Tag Archives: Indian 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, 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/.


aviation law

Impact Of The Pandemic In India’s Aviation Sector; A Brief Analysis

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Sivadath Madhu Menon

Government Law College, Thrissur

N. Arun Vaidyanath

School of Law, Sastra University

The Novel Coronavirus COVID 19, which was declared a pandemic by the World Health Organisation (WHO) in March 2020 has caused huge damage to human health and the global economy. It has caused a great depression to the World Economy and affected all kinds of people from rags to riches without sparing anybody. Strict quarantine protocol and travel ban have been imposed by the government to check the phenomenal growth of the global pandemic. On 24th March 2020, The Government of India headed by the Prime Minister Mr Narendra Modi ordered a 21 days nationwide lockdown which restricted the movement of 1.3 billion people of the country and almost all economic activities in the country, which resulted in a loss of 7-8 lakh crore for the economy1.

The imposition of a travel ban resulted in the suspension of non-essential public and private transport. India, which is considered the fastest-growing aviation market in the world according to the International Air Transport Association (IATA), is suffering from huge economic loss due to the lockdown. According to reports2The Aviation sector in India has suffered a loss of 3.3 to 3.6 billion USD in the first quarter of this financial year and the average loss per day stands at 75 to 90 crores per day. India is the world’s third-largest civil aviation market in terms of passengers, domestic and international combined. The depth of the economic crisis caused by the COVID 19 is massive all over the globe and India is no exception. Thousands of people get laid off everyday and many others are working without remuneration. In this difficult time, the approach of the airline companies towards their customers whom they claim to treat as their kings is very disappointing. The impact of the pandemic is not limited to the aviation industry alone, but to the entire industrial world. Other industries do not enjoy the privilege of holding on to the money rightfully due to the customers. but the Airline companies do enjoy the right and privilege of keeping their refund deductions with themselves. This does not mean that in such situations or circumstances they have the right to keep the money which is fully entitled to the customer as a credit shell for the time frame fixed by the airline companies themselves. In the present scenario, many people who have booked their Air tickets before the lockdown and during the lockdown are expressing their anxieties about the refund policies of their airline tickets by the companies. The Airline companies are transferring the amount which is due to the customers into their credit shell3 account which should be used within the time specified by airline companies.

The office memorandum4 dated 16 April 2020, directs the airlines to make a full refund to the customers who have booked their tickets during the initial lockdown. Further to this, the Central Government extended the lockdown from 15th April 2020 to 3rd of May 2020, and another order was issued by the Directorate General of Civil Aviation (DGCA) to all the Airlines to fully refund the money to those who have booked their tickets during the 2nd phase of lockdown. Even though passengers are the ones who have to decide on the transfer of money to the credit shell, the Airlines are transferring the money to the credit shell account of the customers without their consent. Airline companies are using this as an advantage and are transferring the amount to the customers’ credit account thereby ensuring that they do not lose any income from a ticket booked for a journey during the lockdown. Pursuant to the impugned notification issued by the DGCA, only the passengers falling in the first and second phase are entitled to a full refund of air ticket amount upon cancellation and the passengers in the third and fourth phase are arbitrarily excluded from availing the refund of air ticket amount from their respective airline companies. Moreover, on cancellation of the ticket by passengers falling in the third group contrary to the full refund, the full ticket amount goes into the credit shell of the passenger which he/she can avail within a period of 1 year. It is worth mentioning that the credit shell accounts are not transferable, i.e. only the same passenger can use it and further, the credit shell would elapse within a period of one year.

Responding to the petitions filed by Pravasi Legal Cell and others5 which sited that the approach of making credit shell mandatory by refusing the refund is in clear violation of the Civil Aviation Requirements Act, 2008 issued by the Directorate General of Civil Aviation (DGCA) which states that “The option of holding the refund amount in credit shell by the airlines shall be prerogative of the passenger and not a default practice of the airline”. The DGCA came up with a few proposals6 which were later accepted by the Supreme Court which mandates that the passengers who had made their booking during the lockdown for a travel between 24th March 2020 and 24th May were entitled to a full refund within three weeks if the airline has received the payment in the aforementioned time frame, if the tickets were booked through a travel agent in such cases the full refund was to be credited to the travel agent’s account which must be immediately transferred to the passenger’s account and for the tickets booked for a journey after 24th May 2020, the refund will be made according to the guidelines mentioned in the Civil Aviation Requirement Act, 2008. The Supreme Court bench comprising Justices Ashok Bhushan, Subhash Reddy and M R Shah further stated that airlines which are facing financial constraints may offer a credit shell which is valid up to 31st March 2021 and must refund the same to the passengers if it remains unused.

