CASE NAME: A.S. Mittal & Others v. State Of U.P.

& Others CITATION: 1989 AIR 1570 DECIDED ON: 12/05/1989 BENCH: Misra Rangnath, Venkatachalliah, M.N., JJ

FACTS: Lions Club, Khurja (Uttar Prdesh) with the desire to provide relief and facilities of ophthalmic surgical services particularly to the persons residing in rural areas, suffering from eye-troubles, arranged and opened an "Eye Camp" at Khurja after obtaining necessary permission from the Chief Medical Officer, Buland Sahar. For this the Club invited Dr. R.M. Sahay of the Sahay Hospital at Jaipur and team of Doctors to do the surgical job. The camp got substantial amount of participation from people with eye problems. Dr. Sahay arrived in Khurja and examined about 122 patients. 108 patients were operated upon, 88 of them for cataracts. Dr. Sahay then left to Moradabad to attend a similar eye camp. The camp turned out to be a disastrous medical misadventure, as the operated eyes of the patients were irreversibly damaged, owing to a post-operative infection of the intra Ocular Cavities of the operated eyes and the eyes were completely damaged. Similar mishap happened at Moradabad also though on a lesser scale, the number of affected persons being 15 only. Though doctors gave the necessary treatment to remove the infection, it was of no avail. Two social activists, Shri A.S. Mittal and Shri Om Prakash Tapas, acting on behalf of an organisation called 'Union for Welfare and Human Rights' filed a Writ Petition in the form of a Public Interest Litigation to carry justice to the victims. Originally, the four respondents were the State of U.P., Dr. R.M. Sahay, the Chief Medical Officer, Buland Sahar District (U.P.) and the Lions Club of Pottery Town, Khurja. However, the Court directed that Indian Medical Council and the Union of India to be impleaded as parties to the proceedings. The petitioners prayed that (i) the victims of this medical mishap be given expert treatment and appropriate compensation, (ii) that the Government do conduct a thorough investigation as to the conditions which rendered a medical misadventure of such a scale possible and evolve proper guidelines which will prevent recurrence of such tragedies and (iii) that appropriate legal action be instituted against Dr. Sahay and his team and other Government officials concerned.

JUDGMENT: Disposing of the Writ Petition, this Court, HELD: Modern techniques in opthalmic surgery render cataract a minor operation. The eyes of patients selected for operation has the potential for restoration of sight. In the instant case, they have become totally blind In the operated eyes.A mistake by a medical practitioner which no reasonably competent and careful practitioner would have committed is a negligent one. Law recognises the dangers which are inherent in surgical operation. Mistakes will occur on occasions despite the exercise of reasonable skill and care.. The necessity of the highest standards of aseptic sterile conditions at places where ophthalmic surgery or any surgery is conducted cannot be over-emphasized. It is not merely on the formulation. of the theoretical standards but really on the professional commitments with which the pre- scriptions are implemented that the ultimate result rests. On humanitarian consideration, the victims should be afforded some monetary relief by the State Government. In addition to the sum of Rs.5, 000 already paid by way of interim relief, the State Government shall pay a further sum of Rs. 12,500 to each of the victims. The victims entitled to receive the additional payment shall be the same as those who had the benefit of the interim relief of Rs.5, 000.

COMMENTARY: This judgment has turned out to be a landmark one in cases relating to medical negligence. The case was instrumental in revising and modifying guidelines prescribing norms and conditions for the conduct of "Eye Camps" so that unfortunate events that occurred in this case will not repeat in future. Court pressed for necessity for strict compliance with guidelines issued by Government for conduct of eye camps. The Indian Medical Council, after its impleadment in the proceedings of this case, constituted a sub-committee made recommendations in setting norms for the conduct and management of eye-camps. The Court suggested Union Government to incorporate these recommendations made by the Indian Medical Council and other Expert Committees in the revised guidelines.

