VOLUME 1: ISSUE 2

|| APRIL 2019 ||

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 ABOUT US

WHITEBLACKLEGAL is an open access, peer-reviewed and refereed

journal provide dedicated to express views on topical legal issues,
thereby generating a cross current of ideas on emerging matters. This
platform shall also ignite the initiative and desire of young law students
to contribute in the field of law. The erudite response of legal luminaries
shall be solicited to enable readers to explore challenges that lie before
law makers, lawyers and the society at large, in the event of the ever
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With this thought, we hereby present to you

WHITE BLACK LEGAL: THE LAW JOURAL

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 CONTENTS
S. No. Title Author(s) Page No.
1 Should reservation be provided? A constitutional Jonica E 07
analysis
2 Religion and the law: The Sabarimala debate Apoorva Kinra 23
3 Whether gender equality prevails over religion? NIKKHILESH ATHAV.R 29
4 The concept of private International law in India: Md.Minhajuddin & 33
An appraisal of Satya vs Teja case 1975 AIR 105. Ankit Kumar Chaudhary
5 HUMAN RIGHTS IN RELATION TO Avni Kritika 45
LESBIAN, GAY, BISEXUAL AND
TRANSGENDER GROUPS OF INDIA
6 A right to a healthy environment: Constitutional Raghav Dhanda 59
Provisions and Environmental Jurisprudence
7 reform in reformatory institutions Pranav Anand Ojha 73
8 A Probe into Patriarchal Politics : Marital Rape Ishaa Ajay & 81
Narumugai Muthusamy
9 SETTLEMENT OF SPOUSAL PROPERTY: Sonal Gupta 95
RULE OF EQUAL DIVISION OR SAME
FINANCIAL LEVEL
10 CYBER CRIME: A WRONG USE OF Gaurav Purohit & 109
TECHNOLOGY AGAINST THE SOCIETY Akhil Karamchandani
11 Case Comment on Independent Thought V. Rishab Kumar & 119
Union Of India Rukmani Sachdeva
12 Link between UCC and Gender justice. RITIK KUMAR 126
13 The conflict between custom and law in the Pallav Vats 135
perspective of Sabarimala temple issue
14 ACCESS TO JUSTICE AND JUDICIAL Arihant Pushkar 144
REFORMS
15 Pre-Nuptial Agreements across the World Ayush Mishra 150
16 case analysis of joseph shine v. union of india Meher Mansi 159
17 Judicial inconsistency in India: The need of the Gyaaneshwar Joshi 168
hour
18 Right to Health- An Analysis Aneesh Khandelwal 174
19 Comparative Study on recognition of divorce Rajmani Mohanty 184
jurisdiction
20 Crossroads Of Intellectual Property Laws and Anjana Sridharan 192
Insolvency Laws in India: The Need For a New
Regime
21 Right to privacy :Issue and Challenges Rakhi & 198
Radhika Agarwal
22 Female Feticide, its Social Issues and Legal Meetali Handa 212
Implications
23 Copyright Protection with reference to Electronic Swetaparna Priyadarshini 217
Copyright Management system - A critical
analysis

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24 Human Trafficking in 21st Century Lovely Tokas & 234
Aryaman Tyagi
25 Inter-State River Water Disputes, An Analysis Vishnu Sudarshan P & 245
Ishani Bhattacharjee
26 Role of Competition Law in Mergers And Amogh Ashish Taskar 254
Acquisitions
27 Case Review of Joseph Shine vs Union of India Nitish Singh 258
28 Critical Analysis of Role of Courts in Arbitration Simranjeet Kaur Muchhal 266
in India
29 Critical Appraisal of Freedom of speech and Shishir Agrawal & 276
expression in relation: an Analysis in Indian Mrigank Behl
Perspective
30 PROTECTION OF ENVIRONMENT N.ILAKKIYA 292
THROUGH BIO-DIVERSITY ACT
31 DEMOCRACY CORVERED BY MONARCHY Mervyn Vivek Tamby 301
33 An Analysis of Legislation for the Protection of Srishti Sahu 345
Rights of The Tribal Society in India

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 AN ANALYSIS ON WHETHER THE PRACTICE OF PROVIDING
RESERVATION FOR THE CONSTITUTIONALLY ACCLAIMED
BACKWARD CLASSES BASED ON CASTE BE CONTINUED.
JONICA E1

INTRODUCTION
Reservation policies in the Indian context means a form of affirmative action where a
percentage of opportunities or openings are reserved in areas like Public Sector
Undertakings, Union and State Civil Services, Union and State Governmental
Departments and in all public and private educational institutions, except in the
religious/linguistic minority educational institutions, for the historically oppressed and
backward communities who the authorities feel are inadequately represented in these
services and institutions. The reservation policy is also extended for these communities
for representation in the Parliament, State Legislatures and other local bodies and
authorities.

The forefathers of Indian state introduced the system of reservation in our Constitutional
framework because they felt that the time has come to uplift certain classes of the society
who have been historically and traditionally discriminated, ostracized and shunned from
the mainland society. After India gained independence, the legal framework started to
identify and list certain disadvantaged and marginalised communities as backward classes
for the purpose of providing reservation benefits. Our Constitution drafters believed that
due to the caste system and other social stigmas having a strong presence in our society,
these communities were historically oppressed, denied respect and equal opportunity in
our society and were thus under-represented in our nation-building activities.

Initially the Constitution laid down a percentage of 15% and 7.5% as reserved quota for
the SC & ST candidates respectively to government aided educational institutes and for
jobs in the government/public sector, for a period of five years, after which a review of
the situation was to be called for. After the initial introduction of this provision for

1Jonica E, Student at Tamil Nadu National Law University, 3rd Year B.com.,L.L.B (hons.)
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reservation in our Constitutional framework, it gradually got interlinked with the agendas
of several political parties and the successive governments only extended the period of
this provision, without any free and fair revisions. Later on in the coming decades more
and more communities were started to be included within the ambit and benefit of
reservation for multiple reasons, like minority appeasement politics, to end political
turmoil and electoral gains etc.2

RESERVATION FOR BACKWARD CLASSES- ANALYSIS OF

CONSTITUTIONAL PROVISIONS

The principle of “Right to Equality” is encompassed in Article 14 of the Indian

Constitution. The provision says that, “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India Prohibition
of discrimination on grounds of religion, race, caste, sex or place of birth”.3 However,
there are certain exceptions to this provision. One of the main exceptions is that this
provision does not prevent certain class of persons being subject to special rules. What
Article 14 forbids is class legislation and not reasonable classification. Article 14 applies
to the situations where equals are treated differently without any reasonable basis.
However this Constitutional provision will not take force in the case where the equals and
unequals are treated in a dissimilar manner.4

The differentia which is the basis of the classification and the object of the Act are two
distinct things. It is mandatorily required that there has to be a rational nexus between the
basis of classification purported by the legislation and the objective of the legislation. The
only ground for a law making such a classification to be proved as discriminatory in
nature is that there is no reasonable basis in the legislation on which the differentiation is
made.5

In a landmark case before the Supreme Court, it was held that:

2 Reservation System in India: Concept, Arguments and Conclusions, Available at http://www.yourarticlelibrary.com (last
accessed on 2nd October 2017)
3 Indian Constitution Article 14
4 Shiksha, Reasonable classification under Article 14, Available at http://www.legalservicesindia.com(last accessed on 5th

October 2017)
5 Ibid.

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“To pass the test of permissible classification two conditions must be fulfilled, namely:
(i) that the classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of
the group and;
(ii) that the differentia must have a rational relation to the object sought to be
achieved by the statute in question.” 6

Dealing with the concept of reservation, classification is made on “class” which in turn
brings in the concept of caste. In an Independent nation-state like India, where almost
every single person is striving to get rid of the caste system, making reservations based
on it divides the population more. Let us take the case of Tina Dabi, the girl who topped
the UPSC exam in 2015. Initially her feat was congratulated warmly with greetings from
across the country. In the next few days India proved itself as a casteist mentality centric
society. In her interview with The Hindu she mentioned the following, “I started getting
messages from the media asking for my caste, because my surname sounded different.
Then I became a Dalit topper. It will take a long time for this reality to change.”7 It is
very evident from this example that she was discriminated on the basis of her caste.

Stepping on the other side of issue, it is very clear that it is not because of mere castes but
the misuse of reservation system for generations together even though those from
backward classes attain the creamy layer of society. Reading more interviews of Tina
Dabi, it is very clear that her family has attained the creamy layer already and still is
using reservation scheme. It may be taken as using than as exploitation but when one has
already attained a level that is fulfilling the motive of reservation, then it is exploitation.
Even though it is often argued that reservation for backward classes is a positive
discrimination, looking at the other side of reservation, the ones belonging to
economically backward classes who are considered to be better in class in law like the
people belonging to lower middle class and belonging to other categories (who has to
acquire relatively very high marks to get a seat in an educational institution whereas those
who are considered to be backward in class will easily get through by gaining

6Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191

7 Rahi Gaikwad, India is still casteist says UPSC topper, The Hindu, August 20, 2016
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comparatively very low marks) is crushed under the wheels of law. Reservation based on
caste basically a real crusher of meritocracy.

Article 15(4) is another Constitutional provision dealing with the subject matter of
reservation. The provision says that, “nothing in this article or in clause (2) of Article 29
shall prevent the State from making any special provision for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes8”.

In a landmark case it was held that:

“Neither caste nor race nor religion can be made the basis of classification for the
purposes of determining social and educational backwardness within the meaning of
Article 15(4). When Article 15(1) forbids discrimination on grounds only of religion,
race, caste, caste cannot be made one of the criteria for determining social and
educational backwardness. If caste or religion is recognised as a criterion of social and
educational backwardness Article 15(4) will stultify Article 15(1). It is true that Article
15(1) forbids discrimination only on the ground of religion, race, caste but when a
classification taken recourse to caste as one of the criteria in determining socially and
educationally backward classes the expression ‘classes’ in that case violates the rule of
expressio unions est exclusio alterius”.9

The factor for citizens to be considered as socially and culturally backward should not be
solely based on caste.10 In the Balaji’s case11, it was held that the expression “socially
and educationally backward classes” contained in Article 15(4) is analogous to Scheduled
Castes and Scheduled Tribes. The underlying factor behind such a view of the Court was
that the Scheduled Castes and Scheduled Tribes picturise underdevelopment in literacy
levels and social acceptance. The expression “social and educationally backward classes
of citizens” which finds its mention in the Constitutional provisions at several places is
tough to define. Certain classes of citizens practice age old perpetual occupations which

8 Indian Constitution Article 15, Clause 4

9Indra Sawhney Etc. Etc vs Union of India and Others, Etc, AIR 1993 SC 477, 1992 Supp 2 SCR 454
10Ibid.
11M. R. Balaji And Others vs State Of Mysore, 1963 AIR 649, 1962 SCR Supl. (1) 439
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continue to lead to underdevelopment in literacy levels and social acceptance. Another
important factor in judging social and educational underdevelopment is the place of
residence and its surrounding environment. “Classes of citizens” is an expression which
depicts a homogenous section of society who are grouped together because they hold
similar characteristics and behaviour and who can be recognised by some similar
attributes.

When a group of citizens are backward in respect of literacy and social status, they
constitute a class or group of individuals who carry the same characteristics. The factors
of caste, religion and place of birth cannot be considered as a uniform element of similar
characteristics to form a class of citizens.12 Considering the case of Balaji13, where the
Schedule Caste and Schedule Tribe communities are set as benchmark for any
comparison, it seems more of like a stereotype that only people belonging to those are
poor. When there are people belonging to other communities with lower income than
those who stepped high using reservation system and is not giving up on Reservation
even after attaining creamy layer, it is very unfair.

With changing scenarios in our Country, it is high time that reservation system is altered
considering the present scenario where there are ups and downs in every community; it
would be fair if reservations are based on economic conditions by fixing an annual
amount as criteria below which they are entitled and other possible factors like their
current educational status coupled with their current social status rather than merely on
historical oppression. Reservation must be on merit coupled with social status and not
just based on history.

Article 16(4) states “that nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in the services
under the State14”. In the case of M. Nagaraj & Others vs Union of India & Others15 it

12StateOf Uttar Pradesh vs Pradip Tandon & Ors, 1975 AIR 563, 1975 SCR (2) 761
13M. R. Balaji And Others vs State Of Mysore, 1963 AIR 649, 1962 SCR Supl. (1) 439
14Indian Constitution Article 16, Clause 4
15 2006 (8) SCC 212

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was held that the Court is not concerned with the validity of constitutional amendments
and, therefore, it proceeded on the assumption that Article 16(4A) is valid and is not
unconstitutional.

Keeping in thought Article 14, Article 16(1) and Article 335 of the Indian Constitution,
the major roles of Article 16(4) and Article 16 (4A) is to give adequate representation to
those classes which the state feels is under-represented in nation building activities. They
give a positive command to the State that there shall be equality of opportunity of all
citizens in public employment. Article 16(1) flow from Article 14. The scope of the
expression “employment” contained in Article 16(1) is wide enough to bring under its
ambit promotions in jobs and is not only confined to securing jobs at the entry level.

However, the debate in the moot point of balancing the fundamental rights of citizens
guaranteed under Article 16(1) of the Constitution and the right of affirmative action
guaranteed to citizens from reserved categories under Article 16(4) and Article 16(4A)
has led to the Court’s opinion that Article 16(1) contains fundamental rights, but Article
16(4) and Article 16(4A) are just enabling provisions of the Constitution and thus there
should exist a balance between the interests of reserved categories and other categories in
our society.

As a balancing action for other citizens, in issues related with the reservation policies of
the government, the rights embodied and enshrined under Article 14 and 16 have to be
safeguarded so that reverse discrimination is resulted from the reservation policies of the
government.16

Article 16(4) clarifies and explains that classification on the basis of backwardness does
not fall within Article 16(2) and is legitimate for the purposes of Article 16(1). If
preference shall be given to a particular under-represented community other than a
backward class or under-represented State in an All India Service such a rule will
contravene Article 16(2). Any policy or rule which is identical to the above mentioned
preference, placing special emphasis on an under-represented backward community by

16M. Nagaraj & Others vs Union Of India & Others,(2006) 8 SCC 212
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providing opportunities, is not unconstitutional and is very much in the spirit of the
principles embodied in Articles 14, 16(1) and 16(2).

The classification of employees belonging to scheduled castes and scheduled tribes for
allowing them an extended period of two years for passing the special tests for promotion
is a just and reasonable classification having rational nexus to the object of providing
equal opportunity for all citizens in matters relating to employment or appointment to
public office.17 There is a wide misrepresentation of this Article. It is very clear that the
Article was framed to promote the less represented society for the initial stages of
employment.

But in various companies, this Article isn’t read properly and the ones belonging to
oppressed class according to law is being offered promotions every year even after
attaining creamy layer irrespective of their work performance resulting in agony of those
who actually work smarter and better than them. It seems like the system which was
created to uplift the oppressed ones mentioned in law is using to exploit it by using the
system over and over again even after attaining the creamy layer seems unfair. There
must be a provision which makes people give up their reservation after attaining the
creamy layer in society.
Article 46 states that “The State shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice
and all forms of exploitation.18” In the case of B. Narayana And Ors. vs Government Of
Rep.19 it was held that the Scheduled Castes and Scheduled Tribes have earned
special mention in Article 46 and other 'weaker sections' in this context means not
every 'backward class' but those dismally depressed categories comparable
economically and educationally to Scheduled Castes and Scheduled Tribes.

17B. Narayana And Ors. vs Government Of A.P. Rep, 1997 (5) ALT 292
18 IndianConstitution Article 46
19 1997 (5) ALT 292

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In the case of Ashok Kumar Gupta, Vidya Sagar ... vs State Of U.P. & Ors20 it was held
that the historical evidence of disabilities worked against the Dalits and the Tribes
received acknowledgement in Articles 17 which provides for abolition of practice of
untouchability. It is settled constitutional principle that to make the right to equality to the
disadvantaged Dalits and Tribes meaningful, practical contents of results would be
secured only when principles of distributive justice and protective discrimination are
applied, as a facet of right to equality enshrined under Article 14 of the Constitution.
Otherwise, right to equality will be a teasing illusion.

Right to promotion is a method of recruitment from one cadre to another higher cadre or
class or category or grade of posts or classes of posts or offices, as the case may be.
Reservation in promotion has been evolved as a facet of equality where the appropriate
Government is of the opinion that the Dalits and Tribes are not adequately represented in
the class or classes of posts in diverse cadres, grade, category of posts or classes of posts.
The right to equality, dignity of person and equality of status and of opportunity are
fundamental rights to bring the Dalits and the Tribes in the Mainstream of the national
life. It would, therefore, be an imperative to evolve such principle to adjust the competing
rights, balancing the claims, rights and interest of the deprived and disadvantaged Dalits
and Tribes on one hand and the general section of the society on the other.21

In a landmark case it was held that:

“Now there is no such provision for reservation as regards admissions into educational
institutions. Whether the omission to make such reservation was deliberate or accidental
we cannot speculate. The learned Advocate-General pressed upon us the condition of
educational backwardness which prevails among several sections of the people in the
State, & represented that unless special reservations are made in favour of such sections,
the State cannot promote adequately their educational interests. it was contended that the
communal G. O. was justified by Article 46 of the Constitution, which directs the State to
promote with special care the educational & economic interests of the weaker sections of

20 1997 5 SCC 201

21Ibid.

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the people, particularly the scheduled castes & tribes. Article 46 occurs in Part IV
dealing with "Directive principles of State Policy". It is a Code of morals & ideals for
State Govts.”22

Article 46 lays down the general policy to be followed by the State in the sphere of
legislation or executive action. It cannot & does not purport to override the provisions of
Article 16(1) & it must be read subject to the provisions, according to the elementary rule
of statutory interpretation, that the different parts of a statute should, as far as possible, be
construed so as to avoid a conflict.23 In the same case it was explicitly mentioned that, the
same old classification of communities on the basis of caste & religion, into Brahmins, &
non-Brahmins, Christians, Muslims & Hindus, is kept up & enforced.
There is nothing to show that the Govt. applied its mind to a determination of who the
"weaker sections" of the people were, before allotting seats in the Engineering & Medical
Colleges to the different castes & communities. It was also added that even in the same
caste or community there are stronger & weaker sections. The communal G. O. divides
citizens into water-tight compartments according to the caste or religion & prefers
citizens of one caste or community to the detriment of others, even though the
qualifications of the students who are preferred are inferior to those of the students who
are rejected.24

Article 335 states that “the claims of the members of the Scheduled Castes and the
Scheduled Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State.”25 In the case of M. Nagaraj &
26
Others vs Union Of India & Others it was held that Article 335 recognizes the
importance of efficiency in administration and the various provisions of the Constitution
indicate that public employment was and is even today of central concern to the
Constitution.

22Srimathi Champakam Dorairajan ... vs The State Of Madras,AIR 1951 SC 226

23Srimathi Champakam Dorairajan ... vs The State Of Madras, AIR 1951 Mad 120, (1950) IIMLJ 404
24 Ibid.
25 Indian Constitution Article 335
26 (2006) 8 SCC 212
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It is urged that equality in matters of public employment cannot be considered as merely
an abstract concept. When we construe Article 16(4), it is equality in fact which plays the
dominant role. Backward classes seek justice. General class in public employment seeks
equity. The difficulty comes in when the third variable comes in, namely, efficiency in
service. In the issue of reservation, we are being asked to find a stable equilibrium
between justice to the backwards, equity for the forwards and efficiency for the entire
system. Equity and justice in the above context are hard-concepts.

However, if you add efficiency to equity and justice, the problem arises in the context of
the reservation. This problem has to be examined, therefore, on the facts of each case.
Therefore, Article 16(4) has to be construed in the light of Article 335 of the
Constitution. Inadequacy in representation and backwardness of Scheduled Caste and
Scheduled Tribes are circumstances which enable the State Government to act under
Article 16(4) of the Constitution. Clause (4A) of Article 16 is carved out of clause (4) of
Article 16. Clause (4A) provides benefit of reservation in promotion only to SCs and STs.
In a landmark case, the Supreme Court held that Article 16(4) taking note of Article 335
of the Constitution does not allow any relaxation in qualifying marks and standards of
evaluation with respect to reservation in promotion.27 The Court was of a similar view in
the Indra Sawhney case28. Moreover Article 335 is to be read with Article 46, which
provides that “the State shall promote with special care the educational and economic
interests of the weaker sections of the people and in particular of the scheduled castes
29
and scheduled tribes and shall protect them from social injustice.” Thus, from an
interpretation of this provision it can be found that the state can relax the qualifying
marks for certain backward classes due to serious degree of underdevelopment and
illiteracy. Heavy data and data which can be cross checked can help in identifying these
30
persisting interests. Reservation is not a Constitutional compulsion but it is a
discretionary one.31

27S. Vinod Kumar v. Union of India, (1996) 6 SCC 580

28Indra Sawhney Etc. Etc vs Union of India and Others, Etc, AIR 1993 SC 477, 1992 Supp 2 SCR 454
29 Indian Constitution, Article 46
30
M. Nagaraj & Others vs Union Of India & Others, (2006) 8 SCC 212
31R.K. Prajapati And Ors. vs State Of Gujarat And Ors., (1992) 2 GLR 1422

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 RESERVATION BASED ON ECONOMIC CRITERIA- NEED FOR CURRENT
SCENARIO?

As discussed in the earlier part of the project, the principles embodied in Article 14 are
not supreme and there are certain exceptions. These exceptions contained in the
Constitution are:

(i) women and children in general

(ii) the socially and educationally backward classes
(iii) the Scheduled Castes and the Scheduled Tribes, and
(iv) the “weaker sections”.

Would not the purpose have been served if the expression `backward classes' had been
used instead of `weaker sections' as done in Article 16 (4), which would mean all the
weaker sections, including the Scheduled Castes and the Scheduled Tribes? Initially
Article 15 sub-clause (4) was never a part of the Constitution which took force on 26th
January 1950 — It was inserted by virtue of an amendment to the Constitution and the
term “backward classes” was correlated with the factors of being educational and socially
underdeveloped, not being underdeveloped in one factor alone but underdeveloped on
both the factors simultaneously. Secondly, the Scheduled Castes and Scheduled Tribes
were excluded from the expression “backward classes” to give a meaning of distinction
and difference between them and Other Backward Classes (OBCs).

It seems like the effort has been made to maintain the same above mentioned difference
in Article 46 of the Constitution. Coincidentally it is important to note that in all the
decisions of the cases rendered by the Supreme Court, the expression “backward classes”
contained in Article 16(4) of the Constitution has been interpreted in such a way to mean
the “socially and educationally" backward section of the society. The argument of
“economic backwardness” as the primary criteria for entitlement to affirmative action
under Article 16(4) has been out rightly rejected and the Supreme Court has given the
observation that the economic backwardness has to be due to social and educational
backwardness. When the words “weaker sections” is mentioned in Article 46 of the

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Constitution, it qualifies that expression with different and more pertinent clauses as
pointed out earlier.

Even though Article 46 mentions the expression weaker sections, whose “economic” as
well as “educational” interests have to be promoted with special nurturing; there is also a
mention of “protecting” them from “social injustice and exploitation” which can take root
in any form. Thus from an interpretation of this provision it can be clearly said that the
expression “weaker sections” mentioned in Article 46 are those classes other than the
Scheduled Castes and the Scheduled Tribes who are underdeveloped educationally an
socially and there is an urgent need to protect them from social injustice and other forms
of exploitation to which they can easily fall prey to.

Those classes of citizens who are backward in terms of economic strength would not be
entitled to reservation benefits under the cover of Article 46. The current framework of
affirmative action favours certain “classes” and not individuals. Individuals in order to be
entitled to benefits of reservation must belong to those classes. There is no particular
“class” which is economically backward. There are certain individuals who are
economically backward in every class and social group. A particular social group or class
will not be entitled to reservation primarily based on that factor.

It is however argued that the economically backward individuals in a social group should
be entitled to the benefits of reservation and not the economically well-off individuals in
a social group or a particular social group in itself. However the Constitution provides
reservation for classes and not individuals. If reservation is provided based on the criteria
of economic development, then individuals fulfilling this criteria will be entitled to
reservation irrespective of them belonging to any particular social group or caste. In such
a case reservation will benefit the target groups, inclusive of backward classes, Scheduled
Castes and Scheduled Tribes.

This system of reservation will open up from the present narrow approach it follows and
individuals fulfilling the criteria of economic backwardness will be entitled to reservation
irrespective of the fact that they belong to a particular caste, social group etc. Since

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economic criteria can somewhat help to identify target groups across various social
groups and castes, it can be said that this system is not contrary to the right to equality
and thus it can be said that it is unconstitutional to confine the scope of reservation to any
social group in particular.

Some other features of the present reservation system may be borne in mind, which is
often forgotten by many, in their supercilious approach to the problems of reservation.
The existing reservation in state employment under Article 16 (4) is in favour of such
backward classes, which, in the opinion of the state, are "not adequately represented" in
the services. From a plain reading of the words in the provision it can be surely
interpreted that the policy of reservation was brought about to provide those “classes” an
adequate representation in the nation building activities of the state.32

CONCLUSION

The researcher would like to conclude the following. Reading various judgements and
reminiscing our history, it is very evident that people belonging to Scheduled Castes and
Scheduled Tribes were oppressed mercilessly and reservation system was definitely a
helping hand in lifting them up. The 2010 study made by Aimee Chin and Nishith
Prakash concluded that for “scheduled tribes”, who are conveniently crowded near one
another on electoral maps, greater political clout has indeed led to a small drop in
poverty.33

The percentage of Indians identifying themselves as a part of the Other Backward Classes
(OBC’s) has gradually increased over the passage of years. The reports of the National
Sample Survey Office (NSSO) portray that about 36% of the Indian population formed a
part of the OBC category in 1999, but by the year 2011-2012 a whopping 44% fell in this
category. When this percentage is added with 9% of the Scheduled Tribes and 20% of the
Scheduled Castes, a whopping 73% of the population would be eligible for the right to
affirmative action.

32 P. B. Sawant, The Constitution and reservation, The Hindu, July 2nd, 2003
33Affirmative action Indian reservations, The Economist, June 29th, 2013
Page | 19
When gradually more and more classes of citizens are added to the OBC category, at
least 80% of the Indian population will easily be eligible for the right to any type of
affirmative action. This will lead to the defeat of the underlying purpose behind the
introduction of reservation system into our Constitutional framework. In the past few
decades, since the opening up of the doors of Indian economy to foreign investment due
to the liberalisation, privatisation and globalisation measures of the government, there has
been a drastic increase in economic growth of our country.

The percentage of population below the poverty line has reduced in significant numbers
from 37% to 22%, in such a scenario automatically the percentage of reservation should
also have been proportionally reduced, but however that has not been the case. Over the
same period, the percentage of reservation has only been rising which is just against the
concept of reservation contemplated by its visionaries of affirmative action. These
visionaries was of the idea that reservation should be provided to those communities who
were marginalised, oppressed and ostracised for centuries and only then can the situation
of these communities be improved.

But, in arriving at this judgement about who should be eligible for reservation, the
criterion has been a person’s caste rather than his income or wealth. Consequently,
groups belonging to what Article 115 of the Indian Constitution calls “socially and
educationally backward classes” have benefited from reservation even though, in
practice, many of these groups could not be regarded as “backward”.

This has led to a serious loophole where the creamy layer of the disadvantaged classes
(for example chamars from the SC’s) gets the privileges of reservation whereas the real
needy segment of the disadvantaged classes (for example bhangis from the SC’s) is
unable to get this privilege.34 “The exclusion of creamy layer from the beneficiaries of
reservations is a constitutional requirement to be honoured by the Central and State
Governments”-Supreme Court of India. “The exclusion of creamy layer from the

34 Akash Shah, Critical Analysis on Reservation Policy in India, Available on http://www.legalservicesindia.com (last accessed
on 12th October 2017)
Page | 20
beneficiaries of reservations is a constitutional requirement to be honoured by the Central
and State Governments”-Supreme Court of India.

The system of affirmative action by providing quota in opportunities is never really going
to uplift the real backward section of the society in concrete terms. This has been very
clearly proved in Tamil Nadu which is shown as a showcase by the quota supporters.
What has happened in TN is that the top layer has been churned where Brahmins have
been brought down and some other communities who stood along with Brahmins in the
caste system have cleverly jumped to the backward bandwagon and have gained
enormously by quota system.

The really backward castes (SCs & STs) have never benefited. Otherwise why is there
only 1% reservation for STs in TN. Govt. says there are not enough ST candidates. Does
this not prove the failure of the system? There is no doubt that SCs & STs (Really
Backward) people need support. This framework of quota has been abused on most
occasions and its advantages have not been reaching the real disadvantaged classes.35It
seems like the system which was created to uplift the oppressed ones mentioned in law is
using to exploit it by using the system over and over again even after attaining the creamy
layer seems unfair.

There must be a provision which makes people give up their reservation after attaining
the creamy layer in society. It is saddening to see that the main objective of reservation is
being misused by politicians to fill their vote banks. If reservation is made based on
economic conditions, the concept will be a far better success. Instead of providing low
marks and more intakes for those belonging to Scheduled Caste and Scheduled Tribe,
education system is ought to be improved in this way, meritocracy will be celebrated.

If meritocracy is encouraged, our economic system will definitely improve. Considering

the current scenario of our country, it is high time that we discard reservation based on
caste but based on economic conditions. Else, there must be provisions provided for those
attaining creamy layer to give up on their reservation and not keep on using it for

35 arkodayroy1,Creamy Layer: The Mandal Commission View, Available on http://www.legalservicesindia.com (last accessed on
9th October 2017)
Page | 21
generations together even after attaining the goal of reaching creamy layer of society. The
ones belonging to “backward class” must be the one with meagre income and not just
based on the caste as there is huge exploitation and seems more like a stereotype that only
who belong to those castes are poor and forgetting that there are people belonging to
other castes are poor and it seems more like giving way for politicians to exploit and fill
their vote banks based on caste.

Page | 22
 TITLE PAGE
Topic: “Religion and the law: The Sabarimala debate”
Name of the Author: “Apoorva Kinra”
Abstract

“In the theatre of life, it seems, man has put the autograph and there is no space for a
woman even to put her signature.”36 The issue is in broadcast for the sole reason that is
swinging between Custom v. Law. It is the issue of restriction on entry of women in
places of worship which brings us towards the debate of religious tradition versus sexual
equality. The Sabarimala debate isn’t about custom or prohibition of entry; the main
statue is equality. The bedrock behind the same is the exclusion of a class of women from
the Sabarimala Temple which was justified on the basis of ancient custom, sanctioned by
Rule 3 (b), framed by the Government under the authority of the Kerala Hindu Places of
Worship Act, 1965 which provided for the exclusion of women at such time during they
were not by custom and usage allowed to enter a place of public worship. These slices of
legislation were juxtaposed against our holy Constitution. The women from the age of ten
to fifty were not allowed to enter the Sabarimala premises in order to seek the blessings
of Lord Ayyappa, and the sole reason behind the same is the credence of our masculine
society that menstruating vaginas are not deemed to be fit and pure so as to be the
devotees of Lord Ayyappa because the wrangling of women’s purity has been in question
since antiquity. In 1991, the Kerala High Court restricted entry of women above the age
of 10 and below the age of 50 from Sabarimala temple as they were of the menstruating
age. 27 years later on September 28, 2018, the Supreme Court lifted the ban, saying that
discrimination against women on any grounds, even religious is unconstitutional.37 The
aftermath of the Supreme Court’s verdict of allowing the entry of women into Kerala’s
Sabarimala Temple regardless of their age has been cataclysmic, which has nothing to do
with the actual protection of the Women rights but is a fortuitous political opportunity
grabbed by the parties.

36
Indian Young Lawyers Association vs The State of Kerala; Writ Petition (Civil) No. 373 of 2006.
37
The Story Of Sabarimala: Origin, Beliefs And Controversy Over Women Entry; Feb. 25, 2019, 9:56 AM;
https://www.ndtv.com/kerala-news/the-story-of-sabarimala-origin-beliefs-and-controversy-on-women-entry-
1933477
Page | 23
 Fact Sheet
Women have been demanding entry into the temple for decades, but the issue was first
filed by S. Mahendran and considered by a division bench of Kerala High Court in 1992
in a Public Interest Litigation which stated that exclusion of women was in accordance
with the custom. But in 2016, a controversial statement by the temple's chief gave fresh
impetus to the protest. Prayar Gopalakrishnan, the temple’s chief said that he would
allow women to enter only after the machine was invented to detect if they were "pure"—
38
meaning that they weren't menstruating. The female strata of the society or the
suppressed and the most vulnerable strata of our patriarchal society have fought for her
rights since time immemorial and are still continuing to do so. The war against equality
started with colonial sex slavery, moving towards her fight towards marital rape and now
fighting for equality in order to prove the scientific fact that her menstruating is a normal
bodily function and to de-myth the myth of it being impure. Menstruation is nothing but
bleeding from the vagina which usually happens once a month, as a normal part of the
menstrual cycle. During the cycle, our hormones make the lining of the uterus become
thicker, getting ready in case of pregnancy. If a woman doesn’t get pregnant, the periods
start about two weeks after the ovulation in which the lining of the uterus falls away and,
along with some blood, flows out through the vagina. When Arunachalam
Muruganantham, on whom Bollywood movie ‘Pad Man’ is based, was asked what the
most difficult part of his job was, he said it was the superstitious surrounding
menstruation in India.39 Vaginas on her periods are not considered normal but a man’s
erection is normal for the society and the lone reason is that this society is kyriarchy in
nature and all penis’s loves to conquer the females whether juvenile or aged.

Legal Provisions
The Constitution of India, our holy book of rules and regulations truly have provided the
female counterparts the rights but those rights are suppressed by the blindfolded customs
being followed in the name of worshipping ie. Preventing women from entering the place

38
Sabarimala: The Indian God who bars women from his temple; BBC News; Feb. 15, 2019, 9:56 AM;
https://www.bbc.com/news/world-asia-india-45901014.
39
Elizabeth Sehadri; The Sabarimala Judgment: Reformative and disruptive; The Hindu Centre; Feb.15, 2019,
10:01 AM; https://www.thehinducentre.com/the-arena/current-issues/article25120778.ece.
Page | 24
of worship which definitely goes against Article 14, Article 15, Article 19, and Article 25
of the Indian Constitution. Restricting her is one of the ways of imposing patriarchy by
the priests. Article 14 of the Constitution guarantees the right to equality to every citizen
of India including women. It contains within its ambit the rules of natural justice, equality
before law and equal protection of law. Article 15 of the Constitution provides for a
particular application of the general principle embodied in Article 14.40 It talks about the
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
Whereas, in the present scenario, there has been discrimination against sex as women are
restricted from entering the temple. Article 19 states about the Freedom of movement
which specifically means that the personal liberty is violated. In the case of S. R. Bommai
41
v. Union of India , the Supreme Court clearly explained Article 25 stating that
secularism is a basic feature of the Constitution and therefore, everyone including women
have a right to freedom of religion. Secularism means developing, understanding and
respect for different religions. Therefore, excluding the women between the age gap of
ten to fifty seems quite unreasonable which contradicts the fact that Rule of Law is based
on the reasonableness of the antiquity.

Customary Provisions
Custom, as defined by the Oxford Dictionary is a traditional and widely accepted way of
behaving or doing something that is specific to a particular society, place, or time. And
religion is one of the key branches to Custom, especially in a country like India, the land
of traditions. It is a singular contribution of the Historical School of Jurisprudence
fertilized by the parent Religion. Religion is a theology followed by a certain class of
people for a long time. Hinduism being the majority religion of the secular country,
Hindustan is a polytheistic religion. It is a religion of 330 million Gods. Shri
Ramakrishnan, a prominent Hindu saint once wrote, “There can be as many Hindu Gods
as there are devotees to suit the moods, feelings, emotions, and social backgrounds of the
devotees.”

