Maneka Gandhi case: The one on the right to travel abroad

Background :

The Supreme Court in the case of Satwant Singh Sawhney vs D. Ramarathnam[1] held that the right to travel abroad was well within the ambit of Article 21 of the Constitution of India. Therefore, to combat the above laid down law the Parliament enacted Passports Act 1967.

Passport Act, 1967 empowers the authorities to impound the passport of certain

individual if such action is necessary in the interest of sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or general public.[2] The reasons of such impoundment are also to be communicated the affected party however in the interests of the general public these reasons can be withheld.[3]

In the present case, Maneka Gandhi, the petitioner, was issued a passport on 1st July, 1976 under the Passport Act 1967. The regional passport officer, New Delhi, issued a letter on 2^nd July 1977 addressed to the petitioner, in which she was asked to surrender her passport under section 10(3)(c)of the Act in Public Interest, within seven days from the date of receipt of the letter. The petitioner immediately reverted back to the authorities seeking in return a copy of the statement of reasons for such order. However, the Government of India, Ministry of External Affairs refused to produce any such reason in the interest of general public. Later, a writ petition was filed by the petitioner under Article 32 of the Constitution in the Supreme Court challenging the order as violating her fundamental rights guaranteed under Article 21 of the Constitution.

Issues:

Whether right to go abroad is a part of Right to Personal Liberty under Article 21.
Whether the Passport Act prescribes a ‘procedure’ as required by Article 21 before depriving a person from the right guaranteed under the said article.

Whether section 10(3)(c) of the Passport Act violates Article 14,19(1) (a) and 21of the Constitution.

Whether the impugned order of the Regional passport officer is in contravention of the principle of natural justice.

Judgments :

To the extent to which Section 10(3)(c) of the Passport Act, 1967 authorises the passport authority to impound a passport “in the interest of the general public”, it does violate Article 14 of the Constitution since it confers vague and undefined power on the passport authority.

Section 10(3)(c) is void as conferring an arbitrary power since it does not provide for a hearing to the holder of the passport before the passport is impounded.

Section 10(3)(c) violates Article 21 of the Constitution since it does not prescribe ‘procedure’ within the meaning of that article and the procedure practiced is worst.

Section 10(3)(c) is against Articles 19(1)(a) and 19(1)(g) since it permits restrictions to be imposed on the rights guaranteed by these articles even though such restrictions cannot be imposed under articles 19(2) and 19(6).

A new doctrine of post decisional theory was evolved.

The court held that though the phrase used in Article 21 is “procedure established by law” instead of “due process of law” however, the procedure must be free from arbitrariness and irrationality. The court also managed to respect and protect the sanctity of the Constitution makers by this black stain that the legislature was trying to portray. The procedure established by law must satisfy certain requisites in the sense of being reasonable and just and it cannot be arbitrary depriving the citizens the Fundamental rights. The court also for once and for all rested the debate by holding that each Fundamental Rights are not distinct from each other whereas they are mutually dependent on each other.

Conclusion:

The court in Maneka Gandhi adopted the dissenting view of Justice Fazal Ali in A.K. Gopalan v. State of Madras[4] . It was overruled by stating that there is a unique relationship between the provisions of Article 14, 19 & 21 and every law must pass the tests of the said provisions. Therefore, the court held that the while the procedure established by law should be reasonable, just and fair it shall be free from any unreasonableness and arbitrariness.

The judgment saved the citizens from unquestionable actions of Executive, the sanctity of Parliamentary law when it did not strike down Section 10(3)(c) & 10(5) of 1967 Act. The court also reminded the authorities to only rarely use the prerogative of Section 10(5) so as to satisfy that their actions were rational and well thought. The court held that Section 10(3)(c) & 10(5) is an administrative order therefore, open to challenge on the grounds of malafide, unreasonable, denial of natural justice and ultra vires.

One of the significant interpretation in this case is the discovery of inter-connections between the three Articles- Article 14, 19 and 21. A law which prescribes a procedure for depriving a person of “personal liberty” has to fulfill the requirements of Articles 14 and 19 also.

