faith in the legal system. The method will gain momentum as a result, and cases can be decided in a timely way.

Virtual Courts versus Open Court

With the ongoing trend of the virtual courts, a very important question has been raised i.e., whether the virtual courts would replace the open courts. Many bar associations across the nation, from the Supreme Court Advocates-on-Record Association to the Gujarat High Court Advocates Association, have acknowledged the challenges experienced by attorneys during hearings through virtual courts.

It was also stated by Justice D.Y. Chandrachud that virtual courts can’t completely replace open courts. The first reason is that many advocates don’t have access to the internet in many areas and India is still in the process of technological development. High-speed internet isn’t available in all the areas all across the nation.

Secondly, many advocates don’t have the basic proficiency in technological skills which can be said as a major drawback since it would be difficult for them to shift to the virtual proceedings.

Thirdly, the current state of our legal system prevents the adoption of the idea of virtual courts because even an open court system cannot handle the massive backlog of unresolved cases. Fourthly, despite the fact that virtual courts and the open court system are not mutually exclusive, people’s privacy has not been respected. The legal system is geared toward litigants. It is particularly challenging for litigants, who typically hail from rural areas, to comprehend that their case is resolved without their attorney being in court. Although some attorneys may feel at ease in virtual courts, the clients still are not prepared. Justice consumers have been completely disregarded throughout the process.

Fifth, the people of India, whose cases have been languishing for long years, lack confidence in the current system.

Sixth, affluent law firms, corporations, government agencies, and legal tycoons may be able to take advantage of virtual courts more so than regular attorneys. Therefore, even if the Supreme Court intends to permanently establish virtual courts in India, it should have started by providing technical training to the lower judiciary, specifically the district courts and taluka courts at the bottom. The people’s trust must be earned at the grassroots level. If they are content, moving on to the next level would be simple.

It is very appreciable that the Apex court is understanding and putting in efforts to improve the grass root level problems if the virtual court system comes into play. However, litigation plays a crucial role in the judicial system. Judiciary being the strongest pillar of democracy, has the obligation to safeguard the litigation process in India. Due to these few issues, it can be very difficult for virtual courts to completely replace open courts. The clients of the advocates invest their trust in them and the advocates might find it a little bit difficult to connect to their clients and find proper information in online mode. Along with this, the virtual court system has its own challenges.

Challenges

Infrastructure: India does not have the complete infrastructure to completely depend on the online mode. The most problematic thing is the bandwidth. Also, the video conferencing apps have third-party interference which may lead to the breach of data i.e., data privacy lacks here.

Information Technology Infrastructure: The new evidence legislation concerning electronic evidence is still in flux and has not yet been finalized, as evidenced by the assignment of the question of the application of Section 65B of the Certification for the Admissibility of Electronic Evidence to a wider bench³. In circumstances of electronic filing and data storage, it raises the worry of tampering with paperwork and paper records.

Practical issues: If it is properly accessed by the citizen, virtual courts are an endeavor by the judiciary to convince the public that we value their time. Statistics lead us to conclude that our Indian lawyers lack the necessary experience in this field, and their law degrees don’t necessarily prepare them for it. There is no mention of access for those without internet connectivity. Even the fact that up to 50% of Indians lack Internet connection seems to be overlooked. Despite having the second-highest percentage of Internet users in the nation, that is.

Some may contend that even someone without access to the internet should go to someone who does and use it, which is unquestionably preferable for a rural resident than going to a distant court. However, the internet gap continues to be a significant barrier for the majority of individuals to access or understand virtual court hearings.

The Supreme Court ruled in Naresh Shridhar Mirajkar v. the State of Maharashtra⁴, that all claims presented before the courts, whether civil, criminal or other, must be heard in open court because “Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice”.

In Swapnil Tripathi v. Supreme Court of India⁵, the Bombay court held that only the cases with urgency would be dealt with due to the wake of the pandemic in the month of April 2020 and dissented on granting the bail which was filed under section 439, Cr.P.C6. There were 2 issues that were understood via this case. First, it was claimed that only urgent bail cases are being decided by the courts as a result of the epidemic location. Second, giving the applicant bail would put both his life and the lives of others in jeopardy because he might not be able to return home because of the lockdown. In order to avoid these scenarios, he was not granted bail. Though it is something to consider, there should be no doubt that the fundamental rights of a person seeking legal assistance have always been maintained in the legal system. If even one person’s well-being is hampered by the court’s conclusion, the judgment is open to public review.

