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Euthanasia: Divergence between conscience and human rights

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“Death alone is one friend that can bring peace his treasures cannot purchase, and remove the pain his physicians cannot cure.” –

Mortimer Collin

It is a desire of every human being to live his life to the fullest. But there are times when he desires that his life should end and to fulfill this desire, he uses unnatural means. When he himself ends his life by using unnatural means, it is called suicide but ending his life by others with the consent of the deceased, is called “euthanasia”. Euthanasia is related to terminal illness. People who are terminally ill and who don’t want to suffer through the rest of their lives request for mercy killing or euthanasia. Such persons shall have the right to die according to their own wishes. Euthanasia has become significant in India due to the recent changes done by other countries like Belgium, Netherlands, England, etc. in their respective laws. Euthanasia has lately been a hot potato in India and abroad as it affects the moral values, thoughts and culture of the society. However, the Supreme Court of India has legalized “passive euthanasia” in India through its judgment in “Aruna Shanbaug Case”.

“Mercy-Motivated Killing” or Euthanasia is closely concerned with homicide. Euthanasia or Mercy killing has been in practice since time immemorial and its history roots to the ancient traditions in the Greek and Roman world. In today’s world, the debate on this issue has been triggered again due to the advancements in medical technology. In India, there are various instances where Euthanasia has not been granted by the President or by the Supreme Court. A farmer suffering from AIDS was forced to live in his incapacitated condition after the President of India refused the grant of Euthanasia. A former Chess champion suffering from neurological disorder had to live with his disease when the High Court of Andhra Pradesh rejected his plea. These requests were rejected as euthanasia was illegal in India before 2018.

The judgment of the Hon’ble Supreme Court of India in the case of Aruna Shanbaug considers several issues relating to euthanasia also consisting right to a dignified death. This case suggests de-criminalization of attempted suicide, distinctions between active and passive euthanasia and more importantly facilitates a wider discussion on the rather sensitive issue of death and dying. Even though the term euthanasia is relatively of a recent origin, the notion of a good death is an old one which is often culturally construed. In India, for example, culture has played an important role in self-administered death as death is couched in spiritual practices such as moksha. The evidence can be seen in Hindu Holy Scriptures where specific notions about the body and purpose of human life are mentioned.

Physician-Assisted Suicide and/or Active Euthanasia, means the practice of ending one’s life to relieve his everlasting pain and incurable disease, and this has become a controversial issue all over the world. There has been a lot of debate on this issue with many advocating for and many against the legalization of Active Euthanasia. The families, physicians and Judges cannot decide whether to end someone’s life without his or her consent. The consent of the patient is of utmost importance while administering euthanasia or while refusing medical treatment. After all, it is the patient’s life which is at stake and the patient only can decide whether his life is worth living or is meaningless. The question which arises here is that “Doesn’t the patient have a right to ask for this help?” and, if a doctor is willing to give it, “Why should the law stand in the way?” The Legislators should lay down a specific law on Euthanasia which should include every of its aspect for the terminally ill patients and to protect them from self-destruction. The law framed by the Legislators shall also include safeguards for the protection of the patients so that they can die with dignity. In the recent decade, Dilemmas to end life have taken a wide space in various countries which has increased the need of having Euthanasia Law in place.

The emerging issues of human rights in the National and International sphere is associated with Euthanasia and Physician Assisted Suicide which in turn relates to right to die with dignity which comes under the ambit of right to life under Article 21 of the Indian Constitution. The right to human dignity requires that the physician gives assistance to his patient to avoid unbearable physical and spiritual suffering. The advancement in medical technology has resulted in doctors not only measuring death with heartbeat and breathing but also with the brain, brainstem and brain death. The debate on withdrawal of life support systems has also to be seen in the context of the healthcare industry which inflicts futile costly treatment and unnecessary interventions on patients.

This article looks forward to determining whether mercy killing is right or wrong. This article will provide critical and challenging ethical thoughts. Another aim is to overview the court decisions and writings of a number of contributors in the field. The decision to end the life of terminally ill patients who request it is difficult and uncommon. The considerations of family feeling are both subtle and important, particularly if the patient is an infant or young person, and the loss of consciousness was unexpected. This article deals with one of the most debated topics in the field of medical practice and law. The debate is regarding the legalization of euthanasia with the assistance of physicians. This debate is a continuing one as some people say that life belongs to oneself, so each person has got the right to decide what he wants to do with it even if it amounts to dying.

With the advancement of technology in the medical world in the early 20th century, human beings have gained control over processes of life. Now that they have gained control, they define life and death according to their own interpretations and give different meanings to life as well as death. But this paradigm shift in the medico technical field, does not guarantee better quality of life. The innovations have led to transfer of power to die from professionals like physicians, doctors, etc. to the patients themselves. However, the primary approach should have been that the patients were given the right to take decisions on ending their own lives. The patient when in sound/ rational mind must make the right choice whether to live or to die and he must take the responsibility of the same. The rights that accrue to a patient as a result of innovation in these fields is the right to choose proper treatment for diagnosis, or he can also opt to refuse treatment or he also has an option of ending his own life with dignity i.e. right to die with dignity.

Right to die with dignity does not only mean to end a poor quality life. The positive notion of good death includes “good quality of life”, a life which is meaningful not merely animal existence, life which is respectable, productive and useful where a person does some good to society. Hence, a meaningless life of a patient in a persistent vegetative state suffering from pain puts him at the mercy of others and such kind of life is not worth living. Therefore, the patient who is terminally ill as well as his/her family members has an option to end his life in a dignified manner. In India, there is lack of support from the family members and the responsibility of family members have been shifted to old age homes, government and private institutions and as there is no organized effort to run these institutions, the terminally ill patients have to depend on their families at the end of the day without their willing support. Such dependency of the terminally ill on family members who are not willing to support has led to desire of passive euthanasia. The reason behind non-supporting family members can be unwanted loss of money, loss of social opportunities, time and efforts and that too on a patient whose disease can never be cured.

