Category Archives: Constitution

Constitution, Euthanasia, Right to Health

PHYSICIAN-ASSISTED SUICIDE (PAS)

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Komal Agarwal

Capital Law College, Bhubaneswar

Introduction 

The word “Euthanasia” has derived from the Greek word “euthanatos” which means “easy death”. It can be classified into 5 categories such as: Passive Euthanasia, Active Euthanasia, Voluntary, Non- voluntary and Involuntary Euthanasia. 

“Physician-Assisted Suicide (PAS)” is known to be a prescription of toxic medicines which are willingly self-injected by the valetudinarian with the help of a physician (doctor). 

While throwing light on these practices, it has been always seen that a conflict between Right to Life and Right to Die clashes when it is impossible to improve the patient’s life as well as difficult to bid him goodbye by injecting such drugs. The views are that Life is God’s precious gift and only He has the power to take and no one else can thus restricting these practices and becoming a hinder to give the person “Mukti”.1 

One useful difference noted between Euthanasia and Physician-Assisted Suicide is that, in Euthanasia, a doctor is allowed to end a person’s life by the voluntarily consent in a painless way being legal in the eyes of law whereas in Physician-Assisted Suicide, a doctor aids a patient to commit suicide on request.2 

History 

Since 19th Century, Assisted Dying or Euthanasia has been in question. In the year1938, a society for Euthanasia was born to legalize Assisted Dying. ∙ Switzerland has legalized Physician-Assisted Suicide (PAS) during the1960’s movement held for “Right to Die” and “living wills” concept came into way of life where the patient can deliberately utter whether he/she wants health care or not in cases where they are not capable of crafting an alternative. 

In 1999, Passive Euthanasia was welcomed in the United States. Roughly in 2002, Physician-Assisted Suicide was legitimized in Netherland and Belgium. ∙ In 2008, Washington voted for the “Death with Dignity” Act which became Law in the year 2009.3 

Different types of Euthanasia 

  • Active Euthanasia – In this kind of Euthanasia, a person purposely arbitrates to end someone’s life. 
  • Passive Euthanasia – If a patient dies because his life saving treatment was suppressed or annulled is called Passive Euthanasia. 
  • Voluntary Euthanasia – Here, a person is allowed to make a mindful decision regarding his own death by asking a needy hand. 
  • Non-voluntary Euthanasia – In non- voluntary Euthanasia, a second person takes the decision for the patient who is not in a state to give their approval. 
  • Involuntary Euthanasia – Simply it means that a person is assassinated against their spoken desires. 4 

Hippocratic Oath

At First instance, ”First do no harm” strike in one’s mind. The Hippocratic Oath isn’t a law but a leading basis for the doctors which were written by the Greek Physician Hippocrates in 5th century B.C. Being one of the oldest binding documents in history, it has great emblematic prestige for the forthcoming doctors. The Hippocratic Oath is made by Physicians when they become eligible Doctors. The original oath, among other things, enlightens the following words: 

“I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect.” 5 

Although it has been rewritten multiple times but all medical schools use oath of different versions either the original Greek oath, the Declaration of Geneva or the Oath of Maimonides. 6 

Advantages and Disadvantages of Physician-Assisted Suicide 

Advantages: 

  • The ultimate sufferings of a patient come to an end: Incurable diseases give birth to a lot of physical pain bringing up fear as the patient knows that his life is coming to an end. Euthanasia can help cut short his torment and that of his family when they see him ill. 
  • Saves the decorum: As the Physician-Assisted Suicide (PAS) is officially recognized, patients are able to choose their own death holding on their self-esteem, picking up the favorite music at their final moments. 
  • Heartache maybe easily gripped: When the person’s family and friends informed of his wish in advance, the steps of misery can be easily accepted by all where they are given the chance of reuniting thus letting the patient’s farewell in harmony. 
  • It helps to reduce the Medical Care expenses: Assisted Suicide drugs are quite cheaper in comparison to medical care expenses which help the government, family of the patients to hoard the money. 

Disadvantages:

  • It brings about early death: Euthanasia doesn’t give a second chance to life. 
  • It infringes the Hippocratic Oath: The ban on killing shines as the first promise of self-discipline as per the Hippocratic Oath which considers human life a true blessing. Therefore, a say-so to end the patient’s life vocalized by him does not make the homicide justifiable. 
  • Impaired growth to the soothing care: As Euthanasia acts as the paramount key for seriously ill patients with no aim in living furthermore, on the other hand it becomes an obstruction whose who want to stand on their feet again and live a better life.7 

Euthanasia Drugs 

It is always to be remembered that medicines can save the lives as well as kill us i.e. “the dose makes the poison”. Basing on this concept, the whole regulation of Toxicology and Medicines is laid down. The very well-known symbol of the snake, wound around the bowl of Hygeia (the Greek Goddess of Health) representing medicine as seen in pharmacies and medical centre around the world. 

Barbiturates it is a group of drugs used to end life which slow down the activities of the Brain and Nervous system which are taken in small doses for short-term to treat insomnia or seizures. An overdose of Barbiturates is deadly as it will make the brain slow down to such a point that it will stop telling the body to keep the respiratory system working which leads to stoppage of breathing. 

Also, Secobarbital capsules and Pentobarbital (Nembutal) liquid have been used either alone or in combination for Physician-Assisted Suicide (PAS) or Euthanasia. Their safety and effectiveness in bringing a peaceful, swift and uneventful death has been proven which are in the list of ideal drugs in the Netherlands, Belgium, Switzerland and some USA states where Euthanasia is legally practiced. Both, Nembutal and Secobarbital can be used on animals, but human use is banned as seen in Australia. Due to this, it is difficult to apply the Euthanasia Law in Victoria State. Some have suggested the mixture of Nembutal and Secobarbital will be in powdered form made with pain killers to develop coma which in turn causes respiratory arrest. What is ultimately needed is a drug or a mixture of drugs generating a painless, swift and peaceful death. Humans do not crave to see further any more hardships in the form of seizures, prolonged distress and pain.8 

Countries where PAS or/and Euthanasia is Legal 

Switzerland: Switzerland has permitted Physician-Assisted Suicide (PAS) without any minimum age fulfillment, diagnosis or symptom, becoming the first ever country to legalize PAS. It is to be noted that Euthanasia is not authorized. It has been estimated that about 1.5% of Swiss deaths are cases of assisted suicide. 

Netherlands: Both Euthanasia and PAS are lawful in Netherlands if the patient is undergoing unbearable pain with no hope of recovery. Children below 12 years of age can appeal assisted dying but children less than 16 years need parental approval. 

Belgium: This country permits Euthanasia and Physician-Assisted Suicide for the persons carrying unbearable pain with 0% percentage of development. There is a 1month waiting period for the persons who are not having incurable illness before Euthanasia can be done. 

Luxembourg: Assisted suicide and euthanasia are allowed for adults but subject to condition that the concerned person must have an incurable condition with invariable, intolerable pain having no way of progress. 

Canada: Euthanasia and Assisted Suicide are for the adults going through “dreadful and irreversible conditions” whose death is reasonably probable. 

Australia: The state of Victoria passed Voluntary Euthanasia laws in November 2017 where the patient must raise the proposal of Assisted Dying first and not the concerned Doctor. 

USA: It has been seen in the USA that many states like Oregon, Washington, Vermont, California, Colorado, Washington DC, Hawaii, New Jersey, Maine and Montana permit Physician-Assisted Suicide for fatally ill persons.9 

Death with Dignity Laws 

This law lets terminally-ill adults to request and receive a medical prescription to accelerate their death willingly. Reports of April 2021 say that California, Colorado, District of Columbia, Hawaii, Maine, New Jersey, New Mexico, Oregon, Vermont, and Washington helped in dying laws. Death with Dignity Laws states the process where qualified individuals may obtain life-ending medications. For obtaining a prescription under Physician-Assisted Dying Laws, he/ she must be an inhabitant of the state accepting the law, 18 years or older, be competent enough of making and responding of one’s own health care decision and must be detected with a lethal illness that will lead to probable death within 6 months.10 

International Code of Medical Ethics 

The International Code of Medical Ethics was adopted by the General Assembly of the World Medical Association in the year 1949 which was based on the Declaration of Geneva to bring about the Ethical principles of the Physicians regarding his general duties towards his patients and his equals.11 

Physician-Assisted Suicide in Indian Context 

The legal position of PAS and Euthanasia in the Indian context is stated in the Indian Penal Code (IPC) 1860, which deals with the issues of Euthanasia and PAS. According to IPC, Active Euthanasia is an offence read under Section 302 (punishment for murder) or under Section 304 (punishment for culpable homicide not amounting to murder). PAS in the eyes of Indian law would be abetment of suicide as per IPC’s Section 306 (abetment of suicide). The issue under Section 309 (Attempt to commit suicide) is a punishable offence with simple imprisonment for a term which may extend to 1 year or with a fine or both. 

Religious concept of suicide in India 

Below are discussed some of the Religions and their view on suicide in the Indian context – 

  • Hinduism:In Hinduism, it has been believed that if a person commits suicide, he/ she does not step in hell or heaven but remains on the Earth as a bad spirit and knock out until he attains his allotted lifespan after that only he enters hell to arrive back on Earth to complete the Karma. 
  • Islam: Euthanasia is illegal as per Islamic religion because there is an important part of the physician to end the life of the patient by speeding up his death either by lethal injection, electric shock, a sharp weapon etc. This is an act of killing which constitutes a major transgression and outlawed in Islam. 
  • Christianity: The Catholic Church says that the death by means of suicide is a grave sin and that the human life is God’s blessing as well as a gift to this world and nobody has the right to wipe out it excepting the God himself. 
  • Judaism: Supporting and appealing for suicide assistance are forbidden amongst Jews.12 

Indian Judiciary on Euthanasia and PAS 

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

Aruna Ramachandra Shanbaug, a staff nurse working in King Edward Memorial Hospital, Mumbai. On 27th November 1973, she was raped by a sweeper by a canine chain around her neck and jerked her back with it. It was declared that the strangulation of the chain stopped the oxygen supply to the brain and her cerebrum got damaged.13 For 36 years she has been suffering PVS (permanent or persistent vegetative state) where a person is practically dead. The appeal for mercy killing was rejected but the “living will” concept was recognised by the court. 

On 18th May 2015, she died because of pneumonia being in PVS for almost 42 years. Later, the Supreme Court framed certain guidelines for Passive Euthanasia. It was legalized and was of the opinion that it would apply to “rarest of the rare” cases only. The court also said that the “Right to Die” comes under the subject matter of the Fundamental Rights and the court also mentioned that the request for Passive Euthanasia should be approved by the High Court ensuring that no wrong motive of relatives or friends is brought about. This judgement tiled a concentrated path for the claim of Passive Euthanasia by giving the Indians their ‘living will’ concept. 