40
Dr. J. N. Pandey, Constitutional Law of India, Central law agency, Allahabad, 51st Ed., pg.127.
41
AIR 1994 SC 1918
Page | 25
Every God in the vast Hindu pantheon has his/ her own personality, complete with an
idiosyncratic legend, and Lord Ayyappa is no different. According to the temple’s
mythology, Lord Ayyappa was an avowed bachelor who has taken the oath of celibacy.42
Celibacy literally means Naishtika Brahmachari. The mythology behind who is to be
defined the same is a conversation between Sage Narada and his father Brahma, creator
of all reality. “One who lives where there are no women observing celibacy is not the real
one. The one who lives amidst women and is not caught in the sway of desire is in reality
vairagyabrahmachari. Krishna, who sings and dances with ten thousand Gopis without a
sense of ownership remains Parabrahman. His love and grace are the property of all. He
regards both cows and Gopis in Brindavan alike, irrespective of gender. He remains like
water droplets on the lotus. Others think of him as son, father, mother, friend, lover, guru,
deity, etc., for their own bliss. He lives without carnal desires both in mind, word and
deed, although he is the subject of love and attachment of everyone! He is the real
NaishtikaBrahmachari!”43 It isn’t living by secluding oneself from all worldly affairs
including the allurement of sexual relations, but it is living within the normal
environment like everyone else and controlling one’s desires to be pious. It basically
means the one in whom there is a constant inner intent of devotion and sincerity towards
celibacy. Detachment amidst temptation is true Brahmacharya. The trait of devotion to
divinity cannot be subjected to the severity and stereotypes of gender.

The name Ayyappa came from the Sanskrit term Arya which means "spiritually noble,
extraordinary, precious ones". He is known with different names in Hindu mythology
namely— Sastavu, Hariharaputra, Manikanta, Shasta, or Dharma Shasta. He is referred
to as the Hindu God of growth who is a syncretic deity, the son of Shiva and Mohini, the
female avatar of Vishnu.44as mentioned in Bhagavata Purana. According to the legend,
he was born out of a Union between two male Gods which gave him the ability to defeat
the female demon, Mahishasuri. Upon defeating her, it was unveiled that she was a

42
Sabarimala: The Indian God who bars women from his temple; BBC News; Feb. 15, 2019, 9:56 AM;
https://www.bbc.com/news/world-asia-india-45901014.
43
Mitter Vedu; Who is Naishtika Brahmachari ?; Speaking tree; Feb.15, 2019, 10:04 AM;
https://www.speakingtree.in/blog/who-is-naishtika-brahmachari-77641
44
Denise Cush; Catherine A. Robinson; Michael York (2008).Encyclopedia of Hinduism.Routledge.p. 78.
Page | 26
young woman who had been doomed to live the life of a demon. She fell in love with him
and asked him to marry her, but he refused, saying he was destined to go into the forest
and answer the prayers of his devotees. He was raised by a childless royal couple in the
kingdom of Pandala, and grew up as a warrior yogi named Manikantha. The
traditionalists brought forth various arguments to justify the ban on women class. One is
that the devotees are expected to follow a Vratham, a forty -one day’s austerity period
abstaining themselves from smoking, alcohol, meat, sex and contact with menstruating
women before they begin the journey prior to the pilgrimage in order to seek the
blessings of Lord Ayyappa. The second is that due to him being Nashtik Brahmachari, he
may get allured by the women who come there as his devotees. Another argument put
forth was that it is the ‘Will of God’ alias a ritual called Devaprashnam. In this,
astrologers interpret the will of God and as per the various ‘Devaprashnams’, and they
stated that Swami Ayyappa doesn’t will the entry of the women of reproductive age to his
shrine. Final argument which seems practical was that the journey to the hill shrine in
Periyar National Park is precarious, and the tradition was initially started to protect the
women from the said difficulty.
Conclusion
The tradition of not letting menstruating females be a part of the devotee to seek the
blessings of Lord Ayyappa was started with a very justifiable reason that women during
the menstrual period cannot trek rigorous mountains terrain in the dense forest. As
tradition if accepted amongst people becomes a custom and a custom that has been
practiced not for several weeks but for countless years is hard to metaphor. We all are a
part of the dynamic society, and dynamicity of the environment affects the custom and
traditions that prevail around us. The question still stands on the onset that if women are
allowed to serve in rigorous job positions like Army, Navy et cetera within the age group
of ten to fifty years then restricting them to do the noble job of seeking blessing is not
correct.
Like life, the law is not static. Law exists to subserve the social need and, therefore, it is
always desirable that the law should conform to the changing needs of society and life.
Just as society progresses and undergoes changes, so must the law. Beliefs and customs

Page | 27
of devotees cannot be changed through a judicial process.45 The reforms should come
from within the society. So long as it does not happen, most likely we will be able to
perceive religious issues being repeatedly taken to court. It is only possible if Bharat tries
its level best to educate the entire nation.

WHETHER GENDER EQUALITY PREVAILS OVER RELIGION?

ARTICLE BY NIKKHILESH ATHAV.R
ABSTRACT:

More often age old customs and traditions are often been confused with gender equality.
Some may agree with this statement while some may disagree and criticise such opinion
as male chauvinism. But the reality is far ahead of what we think or perceive. We live in
45
Sabarimala Temple Issue— Should Women of all ages be allowed to enter ?; Clear IAS; Feb. 15, 2019, 10:53
AM; https://www.clearias.com/sabarimala-temple-issue/.
Page | 28
post modern era where gender equality is the order of the day. Still many old people even
today stick to their conservative idea about the way their perception is on the opposite
gender that is female. While the rational people think that women should be placed on par
with male. Does this gender equality prevails in the matter of religion which is a time
immemorial practice, well there has been a conflict of interest regarding this topic, which
made up my mind to frame this article whether Gender Equality Prevails Over Religion?

INTRODUCTION:

The idea behind framing this article was the verdict of the Supreme Court on women
entering Sabarimala Temple in Kerala46. The Supreme Court in its verdict on September
28 2018 delivered the judgement in favour of women entering Sabarimala Temple. The
judgement triggered controversy all over India especially in the State of Kerala where the
Holy shrine of Lord Ayyappa47 is situated. The judgement been given by the then Chief
Justice Bench of Deepak Mishra favoured the judgement except Justice Indu Malhotra48 a
female judge giving a descending opinion, well it is an irony isn’t it?

WIDE SPREAD PROTEST ALL OVER KERALA:

There was a widespread protest all over Kerala; even strike was announced against the
Verdict. Political parties like BJP firmly opposed the verdict and also RSS supported
them in opposing the verdict, whereas political parties such as Congress and
Communists, who were the ruling party in Kerala, welcomed the verdict in favour of
women entering the Sabarimala temple. They termed it as a stepping stone in favour of
women empowerment. This is not the first time the gender equality is biased to one single
gender. The same age old tradition and custom was followed in Shani dev Temple in
Maharashtra49 which came to an end in early 2017.

CENTRAL GOVERNMENT’S ROLE IN THE VERDICT:

The Central government firmly opposed the verdict from the beginning and termed it as
gender equality should not interfere with the religious practice and age old practice which
46INDIANYOUNG LAWYERS ASSOCIATION VS THE STATE OF KERALA
47MAIN DEITY IN SABARIMALA
48JUDGE OF THE SUPREME COURT
49SITUATED IN SHIGNAPUR, MAHARSHTRA

Page | 29
is been followed since time immemorial. While in the review petition the central
government took a reversal decision and welcomed the verdict in favour of women
entering the Sabarimala Temple.

PETITIONS FOR REVIEW:

While a whooping 65 several petitions were piled up for review in the Supreme Court
one such petition was that of the priest of the temple (Tantri) who has stated that every
deity has a character. The Sabarimala deity, unlike the other Ayyappa temples, has a
peculiar character which is that of a Naishtika Bramachari whose penance should not be
disturbed by the entry of the women worshippers between the age of 10 to 50 years which
is been considered as the age for menstruation for the women. While Senior Advocate
Indira Jaising had stated in her arguments that it was fundamental duty under Article 51A
(h)50 of the Constitution to “develop scientific temper, humanism, spirit of enquiry and
reform”. Ms Jaising had further stated that “it hurts women very, very badly to say that
she is polluted because she menstruates. The hurt caused by such discrimination goes to
the heart of the constitution”

WOMEN EMPOWERMENT:

Women empowerment has a lot to do with feminism, which was initially evolved in USA
and in England. The women for a long time faced a lot of discrimination based on sex as
they were denied voting rights and other basic rights by the virtue of their gender. After a
long fought battle finally they were treated on par with female and were given equal
rights. As this phenomenon spread all over the globe, even India which was dominated by
culture and tradition began implementing this phenomenon. Mean while in Saudi Arabia
the long fought battle of gender equality led to women getting their drivers license to
drive a car. So the people of Saudi Arabia are experiencing hot and cute lady drivers
behind the wheels of Rolls Royce or Bugatti as the case may be, in a country where strict
laws are been followed against women regarding their way of dressing. Isn’t it an
evolving phenomenon all over the world?

50 DIRECTIVE PRINCIPLES OF STATE POLICY UNDER THE INDIAN CONSTITUTION

Page | 30
RELIGIOUS PRACTICES:

Age old customs and usage followed by people over a long period of time or time
immemorial as the case may be, these age hold practices and habits followed by the
people over a long period of time takes the shape of religious practices or customs.
Religious practices vary from place to place some may be discriminatory, some against
human rights but are still followed by the people all over the world. Some practices seem
to be barbaric and against human rights but such practices are still been followed. Some
of the practices include walking over the fire, sleeping in the bed of nails, carrying the
mud pots containing the fire with bare hand, breaking the coconuts on the head of the
person.
ULTIMATE PURPOSE OF SUCH PRACTICE:

Many people follow such practice seeking salvation or seeking solace. In the name of god
many such barbaric practices are followed in the form of religion. Many rational thinkers
are against such practices and feel that it is a foolish act to do such practices in the name
of god. Still many god fearing conservative people are seeking solace or salvation based
on the faith which they have on god.
GENDER EQUALITY OR RELIGION:

There has been a great controversy regarding the above topic, whether which of them
prevails over another. But ultimately as the society is moving toward socialistic and
rationality, there prevails gender equality over religion and religious practice. As the
decision of the Supreme Court is the stepping stone for future verdicts over gender
equality.

IS GENDER EQUALITY POSSIBLE IN ALL CASES?

We cannot afford a woman to remove her shirt in public like male. Likewise gender
equality is not possible in all the cases. We cannot afford to file a case before a court
claiming discrimination of Article 14 just because we do not have a common restroom for
male and female claiming it to be gender discrimination. Reasonable restrictions are been
imposed in terms of gender equality to be followed. So gender equality is not possible in
all the cases. Even when some changes evolve paving way for gender equality, countries
Page | 31
like India where the culture and tradition is the backbone would not accept such a change
for gender equality in all the cases.

CONCLUSION:

Gender equality do not prevail over the religion in all the cases, some reasonable
restriction is been imposed taking into consideration of the public interest. Certain age
old practice are still been followed even though gender discrimination prevails. The
society should adapt to such a change and should avoid all its conflict for the better
interest of the larger society of the people to preserve the tradition and culture of our
country. Gender equality is equally important but when we stress on such a phenomenon
our country’s ultimate aim of family, tradition and culture will be shattered. So what I
feel is that culture, religious practice should prevail over gender equality for the
betterment of the larger interest of the people.

REFERENCES:

1. <https://indiankanoon.org/search/?formInput=sabarimala> accessed on 5 April 2019

2. THE INDIAN CONSTITUTION 1950 BARE TEXT

“Private International law as found …is almost entirely the result of Judicial
Decisions.”
-Cheshire51
Paper by - Md.Minhajuddin
INTRODUCTION
What is Private International law and how it is being operated in different
countries, Especially in India.

Private International law is a body of rules used to resolve legal disputes between Private
individuals who cross international boundaries. Where a dispute is between two parties in
different countries with different legal system, Private International law helps a court

51Peter North, Cheshire and North’s Private International law,Lexis Nexis Butterworths edn-1999.
Page | 32
determine which country’s Substantive law will be used to decide the matter. Although it
is called ‘International law’ it is in fact a body of domestic law and each country has its
own set of private International law. It is distinguished from Public International law,
which is the law that governs relations between States (Nations).
Although Private International law is a domestic body of law, a lot of work has been done
by various International bodies to try to harmonise Private International law around the
World. This harmonisation effort is designed to minimise the impact of International
legal disputes and in so doing to Promote International trade and commerce.52
Private International Law or International Private Law governs the choice of law to apply
when there are conflicts in the domestic law of different countries related to private
transactions. This means that there is a dispute or transaction that involves one of the
following:
➢ what jurisdiction applies - choice of court, forum selection, renvoi (transfer of
proceedings)
➢ choice of applicable law
➢ recognition or enforcement of a foreign judgment
In the United States, Canada, and Great Britain it is also known as conflict of laws.
National laws are the primary sources of Private International Law. Private International
Law is also embodied in treaties and conventions, model laws, legal guides, and other
instruments that regulate transactions. Private International Law deals with a variety of
topics, such as (international) contracts, torts (lex loci delicti), family matters, recognition
of judgments, child adoption and abduction, real property (lex rei sitae), intellectual
property.
The function of Private International Law is complete when it has chosen the appropriate
system of law. Its rules do not furnish a direct solution to the dispute, and it has been said
by a French writer that this department of law resembles the enquiry office at a Railway
Station where a passenger may learn the platform where a train starts. Private
International Law, by its very nature, merely indicates the governing law under which a

52 Revue critique de droit International prive, Research guide to Private International law, Peace Palace Librarya,as found on
Internet on 4-04-2019.
Page | 33
case is to be decided. The role of Private International Law is to determine the
following:53

1. In what circumstances the court will assume jurisdiction over cases having foreign
elements? (Choice of Jurisdiction)
2. Which law will the court apply in deciding such cases, the native municipal law or
a foreign law? (Choice of law)
3. In what circumstances it will recognize a foreign judgment or when it will order
the execution of a foreign decree?

Statutory provisions of Private International Law in India are very rare. The rules of
Private International Law in this country are not codified and are scattered in different
enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession
Act, the Indian Divorce Act, the Special Marriage Act, etc. In addition, some rules have
also been evolved by judicial decisions. In this work one case law has been analysed to
provide a Practical understanding of the application of Private International law in India.

SATYA VS TEJA SINGH CASE 1975 AIR 105

Facts and Circumstances in brief-
Teja Singh was Married to a girl named Satya on 1st July 1955 according to Hindu rites
,the marriage was performed at Jullundur in the State of Punjab. Both were Indian
Citizens and were domiciled in India at the time of their marriage .In the year 1956 one
child was born out of the wedlock and one another child was born in the year
1958.During these years Teja was working as a forest range officer at Gurdaspur
.Subsequently on 23rd January 1959, he left for U.S.A for higher studies in forestry. He
Spent one year in New York university and later Joined the Utah State University and
Studied there for about 4 years for a Doctorate in Forestry. After completing his Studies
he got a Job in Utah on a Salary of the equivalent of about 2500 Rupees per month.
During these 5 years, his wife Satya continued to live in India with her Minor Children
and did not ever join her Husband in the U.S.A.

53Suchitra Manjunath,Private International law, Academike(Articles on Private International law)

Page | 34
After Keeping away from her husband for 5 years Mrs. Satya filed an Application under
sec- 488 crpc 1898 on January 21 1965.Alleging therein that Teja has neglected her and
the two minor children .She Prayed for the maintenance of Rs. 1000/ per month. In
response to that application Teja appeared through his counsel and contended that his
marriage with Satya was dissolved on December 30 1964 by a decree of divorce granted
by the 2ndJudicial court of the State of Nevada, country of washoe, U.S.A. After
considering contentions from both sides the learned Judicial Magistrate first class
Jullundur held by her Judgment dated December 17,1966 that the decree of divorce by
foreign court in these circumstances is not binding because Teja has not permanently
settled in the State of Nevada and the marriage between Satya and Teja can only be
dissolved by Hindu Marriage Act 1955.With this observation the court granted Rs 500
per month maintenance to be paid by Teja.
The order of the Judicial Magistrate was held correct in Revision before the court of
Additional session Judge, Jullundur and the Session Judge reiterated the same
observation that their marriage can only be dissolved under Hindu Marriage Act 1955.
In further revision before the Hon’ble High court of Punjab and Haryana .The court
framed the question for consideration –
“Whether a Hindu Marriage Solemnised within this country can be validly annulled by a
decree of divorce granted by a foreign court.”54
While answering this question the court found that at the crucial time of commencement
of the proceeding for divorce before the court of Nevada, the petitioner was domiciled
within that State in the U.S.A and as per the old English rule –“during marriage the
domicile of the wife , without exception follows the domicile of the husband.
”considering this aspect in mind the court held that when the husband was domiciled in
the State of Nevada so his wife will also be considered as domicile in Nevada in the eye
of law. So, the Nevada court had therefore Jurisdiction to Pass the decree of divorce .
Aggrieved by the Judgment of the High court dated 13 th November 1969, Satya Singh
filed a criminal appeal before the Hon’ble Supreme court of India.
Issues before the Supreme court:55

54Facts of the case have been extracted after analysing the Judgment of the Hon’ble supreme court in this case.
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 ➢ Whether Nevada court had Jurisdiction to Pass this decree of Divorce.
➢ Whether Nevada court was misled by the Respondent (Teja Singh).
➢ Whether the decree of divorce passed by the Nevada court in the U.S.A entitled to
recognition in India.
The Hon’ble Supreme court of India tried to answer these questions in their findings and
observations and while answering these questions they thoroughly analyse the Judgment
of the Nevada court i.e the facts produced before that court and the conclusions of law
drawn by that court.

THE DISPUTED FOREIGN JUDGMENT IN SATYA VSTEJA CASE.

The Judgment of the Nevada court consists of four parts –
1. The Preliminary recitals
2. Findings of facts
3. Conclusions of law
4. The operative portion, the decree of Divorce.

1. The Preliminary recitals:

After going through the Judgment of Nevada court, it appears that Teja appeared
personally before that court through his attorney and the opposite party Satya failed to
appear in that court even after duly and regularly served with process by publication
and mailing .And in this way the trial proceeded ex-parte and the evidence was
submitted by the petitioner for the final decision of the case.

2. Findings of facts:
The Nevada court after thoroughly analysing the facts and circumstances of the case
came with some major findings as per the evidence produced before them-"That for
more than six weeks preceding the commencement of this action, the plaintiff was, and
now is, a bonafide resident of and domiciled in the County of Washoe, State of Nevada
with the intent to make the State of Nevada his home for an indefinite period of time,

55These Issues are not the actual issues framed by the Supreme court .Here the Issues have been framed by the author based on
the Judgment of the Court.
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 and that he has been actually, physically and corporeally present in said county and
State for more than six weeks.” The court also finds that 7.50 Dollars per month for
each of the two minor children was a reasonable sum for plaintiff to pay to defendant
as and for the support, care, maintenance and education of the said minor children. The
court also accepted the fact and contention of the petitioner: "That the plaintiff and
defendant have lived separate and apart for more than three consecutive years without
cohabitation, and that there is no possibility of a reconciliation between them."56

3. Conclusions of law:
The court finally concluded that as per their own law, they have the Jurisdiction over
the plaintiff and over this Subject matter and they are competent to adjudicate the
matter .The court also become satisfied over the question ‘whether plaintiff is entitled
to the relief he has prayed for’, in affirmative and declared that relief is to be granted to
the plaintiff and he is entitled for it

4. Operative Portion, Decree of Divorce:

The operative portion of the Judgment, "Decree of Divorce" says by its first paragraph
"That plaintiff, Teja Singh, be and he hereby is, given and granted a final and absolute
divorce from defendant, Satya Singh on the ground of their having lived separate and
apart for more than three consecutive years without cohabitation there being no
possibility of reconciliation between them.......”. After granting divorce decree the
court also made provisions for the payment of maintenance to the minor children.

So, the analysis of the Judgment of Nevada court shows that the Nevada court as per its
own laws made the findings and reach to a conclusion. Here it cannot be argued that the
Nevada court made the mistake while adjudicating the case .Whatever facts and evidence
was produced before them they analyse it’s veracity in the eyes of their own laws i.e
Judgment was made as per the laws of State of Nevada57.
The only thing that needs to be examined is whether such Judgment will have recognition
in a country like India, where marriage has a social significance .How will the principles
56Several expressions and Paras are the exact replication of the expression used by the Nevada Court of U.S.A.
57After analysing the Judgment of the Nevada Court,the Indian Supreme court came with a conclusion that this Judgment cannot
be called as erroneous based on fact or law of that country.Therefore the court only consider the trickery behaviour of Teja singh
and the application of that Judgment in India.
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of Indian Private International law deal such types of cases in order to bring Justice to the
Parties and create peace and harmony in the family and society as per Indian Moral
standards, was a difficult task before the Hon’ble Supreme court of India.

FINDINGS AND OBSERVATIONS OF THE HON’BLE SUPREME COURT OF

INDIA IN THE CASE

The Hon’ble Supreme court analysed the U.S laws and found that the United States of
America has its own peculiar problems of the conflict of laws arising from the
coexistence of 50 States each with its own autonomous legal system. The domestic
relations of husband and wife constitute a subject reserved to the individual States and
does not belong to the United States under the American Constitution. Article IV, section
-1, of that Constitution requires that "Full Faith and Credit shall be given in each State to
the public Acts, Records, and judicial Proceedings of every other State". The Validity of
a divorce decree passed by a State court is in other States tested at if it were a decree
granted by foreign court. In general, a foreign decree of divorce is recognised in any
other jurisdiction either on the ground, in the case of a decree of a sister State, that the
decree is entitled to full faith and credit under Article IV, Section 1, or in the case of a
decree of a foreign court and in some instances a decree of a State court, on, the ground
of 'comity'. The phrase "comity of nations" which owes its origin to the theory of a Dutch
jurist, John Voet, has, however, been widely criticised as "granting to the ear, when it
proceeds from a court of justice". Comity, as said by Livermore is a matter for
sovereigns, not for Judges required to decide a case according to the rights of parties. In
determining whether a divorce decree will be recognised in another jurisdiction as a
matter of comity, public policy and good morals may be considered. No country is bound
by comity to give effect in its courts to divorce laws of another country which are
repugnant to its own laws and public policy. Thus, where a "mail-order divorce" granted
by a Mexican court was not based on jurisdictional finding of domicile, the decree was
held to have no extraterritorial effect in New Jersey. American courts generally abhor the
collusive Mexican mail-order divorces and refuse to recognise them. 58 Mail order

58As Per Langner vs Langner,39.N.Y.S.2D 9181.

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divorces are obtained by correspondence by a spouse not domiciled in Mexico. “Latey”,
in his wellknown book on divorce says that "The facilities afforded by the Mexican
courts to grant divorces to all and sundry whatsoever their nationality or domicile have
become even more notorious than those in Reno, Nevada".59 Recognition is denied to
such decrees as a matter of public policy.

The court further relied on some Important Judicial Precedents in this regard.
In Untermann v. Untermann60, a divorce decree obtained by a husband in Mexico, after
one day's residence therein, was held invalid. A foreign decree of divorce is subject to
collateral attack for fraud or for want of jurisdiction either of the, subject matter or of the
parties provided that the attacking party is not estopped from doing so61. A foreign decree
of divorce, obtained by fraud is void. Fraudulent simulation of domicile is impermissible.
A spouse who goes to a State or country other than that of the matrimonial domicile for
the sole purpose of obtaining a divorce perpetrates a found, and the judgment is not
binding on the courts of other States. In regard to the divorce law in force in Nevada it is
only necessary to State that though the plaintiff in a divorce action is required to "reside"
in the State for more than six weeks immediately preceding the petition, the requirement
of residence is construed in the sense of domicile. In Lane v. Lane it was held that under
the Nevada law, intent to make Nevada plaintiff's home is a necessary jurisdictional fact
without which the decreeing court is powerless to act in divorce action. Accordingly, a
husband who did not become a bona fide resident of Nevada, who continued lease of his
New Jersey apartment, who failed to transfer his accounts, who continued his business
activities in New York City, and who departed from Nevada almost immediately after
entry of divorce decree, was held never to have intended to establish a fixed and
permanent residence in Nevada, and, therefore any proof, which he submitted to Nevada
court in his divorce action, and on which such finding by court of bona fide residence was
based was held to constitute a fraud on such court.
A survey of American law in this jurisdiction would be incomplete without reference to
a decision rendered by the American Supreme Court in Williams v. State of North

59 Latey,Thelaw and Practice in divorce and Matrimonial causes,15 th ed.1973,p-461.

60Corpus Juris Secundum,vol.27B,Para-326,p-786-787.
61 De Nova(1964),8 American Journal of Legal History ,citing the American author Livermore,p-136.

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Carolina62 the second Williams case. Mr. Williams and Mrs. Hendrix who were long-
time residents of North Carolina went to Nevada, stayed in an tuto court for transients,
filed suits for divorce against their respective spouses immediately after a six weeks' stay,
married one another as soon as the divorces were obtained and promptly returned to
North Carolina. They were prosecuted for bigamous cohabitation under section 14-183 of
the General Statutes of North Carolina (1943). Their defence to the charge of bigamy was
that at the time of their marriage they were each lawfully divorced from the bond of their
respective first marriages. The question which arose on this defence was whether they
were "lawfully divorced", that is, whether the decrees of divorce passed by the Nevada
court were lawful. Those decrees would not be lawful unless the Nevada court had
jurisdiction to pass them. The jurisdiction of the Nevada court depended on whether Mr.
Williams and Mrs. Hendrix were domiciled in Nevada at the time of the divorce
proceedings. The existence of domicile in Nevada thus became the decisive issue. While
upholding the conviction recorded in North Carolina, Frankfurter J. Speaking for the
majority, said,
I. A Judgment in one State is conclusive upon the merits in every other State, only if
the court of the first State had jurisdiction to render the judgment;
II. A decree of divorce passed in one State can be impeached collaterally in another
State on proof that the court had no jurisdiction even when the record purports to
show that it had jurisdiction;
III. Under the American system of law. judicial power of jurisdiction to grant. a
divorce is founded on domicile; and
IV. Domicile implies a nexus between person and place of such permanence as to
control the creation of legal relations and responsibilities of the utmost
significance.
The learned Judge observed: "We conclude that North Carolina was not required to yield
her State policy because a Nevada court found that petitioners were domiciled in Nevada
when it granted them decrees of divorce. North Carolina was entitled to find, as she did,
that they did not acquire domiciles in Nevada and that the Nevada court was therefore
without power to liberate the petitioners from amenability to the laws of North Carolina
62 Known as Harrison vs Harrison,99 L,ED 704.
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governing domestic relations." Murphy J. in his concurring judgment said: "No justifiable
purpose is served by imparting constitutional sanctity to the efforts of petitioners to
establish a false and fictitious domicile in Nevada.... And Nevada has no interest that we
can respect in issuing divorce, decrees with extraterritorial effect to those who are
domiciled elsewhere and who secure sham domiciles in Nevada solely for divorce
purposes."
Our notions of a genuine divorce and of substantial justice and the distinctive principles
of our public policy must determine the rules of our Private International Law.63
But an awareness of foreign law in a parallel jurisdiction would be a useful guideline in
determining these rules. We are sovereign with our territory but "it is no derogation of
sovereignty to take amount of foreign law" and as said by Cardozo J. "We are not so
provincial as to say that every solution of a problem is wrong because we deal with it
otherwise at home"; and we shall not brush aside foreign judicial processes unless doing
so "would violate some fundamental principle of justice, some prevalent conception of
good morals, some deep rooted tradition of the common weal."
Some unique findings pointed out by the Supreme court:
On August 17, 1964 Teja Singh wrote a letter (Ex. RW 7/1) to his father Gian Singh from
"791 North, 6 East Logan, Utah",, U.S.A. The respondent filed his petition for divorce in
the Nevada court on November 9, 1964 and obtained a decree on December 30, 1964.
Prior to the institution of the divorce proceedings the respondent might have stayed, but
never lived. in Nevada. He made a false representation to the Nevada court that he was a,
bona fide resident of Nevada. Having secured the divorce decree, he left Nevada almost
immediately thereafter rendering it false again that he had "the intent to make the State of
Nevada his home for an indefinite period of time'. The appellant filed the maintenance
petition on January 21, 1965. On November 4, 1965 the respondent applied exemption
from personal appearance in those proceedings mentioning his address as "791 North, 6
East Logan, Utah, 228, 4th, U. S. A.". The letter dated December 13, 1965 from the
Under Secretary, Ministry of External Affairs, Government of India to one Lakhi Singh
Chaudhuri, a Member of the Punjab Vidhan Sabha, shows that by then the respondent

63This Principle was firmly accepted by the Hon’ble Supreme Court of India, and was subsequently much Praised by the nation,
before delivering the final concluding Judgment of the case.
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had taken a job as Research Officer in the Department of Forestry, Alberta, Canada. The
trial court decided the maintenance proceeding against the respondent on December 17,
1966. Early in 1967, the respondent filed a revision application in the Sessions Court,
Jullundur mentioning his then address as "Deptt. of Forestry, Public Building, Calgary,
Alberta (Canada)". The revision was dismissed on June 15, 1968. The respondent filed a
further revision application in the High Court of Punjab & Haryana and gave the same
Canada address. Thus, from 1960 to 1964 the respondent was living in Utah and since
1965 he has been in Canada. It requires no great persuasion to hold that the respondent
went to Nevada as a bird-of-passage, resorted to the court there solely to found
jurisdiction and procured a decree of divorce on a misrepresentation that he was
domiciled in Nevada. True, that the concept of domicile is not uniform throughout the
world and just as long residence does not by itself establish domicile brief residence may
not negative it. But residence for a particular purpose fails to answer the qualitative test
for, the purpose being accomplished the residence would cease. The residence must
answer "a qualitative as well as a quantitative test", that is, the two elements of factum et
animus must concur. The respondent went to Nevada forum-hunting, found a convenient
jurisdiction which would easily purvey a divorce to him and left it even before the, ink on
his domiciliary assertion was dry.64
Thus, the decree of the Nevada court lacks jurisdiction. It can receive no recognition in
our courts.
CONCLUSION
The Hon’ble Supreme court of India accepted that due to difference in laws in different
countries the same couple was treated as divorced in Nevada .U.S.A,but considered as
lawfully married in India.Such a Phenomena will lead to several difficulties for the
couple therefore there is an urgent need to bring uniformity in the Private International
law.
These rules of private international law are made for men and women-not the other way
round-and a nice tidy logical perfection can never be achieved. Our legislature ought to
find a solution to such schizoid situations as the British Parliament has, to a large extent,
done by passing the "Recognition of Divorces and Legal Separations Act, 1971".
64Concluding Paras from the Judgment of Satya vs Teja Singh case 1975 AIR 105.
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Perhaps, the International Hague Convention of 1970 which contains a comprehensive
scheme for relieving the confusion caused by differing systems of conflict of laws may
serve as a model65. But any such law, shall have to provide for the non-recognition of
foreign decrees procured by fraud bearing on jurisdictional facts as also for the non
recognition of decrees, the recognition of which would be contrary to our public policy.
Until then the courts shall have to exercise a residual discretion to avoid flagrant injustice
for, no rule of private inter- national law could compel a wife to submit to a decree
procured by the husband by trickery. Such decrees offend against our notions of
substantial justice.
BIBLIOGRAPHY

Primary Source
Satya vs Teja case AIR 1975 SC 105

Secondary sources
1- Peter North, Cheshire and North’s Private International law,Lexis Nexis
Butterworths edn-1999
2- Suchitra Manjunath,Private International law, Academike(Articles on Private
International law)
3- Latey,The law and Practice in divorce and Matrimonial causes,15 th ed.1973
4- De Nova(1964),8 American Journal of Legal History ,
5- Paras Diwan and Piyushi Diwan,Private International law Indian and English,edn-
1998.
6- Setalvad,Conflict of law,Revised byJustice GB Patnaik,yasobant Das,Rita
Das,edn-2014.

65This Part of the Judgment may be considered as obiter dicta of the Judgment that is still under consideration in the Present time.
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 HUMAN RIGHTS IN RELATION TO LESBIAN, GAY, BISEXUAL AND
TRANSGENDER GROUPS OF INDIA

-Avni Kritika
ABSTRACT:-

LGBT people have the similar human rights as all individuals, which comprises of the
right to non-discrimination in the enjoyment of these rights. These principles of human
rights have been enshrined in numerous international instruments, providing for a wide
scope in its application. But the situation is not so as they are mostly deprived of their
human rights even if they have these rights granted to them. Across the world, lesbian,
gay, bisexual, and transgender people (LGBT) continue to face rampant violence, legal
discrimination, and other human rights violations on account of their sexual orientation
or gender identity.

Across the globe it is matter of concern that no less than seventy-six nation state (home
to 44% of the world’s population) still continue to criminalize same-sex relations. Six
countries (Mauritania, Sudan, Iran, Saudi Arabia, Yemen, and Iraq) have implemented
the death penalty for same-sex relations, as do some provinces in Nigeria and Somalia.
When coming to the context of India, Indian Apex Court took the initiative in recognizing
transgender people as a legal third gender and thus granting transgender Indians status
as an official minority requiring protection from discrimination.

The researcher, hence, is trying to unveil the human rights that are prevailing for LGBT
community in India and the cases where the violations of these rights have prevailed and
the situation of these communities in India with a complete doctrinal method.

Page | 44
INTRODUCTION:-
The human rights of the LGBT persons are often overlooked, if not deprived, by the
world community at large. The LGBT rights comprises of a complete set of rights but the
implementation of those rights is totally determined by according to which jurisdiction of
state the LGBT person is subjected to. This paper is exploring about the human rights of
LGBT individuals in the direction of the principle of universality of human rights. The
fundamental attention is on non-discrimination, specifically regarding the right to marry
and family rights for LGBT persons.

Lesbian, gay, bisexual and transgender (LGBT) individuals are a significant group in our
social order. If not identifying ourselves in this group it is likely that someone among our
children, parents, friends or colleagues are persons whom secretly or openly identify
themselves as homosexual, bisexual, or transgender. Yet there are still several states
where homosexuality is illegal and states where death penalty is imposed for same sex
66
partners engaging in sodomy. The legal advancement and understanding of LGBT
rights is something that affects us all no matter our own sexual orientation or gender
identity. LGBT is a vulnerable group carrying a risk of being exposed to discrimination
and physical violence. Additionally, LGBT individuals are all over the world being
deprived of their human rights and not only by states considered as conservative regimes
by the human rights society, but also by modern democracies. Such an example is the
rights to marry, a human right which in many states is not accessible for LGBT
individuals.

Through the human rights history we have seen how vulnerable groups have received
special protection through treaty law, which has resulted in conventions such as the
Convention on the Elimination of All Forms of Discrimination against Women and the
Convention on the Rights of Persons with Disabilities. It is still a fact that there is no
treaty law regarding the protection of LGBT rights does not impose the member states to
grant access to marriage for same sex couples. Where is the universality when it comes to
human rights for LGBT individuals? LGBT stands for lesbian, gay, bisexual, transgender.

