Negative Crude Oil Prices amid Covid-19 and what it means for India.        

Govind Hari Lath

For the first time in history, the international crude oil prices have fallen below zero at a time when almost the entire world is under lockdown to combat Covid-19 and there is practically no demand for crude oil with the US benchmark crude, West Texas Intermediate (WTI) May futures sinking to a record minus $37.63 per barrel. The prices dropped by almost 300 percent. Negative pricing implies sellers are paying buyers to take deliveries in a bid to avoid incurring of storage cost. The previous lowest price was after World War II. The main oil storage terminal in Cushing, Oklahoma is nearly full owing to abundant US production but the refineries slowing their output.

How did Oil prices fall below zero?

Even much before this epidemic has taken its way and countries worldwide started going into lockdown, the crude oil prices have been falling. It was near to $60 a barrel at the start of 2020 and by March end, it was closer to $20 a barrel. This has been the trend more or less since the USA became the largest producer of crude oil in 2018 and thereby the supply continuously becoming more than the demand.

Historically, the oil market and the prices was controlled by the Organization of the Petroleum Exporting Countries (OPEC), led by Saudi Arabia (which accounts for 10% of the global demand). Recently, the OPEC+ has been working with Russia, to fix the global price and supply but early March this year, the concord came to an end as there was disagreement between the duo over production cuts and the requirement for keeping the prices stable.

As a result, oil exporting countries started undercutting each other on price although continuing to produce the same quantity and this was followed by the outbreak of coronavirus, thereby reducing the economic activity and overall demand. With this, the supply-demand mismatch aggravated all through March and April resulting in all the storage capacity getting down to their limits.

Impact on India:

Brent crude, a low density crude, ideal for refining is the international benchmark pricing used by the OPEC, while WTI crude is a benchmark for US oil prices. Since India imports primarily from OPEC countries, Brent is the benchmark for oil prices in India too. Although WTI crude is cheaper compared to Brent crude, but India prefers Brent crude because the loading, inland movement and a longer ocean voyage involved in buying American crude oil narrows down the price difference.

However, Indian consumers would barely gain from the drop in crude prices as the government increases its excise duties and taxes to supplement its revenue collections and keep a balance on current account deficit, which prevents any sharp decline in retail prices.

The extended Lockdown in India has also plunged the demand of Petrol and Diesel by almost 60 percent and also with no air travel, the Aviation Turbine fuel (ATF) demand has also come down drastically by 90 percent so there is no point in importing more fuel at a time when there is very less demand as well as considering the fact that India has a very low storage capacity called Strategic Petroleum Reserve (SPR) of 37 million barrels which is equal to 13-16 days of usage.

Also, as previously highlighted the price of fuel in India is based on the average of prices of Brent, Dubai and Oman crude prices, which is trading at an average of $25.57 a barrel with just a 9 percent slide and WTI price is not a factor on it. Therefore the negative pricing in the USA market will not have any impact on the Indian market.

Conclusion:

This epidemic has rapidly evolved from a global health crisis to a financial one and the world leading oil producing countries are facing the heat. With the onset of almost 80 percent manufacturing units in China, and most of the countries gradually planning to start their industries in a phased manner in a bid to revive the economy, hopefully there will be a surge in demand again soon.

Democracy cannot function with judicial review not being there, it is an essential component of the constitution: – Shri KK Venugopal, Attorney General for India

Pradosh Shetty

After the grand success of “Dattopant Thengadi Lecture Series”, Akhil Bharatiya Adhivakta Parishad (ABAP) announced the commencement of its new online lecture series in the name of an eminent jurist and academician, Prof. N.R. Madhava Menon and the opening lecture of the series was delivered by Shri KK Venugopal (Attorney General for India and Senior Advocate) on “Contours of Judicial Review”

The Attorney General for India is known for not mincing words while talking about the judiciary and how it chooses to operate out of its constitutional purview, and contrary to its finding in various precedents. He, therefore, started his observation by noting, “Supreme Court has done a tremendous amount of work. It has practically tried to wipe away tears from the eyes of the poor… At the same time, it has, in many cases, according to me, exercised powers which can never be termed as judicial adjudication or even within the bounds of judicial activism.”

Mr. Venugopal then began tracing the confrontations of the judiciary with the other branches like the executive and the legislature dating back to the 1950s when the said the government chose to strike down land reform laws on a “strict and liberal interpretation of the constitution”.

He referred to how the Golaknath Case acts as a cornerstone for judicial review and noted the observations made in it, that article 368 of the Indian Constitution cannot be used for amending the constitution. So, when the parliament made certain amendments, it looked as if the court had bowed down to the whims of the parliament.

However, in 1973, a 13-judge bench judgment, with 7-6 Majority in Kesavananda Bharati case, declared that the basic structure is immutable and if amendments are made to the constitution which sought to cripple the basic structure, the court would have no choice but to intervene and strike down the said amendment.

He then went on to mention how Alexander Bickel had described the Supreme court of the USA as the least dangerous branch. However, in Ld. Attorney General’s opinion, he would describe the Indian Supreme Court as “the most powerful branch as they can sit in judgments for the other two branches and have the power to strike down their laws and directions.”

Mr. Venugopal mentioned that the source of vast powers of judicial review was Articles 32, 142, and 226 of the Indian Constitution and further reflected upon the present status of Public Interest Litigation (PIL) in India. He remarked, “Today we find, during the time of COVID-19, the cases that are filed, I mean.. transport all the migrants from one part of the country to another. Unless you have an Aladdin’s lamp and rub it, you cannot suddenly transport. Is it not part of policymaking? … One’s heart is pained at the fate (of the migrants) but the Government is doing whatever is necessary for that purpose.”

He noted that there is a need for the judiciary to exercise restraint, and the concept of constitutional morality which is being used as the new go-to weapon in the armoury of judicial review, should be relooked into. He remarked that Sabarimala case acts as a perfect example where two different judges (J. Chandrachud and J. Indu Malhotra) had concluded with two different views using the same tool of “Constitutional Morality”.

Whilst a question was asked in the context of the trend, whether the idea of Judicial Activism promotes the idea of “Anti-Democracy”. He quipped; “Democracy cannot function with judicial review not being there, it is an essential component of the constitution”.

He went on to add that in separation of powers, which play an important role, none of the branches are more powerful than the other. However, the judiciary is the final interpreter of the constitution and in practice, the power given to them is to test the validity of the law created by the parliament.

Whilst talking about the Judges not being elected persons, he remarked that irrespective of that notion“the quality, integrity, and knowledge should be of the highest quality for the judges at the Supreme Court.”

Mr. Venugopal concluded the lecture noting that “the Bar Council of India should ensure that all law schools in India should be at par with the National Law Schools when it comes to quality and opportunities.”

Mr. Purushaindra Kaurav, the Advocate General of Madhya Pradesh, after the completion of the lecture, tweeted; “Adhivakta Parishad has taken a very useful initiative of online lectures by eminent speakers in the field of law. Today we must hear the highest law officer of the country i.e. Shri K.K Venugopal who is the direct or indirect mentor of many of us like me.”

This demonstrates how Mr. KK. Venugopal has unequivocally touched upon the lives of every lawyer in the country with his nuanced knowledge and contribution to the field of law with his top-notch courtcraft techniques.

