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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!
                                  Bluntly put, if matrimonial discord is accepted a valid reason for permitting termination of pregnancy then many women would resort to such specious plea and many children would be killed in the womb itself! How can this be permitted to happen under any circumstances? So Bombay High Court took the right, laudable and bold decision in not allowing termination of pregnancy on the ground of matrimonial discord!
                                       To recapitulate, a married woman who was carrying pregnancy of more than 20 weeks, approached Bombay High Court contending that she does not intend to continue with the pregnancy as she intends to pursue her studies and apply for divorce. According to her, taking into account her health problem of epilepsy, it will not be advisable to continue with the pregnancy and also pursue her studies. In her plea, it was also stated that she had always cautioned her husband to have protective sex, but he did not pay any heed to the same.
                             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.”
                                      Truth be told, a Division Bench of Justice Shantanu Kemkar and Justice Nitin W Sambre observed that none of the medical papers produced by her certifies that there is imminent danger to her life and she has no case that foetus will not be able to survive. Para 10 of this landmark judgment says explicitly that, “From the record, it is ex-facie clear that it is the case of the petitioner that she is carrying as on date pregnancy of about 23 weeks. The petitioner got married in 2012 and started residing with her husband and in-laws in 2016. The fact remains that she is educated up to 11th standard and pursuing further studies. It is also apparent that in 2016, an NC came to be registered for an offence under section 323, 504 of the Indian Penal Code in view of the complaint lodged by the petitioner against her husband and in-laws. It is apparently clear that the said NC complaint was not further prosecuted by the petitioner. Rather, in categorical terms she has admitted that, she has started residing with her husband. Out of the said relationship, she conceived a child and presently carrying pregnancy of 23 weeks.”
                                        To be sure, the Bench further observes in para 11 that, “In the aforesaid factual background, if the claim of the petitioner is examined qua her prayer for issuance of directions for permission to terminate pregnancy, it is required to be noted that none of the medical papers which are placed on record certifies that there is imminent danger to life of the petitioner nor the condition of the foetus is incompatible with the extra uterine life. It is even not the case of the petitioner that the foetus would not be able to survive. The petitioner has also not demonstrated that continuation of pregnancy can gravely endanger the physical and mental health of the petitioner.” We thus see that petitioner’s plea is not supported by strong causes! This alone explains why her plea was rejected!
                                      As if this is not enough, para 12 of this landmark judgment further exposes the fallacies in her tall claims when it points out that, “Apart from above, it is required to be noted that the petitioner is seeking termination of pregnancy based on the cause viz. her matrimonial discord with her husband, her intention to initiate divorce proceedings and to pursue her career and improve her educational qualification. If the aforesaid cause as cited by the petitioner are examined in the light of the provisions of the Medical Termination of Pregnancy Act, 1971, same not at all recognized to form basis for accepting the prayer of the petitioner to terminate the pregnancy.” So naturally how could the Bombay High Court accept her petition for termination of pregnancy? The petition had to be rejected!
                                  Simply put, para 15 further says that, “It is not the case of the petitioner that she is of unsound mind or there is any physical or mental deformity which prompts her not to continue with the pregnancy. As observed herein before, there is no material whatsoever brought on record to substantiate the said claim.” So no prizes for guessing that her plea was bound to be rejected. She could not cite any valid cause for the abortion!
                                      Be it noted, para 22 of this landmark judgment pooh-poohed her plea for termination of pregnancy by observing that, “In the wake of law laid down and discussed herein before, the fact remains that the ground which is sought to be espoused by the petitioner seeking termination of pregnancy is no more germane to the requirement under section 3 of the Act. Her matrimonial discord cannot be considered as a reason for permitting her to have termination of pregnancy by invoking provisions of the Medical Termination of Pregnancy Act, 1971. For the eventualities which are spelt out in the petition, it is really difficult to consider and grant the request of the petitioner for permitting her to have termination of pregnancy.”
                                 It would be pertinent to mention here that para 23 further goes on to say that, “Apart from above, though the petitioner has raised a plea of challenge to provisions of Section 3 of the Act being violative of Article 14 & 21 of the Constitution of India, the petitioner has hardly tried to justify her claim as no arguments are canvassed on the said issue.” Finally and most importantly, para 24 concludes this landmark judgment by saying that, “That being so, this Court has reached to a conclusion that there is no substance in the present petition and same deserves to be dismissed and accordingly dismissed.”
                                      All said and done, this is an excellent and exemplary judgment which serves to send out a clear and categorical message that pregnancy cannot be permitted just on ground of matrimonial discord unless accompanied by other compelling grounds like threat to the life of the women or she is of unsound mind or has any physical or mental deformity! The Bench also declined to entertain the prayer challenging stipulation of 20 weeks ceiling observing that no arguments are canvassed on it. The Bench observed that the lady is seeking permission to terminate pregnancy merely by citing her matrimonial discord as the cause and pursuing her education further when the fact remains that she is carrying pregnancy out of her marital life and she is major and educated. Also, the petition was held as not maintainable as there is no medical advice to the petitioner to terminate her pregnancy of more than 20 weeks. Lastly but most importantly, all the causes that she cited for getting her pregnancy terminated did not appeal to the Bench which rejected her petition after citing the valid causes for doing so!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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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.
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 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.
