Category Archives: Constitutional Law

Delhi High Court takes up the “No Cashless Facility” Health Insurance Issue

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One might conclude that if one bought a health insurance policy, and paid a higher premium in order to avail of the “cashless facility”, the said “cashless facility” would actually be made available to one. Such a conclusion, however, apparently proved to be erroneous in a number of cases, including one involving a cancer patient.

An Individual Policy Holder who bought an insurance policy from Oriental Insurance Co. Ltd. was told that the “cashless facility” which he had paid for would not be made available to him because he had bought his policy as an Individual (as opposed to having bought his policy through a company). It wasn’t entirely clear why this should have made a difference, given that he had paid a higher premium for the “cashless facility”, and that there appeared to be no reasonable ground for differentiation between a policy-holder who was an Individual Policy Holder and one who was a Corporate Policy Holder.

As a result of this ostensible discrimination, and of not being able to avail of a service for which he had paid, the Individual Policy Holder filed a Writ Petition before the Delhi High Court which came up for hearing on July 30, 2010, before Hon’ble Mr. Justice S. Muralidhar. The Hon’ble Court issued notices to the Insurance Regulatory and Development Authority, The Oriental Insurance Co. Ltd. and Genins India Ltd. (the Third Party Administrator) — the Writ Petition was maintainable as the IRDA falls within the scope of the definition of “State” in Article 12 of the Constitution, as does the insurance company which is a PSU.

The Right to Die

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Quoting an English writer, a Report of the Law Commission says: “It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation.”

In this Report, the Commission has argued for the deletion of Section 309 of the Indian Penal Code which says:

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for term which may extend to one year or with fine, or with both.

In addition to this, the Penal Code contains the following provisions which deal with the abetment of suicide.

Section 305: If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Section 306. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Over the years, there has been a good deal of controversy surrounding these provisions of the law.

In P Rathinam v. Union of India (1994 3 SCC 394), the Supreme Court held that Section 309 violated of Articles 14, 21 which deal with the fundamental right of equality and the right to life and liberty enshrined in the Constitution. However, two years later, in Gian Kaur v. State of Punjab (1996 2 SCC 148) it overruled its decision in P Rathinam saying that the Right to Life does not include the Right to Die.

In the Gian Kaur case, the in-laws of a woman who had committed suicide because of being harassed, inter alia, claimed that they could not be guilty of abetting her suicide since the act of committing suicide was itself not an offence. In a unanimous decision, the Supreme Court overturned the decision given in the P Rathinam case. It held that any aspect of life which makes it dignified may be read into Article 21 of the Constitution but no right that extinguishes life is contemplated by the Article. Suicide was therefore declared to be incompatible and inconsistent with the Right to Life as it is understood under the Constitution. (Ref.: Indian Women: A Socio-Legal Perspective by Saikia, N)

In addition to suicide, there are other situations in which the question of whether the right to die exists has been debated. These situations include those where doctors are asked to be involved in assisted suicides or to perform mercy killings.

There are some circumstances where a doctor’s involvement would not be questioned. For example, a doctor would not normally be held liable for discontinuing life support for a brain dead patient on the request of his family. However, S Balakrishnan argues that the refusal of any modality of treatment including life support is not an act of suicide or an attempt at suicide.

Nonetheless, the fact remains that the law on the subject of euthanasia and assisted suicide is unclear. The Law Commission has begun to study the issue of limiting life support to patients in intensive care units.

Fundamental Rights Cannot be Protected Abroad

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A Sikh body, Singh Legal Foundation, filed a petition in the Supreme Court with reference to France’s banning conspicuous religious symbols (including turbans) in certain circumstances in the public sphere.

The petitioners wanted the Court to direct the the Central Government to defend the fundamental rights of Indian citizens both within the country and without. Saying that Constitutional provisions have to be read along with international conventions which require the rights of religious groups to be protected, they contended that the French ban on wearing turbans violates the fundamental rights of Indian Sikhs who live in France and that the government has a duty to defend their rights in France.

A Bench of the Supreme Court headed by K G Balakrishnan CJ, however, said that it has no jurisdiction to interfere with the law of a foreign land and suggested that the petitioners approach French authorities or, possibly, either the ICJ or the ECJ. It went on to say that it could only protect the fundamental rights of Indian citizens within the boundaries of India and not in a foreign land.

Even though the Bench said that it has no jurisdiction, it pointed out that the Government has in fact raised the issue with French authorities.