This being a lecture series dedicated to Prof. N.R. Madhava Menon, Prof Anirban Mazumder & Prof Shameek Sen of NUJS Kolkata, who had the good fortune of working with Prof. NR Madhava Menon and having been his students, made these thoughtful & heartfelt comments about their mentor during the lecture.

“While Prof. Menon’s most significant contribution has been universally acknowledged to be towards the reformation of legal education and its pedagogy, I will humbly like to flag his most telling contribution to my own life. Having been his student, I have had the privilege of learning my greatest life lesson, “Think like a lawyer, speak like a lawyer”. When the entire world is getting devoured and swayed by the scourge of misinformation and the systematic loss of analytical abilities and critical thinking is conjuring them into believing in the hyper-real and the componential, Prof. Menon’s prophetic words find a constant resonance inside me. As an academic, I definitely try to keep THAT flame of independent thinking alive in me.” – Prof. Shameek Sen, WBNUJS.

“Prof. Menon was an institution in himself, he single-handedly changed the landscape of legal education in India. Whatever little NUJS has achieved, undoubtedly, the credit goes to him” – Prof. Anirban Majumdar, NUJS

The entire lecture can be viewed on YouTube here-

 

Pradosh Shetty is a 5th year Law Student at Symbiosis Law School, Hyderabad.

Online Lecture Series : Dattopant Thengadi Lecture Series

In order to utilize this lockdown period and for the benefit of lawyers, our organization is organizing an ‘Online Lecture Series’ in the name of ‘Dattopant Thengadi Lecture Series’ wherein a Senior Advocate, ASG or a Prominent Legal Personality share his views on a given subject/topic.

In this Lecture Series till now we have organized 10 lectures which have been broadcasted live on Social Media Platforms. The timing of live lecture remains by 6.00 PM on daily basis from Monday to Saturday. Presently we are having more than 8,000 subscribers on YouTube.

Mr. Rakesh Dwivedi, Senior Advocate, Mr. Siddharth Luthra, Senior Advocate, Mr. K.V. Vishvanathan, Senior Advocate, Mr. Sajan Poovyya, Senior Advocate, Ms. Pinki Anand, ASG, Mr. R. Venkatramani, Senior Advocated, Mr. Vikramjit Banerjee, ASG and Ms. Aishwarya Bhati, Senior Adv etc have enlighten the thousands of lawyers with their views on the different topics on the platform of Adhivakta Parishad in this ‘Dattopant Thengadi Lecture Series.

In the furthereance, of present ‘Lecture Series’ today, i.e. on 01.05.2020 Mr. C.S. Vaidhyanathan, Sr. Advocate will be sharing his views @ 6.00 PM on the topic of ‘Dispute Resolution as a Service and the New Normal’, and same will be broadcasted live on YouTube, Facebook and for tomorrow Mr. Harish Salve, Senior Advocate will be sharing his views.

Plight of Indin Seafarers at times of Covid -19; LET THE VOYAGE OF LIFE SAIL

Arun Wighmal

INTRODUCTION

Throughout the course of history, virus outbreaks have created havoc on humanity, sometimes even changed a course of history. It would be apt to state that epidemics are structurally comparable events wherever they take place across the globe. The outburst of Covid-19 creates a sense of déjà vu” with numerous historical epidemic outbreaks transpired in the sheets of history such as Antonine Plague (A.D. 165-180), Plague of Cyprian: (A.D. 250-271), The Black Death (1346- 1353), The Great Plague of London: 1665-1666 and Spanish flu: 1918- 1920 wherein an estimated 500 million people were affected by the same.[1] As the outbreak of Corona Virus (Covid-19) is putting health facilities of world at a challenging position it is imperative to analyze its impact on maritime industry especially in relation to seafarers who also deserve to be put on the board of savours of mankind in line with other respective state emergency services, medical professionals, armed forces as they set a fortune on civil society to receive essential commodities and medical equipments through a sea route.

That it would not be extraneous to state that the impact which Covid-19 has over the global supply chain is massive in nature which has virtually brought the lives of millions of folks at a standstill and has given indentation to the economical and health system of even major developed nations. However, there are many fields of services who are portraying gladiator’s role against the existing evil, one of which none-other than the community of Seafarers, driven with the passion and sense of service to mankind playing extremely important role in keeping the global supply chain of essential commodities alive and active at the cost of putting themselves at health risk by keeping themselves sail to a voyage with a destination port located in even the hardest hit nations in Europe and North America.

PLIGHTS TO NARRATE

It brings us to a crucially relevant sphere of concern i.e. predicaments faced by class of seamen, it would be apposite to state that as reported by U.K based organisation- Human Rights at Sea many seafarers possess an appalling and gloomy tale to narrate wherein they are cramped to stay within the premises of a vessel sailing or anchoring in the sea even when the period of their employment agreement comes to an end and they are left with no option but to confine their lives on a vessel which has no permission to reach ashore as many governmental authorities have prohibited their entries to their territorial waters.

It is pertinent to note that there are other section of seafarers whose employment service contract period has technically not triggered as it stipulates on the time when he/she boards the vessel and due to existing pandemic they are forced to confine themselves either at a hotel or other places of stay at their own economical standing in a foreign land with very little or no assistance from their employer shipping company and concerned consulate general. It would be really hard to feel the psychological as well as physical agony and trauma they must be going through when their financial sources for sustenance are depleting with darkness of uncertainty hovers over their sleep in an alien land.

It is worth mentioning that the community of active Indian seafarers in global maritime industry at present numbers around 40,000 extensively plays a role of vertebrae which have been overlooked to some extent during these hard times by their respective shipping companies coupled with governmental authorities in terms of non-payment of wages, contract extension without informed consent, lack of medical facility etc. Upon contacting, Mr. Yash Wigh who is a third officer currently sailing near USA narrated his impediments in an unequivocal manner;

“There are several issues concerning seamen on board such as many seafarers whose employment contracts are terminated are forced to stay on vessel with no assurance of wages, moreover such a long period of sailing has its massive impact on the psychological and physical health of seafarer equally burdened with the tension about the well being of their family members who are left with no care-taker behind coupled with no sort of financial assistance provided to them by the concerned shipping company or the governmental authorities.”

“Mr. Yash also stated that his vessel has been continuously sailing and no crew change is happening since February which saved ship owners millions of dollars annually which is supposed to be spent on crew change globally. Such amount shall be allocated for the welfare activities such as providing protection kit, sanitizers and other sanitization equipments coupled with immediate financial assistance to stranded seafarers and their respective families, however no such steps are taken so far which spreads a wave of disappointment and sense of worry amongst the concerned.”

 

It is also pertinent to mention that there are several instances when a crew required to obtain permission from the ship owner company to take certain actions on board for example in case of any fault occurs in ODME (Oil Discharge Monitoring Equipment), then a permission has to be obtained from the corporate authorities which itself resulting in immense delay on account of many of the offices are located in European region where sever lockdown is in place.

 

Thereafter on contacting numerous seamen who has chosen to share their narrative upon condition of anonymity said that;

“We completely understand the COVID-19 impact on the global community and we seamen are no exception to that, moreover we are one of the most effected classes of people when the crew changes are not allowed by the port authorities, such set of events make seafarers mentally and emotionally sick which have the potential to lead to accidents on board.”