Conclusion

The wake of the pandemic has paved a new path to the development of the judiciary through technology. The virtual court system is accessible and cost-effective. It also helps to curb social evil i.e., corruption in the judicial system. The travel burdens would be reduced for the people who have to approach the court. However, there are more than equal chances that these courts may not be permanently reliable as India is a developing nation, it still lacks technological advancement and there are people who are poor in understanding the working of the technology. There is a high possibility that the parties might not be having high bandwidth in their localities. Also, it is important to ensure that the virtual court systems shall be user-friendly and it can be said that, with the given situation in India, it would be impossible to rely completely on the virtual court systems as there are many challenges present with that respect.

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Citations

1. (2016) 8 SCC 509.
2. State of Maharashtra v. Prafulla B. Desai (Dr.), (2003) 4 SCC 601.
3. The Indian Evidence Act 1872, s. 65(B).
4. (1966) 3 SCR 744.
5. (2018) 10 SCC 628].
6. The Code of Criminal Procedure 1973, s. 439.

This article is written by K. Mihira Chakravarthy, 1st year BA LLB student from Damodaram Sanjivayya National Law University (DSNLU).

CASE NUMBER

Crl.A. No 14/2013

CITATION

W.P. (C) 3918/ 2020

BENCH

Justice Pratibha M. Singh

DECIDED ON

12. 04. 2021

RELEVANT ACT/SECTION

Narcotics Drugs and Psychotropic Substances Act, 1985 and Article 21 of the Constitution.

BRIEF FACTS

The petition was filed by the petitioner for the removal of the judgment titled, ‘Custom v Jorawar Singh Mundy’ from the platforms such as Google, Indian Kanoon, and Vlex.in. The case of the petitioner is that the petitioner is of Indian origin but an American citizen. He claims that he is indulged in portfolios of real estate etc. When he came to India, a case under Narcotics Drugs and Psychotropic Substances Act, 1985¹ was made against him. After that, he was acquitted by the trial court under this case. the decision of the trial court resulted in an appeal before the high court. The high court decided to uphold the acquittal of the petitioner.

According to the petitioner’s claims, he or she returned to the country and attended the University of San Diego School of Law to further pursue his or her legal education. After that, he understood that he was at a severe disadvantage because any prospective employer looking to check his record before hiring him might easily find the court’s verdict by conducting a google search. Despite having a strong academic background, the petitioner claims that he has been unable to find employment that meets his expectations. He attributes this inability to the fact that this judgment is publicly available online.

The petitioner also issued the legal notice to the platforms such as Google India Private Ltd, Google LLC, Indian Kanoon, and vLex.in. The website of vLex.in contended that they have removed the said judgment but it is still available on other platforms. To recognize the petitioner’s Right to Privacy under Article 21 of the Constitution², the prayer in this writ petition is to direct the removal of the abovementioned ruling from all respondent platforms.

ISSUE

Whether a court order can be removed from the online platforms?

DECISION

The court held that the charges brought against the petitioner were dismissed from the case. Despite having been ultimately found not guilty in the case by the aforementioned judgment, this Court believes that the petitioner is still entitled to some interim protection while the legal issues are still pending adjudication by this Court because of the irreparable harm that may be done to his social life, career prospects, and legal standing.

The court directed the respondent no. 2 and 3 to remove the judgment titled, ‘Custom v. Jorawar Singh Mundy’ from their search results. Whereas, Indiankanoon was directed to block the said judgment from being retrieved by using search engines such as Google, Yahoo, till the date of the next hearing.

CONCLUSION

A person’s life will be as bad as hell if information about their criminal history or any occurrence that would have caused the public to have a bad opinion of them is made public. He or she will be imprisoned in their former lives. India has experienced rapid development in recent years. This development occurred on top of the nation’s digital technologies roots. The internet and smartphones have integrated seamlessly into our daily lives. Additionally, courts are now acknowledging that Article 21 covers access to the internet. Some of us would prefer to move on from our pasts and forget about them. The issue emerges when a person’s past mistakes chain him and causes him to make the same mistakes over and over again.