It was finally held by the court that the right to travel and go outside the country is included in the Right to Personal liberty guaranteed under Article 21. The Court ruled that the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be “just, fair and reasonable”.

The judgment’s importance can be seen today also because the way in which the bench construed Article 21 and expanded its horizons has given way for the resolving of problems left unsolved by the Parliament. It’s quite evident that this judgment has played an imperative role in construing Right to clean Air, Right to Clean Water, Right to freedom from Noise Pollution, Speedy Trial, Standard Education, Fair Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical Care, Right to Clean Environment etc., as a part of Right to Life & Personal liberty mentioned under Article 21.

[1] Satwant Singh Sawhney vs D. Ramarathnam,(1967) 3 S.C.R. 525

[2] Passport Act,1967, No. 15, Acts of Parliament, 1967 (India)

[3] Passport Act,1967, No. 15, Acts of Parliament, 1967 (India)

[4] A.K. Gopalan v. State of Madras,A.I.R. 1950 S.C. 27

EUTHANASIA: DEATH WITH DIGNITY

ABSTRACT:

Death is not the opposite of life but a part of it – Haruki Murakani Euthanasia is the highly effective form of pain management which allows assisting people who are suffering from a painful and incurable disease or incapacitating physical disorder or allowing them to die. The concept of Euthanasia, Mercy killing comes from the very belief that losing some faculties are worse than losing one’s life. However, through with the religious belief against premature death and also a moral dilemma in respective to legalising Euthanasia across the globe, but it was considered the best way to go rather see a person degenerating to his fate which is worse than death. Hence, countries across the globe had legalized Euthanasia with strict rules and stringent legal sanctions.

INTRODUCTION:

The term Euthanasia has been derived from two Greek words ‘eu’ and ‘thanotos’, which means, “Good death.” The phrase Euthanasia was coined by Sir Francis Bacon. Euthanasia is requesting for the premature ending of life in the plight of suffering terminal illness who undergoes unbearable pain.

TYPES OF EUTHANASIA:

The dimension of Euthanasia encompasses from Voluntary Euthanasia: Euthanasia is performed with the patient’s consent. Further, the voluntary euthanasia is of two kinds Active Euthanasia: A person takes action to cause a patient’s death that is where a person intentionally intervenes to end someone’s life with the use of lethal substances or forces. Passive Euthanasia: Death is brought about by withholding or withdrawing treatment to let the person die.

Non-Voluntary Euthanasia:

The person is unable to give their consent as the patient is in a state of coma or are severely brain-damaged and so another person takes the decision on patient’s behalf, often because the ill person might have expressed the wish to end their lives previously in certain circumstances.

Involuntary Euthanasia:

This kind of Euthanasia is administered without asking consent or against the patient’s will. Involuntary Euthanasia is also termed as murder if conducted against the will of the patient.

Assisted Suicide:

Patient is provided help in dying Physician-Assisted Suicide: Doctor assists a patient in shortening their dying process.

The doctrine of Double Effect:

Doctor gives drugs to relieve symptoms even though this may shorten patient’s life.

Indirect Euthanasia:

The treatment provides side effects that would speed up the patient’s death. DNR order: Doctor is not required to resuscitate a patient if their heart stops. A living will: Person decides in advance to refuse life support system in case of a terminal illness.

DNR order:

Doctor is not required to resuscitate a patient if their heart stops.

A living will:

Person decides in advance to refuse life support system in case of a terminal illness.

LEGALITY OF EUTHANASIA ACROSS THE GLOBE

The subject of euthanasia has spun the world regarding legalising euthanasia. However, only a handful of countries has to grant citizens the right to die in cases of a terminal illness. The debate of legalising euthanasia cuts across complex and dynamic aspects such as legal, ethical, human rights, health, religious, economic, spiritual, social, and cultural aspects of civilised society. In April 2002, it was the Netherlands the first country to legalise euthanasia and assisted suicide. Belgium stood second in the same year and legalised Euthanasia with strict rules that doctor can assist patients to end their lives when they freely express their wish to die if they suffer intractable and unbearable pain and sometimes in a vegetative state.

