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Covid 19 Pandemic: A Force Majeure Event or not?
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Restrictions On Entry Into Goa If Without The Negative Covid Report: Bombay High Court Issues Directions [READ ORDER]

The Bombay High Court bench at Goa directed the Government of Goa to ensure that no persons are permitted to enter into the state without a negative covid report issued within 72 hours from the time the travellers’ seek entry into the state. 

By: Kriti Dubey, Bharati Vidyapeeth New Law College 

The coronavirus pandemic has wreaked havoc on the tourism-dependent economy of Goa, a state where hundreds and thousands of visitors come each year during the holiday seasons. Looking at the crucial conditions and the restrictions imposed by almost every state, it was not fair for the populous of Goa to be overwhelmed with the COVID cases just because they were still letting people in. The Bench of Bombay High Court in Goa gave the direction that there will be restrictions on the entry of the persons inside Goa from May 10th, 2021 because of the steep rise in the cases of COVID.

The state was directed to immediately notify and publicize the direction through usual channels so that the travellers and the tourists who are planning to visit Goa will be put to notice. This measure was taken keeping in mind that the positive rate in Goa is 52 percent. 

The court added that suitable measures can be formulated by the state to ensure that the testing facilities are available at the borders or entry points on the supplies of essentialities or in the ingress of essential personnel are not affected. But virtually unrestricted entry in such critical times will not be a fair thing to do. 

The court was dealing with a bunch of Public Interest litigations where the issues were raised about the measures taken by the state government to curb the spread of the COVID in the state. The Court noted that while taking into the seriousness of the conditions prevailing in the society, these minimum restrictions are a must to handle the situation. The Government should have imposed such minimum restrictions keeping in mind the interest of the public. 

It was further opined by the court that keeping in mind that Goa is a favorite tourist destination, it was neither fair to the citizens of Goa to suffer from overburdened medical infrastructure nor it was fair for the tourists to be compelled to avail the facilities at a higher price. 

The borders of Goa will not be sealed. It is just a step to make sure that the persons who are entering into Goa are not already COVID positive, fueling the already tensed conditions prevailing in the state and the people will be better-taken care of if they remain in their state.

The order was passed by Justices M.S. Sonak and M.S. Jawalkar in a public interest litigation filed by the South Goa advocates association seeking various prayers connected with COVID management in the state. 

Apart from the issues already mentioned, the PIL also raised certain other issues of which the court sought compliance:

  • Position of the vaccination drive in the state especially for the marginalized and downtrodden of the state 
  • Security and well being of the health care workers and professionals 
  • Position of medical infrastructure, oxygen supply, essential medicines, and testing facilities in the state. 

The court added regarding the protection of the health care workers that everyone owes them gratitude who have gone beyond the call of their duty and toiled day in and day out relentlessly without any rest amidst the serious crisis. The minimum we can owe to them is security. The message should go out loud and clear that zero tolerance will be shown for any form of physical and verbal violence against healthcare workers. State administration should post round-the-clock police personnel at hospitals. 

For the supply of the oxygen, the virtual control rooms are to be created in pursuance of the Supreme Court. The High Court directed the state administration to file an affidavit as to the need of the state and whether this need is met by the supplies made from various sources. 

News, Top Stories

Vaccination Encouragement Becomes A Necessity In Jail For Inmates Who Are 45+ Years Of Age: Delhi HC [READ JUDGMENT]

In the case of Natasha Narwal v. State, the Delhi High Court has directed the Tihar Jail Superintendent to counsel and encourage inmates over the age of 45 years to obtain vaccination against COVID-19 at the earliest.

By: Gurleen Kaur Anand, Amity University, Mumbai

On the issue of vaccination, as the inmates who are 45+ years of age are concerned, there are a total of 136 inmates for whom vaccines are already stated to have been received by the Jail Superintendent. Out of them, only 12 inmates have already been vaccinated.

Considering that for inmates who are 45+ years of age, vaccines are already available and are with the Jail Superintendent, it is directed that proper counselling shall be done for these inmates, and they would be encouraged to obtain vaccination at the earliest.

“Considering the density of occupancy in jail premises, vaccination is almost a necessity for all inmates” was averred by the court.

If an identity card, in the form of an Aadhar card or a PAN card is not available, the Prison ID number may be used as the identification number, for being put on the concerned portal.