CASE NAME: Bihar Legal Support Society, through its President, New Delhi v. The Chief Justice of India & Another CITATION: 1987 AIR 38 DECIDED ON: 19/11/1986 BENCH: BHAGWATI P.N. (CJ), MISRA RANGNATH, KHALID V. OZA G.L., DUTT M.M., JJ

FACTS: This writ petition has been filed by the Bihar Legal Support Society which is a registered Society having as its main aim and objective provision of legal support to the poor and disadvantaged sections of the community with a view to assisting them to fight for their constitutional and legal rights through the process of law. The reason for filing the writ petition is as follows: a Bench of the Supreme Court had sat late at night on 5th September 1986 for considering the bail application of industrialists Shri Lalit Mohan Thapar and Shri Shyam Sunder Lal. The petitioner wants same anxiety which was shown by this Court in taking up the bail application of these two gentlemen must to be applied in all matters where questions relating to the liberty of citizens, high or low, arise and that the bail applications of "small men" must receive the same importance as the bail applications of "big industrialists." The petitioner, therefore, prayed that special leave petitions against orders refusing bail or anticipatory bail should be taken up by this Court immediately in the same manner in which the special leave petition of these two "big industrialists" was taken up by the Court. JUDGMENT:. Justice Bhagwati in his judgment held that the special leave petitions of "small men" are as much entitled to consideration as special leave petitions of "big industrialists". And that the Supreme Court has always recognized the poor and the disadvantaged as entitled to preferential consideration than the rich and the affluent, the businessmen and the industrialists. The question whether special leave petitions against refusal of bail or anticipatory hail should be listed immediately or not is a question within the administrative jurisdiction of the Chief Justice. The court further reminded that Supreme Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the Magistrates. It was created as an apex court for the purpose of laying down the law for the entire country and extraordinary jurisdiction for granting special leave was conferred upon it under Article 136 of the Constitution so that it could interfere whenever it found that law was not correctly enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law on the subject. Granting every case where special leave is applied creates backlog of cases which will

then be bound to accumulate in the Court. The judgment re-iterated a decision was held by the same court in a prior case which stated that Supreme Court should not interfere with the orders granting or refusing bail or anticipatory bail and that these are matters in which the High Court should normally become the final authority. The judgment held that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter.

COMMENTARY: This is one of few cases in which the suit is instituted against theChief Justice of India. Impartiality of judiciary, one of the basic pillars on which Indian judiciary is built, is questioned in this case. Justice Bhagwaty, through his eloquent judgment in this case had tried to state how the Supreme Court of India treats the poor and disadvantaged sections of the society on par, if not than on a higher pedestal, with the rich and the affluent. The fact that one of the drawbacks of the justice delivery system has been the denial of access to justice to the common man is reflected in this judgment. The judgment is therefore regarded as one among those many from Justice Bhagwaty which upheld the position of the downtrodden regarding access to justice. However on examining the facts of the case and the outcome of it, we can find that the prayer which the petitioner sought for was not achieved in the case. Though the Supreme Court allowed the Special Leave Petition of the big Industrialists prior to this case, the judgment of this case provided that granting of special leave petition is a discretionary power of Supreme Court and therefore one cannot be guaranteed of his Special Leave Petition to have an immediate listing. In other words, the position of those who applies for SLP remained unchanged after the judgment as it was before the rendering of the judgment.

CASE NAME: Nandini Sundar & Ors. vs State Of Chattisgarh CITATION: (2011) 7 SCC 547 DECIDED ON: 05.07.2011 BENCH : Hon'ble Mr. Justice B. Sudershan Reddy, Hon'ble Mr. Justice Surinder Singh Nijjar