The Right to be forgotten aims to provide assistance in this issue. The scope of the Right to be forgotten should be expanded and must include removing everything that is “irrelevant, erroneous, or inadequate.” It should not be limited to “sensitive personal data.” In this instance, the petitioner’s attorney has highlighted the fact that, in the absence of supporting legislation, the public is likely to disagree with the petitioner’s request and support the right to privacy and freedom of expression. According to Akshat Bajpai, a lawyer for one of the petitioners, big multinational corporations operate differently in Europe than they do in India when it comes to following the law. It is essential to secure someone’s privacy given how quickly technology is developing. The right to be forgotten ensures that an individual’s privacy will be protected and supports their right to free speech. The establishment of such a right in India will assist the populace in managing their “digital footprint” and address the problem of data security and misuse that has recently emerged.

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REFERENCES

1. The Narcotics Drugs and Psychotropic Substance Act, 1985.
2. The constitution of India, 1950, Art. 21

This article is written by Prerna Pahwa, a student at Vivekananda Institute of Professional Studies, New Delhi.

OVERVIEW

All facets of road transport vehicles are governed under the Motor Vehicles Act¹, an Act of the Indian Parliament. The Act details the legislative requirements for driver and conductor license, vehicle registration, permit-based motor vehicle control, special provisions for state transportation undertakings, traffic law, insurance, liability, offenses, penalties, etc. The Central Motor Vehicles Rules2 was created in 1989 by the Indian government to implement the legislative provisions of the Act. The Motor Vehicle (Fifth Amendment) Act of 2022 implemented the most recent of the Act’s five amendments, which have been made since it went into effect in 1988.

Sections 50 to 57, including Section 93 of the Motor Vehicle (Amendment) Act, 2019 were notified by the Central Government. Insurance of motor vehicles against third-party risks, that were covered under Chapter IX of the Motor Vehicle Act, 1988 has been replaced by Section 51 to 57 of the Motor vehicle (Amendment) Act, 2019. Similar amendments have also been made regarding the filing of claims before the motor accident claims tribunal under sections 163, 166, 168, and 169 of the Motor Vehicles Act 1988. The second schedule of the Motor Vehicle Act, 1988 under Section 163A, which provided for the structural formula for non-fault basis compensation has also been omitted, by Section 93 of the Motor Vehicle (Amendment) Act, 2019.

AMENDMENTS MADE TO THE ACT

• Omissions under Chapter X of the Motor Vehicle Act, 1988- Provisions of interim compensation, that came under no-fault liability, i.e., Sections 140 to 144, are omitted and no other interim compensation has been made available in the motor accident claims.
• Replacement of Chapter XI- Insurance provisions for Motor Vehicles relating to third party risks, i.e., Sections 145 to 164, were replaced with new provisions as under Section 145 to 164D.

