The Himachal Pradesh High Court has issued a set of directions to contain the spread of coronavirus, after noting that the state has witnessed a “drastic surge” in infections, with the highest fatality rate in the country.

Justices Tarlok Singh Chauhan and Justice Chander Bhusan Barowalia were dealing with a plea filed in connection with the lack of oxygen facilities and non-operational ventilators when it decided to expand the scope of it to the entire state regarding Covid management.

The Division Bench took note of the present situation in the state where infection cases have spread to not only urban but rural areas too. It observed that many deaths have been reported during the past few days from various parts of the state due to acute shortage of oxygen and medicines. There is also no system in place to comprehend how many normal beds, ICUs and ventilators are available in government and private hospitals.

RT-PCR test results are delayed and, in the meantime, if a patient dies, the body is handed over to the family members and cremation in such cases is not being conducted as per established Covid protocols.

Senior Advocate BN Mishra, for the petitioner, also submitted that only the rich and influential are being admitted to hospitals where there is availability of oxygen and some lifesaving drugs, while those belonging to the middle class, poor and below poverty line families are left without treatment.

He also told the court that the State Government is being discriminated against by the Central Government with regard to supply of drugs like Remdesivir, Favipiravir and Tocilizumab. Recently, only 3,000 vials have been allocated to the State Government, whereas, those states having lesser populations and far lesser Covid-19 cases have been supplied a far greater number of vials.

Directions

In light of these developments, the court has issued the following directions to the State:

1. Increase the number of authorized laboratories/clinics/hospitals which can carry on the testing for a larger percentage of population.

2. Increase the number of testing being done in the bigger towns of the State. The State Government should consider the use of other kits, besides the Rapid Antigen Kit, or the RT PCR tests, for increasing the tests being carried out on a daily basis.

3. In order to increase the testing facilities in the hill districts of the State, the State Government should consider sending ‘mobile vans’ which are fully equipped for carrying out the testing of Covid-19 virus.

4. The State should increase the number of dedicated Covid Hospitals. For, merely having few dedicated Covid hospitals, is too little to tackle the menace, especially when the pandemic is likely to spread and increase throughout the State in the coming months.

5. The State is directed to increase the number of beds available in the hospitals. It shall ensure that the majority of the beds are equipped with Oxygen tanks and sufficient numbers of beds are equipped with ventilators. If necessary, the number of ICUs in the hospitals should be increased.

6. The State Government is directed to ensure that the PPE kits and other protective gear, such as gloves, masks, and sanitizer are provided to all the medical staff, especially to the Doctors, Nurses, Ward boys to look after Covid patients.

7. The State Government is directed to publish the names and locations of the testing centres, and the names and locations of Hospitals/Dedicated COVID-19 Health Care Centres in the media bulletin on a daily basis. The media bulletin should clearly indicate the total number of beds available in each hospital/Dedicated COVID19 Health Care Centres, and the number of vacant beds available in each hospital. It should also indicate the class of the beds i.e. the number of beds attached with ventilators, number of beds attached with Oxygen cylinders and the number of beds without any Oxygen tank/ Cylinder.

The state has also been directed to furnish information about vacant beds for Covid patients, oxygen supply, a plan under the Disaster Management Act to tackle the Covid-19 cases, and steps taken to ensure the availability of essential drugs including Remdesivir, Favipiravir and Tocilizumab.

The order may be read here: 

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The High Court of Himachal Pradesh, while hearing a plea of an inter caste couple where the man alleged that he was threatened by the woman’s upper caste family, remarked that women are not cattle sans rights. 

Justice Vivek Singh Thakur reportedly observed, “It is to be remembered that a girl is not a cattle or non-living thing but a living independent soul having rights, like others, and, on attaining the age of discretion, to exercise her discretion according to her wishes. Unlike ancient western thought, wherein a female was supposed to be created by God from rib of a man for enjoyment of man, in India, a female was always considered not only equal but on higher pedestal than male since Vedic Era, except for evils of Medieval Period, which are necessarily to be eradicated in present era”.

The petitioner man alleged that the woman was detained by her family members so as to prevent solemnisation of marriage of the petitioner with her. He further claimed that the only reason behind the abduction and illegal detention of the woman was because he belonged to a caste that was considered lower, as per the woman’s family.

