Bar Service for Pension and 2021(6) KLT 746 (SC)

(By P. R.Vijayakumar, Advocate, Thrissur)

Hon’ble Supreme Court as per the decision Sadasivan Nair v. Cochin University of Science and Technology (2021(6) KLT 746 (SC) set aside the judgment of the Division Bench of Kerala High Court as well as that of the learned Single Judge of the High Court dated 29th August 2019 (2019 (3) KLT OnLine 3095 - Sadasivan Nair v. Cochin University of Science and Technology) and 3rd April, 2006 respectively and allowed the appeal.

By the judgment the Apex Court found no valid ground to sustain the application of the proviso in relation to the appellant, Dr.Sadasivan Nair, a retired faculty of law of Cusat thereby denying the benefit of Rule 25(a) of Part III,Kerala Service Rules, when the same was not applied in the case of Dr.P.Leela Krishnan (also a facaulty of law of Cusat retired earlier), thereby allowing the benefit of Rule 25(a) by the university to him. Rule 25(a) by an amendment is as follows:

“25(a).Persons recruited from the Bar after the age of 25 years to appointments in Government service may add to their service qualifying for superannuation pension (but not for any other kind of pension) the actual period (not exceeding ten years) by which their age at the time of recruitment exceeded 25 years provided that no employee can claim the benefit of this rule unless his actual qualifying service at the time he becomes eligible for superannuation pension is not less than eight years. This concession is also subject to the condition that the period that may be so added shall not at any time exceed the actual period of the employees practice at the Bar. No application will be entertained for pension on the ground that the appointee did not get an opportunity for service for the qualifying period:

Provided that the benefit under this sub-rule shall be available only to employees who are recruited when practicing at the Bar to posts requiring law qualification and experience at the Bar”.

In the Civil Appeal before the Apex Court the CUSAT (the respondent) putforth the argument that Dr.Sadasivan Nair (the appellant) cannot claim his bar service as qualifying service for pension relying on an earlier illegal order of the CUSAT. Such a claim based on negative equality in favour of the appellant is untenable, it is further contented. The earlier illegal order of the respondent university is nothing but consideration of Bar service of an earlier faculty of law (Dr.Leela Krishnan) and when retired allowed pension to Dr.Leela Krishnan treating his earlier Bar service as qualifying service for pension. But the KSR (Part III) Rule 25(a) stands, as quoted above since 12.02.1985. Dr.Leela Krishnan retired on 30.04.1996.

By earlier judgments the Apex Court reiterated that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. ln this juncture it has to be specified thus that the law laid down by the Apex Court in Chandigarh Administration and Anr. v. Jagjit Singh & Anr. (1995 (1) KLT OnLine 904 (SC) = AIR 1995 SC 705) is to the effect that a mistake is always a mistake, which cannot be perpetuated by giving a positive direction, and an illegal order cannot be repeated again and again by exercising the discretionary power of the Court.  (emphasis supplied)

Thus the University specifically repeated and admitted that the reckoning of bar service of Dr.Leela Krishnan as qualifying service for pension is an illegal order and therefore that illegal order and such other orders of the university cannot be relied or based to reckon the appellant’s bar service as qualifying service for pension under K.S.R. In this juncture it is pertinent to note that the Hon’ble High Court of Kerala has a reasoned occasion to consider this issue in O.P. (KAT) No.294 of 2017 (Vijayakumar v. State of Kerala, relied the decision of Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995 (1) KLT OnLine 904 (SC) = AIR 1995 SC 705) and dismissed the OP by not admitting the claim of the petitioner to reckon his bar service as qualifying service for pension. The petitioner was a Deputy Commissioner retired from Commercial Taxes Department, Govt. of Kerala.

The Hon’ble Apex Court in Sadasivan Nair’s case judges: “While we accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25(a). The law, as recognized by this Court in Deoki Nandan Prasad and Syed Yousuddin Ahmed (supra) unequivocally states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the law does not allow the employer to apply the rules differently in relation to persons who are similarly situated”.

