Weekly Legal Updates ( 7 April to 13 April 2024)

Weekly Legal Updates main objective is to update the legal knowledge of law students, lawyers, academicians and other professionals. If we do not update our legal knowledge regularly, our knowledge become redundant.

Right against adverse effects of climate change part of rights to life, equality: SC

IN A significant ruling, the Supreme Court has expanded the scope of Articles 14 and 21 to include the “right against the adverse effects of climate change”.

“Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Clause (g) of Article 51A stipulates that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Although these are not justiciable provisions of the Constitution, they are indications that the Constitution recognises the importance of the natural world,” a three-judge bench presided by Chief Justice of India D Y Chandrachud has said.

“The importance of the environment, as indicated by these provisions, becomes a right in other parts of the Constitution. Article 21 recognises the right to life and personal liberty while Article 14 indicates that all persons shall have equality before law and the equal protection of laws. These Articles are important sources of the right to a clean environment and the right against the adverse effects of climate change,” it said.

While the bench, also comprising Justices J B Pardiwala and Manoj Misra, gave the ruling on March 21, the detailed order was only uploaded on Saturday evening.

“Despite governmental policy and rules and regulations recognising the adverse effects of climate change and seeking to combat it, there is no single or umbrella legislation in India which relates to climate change and the attendant concerns,” the court noted. “However, this does not mean that the people of India do not have a right against the adverse effects of climate change,” it added.

On the right to a clean environment, the court said: “Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised. The right to health (which is a part of the right to life under Article 21) is impacted due to factors such as air pollution, shifts in vector-borne diseases, rising temperatures, droughts, shortages in food supplies due to crop failure, storms and flooding. The inability of underserved communities to adapt to climate change or cope with its effects violates the right to life (Article 21) as well as the right to equality (Article 14).”

The bench was hearing a plea to protect the Great Indian Bustard (GIB) from losing its habitat due to power transmission lines.

On April 19, 2021, a Supreme Court bench had ordered restrictions on the setting-up of overhead transmission lines in an area covering about 99,000 square kilometres and mooted conversion of overhead low and high voltage lines into underground power lines.

The Ministry of Environment, Forests, and Climate Change, Ministry of Power, and Ministry of New and Renewable Energy later approached the SC, seeking modification of its directions. They pointed out that India has given international commitments on transition to non-fossil fuels and reduction of emissions, and the area contains a large share of the country’s solar and wind energy potential. It was also contended that putting high voltage power lines underground was technically not feasible.

Allowing the request, the bench pointed to the practical difficulties in implementing the order, including the technical and land acquisition challenges and prohibitive costs. Writing for the bench, the CJI also touched upon the issues of climate change jurisprudence and the need to harness renewable energy, especially solar power, as well as balance the conservation of the GIB with the conservation of environment as a whole.

“A blanket direction for undergrounding high voltage and low voltage power lines of the nature that was directed by this Court would need recalibration,” the court said. It set up a nine-member committee of experts to “assess the feasibility of undergrounding power lines in specific areas, considering factors such as terrain, population density and infrastructure requirements”. It also asked the committee “to complete its task and submit a report to this court through the Union Government on or before July 31, 2024”.

The court pointed out that India aimed to achieve an installed renewable energy capacity (excluding large hydro) of 175 GW (Gigawatts) by 2022, a goal that signified the country’s commitment to clean energy adoption, and the future goal is 450 GW installed capacity by 2030.

“To achieve these targets, India has implemented various policy measures and initiatives to promote renewable energy investment, innovation and adoption,” it said, adding that the Centre’s affidavit in the case highlighted how India’s commitment to transition to non-fossil fuels is not just a strategic energy goal but a fundamental necessity for environmental preservation. “Investing in renewable energy not only addresses these urgent environmental concerns but also yields a plethora of socio-economic benefits,” it said.

“The promotion of renewable energy sources plays a crucial role in promoting social equity by ensuring access to clean and affordable energy for all segments of society, especially in rural and underserved areas. This contributes to poverty alleviation, enhances quality of life, and fosters inclusive growth and development across the nation. Therefore, transitioning to renewable energy is not just an environmental imperative but also a strategic investment in India’s future prosperity, resilience and sustainability,” the bench said.