Gian Kaur vs. State of Punjab (1996) 

In this case, the constitutionality of Section 309 (Attempt to commit suicide) under IPC was upheld. This case pointed out noteworthy differences between Physical Assisted Suicide and Passive euthanasia (withdrawal of life-support of the patient). The court stated that Euthanasia and Physician-Assisted Suicide (PAS) is illegal in India and the acts are punishable under criminal law. However, the Supreme Court agreed with their concept, introduced a special right for patients who are terminally ill, i.e. right to die with dignity, patients in PVS or brain-dead choose death over a dejected life. 

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

A writ petition was filed requesting a strong system for Passive Euthanasia and recognition of the ‘living will’ concept of a person. In this case, the constitutionality of Section 306 of the Indian Penal Code (IPC), 1860 was challenged. The Supreme Court of India recognised the concept of living will. The court also recognised the ‘Right to Die with Dignity’, Right to Self-determination and Right to Autonomy as fundamental rights. 

International perspectives on Euthanasia and PAS

Vacco vs. Quill (1997)

The New York state banned Physician-Assisted Suicide (PAS). The case was filed to challenge the constitutionality of such ban. Mr T. Quill filed a case along with 2 physicians and some severely ill patients. It was argued that the prohibition is violating the 14th Amendment, which provides equal protection. The law legalized Passive Euthanasia whereas Physician-Assisted Suicide (PAS) was regarded as illegal. The ruling of the District Court was against such a challenge. Still, when the case went to the second circuit, the judgement was reversed and was in favour of Mr. T. Quill and later the Supreme Court held that the State’s ban on Physician-Assisted Ban is not unconstitutional. 

Gonzales vs. Oregon (1994) 

In this case, the State of Oregon in the United States passed the Death with Dignity Act dealing with laws that permitted Physical Assisted Suicide with a lethal dose of medicine for terminally ill patients. Later, the act was opposed by the Attorney General of the US. Mr J. Ashcroft stated that the “Death with Dignity Act” violated the Controlled Substances Act, 1970 and also threatened that if any Physician practices Physician-Assisted Suicide (PAS), his/her medical license would be cancelled. Oregon State challenged this in the federal district court, the court and the circuit held that his declaration was illegal. The case went to the Supreme Court, it was held that the use of the controlled substance for Physician 

Assisted Suicide (PAS) does not violate the Controlled Substances Act and in addition to that, the act did not allow the Attorney General to ban the use of such substances for Physician-Assisted Suicide.14 

Conclusion 

It was seen that Aruna Ramchandra Shanbaug Case better explained the issues revolving around Euthanasia and laid down guidelines for Passive Euthanasia for Indians. As being a landmark judgement, it recommended that the method to be continued in a space that has not been administered upon i.e., where the Legislation has not yet been made by the Parliament. In India, Active Euthanasia is not allowed whereas Passive Euthanasia can be administered as per the prerequisites laid down by the Court.15 

In the present time, all jurisdictions of the US have decriminalized the “aid-in-dying” and only Physician Assistance in Suicide (PAS) is legal and Euthanasia is not. The US is exceptional in this regard. For Example, Canada, The Netherlands, Belgium, Luxemburg and Colombia, both PAS and Euthanasia have been legally recognized.16 

Supporters of Active Euthanasia argue that killing the patients is not worse than letting them die themselves whereas supporters of Voluntary Euthanasia say that the person should have the Right to do what they want to do in respect of their own lives. The advocates of Mercy Killing argue that the patients in vegetative states without any scene of recovery, by letting them die, stops the future needless and pointless treatment efforts. If they are suffering then by their homicide, prevents further more suffering. Advocates of Physician-Assisted Suicide (PAS) say that a physician aiding a terminally ill person is just simply helping that patient to “die with dignity” at his desire. 

Critics of Euthanasia dispute that killing is always wrong, whether it be Non- voluntary or Involuntary Euthanasia ultimately breaching the Patient Rights or that Physician-Assisted Suicide (PAS) contravenes a commitment to do no harm. “Right to Life” and “Right to Health” is meant for all the people and true investment in the Health care Systems is needed at the earliest.17

CITATIONS

1 Dr. Shaikh Shahanawaz Islam, Right to Life and Personal Liberty and Euthanasia: A critical Analysis, Volume 03, IJMSS, 121, 121-123, (2015)↩
2 Medical News Today, https://www.medicalnewstoday.com/articles/182951#euthanasia-and-assisted-suicide, (last visited on 23rd July, 2021)↩
3 Diganth Raj Sehgal, Legal aspects related to assisted suicide, iPleaders, (07 Jan, 2021)↩
4 Types of Euthanasia, https://computerscience.johncabot.edu/courses/F2014CS130/ddimaggio/Pages/Types.html (last visited 21st July, 2021)↩
5 Medical News Today, https://www.medicalnewstoday.com/articles/182951#history (last visited on 22nd July, 2021)↩
6 Study.com | Take Online Courses. Earn College Credit. Research Schools, Degrees & Careers, https://study.com/academy/lesson/what-is-the-hippocratic-oath-definition-parts.html#:~:text=Lesson%20Summary- ,The%20Hippocratic%20Oath%20is%20a%20sworn%20agreement%20made%20by%20physicians,help%20anothe r%20to%20use%20one. (last visited on 22nd July, 2021)↩
7 NYLN.org, https://nyln.org/doctor-assisted-suicide-pros-and-cons-list, (last visited on 22nd July, 2021)↩
8 ABC News, Dying a good death: What’s needed from voluntary euthanasia drugs, ABC News, (20th Oct, 2017), https://www.abc.net.au/news/2017-10-20/assisted-dying-what-is-need-from-drugs-for-voluntary euthanasia/9069896↩
9James Ashford, Countries where euthanasia is legal, The Week UK, (28th August, 2019), https://www.theweek.co.uk/102978/countries-where-euthanasia-is-legal↩
10 Death With Dignity, https://deathwithdignity.org/learn/access/#Going_Through_the_Process_of_Obtaining_Medications, (last visited on 22nd July, 2021)↩
11 Wikipedia, https://en.wikipedia.org/wiki/International_Code_of_Medical_Ethics (last visited on 22nd July, 2021)↩
12 Farooq Khan, Physician-assisted Suicide and Euthanasia in Indian Context: Sooner or Later the Need to Ponder!, Indian journal of psychological medicine, (January 2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3701348/ ↩
13 Aruna Ramachandra Shanbaug vs.Union of India and Ors. (2011) SC 4 SCC 454.↩
14 Diganth Raj Sehgal, Legal aspects related to assisted suicide, iPleaders, (7th Jan, 2021), https://blog.ipleaders.in/legal-aspects-related-assisted-suicide/#Indian_Perspective↩
15 Rajeswari Rajesh, Case Analysis: Aruna Ramchandra Shanbaug v. Union of India (2011), Legal Bites – Law And Beyond, (6thJune, 2021), https://www.legalbites.in/case-analysis-aruna-ramchandra-shanbaug/↩
16 Jozef V. Welie J, When Given a Choice, Patients Prefer Euthanasia Over PAS, Graduate School | Creighton University, (9th May, 2019), https://gradschool.creighton.edu/blogs/when-given-choice-patients-prefer-euthanasia over-pas↩
17 Euthanasia – MU School of Medicine, https://medicine.missouri.edu/centers-institutes-labs/health ethics/faq/euthanasia (last visited 23rd July, 2021)↩

Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.

Constitution, Criminal Law, Dowry Death, Women's Rights

WOMEN: ‘THE VERY’ DEATHS IN KERALA

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Justin D James

Government Law College, Thrissur

INTRODUCTION 

All intellectual conversations about women in a Kerala circle invariably include that well-phrased analogy- “Women are mothers; and goddesses”. It aims to establish the idea that the women in your life should be revered like a mother and respected as a goddess. But in effect, this dreamy ideal rarely actualizes into a life practice. While the state which ranks highly in most of NITI Aayog’s social and human development indicators takes serious efforts to educate its girls, the approach post-education is quite a contrast.1 Underage marriage in Kerala are the lowest within the whole nation (0.9%), but the marriage rate in the age group 18-20 is a different story- a quarter of the female population of the state are wedded before they hit 20.2 Women who have barely graduated enter marriages before they get any foothold of their own, and often end up at the mercy of their partners and in-laws. They often get harassed or abused because they didn’t bring enough dowries to the family but are restricted in reaction because of the precarious situations they are left in. And further down the marriage roads, some of these women are found hung from the ceilings; or burnt in the backyards; or bitten by snakes in beds.

DOWRY- ORIGIN AND EXISTENCE 

Dowries have existed as a custom in many communities from ancient or medieval times. The transfer of money, goods or estate from the bride’s family to the groom or his family was a fairly common practice, especially in societies of patriarchal nature. It was expected to be an assurance for the bride,  which would afford her a certain degree of independence in the alien and possibly hostile environment she was wedded off to.3It sometimes also acted as a base investment from which a household could be built, and was considered as a factor of the desirability of women. 

In India, the dowry system was in practice since the Vedic period where gifts from parents or relatives were recognized as the bride‘s property and was called ‘Stridhan’.4 Hindu traditional customs viewed marriage as the gift of a maiden or ‘Kanyadaan’, which was accompanied by dowry usually consisting of items that would help start their independent lives. 

While the practice of dowry weaned off in most communities in the 19th and 20th centuries, it is still followed at large in many South Asian countries including India. In fact, there was a period during the colonial rule of the British when dowry was mandatory, and by denying property rights of women, dowry was effectively transfigured into the right of the grooms.5 Post-independence, the violence faced by women was recognized as an area that required strong interventions by the State and numerous legal provisions were enacted. Nevertheless, statistics show not much has changed over the decades that followed.

Dowry deaths statistics, which were recorded only since 1988, show that in 1989 the number of cases counted at 4215. Dowry was the motive behind roughly 6% of all culpable homicides and murders.6 The numbers have steadily increased in the decades that follow. Between 1995 and 2007, there was a 74%  increase in the instances of dowry deaths, and there was a 31% increase in the number of dowry-related suicides during this same period.7 By 2012, the number of women killed in dowry-related violence had risen to 8233 and the cases reported by survivors nearly hit one lakh.8 The latest incidents are further proof that the fight against dowry death is stalling at the same point it was decades ago. 

PROVISIONS IN LAW 

The legislations which exclusively target violence faced by brides are the Dowry Prohibition Act, Sections  498-A and 304-B of the IPC and Section 113-B of the Indian Evidence Act. 

1) Dowry Prohibition Act, 1961: 

The reasoning stated for the enactment of this statute explains the motive clearly. An earlier attempt to confer property rights on women by the Hindu Succession Act of 1956 had not made the desired impact. There was a need for a punitive statute against the practice, as well as to ensure any dowry given would serve the needs of the women.9 The statute was further amended in 1985  and 1986 in order to increase the effectiveness and be more truthful to the objective. 