NEW PROVISIONS MADE UNDER THE REPLACEMENT OF CHAPTER XI

• Section 149 (1) Designated Officer to be appointed by the Insurance firm within 10 days of an accident- A designated officer shall be appointed within 10 days upon receiving accident information by the insurance firm. The accident information shall be received through an Accident Information Report or by the claimant himself. All claims relating to any such accidents would be settled by the designated officer.
• Section 149 (2) Insurance firm’s settlement offer- As per rules prescribed under the Central Motor Vehicles Rules, the Designated Officer is responsible for making a settlement offer on behalf of the insurance firm within 30 days.
• Section 149 (3) (a) Award of Consent by Claims Tribunal- The Claims Tribunal will pass an award based on the recorded settlement, enforcing the insurance firm to make complete payment of the claim within 30 days of the recording of settlement, if the claimant accepts the offer made by the Designated Officer.
• Section 149 (3) (b) Rejection of Settlement Offer by Claimant- The Claims Tribunal, shall amend the date of hearing, upon a rejection of the settlement offer by the claimant, and shall adjudicate the claims upon merits.
• Section 150 – Satisfaction of Award or Judgement against persons insured under third party risks is the responsibility of the Insuring firm- Irrespective of the fact whether the insurer could avoid, cancel, or may have avoided and canceled the policy in the past, the insurance firm would still be responsible for the payment of the compensation. The insurance premium paid by cheques that were dishonored has become a strong defense for insurance firms, and they may claim that policy’s premium was not received by the firm. Under Section 185, driving under influence has also been added as a defense to be used by Insurance firms.
• Section 156 – Insurance firm cannot refuse a claim after the death of the insured in an accident- Under this new provision, if an insured person dies in an accident, the insurance firm cannot withhold or refuse to give a Motor Accident Claim.
• Section 158 (1) All documents relating to vehicle’s use shall be duly presented by the driver- All documents like the driver’s license, fitness certificate, insurance certificate, vehicle registration, and so on should be presented to the Police Officer by the driver of the vehicle.
• Section 158 (2) All documents relating to the accident to be produced are the owner’s responsibility- All documents as mentioned above, if not presented by the vehicle’s driver, it is hence the owner’s responsibility to present documents to a police officer.
• Section 159 – Accident Information Report to be filed at the Claims Tribunal within three months by the Police Officers- As per the new provisions, the responsibility to file the Accident Information Report within three months of the accident lies with the police officers.
• Section 160 – Furnishing particulars of accidental vehicles to the claimants is the responsibility of the Police Officers and Registering Authority- Upon the payment of all fees prescribed, it is the duty of the Police Officers and Registering Authority to provide information about the accident to the claimant.
• Section 161 – Increase in Hit and Run Compensation- According to the new provisions, the compensation for hit and run claims has been increased from INR 25,000/- to INR 2,00,000/- in cases of death of the claimant, and from INR 25,000/-to INR 50,000/- in cases of injury.
• Section 162 – Golden Hour Scheme– Section 2 (12A) defines Golden Hour as the period of one hour after suffering a life-threatening injury during an accident, during which death is prevented by providing immediate medical care. This provision ensures that the Insurance firms provide cashless treatment of victims of road accidents during the Golden Hour period.
• Section 164 – No-Fault Liability related compensations– Structured formula for no-fault liability compensation, which was provided under Section 163A in the second schedule of the Motor Vehicle Act, 1988, is omitted under Section 93 of the Motor Vehicle Act, 2019. The claimant of such compensations under section 164, cannot claim compensation under Section 166 of the Motor Vehicle Act. The monetary compensation for such claims stands at INR 5,00,000/- in case of claimant’s demise and INR 2,50,000/- in case of life-threatening injury, without proving the driver’s negligence.
• Section 164 (A) Scheme-making powers to grant interim relief- The Central Government shall possess the power to make schemes to grant interim relief to claimants, under Section 164 (A).
• Section 164 (B) Funds for Motor Vehicle Accidents- The central government has the power to form a separate fund for Motor Vehicle Accidents to facilitate mandatory insurance to cover all the roads in the country. The fund may be put in use to provide medical treatment for injured persons in a road accident and in the case of a hit and run the fund is used to reimburse the next of kin of the dead or to the person who suffered life-threatening injuries. The central government can pay compensations to persons out of this fund under Section 164 (B). Rules can be put in place to whom compensation can be paid under section 164 (C)(2)(W). The central government has the authority to decide the maximum amount of liability to be paid to a person under Section 164 (3)(D).
• Section 164C – Rule Making Power of Central Government- The central government can put regulations in place to undertake the provisions of Chapter XI through Section 164C, including the form of Accident Information Report, submitting claims to the tribunal in which manner and time, regulations of making compensatory payments under Section 164(1). Through Section 164A (2), it can recover funds for the scheme and may credit the income source into the Fund for Motor Vehicle Accidents under Section 164B (1).
• Section 166(3) Compensation making limitations- Through this provision, a six-month period of limitation has been introduced since the accident occurred, to apply for the filing of compensation. No period of limitation existed before this provision was introduced.
• Section 166(5) After the demise of the injured, the legal representatives are permitted to continue the claim– The legal representatives of the diseased who was previously injured, are allowed to continue the claim after the demise of the injured, only if the death is related to or has some connection with the injury.
• Section 173(2) If the award of claims is less than INR 1,00,000/ no appeals are permitted- Under this provision, if in a dispute the award of claims is less than INR 1,00,000/-, then there shall be no appeals permitted against the Claim Tribunal’s award as under Section 173(2).

