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Compensation To The Kin Of Doctor Died Due To Covid-19, Madras High Court Directs The Authorities To “Not Stick To Technicalities” [READ ORDER]

The court ordered compensation to the kin of the doctor who died due to COVID-19. It was further observed by the court that if doctors were not providing selfless service, a major population of this country would have been wiped out by this deadly virus

By: Saumya Sakshi, B.A., LL. B (H), Amity Law School, Noida, UP

The petition is filed by B. Varalakshmi, wife of deceased doctor Dr. Baskar. The doctor died due to a Covid-19 infection on August 3, 2020. The petitioner approached the authorities for compensation, but the same was not released due to the non-production of the RT-PCR test report of the deceased doctor. As her husband was directly subjected to CT- Chest COVID-19 screening, she didn’t have an RT-PCR test result. The RT-PCR document is one of the documents needed by the authorities. Aggrieved by such demands, she filed a petition in the high court.

The petitioner moved her claim under the PM Garib Package Insurance Scheme for Health Workers who are fighting COVID-19 and provides a coverage of Rs. 50,00,000/- for both public and private health care providers if they succumb to Covid-19 disease.

She further submitted that her husband got infected while treating COVID-19 patients, and when rushed to a private hospital where CT Chest COVID-19 Screening was performed, it was confirmed that he was also infected with this deadly virus.

The petitioner claimed that she submitted all the documents which were required, only the RT-PCR report is not there as her husband was directly subjected to the CT-Chest COVID-19 Screening Test by the private hospital.

The matter came before a single bench Justice, N. Anand Venkatesh. The court observed that currently, the whole world is fighting this pandemic. It is the doctors, who in spite of knowledge of the risk involved while treating the infected patients, are selflessly and tirelessly working to save the lives of millions of people.

Thus, deprecating the practice of “sticking to technicalities” and the court held that the authorities need not insist on the production of RT-PCR report for processing the claim when a more “clinching” evidence, CT-Scan report is produced.

The court further observed that, “If not for the selfless services rendered by the Doctors, a major population of this country would have been wiped out due to the deadly COVID-19. Therefore, the least that should be done for a doctor, who has lost his life due to COVID-19, which had spread to him while he was on duty, is to acknowledge the selfless service of the Doctor and provide the necessary compensation to his family.”

The court while taking note of the circumstances of the case held that “It is very clear from the ‘CT-Chest COVID-19 Screening Test’ that the husband of the petitioner was afflicted with COVID-19. When such a clinching document is available, there is no requirement for insisting on the RT PCR Test result. In cases of this nature, the Authorities must not stick to technicalities and the claim must be considered with more humanness with the available documents which clearly substantiates the fact that the husband of the petitioner was suffering from COVID-19.”

The justice further directed the Joint Director of the Health Service to proceed with the claim made by the petitioner without any further demand of RT-PCR report and ordered that if all other formalities are satisfied, the said authority shall forward the same claim to the Department of Health and Family Welfare Tamil Nadu within 2 weeks. The state also, on the receipt of the record, is directed to pass the same to the Ministry of Health and Family Welfare within 4 weeks thereafter.

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Natasha Narwal, Devangana Kalita, Asif Iqbal Tanha Released From Tihar Jail After Delhi HC’s Bail Order

Student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha have been released from Tihar Jail after the Delhi High Court granted them bail on 15th June  in the case related to Delhi riots conspiracy

By: Darshana Pagare ILS, Pune

The Delhi Police had stated that the outstation permanent addresses of student activists need to be verified for the purpose of their release pursuant to the Delhi High Court orders granting them bail.

The “Outstation permanent address” verification of all accused persons is pending and could not be completed due to paucity of time”, the Delhi Police said in the application filed before the Court.

The Delhi Police also sought directions to the UIDAI to verify the Aadhar card details of the sureties. The development came after a Delhi Court issued orders for their immediate release after observing that Delhi Police’s argument saying that more time was needed to verify the addresses of the accused and their sureties, cannot be a plausible reason for keeping them imprisoned. 