Thus the view of the Apex Court byDr.Sadasivan Nair’s judgment that if the respondent University sought to deny the benefit of Rule 25(a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly. The proviso is in force from 12 February, 1985. However, the action of the respondent University of selectively applying the proviso to Rule 25(a) in relation to the appellant, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal, the Apex Court now held. Such discrimination, which is not based on any reasonable classification, is violative of all canons of equality which are enshrined in the Constitution of lndia, the Hon’ble Apex Court as perDr.Sadasivan Nair’s judgment held.Hence, in the instant case (of Dr.Sadasivan Nair), the denial of the benefit under Rule 25(a), KSR, to the appellant is arbitrary and not in accordance with law. The Hon’ble Court further held that consequently, the appellant is entitled to receive pension having regard to his total qualifying service, inclusive of the period of his service at CUSAT and the period of his practice as an Advocate in various Courts of Kerala.

Thus there emerges a conflict as whether an order of Government Authority or University in Kerala governed by KSR be liable to follow thereon the earlier order reckoning bar service as qualifying service for pension since 12.02.1985 while this authority itself recognizes as their earlier order reckoning bar service as qualifying service for pension is an illegal order(ie., against the provision under K.S.R.).AIso, whether an admitted illegal order of Government, authority or University in Kerala governed by K.S.R. is liable to be repeated based on the pronouncement that the law does not allow the employer to apply the rules differently in relation to persons who are similarly situated.

The Apex Court is seen relied their earlier judgments of Deoki Nandan Prasad v. State of Bihar (1971 KLT OnLine 1025 (SC) = AIR 1971 SC 1409) and Government of  Andhra Pradesh & Ors.v. Syed Yousuddin Ahmed (1997 (2) KLT OnLine 1122 (SC) = (1997) 7 SCC 241) by which it is held that the emoluments forming a part of the pension payable to an employee shall be determined on the basis of the rule existing on the date of retirement. Dr.Leela Krishnan retired on 30.04.1996 and Dr.Sadasivan Nair retired on 30.04.2007.The proviso under Rule 25(a) is with effect from 12.02.1985.Thus both of them retired after 12.02.1985.

May be the University (CUSAT), the Apex Court found in the instant case of Dr.Sadasivan Nair, no argument has been advanced on behalf of the respondents as to the manner in which the case of the appellant is different from that of Dr.P.Leela Krishnan and on what basis the benefit of Rule 25(a) was granted to Dr.P.Leela Krishnan but was withheld in relation to the appellant. From the judgment of Dr. Sadasivan Nair’s case it is clear that the main reasoning of the Apex Court led to decide in favour of the appellant is nothing but “the law does not allow the employer to apply the rules differently in relation to persons who are similarly situated”. That is the university as specified by the Apex Court in this judgment that “However, the action of the respondent University of selectively applying the provision to Rule 25(a) in relation to the appellant, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal”.

Thus the questions remain as whether 1995 (1) KLT OnLine 904 (SC) = AIR 1995 SC 705 (i.e., Chandigarh Administration’s case), or 2021 (6) KLT 746 (SC) i.e.,Sadasivan Nair’s case, is a reliable one while considering the Bar service as qualifying service for pension under Rule 25(a),Part III of K.S.R. in future is a moot question. Both the judgments are of the Benches with 2 Hon’ble Judges. And whether correction of mistaken application of service rules in future by a department or university (as done by CUSAT, the respondent) while allowing pension in Kerala be amounts to discrimination and violative of all cannons of equality enshrined in Constitution of India?

A kind clarification is needed.

Future Prospects, Grammarly and Redundancy

(By Jacob Abraham, Advocate, High Court of Kerala)

Future prospects is a head under which compensation is awarded, Grammarly is the name of the software and the word redundancy means ‘the state of being not or no longer needed or useful’. At the first glance, one may think that they are unconnected words. When putting them in the right context, the strangeness of the caption of the article disappears.

