In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on delay in releasing prisoners after the grant of bail & implementation of the ‘FASTER’ system, crowdfunding platforms for the treatment of children with rare diseases, digital divide among students in government schools, and the timeline for disposal of bail applications under POSCO Act.
Supreme Court: Takes suo moto cognizance of the delay in releasing prisoners after the grant of bail
The Supreme Court took suo moto cognizance of the delay in the release of prisoners based on a recent report in a leading daily newspaper that convicts lodged in Agra Central Jail had not been released even after 3 days of the order granting them bail.
The newspaper reported that the delay was caused because the prison authorities were awaiting the receipt of the court order by post. On 08 July 2021, the apex court had passed orders for the immediate release of 13 prisoners on interim bail after finding out that they have been languishing in jails for periods ranging from 14 to 22 years, despite establishing that they were juvenile at the time of offence.
The bench of CJI NV Ramana, Justices L Nageswara Rao and AS Bopanna observed that the Supreme Court was thinking of implementing a system to electronically transmit bail orders to prisons so that the release of prisoners on bail will not be delayed. The court sought to know from the state governments whether sufficient internet facilities are available in their prisons.
The CJI observed that the Supreme Court is contemplating to adopt the procedure termed as ‘FASTER: Fast and Secured Transmission of Electronic Records System’, for transmission of authenticated copies of the Judgments, final orders, interim orders to the concerned Courts and Tribunals. The bench also directed the Secretary-General of the Supreme Court to submit a proposal suggesting the modalities to implement the fastest system within two weeks.
Delhi HC: Directs Centre to immediately notify ‘Crowd Funding’ platform for the treatment of rare diseases
In the case Master Arnesh Shaw v. Union of India & Anr., the Delhi high court directed the Union Ministry of Health and Family Welfare to immediately launch a dedicated online crowdfunding platform for collecting funds for the treatment of children suffering from rare diseases.
The high court was hearing a batch of pleas related to the Draft ‘National Policy for Rare Disease, 2020’ and medical aid for patients suffering from rare diseases.
In the previous hearing, the high court had observed that children suffering from a rare disease cannot be deprived of the treatment merely because of the exorbitant price of a drug or treatment. The court had directed the Union of India to implement and notify the draft policy and also consider crowdfunding options in the meantime for the successful treatment of the petitioners.
In observing so, the judgement also took note of the fact that the Right to Health and Healthcare is a fundamental right under Article 21 of the Constitution. The court also emphasised that it is incumbent on society in general and authorities, in particular, to ensure that the life of such children is not compromised, even if there is a small window of improving their chances of survival or even providing a better quality of life.
The Centre has claimed that it cannot fully finance the treatment of all high-cost rare diseases, but the gap can be filled by seeking donations from prospective individuals or corporate donors, who are willing to support the cost of such diseases. For this purpose, it had proposed to explore crowdfunding as an option to address affordability concerns.
Considering the urgency in the matter, the digital platform for crowdfunding was directed to be made operational on or before 31 March 2021. Further, time was granted until 31 July 2021 to finalise and put in the public domain, the National Policy. However, despite the order dated 28 January 2021, the digital platform was not made operational to date.
In lieu of this, the bench of Justice Rekha Palli ordered that failure to notify a platform by the next date of hearing i.e., 04 August 2021, will lead to suo moto action for wilful non-compliance of its orders.
Karnataka HC: State survey finds that 25% Students Lack Access to Online Classes; High Court Directs State to Make Action Plan to bridge Digital Divide
The Karnataka High Court directed the state government to place on record an action plan by 29 July 2021, with regard to bridging the technological divide and making available technology to students who are unable to afford it.
On the direction of the court, the state government had conducted a student digital communication survey by collecting data from schools, government and aided schools. The aim of the survey was to understand how many students do not have access to technology for the purpose of being part of the education system during the period of closure of schools owing to the COVID-19 pandemic.
The survey report indicated that 75.5% of the students surveyed are having access to technology through the medium of which education is being imparted to them. However, 24.5% of students, which is the state average, do not have access to the technology to attend e-classes.
The student digital communication survey also highlighted that in certain districts of state such as Bidar, Chamrajnagar, Kalaburgi, Raichur, Kopal, Tumkuru, Madikeri, Yadgiri, Chitradurga, the percentage of students not having any device/technology is above 45%. In other districts, the percentage of students not having any device/technology was between 20 to 35%. It is only in districts such as Bangalore rural, Dakshina Kannada, and Udupi that the percentage of students not having a device for imparting education is very less, that is less than 15%.