CENTRAL MOTOR VEHICLES (FIFTH AMENDMENT) RULES, 2022

The Central Motor vehicles (Fifth Amendment) Rules, 2022 provide for procedures to investigate and adjudicate Motor Vehicle Claims. These rules came into force on 1^st April, 2022 and regulated the timeframe to complete all investigations and adjudication within six months to one year. All the claimants shall receive their claims within one year of the accident due to this provision. Following are the rules that were formed by the Delhi High Court in the case of Rajesh Tyagi v. Jaibir Singh³ for the speedy settlement of motor vehicle accident claims-

• Form – I i.e., the First Accident Report shall be filed at the Motor Accident Claim Tribunal by the Police Officers within 48 hours of the accident.
• The victims should be made aware of their rights by the police officers within 10 days of the accident under Form II.
• Within 30 days of the accident, the driver of the offending vehicle should submit driver’s Form III to the police officers.
• Within 30 days of the accident, the driver owner of the offending vehicle should submit owner’s Form IV to the police officers.
• Upon the verification of the owner and driver’s forms, the police officers must submit an Interim Accident Report to the Motor Vehicle Accident Claims Tribunal within 50 days of the accident.
• Within 60 days of the accident, the victim must submit the victim’s form VI and VI(A) to the police.
• Within 90 days from the accident, the police must submit the Detailed Accident Report Form VII to the Motor Vehicle Accident Claims Tribunal.
• Within 30 days of the receipt of the Detailed Accident Report, the insurance firm shall verify the victim’s form VI and is then required to submit its findings and offer of settlement before the Motor Vehicle Accident Claims Tribunal.
• The Claims Tribunal will pass a Consent Award within 6 months of the accident, if the insurance firm accepts the liability and submits a fair claim offer.
• If the amount offered by the insurance firm is not fair and is not accepted by the claimant, the Claims Tribunal shall allow arguments from both sides with respect to the compensation quantum and pass an award within 9 months of the accident.
• The Claims Tribunal shall conduct an inquiry that would be completed after 12 months of the accident if the Insurance firm disputed the liability.

CONCLUSION

Hence, with the new provisions in place we get to know that the central government has taken up the responsibility to ensure that the vehicles on the Indian roads are insured, and the centre may allocate funds to individuals for the reimbursement of damages suffered by victims of hit and run cases, using the Motor Vehicle Accident Fund. We can also see that steps have been taken to increase the compensatory amounts in case of injury and deaths, the reason behind which may be to facilitate the legal representatives and the next of kin in much better ways. We can also infer that in case of long-lasting disputes, the central government can provide interim relief to victims. Therefore, we can conclude by inferring that the new amendments that have been brought into place have been done so to better facilitate the motor vehicle damage claims, the results of which have started to be seen already.

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CITATIONS

1. The Motor Vehicles Act 1988, available at https://legislative.gov.in/sites/default/files/A1988-59.pdf
2. Central Motor Vehicle Rules 1989, available at https://morth.nic.in/central-motor-vehicles-rules-1989-1
3. Rajesh Tyagi v. Jasbir Singh, IV (2010) ACC 859.

This article is written by Namay Khanna, is a 3^rd year BBA LLB (Hons.) student at Symbiosis Law School, Pune.

INTRODUCTION

What makes India a great nation and also a hub which attracts different medical start-ups and outside people with different diseases to get medical treatment here? If cheap treatment and much more skilled, experts are your answer then it is completely justified. Pursuing the profession of doctor has always been a dream of top priority in Indians. In India, doctors are regarded as God for their faithful and trustful duty toward saving one’s life and curing them so that one can enjoy life in the way he/she used to enjoy earlier. The profession of a doctor is considered to be the noblest profession in the world. If we see precisely this profession, it is more about helping people and their community rather than what you can get in return as a profit from them.

But no man is perfect in itself regardless of how many skills, and knowledge one has. Mistakes can still be committed by humans and doctors are no exception. Mistakes can be minor as well as major and they can lead to even death also. A mistake in the medical field is termed Medical Negligence. The concept of medical negligence came into existence as a remedy that can help victims get justice for the negligence of others. Medical Negligence in layman’s terms means the improper or unskilled treatment of a patient by a medical practitioner and this can include negligence in taking care of a nurse to executing surgery without due reasonableness. It refers to the breach of utmost duty which a doctor owes towards his patient to have a reasonable amount of care, skills, and knowledge which can lead to temporary as well as a permanent disability which can vary from mental to physical also. 

In India, the test for medical negligence in India is the Bolam test which was developed in Bolam v. Friern Hospital Management Committee¹. Judges in this case complied with the Rule of Law heard the arguments of both the parties and applied ‘Reasonableness and Prudence guiding factor’ to deal with this case. The standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skills in that profession. 