Ram Jawaya

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In Ram Jawaya’s case, the procedure which was framed by the State of Punjab prior to May 1950 for selection and approval of text books for use in schools was that the State Government used to invite publishers and authors to submit their books for examination and approval by the Education Department and the State Government after scrutiny selected out of them a certain number of text books, any one of them could be used by the schools. This procedure was slightly altered in May 1950 and under the altered procedure, the State Government took upon itself the monopoly of publishing text books in some of the subjects and with regard to the rest, the State Government selected and approved text books–not several as before but only one on each subject-out of those submitted by the publishers and authors and reserved for itself a certain royalty on the sale proceeds of such approved text books.

In 1952, however, changes of a far more drastic character were introduced by a notification dated 9th August, 1952 issued by the State Government. By this notification the State Government took over the publishing, printing and selling of text books exclusively in its own hands and the private publishers were altogether ousted from this business. The petitioners who were a firm carrying on the business of preparing, printing, publishing and selling text books there–upon moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the State Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental right of the petitioners under Art. 19(1) (g). This Court, however, took the view that no fundamental right of the petitioners to carry on their business of preparing,-printing, publishing and selling text books was infringed by the notifications issued by the State Government in furtherance of their policy of nationalisation of text books for students and the petitioners were, therefore, not entitled to any relief under Art. 32 of the Constitution.

Mukherjea, C. J., speaking on behalf of a unanimous Court, pointed out:

“The procedure hitherto followed was that the Government used to invite publishers and authors to submit their books for examination and approval by the Education Department and after selection was made by the Government, the size, contents as well as the prices of the books were fixed and it was left to the publishers or authors to print and publish them and offer them for sale to the pupils. So long as this system was in vogue the only right which publishers, like the petitioners had, was to offer their books for inspection and approval by the Government. They had no right to insist on any of their books being accepted as text books.

So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them. A trader might be lucky in securing a particular market for his goods but if he loses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for ever.

On the one hand, therefore, there was nothing but a chance or prospect which the publishers had of having their books approved by the Government, on the ‘other hand the Government had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books they would purchase the copyright in them from the authors and others provided the latter were willing to transfer the same to the Government on certain terms, we fail to see what right of the publishers to carry on their trade or business is affected by it. Nobody is taking away the publishers’ right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as text books by the Government it is immaterial so far as they are concerned whether the Government approves of text books submitted by other persons who are willing to sell their copyrights in the books to them, or choose to engage authors for the purpose of preparing the text books which they take up on themselves to print and publish The action of the Government-does not amount to an infraction of the fundamental right guaranteed by Article 19(1) (g) of the Constitution.”

Source:
Naraindas Indurkhya v. The State of Madhya Pradesh and Others
Date of Judgment: 18/03/1974
Bench: Bhagwati P N, Ray A N (CJ); Khanna H R; Matthew K K; Alagiriswami A
Citation: 1974 AIR 1232; 1974 SCR (3) 624; 1974 SCC (4) 788

Fundamental Duties

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In a judgment, Chandra Bhavan v. State of Mysore AIR, 1970 SC 2042, upholding the constitutionality of the Minimum Wages Act Justice Hegde pointed out, “It is a fallacy to think that under our Constitution there are only rights and no duties. The provisions in Part IV enable the Legislatures to impose various duties on the citizens. The mandate of our Constitution is to build a welfare society and that object may be achieved to the extent the Directive principles are implemented by legislation.”

This was even before the the 1976 Amendment Act which introduced Part IV A that deals with Fundamental Duties into the Constitution. According to this amendment, under Article 51 A of the Constitution, it shall be the duty of every citizens of India:

  1. to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
  2. to cherish and follow the noble ideals which inspired our national struggle for freedom;
  3. to uphold and protect the sovereignty, unity and integrity of India;
  4. to defend the country and render national service when called upon to do so;
  5. to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
  6. to value and preserve the rich heritage of our composite culture;
  7. to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
  8. to develop the scientific temper, humanism and the spirit of inquiry and reform;
  9. to safeguard public property and to abjure violence;
  10. to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

According to Shubhankar Dam, the use of the word “fundamental” appears significant especially in the light of the opinion of Sikri C.J. in Keshavananda Bharati v State of Kerela, (1973) 4 SCC 223. The learned Justice held:

I have referred to the variation in the language of the various articles dealing with the question of amendment or repeal in detail because our Constitution was drafted very carefully and I must presume that every word was chosen carefully and should have its proper meaning. I make this principle on the observations of the United States Supreme Court in Holmes v Jennison (10 L. Ed. 579) and quoted with approval in Williams v US (77 L. Ed. 1372) – ‘In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning, for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added…’

In Minerva Mills v Union of India, (1980) 3 SCC 625, Bhagwati J. said:

A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Otherwise the conventions of the Constitution and even rules of international law would no longer be liable to be regarded as rules of law. This view is clearly supported by the opinion of Prof. A.L. Goodhart who while commenting upon this point says, ‘I have always regarded that if a principle is recognised as binding on the legislature, then it can be correctly described as a legal rule even if there is no court that can enforce it.’