Additional Sessions Judge  remarked that “I observe that at least verification process qua sureties should have been filed, by all sureties of residents in Delhi. Apropos the reason forwarded by IO that verification qua accused’s permanent address would need time, I would say that this by itself cannot be a plausible reason for the accused to be kept imprisoned till the time such reports are filed.”

Observing that it will be expedient in the interest of justice, the Court accordingly ordered thus “The accused is directed to be released forthwith as per Orders of Delhi High Court. Since the verification of the permanent address of the accused shall require sometime, let the Report to this effect be filed on or before 23.06.2021 with the concerned court.” The release warrant should be immediately prepared and be sent to the Jail Superintendent via email, the Court had ordered.

Meanwhile, the activists had approached the Delhi High Court,  aggrieved with the Trial Court deferring their release despite the bail granted. A division bench of Justices which granted bail observed that the trial court should consider the matter expeditiously and asked the parties to appear before the trial court. The High Court will consider the matter the very same Day.

The Trial Court had reserved the orders on the release of Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha. The pronouncement was deferred to next date  citing “heavy board” after the Delhi Police had moved an application seeking some more time in conducting the verification of their sureties.

The High Court had granted bail to Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha after observing that offences under the Unlawful Activities Prevention Act (UAPA) are not made out prima facie against them in the Delhi riots conspiracy case.

The Delhi Police had filed chargesheet against them alleging that the protests organized by them against the Citizenship Amendment Act from December 2019 were part of a “larger conspiracy” behind the North East Delhi communal riots which took place in the last week of February 2020.

While granting bail to Natasha Narwal, the High Court observed “We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally Granted right to protest and terror activity has become somewhat blurred. If this mindset gains traction, it would be a sad day for democracy.”  The High Court has undertaken a factual examination of the allegations to ascertain if prima facie case is made out against them for the purposes of Section 43D(5) of UAPA.

A High Court bench, after a preliminary analysis of the chargesheet, observed that the allegations do not prima facie constitute the alleged UAPA offences relating to terrorist activities(Sections 15,17 and 18).

It was observed that “Since we are of the view that no offence under sections 15, 17 or 18 UAPA is made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under section 43D(5) UAPA do not apply; and the court may therefore fall back upon the usual and ordinary considerations for bail under the Cr.P.C.”

These three student leaders have spent over a period of one year in Tihar jail, even amid the two deadly waves of the COVID pandemic. The benefit of interim bail on account of the pandemic was not available to them as they were accused under the UAPA. After Natasha Narwal lost her father Mahavir Narwal to COVID last month, the High Court had granted her interim bail for three weeks to perform the funeral rites.

In a related development, the Delhi Police on Wednesday approached the Supreme Court challenging the aforesaid bail orders.

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454
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MHA Notification On Citizenship For Refugees Unrelated To CAA, Centre Tells Supreme Court

In response to an Intervention Application filed by the Indian Union Muslim League against Notification issued by the Ministry of Home Affairs on 28th May, 2021, the Centre has submited to the Supreme Court that the impugned notification has no relation with the Citizenship (Amendment) Act, 2019

By: Darshana Pagare ILS, Pune

On 28th May, 2021, the Centre issued a notification which stated that the Collectors of the districts of – (i) Morbi, Rajkot, Patan and Vadodara in the State of Gujarat ; (ii) Durg and Balodabazar in the State of Chhattisgarh ; (iii) Jalore, Udaipur, Pali, Barmer and Sirohi in the State of Rajasthan ; (iv) Faridabad in the State of Haryana; and (v) Jalandhar in the State of Punjab, have been empowered to exercise the powers of the Central Government under Section 5 for registration as a citizen of was only for those refugees who belonged to minority communities in Pakistan, Bangladesh and Afghanistan(Hindus, Christians, Jains, Buddhists and Parsis).