PSYCHOLOGICAL EUTHANASIA

Every country which has made Euthanasia legal has its own limitation, a set of guidelines which would be followed by doctors administering Euthanasia and/ or physician assisted suicide (EAS). In those countries and on fulfilling those conditions only, Euthanasia or Physician Assisted Suicide can be requested by people suffering from psychiatric disorder. It is a very rare practice to administer Euthanasia to someone who has psychiatric disorders. The Netherlands became the first country to pass law on Active Euthanasia and legalize it. Only 1 per cent of all reported Euthanasia cases in the Netherlands are related to psychiatric disorders. This is because, a person with psychiatric disorders is unable to decide what is in his best interest which is a criteria to grant euthanasia, if that criteria is not fulfilled, euthanasia or assisted suicide cannot be administered. In the Netherlands, Euthanasia or Assisted suicide among psychiatric patients has become frequent. Not much is known about Euthanasia and Assisted Suicide; only those cases have been highlighted and have come into record which was reported to Euthanasia Review Committees in Belgium and the Netherlands. Various studies have been done to keep a check on physician assisted suicide in the Netherlands as well as Belgium which become relevant as these studies aim to provide estimates of Euthanasia requests made to psychiatrists and to describe the characteristics of the patient requesting assisted suicide because of psychiatric disorders. The main reasons of assisted suicide in people suffering from psychiatric disorders are depression, desperate situations of life, a disease which cannot be cured, etc.

Euthanasia requests made to a physician brings with it due care and deliberations which have to be fulfilled by the Physician while administering assisted suicide, the emotional impact on the physician in such cases can be considerable. But if the doctor does not administer euthanasia due to his personal reasons, then he can be held liable. This is a principle in the Dutch. The patients to whom, euthanasia was denied were suffering from psychiatric disease or dementia. The question here arises whether requests of people suffering from dementia or psychiatric diseases can be fulfilled and if it can be fulfilled, whether the doctors would do so. The answer has been given to this by the Review Committees in the Netherlands when these cases came up. The committee was of the opinion that the due care criteria should be fulfilled in such cases to grant euthanasia and the suffering of the patient must have been caused by some medical condition.

For this purpose, one needs to study the relationship between mental illness, psychological factors and euthanasia. A person suffering from incurable disease may also have a feeling of shame, feeling of not being wanted, etc. These feelings can arise due to tension of not being able to cope up with the treatment which ultimately leads to misery and depression. The psychiatric disorders are associated with risk of suicidal behavior as the mental disorders are in the brain. The most common mental illness among the elderly is depression or brain death which in some cases becomes the cause of somatic death. Somatic death occurs when the organs of the body are deprived of oxygen, the supply of oxygen stops with the death of the brain.

Euthanasia and Psychological Behavior: The Psychological behavior of a person changes due his suffering. This suffering can be a result of depression or terminal illness which is a product of depression. Poor will to live and desire for death leads a person into depression. These people suffering from depression and terminal illness tend to request Euthanasia or assisted suicide. For example, in Holland, elderly people with depression are considered to be better off dead. In Holland, people with mental disorders have also been administered Euthanasia though they did not suffer from any physical pain.

Medical Issues: The medical issues which arise in these cases are that there is a difference between mental disorder and somatic disorder and the treatment for somatic disorder cannot be applied to mental disorder. Somatic disorder is categorical in nature whereas mental disorders are dimensional. Moreover, the research in the field of psychiatry is not up to the mark to predict the natural course of mental disorder.

Ethical Issues: The primary debate on Euthanasia is on these issues only. Whether the Physician has basic responsibilities to stand for those people who are mentally ill or suffering from mental disorders and to protect them to the best of their interest. Prevention of suicide is the best example on this issue. Physician assisted suicide is opposed to the medical goals. The society also plays an important role in making a person depressed and leads him/ her to commit suicide. The literature in this view is a fear which entails in a person whether he will be accepted socially or not.

The most important case on psychological euthanasia is the “Chabot case”. According to the facts of the case, a woman was suffering from depression or in medical language psychiatric illness. She made a request to her Psychiatrist for Euthanasia and/or assisted suicide. The Dutch Supreme Court held that the Court in such cases must deliver its decision based on the decision of an independent expert who knows about the patient’s illness. Thus, the Dutch Supreme Court made this an essential requirement which needs to be fulfilled to grant mercy killing. According to this judgment of the Supreme Court, this is an essential requirement only in cases where a patient is suffering from mental or psychiatric disorders. It has been termed as a ‘necessity’ which has to be fulfilled by the Court delivering its decision. However, in cases not concerned with mental disorders, it is totally upon the Judges to decide whether a question is of greater importance or lesser importance. In the Chabot case, the psychiatrist administered euthanasia to his patient who was suffering from mental disorder but he was aware enough that he consulted other experts before administering euthanasia to his patient but none of the other experts examined the women. On this point, the Supreme Court ruled that this cannot be called a necessity. However, the Psychiatrist was not punished as in the view of the Supreme Court, he could not have known about this obligation. The Chabot Case, laid down a procedure which would be followed by the Dutch in every case of psychiatric illness which pops up in the country.