“Of late, the intersection between climate change and human rights has been put in sharp focus, underscoring the imperative for states to address climate impacts through the lens of rights,” the bench said. Stating that “states owe a duty of care to citizens to prevent harm and to ensure overall well-being”, it added: “The right to a healthy and clean environment is undoubtedly a part of this duty of care. States are compelled to take effective measures to mitigate climate change and ensure that all individuals have the necessary capacity to adapt to the climate crisis”.

“It is essential to harness power from sources of renewable energy in Rajasthan and Gujarat to meet the rising power demand in the country in an expeditious and sustainable manner. This is also necessitated by India’s international commitments with respect to climate change,” it said.

Discussing the importance of solar energy “as a pivotal solution in the global transition towards cleaner energy sources”, the bench said that “India urgently needs to shift to solar power due to three impending issues”.

“Firstly, India is likely to account for 25% of global energy demand growth over the next two decades, necessitating a move towards solar for enhanced energy security and self-sufficiency while mitigating environmental impacts. Failure to do so may increase dependence on coal and oil, leading to economic and environmental costs,” it said.

“Secondly, rampant air pollution emphasises the need for cleaner energy sources like solar to combat pollution caused by fossil fuels. Lastly, declining groundwater levels and decreasing annual rainfall underscore the importance of diversifying energy sources. Solar power, unlike coal, does not strain groundwater supplies. The extensive use of solar power plants is a crucial step towards cleaner, cheaper, and sustainable energy,” the bench said.

Pointing to technical challenges in implementing the April 2021 order, the SC said that underground power transmission cables are available only in 400 KV with lengths of 250 metre, which would mean more joints leading to leaks. The transmission loss in such cables is about five times higher as they don’t efficiently transmit AC power, it said.

Also, the Electricity Act does not contemplate the acquisition of land for laying underground cables, while overhead transmission lines require only the right of way, the bench said, adding that it may also lead to environmental issues for many vulnerable species and result in forest fires etc.

(Courtesy:- The Indian Express, 8 April 2024)

Voters’ Right To Know About Candidates’ Assets Not Absolute: Supreme Court

The Supreme Court today observed that voters do not have an “absolute right” to know about each and every asset of the candidates fighting elections.

“It is not an absolute right for any voter to delve deep into the private life of a candidate and each and every disclosure has to be of such nature which will impact the voting,” the bench of Justices Aniruddha Bose and PV Sanjay Kumar said.

The top court said that the candidates have the right to privacy regarding matters which are irrelevant to the candidature for public office.

“It is not necessary that a candidate declare every item of moveable property that he or his dependent family members owns such as clothing, shoes, crockery, stationery, furniture etc., unless the same is of such value as to constitute a sizeable asset in itself or reflect upon his candidature in terms of his lifestyle and require to be disclosed”, the top court observed.

The Supreme Court direction came as it upheld the election of Independent MLA Karikho Kri from Tezu in the 2019 Arunachal Pradesh Assembly election, setting aside the Gauhati High Court order that had declared his election as null and void.

The High Court had declared his election null and void while hearing a petition filed by Congress candidate Nuney Tayang, challenging the declaration of the 2019 Assembly election result.

Mr Tayang had alleged that Mr Kri made false declarations in his election nomination paper by not disclosing that he was in occupation of a government accommodation.

The petitioner also claimed that Mr Kri did not submit “No Dues Certificates” from the concerned department for the rent, electricity charges, water charges and telephone charges of the government accommodation.

(Courtesy:- ndtv.com, 9 April 2024)

‘Must march with time’: SC to govt on permanent stint for women in Coast Guard

After granting permanent commission to women short service commission officers in Army, Navy and Air Force, Supreme Court on Monday decided to examine similar career opportunity to women short service agreement (SSA) officers in Indian Coast Guard while ordering interim reinstatement of a woman officer who was discharged in Dec 2023 after a 14-year stint.