So, the petitioner prayed for her production and for directions to the State to provide appropriate security to the petitioner and his family members “as there is an imminent threat to their lives and property”.

After perusing the facts of the case, the judgment in paragraph 12 read: “We are living in a State governed by the Constitution and discrimination on the basis of caste by denying of right to choose spouse, is in violation of Fundamental Rights guaranteed under the Constitution of India”.

Recognising the independence of thought as a fundamental feature of Indian culture, Justice Vivek Singh said, “So far as opposition to marriage for difference of caste is concerned, the same is result of spiritual as well as religious ignorance leading to behaviour in violation of constitutional mandate, despite the fact that Constitution is an embodiment of ancient values of Bhartiya Society. It is a basic spiritual as well as religious mandate of all religions that God is everywhere, in everyone and everyone is equal before God. Not only this, it is also considered that existence of God is not only in living creatures but is also in non-living things and, thus, no one is to be discriminated on account of sex, caste, creed, race, colour or financial status.”

The court then referred to the ancient Indian texts to elucidate the ills of discrimination. He said, “Vedas propound a principle of equality and betterment of all without any discrimination by pronouncing that we should work together, eat together, march together and live together for betterment and progress of all. Discrimination on the basis of caste, under the garb of religion, is antithesis of basic spiritual and religious principles which are, unfortunately, relied upon for discrimination. Therefore, discrimination on the basis of caste is not only in violation of constitutional mandate but also in opposition to real Dharma.”

On the right to marry and freedom to choose as an adult, the court cited some examples of ancient Indian scriptures referring to the marriages of Sati and Lord Shiva, Rukmini and Lord Krishna and Subhadra and Arjun. The Single-judge Bench said, “Oldest example of marrying a person of choice is the marriage of Sati with Lord Shiva, which was solemnized in defiance and against the wishes of her father King Daksha Prajapati. Another more than 5,000 years old example of choosing the spouse according to the choice of the girl is of Rukmani and Lord Krishna, as Rukmani was having liking and wish to marry Lord Krishna, whereas her brother was intending to arrange her marriage with Shishupal, whereupon Rukmani had wrote a letter to Lord Krishna to take and accept her as his spouse and Lord Krishna did so by taking her from the Mandapa. Similar example is the marriage of Subhadra and Arjun, where family members were intending to marry Subhadra somewhere else, whereas Subhadra had chosen Arjun as her spouse.”

Emphasising on the fact that women have been placed higher socially ever since the Vedic era, Justice Singh remarked, “Unlike the ancient western thought, wherein a female was supposed to be created by God from the rib of a man for enjoyment of man, in India, a female was always considered not only equal but on higher pedestal than male since the Vedic Era, except for the evils of Medieval Period, which are necessary to be eradicated in present era.”

As the woman was an adult, the court held that she was capable of making her own decisions and was entitled to the right recognized by the Constitution to lead her life exactly as she pleases. The Court then, directed the Superintendent of Police Shimla and Hamirpur, SHOs Sadar (Shimla), District Shimla and Nadaun, District Hamirpur, Himachal Pradesh to depute Police Personnel to escort her from the Court premises to the destination she desires to go.

The judgment may be read here:

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The High Court of Himachal Pradesh granted bail to a 20-year-old in a case where he has been accused of raping a minor girl aged 16 years. At the outset, naturally, it does not sound like an ideal decision. While a reading of the order, and the facts and circumstances could validate the decision made by the court, it is the detailed bail conditions that are worth a mention.

The accused has been charged under Sections 363 (kidnapping), 366A (procuration of minor girl), 376 (rape) of the Indian Penal Code, 1860 (IPC), Section 4 (Punishment for penetrative sexual assault) of the Protection of Children from Sexual Offices, Act, 2012 (POCSO Act) and Section 3 (Punishments for offences of atrocities) of the SC & ST Act, by Theog Police Station in Shimla, Himachal Pradesh.

The parents of the minor girl alleged in their complaint that the accused allured the girl into staying with him and committed rape on her. During the investigation, the minor girl is known to have informed the police that she knew the accused for 3-4 months and was in touch with him through Facebook as well as phone. She also told the police that they indulged in sexual intercourse before and also after having “participated in a marriage”.