Conclusion

The above-mentioned approach of the airline companies towards their7 passengers is unfair and the  method of classifying passengers based on their date of booking and  date of travel vide office memorandum dated 16th April by the DGCA violates the basic fundamental right of equality available in the  Indian Constitution.  Article 14  of the constitution states “Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Every person has the  right to equality which means that  the state has to treat “equals equally”, This, sadly, is not the case when Airlines are treating the customers  unequally. The recent proposal of the DGCA has indeed provided relief for the passengers and the Airlines which are facing financial constraints during these uncertain times.

Citations

1. World’s Biggest Lockdown May Have Cost Rs 7-8 Lakh Crore to Indian Economy, Economic Times (Apr. 13, 2020, 09.00 PM), https://economictimes.indiatimes.com/news/economy/finance/worlds-biggest-lockdown-may-have-cost-rs-7-8-lakh-crore-to-indian-economy/articleshow/75123004.cms. ↩
2. Effect of Novel Coronavirus (COVID 19) on Civil Aviation: Economic Impact analysis, ICAO (Oct. 10, 2020, 9.30 PM), https://www.icao.int/sustainability/Documents/COVID-19/ICAO_Coronavirus_Econ_Impact.pdf ↩
3. GoIndigo, Know Your Credit Shell, Indigo Airlines (Oct. 9 , 2020, 11.00 PM), https://www.goindigo.in/information/credit-shell.html#:~:text=1.What%20is%20a%20credit,by%20us%20against%20your%20PNR. ↩
4. Usha Padhee, Office Memorandum, Directorate General of Civil Aviation (Oct. 9, 2020, 11.15 PM), https://dgca.gov.in/digigov-portal/jsp/dgca/homePage/viewPDF.jsp?page=topHeader/COVID/Circular%2016.4.2020.pdf ↩
5. Pravasi Legal Cell V. Union of India ICL 2020 (10) SC 457. ↩
6. Arpan Chaturvedi, Supreme Court Accepts DGCA Proposal for Flight Ticket Refunds, Bloomberg Quint (Oct. 9, 2020, 11.50 PM), https://www.bloombergquint.com/law-and-policy/supreme-court-accepts-dgca-proposal-for-flight-ticket-refunds. ↩
7. INDIA CONST. Art 14. ↩

References

  1. Constitution of India.
  2. Directorate General of Civil Aviation, Government of India (https://dgca.gov.in/digigov-portal/).
  3. International Civil Aviation Organization (https://www.icao.int/Pages/default.aspx).

Human Trafficking, International Law

TRAFFICKING IN PERSONS AS A TRANSNATIONAL ORGANIZED CRIME

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Adv. Surya Menon K

Introduction

The forward pace of globalization is greatly influencing the phenomenon of organized crime. Transnational organized crimes syndicates take advantage of market liberalization, relaxed border controls and internet facilities and carry out their nefarious activities in multiple countries. The United Nations Convention against Transnational Organized Crime, 2000 (UNTOC) defines the phenomenon in Article 3 (2) as: 

  1. The offences committed in more than one state;
  2. It is committed in one State but a substantial part of its preparation, planning, direction  or  control takes place in another state;
  3. It is committed in one state but involves an organised criminal group that engages in criminal activities in more than one state; or
  4. It is committed in one state but has substantial effects in another state. 

The activities of organised criminal groups are not only interrelated, but they are also connected  to political developments such as weak states, economic conditions, the open or close nature  of markets and sanctions; socio-cultural developments such as the significance of clans, families or other groups1.

Human Trafficking as a Transnational Organised Crime

Human trafficking and exploitation of human beings and their vulnerabilities has evolved as one highly lucrative facet of transnational organised crime.