As mentioned above, the advancement of medico technological world in the early 20th century has paved way for advancement in the laws pertaining to Euthanasia. With the techno medical innovations in the first half of the 20th Century, Euthanasia became a topic of prime importance in the second half of the century not only in India but all over the world. The concept, legal framework, and status of euthanasia have been a hot potato in various countries. The Legislators and the Judiciary in those countries have constantly been focusing on either decriminalizing or legalizing euthanasia and physician assisted suicide and its protection in times to come. The question of legalizing euthanasia has faced rejection in many jurisdictions; however, there are some countries that permit either euthanasia or assisted suicide or both. The law on euthanasia has found its place in various jurisdictions which are as follows.

The Netherlands

The velour with which the Dutch have handled euthanasia is commendable. Legalizing euthanasia in such a transparent way makes the Netherlands the most honest country and it has served as a guide to various countries as well. Actually, the Dutch have a world class health care system which includes free nursing homes. The hindrances relating to finance, inadequate medical care, etc. faced by other countries remained out of play in the Netherlands. The legal system in the country is also based on consensus which also helped in making good the drawbacks. According to Maas and Leenen, the move relating to Euthanasia and Physician Assisted Suicide started in the Netherlands with a troublesome case of one Dr. Postma in the year 1971 after she injected morphine to her mother who was partially paralyzed and deaf. This case triggered a debate all over the country and various committees were set up to find a solution to the problem. In 1984, a criterion known as ‘Rotterdam Criteria’ was made by the Court. This criterion would act as a guide to doctors while taking decisions to end some one’s life. The Royal Dutch Medical Association (KNMG) and the Government together laid down conditions which if followed while administering euthanasia will not attract prosecution. However, these conditions were changed with time as there were some loopholes in them. The definition of euthanasia in the Dutch is only restricted to active voluntary euthanasia.

Between 1990 and 1993, KNMG delivered four reports on Euthanasia. In the year 1990, the Remmelink Commission was set up to investigate upon the issue of euthanasia. The report of this committee was published in 1991 where the main reasons of euthanasia were cited to be loss of dignity, dependence on others, pain, etc. Studies were also carried out in Australia and Belgium to check its abuse in the country. Finally, the legislation on Euthanasia in the Dutch was passed in the year 2001 with the majority consensus. This law included both euthanasia and physician assisted suicide. The Netherlands became the first country to pass such law and legalize euthanasia. The law of 2001 elaborates the requirements laid down in 1991 as ‘due care criteria’. A person will not be prosecuted if he fulfills the due care criteria. There are 6 criteria to be followed. These are:

REQUEST OF THE PATIENT IS VOLUNTARY

Patient’s disease has no cure and his suffering is unbearable

Patient is informed about his further prognosis

Discussion leading to consensus that there is no other solution to the problem

Consultation with one other doctor who is not connected with the case

Due medical care and attention would be given while administering euthanasia

It is pertinent to note that withdrawal of life support is not considered as “passive euthanasia” because the term “euthanasia” refers to “active euthanasia”. The Dutch law is considered to be on a “slope”. This slope pertains to active euthanasia and passive euthanasia. The one supporting legalization of active euthanasia considers law a road or a slope to legalize all forms of dying on request. The slippery slope can be formed between administering euthanasia to those who are terminally ill and administering assisted suicide to those who are healthy but tired of living. The practice of Euthanasia in the Dutch may or may not be subjected to slippery slope. So many committees, guidance, judicial intervention, debates could not even bring The Netherlands down the slope. Even today the studies show that the slope on which the Netherlands is moving is steep. Now after a paradigm shift in the laws of the Dutch, the country not only allows euthanasia for those who are terminally ill but to anyone who is suffering.

AMERICA

In the 19th century, if one advices another to commit suicide and on that advice the other persons kills himself then the adviser was held guilty of murder which was a well-established principle under common law. Right to life according to the common law in America is considered sacred and inalienable. By way of two most important and landmark judgments, the United States of America made Euthanasia totally illegal, these cases are Vacco vs. Quill and Washington vs. Glucksberg. The Court in these cases was of the view that physician assisted suicides should not be in contravention of the US Constitution. However, the patients have all the right to call for measures which could be a serious threat to life and death caused in this process is not illegal as it would be considered passive euthanasia which is legal in the United States. The patients also have the right to refuse medical treatment.

Active Euthanasia is only legal in four states of the United States, which are Washington, Texas, Oregano and Montana. If Physician assisted suicide is allowed in the U.S. the elderly who have lived their life long enough and for whom life is meaningless would want to get administered with euthanasia. Other people who would avail this would be the terminally ill ones with diseases which cannot be cured. Presently, attempted suicide is not a crime in any American Jurisdiction and no right has been provided by the US Constitution to assisted suicide. The rights are only provided in some specific state provisions. In the state of Oregon, assisted dying is legalized under Oregon Death with Dignity Act, 1997, in Montana by the Judiciary and in Washington by Washington Death and Dignity Act, 2008. To conclude, it can be said that the Laws in the United States of America relating to Euthanasia, can be distinguished between Active and Passive. Such clear distinction gives clarity that U.S is not confused on its Euthanasia laws.

England

In the United Kingdom, Euthanasia is a crime; however, the Courts are tolerant as doctors who administer assisted suicide are not convicted under the Suicide Act, 1961. Assisted Suicide is illegal in the United Kingdom in the present time, any person found administering assisted suicide can be convicted as Section 2 of the Suicide Act, 1961 provides for aid, abetment, procure or counsel to commit suicide. A person who himself takes his life cannot be convicted but the one aids can be. The ‘right to die’ was considered a key element in the case of Ms. B vs. An NHS Hospital Trust, where the Court clearly states that a doctor would be held liable if he acts contrary to the wishes of the patient to remove or withdraw life support equipment even if the result is death. It would be considered unlawful to treat a patient against his/ her will. This approach was taken by the House of Lords in many cases which came up before it. The law relating to Euthanasia is now well settled that if the doctor acts with due and reasonable care in the best interest of his patient to remove life support equipment, it will not be regarded as a crime. The issue here arises, if a person is in his persistent vegetative state, then who will decide what is best for the patient? However, there are numerous judgments on this point in the laws of the U.S.A.