66
“Discrimination and violence against individuals based on their sexual orientation and gender identity” Report of
the Office of the United Nations High Commissioner for Human Rights,2015, p 13

Page | 45
Gay is a person who is fascinated primarily to members of the same sex, a person who is
homosexual. The term lesbian is specifically for women who are attracted to women.
Transgender is a term regularly used for people who do not identify themselves with their
assigned gender at birth or the binary gender system. A group commonly included under
the term transgendered are transsexual individuals. A transsexual is a person who have,
(or often wish to) correct his/her gender discrepancy through gender reassignment
(medical surgery) meaning that the transsexual is medically corrected to his/her real
gender identity.67
The perseverance of this research paper is to demonstrate that all human rights should
apply to LGBT individuals to the same degree as for heterosexual individuals, identifying
the precise nature of human rights jurisprudence and its universality. Moreover, the aim
is to investigate whether there is a need for a obligatory human rights treaty concerning
LGBT human rights.

The fact that LGBT human rights are a comparatively new issue within the legal
discussion which complicates the access to the relevant material within the scope of legal
doctrine. Consequently some of the sources used in this research paper are related more
to the philosophical or political science area than only legal doctrine. This investigation
about the legal situation for LGBT individuals will include legal aspects of LGBT legal
issues as it is today, de lege lata, as well as a scenario of how it should be de lege
ferenda. The relevant international legal instruments of human rights, starting from the
Universal Declaration of Human Rights in 1948 and the different legal instruments since
then to the date will be analysed in view of the equality before the law and equal
protection of law concerning LGBT individuals.

PHILOSOPHY AND THE SORCES OF HUMAN RIGHTS FOR L.G.B.T:-

The human rights of our time are often described as universal and equal for all
individuals. Human rights are seen as inalienable rights which all humans have inherited
by their birth. The universality idea shines through all the human rights treaties of today

67 LGBTQIA Resource Center Glossary, available at http://lgbtqia.ucdavis.edu/educated/glossary.html

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and has its background long back in history.68Conceptions of today’s human rights could
be drawn back to thousands of years ago emerging from ancient civilisations. The Magna
Carta is considered to be one of the primogenital and most significant findings proving
the existence of early philosophies about the freedom of man. Far later in olden times the
enlightenment philosophers started to speak up about human rights. John Locke spoke of
natural rights in words of equality of men and their natural liberty. The US Declaration of
Independence was the first constitutional document which in 1776 presented the idea of
universality in the words of
“We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights; that among these are Life,
Liberty and the Pursuit of Happiness.”69

To guarantee the human rights of all individuals and never let a conflict like the Second
World War happen again, the Universal Declaration of Human Rights (UDHR) was
drafted in1948. UDHR expresses the concept of universality in its preamble in words of

“…in recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the
world, Recognizing that these rights derive from the inherent dignity of the human
person…”70

The UDHR is not at agreement and does not enforce legal obligations on the member
states. However, the UDHR was complemented with two binding treaties which did not
come into force until 1976. The binding treaties are the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural rights (ICESCR). The UDHR together with the covenants are known as the
International Bill of Human Rights.

Even though international human rights treaties describe universality as inalienable and
equal for all human beings the legal effect of universalism is not universal.When states

68Moeckli, Shah & Sivakumaran, 2014, International Human Rights Law, 2nd edition, 2014, Oxford, Oxford University
Press, pp 15-23
69The US Declaration of Independence, 1776, second sentence
70The UDHR, preamble

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are countersigning human rightsas a political conception of justice the legal effect of
universalism is sensitive to political changes in a sovereign state. The sovereignty and
autonomy of a state creates a fundamental of relativity regarding whether or not
universality of human rights will have a legal effect to the state's citizens. For that reason
the legal universalism can be seen as comparative and conditional, due to the conflict
between self-determination and the respect of human rights. To intercede against human
rights violation can result in violent clashes between states, and subsequently there is a
declining risk of conflict between states if there is a non-intervention in other states
human rights violations. The self-determination and autonomy of each state can be seen
as a high moral principle of the society of states which leads us to values of conjoint
respect regarding equality and sovereignty of each state. Intercession in human rights
breaches is a political difficult balance between respect for each state's sovereignty and
the protection of universal human rights.

The human rights of today can also be seen as progressive rights with double
legitimization. First, there is the philosophical theory of natural rights of a human, the
core of the universality of human rights. Then, there is the technical right which require
democratic acknowledgment and where the sovereignty of a state is unveiled, meaning
that the universality is constrained through society’s recognition. If the double
legitimization is overlooked there is a risk for “value imperialism” when relating to other
communities with their ambiguous view of the best understanding of human rights. Also,
some argue that abstract universalism in the sense of absolute human rights must be
avoided in order to respect cultural diversity. One the other hand, political actions should
not be legitimate if violating human rights.71

The theoretical or the philosophical view on universality is often pure and unconditional
universalism of human rights, resulting in complete equality between humans. Human
rights are attained by the fact that one is a human. There is no other prerequisite than
being born as a human for obtaining human rights. One is or is not a human equals to

71 Maksymov, S, “The Universality of Human Right”, Law of Ukraine: Legal Journal, vol.2013, Issue 4, 2013, (114-120) pg.

118-120
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one has or has not human rights. The equality of all human beings should reflect in all
individuals’ right to protection against discrimination.72

Natural rights theorists have often spoken of two definite core universal human rights,
equality and freedom. The necessary sense of equality is that humans are equal since they
have the same universal rights, which insist on equal treatment and respect. Freedom
equals to the liberty of acting on our own choices. On the other hand, absolute freedom is
not well-matched with the protection of everyone’s equal rights. Insignificant restrictions
must exist in order to protect the rights of everyone.

On the subject of LGBT individuals they must be seen as equal to any other human being
considering the declaration that human rights are universal. During the times that are
gone by, LGBT individuals have often been laid open to non-sanctioned discrimination
and violence. This performance can be seen as a prevailing social group targeting a group
which they consider “less human”. This behaviour from a governing group is not
exclusive for LGBT discrimination. We can easily distinguish the same type of
discrimination of other vulnerable groups, for example groups subjected to racism and
women subjected to gender discrimination.73

The perception against homosexual individuals is very often written off as by the view
that homosexuality is abnormal or against nature and consequently considered immoral.
The same condescending arguments are often heard regarding transgenderism. There are
multiple advanced studies and evidences claiming that homosexuality and
transgenderisms are very old types of human orientations. On the other hand, that
evidence is not necessary when it comes to the enjoyment of human rights, since there is
no hierarchy between humans. The enjoyment of human right is not dependent on the
behavior of the human, significance that even if homosexuality is well-thought-out as
immoral a homosexual person has exactly the same human rights as a person considered
living a moral life. For that reason, discrimination of individuals human rights based on

72 Donnelly,Jack “Non-Discrimination and Sexual Orientation: Making a Place for Sexual Minorities in the Global Human
Rights Regime”, Reprinted publication in Hayden “The Philosophy of Human Rights”, pg 548-550.
73Donnelly, Jack, Supra “Non-Discrimination and Sexual Orientation: Making a Place for Sexual Minorities in the Global

Human Rights Regime” pg.553-558.

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their sexual orientation or gender identity results in those individuals being seen as “less
human” by the rest of the society.

SOURCES OF HUMAN RIGHTS RELATED TO L.G.B.T:-

The derivation of human rights lays in the perception of natural law doctrine. The
philosophy of natural law is the existence of immutable laws of nature. These laws are a
higher creation of laws often seen as a divine law establishing norms of the right moral
conduct. Since the human is a cognitive creature the human have the ability to
differentiate right from wrong and consequently understand the nature law of morality.

During the history the characterization of human rights has varied. For the up-to-date
humans of today, the UDHR is serving as significant for those rights us talking about to
as human rights. The UDHR has, according to many, become international customary
law. The sources of today’s international have a clear embodiment of positivism. This is
clearly seen in the Statue of the International Court of Justice, Article 38, in which the
sources of international law are listed. The Statue declares the primary source of
international law to be international conventions recognized by contracting states. The
second source is listed as international customs in the meaning of general practice
accepted as law. Thirdly, general principles of law are listed. The last listed source is case
law and highly qualified publications of international doctrine.
An essential part of international law is jus cogens, a peremptory norm which is so
fundamental that it interferes with states sovereignty. Hence, states cannot choose to
accept these norms, but have to follow them. There is no explicit list of jus cogens actions
but an example of prohibited actions under jus cogens is the prohibition of genocide,
apartheid and torture. Jus cogens is generally considered to have its roots in natural law,
rising from moral principles such as “the common good for humanity”
INDIA’S APPROACH TOWARDS HOMOSEXUALITY:-
Historically, it has been proved that homosexual ‘erotic’ acts occur in all culture and in
all societies in all periods. In India, there exists sufficient documentary archaeological
and anthropological evidences to suggest that same sex ties especially among men, were
not only culturally, but dignified and revered by attributing similar traits to religious

Page | 50
deities. The homoerotic craving among the erotic cravings on the Hindu temples of
Khajuraho (Madhya Pradesh) and Konark Temple (Orissa) and on the great Buddhist
monument at Borabordur in Indonesia is well known.74 There are three general kinds of
same-sex relationships;
• Age Stratified (Greece, Melanesia),
• Gendered (where one partner is an effeminate or cross-dressing male, or a
masculine ‘tom’ woman), and
• Egalitarian (the modern western same-sex relationship).
The Kama Sutra has a chapter on same sex love. The apparent acceptance of boy lovers
in Mogul and lesbianism in the confines of harems are well known facts of state approval
and recognition of homosexuality.
After the Supreme Court decision last year in Navtej Johar v. Union of India75, which
over-turned the judgment of Suresh Kumar Koushal and another v NAZ Foundation76 and
de-criminalized the consensual gay sex, India’s approach has changed towards
homosexuality.

➢ Some of the arguments made in favor of de-criminalization of homosexuality.

Homosexuality offends Article 21 of the Constitution of India. The Expression ‘personal
liberty’ ought not to be read in a narrow and restricted sense so as to exclude those
attributes of personal liberty which are specifically dealt with in Article 19.77
According to Krishna Iyer J.
“The spirit of man is at root of Article 21.”... “Personal liberty makes for the worth of the
human person”
The expression “personal liberty” in Article 21 is of the widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of man and some of them
have been raised to the status of distinct Fundamental Rights and given additional
protection under Article 19. 78

74 Douglas Saunders, ‘A new Imperialism, Is the west forcing lesbian and gay rights on Asia’, University of British Columbia
75 2018
76 2013
77 Maneka Gandhi v. Union of India (1978) 1 SCC 248
78
State of West Bengal v. Ashok Dey (1972) 1 SCC 199, Haradhan Saha v. State of West Bengal (1975) 3 SCC 198, John of
West Bengal (1975) 3 SCC 836, Maneka Gandhi v. Union of India (1978) 1 SCC 248
Page | 51
That no person can be deprived of his right except according to procedure established by
law. Thus, the procedure under Article 21 must be right, just and fair and not arbitrary,
fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of
79
Article 21 would not be satisfied. Thus, the procedural work of legislature in
criminalizing homosexuality is discriminatory and arbitrary in nature. Such procedure
violates Article 21 of the Constitution of India and therefore the Hon’ble Court has
declared such law as unconstitutional.
Section 377 also violates Article 15 by discriminating on the ground of sexual orientation
as although facially neutral it treats homosexual men unequally compared to
heterosexuals and imposes an unequal compared to heterosexuals and imposes an
unequal burden on them. The grounds purport of Article 15 is to prohibit discrimination
on the grounds enumerated therein. Article 15 (3) uses the expression “women” the word
sex in Article 15 (1) must partake the same character. That Article 15 (3) shall not be
construed a narrow meaning to limit its understanding of article 15 (1) and reduce it to a
binary norms of man and woman only. Article 15 (2) shall be applied to transgender
persons who identify as a third gender. To this effect the government of India has also
introduced an option for “other” in the sex column of the passport application form. This
can be achieved only if the expression “sex” is read to be broader than the binary norms
of biological sex as man or woman, and include LGBT within its limit. The Constitution
is living document and the Court can breathe content into rights. The underlying purpose
against sex discrimination is to prevent differential treatment for the reasons of non-
conformity with the normal or natural sexual or gender roles. Sex relations are intricately
tied to gender stereotypes. Accordingly, discrimination on the ground of sex necessarily
includes discrimination on the basis of sexual orientation is directed against an immutable
and core characteristic of human personality. Even International Law recognizes sexual
orientation as being included in ground “sex”. The determination of impact of legislation
must be taken in a contextual manner taking into account the content, purpose,
characteristic and circumstances of the law. Section 377 does not take into account the
differences in individuals in terms of their sexual orientation and makes sexual practices
relevant to and associated with a class of homosexual persons criminal. It criminalizes
79 Francis Coralie v. Union territory of Delhi, (1981) 1 SCC 608
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acts which are normal sexual expression for homosexual men because they can indulge in
penetrative acts which are penile non vaginal. Distinction based on a prohibited ground
cannot be allowed regardless of how laudable the object it. If a law operates to
discriminate against some person only on the basis of prohibited ground, it has been
struck down.80
➢ Our Case Study, covering Lucknow:-
During our research, we encountered this Awadh group of Lucknow, which has been
working for the community since last 5 years, not only did we met the people of the
group personally, but we also tried to interact with them in their various held functions to
know better about them. Two of the major events which we covered were the Awadh
Pride Parade and the after-parade party, the details of which we would be covering in our
paper.
The Awadh Pride Parade is an annual event which usually happens in the month of
February in Lucknow and at various different months in different cities throughout our
country and worldwide. The basic concept followed in these parades are that the people
belonging to the LGBT community come and celebrate their presence in each other lives
and encourage the world to accept them the way they are. The parade is usually covered
by a lot of people from non-LGBT background also, who come out to support them and
show that they are with them in this moment of solitude.
This year, the parade was conducted at a larger level as not only it was the celebration of
love, but also, it was the first parade after the Supreme Court verdict of decriminalizing
consensual gay sex. The parade witnessed the crowd of people from all over our country,
India, who had gathered there to visit, celebrate and show their support towards each
other. The parade covered the area from Dainik Jagran Chauraha to G.P.O. Road at
Hazratganj.
The parade witnessed the regular and continuous dialogues from the people of the
community who shouted and told the world proudly of their sexuality and urged them to
accept them. The dialogues such as “Hey, Ha, Hey, Ho. Homophobia has to go”, “I am
Gay and that’s okay” etc. we’re being said to express anger, grief and a sight of plight

80 State
of Bombay v. Bombay Education Society, (1955) SCR 568, M Nagaraj v. Union of India, Anuj Garg v. Hotel
Association of India, Toonen v. Australia, Egan v. Canada, Vriend v. Alberta, Punjab Province v. Daulat Singh AIR 1946 PC 66,
Page | 53
from them. The pride parade witnessed the crowd of both the genders, i.e. males and
females, but males were more in number than females. People belonging to the gay
community were more out in the open than those belonging from lesbian community.
There were even faces in the crowd who kept their faces hidden behind the masks,
fearing non-acceptance from the society and avoiding being captured by the shutterbugs
as there was a whole lot of media keeping a check throughout the event.
The after-parade party was conducted at a lounge which again was enjoyed by both, the
people of the community and otherwise.
This Awadh group of LGBT people is being headed by Yadvendra sir, who has been
working towards making the community a bigger and known face in the city of Nawabs
Lucknow. He is helped by Jeramayah Jacob, Sayed Raza, Megha Nandi, Seraj Ali,
Tanzeel Ahmad and a lot more others belonging to the hardworking youth of the
city. Few of the commonly known PRO-LGBT activists, people who are not from
the community are Sadaf Jafar, Surbhi Mamta Karwa, Bhartendu Kashyap,
Deepak Kabir etc.

➢ Few words from the person inside the community:-

An experience from the one of the members from the community who shall be
anonymous because of his choice of remaining so.

Hi

I am Gay.

I am searching for my happiness and the acceptance by the people like you.

I was part of the crowd of the recently conducted parade held at Lucknow.

I was one among the many who cried the words “Hey, Ha, Hey, Ho. Homophobia has to
go”

And yes, despite of all of this, it still has no change.

Still, people look at me with weird expressions.

Like recently, when one of my friend, asked me to stay over at his place, he specifically
asked me, “How do you want me to introduce you to people? A gay or a straight
person?”
Page | 54
I mean why? Why would you want to tell people about my sexuality? About my
preference?

Cannot you just introduce me as by my name? by means of humanity?

Well, may be, he didn’t had a bad intention, he just said it like that.

But so is mine.

I am gay, and I guess that’s okay.

I don’t have a bad intention.

Then why the gossip and why the stare? A little bit here and somewhat there?

In one of the recently conducted surveys, the chances of a homosexual man cheating on
his partner are way lesser than that of the heterosexual man.

No, I don’t intend to say that being a homosexual is better or worse. I am just saying it is
as normal as it is. No, I don’t want even you to convert into one. You have the right to
stay straight if you are one.

I see, boys kissing boys all the time. The people from my community.

Hell, in fact, I am also in a relationship with a boy, but you have made it difficult for me
to be with him.

You call him names, and you look at him with disgrace. I don’t want to lose him like we
lost 3 of our friends last year.

Yes, 3 of our friends committed suicide last year cause of the bullying you forced them
into.

I don’t want to lose another one and that one should definitely not be, allow me to say it,
my boyfriend, and my love. Yes, the one man to whom I make love and he makes to me.

See, enough with the melodrama.

The essence is that we are as normal as you are.

200 years ago, women were fighting for equal rights and the so-called normal people of
society were making fun of it, that how can women be treated as equal?

Today, women enjoy somewhat of an equal status to that of men.

We will get our equality one way or another. May be not today, tomorrow. But one day
we will.

Page | 55
Our Gurujis, the people who have guided us and helped us all in coming together have
told us all about the tough time which they faced, back in the 1980s and 1990s.

When being a gay was directly compared to being a chakka, not implying that being a
chakka is bad, but just to make you realize that two are really different things.

We as a community are widespread with different classes of people.

LGBTQ. Lesbians. Gay. Bi-sexuals. Transgender. Queer.

We want as equal rights as you can help us with.

Please do not discriminate when you look at us.

CONCLUSION:-
There is no uncertainty that the human rights covenants of today carry the words of
equality, incapability and universalism and it is clear that human rights have the distinct
prominence such as universal in international law. When it approaches to human rights,
universality is supposed to mean equality and inclusion of all. The human rights
instruments and treaties of today describe universalism in that kind of wording. Hence,
the roots of the universality idea are traced back to ancient history but have little to do
with how many of us see universality today. Also, there is no need to go hundreds of
years back in history to see a lack of equality regarding the application of universality to
all human beings.

So what are the significances if we reject LGBT individuals the enjoyment of all human
rights? As presented, one conclusion is that these individuals are then seen as fewer
humans since the society does not let them access the same rights as heterosexuals. The
query one has to think about is that if a human is considered less human does she then
have the same value as the rest of human beings? And does she have the same access to
justice and legal protection from the society? Further, what kind of treatment from full
valued humans can a less human individual expect? A transgender person is still a human
no matter how that person identifies her own gender and no matter how that individual
expresses her gender identity. Discrimination of transgender individuals must therefore
also results in a view on the individual as less human than a person with a gender identity
which is not in conflict with the birth sex.

Page | 56
It is clear that the international law generally is in accordance with positive law; hence,
human rights still have their origin in natural law. However, we have chosen to interpret
our human rights with the legal theory of positivism and we have a great respect of other
states sovereignty. We have to recall that not all states in the world are parties to the
ICCPR. That leaves the citizens of the non-contracting states to only be subjected to
protection from Jus cogens actions. Jus cogens itself has an obvious connection to
natural law which takes us back to the complicated phenomena of natural law being
interpreted by positivism.

Being a gay … is a choice or indecisiveness? After exploring the inside and outside
world of being s homosexual, we don’t think so that there is anything left for us to tell
you the answer to this. A person born this way will behave this way and will live his life
this way. The only thing we can do is to support them and understand the pressure they
have in their head. The Indian legal system has done so when are we as a society going to
do so? How about now? If we may all pledge that we would be doing anything and
everything in our hand to help the people from the community. That though may seem
little but go a big way as an intention and as a gesture towards the society.

A Right to a Healthy Environment: Constitutional Provisions and Environmental

Jurisprudence
Raghav Dhanda81
Abstract
Environmental Jurisprudence has achieved a lot in India due to the efforts of the Courts
as well as due to the concerted efforts of various individual citizens to enforce
fundamental rights in the direction of environment protection and development. Apart
from the changes in the Constitution, a vast number of enactments have also contributed

81Advocate, High Court of Delhi

Page | 57
towards creating a clean and healthy environment. This paper analyses the history and
evolution of environmental jurisprudence and the importance of the constitutional
provisions in the development and furtherance of the object of environmental
jurisprudence. The implications of the Bhopal Gas Tragedy were far reaching which
alerted the Government as well as the public authorities towards the risks attached with
rapid industrialization. The need of today is effective governance which is free from
corruption and unnecessary complications which go with it. India achieved a great and far
reaching leap with the insertion of the provision related to environment protection with
the 42nd Amendment. The areas covered under the Directive Principles for environment
protection has been a step forward for the country. The directive principles and
fundamental rights are supplementary and complimentary, in the sense that they go hand
in hand with each other to preserve the environment. The fundamental rights as enshrined
in the Constitution for protection of the environment are to serve the generations which
are to come after us as well. This paper seeks to bring forth the major role the Courts
have had to play in protecting the environment by invoking necessary provisions of
legislative enactments, especially when the need of the hour demanded the protection of
our environment.
Introduction
The environment with all of its resources is not something we have inherited from the
generation preceding us but what we have borrowed from the generations to come after
us.82Even in Ancient India, there was great significance of forests, trees and biological
diversity.83 The Vedas place the environment as the essence of the Vedic Culture and
regard it with great value which is to be protected and safeguarded. There is emphasis
laid on the development of the environment by the Vedas.84 Kautilya’s Arthshastra also
provided a detailed perspective on the preservation of the environment which is evidence
of the significance of the environment even in that era.

82 Evolutionof the Law Relating to Environmental Protection and Conservation of Natural Resources in India, available
atshodhganga.inlibnet.ac.in/bitstream/10603/145973/12/m.chapter-
v%20evolution%20of%20the%20law%20relating%20to%20environemental%20p.pdf
83 Dr. Renu Talwar, ‘Environment Conservation in Ancient India’, available atwww.iosrjournals.org/iosr-

jhss/papers/Vol.%2012%Issue 9/Version-11/A2109110104.pdf
84 ibid

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In the past few decades, the country has in response to the increasing number of
ecological emergencies, responded with a legal regime in attempting to improve the
status of environment protection. India’s Constitution, which is the highest expression of
people values added in its 42nd Amendment, the obligation of the State to preserve as well
as improve upon the existing environment and to provide safeguards for the forest and
wildlife.85 The insertion of Article 48-A in the Constitution meant that the people in the
country were becoming more aware of the importance of the preservation of the
environment. But even though the constitution has provided for the protection of the
environment by the state, it has done so in an unenforceable section of the Constitution.
Article 37 expressly makes Part IV of the Constitution unenforceable and not capable of
being acted upon by taking recourse to Courts.86 This makes for a unique situation where
even though the Constitution is providing commanding obligations upon the State, these
are not enforceable in the Courts.87

That said, the environmental jurisprudence which has evolved in our country to protect
and improve the environment has not been short of praise. The environmental
jurisprudence includes in its ambit all the provisions of the Constitution which are in
consonance with the objective of Environmental Protection. Parliament through the 42 nd
Amendment added certain provisions which aided the Court to further the object of
protecting and improving the natural environment. It also added fundamental duties
which mention as one of the duties of the citizen to endeavour to conserve and take steps
for the betterment of the environment.88

Environmental Jurisprudence embraces all the aspects of the Constitution which are
relevant to environmental development. The higher judiciary in a number of cases
recognized the right to live in a healthy environment as an essential fundamental right.
The right conferred to reside in a clean environment has not been recognized until
recently, even though it has been there for over a century or so with it being mentioned in
85 The Constitution (Forty-Second Amendment) Act, 1976, available atlegislative.gov.in/constitution-forty-second-amendment-
act-1976
86 Kyle Burns, Constitutions & the Environment: Comparative Approaches to Environmental Protection and the Struggle to

Translate Rights into Enforcement, available atharvardelr.com/2016/11/14/consitutions-the-environemtn-comparitive-

approaches-to-pretection-and-the-struggle-to-translate-rights-into-enforcement/
87 ibid
88 The Constitution (Forty Second-Amendment Act) 1976, available atlegislative.gov.in/constitution-forty-second-amendment-

act-1976
Page | 59
 89
several judicial pronouncements. The Stockholm Declaration articulated the need for
the right to live in a healthy environment in the first principle itself.90 The right to a clean
and healthy environment means that everybody has a right to pollution-free air, clean
water, healthy soil which goes hand in hand with preservation of biodiversity and
ecological components.91 In order to achieve this, the ambit of certain fundamental rights
such as Article 21 has been increased to include within its scope the right to stay in a
healthy environment. The right to a clean environment has to be included in substantive
law to make it more likely to be implemented. There is a need for procedural safeguards
as well to ensure that the contraventions of this right can be addressed and remedied.

The ecologic hardships are not exclusive to India but are a problem worldwide. As
society becomes more aware of the Environmental Degradation, there will be more and
more petitions to the Court to take steps to improve the situation. Incidents such as the
Union Carbide Disaster in India have caused chronic diseases, pollution of air and water
as well as the degradation of forest land. The increase in the number of displacements due
to such incidents has made society more aware and thereby caused a wave of petitions in
the court pursuant to such incidents.92

Constitutional Provisions

The Preamble which reflects the intention of the makers of the Constitution states that
there should be justice granted to the ‘nation’ which is the country as well the people. A
right to sustainable development which is complementary to the right to a healthy
environment is also being accepted as a basic human right which is essential to the right
to life.93 It is worthy to be mentioned that India’s Supreme Court was one of the earliest
Courts in the world which recognized the right to a clean environment as being a
fragment of the right to life as provided under Part III of the Constitution94

89 ‘Rightto clean and healthy environment’ as a Fundamental Right in India, available atwww.ecopress.in/environment /right-
clean-healthy-environment-fundamental-right-india
90 Declaration of the United Nations Conference on the Human Development, available atlegal.un.org/avl/ha/dunce.html
91 David. R. Boyd, The Right to a Healthy Environment Revitalizing Canadas Constitution, 2012
92 Emmanuel Opoku Awuku, The right to a clean environment: Lessons from India and Tanzania, available at

https://www.jstor.org/stable/43110697?seq=1#page_scan_tab_contents
93 AIR 1999 SC 812
94 1984(3) SCC 161

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Even before the 42nd amendment was brought into force, there were provisions which
protected the environment and wildlife. Article 48 provided for the endeavour of the State
to prohibit the slaughter of cows and calves and take the protective steps with regard to
animal husbandry and agriculture when the Constitution was made. This is pointing to the
fact that even though there was no mention of the environment in written terms, the
framers of the Constitution still had in mind the necessity for the protection of our natural
resources.95

There are several Constitutional provisions which aid the legal system to further the
motive of environmental protection. For instance, it is implied under the provisions of
Article 19(1)(g) of the Indian Constitution, which gives a fundamental right to citizens to
practice any profession or to carry on any occupation, trade or business, that the right
granted under the respective Article is subject to certain restrictions. These restrictions
include the prevention to carry on any business activity which would be hazardous to the
society. It can therefore be noted that environment safeguards are implicit in this
provision.96

Article 19(1)(g) is to be viewed in the perspective of having reasonable restrictions

attached to it. The right given to citizens is thus to be practiced with partial or complete
prohibition in cases which would prove to be detrimental to the environment and these
restrictions are to be imposed by the state. It is important to be noted that the restrictions
imposed must be for the public interest and must not be arbitrary in nature.97

Article 32 of the Constitution does not serve a singular purpose of conferring power on
the apex court to issue directions or orders to enforce the fundamental rights but also
casts an obligation on the Court to preserve and protect the fundamental rights of the
people. After continual observance from the perspective of the lower strata of society not
perceiving fundamental rights as having any meaning to them and their inability to

95 Arnold HT Sangma & R.Dhivya, Constitutional Obligations in the Protection of Environment, available
athttps://acadpubl.eu/hub/2018-120-5/2/195.pdf
96 Pooja P. Vardhan, Environmental Protection under Constitutional Framework of India, available

atpib.nic.in/newsite/PrintRelease.aspx?relid+105411
97 Constitutional Provisions for the Protection of Environment with relevant case laws, available

athttps://www.indianbarassociation.org/wp-content/uploads/2013/02/uploads/2013/02/environmental-law-article.pdf
Page | 61
enforce such rights, the Court began to pass orders suo moto in the general interest of the
public.98

The Supreme Court has even constituted an exclusive bench known as the forest bench
for issuing directions in the matter of the environment. The bench issues directions for
the preservation of the environment ecology.99

Even Article 226 has been construed liberally for persons to take recourse in the case of
the infringement of their rights with respect to the environment. It is always open for any
person to bring forth a petition under Article 226 of the Constitution for the preservation
of free air and upkeep of the environment. Article 21 is now invoked as the right to live
in a hazardous free and well as a pollution free environment and has become inalienable
to the Right to Life under the Constitution. In light of the language framed in Article 253,
Parliament has also been granted a power encompassing a wide area where it can
implement legislation on subjects which have been addressed at the international
conferences.100

Another aspect from the viewpoint of the development of the environment is the role the
media has to play in bringing awareness to the people and mold public opinion. An
important example of this is the Tehri Dam Project where the usage of freedom of speech
and expression as guaranteed under Section 19(g) obliged the Government to conduct
Environmental Impact Assessment in a proper manner and take into account all the
safeguards put in the project and review them more than once.101

Noise pollution is also an area where Article 19(1)(g), right to life and right to freedom of
religion comes into play. Suppose any person in exercising the right to freedom of
religion uses loud speakers. This would be in contravention of the right to life as
guaranteed under Article 21. Noise pollution which was covered under Environmental
law has now become a matter of Constitutional law also. The Indian Constitution does
not anywhere specifically state whether the right to use a loudspeaker has been covered

98 Shreemanshu Kumar Dash, Writ of Continuing Manadamus in matters of PILs: A Step towards Deveopment of Environmental
Jurisprudence, available atwww.iosrjournals.org/iosr-jhss/papers/Vol%2022%20Issue8/Version-9/E2208092635.pdf
99 Ibid
100
THE CONSTITUTION of INDIA, available athttps://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
101 JT 1990(4) SC 519

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under Article 19(1)(a) which guarantees the freedom of expression. This has been the
subject matter of many debates. In Rajni Kant v. State, the Court noted that mechanical
appliances are excluded from the guarantee of freedom of speech and expression but did
not clearly state any cause for holding this stance.102

There should be undertaken a harmonious relationship between the movement for

economic growth which is prosperous to the nation and the efforts towards maintaining
an eco-friendly environment. Even though these directive principles are not enforceable,
they are sought after by the citizens of this country, thereby establishing a strong case in
favour of environment maintenance over industrialisation where such industrialization
has an adverse impact. Article 39 of the Constitution states, though indirectly that the
State shall be careful in doing any activity in the course of functioning of the financial
system which is harmful to the basic society.103

The constitutional directive to improve the condition of the environment in the country is
not alone in undertaking the responsibility of the future of environmental jurisprudence as
there are in existence several other relevant acts which have been passed for this purpose
itself such as the Water Act, the Environment Act and the Air Act.104

The judgments and provisions of our Constitution have come to form what can be called
the bedrock on which the future of environment protection and sustainability depends
upon.105

The states are to apply the principles enshrined in the Directive Principles as well as in
the Fundamental Duties while passing legislation and these principles are also to be kept
in mind in interpreting the ambit of Article 14, 19 and 21.

Environmental Jurisprudence

102 P.S Seema, Noise Pollution - Human Rights and Constitutional Dimensions, available
atdspace.cuat.ac.in/jspui/bitstream/123456789/10825/1/Noise%20-Pollution%20-
%20Human%20Rights%20and%20Constituional%20Dimensions.PDF
103 M/s Ramgopal Estate Pvt. Ltd v Tamil Nadu
104 AIR 1996 SC 2715
105 Praveen Bhargav, The Constitutional Imperatives in the Protection of Wildlife, available at

www.conservationindia.org/resources/the-consitutional-imperatives-in-protection-of-wildlife
Page | 63
There can be no doubt about the fact that the right to a clean environment is one of the
primary ingredients of a right to a healthy life. The higher courts have developed a sort of
environmental jurisprudence by consistently referring to the essential provisions of the
Constitution and providing safeguards wherever industrialization has imposed a threat to
the environment.

The Supreme Court has been taking a pro-active approach in undertaking various
strategies and exercises to ensure the enforcement of fundamental rights and has also
been taking steps for improvement of the environment. The innovative measures taken by
the Court can be observed by noticing the different kinds of orders passed as well as
directions issued by the Supreme Court from time to time. The sphere of litigation has
increased over time in relation to environmental jurisprudence. There is significant
importance attached to the change of stance by the Court from only protecting private
interests and deliberating over them to bringing larger matters into the center stage which
were in the interest of the general public and passing orders in that sphere as well.

In M.C. Mehta v. Union of India, which is one the most celebrated judgments with regard
to environment protection, the principle of absolute liability was laid down. It was the
first time where the Court expressly stated that the Corporations undertaking hazardous
activity would only be allowed to conduct the activity when a condition is imposed upon
them to indemnify everyone who suffers due to such activity. The liability to indemnify
would be imposed on these corporations regardless of whether such activity is carried on
carefully or not.106

Moreover, the Court observed that the Corporation was involved in activity which was
bordering on invading the rights to life and liberty of a huge number of persons. The
enforcement of these rights is essential for the legislative framework to have an effect on
the existing condition of the environment. The use of legislation can be pointless when
the intended purpose is not achieved and the rights are not enforced in the Courts of
today. The inter dependence of the guarantee of human rights with the fundamental rights
as enacted in the Constitution has also been laid down by the Court. People’s right to a

106 M.CMehta v. Union of India and Ors (Oleum Gas Case 3), available at https://www.globalhealthright.org/asia/m-c-mehta-v-
union-of-india-ors-oleum-gas-case-3
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clean environment is inherent in our Constitution. There has been slow progress from
favouring corporations in the matter of the environment degradation to imposing
conditions and liabilities on them with the developing judicial decisions of the Court.