  • Section 2 defines dowry as any property or security which is given by one party to another party in connection with the marriage between them. The definition is wide enough to include parents and even outside persons but doesn’t include dower or mehar in the case of people governed by Muslim personal laws. 
  • Section 3 prescribes a punishment of not less than five years imprisonment and a fine amount equivalent to the dowry value over any person who gives or takes dowry or abet such giving or taking. At the same time, this section declares any presents given, without demand, to the bride or bridegroom outside the ambit of this statute provided they are customary in nature and not excessive in value. 
  • Section 6 exists for the benefit of women, such that any dowry already given in connection to a woman’s marriage should be transferred to her possession or that of her heirs in case she is not alive. 
  • Section 7 explains the jurisdiction and that no action may be taken except on the knowledge of the Court itself, a police report, a complaint by the aggrieved person,  parent or relative or a complaint by any welfare organization recognized in this behalf by the Government. The aggrieved person itself will not be liable to prosecution based on his/her statement. 
  • Section 8 deals with the cognizance of the offence. After initially declaring the offences as bailable, they were altered to non-bailable by the amendment of 1986. In the same amendment, the burden of proof was placed on the prosecuted person by introducing  Section 8A. Section 8B directs the State Government to appoint Dowry Prohibition  Officers to see to the compliance of the provisions of this Act.  

2) Section 304-B of IPC: 

This section was inserted by the amendment of 1986, in order to particularly tackle the offence of dowry death.  

  • Clause (1) establishes the circumstances in which death would be considered as dowry death. The death has to occur by burns, body injury or other unnatural circumstances, within a period of seven years after marriage. Soon before the death, the person must have been subjected to cruelty or harassment by her husband or husband’s relatives, in connection to demand the dowry.  
  • Clause (2) prescribes a punishment of not less than seven years and up to imprisonment for life for the offenders. 

3) Section 498-A of IPC: 

This Section was introduced in 1983 as a separate Chapter to incriminate instances of cruelty meted out to women by husbands or relatives of husbands. 

  • Cruelty under this Section includes harassment related to the demand for dowry as well as any other willful conduct which causes grave injury or danger to the woman, or drives her to commit suicide. 
  • Any offender under this Section may be punished with imprisonment up to three years and shall also be liable to a fine. 

4) Section 113-B of the Indian Evidence Act: 

This Section details the presumption of liability in the cases of dowry death. 

  • When the woman had been subjected to cruelty or harassment in connection with any demand for dowry soon before her death, the Court presumes it is a case of dowry death.  Once it is proven without a doubt that the woman faced cruelty or harassment soon before her death, the onus to prove shifts to the accused. 

CRITICISMS 

The legal enactments and their implementations have been under constant scrutiny by critics over the decades. These have largely centred around discrepancies within the laws and issues of rising frivolous cases. Many jurists and law commissions have also seen the need for pointing out ambiguity and misdirection in these laws. The Dowry Prohibition Act, for example, inadvertently acknowledges the occurrence of child marriages which are prohibited by another statute.10 It does not go as far as making child marriages valid, but it does give out the impression that such marriages are fairly common. 

One other major issue is the rise in false complaints which dilutes the actual purpose of these statutes.  Complaints are filed to satisfy personal vendettas by misusing provisions and courts have observed that the legislature has to find ways to deal with makers of such false allegations. The concern is so big that it could be considered as ‘legal terrorism.11 Further Madras High Court makes an observation that most complaints are filed in the heat of the moment due to trifling fights or ego clashes and even directs the police to try reconciling the parties before filing the FIR, and if there is no chance for settlement, steps have to be taken to ensure dowry is returned to the complainant12 

Critics also note that despite the large increase in cases filed, the conviction rate on cases filed under  Sections 304-B and 498-A is only between 20 to 30%.13 This is cited as evidence for the frivolous nature of the majority of the complaints. Insofar, it becomes clear that one of the major challenges faced by the system in solving the dowry menace is the rise in false complaints. The concerned officials including the police and the judiciary are forced to be cautious while approaching petitions of this nature. 

SOCIAL IMPRESSIONS OF DOWRY 

There is no difference of opinions when it is said that dowry essentially is a social evil, and society alone holds the axe which could cut its roots. The laws can only change so much; when the society is not aligned with the purpose of the law, it is mere words typed in a white sheet. Families consider dowry as a  symbol of grandeur and even compete to be the one that gives the most or receive the most. And when the daughter faces cruelty in her new home, the parents are reluctant to take her away, because society considers it too damning for a wife to be separated from her husband. As noted by Court14, normally the daughter-in-law suffering cruelty would not inform anyone initially. When she gets an opportunity, she might inform her parents, who in fear of pride, would wait for a proper time to try and settle the issue. In almost every case of dowry death, we see that the bride seeks help from her parents, which she doesn’t receive, and forces her to help herself out of life. 

From the part of the judiciary, efforts are made as much as they can. The interpretations today are much lenient than it was during the turn of the century. The literal interpretation of a penal provision on dowry death may have blunted the battle against the long-standing social evil for a long time. The language used in the laws have always flummoxed courts; for instance, Section 304-B requires death by burns or bodily injury or ‘otherwise than under normal circumstances. The cruelty or harassment need to happen  ‘soon before her death. These were often interpreted strictly by the judiciary and ‘soon before’ used to be interpreted as ‘immediately before’. Recently CJ Ramana has reiterated15 the need to be liberal in these interpretations and noted that there is only a need for a proximate link between the instance of cruelty and death. The cause of death can include homicidal, suicidal and accidental circumstances and there is no pigeonhole approach in categorizing death under 304-B. 

The Kerala legislature had enacted the Dowry Prohibition Rules, and as part of it appointed officers based in three zones to oversee the effective execution of the laws. Under the purview of the rules, government employees can also be asked to submit an affidavit post-marriage stating that they have not taken any dowry, which has to be signed by the wife and her guardian as well. Further efforts are made to increase the number of preventive officers to every district, so as to increase the efficiency of operation.16 The laws to tackle the issue, as well as the system to implement the laws, are in place, and the final piece of the puzzle is the approach of the society. 

The recurring cases of dowry deaths just highlight the rather philosophical observation17 made by the  Supreme Court in 1993- ‘laws alone are not enough to combat the evil of dowry; A wider social movement to educate the women of their rights is needed to conquer this menace, particularly in rural areas where they are largely illiterate, unaware of their rights and easily exploited’. While education does help, the incidents in Kerala- the most literate state- shows it is not everything. Education does impart the sense to see what is wrong and what is right, but the choice still needs to be made.  

CONCLUSION 

On the back of the disturbing occurrences in the Gods own country, Arif Khan, Governer, makes a  genuine suggestion of tying dowry to education in a radical manner. Graduates would execute an anti-dowry bond in order to receive their certificates; if violated, their degree would risk being nullified. It goes without saying that this approach of using education to tackle dowry might actually work better than the traditional approach. 

While this suggestion faces countless legal blockades, the general consensus would agree that something similarly radical is the need of the hour. Legislatures have done the best they can in formulating codes.  Judiciary does their best in preserving the ambit of the codes and giving a helping hand to the hapless.  Now society has to rise to the occasion, by means of meaningful and proactive discussion and execution, and do everything they can to help our women.

CITATIONS

1 NITI AAYOG, http://www.social.niti.gov.in (last visited July 4, 2021).↩
2 Census of India, Sample Registration System Statistical Report 2018, 39 (2018), https://censusindia.gov.in/Vital_Statistics/SRS_Report_2018/SRS_Statistical_Report_2018.pdf. ↩
3 The Editors of Encyclopaedia, Dowry, ENCYCLOPEDIA BRITANNICA (July 4, 2021, 10:43 AM), https://www.britannica.com/topic/dowry.↩
4 Soumi Chatterjee, Concept and evolution of dowry, 7 IJHSSI 85, 86 (2018), http://www.ijhssi.org/papers/vol7(1)/Version-2/M0701028590.pdf.↩
5 VEENA TALWAR ET. AL., DOWRY MURDER: THE IMPERIAL ORIGINS OF A CULTRAL CRIME (Oxford University Press 2002).↩
6 B. Devi Prasad, Dowry-Related Violence: A Content Analysis of News in Selected Newspapers, 25 JCFS 71, 71(1994).↩
7 Gopalan Retheesh Babu, Dowry deaths: a neglected public health issue in India, 3 International Health 35, 37(2011).↩
8 Carol J. Williams, India ‘dowry deaths’ still rising despite modernization, LOS ANGELES TIMES (July 7, 2021, 6.22 PM), https://www.latimes.com/world/worldnow/la-fg-wn-india-dowry-deaths-20130904-story.html.↩
9 Gazette of India, Extra Ordinary Gazette, pt. ii sec. 2, 397(1959)↩
10 Law Commission of India, Report No. 270 (July 2017), Chapter 6.11 (2017)↩
11 Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281↩
12 Romaiah v. State, (2008) 3 MLJ (Crl)↩
13 Law Commission of India, Report No. 243 (August 2012), Chapter 3.2 (2012)↩
14 Shyam Khatkar v. State of Chhattisgarh, 2012(1) Crimes 1 (Chhatt)↩
15 Satbir Singh v. State of Haryana, 2021 SCC OnLine SC 404↩
16 Dowry prohibition officers in all districts, THE HINDU (July 17, 2021, 5:11 PM),https://www.thehindu.com/news/national/kerala/dowry-prohibition-officers-in-all-districts/article35369472.ece. ↩
17 Kundala Balasubramaniam v. State of A.P., 1993 AIR SC 1321↩

Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.

Constitution, Health, Human Rights, pandemic, Right to Health

LEGAL ISSUES IN A PANDEMIC

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Abhiremya Raj R B

CSI Institute of Legal Studies, Parassala

INTRODUCTION 

“Health is wealth but wealth stands with the people if people are healthy then public will be wealthy enough” 

 By late 2019,there was an unfamiliar outbreak known by the name “CORONA VIRUS” short named as COVID 19 and abbreviated to ‘CO’ stands for Corona, ‘VI’ stands for virus and as it was occurred in 2019 it is shown 19 . It is a respiratory disease which can even affect the whole body vulnerably and it has the ability to spread from one person to another by physical contact or any way of other contacts so that on January 2020 , World Health Organization had called a Public Health Emergency to control and prevent it’s spread . It was first found in Wuhan, China and said to be a manmade virus better known by the name bioweapon. Weapon is one which can exploit a person or a locality and give pain and fear simultaneously the same effect was carried out by this virus. Then on March 11 2020 World Health Organization called it as ‘Pandemic’. The spread of the virus is controlled by Integrated Disease Surveillance Programme (IDSP) through internationally. Now it came into a huge and most lengthiest predicament of every person in the world. When we think about our past lifestyle, it is now a dream to wake up1. By late February our country was also faced by this crisis and further led to nationwide lockdown and many other strict regulations. As a result of that, upto an extend we can control it’s spread and prevent it’s huge outbreak. 

SCOPE OF THE STUDY 

 The scope and object of this project is to study the challenges faced by the Judiciary during pandemic and also to detail to privacy issues with regard to contact tracing application like Jagrithi ,disha ,arogya setu etc .To examine the effectiveness of biomedical waste management system and to determine curtailment of rights guaranteed under Article 19 and 21 with reference to right to health under Article 21 of the Constitution also to look into the adequacy of Epidemic Disease Act 1897 and Disaster Management Act 2005 and other laws in favor of pandemic control, prevention and regulations. Impacts on various sectors of economy due to the Covid 19 outbreak have to be noted. Role of judiciary and changes in Judicial system over the past year have to be studied in this article. 