The high court noted that the state has taken steps to collect the data in order to ascertain the digital divide in the state vis-à-vis the students not having access to technology for purpose of being imparted education. Taking these findings into consideration, the court observed that what is mandated is to consider the said data for taking action in order to enable students to be empowered with technological means so that they remain within the umbrella of the education system so far as government and aided schools are concerned.
The bench cited the example of a family with only one mobile phone. If the parent goes out to work with the mobile phone, the child will not be able to attend online classes. Further, in families where there is more than one child, a single mobile phone may not be sufficient as all siblings cannot make use of the same phone for learning purposes.
While there is a serious issue of students remaining out of schools and outside the umbrella of the education system, the issue is further exacerbated by the fact that during the pandemic, closure of schools has led to imparting of education only through the use of technology. Therefore, the state, on the basis of a survey conducted, is directed to mandatorily take steps to make technological devices available to students who have been deprived of said devices or unable to access the same.
Allahabad HC: Issues Directions & Timeline for Disposal of Bail Applications under POCSO Act, 2012
The Allahabad High Court recently held that only the local police or Special Juvenile Police Unit (SJPU) could serve notice on bail application for offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The high court also prescribed a timeline to execute the different statutory functions by the respective authorities.
The High Court was hearing a bail plea under Sections 363, 366, 368 IPC, and Sections 16 and 17 POCSO Act and Section 3(2)(V) of SC/ST (POA)Act. The High Court granted bail, overturning the Additional District and Sessions Judge/Special Judge (POCSO Act).
The Court held that it is imperative to protect the rights of both the victim and the accused, and define the time frame for placing the bail application after its maturation before the court. A bench of Justice Ajay Bhanot enumerated a nine-point direction to ensure regular monitoring of the implementation of the directions of the court, including the creation of standard operating procedure (SOP), supervision of staff, preparation of a biannual report, etc.
Timeline and Procedure for Maturation of Bail Application:
- Information of crime to be given by local police/SJPU to CWC (Child Welfare Committee) 24 hours after the report of a crime.
- The time period for CWC for creation of an assessment report and to identify a person from amongst the parents/guardian/person in whom the child has trust or to nominate a support person (if required) who is best suited to protect the best interests of the child and receive bail notice on its behalf- within 3 days from date of lodgement of the F.I.R.
- The time period for service of notice of bail application by the local police/SJPU upon CWC- within 3 days from the date of service of notice of bail application upon the office of the Government Advocate at the High Court.
- The time period for service of notice of bail application by the local police/SJPU upon the child and to apprise it about information and services entitled under the POCSO Act, 2012 read with POCSO Rules, 2020- within 4 days from date of service of notice of bail application upon the office of Government Advocate at High Court.
- The time period for CWC and District Legal Services Authority for providing legal aid before the hearing of the bail application in the District Court. CWC shall also provide details of information and services entitled to the child under the POCSO Act, 2012 read with POCSO Rules, 2020- within 5 days from the date of receipt of notice of bail application by CWC.
- The time period for CWC and High Court Legal Services Committee, DLSA for providing legal aid before hearing of the bail application in the High Court and District Court respectively- within 5 days from date of receipt of notice of bail application by CWC.
- The time period for child/child’s parents/guardian/any other person in whom the child has trust and confidence/support person to engage counsel of choice for the hearing of the bail application before the High Court and the District Court- within 5 days from date of service of notice of bail application by local police/SJPU upon the child.
- The time period for police authorities to provide instructions to the Government Advocate, along with a report of service of bail application upon victim and CWC, report apprising the child of entitled information and services under the POCSO Act, 2012 read with POCSO Rules, 2020 and other reports described earlier- within 8 days after the date of service of notice of bail application upon the office of the Government Advocate at the High Court. Under all circumstances, the same should be provided to the Government Advocate before the bail application is placed before the Court.
- The time period for CWC to submit a report before the High Court regarding the status of information and services including legal aid provided to the child- Report to be produced when bail application is first placed before the Court.
- In case the application is not filed in time for it to be placed before the High Court, in the above stipulated time, a further notice of two days shall be given to the Government Advocate as well as counsel for the victim.
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