Please read concluding on thedailyguardian.com

HUMAN RIGHTS IN PSYCHOLOGICAL EUTHANASIA

The basic instinct of common law is the protection of human rights and bodily integrity against invasion by any other person. When the basic human rights of a person are infringed, the liability arises on the person who has infringed the human right. The liability can be civil as well as criminal. Civil Liability includes actions or suits for damages and criminal liability includes battery and assault. According to the International Human Rights law, a patient cannot be treated without his consent. This approach is carried on by various nations including India. The consent of the patient to be treated is an essential for giving medical treatment to him/ her. Since English Human Rights Act, 1998, has come into force the human rights debate relating to euthanasia has been advocated by many. According to them, the denial of right to die is inhuman and degrading treatment which is not allowed under Article 3 of the European Convention of Human Rights. Also, it is a clear violation of privacy and dignified life protected under Article 8 of the Convention. Both the European Convention and The English Human Rights Act recognize the right to life but do not pay heed to the right to die.

The request for Euthanasia is a personal request made by the terminally ill patients. The person who wishes to die does not pay heed to the quality of care and resources present as they already are suffering from illness with their body and mind deteriorating. These people do not want to be a burden on their families. In the words of Pope John Paul II “Laws authorizing Euthanasia are opposed not only for the benefits of the individual but also for the benefits of the society as they are lacking in juridical validity” Therefore, the Common Law should guarantee coexistence which should be social so that everyone in the society leads a peaceful and contended life.

Every human being has a fundamental right to life. It does not matter whether that life is contributing to society. The Law both International and National should take special interest in protection of rights of those whose rights can be easily violated by the society. The Utilitarian theory states that an action is morally viable if it increases happiness or decreases misery and according to this theory, Euthanasia and Assisted Suicide is correct. Any law allowing euthanasia clearly violates the right of the government to protect its citizen’s life and that too without any exception. The Law on Euthanasia is violative of Universal Declaration of Human rights which states that right of every person should be protected by law.

In India, right to life and personal liberty is enshrined under Article 21 of the Indian Constitution. The question arose whether right to life under Article 21 includes the right to die. This question was firstly answered in the case of Maruti Sripati Dubal vs. State of Maharashtra where the Hon’ble Bombay High Court held that ‘right to life’ includes ‘right to die’. The Hon’ble Bombay High Court also struck down Section 309 of Indian Penal Code, 1860 saying that it is unconstitutional as it violates Article 14 and 21 of the Indian Constitution. The Court in this case was of the view that Right to Die is just uncommon and not unnatural. The Court also stated that a person suffering from psychiatric disorder needs to get medical treatment and not to be sent to prison cells. However, in the year 1988, the Hon’ble Andhra Pradesh High Court in the case of Chenna Jagadeeswar vs. State of Andhra Pradesh held that right to die is not a fundamental right. The Hon’ble Supreme Court of India in the year 1994 in the case of P. Rathinam vs. Union of India, held that Right to Life includes concurrent right to die under its ambit. This decision of the Supreme Court was opposed in the case of Gian Kaur vs. State of Punjab where it was held by the 5 judge bench of the Supreme Court that right to life does not include the right to die. The Law Commission of India examined the issue again in the year 2008 on De-criminalization of Attempt to Suicide. The Law Commission recommended that attempt to suicide under Section 309 of Indian Penal Code should be omitted as inhuman. In the year 2018, the Hon’ble Supreme Court of India in the case of Aruna Shanbaug clearly held that Passive Euthanasia can be granted to persons suffering from terminal illness and are in a Persistent Vegetative State (PVS). Active Euthanasia is still illegal in India.

 

In view of the discussion above, we feel that voluntary euthanasia should also be legalized in India and there should a specific full-fledged law which would solely include the Euthanasia and all its aspects. So there is a need to make a law on Euthanasia with its adequate protection. The Recommendations of the Law Commission of India also used as guidelines in Aruna Shanbaug Case should also be taken into consideration to make any law in this regard to prevent misuse of the law and its malpractices. However, cases of terminally ill patients and persons who are in persistent vegetative state, are considered as special cases where passive euthanasia is allowed in India. The Netherlands still remains a guiding light on this issue and if ever active euthanasia is legalized in India, it would be in consonance with the Dutch Law in the Netherlands and Belgium.

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Supreme Court: Commercial Transactions Outside Purview Of Consumer Protection Act 1986

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The Supreme Court in the case Annapurna B. Uppin And Ors. Versus Malsiddappa And Anr. observed wherein the complaints is filed seeking recovery of the investment from which the complainant is deriving benefit in the form of interest cannot be entertained under the Consumer Protection Act of 1986. The bench comprising of Justice Vikram Nath and Justice Satish Chandra Sharma in the case observed and has stated that it was a commercial transaction (investment) and therefore also would be outside the purview of the 1986 Act.

The court in the case stated that Commercial disputes cannot be decided in summary proceeding as stated under the 1986 Act but the appropriate remedy for recovery of the said amount, if any, admissible to the complainant respondent No.1, would be before the Civil Court. Thus, the complaint was not maintainable. The aforesaid observations came in the judgement authored by Justice Vikram Nath while deciding the civil appeal preferred by the appellants, the Legal heirs of the partner of the firm against the decision of the National Consumer Dispute Redressal Commission, NCDRC.