OBJECTIVES OF THE STUDY 

  • To go in detail to the present issues on pandemic . 
  • To give an awareness to the public about the available legislations on Pandemic.
  • To know about the impacts and effects of Pandemic on common people. 
  • To maintain the precautions on prevention of spread of virus.

MAJOR ISSUES AROSE 

  • Contact tracing application like Arogya Setu affects right of privacy of individuals.
  • The Epidemic Disease Act and other laws are not sufficient to solve the problems faced by the people during Pandemic. 
  • Article 19 is curtailed event though there is reasonable restriction under article 19(2).
  • Right to life and privacy guaranteed under Article 21 is not at all protected and leads to be misused in certain ways.

FUNDAMENTAL RIGHTS AND THE PANDEMIC 

Constitution being a fundamental Law of land and it is dealt with some of the provisions which can be used at the time of pandemic and provides with one fundamental right also. The lockdown ordered during the covid-19 pandemic-imposed restrictions upon the fundamental rights of individuals. Freedom of movement, freedom to carry out one’s profession, trade or occupation of choice and freedom to reside anywhere in India under Article 19 of Indian constitution was curtailed during the pandemic.2 

Right to Speedy Trial

 Speedy trial confers under Article 21 of part III of the Constitution and Article 39A of part IV of the Constitution is violated by the declaration of lockdown and pandemic. Many lost their justice as ‘justice delayed is justice denied’. 

Right to Education

 Right to education under Article 21A of part III was being violation upto an extend and then switched to online education style which laundered many students of different states in India by the reason of illiteracy and economic backwardness. 

Right to Assembly

 Article 19(1) (b) guaranteed right to assembly and to form association, which was curtailed at the time of lockdown the number of persons assembled reduced to 20 to 50 in public occasions, marriage ceremonies and funeral services etc. 

Right to Religion

 Religious rights of every individual was curtailed which was conferred by Article 25 to 28 of part III of the Constitution, the temples, churches, mosque, mutt etc. was closed as a result of this pandemic. 

Freedom of Movement

 Article 19(1) (d) provides for freedom of movement but the lockdown and it’s regulations curtailed the right of movement and Prime Minister ordered to stay in the home at the period of lockdown. 

Freedom of Speech and Expression

Part III of the Constitution guarantees six freedoms includes freedom of speech and expression, but this was curtailed upto a great extend in the case of media, social medias and government. In Shreya Singhal v. Union of India3, the Hon’ble Supreme Court held that Article 19(1) (a) would remain the same and it was unaffected by any other provisions other than reasonable restrictions under Article 19(2). 

Right to Equality

 Article 14 guarantees right to equality and equal protection of law, but it was violated and many among us was faced inequalities in different forms, actually it was for the welfare of the nation but it led to various other issues of inequality. 

Freedom of Press

 Article 19 (1) (a) ensures freedom of press but it was curtailed of the reason of privacy and surveillance and more cases were emerged as a result of this. In the case Ramesh Thoppar v. State of Madras4, it was held that right to press includes right to privacy in all means . The same judgement was brought also in the case Brij Bhushan and Virendra v.State of Punjab5. 

Right to Livelihood

 Article 21 confers right to livelihood also and in pandemic times many people were faced poverty and unemployment, the migrant workers were trapped due to the regulations imposed. 

Right to Health

 Article 21 ensures right to health also, it was curtailed due to the lack of hospital services and lack of sufficient health services, which was formulated in different cases by Supreme Court. 

Freedom of Trade and Occupation

 Article 19(1) (g) confers freedom of trade and occupation and it was violated by the full closure of shops and outlets except of necessary grocery and food outlets. 

Right to Privacy

 Article 21 , right to life and personal liberty includes right to privacy, privacy being a foremost element in every individual’s life as it acts as the pillar of liberty. Everyone have their own private space in their life, to break that privacy means his rights are curtailed in a vague manner. During the period of lockdown and pandemic especially the patients affected with Covid 19 and the persons in their contact list suffered the breach of privacy in the areas of their daily life route map and also by the contact tracing applications such as Arogyasetu and disha, these surveillance issues resulted in the growth of legislations on surveillance and in Puttaswamy v. Union of India6, Hon’ble Supreme Court held that right to privacy is included in the fundamental rights under article 21 and data protection by authorities shall follow certain three fold conditions such as : the need of data must be pursuant to law, the data should be kept confidential, the need of data is adequate to the problem.  Later in 2020 Kerala Sprinkler case7, Kerala High Court stressed the term data protection and privacy and ensures the right under Article 21 and enumerated that the data collected from the citizens should be with their consent and confirmation, if the person is not willing to give consent it should not be obtained as it curtailed his personal liberty. This judgement faced a lot of criticisms so that the Government back up from the deal of Sprinkler. Like these in earlier day many cases were found as in A k Gopalan v. Union of India8, Rajagopal and another’s v. State of Tamilnadu9. These cases sought as landmark cases and decisions were quite effective in present era also. 

By this Puttaswamy case in 2017 , there had been a lot f discussions based on the topic data protection but it is most talked at n the time of Pandemic. For that General Data Protection Regulations (GDPR) and Personal Data Protection Bill 2019 (PDP Bill 2019) were passed. There is some difference in these two in GDPR it does not include 

  • Non personal and anomalous information. 
  • Financial data 
  • Critical personal data, ( critical personal data means those data declared as critical by Central Government. 

But in case of PDP Bill 2019 it includes sensitive personal data (sensitive personal data includes financial data, sexually oriented data, sexual life, common livelihood etc.), should be collected only with the consent of the concerned individual. Like that we can avoid many unfair situations today. Data protection includes data privacy also if a person is affected with Covid 19 then by using contact tracing applications we can find the route map of his past weeks, but it will also broke the mental health of that person, so it accelerates the hormones thereby induce many other heath issues to him. This makes corona virus vulnerable. The isolation, panic disorders and all make the person more sensitive to diseases . So data protection needs to be held a vital role during the Pandemic. 

PANDEMIC LAWS IN COMPARISON WITH OTHER LAWS 

As we know there were various Legislations existing in India, and least are pointing to Pandemic Legislations. Some of them relating to pandemic laws are ; 

The Epidemic Diseases Act, 1897(EDA, 1897) 

 This was enacted by the Central Government at the time of spread of ‘bubonic plague’ in erstwhile Bombay, but this Act did not provide much more provisions on epidemic spread and did not mention the definition of ‘dangerous epidemic diseases. So that it came to a bit failure from the part of Legislature. Section of this EDA 1897 deals with the authority to inspect and segregate the patients affected with the disease. There comes the shortcomings of the Act in present situation on ‘isolation’ or ‘quarantine ‘(section 3 of EDA 1897), these terms were not included in the Act, but the punishment for disobedience on regulations and others and is included under section 188 of Indian Penal Code 1908. So, Central Government passed The Epidemic Diseases Amendment Bill 2020 , which is temporarily applicable to the health workers as they have to face an imminent danger in the future. It is also not a suitable remedy to the Pandemic problems in India. The Public Health (Prevention and Management of Epidemic, Bioterrorism and . Disasters) Bill 2017 replaced EDA and some of its discrepancies. 

Disaster Management Act, 2005(DM Act 2005) 

 Central Government by notification in the Official Gazette enacted Disaster Management Act 2005( DMA, 2005), in order to cope with the disasters occurred in India at that time. Now as per section 6(2) (i) of the Act, The National Disaster Management Authority (NDMA) instructed national lockdown and was ordered on 24/03/2020, which ensures social distancing to prevent the spread of Covid 19 and the Tele Medicine Practice Guidelines also prefer to social distancing due to the spread of corona virus. This Act provides the regulations on quarantine and isolation and punishment for disobedience is given under section 269,270 and 271 of Indian Penal Code. This Act have a limited applicability on present issues of Pandemic 

but states certain reliefs and remedies to prevent the spread. Guidelines on Management of Biological Disasters, 2008 confers power to Central Government on making rules on biological disasters. 

Criminal Procedure Code, 1973(Cr.PC 1973) 

During the mid of lockdown section 144 had its essence on people and it avoids overcrowdings and assembling of 3 or 4 persons together, the power was conferred to public by District Collector also. 

Indian Penal Code, 1860

 Code provides the punishment for disobedience of quarantine rules or isolation rules under section 188 . Violation of section 188 shall lead to an imprisonment for a term which may extends to 1 month and a fine of ₹200 or with both. If this violation leads to any danger to the human life, health and safety , then the term of imprisonment may extend to 6 months and a fine of ₹1000 or with both. 

Bankig Regulation Act, 1949 

 During the mid of September 2020,Central Finance Minister had declared certain amendments on the Act on section 3 and section 56,as it includes the improvements of co- operative banks by including them in the category of commercial banks due to their grave increase in Non performing assets from 7.92 to 10 percent. Another amendment included in Banking Regulation (Amendment Bill) 2020,includes moratorium facility given to the banks of all public sectors. 

Biomedical Waste Mangement Rules, 2016 

 The rules regarding the dumbing of biomedical wastes and impacts on environment is clearly stated in the rules. Various amendments were held during the years of 2017,2018,2019 and recently on 2020 , based on the Covid 19 disease. The sanitation, hygiene, medical and pharmaceutical products and their disposal during quarantine and isolation periods of corona patients. The procedures and methods of disposal are clearly stated in the rules. It has a great relevancy during these times10. 

These are the main rules and regulations regarding the pandemic laws and it’s amendment.

IMPACTS ON ECONOMY AND VARIOUS SECTORS 

This pandemic created various impacts on different sectors of economy. Some of the impacts are:

Impact on judiciary 

Judicial system had changed to some extend and the number of pending cases arose. In order to avoid such increasing numbers, Judiciary heard the cases by online platforms, and it relieved the

parties and judicial officers to get down their overburden. Some landmark decisions had pointed out during these times and those decisions paved way to the concept of equality and secularism in the Nation itself. 

Impact on economic growth 

Economic growth during the past 2020 financial year was a decline. As it is due to the lockdown, many were faced unemployed, the share market tends to a lower graph, money supply had reduced, foreign exchange and investments get surrendered, money market were faced great decline, interest rates in banks both public and private sector had reduced due to Banking Amendment Bill 2020.The consequence of all these was the decline of Gross Domestic Product, GDP decreased in a low magnitude during the past year.

Impact on taxing sector 

Taxing sector had faced discrepancies due to the delay dates of filing returns. The tax is one of the important source of income for Government and a retardation of such income created more problems in money circulation. ITCR had temporarily stopped their proceedings from February 2021 and passed the pending cases to interim commissions due to the decline in growth due to pandemic. 

Impact on workers on public and private sectors, agriculture and labors. 

Unemployment and reduction in wages and salaries created poverty in many families. Central Government and State Governments had implemented various programs on poverty eradication by offering free food kits to all families and all, but still unemployment is a major problem. Government employees were somewhat safe by getting their half proportion of salary during the period of pandemic, but labors and private employees were suffering al lot. In the case of agriculture itself as there was not much imports and exports their income and livelihood also ceased. 