EUTHANASIA: INDIAN SCENARIO

The issue of Euthanasia rose to prominence in India after Aruna Shanbaug’s case and several other noteworthy cases filing pleas demanding euthanasia but the case of Aruna Shanbaug’s was most alarming as she remained in a persistent vegetative state for 42years since 1973 when she was sexually assaulted. However, in 1996 the Supreme Court in its landmark judgement in the case of Gyan Kaur Vs State of Punjab[1] held that both euthanasia and assisted suicide is not lawful in India and confusingly stated.

“The right to life under article 21 of the constitution does not include the right to die. The court held that article 21 is a provision guaranteeing protection of life and personal liberty, and by no stretch of imagination can extinction of life be read into it. The right to live with dignity does include the right to die with dignity.” However, the court could not come up with any practical rules and passed the buck to lawmakers to come up with laws regulating euthanasia, and that’s how in 2006 the 196th report of law commission of India had brought out The Medical Treatment of Terminally ill patients (Protection of Patients and Medical practitioners) Bill 2006, but no law was made on euthanasia.

CONCLUSION:

Euthanasia is a form of a merciful killing or peaceful death which has raised significant controversies as for and against it. Nevertheless, despite some potential benefits of this process the analysis of Euthanasia reveals that the society as a whole should exercise some responsibility for such an activity as it is even morally challenging. Hence, it must be used only as a last resort to preserve harmony within the society, when faced with a complex medical, social and legal dilemma. There is also an urgent need to invest in our health care system as ‘Right to health’ is bestowed under ‘Right to life’ of our constitution.

[1] 1996 AIR 946

Right to privacy

A very fascinating development in indian constitution give dimension to article 21. Article 21 is considered as heart of fundamental rights. It includes right to privacy that is an intrinsic part of right to life and personal liberty guaranteed by part III of the constitution.
Privacy- A state in which one is not observed or disturbed by other people. Legally it is right to be left alone or freedom from interference or intrusion.
In 2012, Justice K.S Puttaswamy, a retired judge of HC , filed a writ petition in SC challenging the constitutional validity of Aadhaar scheme that violates right to privacy. Before, this in MP Sharma vs Satish Chandra,1954 (8 Judge bench) and Kharak Singh vs State of UP, 1964 ( 6 judge bench) government argued that there was no constitutional right to privacy in article 14, 19 and 21. This matter was first placed before 5 Judge Bench and subsequently reffered to 9 Judge Bench on 18 July, 2017.
Issues- Whether Right to privacy is an intrinsic part of right to life and personal liberty under article 21

Whether decision in MP Sharma vs Satish Chandra and Kharak Singh vs State of UP is correct in law??
Judgment
A nine Judge bench upheld that right to Privacy is a fundamental right and is protected under article 21.
They overruled previous judgements i.e. MP Sharma vs Satish Chandra and Kharak Singh vs State of UP in which it was it held that there is no fundamental right to privacy.
Also , the triple test laid down in the judgement to check if it infringe privacy.
1) Existence of a law that would legalise the collection of data.
2) The purpose goal is national interest, security etc that justifies collection of data.
3) Test of proportionality to establish the connection between data collection and the objective which state is claiming to achieve.
The SC also said that sexuality or sexual orientation is also protected under privacy. Thus had an impact on SC judgement in one of the leading case i.e. Navtej Singh Johar Case that declare Section 377 of IPC unconstitutional and curtail Right to privacy.
The judgement also recognised the right to food as right under larger ambit of privacy.
The judgment also stressed on the need for a data protection law to keep data in privacy.
Based on triple test, Aadhar was declared constitutional.
Conclusion
In this judgement SC declared Privacy to be an integral part of the constitution which comes under the combit of Article 14 to 21 , part 3 and others.
Article 14,19,and 21 is the golden triangle under which right to privacy is protected.