FACTS: .The instant writ petition was filed, in 2007, by: (i) Dr. Nandini Sunder, a professor of Sociology at Delhi School of Economics, (ii) Dr. Ramachandra Guha, a well known historian, environmentalist and columnist and (iii) Mr. E.A.S. Sarma, former Secretary to Government of India, and former Commissioner, Tribal Welfare, Government of Andhra Pradesh. The petitioners have alleged, inter-alia, widespread violation of human rights of people of Dantewada District, and its neighboring areas in the State of Chhattisgarh, on account of the ongoing armed Maoist/Naxalite insurgency, and the counter-insurgency offensives launched by the Government of Chattisgarh. In this regard, it was also alleged that the State of Chattisgarh was actively promoting the activities of a group called Salwa Judum, which was in fact an armed civilian vigilante group, thereby further exacerbating the ongoing struggle, and was leading to further widespread violation of human rights. The contention of the plaitiffs were the violation of fundamental rights as engraved in Art 14 and 21 of the illiterate youth who are employed in deadlt combat against Naxalites by the State of Chattisgarh. The atrocities caused by the counterinsurgency force were also mentioned in the plaint. The defendants, ie State of Chattisgarh, in its counter-affidavit stated that counter- insurgency troops are well- trained and equipped Special Police Officers(SPOs) who are appointed as under provisions of Indian Police Act, 1861 and Chattisgarh Police Act, 2007. SPOs have the same rights, duties and obligations that of the regular police and they are paid an honorarium of Rs 3000/- per month. The defendants further stated that these young, illiterate and uneducated SPOs join the force voluntarily out of rage and hatred against the Maoists/Naxalites.

The court held that statement by Chattisgarh State that the young illiterates were well-equipped to combat the insurgency by giving them necessary classes on subjects of law and order and with martial training lacked credibility. Also the fact that, though the SPOs did the same works as that of regular police force and still they were paid only an honorarium of Rs 3000 a month was held to be clear violation of Right to Equality as provided in Article 14 of Constitution. Employing ill-trained youth in fatal combat against Maoists proved to be violation of Right to Life as engraved in Article 21 of Constitution.

JUDGMENT: The following were the orders made by the court in this case: (i) The State of Chattisgarh should immediately cease and desist from using SPOs in any manner or form in any activities, directly or indirectly, aimed at controlling, countering, mitigating or otherwise eliminating Maoist/Naxalite activities in the State of Chattisgarh; (ii) The Union of India should cease and desist from using any of its funds in supporting, directly or indirectly the recruitment of SPOs for the purposes of engaging in any form of counterinsurgency activities against Maoist/Naxalite groups; (iii) The State of Chattisgarh should make every effort to recall all firearms issued to any of the SPOs along with any and all accoutrements and accessories issued to use such firearms. (iv) The State of Chattisgarh should make arrangements to provide appropriate security, and undertake such measures as are necessary, and within bounds of constitutional permissibility, to protect the lives of those who had been employed as SPOs previously, or who had been given any initial orders of selection or appointment, from any and all forces, including but not limited to Maoists/Naxalites; and (v) The State of Chattisgarh should take all appropriate measures to prevent the operation of any group, including but not limited to Salwa Judum and Koya Commandos, that in any manner or form seek to take law into private hands, act unconstitutionally or otherwise violate the human rights of any person. In addition to the above, court held that appointment of SPOs to perform any of the duties of regular police officers, other than those specified in Section 23(1)(h)

and Section 23(1)(i) of Chattisgarh Police Act, 2007, to be unconstitutional. It was further held that tribal youth, who had been previously engaged as SPOs in counter- insurgency activities, in whatever form, against Maoists/Naxalites may be employed as SPOs to perform duties limited to those enumerated in Sections 23(1)(h) and 23(1)(i) of CPA 2007, provided that they have not engaged in any activities, whether as a part of their duties as SPOs engaged in any form of counter-insurgency activities against Maoists/Naxalites, and Left Wing Extremism or in their own individual or private capacities, that may be deemed to be violations of human rights of other individuals or violations of any disciplinary code or criminal laws that they were lawfully subject to.

COMMENTARY: The judgment delivered by the division bench in this case has special place in Indian judicial and political history. The act of arming illiterate youth for purpose of counterinsurgency can lead to a situation of utter chaos. the court insists that The fight against terrorism and/or extremism cannot be effectuated by constitutional democracies by whatever means that are deemed to be efficient. Efficiency is not the sole arbiter of all values, and goals that constitutional democracies seek to be guided by, and achieve. The judgment in its initially parts credibly states how socio-economic deprivation becomes the root cause of insurgencies in India.