Impact on foreign trade and investment 

Foreign trade had retarded it’s growth due to the unavailability of flights and lockdown which restricts the international trade and commerce which was guaranteed under article 301 of the Constitution. Due to such restrictions there caused a decline in foreign investment also. 

CONCLUSION 

 From the above stated words and incidents it is clear that this pandemic had taught each and every individual some lessons, even in the case food, shelter, occupation, trade and mainly on health itself. Many lost their lives due to pandemic and more were affected by it in whole of world. The impacts on economy and other sectors indicates the crucial effects of Pandemic period. Various rules and regulations were passed by Parliament and State Legislatures for the welfare of the Nation and States. Pandemic created many problems and hardships and in the midst of that the truth is that ‘we shall overcome, this will also pass’. Let’s pray for the whole world as it sparks light on the world soon. 

CITATIONS

1 THE RIFE OF VIRUS 2020,YASH TIWARI, notion publishers, 30th May 2020 ,page number 5 to 8.↩
2 Law of Disaster and Pandemic Management in India , SUBBANARASIMHAIAH(SR), Thomson Reuters publishers, 1st January 2021,page number 27 to 46.↩
3( 2013), 12 SCC 73.↩
4 1950 AIR 123.↩
5 1950 SCR 594.↩
6 2017 10 SCC 1.↩
7 2020 April.↩
8 AIR 1950,SC 27.↩
9 1994 SCC (6) 632.↩
10 BIOMEDICAL WASTE MANAGEMENT RULES, SIMPLIFIED, TANMAY MEHTHA, August 2019.↩

Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.

Animal Rights, Constitution, Health, Human Rights

STRAY DOG MANAGEMENT IN INDIA – A SCANTILY  ADDRESSED AREA OF CONCERN 

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Chindhu Joseph

Central University of Kerala

‘We are paying taxes and we die on the road’

 INTRODUCTION

India is the nation that has the highest number of stray dogs and likewise, the nation with the highest rate of human rabies in the world1. The commonly seen stray dogs in India are the ‘Indian Pariah Dogs’ which are noted for their capacity to survive as they are highly immune to a plethora of diseases owing to their evolution. They are mostly people friendly and can make for excellent guard dogs. Still, their basic hunting dispositions pose a considerable threat to humans. Several instances can be coined to address the threat posed by stray dogs to the peaceful living of people in  India. In fact, thousands of citizens are being attacked by them in a single day, which results in caustic casualties. Many people lose their life due to rabis infection inflicted through stray dog bites. Article 21 of the Indian Constitution guarantees the ‘Right to life’ to its citizens and makes it mandatory for state and local governments to provide a safe and ailment-free atmosphere. It is the duty of the government to direct the municipal authorities to keep the public places, especially free of stray animals and avert public inconvenience through its sophisticated municipal law. Still, the menace of stray dogs is not a novel issue in India and also not a matter which seems to await a speedy remedy. This study tries to analyse the extent and diversity of threats posed by stray dogs in India and also tries to formulate a plausible pattern of mitigation mechanism which helps curb the menace which doesn’t conflict with the established legal standards. 

IS IT TRULY A SCANTILY NOTICED AREA OF CONCERN?

Imagine, while a terrorist attack, one of the citizens losing his/her life in India. How much will be the mediatization done to address the issue. Then, consider about thousands those who lose their lives due to the attack and interference of stray dogs every year in India. The amount of attention given by `media as well as by the governmental mechanisms is obviously meagre. The objective of this idea conveyed is to get an understanding of the worth of a life, irrespective of the mode which takes it. Whatever costs the life of citizens should be addressed and all possible methods of mitigation shall be employed in its eradication. Same is the case with stray dog menace. Apart from rabies majority of stray dogs are infected with parvo infection, mange and distemper which are contagious.2 Even a small scratch or bite from a stray dog results in the injection of four shots of rabies vaccination on differently scheduled days. Apart from this, several deaths and serious casualties have reported when the stray dog causes a collision when it runs into the road. Citizens pay road taxes to the government which is primarily responsible to safeguard the life of its subjects. But, in the case of stray dog’s free-access to public roads, the governments are silent as it is a ‘Pandora’s Box’ which has multifarious levels of issues when it comes to the extermination.

In march 2016, the municipal authorities reported to Supreme Court that from 1994 to 2015, 434 deaths happened in Mumbai, due to dog bites. As per reports, 1.3 million people were bitten by stray dogs amid this timespan. Kolkata had a stray dog population of more than 80000 in 2018 and its rising.3 The number of stray dogs in the major cities of India as per 20th livestock census 2016 is as under

These figures are from 2016 census. The current figures of stray dog population in India will never going to disclose an inferior number. World Health Organization (WHO) has identified that 36% of world deaths due to rabies is happening in India. ‘WHO’ has also recognised that dog bites are the root cause for the transmission of rabies to humans contributing up to 99% and added that every year 18000-20000 citizens lose their lives in India due to rabies.7 This is way much higher than the number of people killed in terrorist attacks in India.8 It still doesn’t seem alarming and an under-noticed issue?

CONVERGENCE OF ANIMAL RIGHTS AND HUMAN RIGHTS JURISPRUDENTIAL PERSPECTIVE

Humans fix the standards related with human rights as well animal rights. The friction is obvious as question related to priority in preservation of these rights arose. Whether the animal rights should be compromised for the protection of human rights or vice versa is an evergreen debatable issue as it varies in the perspectives. Animal rights activists do strongly condemn any action against the elimination of stray dogs from the public as they consider stray dogs as the part of the environment who have the right to exist along with humans and other animals. They advocate that it is the duty of the humans to preserve the rights of animals at first. Humans should avoid exploiting or exterminating animals as the interests of animals are as same as humans. But, never contemplate animals can have rights akin to humans. For example, humans can’t confer right to vote to animals. Still, they can be conferred basic rights such as right to physical, psychological and emotional health, right to adequate food and shelter, right not to be harmed and exploited, right to share the environment with other animals including humans, right to be valued and ultimately the right to live.

While analysing the jurisprudential recognition of animal rights it is just to coin Charles Darwin, who was a scientist and a naturalist. His renowned theory of ‘Natural selection’ has managed to radically alter the perspectives of humans from considering themselves as specially made by God, to being yet another animal evolved from an animal.9 Although he wasn’t an animal rights advocate, his theories have strong implications as to the importance of animal rights and standards to be maintained while dealing with animals. Darwin identified shared attributes in animals and humans like anger, terror, deceit, courage and timidity. All these vary among animals just like humans. Also, they possess multiple emotions like desire to be loved, admiral of appreciation, jealousy etc.10

While the celebrated jurist ‘Emmanual Kant’, considered rationality as the supreme factor in conferring rights to animals. For him, rationality is not alike intelligence. It is the normative capacity of humans to judge an action as good or bad. It is that incomparable capacity to find reasons for their beliefs and actions is what makes humans distinctive of animals11. Although, in an apparent sense it may feel like Kant was against the conferring of rights to animal, but it’s not legit to understand it so. At his period, his views were far progressive. Kant was of the view that animals should not be used as the subject of conducting painful experiments nor they should not be used for any sports. If they must be killed, it should be done quick and with less pain. He adds that humans have duty towards animals which they don’t owe to animals, but to themselves.12

Jeremy Bentham is yet another illustrious jurist who is still memorized for his ‘Principle of utilitarianism’. Bentham’s statement ‘The question is not can they reason? Nor, can they talk? But can they suffer?’13 was wide popular in animal welfare circles of that time. He considered the capacity for suffering as the sole criterion for conferring rights to animals. While, Henry Stephen Salt was of the view that humans shouldn’t kill their fellow-beings which lower the standard of a civilized society. He added that ‘it is ourselves, our own vital instincts, that we wrong, when we trample on the rights of the fellow-beings or animals, over whom we chance to hold jurisdiction’.14

Meanwhile human rights are those universally accepted principles which are common to all humans around the globe. Its characteristic are universality, inalienability, indivisibility, participation, non-discrimination, transparency and accountability.15 The convergence of Human rights with animal rights stems from the basic fact that humans are yet another animal species. There is no qualitative distinction between human rights and animal rights, but only quantitative. Some animals have properties like consciousness, self-awareness, sentience, sense of time and ability to plan just like great apes. Thus, human rights can also be understood as a species oh animals rights in general view. Thus, the recognition of animal rights and conferring certain rights to animals is a basic facet of human morality and values.

LEGAL FRAMEWORK AND JUDICIAL RESPONSES IN INDIA  PERTAINING TO THE AREA OF STRAY DOG MANAGEMENT 

Prevention of Cruelty to Animals Act, 1960

As per section 11(1) of Prevention of Cruelty to Animals Act, 1960, which is the basic law which prohibits the ill-treatment of animals, ‘mutilation of any animal or killing any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner is a cognizable offence. According to section 11, beating, kicking, over-riding, overloading, over-driving, torturing or otherwise treating any animals so as to subject it to unnecessary pain amounts to cruelty on animals.16

Animal Birth Control (Dogs) Rules, 2001 (Amended in 2010)

As per Indian law, stray dogs cannot be killed, beaten, driven away, displaced or dislocated. Only allowed manner is the sterilization procedure envisaged in Animal Birth Control (Dogs) Rules, 2001. It classifies dogs as pet dogs and street dogs. It also directs the procedure for controlled breeding, immunization, sterilization and licensing and also divided duty of street dog management among local authorities and residential associations. It also structures the function of a core committee which is meant to control and care street dogs by sheltering, sterilization, catching, vaccination, etc. The rehabilitation of captured street dogs is also the responsibility of local authorities as per the ABC Rules.17

AWBI Guidelines for Feeding Stray Dogs in Residential and other Localities

There are certain guidelines issued by the ‘Animal Welfare board of India’ for the feeding of stray dogs in residential and other localities. It states that the dogs must be fed at places which are rarely used by the residents, causeways, public footpath, streets, pedestrian path etc. Anyone interested in feeding stray dogs in their private space/flat can do as such. It also directs the spectrum of feeding interval and manner to be followed while serving food and water. The Animal Welfare Board is of the view that adherence to the guidelines can positively impact the management of stray dogs, and can prevent them from attacking humans.

Other Legislations and Rules 

The municipality/Corporation is the authority which is responsible for the stray dog management in India. Municipalities are meant to have adequate dog pounds for sheltering stray dogs. Previously, municipalities used to cull these animals brutishly by electrocution, starvation and even by burying alive. After 1992 is became illegal to kill stray dogs. The High Courts of Delhi, Mumbai, Rajasthan, Gujarat and many other states have directed various municipalities to formulate a sophisticated method instead of culling stray dogs mercilessly. The AWBI has established a code of conduct for the municipalities to deal with stray dogs. Failure in its following invites contempt of court proceedings.

Section 428 and 429 of the Indian Penal Code make it illegal to maim or cause injury to any animal with a monetary value higher than Rs 10.