The Courts have been instrumental in developing an awareness among the people of the
various issues faced by the environment as well as awaking the executive by inculcating a
sense of urgency in the State to take steps necessary for facing environmental crisis.107
During the proceedings of the Taj Mahal case, the apex court of the land held that the
obligation of the State to protect monuments, places and objects of National importance
included within its ambit preservation of monuments from industrial emissions and
harmful pollutants in the air. In the case of Cooverjee.B Bharucha vs Excise Commission,
the Supreme Court held that in the event of a clash between protection of the
environment and right to freedom of trade, it would be upon the courts to maintain a
balance of interest between the environment and fundamental rights.108

Keeping in mind the Constitutional provisions, the Supreme Court has enunciated the
Precautionary principle and polluter pay principle as fundamental to the part of
environment legislation in the country. In the Vellore Citizens Forum, Petitioner v Union
of India and other, the Court enunciated the polluter pays principle and precautionary
principle with respect to tanneries which were causing pollution by discharging untreated
effluents into the land. The indemnification of families was also ordered by the Court
which was to be undertaken by the Authority created for this purpose. The new rule
which was established in Vellore Citizens Welfare Forum v Union of India was that the
onus of proving whether the project is not having any adverse impact on the environment
is on the industrialist who wishes to change the status quo. This rule has now started to
become accepted as part of the environment law.
Article 51(A)(g) is a boon to the citizens of this country where a person can approach the
Tribunal at any time to file a complaint against any undesirable activity by any individual
or organization which leads to environment degradation. Any person can report their

107 Atrayee De & Vedant Madhok, Constitutional Provisions and Environment Protection in India: A Legal Insight, available
athttps://www/researchgate.net/publication/311922823_CONSTITUTIONAL_PROVISIONS_AND_ENVIRONMENT
_PROTECTION_IN_INDIA_A_LEGAL_INSIGHT
108 Supra note 16

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grievance to the Tribunal and remedy of the same would be available if there is a valid
claim. The NGT observed in Jaya Prakash Dabral that in light of the constitution
provisions in respect to fundamental duties, any person, even though they may not be
personally affected by any activity causing environmental degradation, may approach the
court for steps to be taken for minimizing the effects of the project on the environment
and other related matters.109

In Intellectual Forum, Tirupati v. State of A.P & Ors, there was a complaint in response
to the systematic destruction of the environment by taking away of the tank bed land by
the housing board for urban development. These tanks were useful for irrigation purposes
as wells as for improving the ground water table of the land and the people living around
the tanks had a vested interest in them. The Court directed to the State to abstain from
doing any act which would violate the right of the community itself. The Court also gave
instructions to stop any further constructions from taking place and to construct a rain
water harvesting unit with all the ground water being recharged to the ground water.110

This goes to show that environmental jurisprudence has taken a step forward in
restricting certain activities by the State as well as authorities which hinder access to the
basic needs of the people. The conscience of the Courts in the role which they are to play
in the protection of the environment has increased in the past few years. The Court has
even recognized the fundamental duties of Authorities in some cases where they have
failed miserably in securing environmental preservation when it was their responsibility
to do so. The Court observed in the case of D.D Vyas and Others vs Ghaziabad
Development that the Authorities were negligent of the duty imposed upon them by
Article 51-A(g) and should have created the space which was left open for years into a
wholesome park with shrubs and greenery.111

The Court is not to set aside the directive principles and fundamental duties when there is
a need of the hour to give effect to these provisions and shift the burden on the policy

109JayaPrakash Dabral v Union of India, Application No. 12 of 2011

110(2006)3 SCC 598
111AIR 1993 All 57

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making authorities. The Court may also give directives with regard to the matter in
question not letting itself resign to the decision of the authorities concerned.112

The ambit of Article 51-A (g) was elucidated in the judgment of the Rajasthan High
Court in L.K Koolwal v State. Mr Koolwal had approached the Court by invoking Article
226 and brought to the notice of the Court that the Municipality had been unable to carry
out its primary duty which caused a huge sanitation problem in Jaipur.113

Allowing the petition, the Court observed that Article 51-A is not merely a duty of
citizens but confers right upon them to approach the Court to make sure that the State is
performing its obligations and duties.114

In the case of Goa Foundation v. State of Goa, The Court held that even a society
registered under the relevant enactment has locus standi in the matter of carrying out the
fundamental duties and moving the court for upholding the same. 115

The right to know under Article 19(1)(a) was emphasized in the judgment of Bombay
Environment Action Group v. Pune Cantonment, where the petitioners were a society
carried on by the citizens of Pune to watch over environmental issues within their limits
and make provisions for betterment of quality of life. In the case, the petitioners wanted
to check the construction plans and building permissions of the respondents to further the
objective of the society which included the right to live in a clean environment. The
Court upheld the rights of the citizens to gain information after paying the required fee
and observed that the Environment Action Group had a right to receive the information
under Article 19 (G) of the site plans under consideration to check whether they are likely
to degrade the environment or not.116

In the case of Subhash Kumar v State of Bihar the Supreme Court upheld the inclusion of
the right to clean air and a healthy environment to Article 21.117

1121987 AIR 1109

113 AIR 1988 Raj 2
114 Ibid
115
AIR 2001 Bom 318 at 319
116Writ Petition No. 2733 of 1986
117 Vishal Singh, The Comparative Study of Article 32 and 226 of the Constitution of India, available

athttps://www.academia.edu/32187770/The_Comparitive Study_of_Article_32_and-226_of_the_Consitution_of India

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In the CNG case, the Court upheld the Directive Principle of State Policy and stated that
Articles 47, 48(A) and 39 together impose an obligation upon the State to safeguard the
health of the people, take measures to improve the health of the citizens and for
betterment of the environment.

A different perspective was also taken by the Court when it enunciated that as water is
one of the essentials of sustenance and life, therefore clean water would be implicit in the
right to life as enshrined in Article 21.

Efforts towards a better environment

Public Interest Litigation was started with the aim to establish safeguards for preserving
human rights for people who did not have the means and devices to protect themselves. It
has now brought within its scope the protection of the environment as well along with
certain other objects. That is not to say that the Courts have started to neglect their
responsibility of granting justice in accordance with legislative enactments. The higher
judiciary has an enormous obligation which is bestowed upon it by the Constitution to
preserve the rights of the citizens of this country.118
Writs such as mandamus are issued for proper enforcement of the rights enshrined in Part
III of the Constitution. Mandamus literally means ‘we command’ and it implies an order
to a public authority to perform a public duty which is inherent in its office. The
advantage of having writs in India is that the Court can use them according to the
particular circumstances of the case and mold them in accordance with the changing
conditions. 119
Even provisions of the Constitution related to International Agreements such as Article
253 contribute to giving effect to legislation protecting the environment. The Article
states that Parliament has the authority to enact any law for the whole or any part of the
territory of India for giving effect to any agreement or treaty with any country or any
decision arrived at any international conference.120
The Ministry of Environment and Forests have passed legislation which comprehensively
approaches the matter of the environment and its protection. The National Green Tribunal

118 (2002)104 BOMLR 434

119 Supranote 18
120 The Constitution of India, available atlegislative.gov.in/sites/default/files/coi-4March2016.pdf

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has been established with the objective of deposing of cases in relation to the
environment and preservation of forests effectively. The enforcement of legal rights as
well as compensating aggrieved persons has also been one of the purposes of bringing the
NGT into existence.121
When the Constitution first came into being, there was no mention of the word
environment in it but with the increasing environment concerns the Legislature realized
the importance of such provisions in the Constitution. A lot has been achieved by the
provisions of the Constitution as well as the environmental jurisprudence undertaken by
the Court, but there is still much to be done.122 The country has got a wide range of
environmental law and enactments which are covering major aspects of environment
protection.
Conclusion
Economic globalization has unknowingly or not, displaced several thousands of people
who were left are left with no place to reside or go. 123

There were various environmental legislations which were present before Independence
of the Nation. However, the push necessary for putting a well-defined legislation came
only after the Stockholm Conference by setting up in 1972, the National Council for
Environmental Policy and Planning. This body was given the authority to create another
body to deal with environment related issues. The crux of the legislation enacted must be
that the goal of environment protection and environment development should commonly
be towards environment sustainable development.124

The move towards enhancing social justice through environmental jurisprudence has
been an issue which the Courts have consistently sought to achieve.125

121 Vaish Associates Advocates, Environmental Laws in India, available

atwww.mondaq.com/india/x/624836/Waste+Management/Environment+Law+In +India
122 Sukhvinder Singh Dari and Rangam Sharma, An overview of Environmental Jurisprudence in India, available at

https://www.scmsnoida.ac.in/assets/pdf/journal/vol1Issue1/An%20%Overview%20of%20Environmental
%20Jurisprudence%in%India.pdf
123 Gitanjali Nain Gill, Environmental Justice In India : The National Green Tribunal and Expert Members, available

athttps://www.reseachgate.net/publication/285663178_Environmental_Justice_in_India_The
NAtional_Green_Tribunal_and_Expert_Members
124 Nathalie Ruhs and Aled Jones, “The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of

Nature”, available at https://www.mdpi.com/2071-1050/8/2/174

125 S.Ravi Rajan, A History of Environmental Justice In India, available

athttps://www.liebertpub.com/doi/abs/10.1089/env.2014.7501?journalCode=env
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The consciousness of the judiciary in the matter of environment has increased with the
alarming rate of environmental crises happening in the country and it continues to
develop jurisprudence to preserve our natural environment.126
In meeting the millennium development goals, India has shown significant progress. One
of the examples of this progress is that the area covered by forest land has increased from
21.5% to 22.8% in fifteen years. Even the concerned ministry has undertaken various
programs to provide better systems for cooking and lighting.127
If these efforts are continued simultaneously by the legislative, executive and judiciary
towards environment development, the future generation will not have to give up the
right to a healthy environment. Nowadays, publicity and the impact a case has financially
also determines the outcome of an environmental matter but it cannot be held to be the
sole criteria for determination. In a few cases, Public outcry and extensive media
coverage cases have generally spurned out pro-environment decisions, even if the
reasoning would have sided with the development stance.128
The contribution of activists such as Medha Patkar towards Environment Justice in India
by mobilizing marches against harmful industrial projects is not to be disregarded.129
Over the years, activists have brought to public attention several projects which would
have degraded the environment to a large extent if it wasn’t for the alertness and efforts
of such activists. In the end, the Court needs to maintain a balance between economic
development and environment sustainability to achieve a positive environmental impact
in the future.130

126 Debadyuti Banerjee ‘Environmental Jurisprudence in India: A look at the initiatives of the Supreme Court of India and their
success at meeting the needs of enviro-social justice, available athttp://academia
.edu/430162/Environmental_jurisprudence_in_India_A_look_at_the_intiatives_of_the
Supreme_Court_of_India_and_their_success_at_meeting_the_needs_of_enviro_social_justice
127Anita Nath, India’s Progress Towards Achieving the Millenium Development Goals, available at

http://www.ncbi.nlm.nih.giv/pmc/articles/pmc/articles/PMC3180952/
128 Armin Rosencranz and Mukta Batra, The Supreme Court of India on Development and Environment from 2001 to 2017,

available at docs.manupatra.in/newsline/articles/Upload/BAC62375-D8CC-4D92-A1A9-25495659112B.pdf
129
Medha Patkar, available at https://www.goldmanprize.org/reciepent/medha_patkar/
130 Supra note 48

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“We are guilty of many errors and faults; But our worst crime is abandoning the
children, Neglecting the foundation of life, many of the things we need can wait, The
child cannot wait; Right now is the time, His bones are being formed, His blood is
being made and his senses are being developed, To him, we cannot answer
‘tomorrow’; His name is ‘today’.”

– Gabriel Miatral

The spirit of a human being is so grounded in many dimensions which functions at

various levels; internally and externally both. It is almost difficult to reach at a definite
conclusion as to which dimension works at what level that makes her a criminal or a
delinquent. So many criminologists propounded so many theories about human behavior
to trace out the core elements of criminality which lies, as by nature, in all of us and
which makes us something called as "potential criminal". Criminal law and its
administration mainly focus on 'taking care' of this element of potential criminality by
employing various methods of punishment like deterrence, retribution, reformation etc.
Each method of punishment focuses on various notions of social dimensions and works
in different ways like retribution works for vengeance and deterrence deters the potential
criminals and reformation is based on the notion of 'intrinsic attributes' of criminal as
Mahatma Gandhi rightly pointed out, "hate the crime and not the criminal". By
employing all these methods state aims at continuous diminishing of crime.

Before everything else, let us look closely the word reform, this word is derived out of a
Latin word 'Reformare', if we break it down it then we get the complete picture of this
word, re means "again" and fromare means "to form", meaning thereby "to convert into
another and better form".1 Now the question of pertinent importance is why do we need
reforms, for whom we need reforms, who is the subject matter of reforms. All these
questions always go hand in hand, one cannot dare to solve these questions in silos as
these questions evolve from the same root and must be answered in conformity with each
other. Oxford dictionary says that ‘reform’ means ‘make changes in
(something,especially an institution or practice) in order to improve it.’2From the
definition, it isclear that for reformation we need at least an ‘institution’ or a ‘practice’.

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Now if there is an institution in which specific practices are already in prevalence then
why in the world we need reform? The answer to this question lies in the practice of the
institution itself. The practice must have been degraded to the standards of filth and
disgrace that if in due course of time it didn't change then it would demean all the
'purposes' or 'objectives' of the 'action' which led to the "formation" of that institution.
This problem becomes graver when the question of reforms comes to the ambit of
'reformatory institutions' itself.

Reformatory Institution

Now, what is a reformatory institution? A reformatory institution is sort of a correctional

institution where the young offenders get treatment, training, and social rehabilitation3 so
that after their term is over they can be very well accepted by the society. The main
purpose behind the establishment of these institutions is to cure something called
'potential criminality' of a juvenile delinquent. These institutions involve various methods
which intend to reform the young juvenile offenders. The young juvenile offenders are
different from adult criminals as they have a higher potential of reformation than adult
criminals, it is only because of this reason they are treated differently from that of adult
criminals. Hence law has established these reformatory institutions just to materialize this
idea of reformation, and this also keeps them away from the company of grown-up adult
"adamant" criminal minds. This segregation helps the authorities in the better
manifestation of specialized reformatory tactics which can only be applied to them. The
purpose behind the establishment of these institutes is that children are the supreme asset
of any nation; keeping them in the company of those adamant specialized criminals will
certainly impact their "inexperienced young minds" and this will definitely prejudice the
whole process of reformation. Children are the potential and useful human resources for
the progress of any country. They should be "nurtured" and in this way very careful
“cultured". They are innocent, vulnerable and dependent. It would be very unfortunate for
any society to poison and contaminate their minds with the interaction of the masters of
crime. The element of the psyche, nature of offense and offender, possibility and
probability of reformation all these things demanded a new system of justice for juvenile
offenses and delinquents, which in itself serves the purpose and the end of both the victim
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and delinquents. Apart from this the constitutional provisions also provide for the special
protection the juveniles, for example, Article 15 (3) enables the state to make special
provision for children. Entitlement to free and compulsory education up to 14 years has
been read into article 21. Articles 23 and 24 further enshrine fundamental protections and
Article 45 is supplementary to article 24 article in turn supplements Article 39 (e) and (f)
that ensures distributive justice to children for educational purposes. The growing
demand for separate treatment of children in the criminal justice system plus
constitutional force with substantial judicial intervention4 with various other important
interests like the future of the country, lessen the delinquent behavior, etc. gave birth to
this new system of penology which specifically deals with the criminal acts of minors.

Role of Juvenile Justice Act

The fundamental principles of Juvenile Justice System are:

A. Principle of presumption of innocence.

B. Principle of dignity and worth.
C. Principle of right to be heard.
D. Principle of best interest.
E. Principle of family responsibility.
F. Principle of safety.
H. Positive measures.Principle of non-waiver of rights.
I. Principle of equality and non-discrimination.
J. Principle of right to privacy and confidentiality.
K. Principle of last resort.
L. Principle of fresh start.
M. Principle of repatriation and restoration.
N. Principle of non-stigmatizing semantics, decisions and actions.

And the major legislation which deals with these principles and juvenile delinquents is
the Juvenile Justice Act. The Juvenile Justice Act in India passed in 1986. However,
several issues such as increasing incidents of abuse of children in institutions, inadequate

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facilities, quality of care and rehabilitation measures in children homes, delays in
adoptions, lack of educated, trained and responsible staff led to the repealing of the
existing Juvenile Justice (Care and Protection of Children) Act, 2000.2 It was re-enacted
in 2015 while taking into account the standards prescribed in the various Conventions
like convention on the Rights of the Child5, the United Nations Standard Minimum Rules
for the Administration of Juvenile Justice, 1985, Beijing Rules6, etc.

The Juvenile Justice (Care and Protection of Children) Act, 2000, which is the primary
legal framework for juvenile justice in India, provides for a special approach towards the
prevention and treatment of juvenile delinquency and provides a framework for the
protection, treatment and rehabilitation of children in the purview of the juvenile justice
system. The Act deals with different categories of juveniles. Firstly, the Act deals with
those children who are without parents, or have run away from their home or have
migrated from different places, they are generally called as abandoned7 child or orphan8.
Secondly, it deals with those children who need care and protection9 against the society.
Thirdly, the Act deals with those children who are in conflict with law10, and while their
case is under consideration or pending they are sent to reformatory homes. The fourth
category of juveniles is those who are convicted of a crime and have been ordered to be
sent to special homes for three years.

Condition of Reformatory Institutions

However, various findings underscore why reformative institutions are not really
‘reformative’ when it comes to delivering justice; rather, they often become vehicles of
sloth and injustice. It is pertinent to mention here that these homes are established to
provide care and protection as well as re-integration, rehabilitation and restoration of the
juveniles in conflict with law and children in need of care and protection. Services to the
child in these homes include physical and custodial care, medical and dental treatment,
recreation, instruction according to the age of the child and the length of his or her stay,
and religious services. These homes should try to avoid an atmosphere of fear and
repression. However, many observation homes are still far away from meeting these
facilities, which require employment of trained personnel, a superintendent, teachers,

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case workers, group workers and supervisors. Various studies, however, states that
inmates in observation homes are subjected to sexual assault and exploitation, torture and
ill treatment apart from being forced to live in those conditions. The girls remain the most
vulnerable as they fall easy prey of sexual abuses11. Not only this there are a total of 815
juvenile homed in India. They are overcrowded as the number of these accused who also
need counseling is 1.7 million12.

Once a child is taken into custody for committing a crime, he is placed in observation
home pending his trial. While he is in observation home, he receives two types of assault.

9
Id s. 2(14)
10
Id s. 2(13)
11 India’s Hell Holes: Child Sexual Assualt in Juvenile Justice
https://medcraveonline.com/FRCIJ/FRCIJ-03-00083
The first type of assault is physical in nature and the second is sexual. Torture, usually in
the physical form of severe beatings with fists, lathis, or other instruments, and kicking is
a common feature of police treatment of street children.

Sexual assault is the second type of treatment meted by the children in observation
homes. In an incident13, a 14-year-old juvenile from Jamnagar was sodomized allegedly
by the four boys at the observation home on Gondal Road, Rajkot. They allegedly also
beat four inmates with polymer pipes and two of the accused forced others to perform
oral sex. They also filmed the victims naked. The peon who was on duty when the
incident took place at the observation home, did not made any attempt to stop this
incident or to report this incident. There are many surveys and reported incidents of
sexual abuse on children in observation homes. Many victims are threatened with knife
and blades for sexual abuse. This use of force also results in extensive injuries to victims’
genitalia, which facilitate transmission of sexually transmitted diseases (STDs). They are
touched in disturbing ways, forced to expose genitalia and finally forced into sex.

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It has been found that in many cases the perpetrators are staff members, including
caretakers, security guards, etc. in the observation homes. In most of the cases, the sexual
assault continues for a longer period as victims are not ready to dissent and endure
quietly in the absence of inspection. The incidents where two minor girls were assaulted
by the manager in Odisha observation home14, or boys sodomized by guards and senior
inmates at govt. home for boys, Delhi.15On September 29, 2012, a case of sodomizing
a10 year old inmate was registered against four inmates and two staffers of a state run
shelter home in Goa. The victim was repeatedly abused during his two months stay at the
home but no action was taken by officials.16

13
“Rajkot: Juvenile sexually assaulted in Observation Home” available at
http://indianexpress.com/article/cities/ahmedabad/rajkot-juvenile-sexually-assaulted-in-
observation-home/#sthash.Er2htArY.dpuf

14
“Orphanage staff arrested for ‘sexually abusing’ inmates”, The New Indian
Express, 4 April 2013.)
15
“ juveniles booked for sodomy”, The Times of India, 20 March 2013
16
https://www.thehindu.com/news/cities/bangalore/13-boys-escape-
from-observation-home/article24565781.ece

A 2013 report by the Asian Centre for Human Rights (ACHR), states that juvenile justice
homes have become India’s hell holes where inmates are subjected to sexual assault and
exploitation, torture and ill-treatment, apart from being forced to live in inhuman
conditions. It highlights 39 cases of repeated sexual assault on children in juvenile justice
homes, including government-run observation homes, children’s homes, shelter homes
and orphanages.17

Another important issue involved here, issue of cruelty done by inmates, in the
observation homes there are two categories of inmates, junior and senior. The basis of
this division is the severity of crimes made by the juvenile offenders. Once junior inmates
are tortured by the police authorities, they are then given to the senior inmates for further
Page | 76
beatings and other abuses. As per one of the incidents, in December 2013, the National
Commission for Protection of Child Rights (NCPCR) received allegations of physical
abuse in a juvenile observation home in Meerut, Uttar Pradesh. The allegations were
made by a 17-year-old boy, who was among 43 children who escaped from the home. He
alleged that the mass escape was prompted by repeated instances of physical and sexual
abuse of juveniles by older youths living in the observation home.18

These homes take little care of hygiene. The children’s health conditions are a major
cause of concern. Scarce hygiene, insufficient nutrition, and the lack of space render the
children easy prey to a variety of highly contagious diseases. The children are allowed to
change clothes very infrequently. The guards do not clean the halls and bathrooms, which
are infested with cockroaches and lice. As a result, many children develop skin
infections, dysentery, herpes zoster, genital warts, and sexually transmitted diseases. The
home also does not provide medicines or the manpower to take the children to the
Government Hospital. Water shortage, lack of drainage systems, working toilets - all this
makes the hygiene levels in the homes extremely

17
Supra note 11
18 http://www.livemint.com/Leisure/X4DChvj7KCXVjegtttegBI/Inside-a-juvenile-
home.htmllow.
19
Some reports also shows that there was no proper arrangements for medical treatment,
study, recreation, food, for the minor inmates at the shelter home and the agency
controlling the concerned home was also alleged that the director and other officials were
running Boys’ Children Home in violation of provisions of Juvenile Justice Act.

20
How can reformation take place when basic needs of the child are notbeing met? Many
special homes face shortage of staff. They also lack a proper routine for themselves
which also involves constructive activities. Otherwise, children residing in the home get
extremely rebellious. Sometimes, they behave in a passive-aggressive manner with
authority figures. There is a need to strike a good balance between structured activities
and keeping time aside for children to do as they please for a certain amount of time.

Page | 77
21
The recent escape of 33 children from an observation home in Chennai has againraised
questions on the efficacy of the juvenile justice system in the country.

22
Even the Supreme Court described the report of National Commission for Protection
ofChild Rights on the status of children in shelter homes across India as 'frightening'. The
top court added that it was 'helpless' as any direction to the authorities in the matter
would be termed as 'judicial activism'.

23
However a Supreme Court committee headed byjudge Madan B Lokur said nearly 40%
of the children in government-run homes live in ‘deplorable’ conditions for which no one
is being held accountable. The report also emphasized the point that not enough resources
are being provided to run these homes in a child-friendly manner. Many of the homes are
like or worse than prison for adults. He went on to say that “These are not stray incidents
happening only in one place, but in

19
http://www.careshareindia.org/OHome/OHEnglish.pdf
20 https://thewire.in/rights/cbi-registers-firs-against-2-shelter-homes-in-bihar-for-
abuse-of-minors

21 https://www.firstpost.com/living/understaffed-and-overcrowded-juvenile-homes-are-
hell-holes-rather-than-reform-centres-2842894.html
22 https://timesofindia.indiatimes.com/blogs/tracking-indian-communities/how-
juveniles-are-trapped-in-criminal-justice-system
23 https://www.indiatvnews.com/news/india-ncpcr-s-report-on-status-of-children-in-
shelter-homes-frightening-court-helpless-sc-460265
several places across the country, despite which there is no discussion, transfers,
suspensions, inquiry commissions, judicial commissions, etc,”.24

The report blamed the state governments for the deplorable conditions. The states have
failed in their statutory duty towards children staying in public funded child care homes.25

Steps towards reformation

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All these aforementioned incidents have shown that these institutions failed in their
purpose, the purpose is to restore dignity and self-confidence among the children
andbring them back to a normal family life. Every child in the country has a legitimate
claim and is entitled to its share in the finances of the Republic for harmonious and
comprehensive development of its personality. As a plant needs protection, nourishment
and proper environment to grow into a big fruit - bearing tree, a child also needs
protection, promotion, nourishment and proper environment to grow into a useful and
responsible citizen. Proper Health, Education and Environment for the children are the
imperative needs of the hour. It is only for this matter of fact, these reformatory
institutions need to get reformed first. In the light of these incidents some steps needs to
be taken as soon as possible. These steps must be of the nature that they can at least give
an apprehension that these homes are sound, safe and secure. Special homes in India
needan immediate makeover. Counseling must be made mandatory. The staff needs to be
regularly trained because, many a times, they are overworked and suffer from stress.
There is also the issue of misappropriation of funds. Thus, regular inspection and
monitoring must be done. The whole objective of the juvenile justice system is to ensure
children get access to a better quality of life, education, and are integrated successfully
into society. Unless proper steps focused on enhancing education programmes,
counseling and therapeutic interventions, health and hygiene, vocational training, extra-
curricular activities are taken, this vision will not become a reality. There is a need for

24 https://www.hindustantimes.com/india/40-of-juvenile-delinquents-in-homes-
worse-than-jails-sc/story-CaWUMuIS7VZrqTqWovpB8J.html
government bodies to employ staff with proper training and expertise. There should be a
provision for qualified counselors to address the needs of the children on a regular basis.
With proper counseling and the right intervention, reforms do happen. Insummary, these
steps must include,

Regular inspection of these homes,

Utilization of funds,

Strict scrutiny of staff,

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Making the government officials accountable for their decisions.

Installation of CCTV cameras and continuous surveillance on these homes,

Proper hygiene mechanism,

Devising proper routine for the children which focuses on all-round development,

Increase in educational activities along with special emphasis on moral and ethical
principles, etc.

Conclusion

Children are the future of a society. They should be nurtured with the best of facilities.
They do make mistakes and sometimes, serious in nature. They are not hard core
criminals but mere miscreants, who rarely understand the consequences of their act. The
legislature requires them to be observed and rehabilitated under the ‘observation homes’.
In these homes, the children who have become juveniles, are observed but, not
rehabilitated. Their observation is under the police officials, who do not provide them the
space for rehabilitation. In reality, they are ill-treated by the police and senior inmates.
They are not provided sufficient food, nutritious food remains a dream. They are given
the worst of hygienic conditions, where catching infection is a regular activity. And after
few months they are expected to return to the society with correctional behaviors.
Acquitted or convicted, a juvenile is not taken by the society with dignity. In most of the
cases the juveniles repeat their offence and this time with more aggression. And this is
what makes them ‘criminals’.

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 A PROBE INTO PATRIARCHAL POLITICS: MARITAL RAPE

BY:

AUTHOR 1: ISHAA AJAY

AUTHOR 2: NARUMUGAI MUTHUSAMY

ABSTRACT:

Individual dignity has a sanctified realm in any civilized society. Section 375 of Indian
Penal Code confers an unfettered autonomy to husbands by keeping out the marital rape
an exception to the said section which defines and punishes rape. Marriage has been used
as a license to commit the barbarous crime perpetrated against women. This article
attempts to elucidate that all historical perceptions should evaporate as it pollutes the
purity of the pious relation of spouses. A system treating a woman with indignity,
inequity, and discrimination invites the wrath of the Constitution. Therefore this article
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fishes out the rights of women that are violated and curtailment of their freedom because
the emphatic inclusiveness of individuality of citizens without any discrimination is of
grave importance. Hence, heed must be paid to the insidious permeation of patriarchal
values into the legal order and its role in perpetuating gender injustices.

KEYWORDS: Inequity, Constitution, Discrimination, Patriarchal, Individuality.

1. INTRODUCTION

“Mahatma Gandhi considered the abuse of female sex who are considered as the better
half of the humanity as shocking and brutal”

Holding the quote ironic in the contemporary era, the quote stated by the father of our
nation in 1924 holds true even in today and cumulatively addresses the issue faced by
women in the society, where woman are supposed to be considered goddess.

Most of the penal codes in the world are enacted without providing a specific place for
the offences, which deal with the offence against women. Legislators felt the need for the
penalties to be imposed for such offences in which women were the victims. Although,
the victims in most cases are only women – as the civilization grew, instead of
developing, human beings, in certain aspects regressed. The result is violence against
women – in countries like India, the target group being married women. One can
understand if women face violence in the outside world but it is unimaginable and
unbecoming when the house becomes a torture cell for many women and her husband
being the perpetrator of violence, marital rape in specific against her. In England and
other western countries for centuries wife and husband could not sue each other for
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wrongs within a family. The Doctrine of Union was in vogue till the last century,
according to which husband and wife were legal “one”. It sounds similar to “Ardhangi”
concept in India, which has a synonym in English expression called “better half”. Thus
actions between husband and wife were not possible as they were conceded one person in
the eyes of law.131

2. MEANING

The word ‘rape’ which is derived from the Latin term ‘rapio’ means ‘to seize’. Rape, in
its simplest form, signifies “the sexual abuse of a woman against her will or without her
consent or with her consent obtained by force, fear, fraud or the bodily knowledge of a
woman by force against her will”. The term ‘marital rape’ as defined by the Gujarat high
court as the sexual intercourse by a man with his wife without her consent or obtained by
threat of force, physical violence.132 According to the Indian Penal Code, 1860, rape is
defined under section 375133. Marital Rape also is known as Spousal Rape or Inmate
Partner rape is a rape committed by one spouse against the other. Marital rape refers to
the sexual intercourse between a man and a woman, who is legally accepted as husband
and wife, where the woman does not give consent for such intercourse.

3. HISTORY: From Manu to Macaulay

Coming to the historical aspect, the Dharmasatras was composed roughly in the middle
of the first millennium BCE. When the society was more organized and settled, the new
literary genre of the Dharmasastras or the Smṛtis evolved. The Manusmṛti is usually
considered to be the monumental text of this genre. Following Manu, numerous other
‘law-givers’. Therefore, a man’s proprietorship over his wife’s body is pivotal to such
discipline.

131 Chandana,
G. (2008). Domestic violence- some legal issues. Hyderabad, India: Amicus Books, the Icfai University Press.
132
Nimeshbhai Bharatbhai Desai v. State Of Gujarat, SCC Online Gujarat 1386 (Gujarat High Court 2017).
133
Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551 (Supreme Court 2003).
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The institution of marriage is shown as an institution of giving away the daughter to a
man. Like any property, they could be sold, mortgaged or given away. According to the
Garuḍa Puraṇa, a man should defend himself at the cost of his wealth and wife.
However, these only demarcate women’s status as a different kind of property but do not
negate the idea of women being labelled as property. Manu declares that women should
never enjoy her free will. In her childhood, she is guarded and under the will of her
father. While in her youth, under the will of her husband or if her husband is dead, by her
sons. Therefore, the ancient Indian Legal System considers a woman’s body as the sole
property of her husband. It certainly does not mean that we should follow the
ancient Indian Legal System blindly without any reform134”.

Nevertheless, this is exactly how early Indian tradition was defined by the colonial
government. The Manusmṛti, being one of the earliest Sanskrit texts translated into
English, had an immense impact on the colonial understanding of early India. As a result,
early India was seen only as the land of religious speculation, the laws of Manu, the
chastity-obsession of Sita and Anasuya, and the country of the Sati system, the polyandry
of Draupadi and the charm of Ambapali were receded to the background. This selective
idea of the Indian tradition helped the nineteenth-century British government, for it did
not differ much from the Victorian Puritanism that the colonial government brought in.
The Puritanical attitude about the female body was very much at work in the drafting of
the Indian Penal Code in 1860 under the leadership of Thomas Babington Macaulay. A
female’s modesty and integrity were to be preserved by keeping her body protected from
the access of other males.

4. OTHER COUNTRIES: Comparative Study

• U.S.A

In the USA prior to the 20th century, the concept of marital rape exemption was
followed. It dates back to 18th century common law and was enunciated by English jurist
Mathew Hale, proposed a theory where he stated that the husband cannot be held guilty

134The Law of Manu IX.Retrieved from https://www.sacred-texts.com/hin/manu/manu09.htm.

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of rape committed by him upon his wife because it is apparent that by giving mutual
consent to their matrimonial contract the wife has given up herself to her husband which
she cannot retract”.135 In People v. Liberta136 the unconstitutionality of the exception to
marital rape has been declared stating that the line of difference between the marital and
non-marital rape is not clearly defined. It was further stated that the various justifications
which have been put forth in defense of the exemption are either based upon archaic
notions.

• U.K.

The marital rape exemption was abolished and there was further no immunity granted to
the husband for raping his wife in the case of R v. R.137 Till recently the general rule in
England was that the husband cannot be convicted for rape against his own wife as per
Sir Hale’s theory. Leave aside the minor fact that 51 countries, including the UK on the
basis of whose system our penal code has been drafted, have criminalized marital rape.
The amendment to the statutory law was made through Section 147 of the Criminal
Justice and Public Order Act, 1994.

• SOUTH KOREA

South Korea is one of the recent countries to criminalize marital rape. The problem
before was that according to Korean dictionaries word for rape, "ganggan" is defined
specifically as a forcible form of non-marital intercourse "ganeum".But the Supreme
Court interpreted the meaning of "ganeum" as referring to sexual intercourse in general
and therefore by such interpretation wives would be included among the women
protected by rape laws. All thirteen judges agreed that sexual acts that took place under
pressure or threat of violence should be punished, including between married couple and
an unmarried couple, as well.

135Hale.(1736). Historia Placitorum Coronae. The History of the Pleas of the Crown (1st ed., p. 628). London: Sollom Emlyn by
E. and R. Nutt, and R. Gosling.
13664 N.Y.2d 152 (New York Appellate Division 1984).
137
1 A.C. 599 (House of Lords 1992).

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 5. CONTRARY TO GOVERNMENT’S POINT OF VIEW

Gender violence is not religion specific. It is not class or caste specific. Patriarchy is
widespread, and it takes away a woman’s right over her body and her mind.

The government has never been in favor of criminalizing marital rape. The arguments
given by the lawmakers and the government against criminalizing marital rape are:

1. The sacrosanct institution of marriage in India will destabilize.

2. The chance of harassment of husband and his family member by the women under
false cases.

3. High literacy, poverty, myriad social customs & values, and extreme religious
beliefs of the population of India.

4. Menaka Gandhi, the Minister for Women & Child Development, also stated that
the concept of marital rape as specified internationally cannot be aptly applied in
the Indian context due to various levels of factors such as poverty, social customs,
education, religious values and the mindset of society to consider marriage as a
sacramental bond138.

5. The anxiety around the issue of marital rape adequately betrays the state’s
reluctance to allow women to own their sexuality.

Any marriage that takes away a wife’s basic right to opine cannot be considered
as a sacramental one. The forceful sex between a husband and a wife itself
brings destabilization in a marriage. Taking an example of Sati practice wherein
a wife is forced to jump in her husband’s pyre shortly after his death. In spite of
it being a customary practice, it was abolished to preserve the sanctity of
womanhood. Hence the government’s argument on people’s illiteracy, mindsets
and values of the society for non-criminalization of marital rape stands
unjustified.

138 Contributor,
G. (2017). Dear Supreme Court, Here's Why Marital Rape Should Be Criminalised. Retrieved from
https://www.thebetterindia.com/123017/supreme-court-criminalise-marital-rape-laws-india/
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 6. CONTRADICTORY AND INCOMPLETE JUDICIAL
PRONOUNCEMENTS

• RIGHT TO PRIVACY
139
In a landmark judgment, Justice Chandrachud stated that patriarchal nations still
prevail in several societies including our own and are used as a shield to violate core
constitutional rights of women based on gender and autonomy. As a result, gender
violence is often treated as a matter of “family honor" resulting in the victim of violence
suffering twice over - the physical and mental trauma of her dignity being violated and
the perception that it has caused an affront to "honor”. Though the Apex Court of India
has rightfully brought about the substance of the right to privacy, the failure in
criminalizing marital rape still prevails as a much-debated drawback.

• TRIPLE TALAQ

In Shayara Bano V. Union of India140, it is held that consent in marriage does not give
the husband the right to violate his or her spouse at any point of time, such a construction
is hostile to the concepts of right to individual liberty. The exception under section 375 of
Indian Penal Code is not a reasonable classification, and thus, violates the protection
guaranteed under Article 14 of the Constitution. The classification is unnecessary,
unintelligible and thus violates the test of classification under Article 14. Therefore, it
was the bounden duty of this Court, to declare such existing laws which were derogatory
to the dignity of women, and which violated the concept of gender equality, as void, on
account of their being in conflict with the fundamental rights contained in Part III of the
Constitution.