English judgements still influence us, especially in the field of the law of torts. Dissimilarities in both the countries on several aspects were unfortunately ignored. One such aspect is the rate of inflation in both countries. Here it is very high and there it is negligible. This has resulted in compensation awarded in fatal and personal injury cases sometimes render illusory or rendering the amount of compensation awarded inadequate after a couple of years. To remedy this situation the honourable Apex Court invented a new head called “future prospects” and started adding compensation under this head. Earlier also compensation was awarded under the head with the same name but the situation covered was likely loss of promotions in the job in future, inability to pursue higher education, etc.

 Now, the head, future prospects is widely accepted as an aspect to be taken into consideration while assessing the compensation. This expression is widely used and a search in any of the legal software will throw up several thousands of judgements of the apex court or of various high courts, wherein this expression is used.

It was in this background, in a memorandum of an appeal I included this ground. Thereafter I sent the draft of it to the server of Grammarly. Grammarly is owned by the Microsoft Corporation. It has two versions. Free and paid, and the paid version is prohibitively priced. For obvious reasons, the version I use is the free one. This software will point out various grammatical and or spelling errors, extra space or lack of space between the words, redundant expressions, etc., and also makes better suggestions. When it reached the expression ‘future prospects’ the software pointed out that there is redundancy in this expression. It was a big surprise. Redundancy in an expression freely used by the highly educated class of India! First I thought that the software is under a mistake. There are such instances also. When the word ‘state’ is typed in the attestation portion, this software would suggest writing the article ‘the’ before the word state. So I thought that the redundancy, in this case, belonged to that category.

Anyway, I decided to go deeper into it. The result was quick and more surprising. The word prospects itself means the possibility or likely hood of some future event occurring. So the word future is not needed or useful before the word prospects.

Tailpiece

To put it light-heartedly, I feel that, though Grammarly is correct, there is no “future prospect” of use of this expression being avoided by the courts or lawyers. It is likely to remain in the vocabulary of the courts, along with the names of different kinds of consorts. Until recently there was only one type of consort though the number may be more in certain cases. Anyway, a welcoming feature is that these heads enhance the amount of compensation that is awarded.

Long Working Hours

reduceLife Expectancy

‘Monday Blues’ of Four day Week will Inevitably Cause More Harm than Good

Monday blues [laziness and lethargy felt by those who work on Monday after enjoying 'work-free' weekend(s)] are the serious warning signs that everything is not fine after free weekends. According to a survey conducted in European countries, the cases of heart strokes occur more on Mondays than on any other days because employees feel unduly stressed with the feeling of going to offices and workplaces after a two-day vacation on Saturdays and Sundays. One can imagine the disaster which may entail after three days of leisure at a stretch in a four-day week. 

Right from the day, it has been proposed to go for a four-day week by increasing the working hours to 12 hours a day, a large section of the society has gone gaga over it. There seems to be no end to the euphoria among these people, but they forget that the work can never become more important than the worker. A worker is much more than a means of production. While moderate work develops a person, excessive hours of work grind a person down, dull the mind, wear out the body and harm the person’s social and spiritual development. Long working hours also lead to reduced life expectancy due to many reasons associated with it. Section 25 of the Occupational Safety, Health and Working Conditions Code, 2020 also stipulates that no worker shall be required to work for more than eight hours a day. It also says that the period of work in each day shall be so fixed so as not to exceed such hours, with such intervals and spread overs as may be notified by the appropriate Government.

It further clarifies in Rule-28(1) that no worker shall be required or allowed to work in an establishment for more than forty-eight hours in any week. It goes on to provide that the period of work of a worker must be arranged in a manner such that spread over is not more than twelve hours inclusive of the intervals for rest. Finally, it stipulates that no worker shall work for more than five hours before he has had an interval of rest for at least half an hour.

Hard work, individualized attention, and ready availability should characterize the service of personnel but equally desirable is an appropriate balance between work, availability, and leisure. The stress and tension that seem increasingly to accompany institutional activity today make it more than ordinarily important that an administrator pay serious attention to the question of working hours and leave provisions of employees.