This has been challenged by the Indian Union Muslim League in an interlocutory application which contended that, “The Respondent Union, in a roundabout way, and in an attempt to circumvent the assurance given to this Hon’ble Court, have sought to implement their mala fide designs envisaged under the Citizenship Amendment Act through the recently issued order dated 28.5.2021.” The said application was filed in the writ petition filed by the IUML challenging the Citizenship Amendment Act 2019. 

The Counter-Affidavit filed by the Centre submitted that the impugned notification merely seeks to delegate power of the Central Government to the local authorities in particular cases. 

It was said that “The said notification does not provide for any relaxations to the foreigners and applies only to foreigners who have entered the country legally as the Central Government used its authority under Section 16 of the Citizenship Act and delegated its powers to grant citizenship by Registration or Naturalisation to District Collectors. It is submitted that it is merely an administrative delegation of power without any specific classification or relaxation.”

Delineating the framework which governs the delegation of power notifications, the Counter-Affidavit submits that Section 16 of the Citizenship Act, 1955, confers powers on the Central Government to delegate some of its citizenship-granting powers to such officer or authority as may be specified in order to fast track the decision on citizenship applications, and the same method has been employed numerous times in the past. 

Furthermore, “It is submitted that the said measure has been taken on numerous occasion previously and is largely a function of the administrative exigencies of the situation…It is submitted that the same would not be relatable to the legislative steps taken through the CAA which provide for a classification with a rational nexus and intelligible differentia…”

Contending that the impugned notification is merely a process of decentralization of decision-making aimed at speedy disposal of citizenship application of foreigners, the Counter states that decision will now be taken at the District or State level itself after examining each case, and that no relaxation has been made in respect of the eligibility criteria between different foreign nationals. 

“It is further submitted that the existing law and procedure for acquiring citizenship of India is in no way sought to be amended through the impugned notification. It is submitted that any foreigner of any faith can apply for citizenship of India at any time. The Central Government shall decide that application as per law and rules,” stated that Counter-Affidavit. 

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“Criticism On Political Matters Not Sedition”: Lakshadweep Filmmaker Aisha Sulthana Moves Kerala High Court For Pre-Arrest Bail

Lakshadweep filmmaker Aisha Sulthana has approached the High Court of Kerala seeking anticipatory bail in the case for sedition filed against her over her remarks against the island administration’s new regulations

By: Darshana Pagare, ILS, Pune

Sulthana is seeking pre-arrest bail in the FIR registered by Kavaratti Police Station under Section 124A (sedition) and Section 153B (Acts against national integration) of the Indian Penal Code.

The FIR is based on a complaint by a BJP worker against the alleged remarks made by Aisha Sulthana during a channel discussion that the Government of India had used a “bio-weapon” against the island inhabitants.

The bail application under Section 438 of the Criminal Procedure Code was filed after Sulthana was served a notice under Section 41A CrPC asking her to appear at Police Headquarters, Kavaratti, in relation to the case investigation.

In the bail plea, the filmmaker says that she made the ‘bio-weapon’ remark in the context of criticizing the administration relaxing the COVID-19 protocol, which led to sharp increase of pandemic cases in the island, where there had been not even a single COVID case till January 2021. Lakshwadweep is seeing an exponential rise in COVID-19 cases due to the relaxations in the quarantine protocol, and it is in this context that the alleged remarks were made, her bail plea says. 

The application further states that criticism on political issues does not constitute the offence of sedition under Section 124A IPC. Referring to the Supreme Court judgment in the Kedarnath Case, it is contended that a mere criticism of the government is not sedition if there is no incitement to violence.

Reference is also made to the recent Supreme Court judgment in the Vinod Dua case, where the Court said “A citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government or with the intention of creating public disorder.”

There is no case that the statement of the applicant has created disaffection towards the Government or a case of imminent violence sparked by the words spoken by the applicant. 