                                              Truth be told, this is exactly what the Uttarakhand High Court also ruled in its landmark ruling at the starting of January which is really commendable and deserves applaud. While confirming the death sentence handed down to a man for raping and murdering an 8-year-old girl in 2016, the Uttarakhand High Court in State of Uttarakhand Versus Karandeep Sharma @ Razia @ Raju in Criminal Reference No. 1 of 2017 with Criminal Appeal No. 156 of 2017 in its landmark judgment delivered on January 5, 2018 recommended strongly the state government to enact in three months a suitable legislation for awarding death sentence to those found guilty of raping girls of 15 years or below. Very rightly so!
                                  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!
                                              How can such a horrifying crime be viewed sympathetically? How can such offenders be allowed to escape with a very light punishment? How can any punishment less than death sentence be justified under any circumstances?
                                           For esteemed readers exclusive indulgence, it must also be informed here that the Bench of Uttarakhand High Court while delivering a landmark judgment in this case held clearly and categorically that, “In the present case, the convict took the victim along with him. He committed rape upon her. She died during the intercourse. Thus, it was a calculated, cold-blooded and the brutal murder of an eight years’ old girl by the appellant after committing rape on her. Thus, no lenient view can be taken.” Very rightly so! There can be no denying 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.
                                  In the morning of June 26, 2016, the victim’s father noted that she had not returned and lodged an FIR. He tried his best to trace her. When he was searching for the victim, someone told him that the body of a child was lying in the nearby field.
                                        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.
                                   Going forward, the DNA from the body fluids found on the clothes of the victim matched with that of the convict. He was booked for offences of rape, kidnapping etc under the Indian Penal Code and the POCSO Act, and held guilty by the fast track court. Very rightly so!
                     Rarest Of Rare
                                  It cannot be lost on us that the Bench took special note of the submission of the doctor who conducted the post-mortem to say that the victim died due to asphyxia as a result of commission of rape. The doctor had further opined that as a result of commission of rape, the victim has undergone acute pain and shock and due to exertion of pressure, she was suffocated. The internal organs of the victim i.e. brain, liver, spleen and kidneys were congested.
                                       “In the instant case, the convict was depraved. He took away the girl from the religious construction. The convict stifled the victim by placing his hand on her mouth when she was forcibly raped. The cause of the death of victim is excessive pain leading to shock,” said the court denying any leniency and applying the principle of proportionality. Very rightly so! Such heinous crime offenders must be punished swiftly and strictly!
                                   Simply put, the Bench of Uttarakhand High Court held in no uncertain terms that, “The appellant has taken advantage of her young age and he committed rape upon the victim causing her death. Recoveries were effected from the convict. The act of the convict falls within the category of ‘rarest of rare’ cases. The convict was a married person.” Who can deny or dispute this? No one can!
                                           Needless to say, the Bench relied on the landmark Supreme Court judgment in Nathu Garam Vs State of UP (1979) 3 SCC 366 where the Apex Court rejected the appeal by the counsel for the appellant for lesser punishment as it did not find any extenuating or mitigating circumstances justifying the lesser punishment and strongly upheld the death sentence imposed upon the convict for causing death of a 14-year-old girl after luring her into the house for committing criminal assault. It also cited the Supreme Court case of Laxman Naik Vs State of Orissa (1994) 3 SCC 381 where the Apex Court upheld the death sentence by treating the case falling under the category of ‘Rarest of rare cases’, as it was a case of calculated, cold-blooded and brutal murder of a 7-year-old girl by her own uncle after committing rape on her.
                                          To be sure, while applying the principle of proportionality, the Bench relied on 2008 Supreme Court verdict in Shivaji @ Dadya Shankar Alhat Vs State of Maharashtra (2008) 15 SCC 269 to say that punishment awarded for a crime must nbot be irrelevant, but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ‘respond to the society’s cry for justice against the criminal’.
             Law for death if rape victim is under 15
                                    Before parting with the judgment, the Bench took note of “ever increasing crime against the children in the State of Uttarakhand”. It took notice of the report of National Crime Records Bureau under the caption “Crime Against Children (States & UTs)” for the year 2016, which says 489 cases were registered in the year 2014, 635 cases were registered in the year 2015 and 676 cases were registered in the year 2016. The Bench worryingly remarked that the ratio of cases of rape upon children is disproportionately large vis-à-vis the population of State of Uttarakhand. There can be no denying it!
                                    In essence, the Bench in the concluding part of its landmark judgment remarked that, “The Court is coming across a number of cases where the victims, aged 15 years or below, are being raped and murdered. There should be deterrence. Though, it is for the State Government to bring an appropriate legislation to impose death sentence upon the convicts who are found guilty in cases of rape, however, the Court can always make suggestions/recommendations to the State Government to bring a suitable Legislation to impose a stringent sentence upon the persons who are found guilty in the cases of committing rape on the victims aged 15 years or below. Accordingly, we recommend/suggest to the State Government to enact suitable legislation for awarding death sentence to those found guilty of raping girls aged 15 years or belowwithin three months.”
                                     In conclusion, it can be said that it was this landmark judgment which propelled the Uttarakhand State Government to enact a law providing death penalty for rape of girls aged 15 years or below! There can be no two opinions about the indisputable fact that every State Government must similarly enact a law. It brooks no more delay now!
                                       All said and done, there has to be zero tolerance for heinous crime like rape and that too against minor girls! There can be no attenuating or mitigating circumstance for such heinous crime like rape and those who dare to indulge in it must be always awarded only and only death penalty and nothing else! Here too the punishment must be implemented in the shortest possible time and not after many decades! Only then will a loud and clear message go across to all such rapists that if they dare to rape, no lawyer, no Judge and no Court would come to their rescue and award any sentence other than death!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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