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Top Quotes From The Top Court : Supreme Court Weekly Review [January 23-29]

Awstika Das
30 Jan 2023 4:54 AM GMT
Top Quotes From The Top Court : Supreme Court Weekly Review [January 23-29]

As promised, we bring to you a compilation of the most impactful observations made by the Supreme Court, a judicial ‘action recap’, as it were! Here are our top picks from the week starting from Monday, January 23:

1. Healthcare policies not to short-change citizens living in rural areas

“The framers of the Constitution, in Article 47, have directed the union and state governments to regard the ‘improvement of public health’, as its primary duty. It follows from this directive that the State shall make all possible efforts to ensure equitable access to healthcare services. These efforts must be made to progressively realize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, as acknowledged in international conventions and agreements. While the State has every right to devise policies for public health and medical education, with due regard to peculiar social and financial considerations, these policies ought not to cause unfair disadvantage to any class of citizens. The citizens residing in rural areas have an equal right to access healthcare services, by duly qualified staff. Policies for enhancing access to rural healthcare must not short-change the citizens residing in rural areas or subject them to direct or indirect forms of unfair discrimination on the basis of their place of birth or residence. Any variation between the standards of qualification required for medical practitioners who render services in rural areas qua the medical practitioners rendering services in urban or metropolitan areas must prescribe to constitutional values of substantive equality and non-discrimination. We may hasten to add that deciding the particular qualifications for medical practitioners practising in disparate areas and in disparate fields, providing different levels of primary, secondary or tertiary medical services, is within the mandate of expert and statutory authorities entrusted with the said mandate by the Parliament. The above ought to be considered in the spirit of constitutional goals and statesmanship subserving, as it does, the common good of the citizenry of our Country.” [Justice B.V. Nagarathna in Baharul Islam and Ors. v. Indian Medical Association and Ors., 2023 LiveLaw (SC) 56]

2. Removing vice from previous legislation not encroachment on judicial power

The legislature cannot directly overrule a judicial decision. But when a competent legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the said exercise is a valid legislative exercise provided it does not transgress on any other constitutional limitation. Such legislative device which removes the vice in previous legislation which has been declared unconstitutional is not considered an encroachment on judicial power but an instance of abrogation. The power of the sovereign legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. It would be permissible for the legislature to remove a defect in earlier legislation pointed out by a constitutional court in exercise of its powers by way of judicial review. This defect can be removed both retrospectively and prospectively by a legislative process and the previous actions can also be validated. But where there is a mere validation without the defect being legislatively removed, the legislative action will amount to overruling the judgment by a legislative fiat which is invalid…[Therefore] the petitions challenging the vires of the Assam Community Professional (Registration and Competency) Act, 2015 are liable to be dismissed, and are accordingly dismissed. The said Act has been enacted with a view to restore the position of the diploma holders in medicine and to give them continuity in service. The said Act has been enacted by a valid legislative exercise, and does not transgress any other constitutional limitation and in accordance with Entry 25 of List III of the Seventh Schedule and is not in conflict with the IMC Act, 1956 and the rules and regulations made thereunder as per Entry 66 of List I of the Seventh Schedule.” [Justice B.V. Nagarathna in Baharul Islam and Ors. v. Indian Medical Association and Ors., 2023 LiveLaw (SC) 56]

3. Purse seine fishing raises issues regarding biodiversity and conflict of economic interests between fishermen

“The Fisheries Department, Government of Tamil Nadu had banned, inter alia, the use of Purse Seine Fishing nets within its territorial waters i.e., within 12 nautical miles (22 kilometres from the coast line). …The petitioners are aggrieved by the restrictions imposed by the Tamil Nadu Government. Whether the ban imposed by the State Government, within its territorial waters is justified, is a matter which is pending consideration by this Court. The method of Purse Seine Fishing has more than one aspect which needs to be looked into by this Court. There is definitely a conflict of economic interests, between fishermen. Biological diversity is another aspect which may fall for our consideration here. But on all these aspects, we do not have a full report before us as yet. We have been told that the Government of India is examining most of these aspects. Interim relief is sought by the petitioners to fish beyond the territorial waters of Tamil Nadu. They would argue that though the government of Tamil Nadu has no jurisdiction to impose any kind of restrictions for fishing beyond its territorial waters, but for the reasons that their vessels are fitted with purse seine nets, the state government is not allowing their vessels to pass through its territorial waters, thereby effectively prohibiting them to fish even in waters beyond the territorial jurisdiction of the State, and for which there is apparently no restriction in law. The petitioners submit that only Union of India has jurisdiction beyond the territorial waters, which has placed no restrictions on fishing by the method called ‘Purse Seine Fishing’. This prayer is strongly opposed by the state of Tamil Nadu, which submits that this method of fishing is a ‘pernicious’ method of fishing, as it is harmful to marine life, including fish. [It is submitted that] PSF is a non-selective fishing technology which captures all kinds of fish, which would include protected species as well. It, therefore, has a dangerous effect on ecology. Moreover, it is a method which is used by affluent and rich fishermen or big fishing companies, as this technology is costly and is beyond the reach of ordinary fishermen. The vast majority of fishermen of the state of Tamil Nadu who are traditionally engaged in fishing for their livelihood cannot afford this technology and depend on the traditional method of fishing. He would also submit that even if the petitioners would be fishing beyond the territorial limits of the State, they would be catching a large quantity of fish which has its movement towards the coast and by catching them midway the petitioners are depriving the traditional fishermen of their catch, which belongs to them...It is further submitted that since the matter is still under consideration, it would be better to decide the entire matter and not pass any interim orders as it would have huge ramifications throughout the country, particularly in the coastal belt, where fishing communities survive on their traditional methods of fishing… After hearing both the sides at some length, we are of a prima facie opinion, that interests of all parties need to be protected. Hence, we propose to pass a restricted interim order, allowing the Purse Seine Fishing beyond the territorial waters of Tamil Nadu, but within the Exclusive Economic Zone, with certain conditions.” [Order by bench of Justices A.S. Bopanna and Sudhanshu Dhulia in Fisherman Care v. Government of Tamil Nadu, 2023 LiveLaw (SC) 58]