Capt. Pradeep Kumar who contacted NGO human rights at sea[2]  stated that

“Ship are sailing and calling at ports frequently with the Pilot on board. Nobody talks about danger of COVID-19 infection to the pilot or seafarer, because it is business. standard cargo operation is going on with shore staff on board. Nobody talks about danger of COVID-19 infection and 14 days quarantine, because it is business. Regular stores and spares are being supplied on board. Nobody talks about danger of COVID-19 infection, because it is business.”

 

Another case of Indian seafarer Mehrzad Wadiwalla who contacted the NGO whilst stuck in Zarzis, Tunisia.[3] Narrated that

“He arrived on March 6 via Tunis to join his ship, but by 16 March the port had stopped crew changes, and he had to return to a hotel. He has since tried to book flights home to India with his own funds and is now paying for his food and accommodation. His funds will not last indefinitely, and he remains away from his family.”

Another seafarer, Hitesh Jain, is currently off Sharjah, UAE, after his contract was completed on January 15 following a transit from China. He has been on the vessel for over eight months without the ability to get off. Visas have now been suspended in the UAE, and he has a new born baby he has yet to see.

 

LEGISLATIVE FRAMEWORK CONCERNING SEAFARER

In these trying times of Covid-19 as seafarers are facing diverse kind of impediments, it would be apt to analyse the statutory framework available at their disposal which ensures and reinstate faith that they too holds ‘right to life which not limited to mere existence but extends to life with  dignity’ as the same principle enshrined in Article 3 of the United Nations Declaration of Human Rights (UNDHR)[4], Article 6.1 of the International Covenant on Civil and Political Rights (ICCPR)[5] and Article 21 of the Indian Constitution. Moreover, several welfare provisions are enacted for the protection and welfare of the seafarers under Merchant Shipping Act, 1958, Merchant Shipping (Maritime Labour) Rules, 2016 which provided them remedy to initiate appropriate legal action in the Court of Law to recover their unpaid wages and other statutory benefits from their respective shipping companies, however as the current position demands invocation of immediate welfare benefits such as Seafarers welfare fund society whose primary objective is to provide several welfare facilities to seafarer who are in distressed situation by providing financial assistance to them, their family members, maternity benefits, old aged benefits at the time of sorrow and as the current situation across globe is a glaring example of massive threat to a mankind wherein members of our seafarers community are one of the major victims.

That bring us to a question what are the benefits scheme put in place for the distressed class of seamen and their family members, whether any thought has been given to this area of concern for the people who are none less than a fighter against Covid-19 to keep the supply chain across globe intact. The need of the hour is to frame a public policy addressing the above noted concerns and put the utilization of Seafarers Welfare Fund for the wellbeing of the deserved and their family members in order to set themselves free from psychological trauma regarding the welfare of their loved ones eagerly waiting to meet them during these difficult times.

STEPS INITIATED BY INDIAN GOVERNMENT AND A WAY FORWARD

GUIDELINES FOR SIGN-ON

After taking into consideration the issues concerning Crew Changes in maritime sector, the Directorate General of Shipping, Ministry of Shipping, Government of India had issued Standard Operating Procedures/ Protocols (SOP) for controlled crew change i.e. Sign-on and Sign-off at vessels containing Indian crew members. There is an attempt made to slow down the sufferings of crew members on board as well as those stranded to board the vessel to start their voyage. Set of guidelines contained in the SOP reflecting upon the submission of travel history for last 28 days by the seafarer as per Form no. 1 attached to the SOP and the same has to be submitted to Ship owner/ RPS Agency via email, who needs to submit the same with DG Shipping approved medical examiner, for assessment and certification of the seafarer’s fitness to join ship. Thereafter, as it gathered from the literal interpretation of the text, the medical examiner holds the discretion to call the seafarer to undergo standard medical examination prescribed by DG Shipping as the text reads as follows

4.  “Based on the seafarer’s travel and contact history for last 28 days submitted by the ship owner/ RPS agency , the medical examiner may call the seafarer for standard medical examination prescribed by DGS for certifying medical fitness of the seafarer”.

To the understanding the criteria for exercising discretion by medical examiner does not stand on the foot of equity as the facts stated in the SOP are subject to be manipulated by the applicant and that would defeat the holistic purpose of putting the whole system in force.

It is further pertinent to mention herein that after the approval of medical examiner is obtained, then the obligation to identify the travel route along with arrangement of seafarer’s vehicle and driver falls in the court of Ship owner/ RPS Agency and accordingly an e-pass would be generated which needs to be submitted to the local authorities where seafarer resides for issuance of a transit pass from the place of residence to the place of embarkation on shipping vessel. Upon reaching port of embarkation, the seafarer shall undergo the Covid-19 test and if the results turned out to be ‘negative’ then he/she would be ready to sign-on, otherwise actions would be taken as per the guidelines issued by Ministry of Health and Family Welfare.

GUIDELINES FOR SIGN-OFF

It would be apt to stated that as many seafarers who are eagerly waiting to reach their mother land and unite with their families at the time of global crises, set of guidelines for Sign-off contained in SOP issued by DGSP which includes but not limited to ascertaining health of each crew member by master of ship before arriving at its port of call in India and submitting of Maritime Declaration of Health to the health authorities of designated Port. It would be the responsibility of ship owners/ RPS that all standard health protocols are observed till the time seafarer reaches the facility of sample collection and a seafarer shall be kept under quarantine facility for a period of 14 days from the date of departure from the last foreign port, upon completion of 14 days, he/she shall undergo a test to confirm ‘negative’ test.

That upon receiving ‘negative’ report of COVID-19, same procedure needs to be followed concerning identification of seafarer’s travel route and making necessary arrangements for the same, however the question arises about the feasibility of the SOP at these difficult times when entire administrative machinery is struggling to prevent the bridge of economy and health system collapsing on its own path taker. Moreover, as the SOP stipulates about providing Car along with a driver from place of residence to port of embarkment are we stand in a position to examine the possibility of compliance of the same by those seafarers whose place of residence is hundreds of miles away and upon whose trust or assurance can they leave their families behind to tackle the pandemic as no policy has been framed so far concerning the same by our legislatures.

CONCLUSION

Therefore, it is a need of the hour to draft and implement a policy framework in order to cater to the needs of the seafarers and their family members in order to infuse a sense of belongingness towards them from their elected representatives and shout loud a message of unity and humanity in this war against indiscernible enemy i.e. Covid-19 when their loved ones are stranded somewhere at the middle of the Ocean and striving to make “the voyage of Life Sail”.

 

[1] https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html
[2] https://www.maritime-executive.com/article/ngo-seafarers-calling-for-help
[3] ibid
[4]  United Nations Declaration on Human Rights or UNDHR is a declaration adopted by the United Nations General Assembly by Resolution 217 A (III) on 10 December 1948 at the Palais de Chaillot, Paris, France.
[5] The International Covenant on Civil and Political Rights or ICCPR was created in 1966. It entered into force on 23 March 1976.

Chasm with The President Jair Bolsonaro leads to dismissal of Health Minister.

 

Vanshika Jain

At a time when the health care centres are at verge of collapsing in Brazil, the ventilators and beds in the emergency room of Amazona are over 95 percent occupied, the renowned soccer stadium of Rio De Janerio has been converted temporarily into a hospital, the gravediggers of the largest country of South America are working overtime to bury the dead bodies, the corona virus mark has surpassed 30,000 in the country. Amid this Jair Bolsonaro, President of Brazil has frequently downplayed the severity of the global epidemic.