Quoting this, Shubhankar Dam points out that ‘while fundamental rights have been made specifically enforceable and what are known as Directive Principles of State Policy specifically non-enforceable, there is no provision that restricts the enforceability of fundamental duties. In the absence of any such specific limitation,12 fundamental duties may be regarded as directly enforceable’.

The National Commission to Review the Working of the Constitution which was appointed by the Government on February 22, 2000 under the Chairmanship of M.N. Venkatachalaiah, a retired Chief Justice of India, submitted its report to the NDA Government in March 31, 2002. It inter alia suggested that Fundamental Duties be enlarged so as to accelerate the socio-economic development of the people without tampering with the basic structure of the Constitution.

The Laws on Trafficking and Prostitution

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Article 23 of the Indian Constitution prohibits in human-beings and forced labour. It says that traffic in human beings, and other similar forms of forced labour are prohibited and any contravention of this provision is offence punishable in accordance with law. However, this does not prohibit the State from imposing compulsory service for public purposes although in imposing such service, the State cannot make any discrimination on grounds only of religion, race, caste or class or any of them.

In Gaurav Jain v/s Union of India, 1997, the Supreme Court observed that ‘women found in the flesh trade should be viewed more as victims of adverse socio-economic circumstances than as offenders in our society. Prostitution in Five Star Hotels is a licence given to persons from the higher echelons. The commercial exploitation of sex may be regarded as a crime but those trapped in custom-oriented and gender-oriented prostitution should be viewed as victims of gender vulnerability’.

There are some provisions in the Indian Penal Code to try to curb trafficking and prostitution. They include Sections:

366: Kidnapping, abducting or inducing a woman to compel her marriage, or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be so forced or inducing, by means of criminal intimidation or of abuse of authority or any other method of compulsion, any woman to go from any place for any of the purposes mentioned earlier


Whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.


366 A: Procuration of a minor girl


Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.


366 B: Importation of a girl from foreign country


Whoever imports into India from any country outside India or from the State of Jammu and Kashmir any girl under the age of twenty-one years with intent that she may be or knowing it to be likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.


367: Kidnapping or abducting in order to subject person to grievous hurt, slavery, or to the unnatural lust

Whoever kidnaps or abducts any person in order that such person may be subjected to or may be so disposed of as to be put in danger of being subject to grievous hurt or slavery or to the unnatural lust of any person or knowing it to be likely that such person will be so subjected or disposed of shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.


372: Selling a minor for purposes of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose

Whoever sells, lets to hire or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person will at any age be employed or used for any such purpose shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

Explanations:

§ When a female under the age of eighteen years is sold, let for hire or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

§ ‘Illicit intercourse’ means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the Personal Laws or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi-marital relation.

373: Buying a minor for purposes of prostitution, or illicit intercourse with any person or for any unlawful and immoral purpose


Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanations:
  • Any prostitute or any person keeping or managing a brothel who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.
  • ‘Illicit intercourse’ has the same meaning as in Section 372.

The punishment for each of these offences is imprisonment of either description – simple or rigorous – for a term which may extend to ten years and, possibly, a fine. Also, it is enough if the accused knows that the woman involved is likely to be subjected to any of these offences for him to be guilty of having committed the offence itself.

None of these provisions which deal with prostitution in Indian Law expressly make prostitution illegal though. The result is that the Indian Government has been scrambling to amend the Immoral Traffic Prevention Act.

Victor Malarek has pointed out that ‘what happens to most trafficked women whether they are tricked, abducted or willing is criminal. The level of physical violence and psychological intimidation used to control them is deliberate and extreme. It is meant to instil fear, destroy their will, and force them to comply.’

The Immoral Traffic Prevention Act, 1986 which now governs prostitution does not make prostitution itself illegal. It makes a lot of the allied activities – such as trafficking and pimping – illegal but commercial sex workers are often treated like criminals with no rights nonetheless. Even as it stands today, the Act has failed in its objective – it tends to create human rights abuses and does little to prevent them.

An order to a prostitute to remove herself from the limits of a busy city under the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956, and the placing of restrictions on where she could live/move was held to be reasonable by the Supreme Court in the case of the State of Uttar Pradesh v/s Kaushalya, 1964.