4. Liberalisation of premature release policy after conviction to be considered

In determining the entitlement of a convict to premature release, the policy of the state government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide for more beneficial terms, the same should also be borne into mind…We are of the considered view that the state government shall freshly consider the application [by a convict for premature release]. Since the grant of premature release is an executive function related to Article 162 of the Constitution, we are of the view that it is appropriate for the government to re-evaluate the matter by bearing in mind all the relevant circumstances which have been noted.” [Order by bench of Chief Justice D.Y. Chandrachud, and Justices P.S. Narasimha and J.B. Pardiwala in Hitesh v. State of Gujarat, Writ Petition (Criminal) No. 467 of 2022]

5. Difficult to proceed on sympathies, as much as the court has them

This is a case where we find it difficult to proceed merely on sympathies, as much as we have the same. The petitioner, young student of 17 years, belonging to the OBC category (non-creamy layer) obtained All India Rank (general) of 481 and All India Rank (OBC) of 30 in CLAT 2023 UG examination. However, he made a crucial mistake while filling the form. He informed that he belonged to creamy layer even though he uploaded the certificate where it was stipulated that he was not part of the creamy layer. This mistake has cost the candidate heavily, as despite his merit if he is treated as a creamy layer, then the benefit of reservation would not be available. The petitioner made a grievance about the same and then filed a writ petition Before the Punjab and Haryana High Court at Chandigarh. A perusal of order shows that after arguing at length, counsel for the petitioner confined the grievance to his application stated to be pending before the grievance redressal committee constituted by the consortium of National Law Universities, to be considered sympathetically…Learned counsel for respondent submitted that the application would be considered and decided expeditiously as per law. Petitioner has filed a special leave petition under Article 136 against the said order. The impugned order does not specify the timeline for his application to be decided. Be that as it may, the grievance redressal committee has to take a call so that if the petitioner is successful, the relief does not become illusionary. We thus call upon the grievance redressal committee to take a call on the representation in time so that on the petitioner succeeding is not denied relief if he is successful since seats may be available.” [Order by bench of Justice Sanjay Kishan Kaul and Abhay S. Oka in Arjun v. Consortium of National Law Universities & Ors., Special Leave Petition (Civil) No. 1752 of 2023]

6. Bail applications cannot be dismissed in default

“Learned counsel for the appellant has placed on record almost 50 consistent orders passed by one Court on [a particular day] dismissing the bail application filed under Section 438 of the Code by the individual applicants for non-prosecution and the orders are in the standard format passed by the Court. We disapprove such practice adopted by the High Court in passing orders for the dismissal of bail application in default.” [Order by bench of Justices Ajay Rastogi and Bela M. Trivedi in Rahul Sharma v. State Of Uttar Pradesh, 2023 LiveLaw (SC) 64]

7. Person with colour-blindness not considered disabled and stuck in limbo

“The petitioner is aggrieved because he was discharged [from Tamil Nadu Generation and Distribution Corporation Limited] after he was selected and appointed to the post of Assistant Engineer in 2015. He joined the service in March 2017. It was transpired that during the course of his medical examination he was colour blind. He was therefore, referred to, on two occasions, to separate medical experts, who confirmed his condition of defective colour vision. Consequently, the respondent-employer sought to initiate proceedings alleging that he had withheld information with regard to his inadequacy in physical fitness. The petitioner, aggrieved, approached the Madras High Court, which directed the respondent-employer to re-examine the issue and refer the candidate to another Medical Board, which it did. Pursuant to this medical report (third in the series), petitioners’ services were terminated by the impugned order. The High Court allowed the writ petition, which the division bench set aside…This Court is prima facie of the opinion that as a consequence of the impugned judgment, there is every likelihood of the petitioner being stuck in a limbo as it were, as he would not be considered as a person with disability under the Persons with Disabilities Act, 2016, on the one hand having regard to the nature of the coverage of that enactment and on the other he would perhaps be also unable to apply for any future public employment as he would be dutybound to disclose his past service. Given that the petitioner had completed a technical qualification, his future would be bleak. In these circumstances, this Court is of the opinion that the employer should consider, to what extent, the petitioner can be accommodated in the same post with some responsibilities, having regard to the nature of his qualification; either in policy or at planning levels.” [Order by bench of Justices S. Ravindra Bhat and Dipankar Datta in Mohamed Ibrahim v. The Chairman and Managing Director & Ors., Special Leave Petition (Civil) No. 12671/2022]

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