Owing to the multitude of right violations, their severity and scale, human trafficking is often  considered as a modern form of slavery or slave trade and the very antithesis of the Universal  Declaration of Human Rights, 1948 (UDHR). Trafficking follows in the tracks of poverty and inequality, the lack of educational opportunity and access to health-care, gender discrimination  including gender-based violence, or racial inequality. Accordingly, trafficking occurs worldwide, although most victims are trafficked from poor countries to richer regions. Mostly, several related offences accompany the act of trafficking such as – breaches of immigration laws, document forgery, corruption, tax evasion. These are coupled with the offences directed at the individual such as – coercion or threats, extortion, aggravated sexual assault or even murder2.

According to Article 3(A) of Trafficking Protocol, 2000: 

“Trafficking in persons shall mean the recruitment, transportation, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse, of power or of a position of vulnerability or giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.

The human trafficking possesses a threat to the legal framework, integrity and the security of nations. It has grave consequences for the safety, welfare and human rights of its victims.  Organised crimes syndicates mobilize people to in turn smuggle more people for working as migrant workers, who are then exploited as forced labourers and slaves and women victims are forced into prostitution. They are also used for trafficking drugs and arms, thereby weakening the economic and legal structure of countries.

Forms of Human Trafficking

There are various forms of trafficking depending upon the purpose for which the people are trafficked3.

  1. Trafficking for forced and bonded labour
  2. Trafficking for forced criminal activities
  3. Trafficking for sexual exploitation
  4. Trafficking for removal of organs
  5. Trafficking of children by adoption for slavery and sexual abuse

The victims are often trafficked by trickery and deception, mainly through false advertisements offering high-paying employment, educational opportunities, matchmaking services, mail order bride agencies, usually involving a relative, a boyfriend or a friend of a friend. Sometimes victims are abducted from orphanages. Once they are recruited into sexual slavery trade, their identification documents are confiscated and they are broken in. Then they are forced to work in red light areas, massage parlours, brothels and strip clubs and are coerced to blend in with those engaged in prostitution by choice. Many victims are auctioned off on the internet through sex websites, escort services and virtual brothels. Victims that are too ill or considered too old are simply discarded4.

Children are trapped in sexual servitude as they are easy prey and less able to escape exploitation. Children are traded for adoption purposes. Older children are bought or lured by offering shelters, food or toys and infants are often kidnapped, stolen or taken away with the help of hospital or other institutional staff. Women are trafficked to sell off their children. The so-called brides are ordered from other countries often from Asia to Europe, with the hidden intention of getting them pregnant and obtaining their children for sale5. Anecdotal evidence from social services in some of these countries also shows that women with their children are ordered for marriage and the new husband adopts children with the real purpose being to sexually them6.

Trading in children for adoption – whether internationally or in the domestic market is more labour intensive and more complicated but it also brings considerably higher profits. Child trade usually takes place in undeveloped or developing countries. The main reasons for the  same are various problems like to economic necessity, gender discrimination, lack of proper  education facilities, social exclusion of the community, a weak system of protection, or an inefficient legal system. Wars, natural disasters, globalization are considered to be other external factors in addition to poverty that is prevalent in such nations7.

International Legal Framework for Combating Human Trafficking

Universal Declaration of Human Rights adopted by the United Nations in 1948, acknowledges that the recognition of inherent dignity and of equal and inalienable rights of all the members of the human family is the foundation of justice, equality, freedom and peace in the world.

Palermo Convention or UNTOC, 2000 is designed to be the premier global crime suppression convention in the fight against organised crime. The three Protocols – The Human Trafficking Protocol, The Migrants Smuggling Protocol and The Firearms Protocol deal with specific crimes stipulated as sufficiently serious to justify the application of the UNTOC’s regime for international cooperation and many of the provisions of the UNTOC are specifically designed meant for the implementation of the Protocol. This is the first global legally binding instrument with an agreed definition on ‘trafficking in persons’.

The UN Protocol, to Prevent, Suppress and Punish Trafficking in Persons, Especially Women  and Children, 2000 is the International legal instrument to address the crime of human  trafficking, particularly in women and children. This instrument is considered to be a law  enforcement Protocol addressing aspects of Prevention, Prosecution and Protection. The  element of ‘consent’ is irrelevant under this Protocol as it reflects the common understanding  that individuals cannot give consent to be tortured , abused or  exploited8.

