Significant Judgments
CHIEF JUSTICE DR. S. MURALIDHAR
While dealing with a 15-year-old writ petition and a 7-year-old-PIL after receiving a recent report about the death of 5 inmates in Odisha jails, the division bench headed by Chief Justice Dr. S. Muralidhar has been regularly monitoring the various issues concerning the jails in Odisha.
In its order dated 9th March 2021, the court directed all District Magistrates to make surprise visits to jails and submit reports about the condition of the prisons in their respective jurisdictions. It also directed the Government of Odisha to examine the detailed directions issued by the Supreme Court in its judgment in Re: Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700 as well as the subsequent judgment in the same case reported in (2017) 10 SCC 658. Noting that in the case of Premshankar Shukla v. Delhi Administration AIR 1980 SC 1535, the Supreme Court had proscribed the practice of handcuffing of prisoners in jail or while bringing them from the jail to the court, the Court directed the State Government to include the instructions it had issued regarding discontinuance of this practice anywhere in the State. It also directed the Member Secretary, Odisha State Legal Services Authority (OSLSA) to gather information on the number of prisoners in various jails in Odisha, who could not be released, despite being granted bail, on account of their inability to furnish bail bonds. On 27th April 2021, the court directed that no prisoner should be denied vaccination merely for not having identity documents for registration on COWIN portal. The order dated 12th May 2021 concerned the release of prisoners on Personal Recognizance (PR) Bond for those who are unable to furnish bail bonds. As a result of the order, the High-Power Committee passed a resolution for the release of prisoners on PR bond. Thereafter, in its subsequent order dated 16th July 2021, the court placed reliance on Suo Motu v. State of Madhya Pradesh in W.P. (C) No.9320 of 2021 and directed the State Government, inter alia, to place the suggestions of the Amicus Curiae before the High-power committee regarding female as well as male prisoners above the age of 60 years.
In its hearing On 18th December 2021, the court systematically traced overcrowding jail-wise, followed up with the officials, and requested them to appear with specific information in real-time. Civil society organisations and researchers also brought in their insights. By its order dated 23rd December 2021, the court issued a slew of directions including inspection of jails, probation of convicts, the release of prisoners, wages payable to prisoners, payment of compensation on death of prisoners, medical and mental healthcare, adding to jail capacity, and children in jails. As per the Nelson Mandela Rules, a complaint box which could be opened only by the Member Secretary, District Legal Services Authority(DLSA), or an authorised person of the DLSA was also directed to be established in every jail.
The High Court also requested the State Government’s High-Power Committee to consider whether the return of prisoners after the pandemic could be deferred, considering the overcrowding in many jails in Odisha, till concrete measures to decongest the facilities were undertaken.
1 High Court of Orissa, e-Courts website accessed from https://services.eCourts.gov.in/eCourtindiaHC/index_highCourt.php?state_cd=11&dist_cd=1&stateNm=Odisha.
2 The ILR Cuttack series is published by the High Court every month and has a subscriber base of 1300.Presently, Shri Vikram Nayak, Advocate is the law reporter.
A Public Interest Litigation(PIL) was filed seeking directions to the State Authorities for the effective implementation of the National Leprosy Eradication Programme (NELP) and post-management treatment and eradication of leprosy from the State.
The counsel for the Petitioner had contended that there was callous neglect by the State authorities towards the medical and health care needs of leprosy patients and despite the State making provisions in the annual budget for payment of monthly salary for Leprosy Trained Paramedical Workers, the same was not being utilized. On the other hand, there was an implicit admission from the Opposite parties that despite interventions through the NELP, and integrating it with the general health system, the cases of leprosy had not gone down.
In its order dated 14th July 2021, the Court noted that the Supreme Court had deliberated over the issue of leprosy eradication in the cases of Dhirendra Pandua v. State of Orissa, (2008) 17 SCC 311, and laid down extensive directions in Pankaj Sinha v. Union of India, (2014) 16 SCC 390, to better deal with the issue of leprosy by spreading awareness on the same in addition to ensuring an adequate supply of drugs and access to health care to leprosy patients. However, it was observed that the situation as encountered by the Supreme Court had not undergone much change and that the directions issued in Pankaj Sinha were not complied with.
Hence, the Bench directed the Director, Health Services, Odisha to submit the up to date statistics regarding the prevalence of leprosy of both varieties, the status of compliance with directions in Pankaj Sinha, the availability of treatment in urban and rural locations, and the status of filling up of vacant posts of medical officers and staff. The Court also appointed a committee of three advocates to ascertain the actual condition of the leprosy colonies by visiting the colonies and also interacting with independent health professionals for their inputs. They were also directed to submit a joint report by the next date.