While moderate work develops a person, excessive work can prejudice the quality of a person’s life. A young and eager worker continually availing himself of overtime and holiday work, encashing rather than taking his earned leave, can quickly injure his whole physical, mental, and emotional tone.

Hours of work

The Supreme Court in Associated Cement Staff Union Vs. The Associated Cement Co. Ltd., Bombay, AIR 1964 SC 914, has stated that the hours of work must be fixed in consideration of many factors including:(i)   The question of fatigue on the health of the workmen,(ii)    effect on their efficiency,(iii)   physical discomfort that may result from long and continuous strain,(iv)    need of leisure in the workmen’s lives,(v) hours of work prevailing for similar activities in the same region and also in similar concerns, and(vi)  other relevant factors.

Disadvantages of Increased Working Hours

When a comparison is made between the advantages and disadvantages of the increased hours of work, there is no doubt that the latter outweighs the former one. Let it be considered one by one. 

Less time for sleep

Sleep is essential to function properly. Studies show that deep sleep can rewire the brain to be less stressed and anxious. When you work for long hours, it’s likely that it will squeeze your sleep time a bit. Even after going to bed, you might face difficulty falling asleep. The result? You’re crankier and more tired than usual the next morning.

One may turn alcoholic

According to a survey, those who work 49-54 hours a week are more likely to consume excessive amounts of alcohol - excessive is defined as more than 14 units of alcohol a week for women and 21 for men. As we all know, this puts us at risk of liver-related issues and type 2 diabetes.

Back and shoulders might ache

Sitting for long hours, that too without regular breaks, might make your boss happy but not to your back. In today’s time, it is one of the most common issues faced by employees. The longer you sit in your office chair, the greater the risk of back pain. Researchers say women tend to develop pain in the neck first whereas men usually experience lower back pain.

The heart might be at risk

A study published in The Lancet says employees who work long hours have a higher risk of stroke than those working standard hours. It is speculated by researchers that working for 61 to 70 hours a week leads to a 42% increased risk for coronary artery disease. Moreover, if you stretch it to 71 to 80 hours, the risk increases by 63%.

Stress might dominate life

Who doesn’t know what stress can do? It’s bad enough by itself but it is also a common culprit for several diseases, the big ones being diabetes, depression, strokes, high blood pressure and even cancer.

Productivity might decrease over time

Do smart work, not hard work. If one works long hours without visible results, one might feel burdened, and productivity might even decrease with time. A paper published by Stanford University showed that people who work for 70 hours a week don’t turn out to be more productive than colleagues who work 56 hours a week.

Relationships might suffer

If you spend most of your day at the workplace, family and friends could feel deprived of your presence, love, and affection. And often work-related frustration can come out on loved ones, making relationships strained.

Also, the impact of the Occupational Safety, Health and Working Conditions Code (OSHWC) Rules is not to increase working hours but to allow greater flexibility in spread over. Consider the following example, a security guard is employed for two periods- between 8 AM to 12 AM and 4 PM to 8 PM. Between these periods he is free to return home or occupy a rest area on the premises. The number of hours worked in the above scenario would be eight hours as he is working for two four-hour periods. Whereas the spread over would be twelve hours as it includes the four hours, he spends off duty. But this is possible when there is not much distance between the dwelling and place of work.

This may appear to benefit a large number of workers ranging from those engaged in call centres to female workers who have delivered a child, as it will give them sufficient time to rest at work. Thus, from the above, it is clear that the move that is being criticized for being restrictive and repugnant to workers’ interests is creating greater flexibility and is providing workers with sufficient rest between their work periods.

There are only a very few countries in the world where there are long working hours, but it cannot be forgotten that most of these countries belong to cold climates, where the physical health of workers is much stronger than their Indian counterparts, with the exception of China, where the workers are condemned to live sub-human life.