The present case relates to the alleged for the non-payment of the respondent no.1, the investment amount by the appellant(s). The respondent also had invested an amount of Rs. 5 lakhs in the partnership firm, wherein the husband of appellant’s was a partner to be repayable after 120 months with interest @ 18% per annum.

On the other hand, the Respondent No. 1 sought for the premature release of the invested amount but was asked to wait till the maturity period and when the amount was not returned even after the end of the maturity period, thus, he filed a consumer complaint claiming the said amount. Therefore, the Forums at various levels allowed the respondent No. 1 i.e., complaint, following which the appellant approached the Supreme Court.

Arguments:

It was also contended before the court Supreme Court by the appellants that the transaction to invest in the partnership firm was commercial and the consumer complaint filed seeking recovery of the investment made by respondent no. 1. Would not be maintainable under the 1986 Act. It has also been contended by the appellants that the complainant could not seek the recovery of the investment because when the investment was made by respondent no.1, he was the partner of the firm.

Further, it was contended before the court by respondent no.1 that the refusal of the appellants to return the investment amounted to a deficiency of service and therefore, the complaint was maintainable. It also being the case of respondent No.1 that the appellants herein inherited the estate of the Managing Partner Basavaraj Uppin, and hence cannot escape the liability of making the payment due to respondent No.1.

Observations Made By Supreme Court:

The court while finding force in the appellant’s contentions held that the complaint seeking recovery of the investment would not be maintainable under the old act. The court in the case noted that respondent no.1 would not benefit from the complaint as he was the partner of the partnership firm during the period of the investment made by him.

The court observed that this court is of the considered opinion that once there was a registered partnership deed dated May 27,1996, there is no further document which is placed on record by the complainant-respondent No.1 with regards to the dissolution of the said registered deed which continued till the time when the investment was made by the complainant respondent No.1 on May 21, 2002 and hence the complainant respondent No.1 would be deemed to be partner of the firm.

Deceased Partner Liability Do Not Passes Upon Its Legal Heirs:

The court in the case rejected respondent no.1 or complainant argument that being the legal heirs of the Managing Partner of the firm, the appellants cannot escape from the liability owed by the Managing Partner. It has also been stated by the said court that the legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court in the case observed that there was no evidence on record in order to show that a fresh partnership deed was executed reconstituting the firm in which the present appellants had become partners so as to take upon themselves the assets and liabilities of the firm. Further, the court stated that the law is well settled that legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court while considering the facts and circumstances of the case allowed the appeal and the complaint preferred by the complainant or respondent No. 1 was set aside. Accordingly, the court allowed the appeal. The counsel, Mr. C. B. Gururaj, Adv. Mr. Prakash Ranjan Nayak, AOR Mr. Animesh Dubey, Adv. Mr. Debendra Ghosal, Adv. Appeared for the Petitioner(s). The counsel, Mr. Chinmay Deshpande, Adv. Mr. Anirudh Sanganeria, AOR represented the respondent(s).

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Former AAP Minister Moves Delhi High Court, Seeks Removal Of Kejriwal From CM’s Post

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In the case Sandeep Kumar v. Arvind Kejriwal and Others, the Delhi High Court observed a petition filed by Aam Aadmi Party MLA Sandeep Kumar seeking the removal of Arvind Kejriwal from the post of Chief Minister of Delhi. Arvind Kejriwal is presently in judicial custody related to an Enforcement Directorate (ED) case concerning the excise policy. This is the third petition seeking such a prayer, with the previous two pleas being rejected by the Division bench headed by Acting Chief Justice Manmohan.

Sandeep Kumar approached the court as a Court of first instance in writ jurisdiction, not as a Public Interest Litigation (PIL), in his individual capacity. He, being a lawyer by profession, claims to be a founding member of the Aam Aadmi Party and a social worker.

The plea filed seeks the issuance of a writ of quo warranto against Kejriwal, calling upon him to show by what authority, qualification, and title he is holding the office of the Chief Minister of Delhi. Additionally, the plea prays for an inquiry to dislodge Kejriwal from the office of the Chief Minister, with or without retrospective effect.

Kumar claims that as a voter of the Delhi Assembly Election, he is personally aggrieved for having a Chief Minister for his Union Territory who has incurred an ‘incapacity to hold the post’ and ‘who can never function as the Chief Minister from custody or prison’ as envisaged by the Constitution of India.

The petitioner argues that Kejriwal has incurred an incapacity to carry out his functions as the Chief Minister of Delhi under the Constitution and therefore, he cannot hold the post. The plea emphasizes that the right to have a government in accordance with the Constitution is a Constitutional Right of every citizen and voter.

Arvind Kejriwal was arrested on the night of March 21 and subsequently remanded to judicial custody until April 15. However, the court refused to entertain a Public Interest Litigation (PIL) seeking Kejriwal’s removal from the post of Chief Minister, observing that there is no scope for judicial interference in the matter, and it is for other organs of the State to examine the issue.

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Delhi High Court Reserved Verdict On Arvind Kejriwal’s Plea Challenging ED Arrest In Liquor Policy Case

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The Delhi High Court in the case Arvind Kejriwal v. Directorate Of Enforcement observed and has reserved verdict on the plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate, ED in the money laundering case related to the alleged liquor policy scam case.

The bench headed by Justice Sharma in the case observed and has denied any interim relief to Kejriwal and only issued notice on his plea challenging the arrest, as well as his interim application seeking immediate release.

In the present case, Kejriwal is currently in judicial custody. Kejriwal was being arrested on the night of March 21.

The Trial Court in the case remanded him to six days of ED custody, which was extended by further four days. On April 01, he was remanded to judicial custody till April 15.

It has been stated by the Enforcement Directorate, ED that Kejriwal is the kingpin and the key conspirator of the excise scam and there were reasons to believe on the basis of material in its possession that he was guilty of the offence of money laundering.