ABOUT THE BOLAM CASE

Before this landmark case, the world hardly had a few cases related to medical negligence and medical malpractice. ‘Bolam’ was a psychiatrist patient not of surgery or orthopedic or gynecologist. He used to go to the hospital for treatment of recurrent depression. During the whole treatment, he was a voluntary patient and he was advised electroconvulsive therapy by the concerned doctors, the treatment was also known as a shock treatment to which he fully gave consent to go ahead. During that time there were specifically two kinds of electroconvulsive therapy- one which includes giving of anesthesia or muscle relaxant which was comprehensively termed modified electroconvulsive therapy and another was unmodified electroconvulsive therapy which lacks the giving of anesthesia or muscle relaxant to the patient.

During the treatment of Bolam, doctors went ahead with giving unmodified electroconvulsive therapy by which they didn’t offer him any kind of muscle relaxant or anesthesia. Doctors gave him ECT with adequate and reasonable cautiousness for several sessions and in the initial sessions doctors observed some improvement also with his depression but as doctors didn’t give him any kind of muscle relaxant so he went with violent muscle contractions and he developed acetabular fracture that is a hip fracture during his electroconvulsive therapy. Though he improved his depression by that time he was completely dissatisfied with the hospital and its doctors for getting a hip fracture due to the pain he suffered.

He thought that though the hospital treated his depression but unfortunately, they had given him a fracture by the reason of the hospital being negligent so he decided to take the matter to the court. Court heard arguments for both sides and found that till that time there was no case of medical malpractice or medical negligence in which the party who had suffered pain had asked for compensation. So, Judge McNair who was one of the presiding judges of this case called the experts to get their opinion and for a better understanding of the concept of medical negligence during the 1950s. Judge McNair along with the opinions of experts in the medical field came to know that during the 1950s, treating patients with and without anesthesia was an accepted procedure for treatment. The reason behind not giving any muscle relaxant or anesthesia was its side effects which many times patients probably can get. The judge said that the decision by which doctors didn’t give him anesthesia was backed up by their reason that patient might get any side effects so they went ahead with unmodified electroconvulsive therapy i.e. without anesthesia.

Judge McNair came ahead with the landmark decision regarding the medical negligence case and held that doctors at the primary hospital are not at all negligent, the reason being that doctors in that hospital were able to follow one of the standard practices which were prevalent at that time- ECT with anesthesia and without anesthesia. Since they went ahead with one of the prescribed standard practices so doctors are not negligent. So, the judge propounded that a doctor is not guilty of negligence if he has acted following a practice accepted as proper by a responsible body of medical men skilled in that particular art. Also, ‘if doctors reach the standard of responsible medical opinion, he is not negligent.’ 

IS BOLAM FOLLOWED IN INDIA?

Yes, the Bolam test is being followed in India too which was propounded in the landmark case of Jacob Mathew v. State of Punjab² in the history of criminal negligence. Also, in Dr. Suresh Gupta v. Government of NCT of Delhi & Anr³, the Indian Judiciary accepted the concept of the Bolam test in India.

INADEQUACIES

1. Ambiguity in the credibility of opinion by other doctors or experts- During the investigation and hearing of the case of medical negligence, when opinions of other doctors as well as experts are taken into consideration, it lacks credibility. Because human psychology makes people of the same fraternity save other people of the same profession from getting convicted. Many times experts and other doctors try to save other doctors from convicting as guilty.
2. Investigation officer’s partiality- An investigation officer who gets appointed for the investigation of such medical negligence is always supposed and expected to investigate without any impartiality as well as with an unbiased mindset. IO shouldn’t have any degree of biasedness towards anyone, only then the purpose of a credible investigation can be fulfilled and the result of that investigation can be relied upon for pronouncing the judgment.
3. Non-availability of doctors for investigation- Many times, for a fear of getting arrested, doctors and experts intentionally become unavailable for the investigation regarding medical negligence and medical malpractice.
4. Specific rules rather than opinion- The government of India along with the Medical Council of India should work on formulating specific and strict rules and regulations rather than taking the opinions of other doctors as well as experts in the case of medical negligence. They should work on minimizing the loopholes of investigation so that suffered party in the case of medical negligence on part of doctors and hospital gets compensation and hence the utmost purpose of justice can be served.
5. Extended scope of Medical Negligence- The Supreme Court of India along with the National Commission held doctors to be not liable for negligence because of some other person who holds better knowledge or skills and would have prescribed a different treatment or treated in another way. But, as long as he has acted in good faith, following practice accepted as proper by a reasonable body of medical professionals, he will not be held guilty of medical negligence or medical malpractice.