A bench of Chief Justice D Y Chandrachud, and Justices J B Pardiwala and Manoj Misra also ordered transfer of the petition by the woman SSA officer Priyanka Tyagi from Delhi high court, which had declined to grant interim relief to her while agreeing to examine the larger issue of PC for women in ICG, to Supreme Court saying it presented a national issue of gender equality.

In a virtual one-sided hearing of Tyagi’s lawyer, senior advocate Archana Pathak Dave, the bench said when different branches of armed forces have granted PC to women short service commission officer, ICG cannot remain an outlier. “The petition needs to be heard given the broader constitutional mandate of Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth),” it said.

When attorney general R Venkataramani and additional solicitor general Vikramjit Banerjee attempted to convey the factual aspects of the denial of permanent commission to Tyagi, the bench said, “Look at the resistance you have for absorbing women in permanent commission in ICG, which must march with time.”

(Courtesy:- The Times of India, 9 April 2024)

After Supreme Court rap, Ramdev files ‘unconditional’ apology

Facing the daunting prospect of contempt charges, yoga guru and entrepreneur Ramdev has filed a fresh affidavit in the Supreme Court furnishing an “unconditional and unqualified apology” for disobeying court orders that prohibited Patanjali Ayurved from running misleading advertisements on health cures. Ramdev has also promised he will not make any public statement that may undermine the court’s authority or question the efficacy of modern medicine.

Patanjali managing director Acharya Balkrishna, too, submitted a new affidavit tendering “unconditional apology,” with a promise that no statements or advertisements making controversial remarks about other forms of medicine or unscientific claims about Patanjali products will be made in the future.

“I hereby tender my unconditional apology in regard to the issue of advertisements… I sincerely regret this lapse and I wish to assure the hon’ble court that the same will not be repeated. I hereby tender an unconditional and unqualified apology for the breach of the statement recorded in para 3 of the order of this hon’ble court dated 21.11.2023,” stated the affidavits filed separately by Ramdev and Balkrishna on April 6.

“I further undertake and ensure that the said statement shall be complied with in letter and spirit and no such similar advertisements shall be used… I seek pardon for the aforesaid breach of the statement. I undertake to always uphold the majesty of law and majesty of justice,” they added.

The affidavits will be considered by the top court on Wednesday. The new affidavits have come days after Ramdev found himself embroiled in a legal tussle with the Supreme Court, facing the looming threat of contempt charges that the yoga guru seeks to wriggle out of with his new apology affidavit.

On April 2, a bench of justices Hima Kohli and Ahsanuddin Amanullah rejected Ramdev’s oral apology, calling it a mere “lip service” and commenting the apology affidavits sought to be placed before it by the yoga guru and Balkrishna had to be taken with a “sack full of salt”.

While the two remained physically present before the bench, the court took serious notice of their “absolute defiance” in not adhering to the commitment given before it in the petition filed by the Indian Medical Association, and gave them a final chance to produce fresh affidavits within a week.

“You have to abide by the undertaking given to court…but you have broken every barrier. Consequences will now flow. For you to go like a shot and hold a press conference in the teeth of the undertaking shows you are complicit, and you flouted our orders…You are bound by law like any other common man,” it told Ramdev on April 2.

In a series of hearings on the medical association’s petition complaining against Ramdev’s contentious comments about modern medicine, also popularly known as allopathy in India, and allegedly misleading advertisements about Patanjali products, the Supreme Court expressed grave concern and emphasised the need for responsible discourse, especially during a pandemic like Covid-19.

The court admonished Patanjali for spreading misinformation that could undermine public trust in the health care system and had recorded an undertaking by the company in November 2023 that it would stop running any misleading advertisements and issuing disparaging statements against modern or any other form of medicine.

However, the medical association came back to the bench with a video clip of a press conference held by Ramdev and Patanjali advertisements in national media merely a day after their undertaking in the court on November 21. Additionally, the association produced a series of advertisements branding Patanjali products as cure for several ailments, including hypertension and diabetes.

Irked by the contravention of its order and its own assurance, the court by its subsequent orders of February 27 and March 19 called Ramdev and Balkrishna in person, asking them to show cause why they should not be punished for contempt of court.