It has also been alleged that the Aam Aadmi party was the ‘major beneficiary’ of the proceeds of the crime and has committed the offence through Kejriwal.

The response stated that, the Aam Aadmi Party, AAP is the major beneficiary of the proceeds of crime generated in the Delhi Liquor Scam. The Sh Arvind Kejriwal was and is not only the brain behind the AAP but also controls its major activities, he was also one of the founding members and was also involved in the decision making of the policy as evident from the statements of the witnesses.

Arguments:

The counsel, Additional Solicitor General SV Raju told the Court that investigation qua the sitting CM is at a nascent stage. Thus, he also pointed that Kejriwal has not challenged the latest order remanding him to 15 days judicial custody. He has also challenged the first remand order. Please look at the remand order of 26 March. Today we are on April 3. The second remand order is passed on March 28. That has not been challenged. Thus, the third remand order of judicial custody has not been challenged. So today his custody isn’t pursuant to arrest or first remand order, it’s pursuant to April 1 order which has not been challenged. Therefore, Raju also wondered if Kejriwal can challenge his remand since he did not oppose it. ‘He voluntarily accepts please remand me further. Can he challenge the remand order? Or is it barred by waiver? They are blowing hot and cold at the same time. You cant challenge the remand order and say please pass the order and accept it. They have not challenged the latest orders pursuant to which he is in custody. Thus, custody can’t be said to be illegal.”

The counsel, Senior Advocate Abhishek Manu Singhvi appearing for Kejriwal argued before the court that the central probe agency did not comply with Section 50 PMLA which empowers it to issue summons, collect evidence, etc. thus, it being clear that section 50 involves an inquiry. Because it’s inquiry which enables ED to make up mind about arrest and prosecution. No attempt is made to record my section 50 even at my residence. While pointing out the remand application he added ED wants to “find out” the role of Chief Minister. ‘Surely that’s not a ground for today’s arrest… There has to be specific role of the petitioner, even for the company, which I’m denying.’

On the other hand, it has been argued by the ASG that the fact that a PMLA offence has taken place is clear and beyond any doubt. Because as far as first Police Custody and subsequent Police Custody is concerned, court has taken cognizance… Categorical finding that there is money laundering. Cognizance of the offence of money laundering. Nobody has challenged the order.

It has also been contended by the Singhvi that ED forced the approvers Raghav Magunta, Sarath Reddy and Magunta Reddy to make statements against Kejriwal. Further, it has been alleged that two approvers even have links with the ruling party. Adding to it, Singhvi stated that initial statements that did not implicate Kejriwal are not even put on record by the ED. ‘These statements are kept in unrelied. Why should the court not see it? Is it fair? What cannon of fairness are you carrying ED? Out of 13 statements by this Reddy. He says nothing in 11 statements. The judge will go by one statement?’

He also questioned the necessity of arrest amid upcoming general elections. The test is not can arrest. It is demonstrating the necessity to arrest. The should arrest test. The necessity to arrest immediately before elections… the only object is to insult, humiliate and disable… So that the petitioner is unable to participate in the election process and to try to demolish the party before the first vote is cast. The timing reeks of basic structure issue, free and fair election issue and democracy issue. What is this urgency or necessity?

Further, Singhvi stated that it said to be a flight risk, given his deep roots in the society. Responding to this ASG stated that, supposing a political person commits murder two days before elections. This means he can’t be arrested? Basic structure comes into play? Criminals are supposed to be arrested and put in jail. In such cases there is no infringement of basic structure.

Further, it has been argued by ASG that calculation was done as to why 5 percent profit was made 12 percent in the new policy. “Only inference is that it was done so that 7 percent of portion is used for giving kickbacks. The fact that there is a scam is beyond doubt. Howsoever hue and cry you make, its a fact that a scam was there… Finding of the actual proceeds of crime is irrelevant if we make out a case that you were involved in money laundering.

Facts of the Case:

Kejriwal had skipped nine summons issued to him by ED. The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. While following his arrest, Kejriwal had promptly moved an urgent petition before the Supreme Court challenging his arrest. However, the same was withdrawn later. Kejriwal has previously moved the Delhi High Court, the division bench wherein it challenged the summons issued to him by the central probe agency. He has also filed an application seeking interim protection. The matter is fixed for hearing on April 22. The Kejriwal has skipped the summons, claiming that they are illegal.

It has also been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores. It being the case of ED’s that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. Further, it has also been claimed by the Central agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers. According to the agency, Nair was acting on behalf of Chief Minister Arvind Kejriwal and Manish Sisodia.

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Delhi High Court CM Arvind Kejriwal’s ED Custody extended By 4 Days Till April 1 In Liquor Policy Case

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The Delhi High Court in the case Surjit Singh Yadav v. Union Of India observed and has remanded the Chief Minister Arvind Kejriwal to Enforcement Directorate, ED custody till April 01 in the money laundering case which relates to the alleged liquor policy scam case. Arwind Kejriwal was being arrested on the night of March 21, 2024. The Special CBI judge Kaveri Baweja of the Rouse Avenue Courts passed the order after Kejriwal was produced in court on the expiry of his six days of Enforcement Directorate, ED custody.

The Delhi High Court in the case declined any interim relief to Kejriwal and only issued notice on his plea challenging the arrest and remand. The counsel, Additional Solicitor General SV Raju told the court that the sitting CM was giving “evasive replies” during interrogation and the agency needs to confront him with some individuals who have been summoned from Goa. Thus, ED sought 7 more days of custody. He doesn’t get exonerated if he is a CM. There is no different standards for a CM. Right to arrest a CM is no different from an ordinary man.”