So far as the mobile number is concerned, if the inmate himself or herself does not have a mobile number, he or she is permitted to use the mobile number of a close relative, like a parent or a sibling or child, for the purpose of registration for the vaccine.

The Prison Authorities have assured this Court that all the 136 inmates, who are 45+ years of age, would be vaccinated by 31st May, 2021.

Further, the inmates in COVID-19 positive wards are concerned, daily calling would be permitted for a maximum of 5 minutes for these inmates, considering that they would wish to update their family members as to their medical condition. E-mulaqats are being permitted only once for 15 minutes, every ten days.

Considering the current pandemic situation, there could be relatives and family members of the inmates, who may wish to be in touch with the inmates.

Accordingly, e-mulaqaats for at least half an hour, each week, would be permitted by the Jail Authorities, to all the inmates.

It was also submitted that intermingling of the recovering COVID-19 positive patient is being completely avoided, and separate water facilities and other common facilities are being made available through dedicated staff to the recovery, COVID positive and isolation wards.

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The Word ‘No’ Doesn’t Need Any Further Explanation Or Justification [READ JUDGMENT]

Himachal Pradesh High Court, while rejecting the bail application of a man who raped a 17-year-old girl, remarked that the word ‘No’ means ‘No’ but somehow it has become very difficult for men to understand

By: Kriti Dubey, Bharati Vidyapeeth New Law College

“Women say no when they mean yes.” Do they really or is the rape culture embedded so deep in our society that it is now in the way we think, speak or walk. Rape culture is that social environment that allows sexual violence to be justified fueled by the pervasive gender inequalities and attitude towards gender and sexuality. 

In this case, a woman aged 17 years was waiting for a bus around noon when the accused came in his jeep and asked her to accompany him, she knew the accused and therefore made the decision of going with him. The accused took a detour on the way to a secluded place and started inappropriately touching the victim. The girl clearly said NO but obviously, how can we assume that the accused knew the meaning of the word. The accused asked the victim to stop crying or else he will force himself upon her, he also asked if she will marry him to which the girl replied NO. After this, he undressed the victim and had sexual intercourse with her. After doing so he went to Solan and the victim came home where she informed her mother and later registered the FIR. The accused is in custody since 18th December last year under section 376 of IPC and section 4 of the POSCO act. 

The victim mentioned in her statement made under section 164 of CrPC that the accused was her friend and her taking the lift in his vehicle was proved to the act done in the friendship of which the accused took the defense that the

act done was with “active consent and without any force on her by the accused.” 

It was opined by the court that if the girl would have agreed to the coitus there is no reason for her to reveal it to her mother. She reached her home at a reasonable hour if she wanted to lie, she would have made excuses to come home late. If she wanted it to be discrete, she could have kept it that way but she voluntarily narrated the whole incident to her mother which prima facie points to the genuineness of the incident. It was courageous of her to come forward and report the incident to the police. 

The court further added that in the context of the consent that the curriculum of India does not include the proper sex education; the children raised by such societies fail the women time and again. 

It is often understood that if the woman had consent, there will be no signs of injury on her body but the absence of resistance and the unwilling submission does not define consent in any language.

Her saying NO and the act of the accused not stopping depict the lack of sex education. The court further added that NO means NO might be simple to understand but somehow it has become tough for men to comprehend. The word NO does not mean yes, it does not mean that the girl is shy; it does not mean that the girl needs persuasion. The word No doesn’t need any further explanation or justification. It ends there and the man has to stop. Coming to the case, the victim in no way showed her consent to form any sort of romantic relationship with the accused. 

If given a scientific point of view, the presence of the blood and the semen in the victim’s underwear shows the possibility of unprotected sex. The absence of injuries on the body of the victim can be due to the reason that she was intimated into cooperating with the accused. 

In the end, the court opined that the accused failed to make out a case for bail and hence it got dismissed. However, the court granted liberty to the accused to file a new bail application if there are changed circumstances. 

News, Top Stories

Freedom of Speech & Expression Covers Reporting of Judicial Proceedings: Supreme Court Rejects ECI Prayer to Stop Media Reporting of Oral Remarks [READ JUDGMENT]

The Supreme Court dismissed a plea made by the Election Commission of India to restrain media from reporting the oral remarks of judges. A bench comprising Justices DY Chandrachud and MR Shah held that freedom of speech and expression under Article 19(1)(a) extends to reporting judicial proceedings as well in the case titled Election Commission of India v MR Vijaya Bhaskar.