He advised that corona virus is just a “little flu” and the measures taken by the Health Ministry to curb it are unnecessary and economically harmful. Furthermore he said the outbreak is being blown out of proportion, insisting that economy should come into normality.

Yesterday Bolsonaro dismissed Mandetta, the Health minister of Brazil who from being an unsung minister in the cabinet became the most popular minster of Brazil due to the good work which the Health Ministry was doing to contain the pandemic in the country.

It is speculated that this decision came after the health minster criticized the President on a popular news show for refusing to obey the social distancing guidelines laid down by the Health Ministry.

This decision of banning Mandetta did now go well with the Brazilians as they came out of their windows banging pots and pans. Following this many ministers resigned from their post as a sign of protest.

The health ministry’s response in containing the epidemic was rated “good” or “great” by 76 percent of Brazilians, this data was submitted by Pollster Datafolha.

On several occasions Bolsonarao was seen not following the guidelines of World Health Organization and the Health Ministry of his own country. One of the occasions being, last week he visited a hospital with Mandetta, walked into the crowd, took off his mask and extended his hand for a supporter to kiss and autographed jerseys thus openly disobeying the social distancing guidelines

Naom Chomsky, an American linguistic said,” Bolsonarao competes with Trump to be the worst criminal on the planet.”

From the above instances it is clear that the President of Brazil is not acting as a responsible leader. He is not letting the Health Ministry do it’s work by meddling in between thus compromising the life’s of people of it’s nation for which he should be held accountable.

COVID19 – Can a State Sue against China before International Court of Justice.

K.Manjunath – Advocate, Bombay High Court.

As the novel CORONA virus incubated in Wuhan from Mid- December to the Mid- January the Chinese state made evidently international misrepresentation to its people & to the world about concerned out break hence The republic of china led entire mankind to the unprecedented biological calamity. Which has been witnessing the mass death across the world & still no remedy, medicine confirmed to be   invented to prevent or to cure out of deadly COVID-19. In such a situation, entire mankind is criticizing about the gross negligence & irresponsibility & wrongful act of The Republic of China.

Taking into account, The International treaties, conventions on Human Rights. Undoubtedly, china has violated Human Rights by violating International Health Measures.

China is signatory of Human Right Convention & permanent member of UNSC. Since a responsible country ,china must have informed the WHO about Pandemic but rather inform or alerting the world, China has not only miss represented the facts & figures but also miss guide the WHO on Novel CORONA Virus. This is not the first time; China is repeatedly committing the same act. The world still has not forgotten the SARC.

International Health Regulations –

As one of 194 member to the legally binding 2005, International Health Regulations, China was duty bond to rapidly gathering of information & contributing it the member countries.

As per Art. 06 of the International Health Regulations require state to provide expedited, timely, accurate & sufficient information to WHO about potential Health emergencies. However, the China has repeatedly failed to inform expedite to the WHO, Which led to massive transmission of CORONA across the Globe.

As per Art. 10 ,WHO also has a mandate to seek verification from the state with respect to unofficial reports of pathogenic microorganisms & states are bond to provide timely  transparent information to the WHO within 24 hours & participated in collaborative assessment of the risk presented, Yet china has rejected repeated offeres of epidemic investigation assistance from WHO without any explanation.

 

COVID19 – China – Legal Responsibility-

From the above act, one can say with conviction that, one cannot expect china to fulfill, its obligation or to take required steps.

As per Art. 01 of International Law commission 2001, All state are responsible for their intentional wrongful conducts. However, this wrongful conduct’s If responsibilities to be checked, the responsibility flows from Wuhan Lab/Authorities to President Xi himself.

Wrongful acts are those which constitute breach of international obligation & As per Art. 11 A Breach is an act which is not in accordance with obligations. China’s failure to share information transparently in accordance with international norms is breach in its legal obligation. China did not only intentionally create a global pandemic, but its negligence is certainly the cause of it.

Many Scholars have claimed that China’s conduct with respect to COVID-19 (and the novel coronavirus SARS-CoV-2) violated the International Health Regulations, in particular the obligations of timely notification and information-sharing in Articles 6 and 7 . Had China complied with these obligations, there would arguably be exponentially fewer cases of COVID-19 today. This has led many scholars to state that China “can and should be sued for the enormous damages they caused to the world”, Nevertheless to say, but main constrain to sue against China is the Jurisdiction. all of these scholars have one thing in common: they fail to identify a jurisdictional basis for an international court or tribunal to hold China responsible for these violations. At least two scholars have pointed to the dispute settlement mechanism in Article 56 of the International Health Regulations , but this art. Provides exclusively on arbitrational jurisdiction & this is unlikely, because, this jurisdiction can only be operated only if chins consents & it is totally, unlike.

A Jurisdictional Basis

The most not talk about article is Article 75 of the WHO Constitution. Article 75 provides: “Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice ….” Indeed, the Court itself has acknowledged that “Article 75 of the WHO Constitution provides for the Court’s jurisdiction” (Armed Activities (New Application), Jurisdiction and Admissibility, Judgment, para. 99). As per this verdict the ICJ having jurisdiction to try & entertain the matter against China.

Question of Law –

How can a State frame its complaint over China’s conduct as one concerning the interpretation or application of the WHO Constitution? The WHO Constitution does not appear to contain substantive obligations of international health law. Rather, as its name suggests, it is primarily concerned with establishing a constitutional framework, dealing with matters such as membership and institutional structure. All this said, there appear to be a few claims concerning the interpretation or application of the WHO Constitution, presented below, that a State could potentially lodge against China.

Whether claim can be made Under the WHO Constitution

First of all , taking shelter of Art. 75 of the WHO Constitution – a State could try to claim violations of the International Health Regulations through Articles 21 and 22 of the WHO Constitution. Article 21 allows the World Health Assembly the authority to adopt regulations like the International Health Regulations & any other there in by time to time, and Article 22 provides in relevant part that “regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given” by the healkth assembly. One could thus firmly argue that, in light of Articles 21 and 22, China’s alleged violations of the International Health Regulations concern the interpretation or application of the WHO Constitution.

As discussed above how China has violated Art. 06,10,11 of the International Health Regulations, A State could also try to claim that China has violated Article 64 of the WHO Constitution in accordance with International Health Regulations , which provides: “Each Member shall provide statistical and epidemiological reports in a manner to be determined by the Health Assembly.” The Health Assembly has, expressly under Article 64, determined that statistics must be prepared in accordance with Nomenclature Regulations,

Finally, a State could consider relying on the obligation under general international law not to defeat the object and purpose of a treaty claiming that China has defeated the object and purpose of the WHO Constitution, which, if equated with the objective of the WHO, would be “the attainment by all peoples of the highest possible level of health” (WHO Constitution, art. 1). Such a claim could potentially encompass all the aforementioned allegations, as well as others, such as those concerning restricting the China on COVID-19 at the UN Security Council. Now in the view of Military & Paramilitary activities  Merits, Judgment ,Para- 271, it should be kept in mind  that the Court has stated that a jurisdictional clause like Article 75 of the WHO Constitution would not be able to cover a claim based on this obligation under general international law But one can have chance to try to challenge the continuing validity of this 34-year-old dicta, or attempt to distinguish it

While Concluding –

In my entire discussion, I have tried to explore, the all the parameters, jurisdictional provisions to bring the wrongful acts of the china & how a state can sue against the china before International Court of Justice.  However, all these remedies are up to the will of a state to sue china before International Court of Justice. However, it is not an easy task but not impossible indeed.