Yesterday, the Enforcement Directorate, ED summoned AAP’s Goa unit chief Amit Palekar and some other party leaders for questioning. Thus, they have been asked to appear at the agency’s Goa office on March 28, 2024. Further, the Kejriwal while appearing in person submitted before the court that he is not opposing remand. He claimed the entire case is a ‘political conspiracy’ and there is no such material against him. It has also been alleged by the Delhi CM that the central probe agency was collecting selective material and even the approver was forced to make a statement against him. Further, the central probe agency submitted before the court that Kejriwal has refused to share the password of his mobile phone.

Adding to it, Kejriwal responded that ED cannot force him to unlock his electronic gadgets. Delhi High Court Rejected PIL For Removal Of Arvind Kejriwal From Post Of Chief Minister The Delhi High Court rejected the Public Interest Litigation, PIL moved seeking removal of Arvind Kejriwal, who has been arrested by the Enforcement Directorate, ED in the liquor policy case, from the post of Chief Minister of Delhi. The Division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora in the case observed and has stated that the petitioner failed to show any bar in the law which prohibits the arrested CM from holding office. The CJI orally stated that, ‘Show us, where is the prohibition. Show us any legal bar which you’re canvassing’.

Further, the bench stated that there is no scope for judicial interference in the matter and the executive is examining the issue. The court in the case observed that if there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this. In the present case, the petition is moved by one Surjit Singh Yadav, a Delhi resident claiming to be a farmer and social worker. It has been claimed by him before the court that a Chief Minister accused of a financial scandal should not be permitted to continue in public office. Kejriwal is presently in ED custody which ends on March 28, 2024. It has been submitted by Yadav in the PIL that Kejriwal’s continuation in the post would not only lead to obstruction of due process of law and disrupt the course of justice, but also would lead to a breakdown of the constitutional machinery in the State as Kejriwal does not satisfy most of the limbs of Article 163 and 164 of the Constitution of India owing to his incarceration.

Further, the plea stated that the Respondent No.4 has virtually forfeited his office as a Chief Minister of account of being arrested and as he is in the Custody he has disabled himself from performing the duties and responsibilities of being a public servant and as such he ought not to continue as a Chief Minister. Therefore, the AAP Ministers have been making statements in the media that Kejriwal will not resign from the post and if need be, he will run the government from inside the prison.

It has been submitted by Yadav that a jailed CM would be incapable of transacting any business that the law enjoins upon him and if he is allowed to do so, any material, irrespective of its secretive nature, would have to be scanned thoroughly by the prison authorities before it reaches Kejriwal’s hands and such an act would amount to direct breach of oath of secrecy administered to the CM under the Third Schedule of the Constitution. Further, the plea stated that the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 empowers a CM to call for files from any department of the Cabinet and if Kejriwal continues as CM, he would be well within his rights to demand for the investigation of files wherein he has been arraigned as an accused.

The plea states that, such a situation is against the ethos of Criminal Jurisprudence. Therefore, Yadav had prayed the Court to issue a writ in the nature of Quo Warranto, calling upon Kejriwal to answer under what authority he is holding the post of CM and consequently remove him. However, Yadav has also filed another PIL seeking to prevent Kejriwal from issuing directions or orders while in ED custody. About The Case: The Kejriwal had skipped nine summons which were issued to him by the Enforcement Directorate, ED.

The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. The Kejriwal while following the arrest of him had promptly moved an urgent petition before the Supreme Court challenging his arrest. Later, the same was withdrawn. Therefore, Kejriwal has previously moved the Delhi High Court (division bench) challenging the summons issued to him by the central probe agency. Further, the Kejriwal has also filed an application seeking interim protection.

The matter was fixed for hearing on April 22. It has been alleged by ED that two criminal complaints had been filed against Kejriwal in city’s Rouse Avenue Courts alleging non-compliance of the summons by him. Kejriwal has skipped the summons, claiming that they are illegal. It has been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores.

It being the case of ED that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. It has been claimed by the Central Agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers.

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Supreme Court: Plea To Stay Citizenship Amendment Act

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The Supreme Court in the case was hearing the application filed to stay the Citizenship Amendment Act 2019 and the Citizenship Amendment Rules 2024.

The bench comprising of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra was hearing the present matter. In the present case, the court was hearing the 237 writ petitions challenging the CAA, filed in 2019.

Therefore, these petition before the Court on October 31, 2022. The Union Government notified the Citizenship Amendment Rules 2024 to implement the CAA and notified the formation of committees at the State or UT levels to process the applications on March 11.

The petitioner are Political party Indian Union Muslim League (IUML, the lead petitioner in the case), Democratic Youth Front of India (DYFI, youth wing of the CPI(M)), All Assam Students Union, Assam opposition leaders Debrabata Saika and Abdul Khaleque, State of Kerala, AIMIM head Asaduddin Owaisi, Socialist Democratic Party of India etc.,

The Senior Advocate Kapil Sibal told the court that there was no question of a pause back then since the rules were not notified. Adding to it, Solicitor General Tushar Mehta then said that the fact that the rules were notified before the elections was irrelevant.

The party leader Jairam Ramesh has stated that, the pposition has slammed the Narendra Modi government over the timing of the law’s implementation – four years after it cleared the Parliament. The move is “evidently designed to polarise the elections, especially in West Bengal and Assam”.

Further, the Trinamool Congress chief and Bengal Chief Minister Mamata Banerjee stated that she doubts the legality of CAA and alleged a conspiracy to “snatch citizenship rights. The Bengal Chief Minister Mamata Banerjee says that, BJP leaders say CAA gives you rights. But the moment you apply for citizenship, you become illegal migrants and you will lose your rights. You will lose rights and be taken to detention camps. Please think before you apply. The Centre has trashed the Opposition’s allegations. Stressing that the CAA is not “unconstitutional”, Home Minister Amit Shah has accused the Opposition of resorting to the “politics of lies”.