• ADULTERY

Under the Joseph Shine case141, where the provisions of adultery has been partially
struck down to curtail the male dominance over the rights of female in the wedlock also

139Puttuswamy v. Union of India, 8 S.C.C. 735 (Supreme Court 2015).

140
9 SCC 1 (Supreme Court 2017).
141
Joseph Shine v. Union of India, SCC OnLine SC 783 (Supreme Court 2018).
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states, to fully recognize the role of law and society in shaping the lives and identities of
women, is also to ensure that patriarchal social values and legal norms are not permitted
to further obstruct the exercise of constitutional rights by the women of our country. As
the society evolves and progresses towards gender equality, the state must have
mindfulness of the contradiction between the ancient and current thoughts in the society
and make adequate amendments in the old laws and preserve constitutionalism.

Thus all the above-quoted landmark judgments would be incomplete in their

implementation if Marital rape is not criminalized as vindicate the individuality and
rights of women to a respectable life.

7. MARITAL RAPE – NOT A GROUND FOR DIVORCE:

Although marital rape is not criminalized in India, a woman can take it under the ground
of cruelty for divorce as stated in Section 13 (1) (ia) of the Hindu Marriage Act, 1955.
Cruelty and its various provisions given under different laws in India explained as
follows-

• MEANING OF CRUELTY:

The Black’s Law Dictionary defines ‘Cruelty’ as the malicious intention and infliction of
physical or mental trauma on any living being; especially an abusive treatment.

Cruelty is explained rather than being defined in Section 498A of the Indian Penal Code.
It states that any act which causes grievous injuries or forces them to commit suicide is
unlawful and wrong.

• PROVISIONS FOR CRUELTY:

A person may file a petition for a decree of judicial separation on the ground of cruelty
which can cause apprehension that it will be harmful to live with the spouse

“Cruelty is one of the grounds for divorce under Section 13(1) (ia) which states that a
marriage may, on a petition presented by either of the spouses can be dissolved on the

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ground that the other party has, treated the petitioner with nothing but cruelty after the
sanctification of the marriage”.142

Cruelty, as defined in the former part as per the Indian Penal Code includes harassment
and marital rape can be included as a kind of sexual harassment by the husband on his
wife. This unsupportive nature of the society and family also makes it difficult for
women to bring in the light that she has been raped by her husband. Men believe to
exercise their power and dominance over the women by raping them. It can be easily
understood that husbands who rape their wives are not serial rapists but just men in need
of ego boost to show their manhood. In India giving consent to get married is implied as
to giving consent to have sexual intercourse even though it is done forcefully. The same
should be included as a ground for divorce in the Hindu Marriage Act and until necessary
changes are made by the judicial and legislative system, women will continue to be
subjected to such atrocities.

8. MARITAL RAPE AS AN UNRECIPROCATED ISSUE:

However, the debate around marital rape has been revived after the Justice Verma
committee report recommended that marriage as a ground for defense, to the crime of
rape, be omitted.

The concept of implied consent in the marriage has been diluted by the already existing
legal provisions. For example, any husband having sex with a wife below 15 years of age
(18 under the bill), with or without her consent, may be punished with 2 years of
imprisonment and fine. Similarly, a husband having sex with his judicially separated wife
without her consent is also punishable with 2 year’s imprisonment and fine. In any case,
section 498A (introduced in the Indian Penal Code by the Criminal Law (Amendment)
Act, 1983) is a potent legal tool in the hands of women subjected to cruelty by their
husbands. The Domestic Violence Act 2005, however, does not specifically use the term
marital rape. Yet, there exists a comprehensive definition of domestic violence, which
142Professional Book.The Hindu Marriage Act, 1955. (1955).
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includes sexual violence that degrades or otherwise violates the dignity of women. Thus
women who are subjected to sexual violence would file a case in the court. It must be
remembered that the consequences for violations of protection orders under the Domestic
Violence Act 2005 are penal in nature, and hence an effective deterrent.

The deletion of the exception under section 375, which would make non-consensual
marital sex, rape does not require much drafting skill. But the most disconcerting part on
the side of the judiciary is regarding the implementation of marital rape. If the
prosecution can show that there was sex and the accused husband was present, he can be
punished for rape, since guilt is presumed till proven otherwise.

9. CONSTITUTIONAL DEFILEMENT

Article 14 of the Indian Constitution states “Equality before the law.” It prevents the
citizens of the country from discrimination among themselves but fails under the much-
debated topic of ‘Marital Rape’ in discriminating women. According to the exception in
Section 375 of Indian Penal Code, a girl below the age of 15 has the right to file a case
against her husband if he forces her to have sexual intercourse with him if taken without
her consent. But the question in hand is why this right is narrowed to female below the
age of 15 and not above.

Moreover, Section 375 of the Indian Penal Code is contradictory to itself because
according to the Hindu Marriage Act 1955, Section 5 (c) (iii), the rightful age of a female
to get married is 18. Article 21 of the Indian Constitution guarantees to its citizens and
non-citizens the right to life and personal liberty.

Article 21 confers on all persons the fundamental right to life and personal liberty. Post
the case of Maneka Gandhi’s case143“it is the source of all forms of right aimed at
protection of human life and liberty. The doctrine of marital exemption to rape violates
the rights that have developed from the expression ‘right to life and personal liberty’
under Article 21.The marital exemption to rape- the right to privacy, right to bodily self-
determination and the right to good health, all of which have been acknowledged as an
integral part of the right to life and personal liberty”.

143Maneka Gandhi v. Union of India, (1978) A.I.R. 597 (Supreme Court 1978).
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In the case of State of Maharashtra v. Madhulkar Narayan144, has held that “every
woman was entitled to sexual privacy and it was not open for any person to violate her
privacy as an when he wished or pleased”. In the case of Vishaka v State of
Rajasthan145, the Supreme Court extended this right to privacy in workplaces. Further,
along with the same line, there exists a right to privacy to enter into a sexual relationship
even within a marriage. By decriminalizing rape within a marriage, the marital rape
exemption violates the right to privacy of married women.

Any law which legitimizes the right of a husband to compel the wife into having sexual
intercourse against her will and without her consent goes against the very essence of the
right to life under article 21.

Article 15(1) and (2) of the constitution prohibits the state from discriminating the
citizens on certain bases which includes sex. Notwithstanding the above rule, article
15(3) empowers the state to make special provisions for women and children. Failure of
the state to criminalize marital rape violates citizen’s fundamental right enshrined under
article 15.

Article 19(1) (a) guarantees to its citizens the right to freedom of speech and expression.
The non-consensual sexual relationship in wedlock where the wife’s objection in
suppressed is a clear violation of the above right. The women couldn’t say “no” to have
sex with their husband. This injustice to women must definitely be curbed as it doesn’t
fall under any reasonable restrictions that article 19(2) encompasses.

The delay in the acknowledging marital rape as a crime is a fault on part of the Indian
Judicial System, there is an immediate need to criminalize marital rape in India. It
violates the basic rights of women guaranteed by the Constitution of India.

10. STATISTICAL ANALYSIS: NATIONAL FAMILY HEALTH SURVEY

144A.I.R. S.C. 207 (Supreme Court 1991).

145Vishaka v State of Rajasthan, 6 S.C.C. 241 (Supreme Court 1997).
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90
80
70
60
50
40
30
20
10
0

support if denied…
husband right to
refuse financial

wife unjustified in
perpetrator(current

right to have
& former spouse )

justified to use

women suffering
Women subjected

forceful sex

denying sex
violence
to violence

injuries
11. NATIONAL FAMILY HEALTH SURVEY146: Marital Rape does not exist in
law, but statistics.

The National Family Health Survey’s data has recorded marital rape even though the
Indian Law fails in criminalizing it. According to the United Nations latest report in
India, 40% of the women are more likely to be raped by their spouse than by a stranger.
The survey stated that the most common form of sexual violence reported by women was
that their husband forces them and uses physical force to have sexual intercourse even
when they denied. The factual data present that:

1. In a marital relationship, 31% of women have been subjected to physical, sexual

and emotional violence by their spouse.

2. 83% of married women who are between 15 – 49 years of age, who suffered
sexual violence, have named their current husband as the perpetrator and 7%
women referred to their former spouse as perpetrators.

146National Family Health Survey (NFHS-4). (2016). Mumbai: Ministry of Health and Family Welfare.
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 3. 42% of men and 52% of women believe that it is justified by the husband to use
violence against women including forceful sexual intercourse.

4. 9% of men believe that husband has got the right to have forceful sex with his wife
and 2.5% of women have reported that they have been subjected to forceful sexual
intercourse by their husband.

5. 11% of men believe that in case of refusal of sex by the wife, the husband holds
the right to refuse financial support to her.

6. 18% of men believe that husband can use physical violence against his wife, in
case she refuses to have sex.

7. 15% of men believe that a wife is unjustified in refusing sex when she is tired or
does not wish for it.

8. 36.5% of married women between 15 – 49 years of age have suffered injuries such
as bruises, cuts due to the act of sexual violence by their better half.

12. SUGGESTIONS

With respect to the above discussion, the following suggestions are made:

1) Marital rape must be criminalized as an offence under the Indian Penal Code.

2) The lack of resistance on the part of the wife should not serve as a defence to the
charge.

3) The legal position of marital rape should not only be recognized but also clearly
defined; it should form a valid ground for divorce for the wife.

4) Apart from judicial awakening, general awareness of such offence by the citizens is
also important.

5) The State has to formulate welfare fund to provide aid to the family that has the
perpetrator as the sole breadwinner or any other form of compensatory mechanism should
be adopted.

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6) The government should initiate a measure to spread awareness about sex education
among the growing children which would go a long way to curb all crime in the society.
Therefore, sex education must be made an integral part of the school curriculum like
western countries.

7) Counselling sessions should be conducted for the mass to make them aware of the
problem they may encounter in their marriages and how to deal with them.

13. CONCLUSION

In what was a noteworthy year for feminism, we are carrying forward certain
147
conversations from the year gone by. Soon after Harvey Weinstein and his
accusations which had marked its way to India as well, there was the #MeToo
movement which had highlighted the seriousness in the matter of sexual violence as
well as the significance of “consent”.

Despite several attempts and amendments, recommendations of law commissions and

new legislation, one of the most humiliating and devastating acts related to the virtue of a
woman is not an offence in India, if the same is done within the four walls of marriage.

The idea of a woman being raped by her husband and the fact that she cannot seek
protection under any law in India is very disturbing. Marital rape disgraces the sanctity of
marriage. Marital rape is domestic violence and cannot be justified on the basis of
consent.

In a 2015 case148, the Apex Court rejected the plea of a woman, who had challenged the
validity of an exception to Section 375 of the Indian Penal Code. The bench of justice AR
Dave and justice R Banumathi stated that the woman was espousing a personal and
individual cause and not a public cause and chose not to change the law that is apparently
based on patriarchal norms.

147
BBC News. (2019). How the Harvey Weinstein scandal unfolded. [Online] Available at:
https://www.bbc.com/news/entertainment-arts-4159467.
148Hindustan Times (2015). SC rejects plea to make marital rape a criminal offence. p.8.
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Equality is the governing parameter. Over the years, legal reform has had a significant
role in altering the position of women in societal orderings. This is seen in matters
concerning inheritance and in the protection against domestic violence. However, in
some cases, the law operates to perpetuate an unequal world for women. Thus, depending
on the manner in which it is used, the law can act as an agent of social change as well as
social stagnation.

SETTLEMENT OF SPOUSAL PROPERTY:

RULE OF EQUAL DIVISION OR SAME FINANCIAL LEVEL
-Sonal Gupta149
Chapter Overview:

Divorce is as yet viewed as an ominous thing in India. In this way, what the Indian ladies
know is that they are qualified for support after separation from their better half with the
goal that they can keep up a similar standard of life. Be that as it may, what exceptionally
less number of ladies knows is that they also are qualified for get an offer in the property
(spousal) upon separation. Every lady has a privilege to living arrangement after
separation on the off chance that she has not remarried. The perplexity emerges when the
property has been purchased by a man after marriage for the sake of his better half yet
she has not contributed anything monetarily in the purchasing of the property.
Henceforth, the present article analyses the rights of women over the spousal property
149
2nd year, IV Semester, BA LLB Student, Symbiosis Law School, Hyderabad, Symbiosis International (deemed)
University. Email Id:sonalgupta1555@gmail.com ,Mobile no.-+91- 9462400055.

Page | 95
and scrutinizes various laws including, succession, marriage laws etc. and finally
deducing a comparison with UK laws. Whilst the article is divided into 5 chapters
enumerated specifically.

Keywords: Marriage laws, spousal property, settlement, divorce, women, UK.

CHAPTER-1

INTRODUCTION

Introduction

“Among Hindu marriage is an essential “samaskar”, a blessed hallowed association, even

accentuated by current statutory law. The man is deficient without his better half, she is
ardhangini. (Half of him).The spouse has been depicted as “A wife is the very wellspring
of Purushartha of dharma, artha and kama yet additionally moksha. The individuals who
have spouses can satisfy their due commitments in this world, those that have wives can
be cheerful; those that have wives can have a full existence. Spouse isn't simply patni yet
dharmapatni-accomplice in the execution of profound as mainstream obligations. A man
can't perform the majority of the yagnas without a spouse. Spouse is sahadharmini”.”

“Hypothetically the couple were the joint proprietors of the family unit just as proprietor
of different sorts of property. At the season of marriage spouse needed to seriously
announce that he would not disregard the privilege and enthusiasm of his accomplice in
monetary issues. The joint proprietorship verified her various customs and benefits. “It
contributed her with a flat out right of upkeep against her better half.” Some antiquated
lawgivers even allowed the spouse to go to Court to re-establish misused property from
her wily husband.”

“The creator here attempts to adumbrate, tress the advancement, legitimize wedded ladies
directly over the life partner's property including the conjugal home procured through
modes other than normal progression in the light of present day laws, Constitution and
statute.”
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“Marital property is all the assets and liabilities acquired during the course of the
marriage like home, cars, furniture, shares in a company, rental income and savings or
any debt and the marriage settlement is basically a written contract between the husband
and the wife upon their divorce for custody, maintenance etc. Once married, the property
of the couple that they get along is termed because the spousal property.”

“However, this doesn't embrace the property that the adult female had got as a section of
her Stridhan. However what happens once some needs a divorce? Who gets the spousal
property? However is that the property divided?”

“Divorce was and continues to be thought-about to be an inauspicious issue in India. So,

what the Indian women know is that they're entitled to maintenance when divorce from
their husband in order that they'll maintain identical customary of life.”

The confusion arises once the property has been bought by a man after marriage within
the name of his wife however she has not contributed something financially within the
buying of the property. Thus, there are several laws in Asian
country that influence settlement of spousal property.

History
“The women in India did not have to struggle so much for their share in the spousal
property. The laws in India were such that they have had provisions for the settlement of
spousal property in different situations. The proprietary rights of women were recognised
in ancient system of law in India150.” Indian courts examen the housewife’s contribution
in the family. Muslim divorced wives have no provision for distribution of property on
divorce, but now s.3 (d) of the Muslim Women (Protection of Rights on Divorce) Act,
1986 makes provision for the return of property of a divorced woman that was given to
her before at or after the marriage.151”
“The point before the English Parliament was to give on the married women a full
capacity to hold or discard their property, which is accomplished continuously in 1935.
This standard of the partition of the property functioned admirably till the spouse

150
“Hindu Law of Marriage and Streedhana.” 5ed., 1915 at p. 37
151B.K. Sharma, Vijay Nagpal in “Disposal/Distribution of Spousal Property In The Wake Of Dissolution Of Marriage”.
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remained the man of the house and wife was restricted to the house. All things
considered, it could be contended that the spouse held the responsibility for that was
bought out of his profit. Be that as it may, amid the Second World War and from that
point, most hitched ladies were workers, in this way, were contributing towards the buy
of the family assets152 specifically when they made an initial instalment towards the price
tag or paying the portions. On the off chance that they contributed in the family unit
costs, hence, calming the spouse to spare more for the buy of such Family resources',
they made the commitment in a roundabout way. The courts in a general exertion to
ensure the interests of such married women endeavoured to do equity between the mates
by broadening the significance of Section 17 of the Married Women's Property Act,
1882153.”
Statement of Problem
“Under Section 125 of Code of Criminal Procedure which is of a general sort and
acquires to distress the networks in India acknowledge Muslim separated from spouses
who are currently represented by Muslim Women (Protection of Rights on Divorce) Act,
19861 The money related part of the issue, which is attending of separation identifies
with distribution/disposition of 'spousal property'. The issue might be admitted from two
points.
To begin with, there is increment in the quantity of married women in the work compel,
in this manner, the spouse contributes altogether to the basic pool from additions of the
business or other work, which results in the increase of the family pay which can be used
in the buy of Family asset’s154including immovable property.”
Besides, a spouse who dedicates herself to crafted by culinary and raising of kids in a
roundabout way causes her better half in the securing of Family resources' or other
property by her thrift and aptitudes. Besides, her commitment towards the family by her
physical work is no less essential than the spouse's monetary commitment155.
Research Objective

152 The expression ‘ family assets ‘ may be defined as “something acquired by the spouses for their joint use, with no thought of
what is to happen should the marriage breaks down”, per Lord Denning, L.J, in Hine V. Hine, (1962) 1 W.L.R. 1124 (C.A.).
153 B K Sharma, Divorce Law In India. Ch. V lll.
154 The expression ‘ family assets ‘ may be defined as “something acquired by the spouses for their joint use, with no thought of

what is to happen should the marriage breaks down”, per Lord Denning, L.J, in Hine V. Hine, (1962) 1 W.L.R. 1124 (C.A.).
155
Section 25(1), of the Matrimonial Causes Act, 1973, originated in section 5(1) (f) , Matrimonial Proceedings and
Property Act, 1970.
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The husband and the wife are seen as one single unit after marriage; hence, depends upon
the legal rights, duties and disabilities that either of them acquires by marriage’.156 The
researcher’s endeavour is to find out Laws and Regulations for settlement of Spousal
Property in Hindu and Muslim Law.
Specific Objectives
➢ To analytically examine the changing attitude and trends of Laws related to
Spousal Property.
➢ To examine various aspects of the recognition of concept of equality of status of
wife with husband in married life as well as to examine the rights in Spousal
Property for each spouse.
➢ To study various aspects Settlement of Spousal Property on Divorce.
Research Methodology and Chapterisation
The research methodology is primarily qualitative and Non-Doctrinal and draws from
secondary sources. The author admits that it was extremely difficult to be straight on the
objectivity, and scrutinize the scope and development of laws related to settlement of
spousal property. Researchers collected data from secondary sources. Related books
articles journals etc. are included in secondary sources. We also have collected from
online and took information from Law Commission Reports, authors like Paras Diwan,
Poonam Pradhan which helped me to finish the work. Case studies are the detailed
presentation of data relation to some sequence of events. Through this kind of research
technique vast information about any issue can be gathered. In our research we have used
this technique for collecting and presenting some special case like White v. White157.
This project was written with the aim of understanding and analysing the Nature of
Spousal Property as rule of equal division or same economic level. The method employed
in this study is the normative method and theoretical in nature and all the information re-
collected and compiled in a systematic order.

Present thesis is essentially a library based project as it seeks to critically describe and
analyse the comparison between two deduction regarding the spousal property with the
help of available primary and secondary sources.

156
Blackstone, “Commentaries on the Laws of England,” Vol. I, at p. 430.
157White v. White, [2001] 1 A.C. 596.
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The research work has been divided into six chapters-

Chapter-1; dealing withintroduction to the article, Chapter-2; which comprises of

Settlement of spousal property with support of judicial pronouncements.

Chapter-3; deals with the concept of settlement of spousal property.

Chapter-4; tells us about the Changing trends of laws related to settlement of spousal
property.

Chapter-5; analyses and gives conclusion to the work.

Research Questions
If we look into closely, Family Law and its grounds related to property and its doctrines
andregulations ; the question which arises is;
1. Whether the existing laws are sufficient to protect rights of each spouse in all

religious faiths?
2. How to find a compromise between the principle of separation and of community,

while a t the same time preserving the equality of the spouses in matters of
property?
3. Whether the existing laws are sufficient for divorced women without causing any

prejudice in Spousal Property in Hindu and Muslim faiths?

4. Whether the proposed Marriage Laws (Amendment) Bill, 2013 gives effect to the

concept of Spousal Property on ‘irretrievable breakdown of marriage’?

This study attempts to trace and find out answers to the following research questions in
an empirical manner.
Scope of Study
The study includes a critical analysis of the concept of Spousal Property, the rule of equal
division on divorce or the rule of economic level and needs in Hindu and Muslim
religious Laws. The critical study also indicates the analysis about role of England and
wales Reports of Settlement of Spousal Property in India for settling the family disputes
properly and extracts the concept of newly proposed Amendment Bill 2013.
Literature Review

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 Jhuma Sen158, Matrimonial Property Rights: Is India Ready For A Law?
“The Independence of women was envisaged as punctuate of triumph of equality for
women. This article extracts the rights of Indian wife in, in-laws-family especially after
the breakdown of marriage and discusses the nature of marital property. The advent of
divorce laws apart from freeing many women from the shackles of unhappy marriages
has also steered the phenomenon of destitution. Thus, the women’s property rights at the
time of marriage and upon divorce are highlighted to the pressing need for a uniform
matrimonial property law.”
The Law Commission Reports (LAW COM NO 343)159, Matrimonial Property,
Needs and Agreements
“The report is an idea to the Law Commission for England and Wales, on a project to
review the laws relating to marital property agreements. The report enhances the types
and nature of marital property agreements which can be divided into three types-
prenuptial agreements, post-nuptial agreements, finally the separation agreements. The
most important recommendations in the Report were related to financial needs and
marital property agreements.”
J.N.Chaudhary, Divorce in Indian Society: A Sociological Study of Marriage,
Disruption and Role Adjustment160
“In a field study of divorce J.N.Chaudhary refers, to the changing expectations of spouses
and their families after marriage. He has conducted a field study on divorce cases, their
causes and the aftermath of divorce too. Moreover he traces the fact that the decisions for
divorce is not an individual one, rather it is affected by socio-economic characteristics of
the concerned couple and the cultural surroundings. Though divorce is permitted by law,
yet socially it is not accepted universally. The author also describes the process of role
adjustment after divorce. This study is aimed at exploring the adjustment to divorce,
especially after the decree for divorce is passed by the law court. The focus is to study the
problems faced by divorce and process of adjustment after legal separation. In the present
study it is need to further litigation, i.e. need to file subsequent petitions for custody of

158 Jhuma Sen, Matrimonial Property Rights: Is India ready for a law? Available
at (http://docs.manupatra.in/newsline/articles/Upload/F2587F8B-1162-415A-8E76-6F4019530939.pdf).
159lc343_matrimonial_property.pdf, , http://www.lawcom.gov.uk/app/uploads/2015/03/lc343_matrimonial_property.pdf.
160 Chaudhary, J. N., Divorce in Indian Society: A Sociological Study of Marriage, Disruption and Role Adjustment, Jaipur :

Printwell Publishers, 1988.

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children and maintenance, which are closely related to Chaudhary's attention to the socio
- cultural aftermath of divorce. Additional litigation creates stress and economic problems
to all family members, especially women, children and aged dependent members.
Chaudhary's focus is also on disorganization and reorganization, through remarriage of
divorced couples. He points out that “the personality attributes, family environment and
false definitions of statuses are main causes of divorce and maladjustment in Hindu
household”.161”

CHAPTER-2
SPOUSAL PROPERTY
2.1 Meaning

“Marital property is all the assets and liabilities acquired during the course of the
marriage like home, cars, furniture, shares in a company, rental income and savings or
any debt and the marriage settlement is basically a written contract between the husband
and the wife upon their divorce for custody, maintenance etc. The idea of what is a
spousal property (otherwise called marital property) and what is a different
property involves perplexity, yet what is seen so far is that spousal property
incorporates all the portable or unfaltering property purchased by the spouse or
wife through their blended income after marriage or a different property which
they got together amid their marriage. Presently, separate property incorporates
property purchased before marriage or property acquired independently or a
blessing got before marriage or property purchased only from one's very own well
deserved cash and afterward it is utilized by that individual itself.”

“Presently the perplexity possibly emerges when there is a separation and after that
the topic of circulation of spousal property emerges. To the extent the marriage is
going solid, the life partners couldn't care less as to in who's name the property is
16107_chapter 2.pdf, , http://shodhganga.inflibnet.ac.in/bitstream/10603/34874/7/07_chapter%202.pdf.
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purchased and who is paying the cash. They plan their future as a deep rooted
undertaking and are hostile to the possibility of divorce162. Prior the fixation was
more on current needs, for example, sustenance, garments and so forth, however at
this point with the idea of portion buys and contracts, wedded couples are focusing
more on steady property, for example, house and so forth. In this way, the mates
either contribute monetarily similarly or with their aptitudes and diligent work.”

CHAPTER-3
SETTLEMENT PROPERTY
3.1 Divorce and Settlement of Spousal Property
“When a property is purchased by the couple amid their marriage never do they consider
a division of their property upon separation in light of the fact that nobody ever
contemplates that. They generally utilize every one of their properties together thus
regularly that, it is hard to close with respect to who needs it more. It is just amid the
separation procedures that the figuring of the measure of property division is finished.”
Presently separate is a troublesome circumstance for the ladies when contrasted with the
men on the grounds that not all ladies will be sufficiently qualified to work and acquire
an attractive pay. Once in a while the separated from the woman is at a lot harder position
than a widow when analysed monetarily. At the point when a man passes on then, the
widow turns into his beneficiary and in this way can get his property through
succession163. Be that as it may, in a separation this is no such thing, the woman isn't the
beneficiary and along these lines the subject of upkeep and bolster comes into the image.
“For upkeep, there are numerous arrangements in the Indian Law which talk about both
between interim maintenance and alimony164 . Figuring upkeep isn't that troublesome

162 Jhuma Sen, Matrimonial Property Rights: Is India ready for a law? Available
at (http://docs.manupatra.in/newsline/articles/Upload/F2587F8B-1162-415A-8E76-6F4019530939.pdf)
163Hindu Succession Act, 1956
164Includes Hindu Marriage act, Special Marriage act, Parsi marriage and divorce act, Indian divorce act, section 125 CrPC etc

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when contrasted with ascertaining the measure of offer in the isolated property due to the
way that there are commonly two sorts of ladies when we take a gander at them for the
commitment towards the purchasing of that property. One of them is the common
labourers who, gains enough cash so she can pool in her cash with that of her better half's
to purchase any property and the other one is the stay at home, who does not acquire but
rather deals with the family, youngsters and the entire house and furthermore bolsters her
significant other in pretty much every way regardless of whether not monetarily. It is said
that her physical commitment is no not as much as her significant other's monetary
contribution165. It is hard to figure the offer in the property with respect to how much will
the stay at home ladies will get upon separation. Along these lines on account of White v
White166 the English court has said that the household and the money related commitment
of both the mates need to been seen and assessed similarly. In this previously mentioned
case the court likewise elucidates the significance of Section 25 (2) (f) of the Matrimonial
Causes Act, 1973, so it says that this Section does not discuss the commitment of the
gatherings as far as riches but instead discussions about the commitment made by the
gatherings towards the welfare of the family167.”
“So the wide issue which the creator might want to answer is – How to discover a trade
off between the spouse and the wife with the goal that them two are dealt with similarly?
also, How to perceive the commitment of the filling in just as the non-working lady
similarly in this sort of non-legally binding relationship, for example, purchasing of
property in a marriage?”
Indian courts seldom talk about the measurement of a housewife's commitment in the
family. Anyway there are some modest endeavours put in by the Apex court and in this
manner on account of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and
Ors168.states that “For repaying a spouse for loss of a wife, in this way courts think about
the loss of salary to the family. It may not be troublesome when she had been winning.
Indeed, even generally a spouse's commitment to the family as far as cash can generally
165
English law now recognizes, “The contributions made by each of the by looking after the home or caring for the
family” as one of the consideration which fee court has to take into account while making any financial’provision on
divorce. See section 25(1) (f) of the Matrimonial Causes Act, 1973. The provision first originated in section 5(1) (f) ,
Matrimonial Proceedings and Property Act, 1970.
166Supra Note 8.
167
Supra Note 11.
168
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors, Criminal Appeal Nos. 1191-1194 Of 2005
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be worked out. Each housewife makes a commitment to her family. It is equipped for
estimating in financial terms in spite of the fact that the enthusiastic part of it can't be.”
In every one of those nations any place there are laws identifying with the settlement of
wedding property upon separation every one of them pursue the standard of equivalent
division. In this way, the essential thought is that every mate should leave the marriage
on the equivalent monetary or budgetary level169.

CHAPTER-4
CHANGING TRENDS AND LAWS OF SETTLEMENT OF SPOUSAL
PROPERTY

The Marriage Laws (Amendment) Bill, 2013

At long last, in the year 2013, there was a bill that was passed by the Rajya sabha saying
that now the ladies would get half offer in the property of the spouse upon separation.
This is “The Marriage Laws (Amendment) Bill, 2013”.
“A noteworthy change is that this standard is relevant to every one of the properties of the
spouse gained when the marriage, while as in the prior law the wife gets share just in
those properties which are procured by husband simply after marriage. In this way, in the
event that it is a joint property, at that point first she will get her half offer then later the
half of half offer of the spouse as well. In this way, giving her a 75% offer in the property
and the spouse only a 25%.”
“What the creator believes is this is an enemy of male law, since now the spouse will be
in a lower position. Despite the fact that the Parliament has the directly to make
uncommon laws for ladies under Article 15 yet at the same time both the genders ought
to be in an equivalent balance as opposed to doing this sort of bad form. Both the
gatherings while experiencing a separation endure candidly just as monetarily. Which
169Supra Note 11.
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implies that it isn't generally the spouse who endures yet the husband can likewise endure
similarly, along these lines on the off chance that we have such a law, at that point the
husband will endure more than the wife. We should attempt to have every one of the laws
in our nation which are unbiased and parallel. As a result of the way that after marriage
when a couple purchases property then both are the equivalent accomplices of the
property in a reasonable and a real way subsequently can any anyone explain why the
spouse will get 75% of the property and the husband simply 25% when really he has
contributed equivalent add up to construct or purchase this property. Can any anyone
explain why the ladies should give her stridhan which she has in her own name and just
the spouse needs to now give his different property which incorporates the familial
property, and property got through blessing amid separation? Isn't this oppressive? Prior
there was a clamour that ladies were constantly segregated however at this point every
one of the laws for the sake of elevating the female area of the general public are drafting
such laws that are really keeping the ladies on a higher platform than men as opposed to
keeping them on an equivalent balance. This revision can offer ascent to abuse of this
law, a comparable circumstance with regards to the abuse of Section 498A of the Indian
Penal Code. One of the issues that this revision would have begun is, that it would have
prompted a decline in the sacredness of marriage. None of the spouses could ever believe
their wives and in this manner they could never purchase property in his name and rather
would get it in his mom's name or father's name or some other relative's name with the
goal that his better half won't have a directly in that property upon separation.”
However at this point luckily this change was just passed by the Upper house and not by
the Lower house and along these lines the Hindu Marriage Act, 1955 and the Special
Marriage Act, 1954 has not been revised.

Comparison with UK
“Prior as indicated by Blackstone, upon marriage the lady consequently lost her
legitimate character. The spouse and the wife were viewed as one single unit. Also, in
this manner he says “depend practically all the legitimate rights, obligations and

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inabilities that both of them obtains by marriage”170. Along these lines, in the event that
we pass by this important, at that point whatever the lady getsafter her marriage or amid
the marriage as a blessing except if and until it is determined that it is for claim individual
utilize then it would naturally go to the spouse as she has no legitimate personality.
Hence, as it were, regardless of whether the spouse passed on the majority of the property
as opposed to heading off to the wife it would go to his lawful heirs171. This guideline
was rehearsed till 1870 and accordingly the arrangement which was polished by the
spouse was “what is yours is mine; will be mine is my own 172
”. Be that as it may, in the
wake of making certain corrections and laws173 at last in 1935 the Law Reform (Married
Women and Tort Feasors) Act, came up which at last perceived the idea of
correspondence of status and limit, division of property and partition of liabilities174.”
So now in the English Law, the primary spotlight is on to make satisfactory budgetary
arrangements for the life partners and youngsters and afterward make a legitimate
division of the property among the spouses175. Along these lines, as indicated by Section
39 of the Maintenance Agreement Act, 1957 UK law the spouse has a privilege in the
property of the wife on the off chance that she has been demonstrated liable of infidelity.
Essentially, agreeing to section 27 and 28 of the said Act, the spouse has a privilege in
the property of the husband on the off chance that he is demonstrated to have betrayed
her for no specific reason. Therefore, the court of England has constantly endeavoured to
debilitate indecencies and has attempted to support morality. 176
“And yet on the off chance that it is demonstrated that the marital home is in name of
both the gatherings then the court gives an equivalent offer to both the gatherings. It is
just when the spouse has contributed monetarily and the wife just remains then just the
police of 33% is utilized.”

CHAPTER-5
170Blackstone, “Commentaries on the Laws of England,” Vol. I, at p. 430.
171For a succinct summary of law on this point, see Dicey, “Lectures on the Relation between Law and Public Opinion in
England During the Nineteenth Century,” 2″‘* ed., (1952) at p. 372/12.
172Virendra Kumar, “Alimony and Maintenance.” 1″ ed., 1978 at p. 37.
173Married Woman’s Property Act, 1870; Married Women’s Property Act, 1872; for a summary of Law see B.K. Sharma,

Divorce Law in India, pp. 362 et. Seq.

174Section I (a) of the Law Reform ( Married Women and Tort Feasors) Act 1935, provided; “a married woman shall be capable

of acquiring, holding and disposing of, any property as if she were a female sole.”
175Dr. Paras Diwan “The Law of Marriage and Divorce” 5 th ed. (2008) Pg. 716.
176B.K. Sharma, Vijay Nagpal in “Disposal/Distribution Of Spousal Property In The Wake Of Dissolution Of Marriage”.

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 CONCLUSION

“While there were times when ladies were denied of their offer in riches at the season of
separation in India and there was a prerequisite of solid laws which centres on privileges
of ladies. In any case, with this specific alteration nothing will be changed aside from the
way that currently there are more escape clauses for ladies to abuse and that the holiness
and the virtue of marriage will be lost in light of the fact that no spouse will need to
purchase a property in his name and in this way there will be an absence of trust among
everybody in the family towards the wife. Along these lines, presently fortunately as this
revision won't occur therefore this previously mentioned strain is decreased.
Subsequently, it would be extraordinary if there would have been some sort of adjusted
law, and some idea ought to have gone for the most pessimistic scenarios.”
“What is suggested is that, India should begin following the idea of a pre-matrimonial
understanding since it would deal with every one of the rights and offers of both the life
partners in the relational unions and after the marriage closes. Separate property ought to
dependably stay separate property and no law at all should endeavour to combine it in the
domain of joint or conjugal property.”
“Thus, it is vital that paying little heed to whether the spouse - monetarily or fiscally -
adds to the family salary, her commitment to a family unit as far as family unit work,
home administration, and kid bearing and care ought to qualifies her for an equivalent
offer in a marriage and in this manner all property for money increased after marriage
ought to be partitioned similarly upon separation.”