Elected Representatives Cannot Have A Right To Claim That A Particular Employee Be Posted At A Particular Station: HP HC

      It is most heartening, most reassuring and most refreshing to learn that the Himachal Pradesh High Court most recently on March 18, 2020 in a latest, landmark and extremely laudable judgment titled Sunita Devi Vs. State of H.P. & Ors. in CWP No. 1978 of 2019 has held in no uncertain terms that elected representatives cannot have a right to claim that a particular employee be posted at a particular station and that the choice is to be made by administrative head and not by the legislators. All the legislators must pay heed to what has been held by the Himachal Pradesh High Court so explicitly, so elegantly and so effectively that leaves no room for doubt whatsoever!

To start with, the ball is set rolling in para 1 of this judgment authored by Justice Tarlok Singh Chauhan for himself and Justice Chander Bhusan Barowalia by first and foremost observing in para 1 that, “This Court of late, more especially, after the closure of the H.P. Administrative Tribunal is flooded with the petitions in which the employees challenge the orders of their transfers.”

Quite alarmingly, it is then observed in para 2 that, “Despite the law on the subject being well settled, yet we find the same is being violated with impunity either by the political executive or by the administrative authority, constraining the employees to have initially approached the Administrative Tribunal and on its closure, this Court unnecessarily clogging its docket.”

Significantly, it is then very rightly pointed out in para 3 that, “It is trite that transfer is an incidence of service and as long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect transfer subject of course to certain disciplines. Once it is admitted that the petitioner is State government employee and holds a transferable post then he is liable to be transferred from one place to the other within the District in case it is a District cadre post and throughout the State in case he holds a State cadre post. A government servant holding a transferable post has no vested right to remain posted at one place or the other and courts should not ordinarily interfere with the orders of transfer instead affected party should approach the higher authorities in the department. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by transferring the officers to “proper place”. It is for the administration to take appropriate decision.”

What’s more, it is then also pertinently mentioned in para 4 that, “Even the administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redressal but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. Even if the order of transfer is made in transgression of administrative guidelines, the same cannot be interfered with as it does not confer any legally enforceable rights unless the same is shown to have been vitiated by mala fides or made in violation of any statutory provision. The government is the best judge to decide how to distribute and utilize the services of its employees.”

While adding a caveat, it is then observed in para 5 that, “However, this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, such as on the basis of complaints. It is the basic principle of rule of law and good administration, that even administrative action should be just and fair. An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary.”

Be it noted, it is then envisaged in para 6 that, “Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. Even when the order of transfer which otherwise appears to be innocuous on its face is passed on extraneous consideration then the court is competent to go into the matter to find out the real foundation of transfer. The court is competent to ascertain whether the order of transfer passed is bonafide or as a measure of punishment.”

What cannot be missed out here is what is then stated in para 31 that, “In the instant case, there was no independent decision taken by the Administrative Head rather there was no scope left for the said purpose and, therefore, the decision has been rendered vulnerable as being influenced by the proposal and recommendations made by the Minister concerned.”

As a corollary, it is then stated in para 32 that, “As observed by this Court, the Members of the Legislative Assembly or the Minister concerned have right to make a recommendations but these recommendations cannot be taken to be the final word. The underline principle for transfer is public interest or administrative exigency, which is conspicuously absent in the present case.”

To be sure, it is then held in para 33 to which the elected representatives must pay heed that, “As held by this Court in Amir Chand’s case (supra), we live in a democracy and our elected representatives under the Constitution are to work in the legislature and not as administrators. They cannot start interfering in the administration or the working of the Executive. It is they (Administrative Heads) who are the best judges to decide how the department has to be administered and which employee should be transferred to which place. The politicians cannot don the role of administration.”

Going one step ahead, the next para 34 then envisages that, “It was further held that the elected representatives cannot have a right to claim that a particular employee should be posted at a particular station. The choice has to be made by administrative head i.e. Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted.”

Not stopping here, it is then held in para 35 that, “Lastly, it is held that whenever any transfer is ordered not by the departments but on the recommendations of a Minister or MLA, then before ordering the transfer, the views of the administrative department must be ascertained and only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative department, meaning thereby the views of the administrative department have essentially to be sought in the matters of transfer. What follows is that the views of the administrative department must reflect subjective satisfaction and conscious application of mind that the transfer is essential on account of administrative exigency and/or public interest or that the transfer of employee is necessary for the effective utilization of his/her services.”

Truth be told, it is then conceded in para 36 that, “Adverting to the present case the order of transfer cannot withstand judicial scrutiny as the same does not show that the petitioner has been transferred on account of administrative exigency and/or public interest. The record  further does not reveal that the transfer has been effected for the effective utilization of the services of the petitioner and she has been transferred merely on the basis of the recommendations made by the political executive.”

Needless to say, it is then ostensibly concluded after analyzing everything in para 37 that, “In the given facts and circumstances of the case, the action of the respondents cannot be countenanced and sustained. Accordingly, the order dated 19.08.2019 whereby the petitioner has been ordered to be transferred from Forest Beat Gummer, Block Jawalamukhi Range Jawalamukhi under Forest Division Dehra to Forest Beat Kotla, Block Kotla, Range Dadasiba under Forest Division Dehra is quashed and set aside, leaving the parties to bear their own costs.”

Finally, before parting, it is then observed in the last para 38 that, “However, before parting, it needs to be observed that since the docket of this Court is full of cases relating to transfers of employees, the Government would be well advised to implement online transfer in its Departments, Boards, Corporations etc. having over 500 employees by framing an online transfer policy on similar line as that of the adjoining State of Haryana.”

On the whole, it is a very well written, well reasoned and well justified judgment which must be read in its entirety! Para 32 to Para 35 are the most critical part which makes the whole picture very clear on this vexed issue as has been already discussed above! All the elected representatives must always adhere to this in letter and spirit as has been very rightly held by the two Judge Bench of Himachal Pradesh High Court and refrain from interfering as has been directed also and due importance must be given to the administrative department in matters of transfer!

Sanjeev Sirohi

Guns Licensed For Self Protection Cannot Be Used For Celebratory Firing: Supreme Court

    Without mincing any words and without pulling back any punches, a three Judge Bench of the Supreme Court headed by Chief Justice of India (CJI) SA Bobde and comprising also of Justice BR Gavai and Justice Surya Kant most recently on March 18, 2020 in a notable judgment titled Bhagwan Singh vs State of Uttarakhand in Criminal Appeal No. 407 of 2020 [Arising out of Special Leave Petition (Crl.) No. 656 of 2018 have sought to send a firm and final message to all the people in our country that guns licensed for self protection cannot be used for celebratory firings and those who still dare to do it would have to pay a heavy cost for doing so! It also expressed its serious concerns on the increasing number of such incidents in our country. There has to be zero tolerance for all such incidents of celebratory firings in which all rules are broken with impunity and the lives of innocents are endangered most shamelessly and most carelessly!

