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Archives for : November2017

Dissenting judgments ensure that the Constitution is a living, breathing document

We must celebrate the tradition of dissent that continues to flourish at the Supreme Court. A dissent is not only an “appeal to a future intelligence”, but a sign of what is possible: if one judge can be convinced today, then tomorrow, perhaps two, or three, or even four might be.

A dissent is a crucial reaffirmation of fundamental rights and constitutional values at the moment when the Supreme Court, the guardian of the Constitution, appears to have abandoned them
A dissent is a crucial reaffirmation of fundamental rights and constitutional values at the moment when the Supreme Court, the guardian of the Constitution, appears to have abandoned them (Getty Images/iStockphoto)

“A dissent in the court of last resort,” wrote Justice HR Khanna, quoting the great American Judge, Charles Evan Hughes, “is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” But this was no ordinary time, and Justice Khanna’s dissent no ordinary dissent. In 1976, at the peak of Indira Gandhi’s Emergency, four Judges of the Supreme Court had just held that even the right to life was stood suspended during a state of Emergency. The lone dissenting voice in the notorious Habeas Corpus Case was Justice Khanna’s. It cost him the Chief Justice-ship of India, and the rest of his judicial career.

Three months ago, a nine-judge bench of the Supreme Court held that privacy is a fundamental right under the Indian Constitution, and in doing so, also held that Habeas Corpus had been wrongly decided, and that Justice Khanna had been correct. Forty-one years later, the intelligence of a future day had finally prevailed.

In his concurring opinion in the Privacy Judgment, Justice Rohinton Nariman spoke of the “three great dissents” in Indian constitutional history. Apart from Justice Khanna’s dissent in Habeas Corpus, there was Chief Justice Subba Rao’s dissent in Kharak Singh vs State of UP (1962), holding against five of his brother judges that the Constitution guaranteed a fundamental right to privacy, and that police surveillance regulations were entirely unconstitutional. The third was Justice Fazl Ali’s dissent in AK Gopalan vs State of Madras (1950), one of the earliest judgments of the Supreme Court. The Gopalan majority had held Article 21 of the Constitution, which stipulated that “no person shall be deprived of his life or personal liberty except according to procedure established by law”, provided only a narrow protection against lawless infractions of bodily integrity and personal freedom by the State. Not so, said Justice Fazl Ali, arguing instead that the phrase “procedure established by law” required that deprivations of life or personal liberty must conform to standards that were themselves just, fair, and reasonable.

Justice Fazl Ali’s dissent in AK Gopalan became law two decades later in the bank nationalisation case, while Justice Subba Rao’s dissent in Kharak Singh had to wait 55 years. Perhaps unsurprisingly, each of the “three great dissents” were on vital questions of civil rights. The majority judges ruled to preserve, entrench, and even expand State power against the individual, while the dissenting opinions sought to constrain what the State could do to the individual and to her freedom. To the judges who wrote those dissents, it must have been a lonely enterprise, disagreeing with their colleagues on the bench; and it must have carried more than a hint of futility, to write for an imagined future audience which might never exist. None of the three judges lived to see their dissents resurrected, accepted, and even celebrated.

But that is exactly why we must celebrate the tradition of dissent that matured and continues to flourish in the Supreme Court. While the majority opinion lays down the law, a dissent allows us to imagine an alternative future. A dissent is not only an “appeal to a future intelligence”, but a sign of what is possible: if one judge can be convinced today, then tomorrow, perhaps two, or three, or even four might be. And, in cases such as Habeas Corpus, AK Gopalan, and Kharak Singh, a dissent is a crucial reaffirmation of fundamental rights and constitutional values at the moment when the Supreme Court, the guardian of the Constitution, appears to have abandoned them.

And that is why, perhaps, even those dissents that are not resurrected nonetheless remain etched in memory, often more strikingly than the majority opinions. Chief Justice Sinha’s dissent in the Dawoodi Bohra Case (1962), a passionate defence of the individual’s right not to be arbitrarily excommunicated from his community, is still a tour de force, drawing together the Constitutional prohibition of untouchability and ideas of cultural pluralism. Justice Lakshmanan’s dissent in Acharya Avadhuta (2004), allowing the Ananda Margi sect to perform the tandav dance, is perhaps the best defence in our constitutional history of the right of individuals and communities to determine for themselves what their religion means to them, and demands of them. And so it goes.

In Jewish cultural history, there is a tradition of prophets who appear in times of desperate need, and warn their people that they are walking on a wrong path, one that will only end in ruin and devastation. Our constitutional history has had its own share of prophets, who have expressed themselves eloquently and powerfully through their dissenting opinions. The dissenting tradition, is perhaps, the most important tradition that we have, indispensable to keeping the Constitution alive, and a thing of flesh, blood, and dreams.