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CYBER CRIMES: A WRONG USE OF TECHNOLOGY AGAINST THE
SOCIETY

GAURAV PUROHIT

AKHIL KARAMCHANDANI

ABSTRACT

“Cyber Security is as important as Economic Safety in these days”. Like many other
crimes Cyber Crimes are also nowadays increasing . Crime committed using a computer
and the internet to steal a person’s identity or illegal imports or malicious programs.
Cyber Crimes is very harmful to each and every individual as it directly includes theft of
their personal data which can harm their respect in the society, cyber crime have a great
deal of negative impact on our society and economy and business because for our society
cyber crimes could be seen in the form of bullying, identity theft, cyber stalking and
cyber defamation which results creating a very awkward situation for the victims of these
attacks. Different forms of Cyber Crimes affecting our society are as follows :

• Cyber Pornography
• Cyber Terrorism
• Cyber Bullying
• Exploitation Of Girls and Trafficking Of Children
• Cyber Harassment

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Cyber Crimes affects Economy and Business as well as there are many cases of Data
Theft and other Cyber Attacks on some big business houses recorded in the last few
years. Every year Companies spend million of Dollars in order to secure their system
from any kind of Cyber Theft, misuse of their documents. Cyber Crimes not only affect
any individual economically but they affect them mentally also like in case of woman’s
outraging the modesty of women by sharing their pictures on internet and it also hamper
the mental growth of any teenager these days as many teenagers get into this cyber trap
and ending their lives by suicides and depression. In order to protect all individuals from
cyber crimes there are many laws relating to prevention of cyber crimes they are as
follows:

1. Information and Technology Act 2000

2. Indian Penal Code 1860

INTRODUCTION

Cyber Crimes can be defined as Acts that are punishable by the Informational
Technology Act, moreover the Indian Penal Code have also some provisions regarding
the cyber laws. Cyber Crimes are not defined anywhere particularly in general these are
does not differ from crime in te conventional sense except the method adopted for
commission of crime. As there are different forms of misuse of information technology a
exact definition of cyber crime is not possible, and if the misuse of information
technology is finalized then the new ways can be easily drawn by the experts. Moreover
Cyber Crime is any illegal behavior directed by means of electric operations that targets
the security of computer systems and the data proceed by them.

In order to deal with Cyber Crimes Cyber Laws were Enacted which generally deals with
all aspect of Electronic Communication and regulatory aspect of internet. The Cyber Law
is the branch of law which handles the legal aspect while using the internet. It means that
anything concerned with related to any legal activity of the internet user in the cyberspace
is covered in the cyber law. The term Cyber Crime is the creation of Information
Technology World and also may said to be those species of which genus is the
conventional crime and the computer is either an object or subject of the conduct
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constituting crime it could also be said that any criminal activity that uses computer either
as an instrumentality or as a means for the commencement of other crimes.

ESSENTIALS OF CYBER CRIME

As nowadays the development in technology has created new ways to commit a crime
which is called Cyber Crime but it is radically different from the normal crime and its
characteristics are all Together different from that of a conventional crime the most
common feature of such crimes are that

• Easy to commit
• Difficult to detect
• Harder to prove

In many cases even the victim affected by cyber crime is unaware of its occurrence, this
could be due to lack of adequate skills and also the knowledge as to how to handle the
computer system. Cyber Crime have been categorized as high tech offences because they
are committed by using computer network and telecommunication technology in a wrong
and abusive manner and has a range to effect the socioeconomic and the legal rights of
people. Like any other cyber crimes the high technology cyber crimes which are
committed with the help of computer networks has the following problems

1. The perpetrators as well as victim both remain unanonymous and are difficult to
be identified
2. There are many unspecified potential customers that are used which may be far
away from the place of crime
3. The evidence against the crime could easily be erased thus making the victim
helpless

TYPES OF CYBER CRIMES

CYBER PORNOGRAPHY- It could be defined as an act of using cyber space to create,

display, import or publish pornography or obscene material especially depicting children
engaged in sexual acts with adults therefore cyber pornography is considered as an
criminal offence classified as causing harm to the persons. In May 2002 one of the
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biggest publicized catches of Child Pornography Perpetrators was launched which was
named Operation Ore as such pornography access was increasing the FBI started
accessing the credit card details, e-mail address and home addresses of thousands of
pornographers accessing child pornography sites and the cases were given to the British
police for investigation. After the investigation the arrest of a computer consultant in
taxes that led to an International Investigation that jailed Thomas Reddy with an life
imprisonment for running the pornographic ring.

After this the following acts were implemented

Child Obscenity and Pornography Prevention Act: The act was introduced on 30 April
2002 by US Representative Lamar Smith with the motive to stop Child Pornography and
Obscenity Trafficking, the solicitation of visual depiction of children under the age of 18
involving themselves in sexually explicit conduct and the use of child pornography and
obscenity to carry out crimes against children. Further under this act it was made illegal
to produce, Distribute or own computer made child pornography images appearing to be
same to that of the image of a real children finally through this act the government’s
access to e-mail was expanded without the order of the courts.

In India under the Information Technology Act 2000 Cyber Pornography is a grey area of
law where it is illegal under the section 67 of the IT Act 2000 makes the following act
punishable up to 3 years and fine up to 5 lakhs.

• Publication- This includes uploading on a website, whatsapp groups or any other

digital portals where 3rd parties could have access to obscenity scenes
• Transmission- This includes sending obscene photos to any person via e-mail
messaging or any form of digital media.

In the famous Bazee.com the CEO Avinash Bajaj was arrested for an advertisement by a
user to sell DPS sex scandal video it was held in this case that intermediary guidelines
were passed in the year 2001 where an intermediary liability would be absolved if they
exercise due diligence to ensure that such content is not displayed on their portal.177

177https://www.yourdictionery.com/cyberpornography

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CYBER TERRORISM

Cyber Terrorism is defined as using the internet to conduct acts which are violent in
nature that results, threatens, loss of life and body injury with an aim to achieve political
and ideological games through such acts. Sometimes Internet Terrorism are also
considered as an act where terrorist activities which includes act of deliberate, large scale
disruption of computer networks , mainly of computer networks which are connected to
internet by the means of tools such as computer viruses, computer worms and other
malicious software and hardware methods and various programming scripts. In regard to
India the country was among top five nations which were affected by the Cyber
Terrorism as well as the country is on the threshold of a digital age and the use of
Aadhaar Card or any other identity is becoming Ubiquitous. The most dangerous thing is
that if it becomes easier to make an identity online it could be bought and can be used
wrongfully by hackers anywhere in the world.

The US Department of Defense gives charge to the United States Strategic Command
with the duty of combating Cyber Terrorism and this was accomplished through the Joint
Task Force Global Network Corporation which is the operational component supporting.
In the year 2006 the Secretary of Air Force announced the creation of Air Force’s
Newest MAJCOM, which is the Air Force Cyber Command and their task was to
monitor and defend America from Cyber Terrorism. 178

CYBER BULLYING

It is also known as Cyber Harassment and it is considered as a form of bullying with the
use of electrical means, It has become increasingly common and is mainly practiced by
teenagers. Cyber Bullying is done when someone tease, bully or harass other on social
media sites which includes posting rumors, threats, sexual remarks victims personal
information or speech containing abusive language against each other. It can take place
on social media such as Facebook and Twitter it was stated that 93% of young people
between age of 12 to 17 are indulging in such activities as they spend most of their time

178 https//en.wikipedia.org/wiki/Cyberterrorism

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on social media. As per 2013 Pew Research study 8 out of 10 teenagers who use social
media indulge in such activities and share such information which is not meant to be
shared.

There are laws that address online harassment of children as well as protect adult cyber
stalking victims. Currently there are 45 Cyber Stalking Laws which are enacted while
there are some sites which specializes in law that protect victims belong to the age of 18
or under. The global cyber law database aims to become comprehensive and authoritative
source of law for all countries, states including Florida, California and Missouri have
developed state laws against Cyber Bullying.179

EXPLOITATION OF GIRLS AND TRAFFICKING OF CHILDREN

It was found out that every second one women in India becomes the victim of Cyber
Crime and thus the online platform has become a latest platform where a women’s
dignity, privacy and security is again and again being challenged every moment. Women
Exploitation includes trolling, abusing, threatening, abusing, body shaming, revenge porn
and other forms through which dignity of women is harmed Everyday. In Cyber Crimes
against women the effect is more psychological than Physical while the focus of the loss
which are ensuring women safety is focused on more mental harm. It was also found out
that National Crime Bureau Of India does not maintain any separate record of the Cyber
Crimes happening against women. In Cyber Crimes the technology is used as a main
resource by the perpetrators whose aim is to defame women by sending obscene
messages and emails. The main reason behind increasing Cyber Crimes against women in
India is that the Indian women are not able to report such crimes immediately as they are
not aware as to where such crimes are to be reported or sometimes due to the society they
have to face.180

CYBER HARASSMENT

179https://www.healthychildren.org/Engish/family-life/media/Pages/Cyberbulling.aspx

180www.legalseriveindia.com/articles/tech_wo.html

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Cyber Harassment is the use of Information and Communication Technology with a
motive to harass, control, manipulate or habitually disparage any human being without
causing him any physical harm. It is different from physical harassment as it does not
involve face to face contact. It requires the use of ICT and the person is abused verbally,
sexually, emotionally or socially. The main objective of Cyber Harassment is to gain
power and control over the targeted victims. When in the case of Cyber Harassment the
minor is involved the term is known as Cyber Bullying. When direct or implied physical
harm is caused to the targeted victim the Cyber Harassment becomes Cyber Stalking.181

LEGAL PROVISIONS ON ONLINE HARASSMENT

As the cases of Online Harassment was increasing day by day Section 354D of Indian
Penal Code which was added by criminal law (Amendment) Act 2013 especially
mentions the act of stalking as whosoever follows a person and contacts or attempts to
contacts such persons with a motive to foster personal interaction repeatedly despite a
clear indication of disinterest by such person is committed for the offence of stalking.

Section 354A punishes offence of sexual harassment with 3 years of imprisonment or

fine or both.

Section 503 Punishes Criminal Intimidation as threats made to any person causing injury
to his reputation or to make victim change course of action regarding anything victim
otherwise do or not do. The offence under Section 499 and Section 503 are punishable
with imprisonment which may extend to 2 years or fine or both.

CAUSES OF CYBER CRIMES

As we know that Crime is a social phenomenon and various causes behind it is studied
by various criminologists and they have given different reasons as Cyber Crimes are done
by use technology and the Technology makes the life of Human Beings easy thus
everyone is attracted to this technology without having sufficient knowledge so following
are the main reasons behind commission of Cyber Crimes:-

181https://www.ipredator.co/cyber-harassment/

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 • Negligence Of Network Users- As Negligence is closely related to human acts so
it is probable that while protecting the computer system there might be negligence
on part of the Owner so thus user which may provide an opportunity to Cyber
Criminal for gaining unauthorized and illegal access over the computer.
• Non Availability Or loss of Evidence- In the cases of Cyber Crime the main issue
which comes before the law enforcement and investigating agencies is how to
procure or preserve the evidences unlike many other offences it is very difficult to
collect sufficient evidence of Cyber Crime which could be used to establish the
guilt of the Cyber Accused in front of the Court. Thus this encourages them to
indulge in criminal activities without
• Thinking Of the Society- It is very wrong to say that the thinking of todays
generation is changing but they are still thinking like old people and this could be
proven with an example that whenever any girl post any picture of her on her
profile then some of her followers write abusive comments with an intention to
troll her or make her mentally weak and judging her character on the Picture she
posted thus becoming a big cause behind Cyber Crimes.
• Unauthorized Use of Internet- As nowadays The Social Media has become a big
platform for the teenagers to gain popularity and with the motive of this they do
abusive comments and write indecent language on the posts of celebrities and they
take it as adventure or fun without having any knowledge of the future
consequences of their wrongful acts.
• General Mischief and quest to become famous
• Revenge182

EFFECTS OF CYBER CRIME

1. Psychological Effects- The Psychological Effects could mainly be seen in

teenagers as they try to conduct acts like adults by making abusive comments on
someone else profile this affects them mentally

182http://krazytech.com/technical-papers/cyber-crimes

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 2. Sometimes Cyber Crimes also affect individuals mentally and it results into
depression, anxiety, stress and sometimes due to the fear of image in public some
individuals commit suicides.
3. As The Wrongdoer could easily escape from small Cyber Crimes this boost their
Self Confidence and they commit big Cyber Crimes as they know that they could
not be easily identified.
4. Negative Impact Of Cyber Crimes on Religions- Sometimes a particular religion is
blamed for a wrongful act happened in the society and by making the social media
a platform such religion is humiliated or trolled by posting immoral posters so by
act of any individual it is wrong that people of particular religion would be
humiliated and this it results they feel that they are discriminated by the society.

CONCLUSION

At the End we would like to conclude it by asking few questions that for what purpose
the Social Media is and for what purpose it is being used by the youth? Can’t it be used
for bringing a positive change in the society, the answer of these questions is hidden in
the acts done by youngsters as we have again and again mentioned the use of Social
Media is only done for getting popularity or to take revenge by various means. It is very
important that today’s youth must be made aware regarding the future consequences and
this was done not only by various Organizations but also by some Youth Channels such
as MTV by introducing serials like MTV WEBBED and Troll Police which could be seen
as a perfect example to make youth aware that how their wrongful acts create negative
impact on the society as a whole as they showcase the cases in which the Trollers are
called upon on the show and made guilty for their wrongful acts as the main aim of the
show is to make them realize by making them meet the person they trolled on social
media. One of the main causes or reasons of increasing suicides is also Cyber Crime as it
is used as a mean for taking revenge by posting the victim’s images or obscene videos
and this revenge gives negative impact on victim’s sentiments or feeling. It is not always
the boys that use social media to harass but sometimes even girls try to harass boys by
posting the screenshots on their profile to gain sympathy and for damaging reputation of
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Boys in front of her friends and the whole society. Now as we earlier mentioned some
reasons of cyber crime and the main reason which came is that the accused could easily
escaoe due to lack of evidenced and somewhat inefficiency of investigating agencies.
Even sometimes if the crime is committed against the women and with the fear to face
the society and fear of being embarrassed they do not file suit against the wrongdoer and
not filing the cases boost self confidence of Cyber Criminals to Continue their wrongful
acts. So in order to put light on suggestions we would like to say that there should be a
special tribunal for handling Cyber Crime cases by keeping the personal information of
the victim confidential. And even the Investigation Agencies should recruit more
Specialized Experts that could easily deal or locate and find suitable evidences against
the person so that a fair trial could be done against the wrongdoer. At the end we can use
social media for stopping such crimes by using high level security for maintaining
privacy of the person and the account must be fully verified to stop Troller from trolling
anyone. As the society could not prevent such crimes but their small steps by creating
awareness or giving knowledge to their upcoming generations for the right use of social
media could make a big difference and take our society to bright and sage future and to
use the social media in the positive manner rather than trolling anyone.

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 CASE COMMENT ON
INDEPENDENT THOUGHT
V. UNION OF INDIA
- Rishab Kumar

In Independent Thought v. Union of India,[1] a division bench of the Supreme Court of

India read down Exception 2 to Section 375, Indian Penal Code (hereinafter, IPC), which
now stands thus altered,

“Sexual intercourse by a man with his wife, the wife not being less than 18 years of age,
is not rape”.

Responses to the decision have been mixed, though the general consensus appears to be
that the decision raises as many issues about child sexual abuse and child marriage as it
clarifies regarding marital rape of minor wives.[2]

On one point, however, the Supreme Court was categorical: that the decision would not
apply to marital rape of adult women (hereinafter, marital rape simpliciter). The Court
stated,

“We make it clear that we have refrained from making any observation with regard to the
marital rape of a woman who is 18 years of age and above since that issue is not before
us at all. Therefore we should not be understood to advert to that issue even
collaterally.”[3]

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Yet, in addressing the contentions of both sides, the Supreme Court has laid the
groundwork to have the exemption to marital rape declared unconstitutional. First, the
Supreme Court considered international instruments to which India is a signatory, such as
the Convention on the Rights of the Child (CRC) and the Convention for the Elimination
of all forms of Discrimination against Women (CEDAW). Since the marital rape
exemption legitimized the practice of ‘child marriage’, it was found to be in
contravention of the obligations imposed by these instruments. Secondly, the Exception
was found to be derogatory of Article 14 and 21, and therefore, unconstitutional. Thirdly,
it was observed that the exemption was inconsistent with other laws in force, and also
created internal contradictions within the IPC. Finally, it was held that the social impact
of child marriage, which was legitimized by the marital rape exemption, was too great to
let the exemption stand on the statute book. In this piece, I shall seek to demonstrate how
each of these arguments applies mutatis mutandis to marital rape simpliciter.

India’s International Obligations

The Supreme Court referred to several national and international studies detailing the
harms of child marriage. Reference was also made to the CRC and other international
treaties which obligate the state to prioritize the best interest of the child, an obligation
violated by Exception 2 to Section 375, IPC. Since most of these studies and international
instruments focus on child marriage and offences against children, they would not be
applicable to marital rape simpliciter.

However, the Supreme Court also referred to the In-depth Study on all Forms of Violence
against Women submitted by the Secretary-General of the United Nations to the General
Assembly,[4] and the CEDAW.[5] The Court relied on the Study to highlight the point
that early marriage was a harmful traditional practice. Given the persuasive value
attached to the Study by the Court, it must be noted that it also refers to marital rape as a
specific form of violence against women which ought to be criminalised.[6] Similarly,
reference was made to Article 16.2 of the CEDAW, which provides, “The betrothal and
the marriage of a child shall have no legal effect, and all necessary action, including
legislation, shall be taken to specify a minimum age for marriage and to make the
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registration of marriages in an official registry compulsory.”In citing this provision, the
Court sought to draw attention to the obligation imposed by CEDAW to end child
marriages. It was noted that non-consensual sexual intercourse by a husband with a child-
bride “would amount to a violation of her human right to liberty or dignity embodied in
international conventions accepted by India such as the Convention of the Rights of the
Child and the Convention on the Elimination of all forms of Discrimination against
Women.”[7] In doing this, the Court equated the obligation placed on the state by both
conventions.

Clearly, then, other provisions of CEDAW ought to be viewed with the same gravitas.
Article 16(g) of the CEDAW obligates state parties to ensure that women do not suffer
discrimination within marriage, especially in the exercise of personal rights.[8] The right
to consent, or indeed, refuse consent, to sexual intercourse is inherent to a person’s bodily
integrity and sexual autonomy. Therefore, it is a fundamental personal right, deserving of
protection from the state.

Constitutionality of the Marital Rape Exemption

The exception to marital rape, as applicable to minor girls, was declared unconstitutional
for violating two fundamental rights: Article 14[9] and Article 21,[10] Constitution of
India.

It was held that there was no discernable object behind the distinction between “married”
and “unmarried” minor girls. Even if there were an object, the Court added, there was no
rational nexus between the marital status of a minor girl on the one hand, and the
“unclear object” on the other. The classification was, therefore, held to be arbitrary, and
violative of Article 14. It is difficult to understand how this rationale can be limited to
minor girls alone. There is no discernible object behind classifying women into “married”
and “unmarried” when considering their right to refuse consent to sexual intercourse. A
woman cannot be deemed to have implicitly consented to sexual intercourse with her
husband simply by virtue of marriage. In fact, the same sentiment was expressed by the
Supreme Court, which held,

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“It must be remembered that those days are long gone when a married woman or a
married girl child [not just a married girl child] could be treated as subordinate to her
husband or at his beck and call or as his property. Constitutionally a female [not just a
minor female] has equal rights as a male and no statute should be interpreted or
understood to derogate from this position. If there is some theory that propounds such an
unconstitutional myth, then that theory deserves to be completely
demolished.”[11] [Emphasis added]

It was further held that the exception contravenes the fundamental right of a girl child
under Article 21 to live a life of dignity.

“The right of a girl child to maintain her bodily integrity is effectively destroyed by a
traditional practice sanctified by the IPC. Her husband, for the purposes of Section 375
of the IPC, effectively has full control over her body and can subject her to sexual
intercourse without her consent or without her willingness since such an activity
would not be rape.”[12]

The “traditional practice” being referred to above is child marriage. The IPC sanctified
this practice by allowing the husband of a girl child to have sexual intercourse with her,
regardless of her consent, provided she was not under the age of 15. The harm identified
by the Court is that the right of the girl child to maintain her bodily integrity is destroyed
when her husband is given full control over her body, thereby reducing her to nothing
more than his property. By denying a whole category of women the right to refuse
consent to sexual intercourse with their husbands, merely by virtue of being married, the
IPC similarly destroys the right of this category of adult women to their bodily integrity.
Thus, the basis of the violation of Article 21, as identified by the Court itself, is
applicable equally, and in the same way, to adult married women, as it is to child brides.

Additionally, it was held that the exception contravenes Article 21 by taking away the
girl child’s right to make her own reproductive choices. This is a harm more directly
attributable to child marriage, and only incidentally to the exception which legitimizes
the practice. Marital rape of a major woman may, similarly, result in a pregnancy, which

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the woman may be forced to carry to term. This would also be a contravention of her
right to reproductive choice, but no more, perhaps, than if a man were to force a woman
to carry his child, conceived after consensual sex. In other words, it is not the act
of marital rape which contravenes the reproductive choice of a woman, but forcing her to
carry the child to term, or preventing her from aborting the foetus.

Inconsistency with other Laws

The Supreme Court observed that the marital rape exemption was inconsistent with other
laws such as the Protection of Children from Sexual Offences Act, 2012 (hereinafter,
POCSO Act),[13] and the Protection of Women from Domestic Violence Act, 2005
(hereinafter, PWDVA),[14]which criminalise non-consensual sexual intercourse with a
minor, and sexual abuse, respectively.

It was also held that the exemption made the IPC internally inconsistent, since non-
consensual, non-penetrative sexual acts by a man with his wife continue to be criminally
punishable.[15]A girl under the age of 18 is incapable of consenting to sexual activity or
intercourse as per legislations other than the IPC, notably the POCSO Act. The POCSO
Act, in fact, specifically makes sexual intercourse with a minor, by a person related to her
by marriage, an aggravated offence under Section 5.[16] The Exception to Section 375,
IPC, which presumed a girl child’s consent merely because she is married, was therefore
held to be in conflict with the POCSO Act.

If the law is anomalous for presuming the consent of girls who are legally incapable of
consenting, it is equally contradictory if it disregards the lack of consent of women
who are legally capable of consenting. The Criminal Law (Amendment Act), 2013
defined consent to mean unequivocal voluntary agreement, or a communication that
conveys willingness, to participate in a specific sexual act.[17] This means that consent to
one sexual act does not extend to other acts, and consent to sexual acts with a person on
one occasion does not remain valid after the said occasion. Therefore, it cannot be
presumed that by virtue of having consented to marry a man, his wife thereby implicitly
consents to let him have sexual intercourse with her for as long as they remain married.

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Similarly, under Section 3(a) of the PWDVA, the definition of ‘domestic abuse’ includes
“causing physical abuse, sexual abuse, verbal and emotional abuse and economic
abuse” (emphasis added). Sexual abuse, in turn, is defined as “any conduct of a sexual
nature that abuses, humiliates, degrades or otherwise violates the dignity of
woman”.[18]Clearly, sexual intercourse without consent would fall squarely into this
definition. Since the PWDVA does not apply specifically to child brides or minors who
are in domestic relationships, but to all women who are married, or in relationships in the
nature of marriage, this contradiction also extends to marital rape simpliciter.

It was further noted that the marital rape exemption makes the IPC internally
inconsistent. While sexual intercourse by a man with his wife is exempted from the ambit
of rape, lesser sexual offences such as outraging the modesty of a woman, or sexual
harassment, would be criminally punishable even when committed by a man against his
wife. Thus, a man would not be criminally liable for vaginally penetrating his wife with
his penis,[19] without her consent, but could be prosecuted for kissing her without her
consent. This absurdity, needless to say, has little to do with the age of the wife, and
would arise even if she were above the age of 18.

Social Impact

A large part of the judgement in Independent Thought is dedicated to child marriage and
its resultant evils. The Supreme Court observed that the exception, as it relates to minor
girls, seeks to legitimize the practice of child marriage, since child marriage inevitably
entails sex with the minor bride. As a consequence, it also condones the negative effects
child marriage has on the girl child, on any prospective children, and on society at large.
While a number of these evils, such as the loss of reproductive choice, or the destruction
of confidence and self-esteem, would also apply to victims of marital rape simpliciter,
certain ills of child marriage may not. For instance, child birth may not take the
same physical toll on a woman who is above the age of 18 compared to a child bride, and
may not, therefore, have the intergenerational effect of producing malnourished children.
However, irrespective of her age, a woman who is raped by her husband may suffer

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serious mental and emotional trauma. If she were also forced to bear his child, her trauma
and injury would certainly reflect in the way the child is reared.

Another argument commonly made against criminalising marital rape is that it would
‘destroy the institution of marriage’. This argument was orally made by the respondents
in Independent Thought, the Union of India, adverting to the 167th Report of the
Parliamentary Standing Committee of the Rajya Sabha (presented in March 2013).
Interestingly, the report itself refers to marital rape simpliciter, and not of minor girls
alone. The Supreme Court categorically rejected this contention with the following
observations,

“The view that marital rape of a girl child has the potential of destroying the institution of
marriage cannot be accepted. Marriage is not institutional but personal – nothing can
destroy the ‘institution’ of marriage except a statute that makes marriage illegal and
punishable.”[20] [Emphasis added]

Though the Court demolished the argument of the respondent in the context of the marital
rape of minor girls, their response was addressed to the nature of marriage, the idea of an
‘institution of marriage’, and the effect of laws on them. Therefore, the scope of the
response can, by no means, be limited only to marital rape of girls under the age of 18.

It is clear that the question before the Supreme Court was not the recognition of marital
rape simpliciter as a crime. However, in deciding the constitutionality of Exception 2 to
Section 375, IPC as applicable to minor girls, the Court has inevitably made observations,
or relied on grounds, which are applicable to the larger problem of marital rape. The
groundwork to have the exemption declared unconstitutional in its entirety has already
been laid. All that remains is for someone to pick up where Independent Thought left off.

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 Link between UCC and Gender justice.

Name of Author: RITIK KUMAR

ABSTRACT

The uniform civil code is an idea of one nation-one law, irrespective of the religion,
caste, province or gender of the citizen. Article 35 of the draft Constitution of India was
added as a part of the directive principles of the state policy in part IV of the constitution
of India and UCC as article 44. It was incorporated in the constitution as an aspect which
would be fulfilled when the nation would be ready to accept it and the social acceptance
of UCC could be made. The uniform civil code (UCC) has always been piped as an
effective tool to realize and effect the empowerment of the Indian woman and uplifting
their status in the social institutions such as family and marriage. The human rights of
women in India have always been associated with the personal laws which involve social
institutions mainly. Idea behind a uniform civil code is that religion must be restricted to
spheres which legitimately appertain to religion, and the rest of life must be regulated,
unified and modified in such a manner that we may evolve as early as possible, a strong
and consolidate nation, which can’t be achieved in present prevailing gender disparity.
This paper tries to evaluate the Uniform civil code, its importance in promoting gender
justice, Supreme Court on gender justice through UCC and personal laws.

INTRODUCTION: India is a country of multi-religious and multi-languages. India

being a diverse nation with n number of people having their own culture, traditions,
customs and religion, are governed by their own personal laws. There are different codes
for different communities like Hindu Marriage Act, Hindu Succession Act, Hindu
Adoption and Maintenance Act, Hindu Guardianship Act, and Muslims and Christians
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are governed by their personal laws. But due to the different codes and personal laws, it is
at times difficult to distribute justice based on religion; therefore, decisive steps were
taken towards national consolidation in form of idea of Uniform Civil Code, which was
for the first time mooted seriously in the Constituent Assembly in 1947. In the
Constitution of India, Uniform Civil Code is envisaged in Article 44, which covers every
aspect of law except matrimonial laws. The object of Article 44 is that, as and when, the
majority of Parliament thinks proper, an attempt may be made to unify the Personal laws
of the country, i.e., uniformity in law in matters of marriage, divorce, succession,
irrespective of religion, community, etc. The Constitution of India in article 44 enjoins,
The State shall endeavor to secure for the citizens a uniform civil code throughout the
territory of India. But it is more than 60 years, yet we have not been able to attain that
level of sophistication to accept and adopt the Constitutional mandate. It is crystal clear
that the term uniform civil code was used in relation to the personal laws of different
communities183.Provision of uniform civil code (UCC) was made to promote unity and
integrity which are cherished goal enshrined in the preamble of our constitution. Fear that
implementation of UCC will infringe the freedom of religion guaranteed by article 25 is
main roadblock in its implementation. An objection was taken to this provision in the
constituent assembly by several Muslim members who apprehended that their personal
laws might be abrogated. This objection was met by pointing out:

i. That India had already achieved a uniformity of law over a vast area;
ii. That though there was diversity in personal laws, there was nothing sacrosanct
about them:
iii. The secular activities, such as, inheritance, covered by personal laws should be
separated from religion:
iv. That a uniform law applicable to all would promote national unity: and
v. That no legislature would forcibly amend any personal law in future if people
were opposed to it184.

183 Chakraboty,
Varuna (LL.B, LL.M), Challenging aspects of Uniform Civil Code in India, International Journal of Scientific
and Engineering, Research Volume 9, issue 1, January-2018 ISSN 2229-5518.
184VII CAD 540-2.

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 The directive contained in article 44 in no way infringes the freedom of religion
guaranteed by article 25. Its implementation will no doubt help in promoting gender
equality and national integrity. Clause (2) of article 25 specifically saves secular activities
associated with religious practices from the guarantee of religious freedom contained in
clause (1) of article 25185. In India rights and status of women differ within religion and
caste. A Kashmiri Brahmin woman will have different existential realities than a
Sarayupari Brahmin woman. A Brahmin woman in West Bengal will not only have
different social and religious norms than a Bengali low caste woman, but when one tries
to get into the skin of each and every such woman we find that what seems similar is
actually very different in its form and nature. In such a landscape, a formula of a uniform
personal law is introduced and uniformity is presented as a solution to undo all the
186
repressive evils that have crept inside our existing personal laws . While defining
gender justice Nyamu-Musembi stated187:

“Gender justice is about more than simply questioning the relationship between
men and women. It involves crafting strategies for corrective action toward transforming
society as a whole to make it more just and equal and it means 'a place in which women
and men can be treated as fully human'. Moreover, it implies moving away from arbitrary
to well-reasoned, justifiable and balanced-that is, fair-social relations.” In Valsamma
Paul188 case, it has been ruled that human rights for women comprehends gender equality
and it is also traceable to the Convention for Elimination of All Forms of Discrimination
Against Women. Human rights for women, including girl child are inalienable, integral
and an indivisible part of universal human rights. In Kharak Singh189 case, the court has
recognized that a person has complete rights of control over his body organs and ‘his
person’ under Article 21. It can also said to be including the complete right of a woman
over her reproductive organs. In Vishakha190 case, the court took a serious note of the
increasing menace of sexual harassment and observed “Each incident of sexual

185 See,John Vallamattom v. Union of India, (2003) 6 SCC 611.

186Shambhavi, ILI Law Review, vol. I summer issue,2017, p.g.13.
187 4Nyamu-Musembi, Celestine (2007) “Addressing Formal and Substantive Citizenship: Gender Justice in SubSaharan Africa”

in MaitrayeeMukhopadhyay and Navsharan Singh, ed. Gender Justice, Citizenship and Development, Zubaan, New Delhi and
International Development Research Centre, Ottawa. http://www.idrc.ca/openebooks/339-3/
188 (1996) 3SCC545:1996 SCC(L&S)772.
189AIR 1963 SC 1295.
190AIR 1997 SC 301.

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harassment of woman at workplace in violation of fundamental rights of ‘Gender
equality’ and the ‘Right to life and liberty.”

Demand for Uniform Civil Code by Women and Supreme Court of India: The
Indian society is trapped in the vicious circle of the patriarchy dogma that they are not
even able to see and respect the human rights of the women. There is a lot off controversy
regarding the gender justice and the uniform civil code in being. There is a lot to consider
before opting for a uniform civil code, we need to think whether or whether not to bring
in the concept and a common civil law to everyone in the country, with so much of
diversity and the legal pluralism existing in the country. Women empowerment has
always been the talk of the town since decades now and not much has been done when
the question of the personal laws and the women arises. Women empowerment in the
core areas like the social status, gender bias, health, security and the main core
empowerment are of exigent needs. The Indian state has infact encouraged codifying the
tribal communities laws but there are problems with it that they are ever evolving and
keep on changing from time to time. Article 44 of the Indian Constitution expects from
the State to secure a Uniform Civil Code for all the citizens of India. There is no Uniform
Civil Code in India but a Uniform Civil Code exists. There exists uniformity in the law
when it comes to the legal criminal procedures but when it comes to the personal law
there is no uniformity.The Colonial Indiawitnessed many of her laws getting codified by
the British such a as the criminal law, the law of contract and transfer of property etc.
These laws were made by the British while divesting away with all religious, cultural
factors. Hence, we observe that the law of contract is purely along the law that existed in
Great Britain around that time. The only sphere which was left behind was the personal
laws which governed various aspects of the lifestyles of the people, such as marriage,
family, succession etc.The demand for UCC by women took new stage in the year 1933
when Lakshmi Menon expressed in the All India Women’s Conference that191, “if we are
to seek divorce in the court, we are to state that we are not Hindus, and not guided by
Hindu law. Since right to equality was already acknowledged to one of the most coveted
rights, the unequal footing of genders through the word of law could no longer be

191 NandiniChavan and Qutub Jehankidwai, Personal Law Reforms and Gender Empowerment: A Debate on UCC, Hope India
Publication, Delhi (2006), p.84.
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validated. Thus, the practices which undermined a woman’s right to equality would
necessarily be done away the practices which undermined a woman’s right to equality
would necessarily be done away with. A common civil law governing the personal
matters would bring all the women under one single umbrella and irrespective of race and
religion the discriminatory practices would be put to an end.The members in the
legislative assembly who are me will not help us in bringing any drastic changes which
will be benefit to us.” In a caseMohd. Ahmed Khan v. Shah Bano Begum 192
, the
Supreme Court has ruled that a muslim husband is liable to pay maintenance to the
divorced wife beyond the iddat period. The court has regretted that article 44 has
remained a ‘a dead letter’ as there is “no evidence of any official activity for framing a
common civil code for the country.” The court has emphasized:

“A common civil code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies”. Need of uniform civil code
and how it will help in promoting gender justice was rightly observed by Chandrachud,
C.J., in the above mentioned case193. In his opinion: “there is no evidence of any official
activity for framing a common civil code for the country…. No community is likely to
bell the cat by making gratuitous concessions on the issue. It is the state, which is charged
with the duty of securing a uniform civil code for the citizen of the country and
unquestionably, it has the legislative competence to do so. A counsel in the case
whispered, somewhat audibly, that legislative competence is one thing, the political
courage to use that competence is quite another. We understood the difficulties involved
in ringing persons of different faiths and persuasions on a common platform. But a
beginning has to be made if the constitution is to have any meaning. Inevitable, the role
of reformer has to be assumed but the courts because; it is beyond the endurance of
sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal
attempts of courts to bridge the gap between personal laws cannot take the place of a
common civil code. Justice to all is a far more satisfactory way of dispensing justice than
justice from case to case”. In another case, the Supreme Court has emphasized that steps
be initiated to enact a UCC as envisaged by article 44. Reviewing the various laws

1921985 criLJ 875.

193Ibid.