ILO and Working Hours

Working hours have been a key facet of the ILO’s work since its inception and were a part of key labour rights movements. The Hours of Work (Industry) Convention, 1919 is the first international convention on labour and has been followed with numerous instruments that solidify the importance of regulating work time and the dangers of excessive working hours. These include the Hours of Work (Commerce and Offices) Convention, 1930, the Forty-Hour Week Convention, 1935 and the Weekly Rest Conventions of 1921 and 1935, respectively.

India is one of the original members of the ILO and has ratified the Hours of Work (Industry) Convention of 1919. Therefore, the eight-hour workday with a twelve-hour spread over is in keeping with India’s international obligations.

Much, if not most, of an employee's life (and that of his family) revolves around and is structured by his hours of work.  Eight or nine hours, generally speaking, is the ideal number of hours of work that can be required of an employee daily, and that the weekly total should not exceed 48 hours.  Whereas 48 hours is the common work week for industrial workers.

Much Obliged

(By Jacob Abraham, Advocate, High Court of Kerala)

“Much obliged” is an expression that reverberates in the court halls these days. Just like the national anthem is sung at the end of the official functions, this expression is uttered immediately after a judgement is pronounced. With one obvious difference. Except in the case of adjournment of a case, it is said mostly by one side. At the rate it is said now, in future it is likely to be said even during the arguments and more number times than the expressions ‘ as your lordship is aware of, ‘as your lordship rightly pointed out, etc. The other day a Delhi lawyer was heard saying “deeply obliged”. No wonder persons from seat of power like capitals are experts in finding new versions of such expressions. Lawyers from Trivandrum, please excuse. No offence meant.

From the lockdown induced reverie, I suddenly came out with a sudden memory of witnessing a heated discussion. It took place in the early nineteen eighties and the venue was the Wilkinson Law Library. Kozhikode Bar Association hall is known by this name. Inside this hall, there is a hallowed place by the name ‘Center Room’.  It was then the abode of titans like T.K.Lakshmana Iyer, C.Achutha Menon, S. Krishna Iyer, T.P. Aravindaksha Menon, Raja Raja Varma, Varkey Paikada, James Chacko, T.V.Sidharthan, etc. Even lawyers with twenty, twenty-five years of standing feared to tread the room. Juniors like me could enter it, only to take the case files kept on the window sills of the room. When the discussion turned attractive we remained there as if going through the case files.

In this room, every subject under the sun was discussed threadbare. Nothing was an anathema. The particular subject on that day was a rare one. An outstation lawyer, when he got an ad-interim order uttered this expression ‘much obliged’. The discussion centred around whether it was proper to say this expression when you are getting an order from a court. All  orders of the courts  are presumed to be issued on merit. After some time, everyone came to the view that it was improper to say ‘much obliged’. The reason was that, it was an acknowledgement of the receipt of kindness or courtesy and is obligated to return the favour and the court orders do not share any of these characteristics. To which, Sri. James Chacko humorously added that it might be an undeserving order. As times go by, the habits and practices change. Even meanings of words and expressions change. During the time of Shakespeare if someone says she is his ‘friend’, it carried a negative connotation.

Judiciary on Schizophrenia

(By Sasisekhar Menon, Librarian, High Court of Kerala)

(1) Eera v. State (NCT of Delhi) - (2017 (3) KLT 560 (SC) : (2017) 15 SCC 133).

 Disabled and Differently abled Persons-Mental retardation/Mentally ill

 There is distinction between mental retardation and mentally ill person. Mental retardation or developmental delay is gauged on the parameters like Intelligence Quotient (IQ) and mental abilities (MA) which mostly relate to academic abilities. The Court has always kept itself alive to fact that Parliament has always kept the mentally retarded person and mentally ill person in two different compartments. Legislature in Section 164(5-A)(b),
Cr.P.C. has already safeguarded the interests of mentally disabled person.

(2) Z v. State of Bihar (2017 (3) KLT OnLine 2079 (SC) : (2018) 11 SCC 572 : AIR 2017 SC 3908).

Article 21-“Life”-Meaning and scope : Broadly construed.