  • It is illegal to throw acid on cows (normally done by vegetable sellers.
  • It is illegal to intentionally kill/injure dogs, cats, cows which roam on  the street.
  • Anyone who engage in such activities which injure animals including  stary dogs shall be punished by fine of Rs 2000 and/or a jail term of  up to five years.18

Judicial response 

Indian Judicial system always stood supportive in the protection of animal rights. In Muhammed Habib v. Uttar Pradesh19, the court was of the view that ‘the constitution of India doesn’t permit any citizen to claim that it is his fundamental right to take life and kill animals’ and also chapter IV A, Article 51(g) ordains ‘compassion for living creatures’. Even though the court didn’t mention stray dogs as such, the ruling generalized the protection of life of animals, making it applicable to stray dogs also. In Animal Welfare Board v. A. Nagaraja and ors,20 the apex court reiterated five internationally recognized freedoms for animals. They are freedom from hunger, thirst and malnutrition, freedom from fear and distress, freedom from physical and thermal discomfort, freedom from pain, injury and disease, freedom to express normal patterns of behaviour. The supreme court considered these rights as the fundamental principles of animal rights and it stated that these rights are to be ensured for every animal in the nation.

In Animal Welfare Board of India v. People for elimination of Stray Troubles  & Ors21 it was held that it is the duty of the corporations to manage the stray dogs  which creates nuisance. The Supreme court urged Animal Welfare Board to supervise  State Municipal Corporations, Municipal committees, district boards and local bodies  and analyse whether they follow existing laws and rules pertaining to the protection  of such Animals. 

On march, 2016, the Supreme court directed all states to conduct sterilization and vaccination programme on stray dogs adhering to the provisions of ‘Prevention  of Cruelty to Animals Act’ under the guidance of ‘Animal Welfare Board to control’ its population and also to curb the menace of rabies infection. The apex court was  considering more than ten writ petitions related with stray dog menace like the  welfare and protection of animals& Anr v. state and Ors22 and Rekha Gare v. State of  Govt. of N.C.T of Delhi & Ors.23 The bench headed by ‘Justice Deepak Mishra’ considered the submission of ‘amicus curiae’ and senior lawyer ‘Dushyant Dave’,  and recognised that proper sterilization as per law and rules are not carried out by  corporations either because of lack of money or due to apathy. The court also directed  state governments to report, matters which indicating compliance of provisions of the  Act regarding stray dogs, with the AWBI within six-week time. Thus, it can be  identified that Indian Judiciary from time to time has recognised the seriousness of  the issue and has directed governments to follow ABC Rules and provision of  Protection of Animals Act.

WHY INDIA CRAWL DESPITE OF HAVING AN EFFECTIVE STRAY DOG  MANAGEMENT BLUEPRINT

It is a wide acknowledged fact through various statistics and reports, India is  home to millions of Stray dogs. Despite of adequate legal mechanism, the actual  management of stray dogs in the country is not appreciable. It can be attributed to the  improper implementation of the statutes which are framed embodying advanced  principles of international legislations. India does have a valid mechanism for  managing stray dogs in the form of ABC Rules as mentioned before. The rules follow  the pattern of European countries which effectively manage stray dog population in  their territory. The rules do recognize the vital role of local authorities and animal  welfare association in the management of stray dogs. It mandates such authorities to  capture and shelter such stray dogs and also to sterilize and vaccine them. After that  the authority should release them to the same locality from which they are captured.  This proven pragmatic procedure is the most effective way in controlling the  population of stray dogs 

It is exactly where the nation strain in the management of stray dog  population and menace. It is the utter failure of implementation mechanism which is  responsible for the mismanagement. ABC programme implementation is in dormant  condition in the majority of states. Owing to multifarious reasons, local bodies fail to implement ABC Rules. Lack of infrastructural facilities is the prime cause as the societies primary concerns are much different. India being a developing nation, the management of stray dogs can’t be found in the top priority list of the local administration as well as for the citizens. A very few numbers of stray dogs are being sterilized by the authorities under the ABC programme, where, it is being the only resort to attain a visible reduction in the number of stray dog population as upheld by the Supreme Court and various High Courts. The ABC Rules made by the Government of India is quite effective as it follows the pattern of proved management system around the world.

Still, it can’t be attributed to AWBI as its sole fault. Primarily it is the failure  from the part of Municipalities/Corporations in the periodic monitoring of stray dogs  and in the conduction of ABC programme which lead to their overpopulation. Along  with that, improper waste management mechanism adds to the menace as it helps stay  dogs to survive. An effective system of garbage-disposal can help reduce the  population in the near future. It acts as a prime reason for the failure in the  implementation of ABC Rules too. The streets in India filled with garbage is the  perfect breeding ground for those strays which are not neutered or spayed.24 

CONCLUSION AND SUGGESTIONS FOR REFORMS 

A proper and sophisticated system of management has to be employed for the  identification of stray dogs an area. The Municipalities/Corporations should maintain  at least an approximate number of the stray dog population and periodic  implementation of ABC Rules which includes vaccination, birth control and  sterilization techniques. Along with this, adhering to the provisions of various  European statutes like ‘The Clean Neighbourhoods and Environment Act 2005 of the  United Kingdom25, the states must initiate the establishment of dog shelters/pounds  dedicated to a defined area. This can be used to shelter the captured dogs temporarily  for the time needed to sterilize and vaccinate them. Later, they can be released to the  same place from which they are captured. Dog Lovers and Animal Welfare  Associations should play the pivotal role in the management of stray dog and in the  reduction of their population. Likewise proper garbage disposal mechanism should be  devised in every nook and corner of the nation. Littering of garbage waste helps stray  dogs flourish in numbers as they get adequate food and apt environment to survive.  While trying to mitigate its menace, inhumane treatments against the stray dogs  should also be avoided. 

The natural instinct of humans to cull stray dogs which interfere in their  tranquillity and normal life was witnessed in many parts of India. In 2016 at least 120  stray dogs were killed by the people of Kerala in Ernakulam and Palakkad. The  incident even received the condemnation from International Animal lovers. The  Supreme court also took note on the issue and urged to stop such barbaric move against the extermination of stray dogs.26 Same happened in the Kerala’s Manjeri  where people killed 15 stray dogs which were vaccinated and sterilized.27 All such  barbaric acts should be eradicated from a civilized society. The public must be made  aware about the legal consequences of such brutish acts and also should be taught the  humane value of preserving animal rights. Then only the re-occurrence of such  incidents can be avoided. The knowledge on the system of management of stray dogs  can help people deal with them in accordance with law. The  corporation/Municipalities should impart such awareness to the citizens along with  the execution of their responsibilities as per the provisions enumerated in the ABC Rules. Following all such pragmatic practises can ultimately help reduce the  population of stray dogs in India and its interaction with humans, which leads to the  death of thousand every year. Every citizen should be aware of the rights of other  animals in the globe to co-exist and in case of their menace they should only adhere  to the rules and principles established by law. Together, the nation can gradually  reduce the stray dog population by applying such established way of mitigation,  which doesn’t harm their rights and feelings. 

CITATIONS

1.Why stray dogs divide India like nothing else, TIMES OF INDIA, (July 23, 2021 10:44 A.M) https://timesofindia.indiatimes.com/india/why-stray-dogs-divide-india-like-nothing else/articleshow/81431925.cms#:~:text=India%2C%20with%20its%20estimated%20populati on,below%2015%20years%20of%20age.↩
2.Stray dog menace on the rise in Kozhikode city, THE HINDU, (July 23,2021 10:19 A.M) https://www.thehindu.com/news/cities/kozhikode/stray-dog-menace-on-the-rise-in-kozhikode city/article34298247.ece.↩
3.Are stray dogs a major problem in India? MEDIA INDIA, (July 23, 2021 10:53 A.M), https://mediaindia.eu/society/stray-dogs-a-major-problem-in-india/.↩
4.20th Livestock census-2016, ANIMAL HUSBANDRY, DAIRYING AND FISHERIES, http://dahd.nic.in/division/launching-20th-livestock-census (July 23,2021, 4:30 P.M). ↩
5.As per the survey report by ‘Humane Society International (HIS) for the corporation of Trivandrum in 2015.↩
6.Supra note 4.↩
7.Rabies, Health topics, WORLD HEALTH ORGANIZATION, (July 23,2021, 5:00 P.M) https://www.who.int/india/health-topics/rabies↩
8.Soutik Biswas, Do India’s stray dogs kill more people than terror attacks, , BBC NEWS, (July 23, 5:05 P.M) https://www.bbc.com/news/world-asia-india-36035456 .↩
9.CHARLES DARWIN, ON THE ORIGIN OF SPECIES BY MEANS OF NATURAL SELECTION, 76-77(1895).↩
10.FRIEDRICH NIETZCHE: ANIMAL RIGHTS: A HISTORY-CHARLES DARWIN, NOTEBOOK (1893).↩
11.Christine M. korsgaard, A Kantian Case for Animal Rights, 33 (4) OXFORD JOURNAL OF LEGAL STUDIES 629-648 (2013).↩
12.Id.↩
13.See generally JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (1789).↩
14.SALT HENRY STEPHENS, ANIMAL RIGHTS: CONSIDERED IN RELATION TO SOCIAL PROGRESS 52-63 (1892)↩
15.United Nations Population Fund, Human rights Principles, (July.24, 2021 10:09 A.M) http://www.unfpa.org/resources/human-rights-principles .↩
16.Section 11 in the Prevention of Cruelty to Animals Act, 1960, INDIAN KANOON, (July 24, 2021 !0:57 A.M), https://indiankanoon.org/doc/1763700/ .↩
17.Id.↩
18.18 See generally, Section 428 and 429 of IPC↩
19.SLP(C) 691/09 (2016); (July 24, 2021 9:50 P.M) http: awbi.org/awbi↩
20.pdf/sc_order_18112015.pdf.↩
21.CIVIL APPEAL NO. 5387 OF 2014, @Special Leave Petition (Civil) No.11686 of 20087)↩
22.CIVIL APPEAL NO. 223 OF 2017, @ Special Leave Petition (Civil) No.11686 of 2007 22 W.P(CRL) 467/2009↩
23.W. P(CRL) 1101/2009, See also M. R Ajayan v. State of Kerala, WP(C). No 28255 of 2011, Kuljit Singh Bedi v. State of Punjab and Ors Civil Writ Petition No.9902 of 2012 (O&M), Satish Kumar Verma v. O.P Shrivastava C.P. No 1339 of 2009 (2013)↩
24.Jasmine Monrouxe, Why are there so many stray dogs in India? THE DODO, (July 25, 2021 10:50) https://www.thedodo.com/why-are-there-so-many-street-dogs-in-india 1508123458.html .↩
25.Clean Neighbourhoods and Environment Act 2005, legistlation.gov.uk, (July 25, 2021 11:10 A.M) https://www.legislation.gov.uk/ukpga/2005/16/contents .↩
26.At least 120 stray dogs killed in Kerala’s Ernakulam and Palakkad districts in the last week.SCROLL.IN, (July 25, 2021 11:24 A.M), https://scroll.in/latest/819045/at-least-120-stray-dogs-killed-in-keralas-ernakulam andpalakkad-districts-in-the-last-week .↩
27.Kerala: Police begin probe into mass killing of Stray Dogs in Manjeri, TIMES OF INDIA, (July 26, 11:30 A.M) https://timesofindia.indiatimes.com/city/kozhikode/kerala-police-begin-probe-into-mass killing-of-stray-dogs-in-manjeri/articleshow/70556525.cms .↩

Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.