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prevailing in the area of marriage in India, the court has said in MS. Jordan Diengdeh v.
S.S. Chopra194:

“… the law relating to judicial separation, divorce and nullity of marriage is far,
far from uniform. Surely the time has now come for a complete reform of the law of
marriage and makes a uniform law applicable to all irrespective of religion or caste….
We suggest that the time has come for the intervention of the legislature in the matters to
provide for a uniform code of marriage and divorce….” The court has continued to
emphasize that a common civil code will help the cause of national integration by
removing the contradictions based on ideologies. The premises behind article 44 are that
there is no necessary condition between religion and personal law in civilized society195.

B.R. Ambedkar and Justice V.R. Krishna Iyer on UCC: B.R. Ambedkar was also a
staunch supporter of the UCC. He denied the claims that a Common Civil Code in a vast
country like India would be impossibility. He stated that the only sphere which did not
have a uniform law was that of marriage and succession; rest all areas of civil law, such
as transfer of property, contract, and the Negotiable Instrument Act, easement act, sale of
goods etc. were uniform in nature196. He stated197:

I quite realize their feelings in the matter, but I think they have read rather too much into
article 35, which merely proposes that the state shall endeavor to secure a civil code for
the citizens of the country. It does not say that after the code is framed the state shall
enforce it upon all citizens merely because they are citizens. It is perfectly possible that
the future parliament may make a provision by way of making a beginning that the code
shall apply only to those who make a declaration that they are prepared to be bound by it,
so that in the initial stage the application of the code may be purely voluntary.

It is a well known fact that Ambedkar has always been a great critic of the dominant
Hindu religion. In 1936 he had already underlined one of the many dogmas that infested
Hinduism, i.e., casteism and untouchablity, to the extent that he went on to denounce

194AIR 1985 SC 935, 940: (1985) 3 SCC 62.

195John Vallamattom v. Union of India, AIR 2003 SC 2902.
196Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23 rd November, 1948.
197Ibid.

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himself as a Hindu198. Yet in the Constituent Assembly he denied the claims of UCC
being a mouthpiece of the majority, or the tyranny of the majority. He stated that the
manner in which the Shariat Act, 1936 was made applicable to all the Muslims in India
was nothing but an example of how convenient uniformity in laws is and was welcomed
by the Muslim brethren. The Muslims which were being governed by the Hindu laws in
certain specific areas were all collectively and uniformly brought under the purview of
this uniform law, for their own benefit. Similarly, if certain principles of the majoritarian
religion, i.e. Hinduism would be incorporated in the UCC, it would be not by virtue of
them belonging to Hinduism, but because they were suitable to the progressive society.
This should not be qualified as a tyranny of the majority. He stated199

“Therefore if it was found necessary that for the purpose of evolving a single civil code
applicable to all citizens irrespective of their religion, certain portions of the Hindus law,
not because they were contained in Hindu law but because they were found to be the
most suitable, were incorporated into the new civil code projected by article 35, I am
quite certain that it would not be open to any Muslim to say that the framers of the civil
code had done great violence to the sentiments of the Muslim community”. This
statement made by Ambedkar speaks loudly for itself and his commitment towards
having a UCC to bring about the much necessary changes in the personal dimensions of
an Indian irrespective of her religion and community.

V. R, Krishna Iyer J. states 200

: “Speaking for myself, there are several excellent
provisions of the Muslim law understood in its pristine and progressive intendment which
may adorn India’s common civil code. There is more in Mohammed than in Manu, if
interpreted in its humanist liberalism and away from the desert context, which helps
women and orphans, modernizes marriage and morals, and widens divorce and
inheritance”.

How UCC will help in Promoting Gender Justice: Court reminded the state of its
obligation under article 44 and issued direction to it to take appropriate steps for its

198Dr. B.R. Ambedkar, The Annihilation of Cast: The Annotated Edition, 11 (Navayana Publication, New Delhi, 2014).
199 ConstituentAssembly Debates (Proceedings), Volume VII, Tuesday 23rd November, 1948.
200 V. R. Krishna Iyer, The Muslim Women (Protection of Rights on Divorce) Act, 32 (Eastern Book Company, Lucknow, 1987).

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implementation and inform the Court of such steps201. Court is also of the opinion that
UCC for all persons may be desirable, but their enactments in one go may be counter-
202
productive to the unity of the nation . But reform in the personal laws and their
codification can serve as the best method for the implementation of UCC. If implemented
then UCC will help in promoting gender justice in the following ways:

i. A uniform civil code will help in improving the condition of women in India.
Indian society is extremely patriarchal and misogynistic and by allowing old
religious rules to continue to govern the family thus condemning all Indian
women to subjugation and mistreatment. A uniform civil code will help in
changing these age old traditions that have no place in today’s society where
women should be treated fairly and given equal rights.
ii. The various personal laws are basically a loop hole to be exploited by those
who have the power. The village panchayats continue to give judgments that
are against Indian constitution, human rights are violated through honor
killings and female feticide throughout the country. By allowing personal laws
there is constituted an alternate judicial system that still operates on thousands
of years old values. A uniform civil code would change that.
iii. A uniform civil code will also help in reducing vote bank politics that most
political parties indulge in during every election. If all religions are covered
under the same laws, the politicians will have less to offer to certain minorities
in exchange of their vote.

Conclusion: In conclusion we can say that although UCC was incorporated in the
constitution as an aspect which would be fulfilled when the nation would be ready to
accept it but it has remained a dead letter as nothing is done for its implementation. It
is an obligation on the part of the state to implement or to take steps for the
implementation of UCC because no community is likely to take the risk by gratuitous
concessions on the issue. In spite of all these things we will have to look into the
necessity of uniform civil code, if implemented, a common civil law (UCC),

201Sarla Mudgal v. Union of India, AIR 1995 SC 1531: (1995) 3 SCC 635.
202Pannalal Bansilal patil v. State of Andhra Pradesh, AIR 1996 SC 1023.
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governing the personal matters also would bring all the women under one single
umbrella and irrespective of race and religion the discriminatory practices would be
put to an end. Dr. B.R. Ambedkar was also a staunch supporter of UCC but his idea of
UCC was different because state is duty bound to take the appropriate steps for
implementation of UCC and its implementation can’t be purely voluntary in the initial
state as suggested by Ambedkar because no community is likely to bell thee cat on
this issue. It is better to provide justice to all rather than different notion of justice
from case to case. Only UCC can serve this purpose. Women’s rights movements
and civil society organizations have long called for a Uniform Civil Code. Women of
minority communities, especially Muslim communities have also raised their voice
against gender discriminatory practices in personal laws. There are now several who
are propagating for reforms in personal laws. Such reforms also find backing in
various judgments. So not having a uniform civil code is detrimental to true
democracy and that has to change.

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The conflict between custom and law in the perspective of Sabarimala temple issue-

Name of the author: - Pallav vats

Name of the co-author: - Arihant pushkar

Abstract

The present article will try to find out the answer to one of the most burning question of
this time that is the verdict given by Supreme Court on the entry of women in sabarimala
temple of Kerala. It may be gender inequality in view of Supreme Court but it is also a
custom for many devotees and this decision by Supreme Court is like an attack on their
belief. Keeping this sensitive issue as a shield many media houses are playing dirty TRP
games, politicians are politicizing the matter, several NGOs and so called women activist
are making their own profits in the name of women rights. This third party interference
should be stopped in such sensitive issues. The Fake-feminism also hits hard to the
custom of our country, in the name of feminism some anti-social elements are trying to
degrade our custom and demolish it. The overdose of anything is harmful and this applies
to our current position of secularism present in our nation which is an unpredictable gift
by our political leaders. every rule that are imposed by supreme court on the matter of
religious issue for the welfare of the society is need not that they will be acceptable by
all, but if that rule is for the eradication of social evil such as Dowry, Sati then it must be
welcomed but if that rule is uprooting the social balance of the custom then it must be
questioned again and again. After all India is a nation which have a perfect blending of

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different culture which exists in the atmosphere of this country, this should not be
disturbed at any cost.

Keywords: - Fake Feminism, Pseudo-secularism, women rights

Introduction:-

Customs plays an important role in the civilization of human. If we say that society
makes people increase their standard of living then customs also hones a person’s beliefs
and values. Custom is something that many people do, and have done for a long time.
Generation after generation this belief gets stronger and all of a sudden when someone
tries to uproot this belief our mind can’t resist that attack on our belief and as per the
consequences many things happens and this article is also one of those consequences.
Sabarimala is a pilgrimage centre dedicated to hindu
devotees, which is located at the Periyar tiger reserve that is in the Western Ghats
mountain ranges in the Pathanamthitta District of Kerala. Sabarimala is one of the
largest annual pilgrimages in the world in which every year an estimated 45-50 million
devotees came for visiting. Sabarimala is a temple dedicated to Lord Ayyappa who was a
great warrior and was the avatar of Lord Sastha. This temple is very prominent among all
temples in Kerala. Belief of many people attached with this temple and it is said that
people have to observe penance for 41 days before going to Sabarimala which includes
the simple living, holy thoughts and absolute celibacy for at least 41 days. It is a belief
that this deity is a ‘naishtika Brahmachari’(eternal celibate).

The burning Question:-

But the burning question which gets highlighted after the verdict of Supreme Court is that
should women under the age 10-50 years be allowed to enter in Sabarimala. Many
people try to start linking this with women rights and gender equality. Many political
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parties , Social activist organization like Bhumata brigade taking advantage of this to
came in limelight but gender equality and women rights are not the main reason behind
the ban of women because there are at least 8 temples where men are not allowed to enter
such as Attukal temple located in Kerala, Chakkulathukavu Temple located in Kerala, In
Brahma temple located in Pushkar, married men are prohibited to enter into the temple
premises and many such examples are there to clear the biased belief that ban of women
in Sabarimala is not related to gender inequality Unlike other religions, every Hindu
deity has a history to tell. It is said that Lord Ayyappa was a Brahmachari and was not
supposed to come close to women. The celibate nature of lord Ayyappa is said to be one
of the greatest reason why women are not allowed to enter in Sabarimala. It was the
choice of Ayyappa to maintain a distance from women but again question will raised that
why only for a certain age limit 10-50 why not for women of all ages then the answer will
be that it was given in a ordinance passed by Kerala government just to prevent from
getting in radar of constitutional of equality but unfortunately it was challenged on this
basis only.

History behind the mystery:-

Once Ayyappa killed a Mahishi and a beautiful lady appeared as per the curse and she
wanted to marry him but due to the eternal bharamcharya he could not marry her due to
his eternal brahmacharya but promised to marry her when new pilgrims stop coming to
him. Hence a temple in respect of Maalikapurathamma was build next to the Sabarimala
and it is also said that to show respect to the Goddess Maalikapurathamma as she is
waiting to get marry with Swamy Ayyappa they voluntarily don’t enter into the temple.

Attack on the belief:-

A group of five women lawyers has challenged rule 3(b) of the Kerala Hindu places of
public worship (authorization of entry) rules,1965, which authorizes restriction on
women “of menstruating age” in 1991 Kerala high court banned the entry of women
above the age of 10 and below the age of 50, from entering the Sabarimala shrine and
Kerala high court stated that since this ban of women entering in Sabarimala has been
existed since the time immemorial and ‘Tantri’ i.e head priest is the only one who was
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empowered to take decisions on religious matters. Later this decision was challenged by
senior advocate Indira Jaising, who represented the petitioners, said the restrictions went
against articles 14(equality before law), 15(prohibition of discrimination on the grounds
of religion, race, caste, sex or place of birth) and 17(abolition of untouchability) of the
constitution. According to her this custom is discriminatory in nature and stigmatized
women, and that women should be allowed to pray at the place of their choice. Now let’s
discuss the historic Judgment given by Supreme Court on September 28, 2018, actually
In 2006 the case was on the table of supreme court seeking justice for women guiding
through the propaganda of leftists with the help of the armor provided by the constitution
of India. This case was later referred to bench led by former chief justice of India Deepak
mishra and comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachund and
Indu malhotra. The bench lifted the ban and by the 4:1 majority ruled that women of all
age either is older than 10 years or younger than 50 years can enter the Shrine of
Sabarimala without any gender discrimination.

Reality behind Gender Discrimination:-

If we talk about the rights of women in our country, I am not denying that there is no
gender discrimination somehow it exists in our country but this does not certify that ban
of entering in Sabarimala is a gender discrimination not an old age custom through which
sentiments of millions people are attached as I already mentioned that there are certain
temples which does not allow men to enter into the temple premises and we are not even
complaining for that because it is the custom of that specified temple. In our Hindu
religion women have the most respected place. For every auspicious work we used to
worship Goddess Lakhmi, for knowledge we used to worship Goddess Saraswati and we
worship Goddess Durga for strength. Women used to participate in these poojas very
actively and even in Durga puja girls are considered as Goddess, how can anyone
questions on our immemorial old age practice just for the name, fame and to take fake
credibility of women rights and gender equality.

After Verdict:-

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Literally speaking Kerala paid a huge compensation for this decision, After the decision
of SC over Sabarimala two women, Bindu(42) , a CPI(ML) activist and
Kanakadurga(44) entered the entered the temple in the very early morning 3:45 .
Having faith is different thing but revealing it publicly just to tease others devotees is
very derogatory step taken by communist’s Kerala government. As expected this lead to
violence and vandalism due to which many were injured, a total number of 1,286 cases
were registered and 3,282 people were arrested in connection with the violent incidents.

Opportunist strategy:-

Now if we talk about some specific NGOs, media houses, political parties they are acting
as the vulture in this issue, especially the communist party of India (Marxist) who is the
current ruling party of Kerala are brutally trying to destroy the rich culture of India by
misrepresenting the common people by various means such as advertisement,
propagating fake rumors about a religion, show hate towards a specific colour such as
saffron. The word saffron terror was first used by Frontline magazine in 2002, many
congress leaders such as P. Chidambaram, Digvijay singh and Shushil kumar Shinde also
defamed Hindu religion by denoting a derogatory term saffron terrorism, as saffron is
considered very holy colour in this religion hence it was highly condemned by many
Hindu groups such as RSS, Viswa Hindu Parishad, Shivsena and others. Leftist media,
kerala’s communist government and all the vulture like NGOs after the judgment gets
license to criticize a religion which is immemorial time older then the whole communist
ideology.

Stand of Kerala Government:-

The stand of current Kerala government towards the disciples of Sabarimala is very
disturbing and heart shattering even PM Narendra Modi also lashed on the LDF
government’s stand on Sabarimala temple row. On the other hand congress says, one
thing in parliament and another thing in Pathanamthitta (where lord Ayyappa shrine is
located ) according to BJP, violence of Sabarimala is unleashed by Kerala government
instead with dealing protesters in more sensible way, wreaked havoc, devotees has lost
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their lives also. Even the local women of Kerala who have faith upon the Lord Ayyappa
does not wants to enter into the Temple of Sabarimala premises just not because they are
backward or facing gender inequality but they have belief in our ancient tradition and do
not let it be destroyed by any fame seeking NGO, communists , biased designer
journalists or anyone. A human chain was made protesting against the decision of
Supreme Court in which many women actively participated and protested against verdict
of Supreme Court. Even the local police was under the influence of communist’s Kerala
government. They controlled the situation in a very brutal manner. Many devotees were
arrested and treated badly who were protesting against the verdict of Supreme court in a
peaceful manner.

Why any third party?

A question still exists that should the third party who has nothing to do with the belief of
Sabarimala and who is not a disciple of Lord Ayyappa has the right to questioned a
tradition which has been following from a long time, indeed everyone has right only if
that specific practice is harming integrity or advertising violence but in this case it is just
a matter of faith and also if we always prevail our fundamental rights then no custom will
remain safe after all India is an country which is totally based on different cultures.
Justice Indu Malhotra, who was the only women judge on the bench, said that the petition
does not deserve to be entertained in the court. Her view on this issue was that it is not
compulsory for courts to determine which religious practices are to be struck down
except in the issues of social evil like ‘sati’ or we may add ‘dowry’ here. Adding that the
issue of Sabarimala is critical to various religions, she said, “Issues of deep religious
sentiments which are attached to the devotees shouldn’t be ordinarily be interfered by the
court. The Sabarimala shrine and the deity is protected by Article 25 of the constitution of
India and the religious practices cannot be tested solely on the basis of Article 14 of the
Indian constitution. Further she added that “Conception of rationality can’t appealed in
matters of religion” said justice Malhotra further added “What constitutes essential
religious practice is for the religious community to decide, not for the court or any other
institutions”, After all India is a diverse country with a perfect blend of different cultures.
Constitutional morality would allow all to practice their beliefs and faith. The court
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should not interfere on religious matter unless if there is any aggrieved person from that
section or religion or any evil practice is going on such as Triple talaq.

Double Standards:-

If we compare Hindu religion with other religions, this always has been a soft target for
every media houses, many political parties and even Supreme Court. In Janmastami,
Supreme court don’t forget to specify the height of Dahi handi but never ever dare to
question to the zulus of Moharram’s tazia, in which every many died due to certain risky
stunts, Supreme court will interfere in bursting of crackers but never dare to interfere in
Bakar-eid, if we celebrate crackerless Deepawali why can’t they celebrate bloodless
Bakar-eid? So if Supreme Court want to interfere it should interfere but only with good
motive and equality. Why only one should contribute and sacrifice in sake of all. The
change should be equal from both sides; one should not hold the whole burden.

Feminism taken a wrong turn in Indian context:-

The another aspect in this issue is feminism as we all know there are three waves of
feminism but a new forth wave of feminism has started after the very famous #me_too
movement and the Sabarimala issue is also attached to the feminism. Many females take
this issue contradictory to their self respect due to the misrepresentative propaganda as
circulated by biased media. Feminism is a shield through which everyone is attacking on
the rich culture of Hinduism. Even in some temples men are not allowed worshiping, that
is ritual but in the Sabarimala issue all women activists are crying like hell. In this issue
many journalists who run this type of ill propaganda against the culture and country
modified this issue from tradition to feminism. The new wave of Feminism is very
dangerous and impure. It is harming our tradition on the day by day basis. Feminism in
Indian context has taken a wrong turn and no one can deny to this fact. In the shield of
feminism they used to glorify themselves and pretend as there is no other person who
cares about women rights and gender equality. Entering of women in any Hindu temple if
there is complete ban of women in all temples would be a gender discrimination but this
is the open and shut case of tradition because other temples allow them to do poojas in
the temple also it is not the complete ban over the women, only a specified age groups are
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restricted. Pseudo-feminist vultures should immediately be stopped otherwise they will
pluck out our tradition from our India. There is difference between Feminism and
Pseudo-Feminism, feminism does not mean to kiss in public to oppose moral policing of
right wing but mean to be ‘Mary kom’ or ‘Sakshi mallik’ who won medals for country
and make the country proud on the daughters of mother India.

Overdose of Secularism:-

Our constitution says that India is a secular country but now a day’s secular doesn’t mean
that state recognize all religion and respect all religion, it means to sacrifice one’s rights
for minority. Secularism in today’s context means like the Ex Prime Minister Dr.
Manmohan Singh’s statement during his post who was the one to tantalize minority in the
name of secularism by saying that, Minorities must have first claim on resources. Today
if you pretend yourself as secular then you have to criticize your own beliefs, own
religion, own peoples and even your own family. Today being Secular means criticize the
right wing and pro-nationalism even they can go against their own nation in the name of
secularism. To satisfy these pseudo-secularism worms is very difficult task. They act as
the sleeper cells of the country, the pseudo-seculars are the cancer cells of the nation.
Even the bollywood industry propagates the idea of pseudo-secularism or its better to say
them ‘sickulars’, a movie named ‘Haider’, in the shield of entertainment, secularism and
William Shakespeare’s Hamlet, this movie ruthlessly maligned our army and
AFSPA(Armed forces special powers act), In the name of secularism everyone is
polishing their market, a movie named PK, very smartly show the pseudo-secularism by
showing Lord Shiva in the toilet but dare not to enter into the mosque with liquor,
another movie which was in malyalam language named as ‘Sexy Durga’, which was the
conspiracy to malign a Hindu Goddess, the director/producer changed the name after
several protest and objections.

Conclusion:-

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In the end I will just say that every rule that are imposed by supreme court on the matter
of religious issue for the welfare of the society is need not that they will be acceptable by
all, but if that rule is for the eradication of social evil such as Dowry, Sati then it must be
welcomed but if that rule is uprooting the social balance of your custom and the society
then it must be questioned again and again. The question should be raised in a gentle
manner, vandalism is not the perfect way to question executives. In India there are
several temples and every temple has a history to tell, if any women who is a devotee of
Lord Ayyappa then she herself will respect the tradition of that temple. Fake Feminism or
Pseudo Feminism is forming its web across the country and we have to be careful from
this. The overdose of anything is very harmful and this principle perfectly applies when
we talk about Secularism in India, The situation is getting worsen day by day, it turned
into Sickularism from secularism. Bollywood movie provides a platform to promote the
overdose of secularism concept. We all should have to beware from all the vultures who
are trying to attack on a particular religion. After all India is a nation which have diverse
culture and a perfect blending of different culture also exists in the atmosphere of this
country, this should not be disturbed at any cost.

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 ACCESS TO JUSTICE AND JUDICIAL
REFORMS

Name of the Author – Arihant Pushkar

Name of Co-Author – Kartikaya Pandey

Abstract
Justice can be defined in a broad sense as protection of an individual’s rights as well as
the rights of the stakeholders which may include any organization, group, community, etc
of any State. It’s the responsibility of every State to safeguard the right to justice of its
people and stakeholders and provide them with access to justice. Judiciary well starts
from violation of right, the victim’s need for justice, its demand for justice and then
finally access to justice. Access to justice implies easily approachable, transparent and
affordable access to the institutions established for Justice Mechanism.
The history of providing justice starts well from the time civilization started but the
mechanism showed a swift change in the way with time and with advancements in the
society. People started living in clusters or groups in societies and population started
increasing. Resources always had been limited. Fight for resources gave rise to rights of
people and further a strong need for concept of justice was required. This created a need
for judicial mechanism and a created a concept of justice. During the periods of kings it
was accessible to everyone in the courts of kings but without lawyers. Even the kings
were not specialized or educated enough like today’s judges. So definitely access to
justice was present but fairness or propriety can be doubted.

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Introduction
The term 'Access to Justice’ immediately creates in our mind the idea that every person
who seeks Justice must be provided with the requisite monies to approach a Court of
Justice. But, that is not the only meaning of these words. They also refer to the nature of
different rights, to the number of Courts, to the quality of Justice, to the independence of
the Judges who man the Courts, to legal aid and public interest litigation and so on.

Role of Judicial institutions

The fundamental rights provided to the citizens by the constitution of India i.e., part-III
article 12 to 35, provides the basis rights that must be safeguarded. Article 21 implies
“Right to life with dignity”. Here to have a dignified life access to justice to everyone is
essential and the constitution of India has focused well on the Justice. Justice is a basic
feature of the constitution and part of preamble. The quality of human life so as to take
access to justice out of the purview of Right to life guaranteed under article 21. Access to
justice indeed a fact of right to life guaranteed under article 21 of the Constitution. The
access to justice is a fundamental right guaranteed to citizens by Article 14 and article 21
of the constitution of India. Because of that life implies not only life in the physical sense
but a bundle of rights that makes life worth living.
Today we have judicial institutions in form of courts at local, district, state as well as
centre level in form of judicial courts, district courts, High courts and Supreme Court
respectively in India. But its’ functioning so far is debatable. “Justice in India is delayed
but not denied”. But such delayed justice partially shows its’ inaccessible nature.
However Justice in India has always been accessible to all but it needs some judicial
reforms and there is always optimism to it.
Need and access to justice starts from the victim approaching police station. A judicial
proceeding basically starts from here itself. The police taking into cognizance of the
crime registers an FIR, investigates the matter, collect evidences and then submits a
charge sheet which becomes the basis of judicial proceedings. In most of the cases charge
sheet is filed after a long period of time. In some cases cognizance of crime is directly
taken by courts but that also has to follow the same long procedure.
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The appellate as well as the respondent has to hire a lawyer which requires huge money.
However, the government provides lawyers for the people to benefit those who cannot
afford the private ones, still these lawyers are low in number and most of them work
inefficiently. Even the judicial process takes a very long period of time. This discourages
the people in need to go to any judicial institutions. In some cases people spend most of
their life or entire life in hope of justice. This makes justice inaccessible. On the other
hand it also encourages the criminals to commit crimes.
For people under trial in some non-billable offence cases have to be in judicial custody
for a very longer period of time even if they are innocent. In some of these cases the
former have to be in custody for a period longer than the tenure of the punishment they
are supposed to be awarded.
Compared to other countries the ratio of judges to population in India is low. Coupled
with numerous vacancies the judges are not appointed on time and in appropriate
proportion. Movement of cases from one court to another takes a lot of time due to lack
of IT infrastructure. There is a lack of information and lack of transparency in the judicial
process that makes a citizen to face certain difficulties. Due to absence of judicial
standards and accountability act disciplinary action are tough to take against erring
judges.
These situations lead to delayed justice which is nothing better than denied justice. Thus
judicial system needs to be such that it encourages every citizen to approach judicial
institutions in case their rights have been violated, also discourage the negative elements.
It should be affordable, easy to access and provide proper justice in a short and defined
period of time which requires strong judicial reforms.
Structural reforms like recruitment and appointment of judges should be done. After the
Supreme Court struck down the National Judicial appointment commission (NJAC), a
memorandum of procedure (Mop) was agreed between the government and the judiciary
should be executed in letter and spirit. The number of cases pending in courts is
approximately 30 million which needs recruitment of judges to dispose of cases and it
should be done through a well-established mechanism like judicial services in time.
Judiciary should be made more transparent by introducing RTI. There should be the
establishment of fast track courts. Evening courts should be encouraged.
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Initiatives like pro-bono legal services are highly appreciated and should always be
encouraged. This benefits the socially, economically backward or underprivileged
sections of society and motivates them.
Operational reforms like robustness of IT infrastructure should be done. E-courts should
be established and hearing of cases should be done through video conferencing to
facilitate ease of access. Tribunals and dedicated benches should be established to
facilitate hearing of specific and alike matters. The working hours of courts can be
increased along with working in shifts. Alternate dispute redressal (ADR) in the form of
conciliation, mediation, arbitration, family courts, Gram Nayalaya, etc should be
encouraged. Frivolous litigation should be strongly discouraged.
Personnel reforms like training of lawyers should be done through establishment of
competent institutions. Increasing number of strikes by lawyers is also a problem.
Regulations curtailing strikes should be strengthened with proper grievance Redressal
mechanism. The law commission of India has suggested some major reforms in judiciary
that needs to be well instituted. There must be full utilization of the court working hours.
The judges must be punctual and lawyers must not be asking for adjournments, unless it
is absolutely necessary. Similar cases should be clubbed together with use of technology
and should be disposed fast with more or less some basic judgment. This will
substantially reduce the number of pending cases as well. Judgments must be clear and
decisive and free from ambiguity, and should not generate further litigation.
Public interest litigation is a very good initiative to promote access to justice to everyone
specially the underprivileged section of the society. The judgment in PIL largely resolves
issue of a large mass simultaneously. It promotes ease of justice when rights are diffused
in nature, is a collective issue or institutes collective welfare. PIL is not adversarial but
more of inquisitorial i.e., courts are actively involved in investigating facts of the case
and there are no typical petitioner and defendants, rather they are all stakeholders. Hence
PIL in this way are largely beneficial to large mass and facilitate access to justice.
Article 142 empowers the Supreme Court of India to pass any order for ensuring
complete justice. There have been instances of application of this discretionary power
like in appointment of the new Lokayukta of Uttar Pradesh. Also the judgment of
banning liquor shop on National highways to reduce accidents was using this power. The
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courts should exercise these in circumstances to protect the lives and rights and hence
providing indirectly justice itself.
Martin Luther King Jr. said, “Injustice anywhere is a threat to justice everywhere”. This
quote explicitly conveys the importance of access to justice. In country like India with
close to thirty percent people below poverty line, ensuring inclusive justice is a mammoth
task. Judicial reforms are needed to overcome the problems of judiciary and facilitate
ease of access and Efforts from not only government but also civil society organizations
should be taken. Well-functioning judiciary system will not only motivate the citizens but
also reduce the crime rates. The people of this country should be made aware of their
rights and judicial procedure. Hence only a concerted effort can help to overcome the
problems of judiciary and ensure inclusive, quick and affordable justice to establish a
prosperous and harmonious society and Country.

Reforms
Affordable processing
The affordability of legal services one of a critical aspect of access to justice that
seriously affects lower - and middle-income people. This is a huge factor that leads
people not proceed without legal representation to attempts to resolve their legal issues.
“A critical barrier to the public’s access to the justice system is the cost of legal
services, which can be prohibitive not only for the poor but also for the middle class”.
– NAC: Legal Services
Use of Technology in the justice system
There are many committees or reports comment on the issue of lack of technology
developments in the justice sector, use of technology in justice sector to help in easy and
fast dispute resolutions . Potential technology solutions include the expansion of online
dispute resolution, videoconferencing, interactive court forms, simplified scheduling, e-
filing and docket management, and electronic accessibility of court and tribunal
documents.
“While technological innovations are transforming much of modern life, they appear to
be bypassing the justice system”.
– NAC: Legal Service
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Legal- aid
In the case of Criminal cases are mainly depend on public prosecutor. Only public
prosecutor can file the case, in this situation the case only proceed by the public
prosecutor.
Non-Feasibility of introduction of Hindi as compulsory language in the supreme
court India203
The decisions given by the court are not only in English language but also in Hindi
language. Public are not easily to under the decisions given by court. English language
barred the movement of lawyers from lower to the apex court.
Legislative drafting is concerned every legislation although authoritatively enacted in
English may have a Hindi authoritative translations along with same at the central level.
Conclusion
In judicial institution some reforms are needed for bringing ease to access the Justice.
Justice is a part of preamble and also basic feature of the Indian constitution. Right to
justice is basic part of human rights.
Access to justice is basic principle of the rule of law. In the declaration of the high level
meetings on the rule of law emphasize the right of equal access to justice for all including
vulnerable groups and state taking all necessary step to provide fair and transparent,
effective non- discriminatory, and accountable service that promote access to justice for
all.
In the structural reform in judicial institution they should promote all the local level
Panchayat, Lok-adalat. It will very helpful to resolve the petty cases and not burden on
the judicial institution. Justice system should be affordable, effectiveness, easy to access
to the public.
Name of the Author – Arihant Pushkar
Name of Co-Author – Kartikaya Pandey

203 Report no. 216 law commission of India December 2008

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 Pre-Nuptial Agreements across the World
Submitted by:

AYUSH MISHRA

BACKGROUND

In a world increasingly obsessed with finance, pre-nuptial agreements are just another
way of clarifying the finances between a would-be married couple. Simply put, pre-
nuptial agreements are those agreements which a prospective couple enter into before
marriage. Also known as pre-marital agreements, these agreements clear the financial
cloud between the husband and the wife. Why would one want to enter into pre-nuptial
agreements? There could be several reasons. One would be to divide assets between the
children of a previous marriage. Another could be the clear demarcation of finances and
assets between the couple.

The legality of pre-nuptial agreements is a disputed topic. The fairness of the pre-nuptial
agreement is one of the most debated issues on this topic. Different countries have
different opinions on the same. In the UK, pre-nuptial agreements also have jurisdictional
issues as English and Welsh pre-nuptial agreements are different from Scottish pre-
nuptial agreements. In the United States, the major factor for determination of fairness of
pre-nuptial agreements is whether an agreement which was once fair, has ceases to be fair
anymore.

OBJECTIVES

• This research aims to study the law regarding pre-nuptial agreements across the
world.
• The purpose of the study is to analyze how pre-nuptial agreements are governed
by their own set of rules and regulations in different country.
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 • This paper will extensively focus on the nature and legality of the pre-nuptial
agreements.

RESEARCH QUESTIONS

• Whether pre-nuptial agreements are valid in India

• What is the nature of pre-nuptial agreements
• What the laws of UK have to say about pre-nuptial agreements
• What are the positive and negative implications of prenuptial agreement

RESEARCH METHODOLOGY

To answer the above research questions, comparative method will be the most
appropriate method to find an answer. Before that an historical approach is made in order
to understand the formation of the pre-nuptial agreements and how the laws regarding the
same were evolved and are applied in the region till date. It is very important to
understand the laws which govern different pre-nuptial agreements differently across the
world. In order to achieve this a doctrinal research will be carried out.

LITERATURE REVIEW

"With "All" My Worldly Goods I Thee Endow"? The Status of Pre-Nuptial Agreements
in England and Wales by Stewart Leech

The article sought to set into perspective the approach adopted by the English courts
towards pre-nuptial agreements in terms of the disposal. England and Wales form part of
the same jurisdiction, in contrast to Scotland Pre-Nuptial Agreements in England and
Wales of financial claims and other, wider, issues. It charted the winds of change that
have begun to stir in our courts and in the corridors of power and highlight the particular
concerns of those for and against such change.

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PRE-NUPS, PRIVATE AUTONOMY AND PATERNALISM by Jens M. Scherpe

The author states that in future cases two points in time should be considered separately.
The first is the time of the conclusion of the agreement: here circumstances can be such
that the agreement is unfair, for example, owing to undue influence or causative non-
disclosure. If that is the case, then the agreement should be disregarded. The second is the
time when the agreement (which was principally fair to begin with) is invoked. Here,
however, the decisive factor should be whether the circumstances have changed to such
an extent that the agreement now has to be considered unfair. The criteria for this will
have to be developed by case legislations.

What the States Say about Prenuptial Agreements by Doris Jonas Freed

The author while talking about the different states’ approach towards prenuptial
agreements, shows the difference of opinion with regards to pre-nuptial agreements in the
United States of America.

PRE NUPTIAL BILL

It is the agreement which is been signed by two person before they getting married. The
pre-nuptial bill list all types of property owned by the both people at that time and also
the debt on them. The basic reason of PRE NUTIAL BILL is separate the property during
time of separation and specifies what each person's property rights will be after the
marriage. PRE NUPTIAL BILL is also known as PRENUP BILL.

As per the popular opinion, prenup are just for the rich people of the society. but prenup
are often used to protect the assets of a wealthy fiancé, couples of more modest means are
increasingly turning to them for their own reason of having a prenup at the time of
marriage so that to remove the confusion during the time of divorce. Following are main
reason for the prenup.

1. To pass the separate share of property to the children prior to the marriage

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 If the couple who are marrying each have children prior to marriage may use a
prenup to tell that what will happen after they die and also that they can provide
property to their children and still provide property to themself also. But without
any PRE NUPTIAL BILL the surviving partner might have the right to claim the
larger part of the property for himself and leaving less for the kids.

2. To clarify the financial rights

It doesn't matter whether the couple is with children or without children, rich or
poor. They simply can clarify their financial rights and there responsibility in the
marriage and also their contribution in the house.

3. To avoid the arguments in the case of divorce

To avoid the arguments during the process of divorce the couple go for PRENUPS
so that they could save their time and money both. That way the reason it is
specify in the PRE NUPTIAL BILL that how their property will be divided and
whether the spouse will receive any alimony from their partner.

4. To get protection from debts

The couple who are going to marries each other may address a multitude of their
other issues and also it will protect spouses from each other debts.

Validity of pre-nuptial agreement in India

In India, the prenuptial agreement are not legal and also not valid as per the marriage law
of India because they don't want to consider marriage as contract. As country like India
marriage is to be considered as very religious bond between both the partner who are
going to get married with each other that’s the reason the prenuptial is not socially
acceptable and these are also governed by the Indian govt by the Indian Contract Act and
also have much sanctity as any other contact.

But the Indian courts any take the cognizance of the prenup but the only condition is the
both the parties are mutually give consent to it and also sign the agreement voluntarily

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without any pressure by the other partner or under undue influence of the other partner.
The agreement should be fair and also should state the division of property clearly.