CONCLUSION

In today’s world, the instances of exploitative medical practices, misuse of diagnostic procedures, and human organ trafficking keep on hovering in the medical field. There was a time when the profession of doctors was considered the noblest profession one could pursue ever but with the passage of time and increasing greediness of the human race it has now been plagued by unethical motives and has become profit earning profession. To prevent the whole profession from becoming so, government and various commissions should make stringent rules and regulations which could easily help the judiciary hold the culprit liable on whose part medical negligence is committed or who was not prudent, didn’t have reasonable skill and knowledge. Government should put a halt now on opinion-based investigation rather should start strict rules, evidence, and unbiased investigation. To deliver justice in cases of medical negligence, the Indian judiciary must adopt various new approaches so that at least the sufferings of a person in courts can be minimized as much as possible. The court must take heavy penal actions for those found guilty of medical negligence and also impose heavy fines on hospitals that have employed such negligent professionals.

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CITATIONS

1. [1957] 1 WLR 582: [1957] 2 AII.E.R. 118 at 587.
2. 2. AIR 2005 SC 3180.
3. 3. Dr. Suresh Gupta v. Government of NCT of Delhi & Anr, Appeal Cr 778 of 2004.

This article is written by Vedwrat Arya, a 3rd-year law student pursuing a BA.LLB from Dr. BR Ambedkar National Law University, Sonipat.

Civil Appellate Jurisdiction

Cases Nos. 270 and 271 of 1951

Equivalent citations

1951 AIR 226, 1951 SCR 525.

Petitioner

State of Madras

Respondent

Champakam Dorairajan

Date of Judgment

09/04/1951.

Bench

• DAS, SUDHI RANJAN
• KANIA, HIRALAL J. (CJ)
• FAZAL ALI, SAIYID
• SASTRI, M. PATANJALI
• MAHAJAN, MEHR CHAND
• BOSE, VIVIAN
• MUKHERJEA, B.K.

Subsequent Action(s)

Enactment of the First Amendment to the Constitution of India.

Facts of the Case

In the 1950s, there prevailed a quota/reservation policy for admission to academic institutions in Madras. There were around 4 engineering and medical colleges each that were upheld by the State. In the engineering colleges and medical colleges, which were financed and upheld by the state where the entire number of seats was 330 spots and 395 spots, respectively 17 spots were preoccupied/reserved for those pupils who were from other domains, and 12 spots were secured for voluntary assignment by the State, and the remaining place for 4 groups of communities in the State in which 6 spots were booked for non-Brahmins, 2 spots allotted for backward classes, 2 seats allotted for Brahmins, 2 seats assigned for Harijans, 1 assigned for Anglo-Indians and Indian Christians, 1 allotted for Muslims, and 20% assigned for women. The assignment was designed on different schemes which were based on educational qualifications and marks secured by the applicants who were from specific communities of the state. The quota system was pursued even after the introduction of the Constitution.

Srimathi Champakam Dorairajan, a Brahmin, was not able to acquire admission into the Medical College in spite of her proficient marks because she belongs to a Brahmin. So, she appealed to the Madras High Court under Article 226 referring to the contravention of her fundamental right of not getting into the medical college. And she also claimed a breach of her fundamental rights under Article 15 (1) and Article 29 (2) and asked the court to repeal the Communal Government Order, by a mandamus writ. C. R. Srinivasan also appealed a petition in the Madras High Court which includes her not getting into an Engineering College in spite of her eligibility. She secured 369 marks out of 450 marks. She also alleged for the matter of the Writ of Mandamus to repeal the Communal G.O.

Issue(s) of the Case

1. If the Communal Government Order 1921 provided by the State of Madras Constitutionally licit or not?
2. If the State can create quotas or reservations for seats in the academic institutions hinged on caste or religion?

