Kerala HC: BNSS Gives Wider Protection To Accused Of Unsound Mind Or Intellectual Disability, Will Apply Retrospectively

 Following the principles enunciated above, all applications filed and steps taken in a pending proceeding prior to 1.7.2024 shall be under the provisions of the Code of Criminal Procedure, 1973. As I discussed above, Chapter XXVII of the Sanhita has given wider protection to a person of unsound mind or a person suffering from intellectual disability. Where two persons suffering from a mental disability or intellectual disability are dealt with differently, one under the Code, and the other under the Sanhita, it amounts to a violation of Article 14 of the Constitution. Among equals, the law should be equal and equally administered and should be treated alike. The guarantee of 'equal protection' under Article 14 is a guarantee of equal treatment of persons in 'equal circumstances'. To preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024. The saving provision under Section 531 of the Sanhita shall not deter the enforcement of the fundamental right of an accused. Issue No.2 is answered as above. {Para 29}

The present case

30. Annexure A3 report reveals that the petitioner is suffering from severe dementia, and the chances of recovery are less. The petitioner is aged 74 years. The report states that the petitioner's soundness of mind is to be assessed in detail by a psychiatrist. The learned Special Judge has taken the stand that if the party requires it, he should be subjected to an examination by a psychiatrist. The learned Special Judge lost sight of the principle that he has an onerous responsibility to try the issue as to whether the petitioner has any mental disability. The order impugned is patently illegal and irregular. The impugned order, therefore, stands set aside. The learned Special Judge shall reconsider the application and proceed under Chapter XXVII of the Sanhita.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. MC No. 6370 of 2023

Decided On: 05.09.2024

V.I. Thankappan Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

K. Babu, J.

Citation: MANU/KE/3656/2024,2024:KER:67342

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Shifting the Paradigm: How BNSS 2023 Transforms Criminal Procedure for Accused Persons of Unsound Mind

 The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 replaces select portions of the Code of Criminal Procedure (CrPC) 1973 and, in doing so, rewrites India’s response to accused persons whose mental condition prevents them from mounting a defence. The reform moves beyond outdated language and narrow categories, extends wider substantive protection, and tightens procedural safeguards.

1. Structural Re-location of the Law

CrPC housed the rules in Chapter XXV, Sections 328 – 339. BNSS mirrors this structure in Chapter XXVII, Sections 367 – 378, ensuring continuity for practitioners while signalling a fresh policy outlook.

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Whether salary can be paid to physically handicapped employee even if she does not attend duty?

Now back to the case: As has been extracted, the medical

report is unambiguous; in fact, it reads distressingly. With loss of


bowl control and faecal incontinence--and further always to be

attended to--the employee has precious little to offer to her

employer as her contribution in the workplace. Prone to infections

and potential to spread them, the employee poses danger to herself

and to others as well. The employer seems to have understood that

keeping an employee on the rolls, as if she had been in service,

must mean that she should perform the ritual of attending office.

We are afraid it is misplaced, if not perverse. We cannot, however,

hide our surprise at the vigour with which, the giant of an

employer, the Railways, has pursued the matter against a woman

who has already been beaten by fate to her wheel chair for life.

      67. We do not deny that the employer may have been spurred

by a sense of duty, but a generous spirit of accommodation might

have been much appreciated. Lest the employer's insistence on the

employee's physical presence under impossible--and perilous--

circumstances should be taken as a display of official hubris. Let



us not forget every disabled person is not a Stephen Hawkins to

contribute, still.

       68. Here is a conflict, as it seems, between the employee's

constitutional right--right to dignity and privacy--and the

employer's right--right to compel an employee to discharge the

allotted functions. Need we say, it is the constitutional right that

prevails? Nevertheless, we hasten to add, it may be a constitutional

canon but needs the facts to justify it. Here, the facts, we think,

justify this conclusion.

       69. We may end our disposition with a quote that puts the

issue in perspective: "Dignity is as essential to human life as water,

food, and oxygen. The stubborn retention of it, even in the face of

extreme physical hardship, can hold a woman's soul in her body

long past the point at which the body should have surrendered it."34




34 Laura Hillenbrand, Unbroken: A World War II Story of Survival, Resilience, and Redemption (2010,
  Random House) [Gender changed to contextualize]



Result:

      70. Under these circumstances, we hold that the learned

Tribunal has rendered Ext.P10 order in consonance with the

principle of law calling for no interference. In the facts and

circumstances, we dismiss the Original Petition as devoid of merit.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT:

           MR.JUSTICE P.R.RAMACHANDRA MENON
                                             &
              MR. JUSTICE DAMA SESHADRI NAIDU

          3RD DAY OF OCTOBER 2016

                              OP (CAT).No. 182 of 2016 (Z)
                           

        UNION OF INDIA,
           Vs

                FANCY BABU,
             

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Supreme court granted compensation of Rs ten lakh to disabled passenger who was de-boarded from plane?