Constitutional and other provisions in India

According to The National Crime Records Bureau (NCRB), every 8 minutes, a child goes missing in our country. According to the Ministry of Women and Child Development, 19,223 women and children were trafficked in 20199. India is considered to be the greatest hub of this crime in Asia. Last year India has been coined as, ‘The world’s most dangerous country  for women’ ahead of Afghanistan, Syria and Saudi Arabia, according to a poll by the Thomson  Reuters Foundation, which surveyed 548 experts on six different indices including health care, discrimination, cultural traditions, sexual & non-sexual violence and human trafficking10. But the National Commission for Women and Children rejected it outright, pointing out that rape, harassment, human trafficking and other forms of violence against women appeared to have  risen in India because more cases are being reported driven by public outrage11.

India being a signatory to many International Conventions like Convention on the Elimination  of All Forms of Discrimination Against Women, 1979 (CEDAW), Convention on the Rights  of the Child, 1989 (CRC), Trafficking Protocol, Beijing Rules and Palmero Convention, a duty  is cast upon the government to adopt the provisions of these Conventions into Domestic Law.

Looking into the provisions of our Constitution, we can see that human trafficking is punished and protection from such exploitation is guaranteed under Part Three as Fundamental Right.  Article 23 of the Indian Constitution guarantees protection against exploitation, prohibits trafficking in humans and all forms of forced labour and makes this punishable under law. Article 24 prohibits child labour and protects children below 14 years working in factories, mines or other hazardous employment.

Under Criminal Law (Amendment) Act, 2013, Sections 370 & 370A were introduced in Indian Penal Code, 1860 (Act 45 of 1860). Section 370 defines trafficking of persons, which largely replicates UN protocol’s definition, Section 370A explains the exploitation of trafficked persons. The punishment varies according to the nature of the offence. It varies from seven years to life imprisonment which may mean the person’s remaining years of natural life.

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 201812, which was passed by Lok Sabha in 2018, is not yet passed in Rajya Sabha till date. There are provisions for investigation of all types of trafficking, rescue, protection and rehabilitation of trafficked victims in the prescribed Bill. The Bill also classifies certain purposes of trafficking as aggravated forms of trafficking, which attracts a higher penalty. The penalties set for several offences are higher than the existing punishments in the laws prevailing.

Conclusion

We can conclude by reiterating the fact that human trafficking is a form of modern-day slavery. Here the victims are often considered as commodities. It leads to severe violation of human rights and deprivation of human dignity. The UN identified the ‘Three-P-Strategy’ – ‘Prevention, Protection and Prosecution’ as a governmental duty to take preventive measures, protection steps and prosecution to curb the crime. The ‘Three-R-strategy’ – ‘Rescue, Rehabilitation and Reintegration’ as identified by the UN is victim-oriented and this needs the concerted effort of local and international organizations for effective implementation13.

Citations

1. Joshua Nathan Aston, Trafficking of Women & Children (1st ed. Oxford University Press , 2016). ↩
2. UNDOC, Assistance For The Implementation Of The ECOWAS Plan Of Action Against Trafficking In Persons, UNITED NATIONS (Sep. 20 2020 11.00 AM), https://www.unodc.org/documents/human-trafficking/ecowas_training_manual_2006.pdf ↩
3. Interpol.int, Types Of Human Trafficking. Interpol (Sep. 20 2020 11.00 AM), https://www.interpol.int/Crimes/Human-trafficking/Types-of-human-trafficking/ ↩
4. Supra note 2, P.1 ↩
5. Supra note 2. ↩
6. Supra note 2 ↩
7. Supra note 2. ↩
8. Hauck, P. and Peterke, S. ed.. International Law And Transnational Organised Crime (1st ed. Oxford University Press,  2016). ↩
9. Lawnn.com, Human Trafficking In India: Legal Protection And Laws, LAWNN (Sep. 20 2020 11.00 AM). https://www.lawnn.com/human-trafficking-india/. ↩
10. Foundation, T., The World’S Five Most Dangerous Countries For Women 2018, T.R Foundation (Sep. 20 2020 11.30 AM). http://poll2018.trust.org. ↩
11. Human Trafficking in India, Dianova (Sep. 20 2020 11.40 AM), https://www.dianova.org/opinion/human-trafficking-in-india/. ↩
12. MWCD,. The Trafficking Of Persons (Prevention, Protection And Rehabilitation) Bill, 2018, PRSIndia (Sep. 20 2020 11.55AM), https://www.prsindia.org/billtrack/trafficking-persons-prevention-protection-and-rehabilitation-bill-2018. ↩
13. Supra note 9, P.4. ↩