Articles 21,14, 32 and 226 -- Woman’s right to reproductive choice and abortion-Statutory basis and international obligation discussed-Violation of said right due to fault of State authorities would attract compensation under public law-Court clarified that said Compensation would be in addition to remedies for Compensation under Criminal law or Private law of tort. Quantum of Compensation would depend upon facts.

(3) State of Himachal Pradesh v. Gian Chand (2001 (2) KLT SN 76 (C.No. 95) SC : (2001) 6 SCC 71 : AIR 2001 SC 2075).

Schizophrenia is one of a group of severe emotional disorders, usually of psychotic proportions, characterized by misinterpretation and retreat from reality, delusions, hallucina-tions, ambivalence, inappropriate effect, and withdrawn, bizarre, regressive behaviour; popularly and erroneously called split-personality.

(4)Veer Pal Singh v. Secretary, Ministry of Defence (2013 (3) KLT Suppl.31 (SC) : (2013) 8 SCC 83: AIR 2013 SC 2827).

Description in standard and medical dictionaries and medical literature, considered-Positive and Negative symptoms of Schizophrenia discussed- Perhaps the only judgment which touches the entire length and breadth of the term “schizophrenia”.

 In Merriam Webster Dictionary “Schizophrenia” has been described as a psychotic disorder characterized by loss of contact with the environment, by noticeable deterioration in the level of functioning in everyday life, and by disintegration of personality expressed as disorders of feeling, thought (as in delusions),perception (as in hallucinations),and behaviour -- called also as dementia praecox; schizophrenia is a chronic, severe and disabling
braindisorder that has affected people throughout history.

 The National Institute of Mental Health, USA has described “schizophrenia” as follows:

“Schizophrenia is a chronic, severe and disabling brain disorder that has affected people throughout history. People with the disorder may hear voices other people don’t hear. They may believe other people are reading their minds, controlling their thoughts, or plotting to harm them. This can terrify people with the illness and make them withdrawn or extremely agitated. People with Schizophrenia may not make sense when they talk. They may sit for hours without moving or talking. Sometimes people with Schizophrenia seem perfectly fine until they talk about what they are really thinking. Families and society are affected by Schizophrenia too. Many people with Schizophrenia have difficulty holding a job or caring for themselves, so they rely on others for help. Treatment helps relieve many symptoms of Schizophrenia, but most people who have the disorder cope with symptoms throughout their lives. However, many people with Schizophrenia can lead rewarding and meaningful lives in their communities”.

POSITIVE  AND  NEGATIVE  SYMPTOMS :

Positive symptoms are psychotic behaviour not seen in healthy people. People with positive symptoms often “lose touch” with reality. These symptoms can come and go. Sometimes they are severe and at other times hardly noticeable, depending on whether the individual is receiving treatment. They include “Hallucinations”, “Delusions”, “Thought disorders”, “Movement disorders”.

Negative symptoms are associated with disruptions to normal emotions and behaviours. These symptoms are harder to recognize as part of the disorder and can be mistaken for depression or other conditions. These symptoms include “Flat effect”, “Lack of pleasure in everyday life”, “Lack of ability to begin and sustain planned activities”, “Speaking little, even when forced to interact”.

In Modi’s Medical Jurisprudence and Toxicology (24^th edition,2011) the following varieties of Schizophrenia have been noticed:

(1) Simple Schizophrenia, (2) Hebephrenia, (3) Katatonia, (4) Paranoid Schizophrenia, paranoia and paraphrenia, (5) Schizo-affective psychosis,(6) Pseudo-neurotic Schizophrenia.

Section 45, Evidence Act,1872- Value to be accorded by Court to Expert opinion. Need for Court to satisfy itself as to validity/plausibility/compatibility of expert opinion by studying available standard dictionaries, encyclopaedias etc.

(5)Santokh Singh v. State of Punjab (2010 (4) KLT Suppl. 19 (SC) : (2010) 8 SCC 784: AIR 2010 SC 3274)

Proof of chronic Schizophrenia -- Facts being (1) admission register of hospital not giving particulars of patient, disease or treatment,(2) Doctor admitting overlapping of entries in register, and (3) absence of expert clinical explanation of deceased.

