In a landmark judgment with far reaching consequences which shall always be a trendsetter in the time to come, the Bombay High Court in Neelam Choudhary V/s 1. Union of India 2. State of Maharashtra 3. Ministry of Health and Family Welfare, through its Secretary in Writ Petition No. 6430 of 2018 delivered on June 19, 2018 while refusing a plea seeking termination of pregnancy held that matrimonial discord cannot be considered as a reason for permitting termination of pregnancy by invoking provisions of the Medical Termination of Pregnancy Act, 1971. Very rightly so! There can be no denying or disputing it!
Going forward, the petition also challenged stipulation of a ceiling of 20 weeks for an abortion to be done under Section 3 of the Act, on the ground that the said provision is ultra vires Article 14 and 21 of the Constitution of India. By way of present petition, the petitioner has sought following reliefs:
“a. For a writ of declaration or any other appropriate writ, order or direction in the nature of declaration, declaring section 3(2)(b) of The Medical Termination of Pregnancy Act, 1971 to the limited extent that it stipulates a ceiling of 20 weeks for an abortion to be done under Section 3, as ultra vires Article 14 and 21 of the Constitution of India;
b. For a writ of declaration or any other appropriate writ, order or direction in the nature of declaration, declaring that the case of the Petitioner is a fit case for exercising jurisdiction under Section 5 of the Medical Termination of Pregnancy Act, 1971.
c. For a writ of mandamus or any other writ, order, or direction in the nature of mandamus directing the Respondents to –
i constitute a Medical Committee for the examination of the Petitioner to assist this Hon’ble court in arriving at a decision on the plea of the Petitioner;
ii allow the Petitioner to undergo Medical Termination of Pregnancy at a medical facility of her choice.
d. For a writ of mandamus or any other writ, order, or direction in the nature of mandamus directing the Respondents to set up appropriate Medical Committees in each district in the State of Maharashtra to assess the pregnancy and offer MTP to the Petitioner and other women in need of the procedure beyond the prescribed 20 weeks limit.
e. For an order directing Respondent No. 1 to produce the report of MTP Committee which included the Health Secretary, Mr Naresh Dayal, former Director-General of the Indian Council of Medical Research and Dr. NK Ganguly as its members as stated in para 9 of the petition.”
I
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
It must be stated right at the very beginning that in a landmark judgment delivered on July 10, 2018 with far reaching consequences, the Delhi High Court in Jasmeen Kaur v Union of India and others in W.P.(C) 7040/2018 while holding merit over technical grounds has opened up a closed opportunity for an aspiring medico to register for the second round of counselling for deemed universities after the due date. How can merit be defeated on technical ground? So Delhi High Court very rightly stepped in and gave the much needed relief to the petitioner which she richly deserved also!
Truth be told, the present petition has been instituted on behalf of a candidate who has secured All India 24,392nd rank in the NEET UG, 2018 examination. At the time of registration for the first round of All India Counselling, the petitioner expressed her options as ‘All India Quota’ seats, as well as ‘Central University Quota’ seats. The petitioner participated in the counseling process but could not be granted admission on account of her All India merit.
Needless to say, it is an admitted position that the second round of All India Counselling for Central and Deemed Universities has commenced on 10th of July, 2018. It is scheduled to continue till the 11th of July, 2018. It is the submission of the petitioner that on account of the circumstance that she limited her options at the time of applying online for registration, to ‘All India Quota’ and ‘Central University Quota’, she has been precluded from registering afresh for the second round of counseling under the category of ‘Deemed Universities’.
As it turned out, the learned counsel appearing on behalf of the respondent no. 1 states that the portal permitting candidates to register for the second round of counseling had since been closed on the 8th of July, 2018 and the petitioner having limited her options as afore-stated in the first round, cannot be permitted to register afresh for the second round under the category of ‘Deemed Universities’ since that option had not been exercised by her earlier. It is further stated that during the process of online registration, candidates are permitted one opportunity to reset their choices and the petitioner having utilized that opportunity, cannot be permitted once again to apply for the category of ‘Deemed Universities’ as an option in the second round of counselling. On a specific query from the court, it emerges that although there are no rules or regulations that bar fresh registration to those who may have exercised limited options on an earlier occasion, the process permitting a candidate, such as the petitioner, to exercise her options at this stage would require the re-opening of the portal which would cause inconvenience and delay in the completion of the process of registration.
Truly speaking, it is very rightly pointed out in para 6 of this landmark judgment that, “It is a settled position that construction of rules or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure is the handmaid of justice and not its mistress [Ref: Salem Advocate Bar Association, T.N. vs. Union of India, reported as (2005) 6 SCC 344]”. Furthermore, it is also rightly pointed out in para 7 of this landmark judgment that, “In view of the foregoing, it is trite to state that merit cannot be defeated on technical grounds. It is an admitted position that considering the All India rank secured by the petitioner, she may be entitled to participate successfully in the second round of counseling for admission to a medical course conducted by the Deemed Universities.”
As it turned out, Justice Siddharth Mridul directed the Centre to open up its online registration facility for the petitioner named Jasmeen Kaur who had secured all-India 24,392nd rank in NEET UG 2018 examination but could not register for second round of counseling for admission to deemed universities since at the time of online registration, she had marked her options as ‘All-India Quota’ seats as well as central university quota seats. Para 8 of this landmark judgment says that, “In this view of the matter, the only course that commends itself in the interest of justice is to direct respondent no. 1 to permit the petitioner to register afresh for the ‘Deemed Universities’ category in the second round of counselling in accordance with law.” Very rightly so!