Amit Shah stated that, On the timing of the law’s implementation, “BJP made it clear in its 2019 manifesto that it will bring CAA and provide Indian citizenship to refugees (from Pakistan, Bangladesh and Afghanistan). BJP has a clear agenda and under that promise, the Citizenship (Amendment) Bill was passed in both houses of Parliament in 2019. It got delayed due to Covid.” Further, Amit Shah stated that, minorities of the country “need not be afraid because CAA has no provision to take back the rights of any citizen”.

Court Hearing:

The bench passed an order appointing separate nodal counsels for petitions which relates t0o States of Assam and Tripure. The Adv Ankit Yadav appointed for the petitioners’ side and Adv Kanu Agarwal for the Petitioners.
Sibal: the moment something like this happens, give us liberty to move here.
CJI: We are here.
Jaising : Would your lordships be pleased to say that any citizenship granted will be subject to the outcome of the petitions.
SG : No, no.
CJI : They don’t have the infrastructure in place, the committee..
SG : This attempt was made outside the court four years back. Misleading people that you will be out of NRC. Same thing Mr. Pasha did. NRC is not an issue here. Grant of citizenship is. Please don’t do this. Nizam Pasha : Muslim members left out of NRC will be prejudiced.. 19 lakhs people left out of NRC, it applies to them.
SG : NRC is not an issue
CJI : They are not willing to make a statement, that is why we keep on April 9.
Sibal : If something happens, we will come..
CJI : What we will do is we will keep on April 9, 2024.
Jaising : In the meantime no citizenship.
SG : I am not making any statement.
SC : We direct the proceedings be listed on April 9, 2024.
Sibal : In meantime no citizenship be granted.
SG: Realistically speaking, I need 4 weeks.
CJI : You can file response in one case, opposing interim prayer.
SG : Many matters have different contentions.
Sibal : Then make a statement that no citizenship will be granted
CJI dictates order : On 22.01.2020 notice was issued. The rules have been
recently notified. This has given rise to applications for stay. SG submits that 4 weeks’ time be granted to file response. The request of 4 weeks’ time is opposed on the ground that in the meantime if citizenship is granted, it will be irreversible.
Sibal : There are serious issues of constitutionality.
Sr Adv Ranjit Kumar (for migrant) : From Balochistan, I came to India because I was persecuted. If I am given citizenship, how is it affecting them?
Jaising : They will get the right to vote!.

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Delhi High Court: ED summons cannot be quashed merely because documents required for confrontation or probe not specified in it

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The Delhi High Court in the case Mr Talib Hassan Darvesh v. The Directorate Of Enforcement observed and has said that the summons issued by Enforcement Directorate, ED cannot be quashed merely because relevant documents are required for investigation or confrontation with an accused who have not been specified in them.

The bench of Justice Anoop Kumar Mendiratta in the case observed and has stated that the summoning, in exercise of statutory powers, cannot be stalled merely on mere apprehension that the accused may be arrested and prosecuted on basis of summons issued after registration of ECIR in the proceedings which are initiated by the Enforcement Directorate, ED. The court in the case observed and has denied the interim relief to Talib Hassan Darvesh, the accused in the money laundering case.

Before the court, he also sought a stay on the summons which is issued to him by Enforcement Directorate, ED and to restrain the probe agency from taking any further coercive steps against him. Therefore, the Enforcement Directorate, ED opposed the petition which being on the ground that Darvesh cannot be insulated from any coercive action at the initial stage itself and no protective orders could be passed in his favour, ignoring the mandate of Section 45 of PMLA.

It has also been submitted before the court that the proceedings which are initiated by ED were an independent investigation into money laundering allegations based upon the ECIR and the benefit could not be granted which being merely on account of orders granting anticipatory bail to Darvesh in FIR registered by CBI.

The court stated while denying the relief that the summons issued by the Enforcement Directorate, ED cannot be quashed merely because the relevant documents required for purpose of investigation or confrontation to the petitioner, have not been specified in the summons. Adding to it, the court stated that since ECIR is an internal document which is being created before initiation of prosecution against persons involved with process or activity connected with proceeds of crime and it is not necessary to reveal the evidence collected by the Enforcement Directorate, ED at this stage in the summons forwarded to Darvesh.

Further, the court stated that the petitioner is yet to be absolved of scheduled offence by way of discharge, acquittal or quashing and as such protection orders cannot be issued in favour of petitioner ignoring the mandate as it is stated under Section 45 of PMLA, 2002 for grant of bail. Further, the court stated that summoning in exercise of statutory powers cannot be stalled merely on mere apprehension that petitioner may be arrested and prosecuted on basis of summons issued after registration of ECIR, in proceedings initiated by Enforcement Directorate, ED.

The court while considering the facts and circumstances of the case observed and found no grounds for interim relief to be made out at this stage, thus, the court disposed of the plea. Accordingly, the court the petition seeking to quash of the ECIR and summons for hearing on May 07.

The counsel, Advocates Mr. Siddharth Luthra and Mr. Siddharth Agarwal, Sr. Advs. with Mr. Ayush Agarwal, Mr. Udhav Sinha, Mr. Amar Gahlot, Ms. Srishty Jaura, Mr. Nalin Bajaj, Ms. Purvi Garg and Mr. Prashant Singh appeared for the Petitioner. The counsel, Advocates Mr. Zoheb Hossain, Special Counsel for E.D. with Mr. Vivek Gurnani, Mr. Kartik Sabharwal and Mr. Abhigiya represented the respondent.

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