Learned counsel argued that the aforesaid provision is in two
parts: one applies to persons with disability and the second party
applies to persons with disability who require assistant devices or
aids. It was argued that the proviso applies to the latter category
only whereas Jeeja Ghosh is merely a person with cerebral palsy
and did not require any assistant device or aid. The only
assistance she required was regarding her baggage which she
asked for at the time of security check-in. Thus, there was no
reason as to why she was asked to de-board the aircraft when
there was no assistant device or aids about which she ought to
have informed the airlines. It is claimed that so far as requirement
of assistance regarding baggage is concerned, she had duly
informed the officials of the airlines. Refuting the argument of
learned counsel appearing for respondent No.3 predicated on
Rules 22 and 141 of the Rules, 1937, it was submitted that the
Operations Manual of the airline places an obligation on the Pilot
in-charge not to commence the flight until he/she is sure of the
safety of all the passengers. In the present case, there was no
evidence to prove that Jeeja Ghosh had posed any hazard to the
safety of the Pilot in-charge or other passengers. Moreover, the
decision to de-board her was taken without even interacting with
her. The claim of respondent No.3 that blood and froth was
oozing out of the sides of her mouth is denied with the submission
that there is no evidence to prove the same. On the contrary, it is
claimed, she was completely fine and it was only the conduct of
the respondent airline which became a cause of her subsequent
sickness. Referring to the offer given by the airline to fly Jeeja
Ghosh on the very next day, it is submitted that this act on the
part of the airlines itself shows that Jeeja Ghosh was alright and
there was no medical condition which would have been prevented
her from flying. Mocking the stand of the airline that the person
having cerebral palsy would, in emergency situation, not be able
to respond to the safety instructions and she is a risk to herself
and potential danger to the lives of co-passengers also, the
submission of the petitioners is that it is in complete contravention
of CAR, 2008 which prohibits the airlines from refusing to carry a
person with disability or person with reduced mobility. The
relevant provisions in this regard have already been extracted
above.
34) After considering the respective arguments of the counsel for the
parties and going through the relevant provisions of Rules and
CAR, 2008 brought to our notice, we arrive at the irresistible
conclusion that Jeeja Ghosh was not given appropriate, fair and
caring treatment which she required with due sensitivity, and the
decision to de-board her, in the given circumstances, was
uncalled for. More than that, the manner in which she was treated
while de-boarding from the aircraft, depicts total lack of sensitivity
on the part of the officials of the airlines. The manner in which
she was dealt with proves the assertion of Shapiro as correct and
justified that 'non-disabled do not understand disabled ones'.
35) It is not in dispute that the Pilot as well as the Crew members of
the airlines are supposed to ensure the safety of all the
passengers and a decision can be taken to de-board a particular
passenger in the larger interest and safety of other
co-passengers. The question is, whether such a situation existed
when Jeeja Ghosh was de-boarded? Whether this decision was
taken by the airlines after taking due deliberations and with
medical advise? Unfortunately, the answer is a big 'NO'. Jeeja
Ghosh is a disabled person who suffers from cerebral palsy. But
her condition was not such which required any assistive devices
or aids. She had demanded assistance regarding her baggage at
the time of security check-in, from the check-in counter. For
boarding of the aircraft, she came of her own. This was noticed
not only by the persons at the check-in counter but also by
security personnel who frisked her and the attendant who
assisted her in carrying her baggage up to the aircraft. Even if we
assume that there was some blood or froth that was noticed to be
oozing out from the sides of her mouth when she was seated in
the aircraft (though vehemently denied by her), nobody even
cared to interact with her and asked her the reason for the same.
No doctor was summoned to examine her condition. Abruptly and
without any justification, decision was taken to de-board her
without ascertaining as to whether her condition was such which
prevented her from flying. This clearly amounts to violation of
Rule 133-A of Rules, 1937 and the CAR, 2008 guidelines.
Jeeja Ghosh herself is a living example who has, notwithstanding
her disability, achieved so much in life by her sheer determination
to overcome her disability and become a responsible and
valuable citizen of this country. A little care, a little sensitivity and
a little positive attitude on the part of the officials of the airlines
would not have resulted in the trauma, pain and suffering that
Jeeja Ghosh had to undergo. This has resulted in violation of her
human dignity and, thus, her fundamental right, though by a
private enterprise (respondent No.3).
47) On our finding that respondent No.3 acted in a callous manner,
and in the process violated Rules, 1937 and CAR, 2008
guidelines resulting in mental and physical suffering experienced
by Jeeja Ghosh and also unreasonable discrimination against her,
we award a sum of ₹10,00,000 as damages to be payable to her
by respondent No.3 within a period of two months from today.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 98 OF 2012
JEEJA GHOSH & ANR.
VERSUS
UNION OF INDIA & ORS.
Dated:MAY 12, 2016.
A.K. SIKRI, J.
Citation:AIR 2016 SC 2393,(2016) 7 SCC 761

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