Gautam Bhatia is an advocate in the Supreme Court

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NHRC directions in case of newborn’s death after falling into dustbin in Maharani Hospital Jagdalpur

JSA had submitted a complaint to NHRC, along with the fact finding report of Human Right Law Network and all the media articles related to the case.of Soni Baghel

The Demands were

i) Monetary compensation of Rs. 10 lakhs to the family and a written apology by the State Government;
ii) Registration of FIR under section 304 IPC against the doctor and nurse on duty for their criminal medical negligence;
iii)Outcome of the enquiry/action undertaken by the State Government be made public;
iv) State Govt. to set up a Grievance Redressal Scheme where such victims can complain;
v) State Govt. to take adequate steps to ensure quality health care at all Government hospitals/Centres.

The state government in its August 2017 response to the NHRC quoted the enquiry report of the Additional Collector, Jagdalpur that stated, among other things, that the hospital management is responsible for the child falling into the dustbin.

The NHRC direction states: “Commission has perused the above report. The case presents a very sorry state of affairs. The State Government has not intimated what action, if any, has been taken on the report of the SDM which makes a pathetic reading. This is a clear case of gross violation of the human rights of the lady who had to undergo such pain and neglect whilst being in immense labour pains. On what counts the suspension of Doctor Jadhav has been revoked and what action has been or is being taken against the two staff nurses and one Ayah for their utter dereliction of duties is not intimated. Nothing has been stated as to what preventive measures have been or are being taken to improve the conditions of the Maternity Centre of the Maharani Hospital and per se all such centres across the State. When the SDM made certain recommendations, appropriate follow up ought to have been taken and intimated to the Commission. Let a notice under section 18 of the PHR Act be issued to Principal Secretary, Department of Health & Family Welfare, Government of Chhattisgarh to show cause as to why an amount of Rs.1,00,000/- as monetary compensation be not paid to the lady victim for serious violation of her human rights at the hands of doctor the and two staff nurses on duty in the Maharani Hospital. Action taken on the report of the SDM against the criminal negligence of medical personnel be also intimated. It should also be informed as to what action has been taken by the State Government to prevent recurrence of such incidents in future. Response within four weeks”.

 The case details below


Soni Baghel (yellow sari) and Champa Kashyap (green sari), her mitanin at home in Billori village, Jagdalpur district, six months after Soni’s baby died.

Billori, Chhattisgarh: As she went into labour, Soni Baghel, who lives in one of Chhattisgarh’s poorest districts, wasn’t especially worried. She had delivered two babies earlier without any problem.  By her side, in the state-run health hospital was Champa, her mitanin (local women entrusted by the government to ensure the welfare of women and children in the village; they are paid  Rs 600 per healthy pregnancy).

When Soni was in the delivery room, Champa began to panic.  Nurses and doctors, she says, ignored pleas to stop talking on their phones or to each other and attend to her patient.

Champa says she began massaging Soni’s head to ease the excruciating pain. And before she could intervene, a baby girl emerged from Soni’s womb.  Without a pair of hands to receive her,  the baby’s umbilical cord snapped;  she slipped straight into a dustbin at the foot of the delivery table with a heart-stopping thud.

Champa says that the screams that followed brought a stream of doctors. They quickly lifted the baby out, and promised that nothing would happen to the child. She also says that after they cleaned and swathed the infant and brought her back for her first feed, the baby was bleeding profusely from her nose. She was taken away by the doctors and placed in the nursery, and helped to breathe through a tube. And 10 days later, the infant died.

Entrance to the Maharani Medical College General Ward.
Entrance to the Maharani Medical College General Ward where Soni’s baby died.

The lack of doctors and nurses, the ensuing medical negligence, the unavailability of beds or sanitation facilities at government hospitals and medical colleges is a grimly familiar story.

But in Chhattisgarh’s Bastar region, the crisis is even more acute with doctors unwilling to work in a conflict zone.

Jagdalpur is not in the heart of  where police and paramilitary forces are engaged in a bloody and violent war with Maoist insurgents.

Sulakshana Nandi who runs the Jan Swasthya Abhiyan, a non-profit healthcare organization in Raipur, says Soni’s tragedy has two equally reprehensible aspects- while the charge is of medical negligence, the dismissiveness of the hospital when she was in the final phase of labour indicates a basic lack of respect towards poor tribal women in the region.

Maternity Wing, Mahrani Medical College, Jagdalpur
Maternity Wing at Mahrani Medical College in Jagdalpur.