The court was informed that the accused did not have any criminal history and the counsel for the accused contended that incarceration before the proof of guilt would cause grave injustice to the petitioner and his family.

While making its decision, the court held, “Pre-trial incarceration needs justification depending upon the offense’s heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.”

The court, basis the facts and circumstances, as revealed during the course of investigation held that “Although, she (minor girl) could not have consented for sexual intercourse as well as leaving custody of her custodian but for deciding the bail, her conduct is sufficient to grant bail to the petitioner.”

While deciding to grant bail, the court held, “An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail”.

Bail conditions

The court granted bail subject to furnishing of personal bond of Rs. 10,000 and gave many other alternatives if the same was not possible for the accused, giving option of surety bonds and fixed deposit.

The court even imposed conditions on manner of investigation and directed that the accused shall not be subjected to inhuman treatment:

“The petitioner shall join investigation as and when called by the Investigating Officer or any Superior Officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.

The court even allowed service e of summons as well as warrants over email as well as Whatsapp in addition to standard modes of serving.

The court even directed the accused to refrain from visiting the place of occurrence (of the alleged crime) while on bail. Further, in a bid towards victim protection, the court specifically gave directions to the accused that he “shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any other social media, nor roam around the victim’s home. The petitioner shall not contact the victim.”

The court even asked the accused to surrender any firearms if he is in possession of any. Further, the court informed the accused of his rights by stating that if “the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition”.

The court directed the SHO of the police station to send a copy of this order to the complainant and victim and informed the victim that in case she notices stalking or any violation of this order, she may either inform the SHO of the concerned Police Station or write to the Trial Court or even the high court.

The accused was granted bail but at the same time, through a much comprehensive set of bail conditions, the court has tried to safeguard the rights of not just the victim but of the accused as well; a step towards improved criminal jurisprudence indeed.

The court order may be read here.

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In the matter Mamta Devi vs State of Himachal Pradesh and others (CWP No. 3100 of 2020), the Division Bench at Shimla has held that “The State cannot act in a misogynistic way, carving ways to debar compassionate employment to married daughters and such acts fall within the definition of discrimination based on sex, which is against Article 15 of the Constitution of India.” This remark was made by the High Court to allow the daughter’s plea seeking compassionate appointment in her deceased father’s position.

Mr. Maan Singh appeared for the petitioner and Mr. Hemant Vaid, Mr. Hemanshu Mishra (Additional Advocates General) and Mr. J.S Guleria (Deputy Advocate General) appeared for the State before the Bench comprising Justice Sureshwar Thakur and Justice Chander Bhusan Barowalia on October 28, 2020.

The Bench further added that, “If the marital status of a son does not make any difference in the eyes of law, then it is difficult to think, how marital status of a daughter makes such a huge difference in her eligibility. In fact, marriage does not have proximate nexus with identity and even after marriage, a daughter continues to be a daughter. Therefore, if a married son has right to compassionate appointment, then a married daughter also stands on the same footing and her exclusion does not have any plausible basis or logic, so her exclusion has no justifiable criteria.”

The court also made some crucial observations with respect to the policy of compassionate employment. It said, “The object of compassionate employment is not only social welfare, but also to support the family of the deceased government servant, who dies in harness, and by excluding married daughter(s) from the sweep of the family, the real purpose of social purpose cannot be achieved.”

“The aim and object of the policy for compassionate appointment is to provide financial assistance to the family of the deceased employee. In the absence of any male child in the family, the State cannot shut its eyes and act arbitrarily towards the family, which may also be facing financial constraints after the death of their sole bread earner”, it added further.

The Bench also rejected the submission made by the Respondent State that the compassionate employment policy does not discriminate against married daughters and the solitary object and rationale behind the same is that married daughters are no more dependent on the employee who died in harness. It said, “The policy of providing compassionate employment, which is in vogue, evidently provide a criterion of dependency on the deceased government servant, now, it is difficult to understand that married sons remain dependent and dependency of married daughters ceases with marriage, hence forming an exception.”