(6) Mariappan v. State of Tamil Nadu (2013 (2) KLT SN 77 (C.No.93) SC: (2013) 12 SCC 270: 2013 Crl L.J. 2334).

Trial Judge convicted Appellant under Sections 449 and 302, IPC. High Court confirmed conviction and Sentence. Appellant-accused contended that at the time of incident, he was suffering from “paranoid Schizophrenia” and, hence, entitled to benefit of exception under Section 84, IPC. Held, there is no evidence as to unsoundness of mind of Appellant at the time of occurrence. Accused failed to discharge the burden as stated in Section 105, Evidence Act. The trial Judge, after noticing his answers in respect of the questions under Section 313,Cr.P.C., had concluded that the accused could not be termed as an “insane” person.

7) Shrikant Anandrao Bhosale v. State of Maharashtra(2002 (3) KLT OnLine 1034 (SC) : (2002) 7 SCC 748 : AIR 2002 SC 3399).

Disease of paranoid schizophrenia can recur. The cause of Schizophrenia is still not known but heredity plays a part. Suspiciousness is the characteristic symptom of the early stage. Since so many people, he feels, are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his memory and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others.

Eera v. State (NCT of Delhi) (2017 (3) KLT 560 (SC) : (2017) 15 SCC 133:

(Crimes against Women and Children-POCSO Act, 2012).

Provisions under IPC are on different basis and foundation. Legislature thought it wise to define the term “age” which not only mentions “child” but also adds words “below age of 18 years”. Parliament has felt it appropriate that definition of term “age” by chronological or biological age to be safest yardstick than referring to person having mental retardation which may be due to fact that standards of mental retardation are different which require determination by expert body and degrees are also different. Parliament has not included “mental age” which was within legislative domain. In such situation, to include perception of mental competence of victim or mental retardation as factor would tantamount to causing violence to legislation which is impermissible. Modern trend while interpreting statute is to examine text as well as context and object or purpose as well as literal meaning.

“X” v. State of Maharashtra(2019 (2) KLT 527 (SC) : (2019) 7 SCC 1 : AIR 2019 SC 3031).

Principles for Sentencing- Sentencing is a socio-legal process in which discretion of Court, as provided by statute, plays major role. In India, sentencing is mostly led by “guideline judgments” in death penalty context. Article 21 of the Constitution mentions “Procedure established by law”. The principle is fortified not only by the statute under Section 235(2), Cr.P.C., but also by judicial interpretation. Any increase or decrease in the quantum of punishment than the usual levels need to be reasoned by the Trial Court. In the context of mentally ill prisoners, Section 20(1) of the Mental Healthcare Act,2017 explicitly provides that “every person with mental illness shall have a right to live with dignity”.

 In recognition of civilised standards, India is a signatory to the Convention on Rights of Persons with Disabilities which endorses “prohibition of cruel, inhuman or degrading punishments” with respect to disabled persons. Additionally, there is a strong international consensus against the execution of individuals with mental illness.

(10) Vinita Saxena v. Pankaj Pandit (2006 (2) KLT 150 (SC) : (2006) 3 SCC 778).

Hindu Law-

Hindu Marriage Act, 1955- Section 13(1)(iii)

 “Mental disorder” as ground of Divorce- Paranoid Schizophrenia, its serious nature, causes, psychotic symptoms and treatment, it must be held that the Appellant had proved beyond doubt that the Respondent suffered from mental disorder. It has been established beyond doubt by the medical doctors who had deposed as witnesses and brought the Original medical record of the Respondent that the Respondent is suffering from mental disorder.

 (11) Kollam Chandrasekhar v. Kollam Padma Latha (2013 (4) KLT SN 38 (C.No.33) SC :(2014) 1 SCC 225 : 2013 SCC OnLine SC 858).

Hindu Marriage Act- Section 13(1)(iii) Expln. And Section 9.