In Jagdalpur, Champa, furious with doctors who are trying to pass off their callousness as the mitanin’s carelessness, is trying to make the hospital accept its role.  Based on her statement and the testimony to the police of Soni’s husband, a fact-finding team that met the parties involved including doctors has said the  hospital is guilty of gross negligence.

According to the report, submitted to the Human Rights Law Network, when the baby was brought to be nursed minutes after being born, she had trouble breathing  and was bleeding from her nose, after the delivery, the doctors allegedly told Soni and Champa to clean the table and wash the blood off the floor.

The report also says complaints of rampant corruption and inhumane treatment of expecting women in the gynecological ward have been regularly flagged by both patients and the mitanin who accompany the women. For example, tribal communities have a tradition of burying the umbilical cord in a place of their choosing, and knowing this, the report says, families are made to pay a bribe of  Rs 500 for it.

On the basis of their report, the the Law Network, which is a collective of social activists and lawyers, wrote to the government urging action against the hospital and charging the concerned staff with culpable homicide.

That was in June. No action has been taken.  Senior hospital officials we spoke to said  the 10-day-old died from routine complications and infections including pneumonia, and denied any negligence on the hospital’s part. Champa says she has been harassed and threatened for pursuing the complaint.

Soni Baghel and her second born daughter at her home in Billori village.
Soni Baghel and her second born daughter at her home in Billori village.

Just days ago at Soni’s home in Billori, a cool breeze meant her entire family was sitting outside. Her two children were clamouring around her as she cleaned rice for the afternoon meal. Her mother-in-law, who speaks no Hindi, smiled at us widely and curiously.  Champa, who had taken us to meet Soni, was chatting with her former patient’s husband.

It is these sort of voiceless and largely powerless tribals who travel for basic medical attention to hospitals like the one where Soni lost her baby.  And without intervention, supervision and an investigation of their complaints,  their health -sometimes, their lives -remains at risk.

After Delivering, She Says She Had To Wipe Her Blood Off Hospital Floor

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Rule that Martyrs widow must wed bro-in-law for award cash scrapped #Vaw



Martyrs’ widows don’t need to marry bro-in-law for benefits

In a major relief to widows of martyrs, the Defence Ministry on Tuesday decided to do away with a condition that they have to marry the deceased’s brother for being eligible to receive gallantry awards monetary allowance. The Ministry has now decided that the widow can now marry any one and will still get all the ues, including allowance, till her death.

Terming it as a major step to remove a “regressive” rule, officials said as per the existing norms, a widow is not entitled to the allowance and other benefits if she remarried or died. However, if she marries the brother of her deceased husband and “lives a communal life with the living eligible heir,” the woman are entitled for family pension.

The Defence Ministry in a statement said it decided to scrap the present criteria after several representations to remove the condition of the widow’s remarriage with the late husband’s brother for continuation of the monetary allowance.

The revised condition states that the allowance shall be admissible to the recipient of the award and on his death to his widow lawfully married by a valid ceremony. The widow will continue to receive the allowance until her death.

Elaborating upon the earlier rule, officials said in order to provide enough financial support to parents of the martyr, the widow remarried the brother of her late husband. However, with fast changing society and joint family making way for unitary family, the present norm was giving rise to several complications. They included tension within the family, and, in many cases, ill treatment of the widows.

Also, due to this rule, many war widows, whose husbands were awarded gallantry medals and others who died fighting terrorists, were denied their dues. One such case was that of Janak Anand, whose first husband Captain SK Sehgal, was killed during the 1971 war with Pakistan and awarded Vir Chakara. She later married another Army officer and was denied all the allowances.

After several petitions to the authorities, the woman then approached Armed Forces Tribunal (AFT) which in September this year questioned the validity of the rule. The Tribunal also said on the one hand, the President of India confers the gallantry award to the woman as a mark of respect to her late husband and on the other such rules denying her monetary allowances amount to humiliation.

Recipients of the gallantry awards are entitled to the monetary allowance as per the letter of 1972 of the Defence Ministry superseded by letter in 1995, which have been revised from time to time. As per the existing condition for grant of monetary allowance, the allowance shall be admissible to the recipient of the award and on his death to his widow lawfully married by a valid ceremony.

Moreover, the old order stipulated that the widow will continue to receive the allowance until her re-marriage or death. The payment of the allowance will, however, be continued to a widow who re-marries the late husband’s brother and lives a communal life with the living heir eligible for family pension. A gallantry medal recipient gets monetary allowance from the Army besides the State from which he hails. This allowance, however, varies from State to State.

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