Juvenile Justice Act, 2015: Unconstitutionality of the Amendment

The unconstitutional amendment of Juvenile Justice Act, 2015 begins its contradictions from the initial provisions itself. The section 2(12) of the main Act states that a juvenile means a person who has not completed the age of 18 years and on the other side this amended version contradicts its own law as it states that children from 16-18 years of age can be tried as adult criminals. It also reflects how arbitrary it is on testified along with the tests under Art. 14.

The test of Intelligible differentia, another test under Art. 14, is found unreasonable too due to the logic and the reasons behind the Act. Firstly, it replaces the word juvenile with child in conflict with law which was supposedly more humane. But this very child in conflict with law is meant to be tried for adult offences and this inhumane idea is conceived by the Government. Furthermore, the terms child alleged to be in conflict with law and child found to be in conflict with the law are not defined clearly and are used interchangeably in the Act. It stands as a great flaw due to the general understanding of the evident difference between alleged to be and found to be.

In the second test, the nexus between the classification and the object is absent as the authorities have acted without following the procedure to unequal treatment. The object or the purpose of the Juvenile Justice Act is to provide care, protection and child friendly approach but the approach suddenly disappears towards the child between the ages of 16-18 years. The objective of Juvenile Justice Act is not being fulfilled as Juveniles are being treated as adult criminals and sent to the prison where they would be influenced to be more hardened criminals since the purpose of the Act is to protect the juvenile from committing further crimes and evidently not fulfilled with the amendment. Instead the government through this specific provision is giving a hand in converting the juveniles into hardened criminals unlikely of the main idea which stands to reform the juveniles so that they could be accepted into the society.

There is also a violation of fundamental right under Art. 21 as the rights of opportunity to be heard and right of fair trial are infringed. The right of the juvenile to be tried infront of the Children’s Court gets him infront of the Session court with the other hardened criminals and consequently, the degree of punishment is harsher.

Section 15 of the Act seeks to repeal and replace the existing Juvenile Justice Act, 2002 with a draconian and unconstitutional amendment which instead of providing care and protection to the children deems them as an adult in cases where the alleged commission of crime by them is heinous in nature. It seeks to punish the child in conflict with the law for the failure of the society at large in providing the child with adequate care and protection. Juveniles in conflict with the law are more capable of change given the fact that their brains are still learning. Honest efforts made towards rehabilitation — including visits by a mental health professional three-four times a month — will have a significant positive impact on them. Unfortunately, there is no psychiatric screening in Indian prisons. No mental health professional would meet the juvenile convicted in any case and would lead to its worser development, totally against the objective of the Act. Every child develops in different background factors and considering to bring most of them into a similar set would be unethical since their mental faculty would not be equal.

The provision does not necessarily decide on the child in respect to his psychological or social factors but only governs on his mental faculty while committing the crime. It is totally undermined by the government that the mental faculty actually develops through these factors. More often than not the children who are put into rehabilitation centres come through as a changed human being. Under the existing law of a child in conflict with law between the age of 16-18 years who were found to have committed an offence by Juvenile Justice Board, there was an arrangement of rehabilitation supposition that could be passed by the Board. This rehabilitation disposition includes admonition community service, imposition of fine, probation group counselling and an extreme measure of deprivation of liberty by way of placement of the child in the special home for three years. The same facilities however could take a drastic turn in for cases when they are handed over the sessions court.

There are many further circumstances under the Indian law a person under the age is not allowed to vote, is considered minor for entering into a contract, a girl of age less than eighteen years cannot give consent for sexual relationships, a child of age less than eighteen years cannot marry. Yet by the amended Act that child can be tried as an adult after a preliminary assessment, the child shall be presumed to have the knowledge and understanding of the alleged crime that he has committed. Such a scenario would be travesty of justice. The idea behind treating a certain age group as children is to protect the most vulnerable section of the society where the government would have analysed in such matters that they are not mature enough to deal with these things. It is unjust and against the well-established principle lex iniusta non est lex that states that unjust law is not a law.

Section 15 of Juvenile Justice Act, 2015 is hence against natural conscience, unjustified and unconstitutional to which we hope, no child falls as prey.

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