It cannot be lost on us that the order of the court came on Tuesday i.e., July 10, just a day before the second round of counseling was to close. Following the order, the Centre opened universities. Jasmeen had participated in the first round of counselling but could not be granted admission on account of her all-India merit. The second round of counselling for central and deemed universities began on July 10 and July 11 was the last day of counselling.
It would be pertinent to mention here that Jasmeen’s counsel Rahul Kriplani told the court that due to the options exercised by her at the time of registration, she has now been precluded from registering afresh for the second round of counselling for deemed universities and stands to suffer the loss of a precious opportunity having already dropped one year for preparation for NEET. In the petition, advocate Kriplani said that Jasmeen had secured Rank 24,392 which puts her in the 98.07 percentile of candidates. This alone explains why the Delhi High Court ruled explicitly in her favour!
Going forward, it must also be brought oput here that in para 9 of this landmark judgment, it is pointed out that, “Needless to state that, the above direction is being issued in view of the special facts and circumstances of the present case and in view of the legal position that there is no bar for a meritorious student to be considered for admission to a medical course by all institutions who conduct such courses.” Absolutely right! How can a meritorious student be barred in such a whimsical and arbitrary manner?
Simply put, Jasmeen’s lawyer rightly argued that, “She then registered to participate in the first round of counseling and at that time opted for admission into ‘15% All India Quota of Government Colleges’ and ‘Central Universities’. It was understood that subsequently, the petitioner would be allowed to opt for ‘deemed universities’, if she did not secure a seat in the first round, as the website of the Medical Council Committee clearly stated that fresh registration was permissible at the time of second round of counseling.” He also rightly said that, “Having not secured any seat in the first counselling (since she had not picked ‘deemed universities’ as an option at the time of enrolling for the first round), the Petitioner sought to opt for Deemed Universities at the time of second round of counselling but was not being permitted to do so. She was not even being allowed to register afresh for Deemed Universities and make payment for the same. However, the information provided on the website of the Medical Counselling Committee, clearly stated otherwise. The last date for making payment and selection of colleges in the second round of counselling was Monday, 09.07.2018.”
As if this was not enough, he also informed that persons with a rank as low as 3,89,871 had obtained admission to MBBS in deemed universities in the first round of counselling. He also argued that there were around 3,100 seats remaining in the second round of counselling and the petitioner would be able to secure admission into an MBBS course of her choice if she is allowed the promised option of fresh registration. His point is certainly valid.
No prizes for guessing that his valid contentions were accepted by the Delhi High Court. His client Jasmeen got the much needed relief from the court. Before disposing of her writ petition apart from what has been stated above, it was also directed by the Delhi High Court in para 10 of this landmark judgment that, “It is further clarified that the option of registering afresh shall be available to the petitioner up till closing of the business hours today, subject to the respondent no. 1 making online registration facility available to the petitioner and informing her in this behalf.” Very rightly so!
All said and done, it is a landmark judgment delivered by Justice Siddharth Mridul of Delhi High Court. It minces no words in sending out a loud, clear and categorical message to all that, “Merit can’t be defeated on technical grounds”. This will certainly give an inspiration to the deserving candidates in future not to hesitate in taking recourse to legal action if they feel that their merit has been snubbed wrongly by the authorities and thus get their right by doing so! It is an excellent and exemplary judgment in which the Judge of Delhi High Court Justice Siddharth Mridul briefly and very forcefully articulates his stand and provides the much needed reprieve to Jasmeen who had petitioned Delhi High Court to get what she was legally entitled also but was being wrongly deprived of! It will not be an exaggeration to say that it is a “must read judgment”! There can be no denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
To begin with, a heinous crime like rape deserves zero tolerance and must be awarded the strictest punishment. Rape of girls who are aged 15 years or below is the worst crime and just like gang rape must be awarded nothing but the death penalty. There can be no justification for awarding a lenient punishment for it.
While craving for the exclusive indulgence of esteemed readers, it must be informed here that a Bench of Justice Rajiv Sharma and Justice Alok Singh confirmed the death sentence awarded to a convict named Karandeep Sharma who had shamelessly perpetrated the most heinous crime of rape and that too on a minor girl and thus causing her death due to pain! While dismissing his appeal and confirming the punishment, the Uttarakhand High Court expressed its grave concern about the burgeoning number of cases of crime against children in Uttarakhand. Such heinous crime deserve no sympathy and those who indulge in it must be awarded the most strictest punishment always and every time they commit it!
Facts of the case
To recapitulate the entire sequence of events that led to this horrifying crime, let us start from the beginning. The victim had gone to attend a jagran with her family on the intervening night of June 25-26, 2016. While the victim’s mother and brother came back home at 1.30 am, she, her cousin and neighbour’s daughter and many children from the neighbourhood stayed back.
As it turned out, he identified the body as that of his daughter. It seemed that the child was raped before being killed. Many independent persons came forward stating that they had seen the girl leaving with a person wearing thick lens of glasses who was working in the jagran as electrician.
Rarest Of Rare
Law for death if rape victim is under 15
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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