To start with, the ball is set rolling in para 2 of this noteworthy judgment wherein it is observed that, “This Criminal Appeal is directed against the judgment dated 26th July, 2017 passed by the High Court of Uttarakhand whereby the appellant’s criminal appeal against the judgment and order dated 11th/12th July, 2013 rendered by Learned Sessions Judge, Bageshwar convicting the appellant under Sections 302 and 307 of Indian Penal Code (for short, ‘IPC’) and sentencing him to undergo life imprisonment (under Section 302, IPC) and 5 years’ rigorous imprisonment (under Section 307, IPC) along with a fine of Rs. 20,000/- in default whereof he was directed to undergo 6 months additional rigorous imprisonment was dismissed. The appellant was, however, acquitted for offence punishable under Section 25 of the Arms Act for want of the requisite sanction.”

Needless to say, it is then stated in para 3 that, “It may be mentioned at the outset that notice of the special leave petition was issued on the limited question to determine the nature of offence committed by the appellant i.e. whether it falls under the ambit of Section 302 or 304 of IPC. To determine this question the facts may be briefly noted.”

To recapitulate, while narrating the facts it is then observed in para 4 that, “On 21st April, 2007, the marriage ceremony of the Appellant’s son was taking place at village Dafaut, Uttarakhand, when around 5:30 pm as soon as the marriage procession reached the Appellant’s courtyard – he suddenly fired celebratory gunshots. The pellets struck 5 persons standing in the courtyard namely, Smt. Anita W/o Chanchal Singh, Khushal Singh @ Sonu, Ummed Singh (P.W.6), Smt. Vimla W/o Devendra Singh (P.W.5) and Smt. Vimla W/o Bhupal Singh (P.W.7). The injured were taken to the hospital where two of them – Anita and Khushal Singh @ Sonu succumbed to their injuries. Later at about 8:40 pm, Dharam Singh (P.W.3) filed an FIR at PS Kothwali, Bageshwar, narrating in full detail the incident of which he himself was a witness.”

Be it noted, it is then noted in para 5 that, “After the conclusion of investigation, initially a charge sheet under Section 304, IPC was filed but later on the appellant was charged under Sections 302 and 307, IPC along with Section 25 of the Arms Act.”

Of course, it is then brought out in para 6 that, “The Ld. Sessions Judge held the appellant guilty of offences under Sections 302 and 307, IPC based on testimonies of eye witnesses and injured witnesses. It was noted that Appellant fired shots from his son’s licensed gun causing fatal injuries to Smt. Anita and Khushal Singh and injuring three others. He was consequently sentenced in the manner as briefly noticed in the opening paragraph of the order.”

What follows next is then stated in para 7 that, “The appellant went in appeal before the High Court. His primary contention was that he had no intention to cause anyone’s death. He stated that the firing was by a ball with which some children were playing. The ball struck against the gun in his hand and led to the firing of shots. The occurrence was an admitted fact and the only plea taken was that it being a case of accidental firing, Section 300 punishable under Section 302, IPC was not attracted.” But the High Court rejected his plea as pointed out in para 8.

As it turned out, the Bench then points out in para 15 that, “The trial court as well as the High Court have proceeded on the premise that the appellant’s act by firing from the gun which was pointed towards the roof was as bad as firing into a crowd of persons so he ought to have known that his act of gun-shot firing was so imminently dangerous that it would, in all probability, cause death or such bodily injury as was likely to cause death.”

More significantly, it is then held in para 16 that, “The facts and circumstances of the instant case, however, do not permit to draw such a conclusion. We have already rejected the prosecution version to the extent that the appellant aimed at Smt. Anita and then fired the shot(s). The evidence on record contrarily shows that the appellant aimed the gun towards the roof and then fired. It was an unfortunate case of mis-firing. The appellant of course cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony. He did not take any reasonable safety measure like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot. He was expected to know that pellets could cause multiple gun-shot injuries to the nearby persons even if a single shot was fired. The appellant is, thus, guilty of an act, the likely consequences of which including causing fatal injuries to the persons being in a close circuit, are attributable to him. The offence committed by the appellant, thus, would amount to ‘culpable homicide’ within the meaning of Section 299, though punishable under Section 304 Part 2 of the IPC.”

Most significantly, it is then underscored in para 17 that, “Incidents of celebratory firing are regretfully rising, for they are seen as a status symbol. A gun licensed for self-protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents. Such like misuse of fire arms convert a happy event to a pall of gloom. Appellant cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.”

To buttress its point further, we then see that the Bench observes in para 18 that, “A somewhat, similar situation arose in Kunwar Pal (Supra) wherein this Court held as under:

“12. We find that the intention of the appellant to kill the deceased, if any, has not been proved beyond a reasonable doubt and in any case the appellant is entitled to the benefit of doubt which is prominent in this case. It is not possible therefore to sustain the sentence under Section 304 Part I IPC, which requires that the act by which death is caused, must be done with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death. Though it is not possible to attribute intention it is equally not possible to hold that the act was done without the knowledge that it is likely to cause death. Everybody, who carries a gun with live cartridges and even others know that firing a gun and that too in the presence of several people is an act, is likely to cause death, as indeed it did. Guns must be carried with a sense of responsibility and caution and are not meant to be used in such places like marriage ceremonies.”

On balance, it is then held by the Bench in para 19 that, “Resultantly, we hold that the appellant had the requisite knowledge essential for constituting the offence of ‘culpable homicide’ under Section 299 and punishable under Section 304 Part-2 of IPC. He is thus held guilty under Section 304 Part-2 and not under Section 302 of IPC. On the same analogy, the appellant is liable to be punished for ‘attempt to commit culpable homicide’ not amounting to murder under Section 308, in place of Section 307 of IPC for the injuries caused to the other three victims. To this extent, the appellant’s contentions merit acceptance.”

Last but not the least, it is then held in para 20 that, “For the above-stated reasons, the appeal is allowed in part. The conviction of the appellant under Section 302, IPC is modified to Section 304 Part-2, IPC and that under Section 307, IPC is altered to Section 308, IPC. As a necessary corollary, the sentence of life imprisonment awarded to the appellant for committing the offence under Section 302 IPC, is reduced to 10 years’ rigorous imprisonment and the sentence awarded to him under Section 307, IPC is substituted with Section 308 IPC, without any alteration in the fine imposed by the trial court.”

No doubt, the time is ripe now to enact the strictest law which completely prohibits celebratory firing and the jail term for it must be increased from 10 to 30 or at least 20 years and in addition a heavy fine should also be imposed on those indulging in the same! The Apex Court Bench headed by CJI Sharad A Bobde have sent the simple and straight message to one and all that if you indulge in celebratory firing and break the law then you are bound to face the punishment as envisaged right now under our penal laws and be behind bars for 10 years! Very rightly so!

To sum up, one hopes earnestly that now strictest law is enacted by Parliament on this at the earliest so that innocent and invaluable lives are saved from being lost forever! It brooks no more delay anymore now! All that is required is just adequate political will! Nothing else is required. We have lost many invaluable lives for no fault of theirs on account of this celebratory firing which deserves zero tolerance yet we see that the punishment level is still the same! It goes without saying that more than the fine it is the increase in jail term that will deter people from indulging in the same!