 Divorce on grounds of “unsoundness of mind” and “mental disorder” including Schizophrenia, when may not be granted. Mere existence of mental disorder insufficient to justify dissolution of marriage. There should be existence of serious mental disorder. Further held, one spouse cannot simply abandon the other spouse because the latter is suffering from sickness.

 Impugned judgment not granting decree of divorce and allowing petition for restitution of conjugal rights, upheld- Special Marriage Act,1954-Section 27(1)(e).

 Marriage is to weather storms and embrace sunshine, both with equanimity.

(12) Laxmanram Poonia v. Union of India (2017 (1) KLT OnLine 2036 (SC) = (2017) 4 SCC 697 : AIR 2017 SC1179).

Armed Forces-entitlement to Disability Pension: Absence of disabilities or disease noted or recorded at time of entry into Service of armed forces. Presumption of sound physical and mental condition on basis thereof. In event of subsequent discharge on medical grounds, deterioration in health presumed to be due to military service.

 It is the duty of Medical Board while recording opinion to the contrary to give reasoned determination necessarily.

(13) Narsingh Yadav v. Union of India (2019 (4) KLT OnLine 3287 (SC) = 2019) 9 SCC 667: 2019 SCC OnLine SC 1285).

Armed Forces-Disability Pension : Illness noted while in Service. Applicability of R.14(d) (as amended of 1952 Rules) in terms of which disability pension is to be granted only in case where cause of such disease or disability is attributable to conditions of Military Service.

 The scope for Judicial Review of the Opinion of Medical Board, held limited. Held, though opinion of Medical Board is subject to Judicial Review, Courts do not possess expertise to dispute such Report unless there is strong medical evidence warranting it.

(14) In Re : Death of 25 Chained Inmates in Asylum Fire in Tamil Nadu v. Union of India & Ors. (2017 (2) KLT SN 85 (C.No.116) SC : W.P.(C) No.334 of 2001 of the Supreme Court
of India).

This PIL was a consequence of the death of more than 25 Chained inmates in an Asylum Fire on the 6th August, 2001 at Ervadi in Ramanathapuram District. This Writ Petitionwas disposed only on the 21st August, 2017.

During the course of proceedings in this matter, the Union of India enacted an express legislation on the Subject under consideration. Parliament enacted the Mental Healthcare Act, 2017; more or less fulfilling the prayers in the case.

--------------------------------------------------------------------------------------------

NOTE: The story of Shri.Amrit Kumar Bhakhshy, Former President, Schizophrenia Awareness Association, who helped draft the Mental Healthcare Act,2017 :

In 1991,when his only daughter, Smt.Richa was diagnosed as Schizophrenic, Mr.Bhakhshy had not even heard of the term “Schizophrenia”. Richa was then at a boarding School in Dehradun. For the last 30 years, Mr.Bhakhshy, now 79, has been looking after his daughter’s needs. His wife passed away a year ago; leaving him struggling in his old age. There are a very few lucky ones who permanently recover from mental illnesses. Otherwise there is a constant shift between remission and relapse, and it is hard to pinpoint how the latter happened”, says Mr.Bhakhshy.

 In 2007, his family relocated to Pune. In 2010, eventually he became the President of the Schizophrenia Awareness Association, and served for 5 years on the Institutional Board of NIMHANS. Schzophrenia Awareness Association is one of India’s top centres for the rehabilitation of the mentally ill. The Institute started a centre for patients to socialize and mingle during the day, while their Caregivers had to carry out their jobs or other work. Richa was the first patient. Now there are 40 to 50.Mr.Bhakhshy retired in 2019.

 In 2010, the Government of India decided to change the Mental Health Act, 1987 and the Indian Law Society, Pune was responsible for drafting changes and Mr.Bhakhshy as President of SAA was involved.

 In 2016, Mr.Bhakhshy authored the book, “Mental Illness and Caregiving” which was a best-seller throughout India. This is now considered as the Bible to Caregivers of patients with Schizophrenia. It has 4 Parts and contains more than 200 pages detailing every aspect in full.