On April 2, the bench pulled up Ramdev for his comments against doctors and modern medicine. “The disparaging comment by the contemnors is most unfortunate,” the bench said. “They are mocking at people (doctors) to whom people look up to.”

Expecting responsible behaviour Ramdev, the court added: “We are taking this seriously as people of your stature command respect in society. You have done a good job for yoga. There is onerous responsibility expected from you than from the common public.”

On that day, the court also hinted that Ramdev will have to further explain for an incorrect fact in his March 30 application for exemption from personal appearance. The plea said that a copy of his overseas trip ticket was annexed, but the court noted that this was not possible because the ticket was issued on March 31.

In his latest affidavit, Ramdev said he had asked his travel agent to issue him the overseas trip ticket on March 30 itself and endorsed the application for exemption from personal appearance on that day itself. However, the ticket was issued only on March 31, and thus, the date of signing the application and the issuance of ticket were different.

“I tender and unconditional and unqualified apology for the aforesaid lapse and assure this hon’ble court to be more vigilant in future,” Ramdev’s affidavit stated.

On April 2, the Centre and the Uttarakhand state licencing authority were also questioned by the court for allegedly turning a blind eye to Patanjali’s violations. The court remarked that they were “complicit” and provided a “long rope” to the company by failing to file criminal charges against it for misrepresenting Coronil as a cure for Covid-19, which it isn’t, and for subsequent advertisements that were released in violation of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.

The authorities are likely to be questioned on Wednesday when the bench takes up the matter.

(Courtesy:- Hindustan Times, 10 April 2024)

SC junks review plea, directs Army, Air Force to pay Rs 1.5 crore to ex-officer who got HIV during blood transfusion

The Supreme Court has rejected the review petition filed by the Indian Army against its verdict directing the Indian Army and Air Force to jointly pay around Rs 1.5 crore compensation to a former air force officer who contracted HIV/AIDS after a blood transfusion at a military hospital during Operation Parakram in 2002.

The officer (now retired) corporal Ashish Kumar Chauhan had joined the air force in 1996. The blood transfusion took place in July 2002 during Operation Parakram, when India deployed additional troops to the border with Pakistan. As Chauhan fell ill, he was hospitalised at a military hospital in Jammu. One unit of blood was administered to him without his consent.

Subsequently, when tests were conducted, it was found by the Indian Naval Hospital in Mumbai in May 2014 that he was HIV positive. The medical board found that he had contracted this during the blood transfusion.

He subsequently moved the Supreme Court for justice. The apex court, in its judgment on September 26, 2023, held both the Air Force and the Army liable to pay a compensation of Rs 1.5 crore to Chauhan. The SC arrived at the amount after calculating Chauhan’s loss of earnings, mental agony, future care expenses and litigation expenses.

A two-judge bench of the top court, headed by Justice Dipankar Datta and also comprising Justice PB Varale, while recently dismissing the review plea of the Army, noted that its earlier judgment did not suffer from any error, warranting its reconsideration.

“No other ground has been made out for granting the relief claimed in the Review Petition (filed by the army),” the bench in its order said.

In September 2023, the top court awarded Chauhan approximately Rs 1.5 crores in compensation (Rs 86.73 lakh for loss of earnings, Rs 50 lakh for mental agony, Rs 18 lakh towards future care expenses and Rs 5 lakh for litigation expenses), holding the Army and Air Force vicariously liable, both jointly and severally.

“The appellant (Chauhan) is entitled to compensation of 1,54,73,000 rupees on account of medical negligence of the respondents (Army and Air force) who are held liable for injuries suffered by him. Since individual liability cannot be assigned, the respondent organizations IAF, and the Indian Army are held vicariously liable jointly and severally. The amount shall be paid by the IAF (his employer) within 6 weeks,” the top court said in its order.

(Courtesy:- The Indian Express, 12 April 2024)

*Disclaimer: – Always check with the original copy of judgment from the Court website.

Legal News in this Weekly Legal Update are compiled by Team www.deepakmiglani.com

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