Sanjeev Sirohi

SC Directs Navy To Grant Permanent Commission For Serving Women SSC Officers

In continuation of the convincing, courageous and commendable judgment delivered by the same Division Bench of Apex Court comprising of Justice Dr DF Chandrachud and Justice Ajay Rastogi on February 17, 2020 that favoured the extension of permanent commission for women in the armed forces so that gender equality is implemented in reality in the case titled The Secretary, Ministry of Defence vs Babita Puniya and others in Civil Appeal Nos 9367-9369 of 2011 with Civil Appeal Nos 1127-1128 of 2013 and with Civil Appeal No 1210 of 2020, we see once again that these same Judges have now in yet another case titled Union of India & Ors vs Lt Cdr Annie Nagaraja & Ors in Civil Appeal Nos 2182-87 of 2020 @ SLP (C) Nos. 30791-96 of 2015 along with others very clearly, convincingly and commendably held that serving women Short Service Commission Officers in Indian Navy were entitled to Permanent Commission at par with their male counterparts. We thus see that the Apex Court Bench thus upheld the 2015 Delhi High Court verdict which had upheld women officer’s claim in this regard! Very rightly so!

To be sure, women were not commissioned in the Navy till the issuance of notification dated 9th October 1991, whereby for the first time, the power under the enabling provision under Section 9(2) of the Navy Act was exercised to lay down that women would also be eligible for appointment as officers in the Indian Navy. But the induction of women was confined to four branches namely Logistics, Law, ATC and Education. It was also stated by the Ministry then that policy guidelines regarding permanent commission for women will be laid down in 1997. But such guidelines were not laid down until 2008. On 26th September 2008, the Ministry for the first time took a decision to grant permanent commission to SSC women officers in all the three forces. Regulation 203 of Chapter IX of the Indian Navy Act, 1957 puts no restriction to the grant of permanent commission either gender wise or category wise. But this offer was restricted to certain categories and was also to operate prospectively. As per this policy, only women officers inducted after January 2009 were eligible for permanent commission, that too only in the branches of education, law and naval architecture. The cadre of logistics and ATC which were opened to women for SSC in 1991 were excluded.

Before proceeding ahead, it would be instructive to now mention that the Delhi High Court Division Bench comprising of Justice Kailash Gambhir and Justice Najmi Wazri in Annie Nagaraja and others vs Union of India and others in W.P. (C) 7336/2010, CM Nos. 9348/2012 & 6859/2014 along with others have held the denial of permanent commission to women Short Service Commission (SSC) officers in the Indian Navy in different branches which includes the cadres of Education, ATC and logistics to be discriminatory. It is very rightly held in para 32 of this notable judgment while ordering that permanent commission should be offered to the petitioners that, “We fail to comprehend that when these petitioners along with the male officers had undertaken the same kind of training but nevertheless were denied permanent commission although the men were granted the permanent commission with no special merit except for the fact that they belong to the male sex. If this does not tantamount to gender discrimination then what else does?”

Needless to say, in this present case we see that the Apex Court was considering the appeals filed by the Union Ministry against a judgment delivered by the Delhi High Court on September 4, 2015 allowing the claim of women officers for permanent commission. While rejecting the appeals of the Union Government and upholding the Delhi High Court judgment, the Apex Court held that both male and female officers are to be treated equally in granting permanent commission in Indian Navy, once the statutory bar for inducting women in Navy was lifted. Discrimination on the ground of sex as we see here or on the ground of religion or on the ground of region or on any other ground can never be justified under any circumstances!

For the sake of brevity, let us now deal starightaway with the directions passed by the Apex Court in this landmark, latest and extremely laudable judgment. It is held in para 96 that, “We hold and direct that:

(i)                         The statutory bar on the engagement or enrolment of women in the Indian Navy has been lifted to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the 1957 Act;

(ii)                      By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations;

(iii)                   The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced;

(iv)                   The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside;

(v)                      All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs. The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher;

(vi)                   The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts;

(vii)                The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely: (i) availability of vacancies in the stabilised cadre at the material time; (ii) determination of suitability; and (iii) recommendation of the Chief of the Naval Staff. Their empanelment shall be based on inter se merit evaluated on the ACRs of the officers under consideration, subject to the availability of vacancies;

(viii)             SSC officers who are found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay, promotions and retiral benefits as and when due;

(ix)                   Women SSC officers of the ATC cadre in Annie Nagaraja’s case are not entitled to consideration for the grant of PCs since neither men nor women SSC officers are considered for the grant of PCs and there is no direct induction of men officers to PCs. In exercise of the power conferred by Article 142 of the Constitution, we direct that as a one-time measure, SSC officers in the ATC cadre in Annie Nagaraja’s case shall be entitled to pensionary benefits. SSC officers in the ATC cadre in Priya Khurana’s case, being inducted in pursuance of the specific representation contained in the advertisements pursuant to which they were inducted, shall be considered for the grant of PCs in accordance with directions (v) and (vi) above;

(x)                      All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service;

(xi)                   As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits; and

(xii)                Respondents two to six in the Civil Appeals arising out of Special Leave Petition (C) Nos 30791-96 of 2015, namely Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna shall be entitled. In addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at Rs 25 lakhs each.”

Going forward, it is then held in para 97 that, “We affirm the clarification which has been issued in sub-para (a) of paragraph 50 of the impugned judgment and order of the Delhi High Court.”

Furthermore, it is then held in para 98 that, “Compliance with the above directions shall be effected within three months from the date of this judgment. We accordingly dispose of the appeals.”

Most significantly, it is very rightly and remarkably held in para 91 that, “Once the policy decision of the Union Government was communicated on 25 February 1999, the authorities were bound to consider the claims of the SSC officers for the grant of PC in terms of Regulation 203. The naval authorities and the Union Government failed to do so, depriving them of the entitlement to be considered for the grant of PC. By the failure of the authorities to consider the SSC officers for PCs in terms of the policy communication of 25 February 1999, SSC officers lost out on the opportunity to be granted PCs and all the responsibilities and benefits attached to the grant of PC, including promotions and pensionable service. The situation which has come to pass is due to the failure of the authorities to implement statutory notifications issued under Section 9(2) the policy statement of 25 February 1999 by which they were bound and as the decisions of the Delhi High Court and the AFT.”

Most remarkably, it is then further commendably held in this same para 91 ahead that, “These SSC officers cannot be left in the lurch and the injustice meted to them by lost years of service and the deprivation of retiral entitlements must be rectified. The injustice is a direct consequence of the authorities having breached their duties under law, as explained above. To deny substantive relief to the SSC officers would result in a situation where a breach of duty on the part of the authorities to comply with binding legal norms would go unattended. This would result in a serious miscarriage of justice to the SSC officers who have served the nation and is unsustainable in law.”

Equally heartening to note is that the Apex Court rejected the Centre’s objections based on physiological features of women as “gender stereotypes”! Justice Dr DY Chandrachud while reading the operative part of the judgment minced no words to state commendably that, “Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are ill-suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

Words are short to commend these two Judges of the Apex Court – Justice Dr DY Chandrachud and Justice Ajay Rastogi who have delivered this extremely commendable judgment which has opened the door for permanent commission of women in the Navy just like earlier they by their order had similarly opened the doors of permanent commission of women in the Army! They rightly rejected the specious submission that women are not suited for sea sailing duties. It was laudably observed that, “It is impossible to countenance a submission that women cannot sail alongside men sailors.”