The court gave a twin fold hypothetical rationale behind such an exception. It said, “This exception may have hypothetical rationale, which though not offered, behind depriving employment assistance to a married daughter and it can be twin-fold, viz., (i) with marriage, financial dependency of a female shifts from her parents to her husband and his family; and (ii) least or no expectation from a married daughter to look after her surviving mother/father and siblings, who have chosen to give ‘No objection’ in favour of a married daughter, for her’s being given employment on compassionate grounds.”

The court opined that both these rationales failed to “constitute a valid and viable basis depriving employment on compassionate grounds to married daughters, especially when daughters, married or unmarried have been given all legal rights, as available to sons (married/unmarried), after the death of parents.” The real test of dependency, according to the court is when an applicant seeking for compassionate employment was dependent on the parent “prior to his/her demise.” Thus, any other condition debarring a married daughter “is not only against the scheme of Constitution of India, but also against the dependency test.”

Background

The petitioner’s father was a class IV employee in a District Ayurvedic Office, Kullu who died before retirement. As the entire family was financially dependent on the deceased, the petitioner who is M.A. (Hindi) and has a diploma in Computers, applied on compassionate grounds. But her application was rejected on the basis that this policy of employment assistance was not granted to “married daughters of the deceased Government employee.”

The court allowed the petition filed and directed the office to provide her a compassionate appointment if she otherwise fulfils other required eligibility criteria under the policy.

Similar orders by High Courts

The Chhattisgarh High Court, in Smt. Sarojni Bhoi vs State of Chhattisgarh & Ors (WPS No. 296 of 2014) allowed the Writ petition moved by a married daughter of a deceased and directed the Government to reconsider the claim of petitioner for being appointed on compassionate grounds afresh. Justice Sanjay K. Agrawal said that a policy of the State Government disqualifying a married daughter and excluding her from consideration apart from being arbitrary and discriminating is a retrograde step of the State Government as a welfare State.

“A daughter even after marriage remains the daughter of her father and she cannot be treated as not belonging to her father’s family. The institution of marriage is an important and basic civil right of man and woman and marriage by itself is not a disqualification and impugned policy of the State Government barring and prohibiting the consideration of the married daughter from seeking compassionate appointment merely on the ground of marriage is plainly arbitrary and violative of constitutional guarantee envisaged in Article 14 (equality before law), 15 (discrimination against all grounds) and 16(2) (discrimination on all grounds in an office) of the Constitution of India being unconstitutional”, the court held.

In Joint Registrar/ Managing Director, Virudhunagar District Central Co-operative Bank Ltd vs P Asothai (W.A. [MD] No. 122 of 2017), the Madras High Court directed the Government to offer the daughter compassionate employment in place of her deceased father and also took note of the role played by women in the society. “Women are not just the procreators of the clan, but have been welcomed to become that reliant person who can take care of her own family and her newfound family. ‘She’ have risen from dependents to nurtures of relationship, and for a woman to take care of her own parents is not a norm, but a welcome trend in society as they are doing an impressive diligence at it”, the Division Bench of Justices R.Subbiah and J.Nisha Banu held.

They further added, “The gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance and therefore, our constitution has not discriminated male from female and any order passed discriminating male from female will be only against the Constitution and it cannot be sustained.”

Apex Court ruling

The Supreme Court has also opined on this theme significantly holding that marriage cannot be a ground for not granting compassionate employment to women. In Miss C.B. Muthamma v. Union of India 1979 SCC (4) 260, the Supreme Court said that no discrimination can be made in public employment on gender basis as Article 16(2) of the Constitution of India clearly provides that no citizen shall on the ground of sex be ineligible or discriminated against in respect of any employment or office under the State. In this case the petitioner was a senior member of the Indian Foreign Service who was denied promotion to Grade I of the Indian Foreign Service illegally and unconstitutionally.

“If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action”, it remarked.

On the issue of whether pension and other welfare schemes would interfere with providing compassionate employment, the Supreme Court in Balbir Kaur vs Steel Authority of India Ltd 2000 (6) SCC 493 held that, “Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family – this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earners, but that would undoubtedly bring some solace to the situation.” So, as a rule welfare schemes and benefits cannot substitute for employment.

The Himachal Pradesh order may be read here: 

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