By: Gurleen Kaur Anand, Amity University, Mumbai

The bench was delivering the judgment in the petition filed by Election Commission of India against the oral remarks of Madras High Court that the ECI was “singularly responsible for COVID second wave” and “should probably be booked for murder charges.”

A delicate question of balancing the powers of two constitutional authorities in this appeal has raised larger issues of the freedom of speech and expression of the media, the right to information of citizens and the accountability of the judiciary to the nation.

A two-judge bench of the Apex Court, headed by Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah, while pronouncing the judgment on the EC appeal against the Madras High Court said that the courts cannot stop the media from reporting.

The ECI had moved the apex court after the Madras High Court remarked that the poll body is responsible for the surge in Covid-19 cases in the country. Regarding the specific remarks made by the Madras High Court, the Bench noted, “…we understand that the High Court was facing rising cases of COVID-19. The remarks were harsh and the metaphor improper. The High Court did not attribute culpability to the ECI for the spread of COVID-19…”

Article 19(1)(a) of the Constitution guarantees every citizen the right to freedom of speech and expression. The Supreme Court said that open access to court is the cornerstone of constitutional freedom.

Justice Chandrachud remarked that “Freedom of speech and expression covers freedom to cover court proceedings too.”

 In Express Newspaper (P) Limited vs Union of India, it was explained that Article 19(1)(a) would carry within it, implicitly, the right to freedom of the press. The Court held “―As with all freedoms, press freedom means freedom from and freedom for. A free press is free from compulsions from whatever source, governmental or social, external or internal. From compulsions, not from pressures; for no press can be free from pressures except in a moribund society empty of contending forces and beliefs.”

With the advent of technology, the reporting of media has been real-time, Justice Chandrachud said. The state High Courts are constantly in touch with the ground reality while talking about the current pandemic and these are constitutional courts.

It was further said that observations of the court cannot be construed as judgment.  The Apex Court also observed that media cannot be stopped from reporting oral remarks made by the judges, as the discussions in the court are also of public interest and that media reporting increases accountability.

News, Top Stories

West Bengal Housing Industry Regulation Act, 2017 Struck Down By The Supreme Court

The apex court of the country has struck down the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA) and declared it unconstitutional for being in conflict with the RERA Act, 2016

By: Sunayna Jain, Jagran Lakecity University, Bhopal

The Supreme Court of the country stated that the state of West Bengal has intervened in the sphere of Parliament after the state has enacted the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA), as it oversees with RERA and most numbers of WBHIRA are similar to RERA.

RERA was enacted by the Central Government in 2016, whereas WBHIRA was enacted for regulation and promotion of the housing sector and to ensure the sale of plot, apartment or building, which has been published in the Official Gazette, dated 17th October 2017 and came into effect on 1st June 2018.

The division bench of Justice D.Y. Chandrachud and Justice M.R. Shah has delivered the judgment after a plea was filed by an NGO Forum For People’s Collective Efforts, which contended that the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA) should be struck down since it is in conflict with The Real Estate (Regulation and Development) Act, 2016 (RERA). The court said that it doesn’t matter whether there’s an overlap or no overlap because if Parliament intends to occupy a field, then you cannot legislate at the state level at all. 

The West Bengal Housing Industry Regulation Act, 2017 (WBHIRA) was challenged on the ground that although it is a matter of concurrent list (in which both centre and state can enact laws), but for a State to survive over Central law on the same subject according to the provisions of Article 254 (2), allows for a conflicting State law to receive the assent of the President, and it was not obtained in this present case.

The petitioners have pointed out before the hon’ble supreme court that WBHIRA is in direct conflict with the earlier framed central legislation RERA.

In the recent case, (RERA and WBHIRA are dealing with three matters of the concurrent list i.e. Entry 6 (property transfer), Entry 7 (matters of contract) and Entry 46 (matters concerning the jurisdiction of courts other than the Supreme Court).

The petitioners contended that if the Central and State governments may make laws on the same matter and if any conflict arises, then the former law will prevail over the latter.

The bench held that already a central act i.e. RERA Act, 2016 exists and the state enacting the same state legislation is not constitutionally permitted. 

The court remarked that “The overlap is so significant that a test of repugnance based on the Identity of subject matter is established. West Bengal has attempted to Establish a parallel regime which is not constitutionally permissible.” 

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