Sanjeev Sirohi

Refugee Can Pursue Claim For Damages Against Government For Illegal Detention: UK SC

 

In a fresh development with far reaching consequences, the United Kingdom (UK) Supreme Court has most recently, most remarkably and most rightly held in a latest, landmark and extremely laudable judgment titled R (on the application of DN (Rwanda)) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 7 that was delivered on 26 February 2020 whereupon it minced no words to send across a simple, sensible and straight message that refugee can pursue claim for damages against government for illegal detention. No government can claim an unchecked and unrestricted right to hold a refugee in illegal detention! This is exactly the sum and substance of the extremely commendable judgment delivered by the UK Supreme Court which has to be applauded in no uncertain terms!

To start with, this notable judgment authored by Lord Kerr for himself and with whom Lord Wilson, Lady Black and Lord Kitchin agree first and foremost set the ball rolling by pointing out in para 1 that, “The appellant was born in Rwanda. He came to the United Kingdom in August 2000 and sought refugee status because of what he claimed was a well-founded fear of persecution if he returned to his native land. His claim was accepted on 26 October 2000 on the basis that he was a member of a particular social group (Hutu). He was recognized as a refugee pursuant to the 1951 Refugee Convention and granted indefinite leave to remain.”

While elaborating further, it is then pointed out in para 2 that, “Since he arrived in the United Kingdom DN has been convicted of a number of offences. He has also been cautioned twice. The most significant of his convictions occurred on 22 January 2007 when he pleaded guilty to assisting the unlawful entry of a non-EEA national to the United Kingdom contrary to section 25 of the Immigration Act 1971. The circumstances leading to the conviction were these: DN and his sister had travelled to the Netherlands where they met a niece. DN returned to the UK with his niece who used his sister’s travel documents in an attempt to obtain entry to this country. Although this was a serious offence, it was accepted by the trial judge that DN had no financial motivation for the crime.”

To be sure, it is then illustrated in para 3 that, “At the same court before which he had pleaded guilty to the immigration offence, however, DN was convicted, again on his plea of guilty, of three offences of obtaining or attempting to obtain a pecuniary advantage by seeking or taking employment in another’s name. He was sentenced to 12 months’ imprisonment for the Immigration Act offence and two months consecutively for each of the three pecuniary advantage offences making a total sentence of 18 months’ imprisonment.”

In hindsight, it is then unearthed in para 4 that, “On 2 July 2007 DN completed the custodial element of his sentence. On the same date the Home Secretary decided to deport him subject to a final decision on the issue of his refugee status. This was followed by a decision on 3 July that DN should be deported pursuant to article 33(2) of the Refugee Convention which allows the expulsion of refugees “whom there are reasonable grounds for regarding as a danger to the security of the country”. It was said that DN had been convicted of a “particularly serious crime” and that he “constituted a danger to the community”. The decision was based on section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002. He was notified of the decision to deport him, and detained on foot of that decision on 2 July 2007, pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971, which provides that where notice has been given to a person of a decision to make a deportation order against him, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”

Going forward, it is then stated in para 5 that, “Pursuant to powers conferred by section 72(4)(a) of the 2002 Act, the Home Secretary had made the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. This specified several offences which were said to be particularly serious crimes. Assisting unlawful immigration to a member state contrary to section 25 of the 1971 Act was included among them. On that basis, the appellant’s conviction for the immigration offence was deemed to warrant his deportation. Section 72(4)(a) also provided that a person convicted of an offence specified in the 2004 order was rebuttably presumed to have been guilty of a particularly serious crime and constituted a danger to the community.”

As a corollary, what follows next is stated in para 6 that, “DN appealed the Home Secretary’s decision. His appeal was heard by the Asylum and Immigration Tribunal (“AIT”) on 22 August 2007. On 29 August the tribunal dismissed the appeal. It found that the appellant constituted a danger to the community of the United Kingdom, that his attempt to circumvent the immigration law in itself amounted to a danger to the community; that he could now be expelled pursuant to article 33(2) of the Refugee Convention; and that he had failed to rebut the presumption created by the 2004 Order that a person convicted of an offence specified by the Order was deemed to have been convicted of a particularly serious crime and to constitute a danger to the community of the United Kingdom. DN sought reconsideration of the decision. On 18 September 2007 that was refused. An application for a statutory review by the High Court of the AIT’s decision under section 103A of the 2002 Act was dismissed on 7 December 2007. On 31 January 2008 the Secretary of State signed the deportation order and made an order for DN’s detention pending deportation. That order was made pursuant to paragraph 2(3) of Schedule 3 to the 1971 Act which, although subsequently amended, at the time provided that “Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).” (Emphasis added).”

Importantly, it is then brought out in para 7 that, “Before the deportation order was signed, no suggestion had been made on DN’s behalf that the 2004 Order was unlawful. After it was made, however, solicitors, who had replaced those who originally acted for DN, wrote to the Secretary of State making that precise case. On that account the Secretary of State was invited to revoke the deportation order. It was also claimed that DN’s detention since 2 July 2007 was unlawful. On 29 February 2008 the appellant was released on bail by order of an immigration judge. By that time, he had spent 242 days in immigration detention.”

No doubt, the simple and straightforward questions that need to be asked here are: How can the illegal detention of DN be justified under any circumstances? How can the 242 days that DN spent in immigration detention be glossed over? How can the claim for damages of DN be overlooked?

More importantly, we need to pay heed to what is stated in para 20 that, “The need for finality in litigation likewise does not warrant displacement of the Lumba principle. As Lord Carnwath says (para 38 of his judgment), finality and legal certainty are desirable objectives. But they cannot extinguish a clear legal right. In this case DN was detained on foot of an intended, and then actual, deportation order which proved to be unlawful. His detention was uniquely linked to that deportation order. The unlawfulness of that detention is inescapable. The desiderata of finality and certainty cannot impinge on that inevitable result.”

Equally important if not more is what is then stated in para 25 that, “If, and inasmuch as, Ullah suggests that paragraph 2(2) of Schedule 3 provides a stand-alone authority for lawful detention, no matter what has gone before, and irrespective of the fact that the decision to deport lacks a legal basis, I consider that the decision was wrong and should now be recognised as such. The giving of notice of the decision to make a deportation order, the making of the deportation order, and the detention on foot of it are essential steps in the same transaction. The detention depends for its legality on the lawfulness of the deportation itself. Absent a lawful basis for the making of a deportation order, it is not possible to breathe legal life into the decision to detain.”

Most importantly, it is then very rightly held in para 26 that, “I would allow the appeal and confirm that the appellant is entitled to pursue a claim for damages for false imprisonment. The prospects of success in that claim are not, of course, a matter for this court, particularly because lines of possible defence to the claimant’s case, not pursued (or, at least, not pursued with any vigour), might be canvassed on the hearing of the claim.”

All told, it is a no-brainer that all the courts in all the countries must always pay heed to what has been held by the UK Supreme Court in this extremely landmark case and hold the concerned Government accountable for false imprisonment of a refugee and for violating his/her human rights with impunity! Of course, it is a cardinal principle of law that even refugees have human rights which are sacrosanct and must always be accorded the highest esteem! If any Government fails to do so then they also must be ready to pay compensation for human rights violations as we see in this DN case of UK!

Sanjeev Sirohi