“It is submitted that the applicant had only intended to say that it was due to the apathetic approach and reforms of the new administrator that a serious threat is being caused to the lives of the people of the Island and had absolutely no intention of exciting disaffection towards the Government”, the plea states.

Aisha Sulthana says that on realizing that her remarks had sparked off a controversy, she issued an explanation on social media that she never had any intention to excite disaffection or hatred towards the Government and offered an apology. It is further submitted that the offences under section 153B of the IPC also will not stand against the applicant at the words spoken is not prejudicial to national-integration or causing disharmony or feelings of enmity or hatred or ill-will.

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Jammu And Kashmir Court Grants Interim Bail To Man Accused Of ‘promoting Enmity’ For Comment On Non-local Officials At A Janata Darbar

“I can have expectations from you because you are Kashmir-based and you can understand us. But what expectations can I have from officers who are outsiders,” Sajad Rashid Sofi had reportedly said. The court granted him bail on June 12, but Sajad Rashid Sofi remains under preventive detention (Sajad Ahmad Sofi v. Union Territory of Jammu & Kashmir)

By: Surbhi Kumari, Amity University Patna

A resident of Jammu and Kashmir has been booked for “promoting enmity” after he said that he had no expectations from non-local officials posted in the Union Territory of Jammu and Kashmir.

As per the police report, fifty-year-old Sajad Rashid Sofi and a resident of Wani Mohalla area in Safapora village, Ganderbal district, made the comment during an interaction between locals and the Jammu and Kashmir Lieutenant Governor’s advisor, Baseer Ahmad Khan, at Manasbal in Central Kashmir’s Ganderbal district on June 10.

He was first arrested after making the comments at a public hearing and then granted interim bail on June 12 by a magistrate court till June 21. However, the police kept him under preventive detention, saying he was a potential “threat to peace.”

During the interaction, Sofi is stated to have said, “Mein aapse umeed rakhta hoon. Chunki aap ik Kashmiri hain aur samajh sakte hain, aur mein aap ka gareban pakad sakta hoon aur aapse jawab talab kar sakta hoon. Magar gair-riyasati afsaron se kya umeed rakh sakta hoon?”

(Translation: ‘I can have expectations from you because you are Kashmir-based and you can understand us. I can grab you by the collar and seek answers. But what expectations can I have from officers who are outsiders?’)

Reports said that these remarks were objected to by the deputy commissioner (DC) of Ganderbal, Krittika Jyotsna who was present at the event. DC Ganderbal is an IAS officer of the 2014 batch of the Uttar Pradesh cadre. She was sent to Jammu and Kashmir on inter-cadre deputation in February 2021 for a period of two years along with her husband, who is also an IAS officer, and holds the key portfolio of Information Direction in Jammu and Kashmir.

Sofi was booked by the Jammu and Kashmir Police and a criminal case was registered against him at Safapora Police Station under Section 153-A of the Indian Penal Code (IPC) for promoting enmity between groups.

Sofi proceeded to move a bail application before the court of the Judicial Magistrate, first Class, Ganderbal.

On June 12, Judge Fakhr Un Nissa granted interim bail to Sofi till June 21, 2021, subject to various conditions, including that he will remain present before the investigating officer concerned as and when directed to do so and shall remain present before the court on the next date of hearing.

“Needless to mention that bail is a rule and its rejection is an exception. Bail in non-bailable crime cannot be refused without assigning strong reason although bail is a discretion of the court and discretion of bail cannot be exercised arbitrarily. The allegedly committed crime attributed to the applicant does not carry life imprisonment or death penalty debarring this court to exercise discretion of bail in favour of the applicant. As such, this court has a sufficient reason to exercise discretion of bail in favour of the applicant … without going into the depth of the merits of the case, the instant application is allowed and the accused person is admitted to interim bail upto 21-06-2021 provided he will furnish surety and personal bonds amounting to Rupees 30,000/- before the SHO concerned,” the Court’s order stated.

The matter will be taken up next on June 21.

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