Arguments raised by Appellant

The appellant focused on the point of the proviso of Article 46 which states that a state has to promote the academic and economic interests of fragile sections, generally the SCs and STs, and secure them from any type of social prejudice. Therefore, Article 46 provides the privilege to the state to sustain the Communal Government Order by reserving a place for various communities that are affiliated to the state. Consequently, the Communal G.O. is legitimate and permissible in law. So, there is no infringement of the Constitution for which the candidates failed to get into the colleges according to their proficiency and their fundamental rights are not infringed at the same time. In this instance, the proviso of Article 46 revokes the provisos of Article 29(2). It was expressed that Article 46 comprised Part IV of the Indian Constitution concerned with the Directive Principles (DPSP) where Article 37 simply speaks that “The provisos carried in Part IV shall not be implemented by any court, but the principles therein placed down are notwithstanding fundamental in the administration of the country and it shall be the obligation of the State to execute these principles in making laws.”

Arguments raised by Respondent

The defendant asserted that the Communal Government Order under the proviso of Article 46 is an understandable infringement of the Fundamental Rights. The respondent also attached that Caste need not be a hindrance for qualifying students to persuade into a college upheld by a state. Reservation according to the Caste-based is an infringement of Article 16(1). It was stated that Article 29 was not objected at admission to academic institutions rooted in religion, caste, or race. Article 15(1) and Article 29(2) got infringed as the state was biased against and contradicted admission into a college on the footing of caste.

Judgment

The High Court of Madras flattened the Communal G.O. since the quota system which is rooted in caste and opposed the Constitution of India. Both the petitions were concerned with Article 226 of the Constitution which is the grounds behind the infringement of the fundamental right to persuade into a college. After that, the state of Madras filed a petition in the Supreme Court against the decision of the Madras High Court’s where the Supreme Court supported that the grading in the Communal G.O. furnished by the Madras government hinged on religion, caste, and race understandable infringement of the Constitution of India and also an infraction of Article 29(2) in Part III of the constitution which secured the fundamental rights to the Indian citizens. The Court deemed that the State cannot acquire a particular place to allow admission to the applicants rooted in their religion, caste, and race which is infringing the proviso of Article 16 (2). Refusing admission on the bases of caste is a violation of Article 15(1). The provisos of Communal G.O. were introduced by the court which was declared invalid under Article 13 of the Constitution. The court gave a decision in support of Champakam Dorairajan. But an issue appeared “Do Fundamental Rights are superseding DPSP?” Therefore, the court held that in this case which is in an essential dispute between Fundamental Rights and DPSPs, “It will always on every occasion the Fundamental Rights that will triumph”.

Analysis

The case not only secured and safeguarded the Fundamental Rights of the Indian citizens but also the Indian Parliament responded to the verdict of the case at the same time with the idea of amending and altering the laws which were imminent in dispute with DPSPs. This case guided the First Amendment to the Constitution of India. The First Constitutional Amendment Act, 1951 was sanctioned to affix Clause 4 to Article 15. Article 15(4) was executed by the constitution. So, to authorize the state to create any specific provisos for the enhancement of backward classes.

Also, under Article 15(4), The Government can allot seats for the candidates of backward classes in government institutions or the institutions which are accruing help from the state. But it doesn’t permit the state the privilege to assign quotas to private institutions. Further, reforms were linked to the freedom of trade and business, the land reform measures, and freedom of speech which were granted by Article 19(1)(g). Article 19(1)(g) is a theme of sensible restrictions that the state may levy in matters of the general public. Thus, it is legitimate in nature. Prior to this case, there was an inherent dispute between Fundamental Rights and DPSPs since there was no transparency as to which would be more prevailing – Fundamental Rights or DPSPs in the instance of a dispute. But after this case, there is an explanation that “Fundamental Rights are prevailing over the DPSPs”.

Conclusion

It was a milestone case in which the Supreme court of India presented a chronicle judgment. It steered to the First
Amendment. This case revealed the eminence of Fundamental Rights and in what manner Fundamental Rights and
DPSPs are covered. If there is any violation in the fundamental right of a person owing to any direction at that time
the specific order will be examined as null and void like the present case where the Communal Government Order which was infringing the Fundamental Rights of Champakam Dorairajan who repudiated admission to an academic institute on basis of reservation was flattened by the court. This case also spotlighted the need for evolving different laws in the constitution which are infringing the Fundamental Rights of the people of India. Fundamental Rights are eternally superior and eminence for the citizens of the country as it grants them basic privileges which aid them to live with peace and freedom.

This article is written by Ashmita Dhumas, who has completed BA LLB from Agra College and is doing a diploma in
Corporate Law from Enhelion.