On 15th August 2021, a joint report was filed by the District Collector highlighting the steps taken on the concerns raised. As per the report, pursuant to the High Court order, toilets were repaired including sewerage pipelines and residential areas. It was also stated that six toilets would be functional by 16th August 2021 and four new toilets would be completed by the end of August. Additionally, the report also stated that all old beds were replaced with new ones in the Leprosy Home and that steps had been taken regarding the distribution of footwear to the inmates in conformity with the last order of the High Court. Moreover, the Court was apprised that Joint Director, Leprosy, Odisha, and the World Health Organization Consultant visited the Leprosy Colony on 12th August 2021 and held a training or awareness meeting with the Leprosy Workers, Paramedical Workers, local administration, and the staff.
In this case, six Writ Petitions were filed challenging the constitutional validity of the notification dated 2nd August, 2019 issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India which stipulated that the State of Odisha was to abolish the Odisha Administrative Tribunals (OAT). In addition to the petitions filed to challenge the notification, other applications were filed for transfer of cases pending before the OAT.
The Court considered Article 323-A (1) of the Constitution and opined that the word ‘may’ in the Article could not be said to make it mandatory to establish SAT (State Administrative Tribunal). Thus, it could not be said that Article 323A (1) was intended to make it mandatory for either the Central Government or the State Government to establish an SAT irrespective of the actual need for such a tribunal and for it to be effective in achieving the object of securing fair and speedy justice. It noted that the same was also considered by the Supreme Court in L. Chandra Kumar v. Union of India AIR 1997 SC 1125. Thereafter, the Court also considered the MPAT Abolition Case, TNAT Abolition Case, and Hamdard Dawakhana (Wakf) Lal v. Union of India, 1960 (2) SCR 671, and held that there was no prohibition against the abolition of SAT. The Court also addressed the contention based on A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531, that power to enlarge jurisdiction was legislative in character, holding that the matter was simply of a revival of a jurisdiction that had always existed. Lastly, by placing reliance on the judgment of Dattatreya Moreshwar Pangarkar v. State of Bombay, 1952 SCR 612, R. Chitralekha v. State of Mysore 1964 (6) SCR 368, the Court opined that provisions of Article 77 (1) (correspondingly in Article 166) were only directory in nature, and the impugned notifications were not vitiated due to failure to mention that it had been issued on behalf of President of India.
Thus, the Court was of the view that no ground had been made out for the Court to interfere with the impugned notification. Thus, all writ petitions were dismissed, and the pending cases before the OAT were to be transferred to Orissa High Court.
In this case, a batch of writ petitions challenged the policy decision of the Government of Odisha to part with the exclusive privileges of retail sale through IMFL Off Shops by charging a fixed license fee and selecting the applicants through a lottery/ draw of lots. The amendment introduced to Rule 34 (1) of the Orissa Excise Rules (‘OE Rules’) by the Odisha Excise (Amendment) Rules to replace the words “or otherwise” with the words “lottery or e-lottery” with effect from 7th January 2021 was also under challenge. A consequential notification issued by the Excise Department, laying down the criteria and guidelines for organizing the lottery for grant of exclusive privilege in the trade of intoxicating liquors through IMFL OFF Shops, and invitation by the Collectors and District Magistrates, was also being challenged.
The petitioners argued, inter alia, that there was no provision in the Orissa Excise Act, 2008 or OE Rules for introducing lottery as one of the modes of settlements of exclusive privilege, the collection fees and duty. Citing Ajit Kumar Routray v. State of Odisha (decision dated 24th July, 2013 in W.P.(C) No.8084 of 2013), the petitioners stated that in matters of the grant of the exclusive privilege for trading in IMFL, augmentations or revenue maximization of the State “should be the only consideration.” The Opposite party stated that the word ‘fee’ means “price or consideration.” and the grant of license for the sale of IMFL would essentially be a matter of policy. It was further contended by placing reliance on State of M.P. v. Nandalal Jaiswal (1986) 4 SCC 566 that the Court should not strike down a policy unless it is arbitrary, irrational, or mala fide.
A division Bench of Chief Justice Dr. S Muralidhar and Justice B.P. Routray stated that the ideal method of determining the fee to be paid is best left to the government and “it is not possible to accept the contention of the petitioners that auction is the only and the best method for parting with the exclusive privilege for sale of liquor.” The Court after considering the earlier decision in Sarat Kumar Sahoo v. Collector, Cuttack (1992) 73 CLT 834 held that the expression ‘local area’ refers to a larger area and ‘locality’ refers to a smaller area. Having examined some of the sample notices, the Court was not satisfied that there had been a violation of procedure in indicating the locality of the shop. It was stated that the residents of these localities who may be affected could ventilate their grievances in appropriate proceedings. Thus, it was held that the policy shift to a lottery mode could not be invalidated. Accordingly, the writ petitions were dismissed.