Constitution, pandemic, Right to Health

Right to Health v. Right to Religion during COVID-19 Pandemic

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Lekshmi Shibu

Research Scholar
Department of Law, Central University of Kerala

Introduction

The concept of the right to religion was carefully taken into consideration by the constitution-makers due to India’s pluralistic nature. They found that it is better for the State to not interfere in the matters of religion and it is essential to draw the limits of religious freedom. Thus, Article 25 of the Indian Constitution provides that subject to public health, morality and other provisions of Part III all persons are entitled to profess, practice and propagate religion. During the recent COVID-19 pandemic it can be observed that the concept of right to religion often comes in conflict with the right to public health and safety.

Religious Gatherings During Corona Outbreak

According to World Health Organisation, as of May 1st, India has accounted for nearly 50 percent of fresh COVID-19 cases and 25 percent of deaths reported across the world.1 Religious practices, festivals, and gathering are the major reasons for the spread of COVID-19 in India. From the events of Rath Yatra in the year 2020 to the CSI Munnar retreat in the year 2021, religious practices have been materialistic for the super spread of COVID-19. While it is evident that religion contributed to the massive spread of COVID-19, it can be seen that certain religious communities are alleged to be the carriers of corona virus and are been targeted over others.

According to the report of Ministry of Health, as of April 18, 2020, nearly 4300 confirmed cases of COVID-19 across the country was linked with religious events of Tablighi Jamaat which occurred in Delhi, due to this there was stigmatization and harassment of Muslims all over the nation.2 When the country was experiencing the first wave of COVID-19, the Supreme Court lifted the ban on the Rath Yatra, stating that the parties involved that the procession of chariots, the Rath Yatra itself, could be allowed to proceed without the general congregation of devotees by following the directives issued by the constitutional bench.3 By lifting its stay on the Rath Yatra, the Supreme Court appeared to test its commitment to secularism and Article 25 of the constitution. Following the logic of the apex court there exist no convincing reasons as to why similar religious festivals cannot be allowed, if the organizers and the state governments concerned agree to follow the conditions and the norms imposed by the court. 

The mayhem created by Maha Kumbh Mela in the middle of the second wave of COVID-19, where millions of devotees participated added to the super spread of infection with devotees returning to their home cities. This situation was avoidable if there was proper adherence and fulfillment of the Standing Operational Procedure (SOP) and guidelines issued by the Union Health Ministry and Uttarakhand High Court.4 When it comes to Thrissur Pooram, unlike the previous years, the pooram was conducted as a ritual following COVID-19 protocol and guidelines issued by the High Court and the State Government.

In the holy month of Ramzan, people approached the Bombay and Delhi High Courts seeking permission to carry out their religious practices within the mosques,5 but both the courts took a different approach to address this issue. The Bombay high court rejected the petition, stating that the demands “cannot be considered in view of the ongoing critical COVID situation which is serious in nature.” On the other hand, in the Nizamuddin Markaz case,6 the Delhi High Court permitted a limited number of people to offer prayers during Ramzan, as there was no direction from the part of the Disaster Management Authority to close down the place of worship.

Conclusion

When the constitution itself makes it clear that public health should be preferred over the right to religion, it is seen some of the Courts face a dilemma to resolve this issue. Therefore, it is high time for the Supreme Court to issue necessary directions to the High Courts to avoid such confusions. The right to life and health of people cannot be sacrificed at the altar of the right to celebrate festivals. When the country is going through the havoc caused by the second wave of COVID-19 which have been more dreadful and lethal compared to the first wave, it is important to strictly adhere to the reasonable restrictions provided by Article 25 of the Indian constitution. Thus the political executive and judiciary must make all efforts to curb religious propaganda that is found inconsistent with the public order, health and morality. 

End Notes

1. WHO Says India Accounts for Nearly 50% of World’s New Covid-19 Cases, 25 % of Deaths, INDIA TODAY, https://www.indiatoday.in/coronavirus-outbreak/story/who-india-accounts-for-nearly-50-percent-world-s-new-covid19-cases-1799163-2021-05-05. (May 5,2021, 4:41 PM)↩
2. ARJUN PHILIP GEORGE & NABEELA SIDDIQUI, LIBERTY; NEW FACETS& CHANGING DIMENSIONS 358 (Dr. Anil R Nair, Centre for Parliamentary Studies and Law Reforms, NUALS 2020).↩
3. Odisha Vikas Parisad v. UOI & Ors. W.P.(C)No.571/2020.↩
4. Sachidanand Darbal v. UOI W.P.(PIL) No 58 of 2021. ↩
5. Juma Masjid of Bombay Trust v. State of Maharashtra and Ors. W.P.(L) No 10152 of 2021, Delhi Waqf Board v. Government of NCT Delhi and Anr. W.P. (CRL)42/2021.↩
6. Delhi Waqf Board v. Government of NCT Delhi and Anr. W.P. (CRL)42/2021.↩
7. Juma Masjid of Bombay Trust v. State of Maharashtra and Ors. W.P.(L) No 10152 of 2021, MANU/MH/1066/2021.↩

Constitution, Environmental Law

MAN V. WILD: DISPUTE OF NH 766

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HARISANKAR K V

Government Law College, Kozhikode.

ANUJUS PRADEEP

Government Law College, Kozhikode.

INTRODUCTION

“Man is a part of nature, and his war against nature is inevitably a war against himself” – Racheal  Carson. 

Human beings interact with wildlife from time immemorial for their existence. They continuously  interact with their environment, positively or negatively, for habitat and resources and have innovated  and adapted to become the dominant ecological force on the planet. As time passed, with the  civilization of the human race, these relationships took a major drift from mutual existence to a  conflict for space, food and shelter. As the conflict has been in existence for a millennium, it is now  more frequent, serious and widespread, and a global concern for conservation and development arise.  As the importance of development and conservation are major concerns of modern society, what  will be the outcome when development and conservation come face to face? Such a plot came up  recently in a developing district of Kerala, Wayanad, which is a part of Nilgiris Biosphere Reserve and is India’s first and foremost biosphere reserve with a heritage, rich in flora and fauna. The issue in  Wayanad is between one of the major National Highways NH 766 connecting Kozhikode in Kerala  with Kollegal in Karnataka via Mysore and a highly protected wildlife habitat of Muthanga Wildlife  Sanctuary in Kerala and Bandipur National Park in Karnataka. 

KILLER HIGHWAY 

National Highway NH 766 connecting Kozhikode in Kerala with Kollegal in Karnataka via Mysore  runs through a highly protected wildlife habitat of Muthanga Wildlife Sanctuary in Kerala and  Bandipur National Park in Karnataka, home to 140 Tigers, 1600 Elephants and 25000 Deer1. 24.5kms  of this arterial highway runs through the core area of the sanctuary out of which 19.7 kms are in the  state of Karnataka and the rest in the state of Kerala. The other portion of the road ad-measuring  10.10km also runs through the buffer zone of the sanctuary – 4.5 KMs in Karnataka and 5.6 KMs in  Kerala. This means a total of 34.60 KMs of this highway is running through the wildlife habitat and  an ecologically fragile area. The project officer of the Bandipur Tiger Reserve had prepared a report  in 2009 regarding the number of animals getting killed or injured by vehicles at night. An inspection  had found that 44 vehicles were on this 19 km stretch in a span of 30 minutes. The report also said  that night traffic would affect behaviour biology such as breeding and parental care of animals. It can  disrupt their life cycle and make them stray to human habitats. These reports are extremely disturbing  as it is deadly to the wildlife as well as people living in small settlements near the forest as these  animals’ ramble around their backyards. Considering all those fatalities the Highway brings to nature, the District Administration of Chamrajnagar, Karnataka, in August 2009, exercising the Central  Motor Vehicles Act along with the Karnataka Motor Vehicles Rules, banned traffic from 9 P.M. to 6  A.M whereby vehicles were stopped on both ends of the stretch and allowed resumption of traffic  only in the morning2. At this point, it is also important to advert to field visits and recommendations  of the National Tiger Conservation Committee. As per the studies, the road passing through the core  and Buffer zones of Tiger Conservation areas ought not to be permitted at all. Under section 38V in  subsection (4)(i) of the Wildlife (Protection) Act, 19723added by the amendment Act of 2006  follows4: –

i) Core or critical Tiger habitat areas of National Parks and Sanctuaries, where it has been  established, on the basis of scientific and objective criteria, that such areas are acquired to be kept  as inviolate for the purposes of tiger conservation, without affecting the rights of the scheduled  tribes or such other forest dwellers, and notified as such by the State Government in consultation  with an expert committee for the purpose.

PROTEST ON THE BAN 

The case was brought in front of the Hon’ble High Court of Karnataka which upheld the night traffic  ban pointing out that the interest of protecting wildlife is important and no less important is the need  to protect the interest of the public, who are commuters and traders. The state of Kerala, by a special leave petition, approached the Hon’ble Supreme Court to lift the ban. Observing the facts, the Hon’ble  Supreme Court upheld the decision of the Hon’ble High Court of Karnataka and also pointed out that  a complete closure of the NH 766 can be implemented if necessary5. 

Complete closure of NH 766 will adversely affect one of the major hill stations and also a developing  district in Kerala, Wayanad. The Kollegal-Mysore-Kozhikode road had existed for 200 years. It was  declared a National Highway in 1989, then named NH 766 with 150 odd registered resorts and  hundreds of homestay facilities, Wayanad has emerged as a major hill station, catering to tourists  from neighbouring states. Although, they exist as a great model for the implementation of sustainable  and environment friendly development in Kerala and a place where still Human-Wild coexistence is  positive. The closing of the NH will result in the serious decline of the economic conditions of  Wayanad resulting in poverty and other major economic problems. Sulthan Bathery taluk of Wayanad  will exhibit the first signs of the closure of the NH as it is the place that shares boundaries with  Bandipur National Park. The livelihood of the people of Sulthan Bathery is dependent on Gundlupet,  in Karnataka, where they have cultivation lands and other trading activities. People of Gundlupet also  depend upon the daily wage jobs in Sulthan Bathery. 

REASONABLE SOLUTION 

The ban of traffic, between 9pm and 6am, through the NH, imposed by the Hon’ble High Court of  Karnataka was the biggest step taken by the State to protect the habitat in the National Park.  According to the Bandipur Tiger Reserve project director, animals’ fatalities have come down  significantly. Before the ban the stretch was reporting 100 odd animals’ deaths in accidents, but now  it has come down to 5 to 10. If the highway is opened, fatalities would increase manifold. So, it is  important to maintain the ban. The State should strive to promote the welfare of its citizens as per the  Directive Principles of State Policy, complete closure of the NH as per Supreme court will adversely  affect the residents of the district of Wayanad. They will lose their livelihood and may also lead to the  destruction of one of the core tourism centres of Kerala. State also gives prime importance for the  conservation of forests and wildlife, which makes the State liable to safeguard its vast biodiversity. Complete closure may solve the latter as it amounts to a major step for the conservation of wildlife but drives the people to the verge of poverty. Lifting the ban, however, solves the problem of the  former, i.e. the welfare of the people will be promoted as more opportunities of job, trade and tourism  flourishes, but on the other hand the wildlife and forest will suffer serious damage from the increasing  human interference. As there exists a dilemma between the conservation and development or welfare  of the people, the best solution will be to maintain the status quo. Animals in the National park and  Wildlife Sanctuary have adapted to the timing imposed by the Karnataka High Court which is  reflected in the decline of the animal fatality rate. Also, as the transportation between states is  partially banned, 9pm to 6am, it does not pose a threat to the livelihood of the people living in both  states.

CONCLUSION 

The ban of traffic, between 9pm and 6am, through the NH 766, imposed by the Hon’ble High Court  of Karnataka was the biggest step taken by the State to protect the habitat of the National Park.

However, complete closure of the NH as per Supreme court will adversely affect the residents of the  district of Wayanad. As far as the facts and reports of experts are analyzed, the most appropriate  decision is to maintain the status quo, i.e. to uphold the existing night traffic ban between 9pm to 6am  which will result in sustainable development in both States.  

The Environment has become a major concern not just in India but all around the world. Many  Governmental and Non- Governmental organisations have come up with various measures to protect the endangered environment. Environment law in India is growing and evolving year by year. The  right to a healthy environment under Article 21 of the Constitution of India, mandates the State and  the citizen alike to protect and improve the environment. Emphasis on the concept of sustainable  development continues to find its well-deserved place in judicial reviews and environmental decision  making. The importance laid by the courts on sustainable use of natural resources is remarkable.  Sustainable development is the future we want for all. It offers a framework to generate economic  growth, achieve social justice, exercise environmental stewardship and strengthen governance. Every  state should strive to achieve social justice and generate economic growth without destroying the  environment to let all the living creatures on the planet lead a harmonious life.

CITATIONS

1. Satheesh Kumar, N. S, Forest resource conservation and management for sustainable development a case study of Bandipur, Shodhganga (University of Mysore) (Oct 11, 2020, 02:13 PM), http://hdl.handle.net/10603/136216. ↩
2. Night traffic ban on NH-766: Kerala CM seeks Gadkari’s intervention, TI Express (, Oct 11, 2020, 08:08 PM), https://indianexpress.com/article/india/night-traffic-ban-on-nh-766-kerala-cm-seeks-gadkaris-intervention-6046310/. ↩
3. The Wildlife (Protection) Act, 38V, 1972. ↩
4. The State of Kerala v. L. Srinivasa Babu & others, SC SPL No.13838/2010. ↩
5. Supra note 4. ↩
6. M. C. Mehta v. Union of India, AIR 1987 SC 965. ↩

REFERENCE 

1. The Indian Express. “Night Traffic Ban on NH-766: Kerala CM Seeks Gadkari’s Intervention,” October 2, 2019. https://indianexpress.com/article/india/night-traffic-ban-on nh-766-kerala-cm-seeks-gadkaris-intervention-6046310/.
2. Accessed October 11, 2020. https://bandipurtigerreserve.in/.
3. The State of Kerala Transport vs L. Srinivasa Babu And Ors. on 7 August, 2019.” Accessed October 3, 2020. https://indiankanoon.org/doc/182926637/.
4. Manual, Universal’s Legal. Environment Laws. S.l.: Universal Law Publishing – An imprint of LexisNexis, 2015.
5. “M.C. Mehta & Anr. Etc vs Union Of India & Ors. Etc on 17 February, 1986.” Accessed October 12, 2020. https://indiankanoon.org/doc/1599374/.


Constitution

REDEFINING DEMOCRACY; RAJASTHAN, A CASE STUDY.

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Jasmine Joseph

Student, Government Law College, Kozhikode

Introduction

The former Law Minister of India and the senior advocate Kapil Sibal had scathingly criticised and said that “the country is witnessing a new definition of democracy ” 1 , when the Supreme Court ( three-judge bench led by Justice Arun Mishra) rejected Speaker’s plea to stay Rajasthan High Court’s proceedings by deferring the hearing to a future date connected with Anti-Defection Law.

The Showdown

The Speaker of Rajasthan Government C.P. Joshi issued notices to the dissident ruling party Members of Legislative Assembly (MLAs),  Mr. Sachin Pilot and 18 others on 14th   July 2020, on the basis of the absence of Legislators from successive Congress Legislative Party (CLP) meetings and an alleged conspiracy to bring down the ruling Government. The move was aimed to disqualify the dissident members of the Rajasthan Legislative Assembly. The very next day, Mr. Sachin Pilot filed a petition before the  High Court of Rajasthan, challenging the disqualification notice, stating that the Speaker’s notice was served merely for disagreeing with the decisions and policies of some leaders outside the Assembly. In their writ petition filed before the High Court,  19 MLAs sought quashing of notices, stating that the legislators had neither given up their membership of the house nor failed to attend the two CLP meetings, rendering them liable for disqualification on the ground of defection.

Transfer to the Division Bench

The case has been referred to the Division Bench, as the petitioner’s counsel Mr. Harish Salve wanted to challenge the constitutional validity of some provisions of the law i.e. the Rajasthan Assembly Members (Disqualification on the grounds of the changing party) Rules, 1989, and clause 2(1)(a) of the Tenth Schedule of the Constitution, dealing with disqualification on the ground of defection. They contended that the notices issued amounted to an abuse of powers vested in the Speaker as per the Tenth Schedule and an attempt to stifle freedom of speech.2

The Intention of the Ruling party

It was alleged that the ruling party was trying to disqualify the dissident MLAs so that the majority mark of the 200 member assembly would be lowered, making it easier for Chief Minister Ashok Gehlot to win a floor test.

Turnaround

Whereas, on 21st of July 2020, the Division Bench of the High Court of Rajasthan reserved its verdict till July 24th of 2020 and asked the  Speaker not to take a decision on the disqualification notice issued by him. The Ruling Party raised some questions on media platforms about the ruling of the High Court. They were of the opinion that the High Court’s direction is an  encroachment upon the powers of the Speaker.

Thereafter, The Speaker C.P. Joshi moved to the Supreme Court against the Rajasthan High Court’s order.  The main contentions were as follows:-

  1. High Court’s intervention is premature as he was yet to decide the issue of disqualification, and had only issued notices.
  2. He pointed out the Supreme Court decision on the Kihoto Hollohan case 1992, specifically barring any judicial intervention prior to the decision-making stage.
  3. The Supreme Court had said that no interference was permitted in the interim and the option of judicial review of the final decision could be availed on limited grounds only.
  4. The High Court could not interfere in the Speaker’s designated power to decide questions of disqualification under the Anti-Defection Law. 
  5. Judicial review cannot cover proceedings of the legislature under Article 212 of the Constitution (Courts not to inquire into the proceedings of the legislature).

Rejection of Speaker’s Plea to Stay High Court Proceedings

The dissidents filed a caveat petition in the apex court.  But the Supreme Court ( three-judge bench led by Justice Arun Mishra) rejected Speaker’s Plea to stay High Court proceedings by deferring the hearing to a future date and asked a more pertinent question to the senior advocate Kapil Sibal. “ Whether a legislator’s voice of dissent could be shut down with the threat of disqualification”. Further, the Judge raised a question whether expressing dissent amounted to “voluntarily giving up of the party membership under paragraph 2(1)(a) of the Tenth Schedule of the Constitution and invite Anti-Defection proceedings” and “these were Legislators elected by the people and the larger question was about democracy and how it would survive like that”.

Mr. Sibal argued that, if those MLAs had to voice their dissent, they were free to do so in  party forums. He further said that the dissident legislators had not been attending the party meetings and were trying to destabilise the government.3 The dissidents were sitting incommunicado in a hotel in Haryana demanding a floor test in the media. He told the court that the Speaker had given them a chance to respond to the notice, but they chose to hole up in a hotel instead. Mr. Sibal also questioned the validity of judicial intervention prior to the decision-making stage. He pointed out that the five-judge bench of the Supreme Court headed by Justice M.N. Venkatachaliah in Kihoto Hollohan v Zachillhu and others 4  case 1992, had clarified that judicial intervention prior to the decision-making stage is improper.

But the arguments were futile. The Supreme Court refused to stay the High Court order.

Sharp Criticism

In a sharp criticism of the Rajasthan High Court’s order to maintain the status quo in the disqualification proceedings against dissident legislators, Mr Sibal said that the country is witnessing a new definition of democracy. He criticised that if High Courts started ignoring orders passed by a Constitution Bench of the Supreme Court, then the lawyers could well take off their robes.

In a strongly-worded statement, he asked that, if Governors were going to flout the law and if  courts were not going to accept precedent, why  these institutions were set up by our forefathers.  He claimed that the Rajasthan High Court  had in effect countermanded an order of the five-judge bench of the Supreme Court that made it clear that the court could not interfere in a disqualification petition prior to the speaker’s decision.

The Tenth Schedule was inserted in the Constitution of India by the Constitution (Fifty-Second Amendment) Act, 1985 which came into force on 01.03.1985 and is popularly known as the Anti-Defection Law. The Statement of Objects and Reasons says that this amendment in the Constitution was made to combat the evil of political defections which has become a matter of national concern and if left unchecked, is likely to undermine the very foundations of our democratic system and the principles which sustained it.

Conclusion

The five-judge bench of the Supreme Court headed by      Justice M.N. Venkatachaliah in Kihoto Hollohan v Zachillhu and others 5, had indeed clarified not to have a judicial intervention prior to the decision-making stage. It also  highlighted the aura of impartiality  the Speaker’s office has and the high pedestal on which it is placed by the Constitution. 

But the haste in convening the Assembly session and the oblique motive to take advantage of Anti-Defection law created such chaos. The situation could have been avoided. When the case became infructuous, the Speaker requested the Supreme Court to withdraw the  plea challenging the Rajasthan High Court’s interference and the Honourable Supreme Court had allowed it. But the above case has added a new dimension and reveals a new perspective of judicial mechanism.

Citations 

1. Special Correspondent, Governors are not protecting rule of law: Sibal, T. HINDU (Aug. 17, 2020, 10.05 PM),
https://www.thehindu.com/news/national/governors-are-not-protecting-rule-of-law-           Sibal/article32186107.ece ↩
2. Prithviraj Meena v. The Honourable Speaker of Rajasthan CW/7451/2020. ↩
3. Supra note 1.↩
4. Kihoto Hollohan vs Zachillhu And Others 1992 SCC Supl. (2) 651.↩
5. Supra note.↩

References

THE CONSTITUTION OF INDIA [As on 1 st April 2019], GOVERNMENT OF INDIA, MINISTRY OF LAW AND JUSTICE.