And also for a prenup agreement to be successful, both the parties should show the
willingness to be completely honest about their assets and liability and the prenup should
also be done before the marriage took place. Once the marriage took place the prenup
agreements can’t take place.

UK laws about prenuptial agreement

As per the current law of UK stands the prenups agreements will not automatically
legalized and will not be binding in England and wales. The famous case Radmacher v
Granatino (2010) UKSC 42 gave the first significant judgment about the status of
prenups agreement. The court lay down three condition for binding the prenup agreement
for the parties

1. The agreement must be done by free consent

2. Both the parties should have the full appreciation
3. In prevailing circumstances it will be really unfair to hold the parties to their
prenup agreement

In February 2014 the law commission of UK published its report on Matrimonial

property needs and agreement. The report focused towards making qualifying nuptial
agreement. Which will give nuptial agreement the status of a legal contract by providing
few condition to fulfill. The qualifying agreement s could not be used by parties for the
financial separation and for division of property for children. The main reason behind the
qualifying prenup is that the got should acknowledge the recommendation. But have not
gone for further implementation any reform.

Nature of prenuptial agreement

There is common myth about the premarital agreements. And it’s like a legalized weapon
which is used by the rich couple during the process of divorce but the truth is really more
prosaic

1. Items to include in prenuptial agreement

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 ● Separate and martial property - It will specify which property will be
martial property and which will not be a martial property.
● Saving and spending strategies - It should state the future financial planning
including retirement plans
● Financial obligations during the marriage - It will specify the use of money
in the house hold work
● Debt liability - the creditor can after theatrical property of that couple
irrespective of fact that the debt is only on one person.
● Children from previous marriage - the right of property to children from the
previous marriage.
● Family property - It can be used to prospect the family property so that the
property should remain in birth family only.
● Property distribution during the divorce - As every state have its own law
for the separation of couple and their property and prenup agreement can
bypass many of those laws.
● Alimony - It will help in deciding the amount of spousal support that is due
on another party.

2. Items that cannot be included

● Child custody - child custody issues can't be included in a prenup

agreement and also hos religious upbringing.
● Child support - The court only have the best interest of the child and
prenup cannot include a special provision for child support
● Forfeiture of alimony rights - It commonly struck down provision in prenup
agreement and it states that the alimony right can't be waived off.
● Anything considered illegal - If any provision of the prenup agreement is
not according to law will be struck down. And if any provision that is
deemed to be unfair or not in the best interest of the party will result in
dismissed of that provision.
● Lifestyle clauses - The most famous clause of the lifestyle is infidelity
clause. Which is allowed by some country and not allowed by country as
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 many judges hesitant for the rule on matter of the fidelity. It all depends
upon whether the couple plans to have children and their sexual habits also
contain there alcohol and drug abuse habits. That the reason most the
lawyer discourage there client to add lifestyle clause in the prenup
agreement.

A prenuptial agreement—which is a legally binding contract that determines how spouses

will divide assets and debts in the event of a divorce—isn’t just for the wealthy, or those
with many assets. More couples are using prenups now than ever before.

Here are some of the positives of prenuptial agreements in India: -

• Communication – As daunting as it sounds to talk about a potential divorce with your

future wife, it also brings clarity to the couple in terms of division of assets and wealth
which actually becomes a headache if a couple hasn’t undergone a prenuptial agreement.
Being open and honest and know about each other’s expectation can actually be
beneficial for the couple.

• Saves Time and Money – Divorces are lengthy and a huge amount of money is spent on
them. Even if a couple has already agreed on every legal issue, they may still spent
thousands of money on court visits etc. till the judge finally terminates the marriage. A
prenup allows the couple to save time as well as money as all legal terms and divisions
are already decided and fixed.

• Separate Property and Family Heirlooms – One of the most contagious areas during a
divorce is the distribution of wealth and assets. The question of what is mine and what
should or can be given away comes to mind which often creates frustration and
disagreement. A divorce judge's first take is usually to identify and categorize the
couple’s property as separate or marital and then divide it. A prenup can be especially
helpful if you enter the marriage with family heirlooms or other property that you wish to

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keep separate. Couples can specify what property belongs to each spouse and how they’d
like to handle distribution of the assets if they divorce later.

• Marital Property – Prenups defines what qualifies as marital property and what not. If
you indulge in a divorce, then it the court who decides the division of marital property on
basis of the state’s law. A prenup will allow the couple to avoid the lengthy battle of what
is marital property and what is not and it would already have defined what qualifies for
the same and what doesn’t.

Is Prenuptial Agreement valid in India?

In India, Prenuptial Agreements and neither legal nor valid under the laws of marriage in
India because in our country marriage isn’t considered to be a contract but more of a
meeting of the souls. Marriage is considered to be a holy bond between the husband and
wife, therefore, prenuptial agreements don’t find social acceptance in our country.
However, these agreements are governed by the Indian Contract Act and can be used as
evidence during divorces. The Indian courts take cognizance of a prenuptial agreement if
both the parties mutually agree to it and sign it voluntarily, without any undue influence,
force or threat. Besides, the agreement should be fair, clearly stating the division of
property, personal possessions and financial assets of the parties, and should be certified
by a separate lawyer for each. The biggest advantage of a prenup is that the couple before
getting married have a big discussion regarding the financial aspects of the marriage.

Here are some of the drawbacks of prenuptial agreement in India:-

● Potential Divorce – Signing up for a prenups is actually thinking about a potential

divorce between the couple which may not be a good thing for the couple. It
doesn’t sound good talking to your future wife about your potential divorce. It’s a
mood spoiler.
● Judge’s Opinion -At the end of the day a prenuptial agreement is still subject to
the opinion of a judge. Even if you and your spouse sign a prenuptial agreement
together, if the agreement is later taken to court, a judge will decide how valid and
reasonable every clause on the agreement is before making their final ruling.

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 ● Difficulties- It is difficult for someone to think about the future at present and
what they might be needing during that period of time. During a prenup
agreement, what might be thought of as a minor compromise might actually be
something which you require the most during the time of divorce, leading to
disputes and disagreement?

Inherit Property – In a prenuptial agreement, the spouse losses their right to inherit the
others property in case they die, whereas if there is no prenup, then the spouse gets a
portion of the estate left behind by their partners

Conclusion

In conclusion, it is perhaps to note that, considering a prenup has its own pros and cons.
Many countries are in lieu of prenuptial agreements but in India, there is no such
agreement that enforces before a wedding. The Indian legal system is full of diverse
religions and secularism has been articulated in the Indian Constitution, in a country
where religion is primary, and where marriages are considered to a religious sacrament,
they do not believe and see it to be a contract or an agreement. Agreeing to the fact that a
pre-nup agreement is , made between a couple before marriage to outline the fate of
finances and personal liabilities if in any case a marriage fails, but we do realize that in a
country like India, for the property laws, it is the Hindu Succession Act and the Indian
Succession Act that are deeply followed. Therefore, in inference or a prospect is drawn
that, if both the parties are genuine and transparent and doesn’t have any ill will or mind
for the future, they will accept the marriage same as before. While the debate for the
validity of this continues in India, it is more important to have a look at the emotional
feasibility of a prenup, which is always seen as a mark of mistrust and lack of
commitment between the couples since the marriage.

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 CASE ANALYSIS OF
JOSEPH SHINE V. UNION OF INDIA
-meher mansi

INTRODUCTION:

Gender stands for characteristics of men and women which are socially determined rather
than biologically identified. It determines the social role, access to opportunities,
entitlement to resources for these two categories of persons and builds cultural
implications upon them. The concept of gender justice in particular means that women
must exercise full participation in decision making process in all walks of life. One step
towards gender justice could be this judgement of this case of Joseph shine v. Union of
India. The legal status of woman is largely influenced by the social position she enjoys in
contemporary world. Aristotle’s view that male is more fitted to rule than female or
Bacon’s proposition that the husband hath by law the power and dominion over the wife,
and may mildly beat her, reflected patriarch approach. This kind of thought process also
influenced the legal norms which resulted in adultery laws in our country. Devoid of
power in public sphere as well as at home, she had to wait for unlocking the doors of
public world through agitations, by entry into workplace or for the dawn of reforms. For
a life of dignity, that was the lone avenue.

In the light of above discussion comes a breakthrough which is historic judgement of

striking down of section 497 of IPC. The Supreme Court has struck down 158 year old
Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional.
"Any provision of law affecting individual dignity and equality of women invites wrath
of constitution. It's time to say that husband is not the master of wife. Legal sovereignity
of one sex over other sex is wrong", read out Chief Justice Misra from the judgment
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written for himself and Justice A M Khanwilkar. The judgement held section 497 to be
“manifestly arbitrary”. The judgment is one of its kinds and has overruled all the previous
judgments upholding the criminalisation of adultery. With pros comes cons and the same
is likely to be the case with this judgment. So, now Adultery has become legal but is still
not ethical. The institution of marriage depends upon the confidence of partners in each
other. The Court has stepped back from interfering in the personal and moral lives of the
people. Adultery is now just a civil wrong for which the remedy is divorce. The history of
Section 497 reveals that the law on adultery was for the benefit of the husband, for him to
secure ownership over the sexuality of his wife. It was aimed at preventing the woman
from exercising her sexual agency. Thus, this section was never conceived to benefit
women. In fact, the provision is steeped in stereotypes about women and their
subordinate role in marriage. The patriarchal underpinnings of the law on adultery
become evident when the provision is considered as a whole. A person engaging in
sexual relations with the wife of another man won’t be charged for adultery if the
husband of the wife so involved gives his consent. This clearly indicates how women are
objectified in the hands of their husbands. Justice Malhotra observed that Section 497
institutionialised discrimination and was “replete with anomalies and incongruities”, such
as an adulterous relationship not constituting an offence if a married woman had her
husband’s consent. At first blush, it may appear as if it is a beneficial legislation intended
to serve the interests of women and pro women but, on closer examination, it would be
found that the provision contained in a kind of anti women which stems from the
assumption that women are like chattels of men.

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 FILAC ON JOSEPH SHINE v. UNION OF INDIA
- meher mansi

Honb’le Judges:

A five-judge bench comprising of

Chief Justice of India Dipak Misra, Justice RF Nariman,
Justice DY Chandrachud, Justice Indu Malhotra and Justice AM Khanwilkar
pronounced the verdict.

I. FACTS

Joseph shine a hotelier challenged the constitutionality of section 497 of Indian penal
code the core reason behind this petition was to shield Indian men from being punished
for extra marital relationships by vengeful women or their husbands. Petitioners close
friend, in Kerala committed suicide after a woman co-worker made malicious rape
charge on him. Further section 497 is an egregious occurrence of sexuality unfairness,
authoritative imperialism and male patriotism. So in October 2017, Joseph Shine, a non-
resident Keralite, filed public interest litigation under Article 32of the Constitution which
challenged the constitutionality of the offence of adultery under Section 497 of the IPC
read with Section 198(2) of the CrPC.

Section 497 IPC criminalised adultery by imposing culpability on a man who engages in
sexual intercourse with another person’s wife. Adultery was punishable with a maximum
imprisonment of five years. Women, including consenting parties, were exempted from
prosecution. Further, a married woman could not bring forth a complaint under Section

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497 IPC when her husband engaged in sexual intercourse with an unmarried woman. This
was in view of Section 198(2) of CrPC which specified how a complainant can file
charges for offenses committed under Sections 497 and 498 IPC.

II. ISSUES:
Whether Section 497 IPC is unconstitutional?
The petitioners wanted certain problems with Section 497 to be addressed:
Adultery law is made gender neutral. This is because the law calls for the man to
be punished in case of adultery, but no action is suggested for the woman

As per Section 497, a woman cannot file a complaint against her husband for
adultery because there is no such legal provision.

Women are treated as an object under the adultery law because according to
section 497 if the husband agrees, the act is not a crime.
The constitutionality of the section was questionable on two grounds they being:

1. Section 497 infringes right to privacy which is article 21

2. Section 497 violates article 14 and 15 which are right to equality and right against
discrimination.

III. LAWS APPLIED:

LAW OF ADULTERY AS IT STANDS IN INDIA:

In India the law of adultery is punishable under section 497 of the IPC, but the framers of
the code did not make it a punishable offence, it was the second law commission which
after consideration thought it was not advisable to exclude this offence from the code.

Section 497 read as follows:

Adultery.—
Whoever has sexual intercourse with a person who is and whom he knows or has reason
to believe to be the wife of another man, without the consent or connivance of that man,
such sexual intercourse not amounting to the offence of rape, is guilty of the offence of
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adultery, and shall be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both. In such case the wife shall not be
punishable as an abettor.

The law commissioners have limited the cognizance of this offence to adultery
committed with a married woman, and the male offender alone has been made liable.

Some other laws which were used during pronouncing the judgement of this case were:
Section 198 of CrPC

The Protection of Women from Domestic Violence Act, 2005

THE DIVORCE ACT, 1869

Article 14 and 21 in The Constitution Of India 1949

The judgment borrows from the findings of Justice Nariman's judgment in Triple Talaq
case.
ARGUMENTS :
The argument of the Petitioner based on Articles 1 4 and 15 was two-pronged –
first, by punishing men alone and excluding women, the law is apparently
arbitrary, making the provision intuitively vulnerable to constitutional
scrutiny. Even though admittedly, adultery can only be committed by the
participation of two persons, one is penalised and the other is exempted from
any criminal liability. This is a case of a straightforward direct discrimination.
Secondly, the law discriminates against women in two peculiar ways. One of
them is by depriving them of sexual autonomy as enjoyed by a married man. At
the same time, a married woman is prevented from entering into any external
sexual affair by virtue of the adultery law. The law acts as a ‘prior restraint’ on
her lover who has to fear severe criminal consequ ences. This is so even in the
case of de facto broken marriages where the parties have not obtained a
divorce.
The connection between constitutional law and criminal law is often
overlooked. In India, the Penal Code was enacted much before the Constitutio n

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came into force. This necessitates the re -shaping of penal laws so that they can
be infused with fundamental constitutional values. Only recently have
Constitutional courts begun to shape this process of constitutionalising criminal
law.

In this context, a significant contribution of Joseph Shine to our constitutional

jurisprudence is the doctrine of principled criminalisation. During the course of
the proceedings, one of the main arguments of the Petitioner was that Section
497 is a case of ‘unprincipled criminalisation’, where the State has criminalised
a particular conduct without sufficient reasons to do so.In the context of
criminalisation, mere harm is not sufficient; harm has to effectively mean
‘judicially’ or ‘legally cognizable harm.’Therefore, w hen adultery does not
cause a legally or judicially cognizable harm, there is no reason for the State to
interfere with it.

Misra, CJI (on behalf of Khanwalikar J. and himself) does observe that
“adultery does not fit into the concept of a crime” and that conceiving so would
be ‘retrograde’. However, except for reiterating certain definitions of ‘crime’,
the principal judgment and the two concurring opinions do not discuss in detail
what reasons could the State legitimately espouse for criminalisation.
The concurring opinion of Malhotra J. makes a happy exception in this regard.
For something to be made criminal, Malhotra J. observed that it has to be a
public wrong, reiterating Mill’s harm principle (Para 16.2). She has also noted
that the State must follow the minimalist approach in the criminalization of
offences. In fact, Latika Vashist vehemently argues that constitutional morality
and objective accounts of harm should drive the policy of criminalization. She
writes,
“No conduct can be made or remain criminal if it is not wrongfully harmful —
wrongful harm defined in consonance with the spirit of constitutional
principles, guided by the norms of constitutional morality. This re -formulation
of policy of criminalisation by reading into it the constitutional norms sets in

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motion a serious debate in Indian criminal law tradition to decriminalise
certain conducts like begging, adultery, homo sexuality; and criminalise
conducts like marital rape.”

Joseph Shine is a solemn attempt towards this reformulation.

IV. JUDGEMENT:
A three-judge bench, headed by the then-Chief Justice of India, Dipak Misra, had referred
the petition to a five-judge Constitution Bench, admitting that the law does seem to be
archaic. While hearing the matter previously, the court had observed that the law seemed
to be based on certain “societal presumptions”. In four separate but concurring
judgements, the court struck down the law and declared that the husband cannot be the
master of his wife.

The judgement held the following things –

SECTION 497 IS ARCHAIC AND IS CONSTITUTIONALLY INVALID.

Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the
encroachment on her right to life and personal liberty by adopting a notion of marriage
which subverts true equality. Equality is subverted by lending the sanctions of the penal
code to a gender-based approach to the relationship of a man and a woman. Sexual
autonomy is a value which is an integral part and falls within the ambit of personal liberty
under Article 21 of the Indian Constitution. This section is a denial of substantive
equality in that it reinforces the notion that women are unequal participants in a marriage;
incapable of freely consenting to a sexual act in a legal order which regards them as the
sexual property of their spouse. In this way, it is violative of Article 14. It is based on
gender stereotypes and violates the non-discrimination clause of Article 15. Besides, the
emphasis on the element of connivance or consent of the husband tantamount to the
subordination of women. Therefore, it clearly offends Article 21 of the Constitution.

SECTION 497 TO NO LONGER BE A CRIMINAL OFFENCE.

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A crime is something which is committed on the society as a whole, while adultery is
more of a personal issue. Treating adultery as a crime would tantamount to the State
entering into a real private realm. Adultery doesn’t fit into the concept of the crime as
that would otherwise invade the extreme privacy sphere of a marriage. However, it
continues to stand as a civil wrong and a grounds for divorce.

A HUSBAND IS NOT THE MASTER OF HIS WIFE.

The judgement places reliance on the fact that women should not be considered as the
property of their husbands or fathers, for that matter, anymore. They have an equal status
in society and should be given every opportunity to put their stance forward.

SECTION 497 IS ARBITRARY:

Throughout the judgement, it was pointed out that the nature of Section 497 is arbitrary.
For one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to
let his wife have an affair with someone else. Rather, the judgement points out, it serves
to preserve the ‘proprietary rights’ a husband has over his wife. Moreover, the wife
cannot file a complaint against her husband or his lover. There are no provisions to deal
with a married man having an affair with an unmarried woman or a widow.

V. ANALYSIS:

This is not the first time adultery has come up in the court, it had come up thrice in the
past in 1954, in 1985, and in 1988

In 1954,in the case of Yusuf Abdul Aziz v State of Bombay, 1954 SCR 930the
SC rejected that Section 497 violated the right to equality
In 1985, Sowmithri Vishnu v Union of India, 1985 Supp SCC 137it said that
women didn't need to be included in the law as a party which can make
complaints
In 1988, V Revathi v Union of India, (1988) 2 SCC 72the Supreme Court said
that the adultery law was a "shield rather than a sword"

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The four-day long hearing in the PIL praying for the decriminalisation of the act of
Adultery had witnessed positive, feminist remarks from the Supreme Court five-judge
bench. “Besides consent, If the husband of a woman connives with another man for the
latter to participate in sexual intercourse with the former’s wife, then there would be no
adultery! This ‘connivance’ attaches a certain deviousness to the Act”, Justice
Chandrachud indicated. Justice Indu Malhotra also pointed out the “absurdity” of the
section in as much as it legalises the act of Adultery if committed by with the consent or
connivance of the husband of the woman who is party to the act- “Is the wife of the
consenting husband being treated as chattel? This amounts to gender bias”. “The man
shall be booked for the offence and his wife shall suffer but the husband of the woman
who has committed the crime will have the benefit...”, observed the Chief Justice. On
observation of the above comments we come to know how anti-women this law was. It is
a law made a century back by the British and it is highly violative of the fundamental
rights guaranteed by our constitution. It was high time there was a change in this law.
Some amendment to the law by adding or removing certain words from the section would
do, but the honourable bench in examination of further problems that could arise struck
down the section wisely. The Centre was represented by ASG Pinky Anand who argued
that it could be a threat to the institution of marriage but the bench held this can be a civil
wrong rather than a criminal wrong. If it is legal doesn’t mean it is ethical and it might
have a devastating effect on the society. The Court however clarified that adultery will
be a ground for divorce. It was also stated that if an act of adultery leads the aggrieved
spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide
under Section 306 of the IPC.With the Chief Justice observing that the survival of a
marriage should be left to the discretion of the husband and the wife, without any
intrusion by the State, the judgment was reserved.

Gender discrimination most often invades dignity of life and right to privacy of woman
contrary to the internationally ascribed moral visions of human rights. Woman was
considered as the victim rather than author of the crime against the sanctity of
matrimonial home. A substantive equality approach would have demanded that
protecting the marital bed unsullied was equally important for both husband and wife,

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and that the validity of the law should be based on that. But there would have been no
effect if the section 497 was made gender neutral as the question is not only about
equality but also whether adultery is a crime against state. Overall the judgement could
not bring out a positive change but to end with a positive noteas rightly cited by J. Indu
Malhotra in her judgment that “Women are no longer invisible to law, and they no longer
live in the shadows of their husbands.”

Introduction

William Gladstone’s famous quote ‘justice delayed is justice denied’ might sound like he
was thinking about Indian judicial conditions while giving this proverb. It sounds harsh
for criticizing judiciary but it’s true. There is no doubt upon the credibility of Indian
judiciary as the most important pillar of Indian democracy. It is the immense faith of
people towards the judiciary that make its powers superior from Executive &Legislative.
It is the only body which can safeguard the rights of the citizen. Judiciary is considered as
a God and judges as its priests. But ever imagined what would be the condition if these
priests will become unfaithful and start misusing the powers of God? Yes, the condition
would become similar to what we saw in Haryana a few years back.

Diversity of Indian Judiciary

In every democratic country, the judicial system is bound to follow the rules &regulations
prescribed in their Constitution. India’s constitution is lengthiest in the world. The
Drafting Committee, 1947 while composing the constitution picked up their favorite laws
from different countries and blends it into the one which makes the constitution of our
country more complex and deep. Many people often criticized it as a ‘bag of borrowing’.
The complexity in the articles makes slightly incomprehensible for the people who
belong to the non-legal background that is why the constitution is considered as a boon
for Indian lawyers as they could use it as their own way. There are total 1,17,369 words
used in the Indian constitution whereas 4,543 words are used in America’s constitution.
America, being three times bigger than India in a geographical area, constitutes itself in 7
articles whereas India has a total of 395 articles. As of now, the American constitution is
amended for only ten times whereas India has outreached the number of hundred.
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Lack of knowledge of the law in common masses

The absence of basic knowledge of the law have become boon for lawyers to subjugate
innocent people under the trap of law to make money. In India, many people are not
aware of their basic rights and duties mentioned in the constitution. It is because they
found it hard and time -consuming to read each and every article of the constitution.
Knowledge of law can help an individual in many ways as it reminds me the famous case
of the United States in 1992, where 79-year-old lady sued McDonald restaurant for
serving the coffee slightly hotter than the prescribed temperature, which made McDonald
liable to pay $ 3 Million as punitive damage to that lady. I believe that the subject of law
should be made mandatory in school education so that an individual at its teenage can
identify right and wrong in the civil society. For instance, giving alms to the beggar or
buying anything from the car while waiting for the green light in road is the offence
under section 177 of Motor Vehicle Act with a fine of Rs. 100 but its violation could be
anytime seen in the roads of metro cities.

Pendency or delay in the court cases

The backlog in case laws broke the backbone of Indian judiciary. The burden on judiciary
made the former Chief Justice TS Thakur emotional at the stage while addressing the
seminar in New Delhi where Prime Minister Narendra Modi was also present. The
burden on judiciary can be realized on the account that as per the data accumulated in
2018, around 3 crore cases are pending all across the courts in India whereas in between
12 years, there has been 8.6% rise in the pendency of the cases where the workload on
Supreme court is increased by 36% followed with High courts at 17% and other
subordinate courts at 7%. The situation can be analyzed that only in Allahabad High
court there are around 7 lakh cases pending. In High courts, 23% are such cases which
are pending for over ten years.204

There is also a dearth of judges in India. As per the reports, India has only 18 judges over
1 Million people which contradicts the law commission, 1987 recommendation for
appointing 50 judges over the same number. Comparing the judges numbers over the

204https://www.prsindia.org/policy/vital-stats/pendency-cases-judiciary (Visited on Apr. 17, 2019)

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populations, China has 140 judges over 1 Million people followed by 107 in America and
42 in Australia.

It is the matter of concern that total 5,132 seats of judges are needed to be fulfilled which
is in limbo. Former Chief Justice TS Thakur beseeched the government to expedite the
recruitment of judges for handling more than 38,68,000pending cases in India.205

Blot in the image of the judiciary

A lawyer is the only person who could provide justice to the aggrieved party at the time
of need. A person in sake of justice sees lawyer as a god. But ever imagined what would
happen if one lawyer convicted another lawyer and issued arrest warrant for their
wrongdoings. Yes, that sounds weird but it had been actually happened in our country.
The first embarrassment witnessed by the judiciary is when impeachment motion was
passed against the former Chief Justice V Ramaswami for the scandals of using extra
money to rejuvenate his official residence at the time of his Punjab &Haryana High court
stint. The committee constituted by then Speaker of Lok Sabha Rabi Ray found
Ramaswami guilty of 11 charges out of 14. In the presence of total 401 members in the
Parliament, 196 MPs voted in favor of impeachment while other members abstained from
voting. Thus not reaching up to the limit of the two-thirds majority, the bill was failed to
pass in the Parliament. This incident humiliated the pure image of judges in the minds of
people. Similarly, former CJI Deepak Misra was also been charged for the corruption and
misusing the authority for which the Congress party gave the notice to the CJI signed by
71 MPs of different parties for introducing his impeachment motion in the Parliament,
but it was later got settled and dismissed.206 Prior three Chief Justice of different High
court were also charged for several misconducts which includes corruption and
misbehavior. In India where more than 133,000 rape cases are pending before the courts,
the senior advocates have been arrested for the sexual harassment inside the court's
premises as recently happened in Saket court, New Delhi in 2018. The arrest of Chief
205https://www.livemint.com/news/india/why-pending-court-cases-have-been-going-up-1549859010699.html (Visited on Apr.
18, 2018)
206Rakesh Mohan Chaturvedi, Vice President Venkaiah Naidu rejects opposition notice for CJI impeachment, THE ECONOMIC

TIMES (Apr. 24, 2018, 2:51 PM) https://economictimes.indiatimes.com/news/politics-and-nation/venkaiah-naidu-starts-

consultation-on-cji-impeachment-notice/articleshow/63875357.cms

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Justice of West Bengal High court CS Karnan while he was serving office also
embarrassed the judicial sanctity in India. He was sentenced to six months in jail while
serving his office for disregarding the judicial institution. The matter of concern was that
he also accused several retired and incumbent Supreme Court judges including then Chief
Justice of India JS Khehar for the several charges included corruption, nepotism, and
casteism.207 These incidents dismayed the faith of common man over the judiciary and its
saviors because if the person who renders justice himself breaches it then upon whom the
people will trust for seeking the same.

The politicization of the judiciary

An institution can be doomed if it leads to the way of politicization, same is with the
judiciary. The legislative tried several times to subjugate its power but every time it
failed. It firstly tried during the regime of Indira Gandhi. The 42nd constitutional
amendment introduced by her government during the Emergency of 1975 had several
provisions which tried to lessen the control of judiciary over the powers of the legislature.
Similarly, the introduction of NJAC was also been made to obtain the power over the
judiciary by including the two eminent personalities including Union Law Minister in the
collegium system for the appointment of judges in the Supreme Court and High courts.
But later it had been declared void by the 99th constitutional amendment.208

Favoritism in the apex court

Media is considered as the 4th pillar of democracy. Judges have been seen many times
instructing media for its conduct but on 12th January 2018 it was for the first time
happened when judges themselves took the help of media to describe their ordeal by
conducting an unprecedented press conference. The four senior judges of the Supreme
Court comprises of Justice J Chelameswar, Justice Ranjan Gogoi, Justice MB Lokur and
Justice Kurian Joseph put several allegation on the Chief Justice of the Supreme Court for
distributing special cases to the judges by his own choice. The allegations by these 4
judges upon Chief Justice was that he did not followed the rules while making the
207https://www.thehindu.com/news/national/karnan-issues-warrant-against-cji-six-judges/article18358985.ece
(Visited on Apr.
20, 2019)
208https://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-decoded/article10050997.ece (Visited on Apr.

20,2019)
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constitutional bench for 8 important cases, which included some important cases like
Sabarimala, Aadhar judgment and decriminalization of section 377. It raised the question
that how judges will solve the individual problem if they himself are in trouble? 209

Ambiguity in court judgments and rules

The Indian laws consist of some peculiar and superfluous rules &regulations which many
people are not even aware of. For instance Section 11 of the Aircraft Act, 1934 may lead
a person to 2 years jail if he negligently uses any machine (which took support from the
air)like kites, balloon, gliders etc. The provisions of Section 46(4) under the Criminal
Procedure Code also seem to be strange as it says that no women can be arrested after
sunset and before sunrise except the special permission given by the magistrate.

Last year, the courts in India had given several judgments which were highly criticized
by the people. For instance, 28th September 2018 judgment the Supreme Court in its
famous Sabarimala temple verdict allowed the women of all ages to enter the sanctum
sanctorum of the temple and pray. This judgment was highly criticized by the devotees of
God Ayappa for violating the centuries old customs of their Hindu deity. Some verdicts
of the courts seemed to be abruptly given by emulating the verdicts of the other countries
like on 15th March 2017, the New Zealand parliament passed the bill to consider their
Whanganui river as a legal personality and same afterfive days on 20th March 2018, the
Uttarakhand High court passed an order to consider Ganga &Yamuna river as a legal
entity and three persons i.e. Director of NMAMI Gange, the Chief Secretary and
Advocate General of the Uttarakhand state as its guardians. The High court in its verdict
declared these two rivers as a living body who also took breathe. It showed recklessness
of the court verdict which later Supreme Court put the stay order on it.210 Similar kind of
judgment was also passed from Uttarakhand High court in 4th July 2018 where he
declared the entire animal kingdom including aquatic &avian as a legal entity. According
to this law the entire animal kingdom has same rights which a common citizen of India

209 Krishnadas Rajagopal, Four SC judges air differences with CJI Misra, THE HINDU (Jan. 13, 2018 6:32 PM)
https://www.thehindu.com/news/national/four-sc-judges-air-differences-with-cji-misra/article22432428.ece
210 Swapna Raghu Sanand, Wake up call from Uttarakhand HC Rivers Ganga and Yamuna are dying – and it’s because of our

failure and lack of political will to protect them! , FINANCIAL EXPRESS (Mar. 21, 2017 9:33 AM)
https://www.financialexpress.com/india-news/wake-up-call-from-uttarakhand-hc-rivers-ganga-and-yamuna-are-dying-and-its-
because-of-our-failure-and-lack-of-political-will-to-protect-them/596616/
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possesses211. I believed that why the person should not be punished for consuming meat
products?

Conclusion

Judiciary is under a very serious threat in India, was also been stated by the present Chief
Justice of India Ranjan Gogoi which must soon to be treated. There are very few people
in the country who are securing justice on time. The recruitment of judges in the courts
should be envisaged for the smooth functioning of the judiciary. The principle of ‘Equal
Justice for all’ should be correctly implemented so that the poor can easily get justice
without spending much of its money. The verdicts of Law commission should also be
considered which instructed courts for declaring the deadline to solve any case and time
period should be given to that particular case according to its situation. There should also
be ease in elevating the judges to the higher courts so that young mind could get chance
to render his service, as per the Article 124 (3)(c) of the Indian Constitution provides for
the appointment of eminent judges to the Supreme Court but it was never come to be in
use.212 The separate court must be formed for the speedy trials with morning and evening
sittings. The cases of traffic challans should be heard separately by these courts because
37.4% of traffic related cases are pending before the different High courts. It is the time
for the Judiciary to rejuvenate itself with the contemporary need of the society so the
person in need of justice can access to its doorsteps without any fear.

211Apoorva Mandhani, Uttarakhand HC Declares “Entire Animal Kingdom” As Legal Entity, With Rights, Duties & Liabilities
Of A Living Person, LIVE LAW (Jul. 4, 2018, 4:55 PM) https://www.livelaw.in/uttarakhand-hc-declares-entire-animal-kingdom-
as-legal-entity-with-rights-duties-liabilities-of-a-living-person-read-judgment/
212 Bare Act, THE CONSTITUTION OF INDIA 1950 39 (Commercial Law Publishers India Pvt. Ltd, Delhi)

Page | 173
 Right to Health- An Analysis
- Aneesh Khandelwal
Abstract

The Constitution of India has provisions related to health. The obligation of the State to
ensure the creation and the sustaining of conditions congenial to good health is cast by
the Constitutional directives contained in Articles 38, 39 (e) (f), 42, 47 and 48 A in Part
IV of the Constitution of India. The fundamental right in Part III also ensures the Right to
Health. The state has to direct its policy towards securing that health and strength of
workers, men and women, and the tender age of children are not abused and that citizens
are not forced by economic necessity to enter avocations unsuited to their age or strength
[Article 39 (e)] and that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood and youth
are protected against exploitation and against moral and maternal abandonment [Article
39 (f)].

Article 42:

“Provision for just and humane conditions of work and maternity relief- The State shall
make provision for securing just and humane conditions of work and for maternity relief”

Article 47:213

“Duty of the State to raise the level of nutrition and the standard of living and to improve
public health- The State shall regard the raising of the level of nutrition and the standard
of living of its people and the improvement of public health as among its primary duties
and, in particular, the State shall endeavor to bring about prohibition of the consumption,
except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to
health”

Protection and improvement of environment is also made one of the cardinal duties of the
State (Article 48 A).

213 The Constitution of India, 1950

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The above articles act as guidelines that the State must pursue towards achieving certain
standards of living for its citizens’. It also shows clearly the understanding of the State
that nutrition, conditions of work and maternity benefit as being integral to health.

Article 25(1) of the Universal Declaration of Human Rights guarantees the right to a
standard of living adequate for health and well-being.

Article 7(b) of the International Covenant on Economic, Social and Cultural Rights have
been cited by the Supreme Court in ES C Ltd v Subhash Chandra Bose214, while
upholding the right to health by a worker.

Although the DPSP (Directive Principles of State Policy) quoted above are compelling
arguments for the right to health, this alone is not a guarantee. There must be a clearly
defined right to health so that individuals can have this right enforced and violations can
be redressed.

The Indian legal executive has deciphered the privilege to wellbeing from multiple points
of view through open intrigue prosecution just as suit emerging out of cases that people
have made on the State, regarding wellbeing administrations and so on.As a result there is
substantial case law in India, which shows the gamut of issues that are related to health.

Article 21 of the Constitution and right to health care215:

The Fundamental Right to Life, as stated in Article 21 of the Indian Constitution,

guaranties to the individual her/his life which or personal liberty except by a procedure
established by law. The Supreme Court has widely interpreted this fundamental right and
has included in Article 21 the right to live with dignity and “all the necessities of life such
as adequate nutrition, clothing….” It has also held that act which affects the dignity of an
individual will also violate her/his right to life. The Constitution incorporates provisions
guaranteeing everyone’s right to the highest attainable standard of physical and mental
health.

214(1992) 1 SCC 441.

215The Constitution of India,1950
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Article 21 of the Constitution guarantees protection of life and personal liberty to every
citizen. The Supreme Court in Bandhua Mukti Morcha vs. Union of India216 has held
that the right to live with human dignity, enshrined in art 21, is derived from the directive
principles of state policy and therefore includes protection to health.

In Vincent Panikulangara vs. Union of India217, the Supreme Court of India on the
right to health care observed: “Maintenance and improvement of public health have to
rank high as these are indispensable to the very physical existence of the community and
on the betterment of these depends the building of the society of which the Constitution
makers envisaged. Attending to public health in our opinion, therefore is of high priority-
perhaps the one at the top”.

In a historic judgment in Consumer Education and Resource Centre Vs Union of

India218 , the Supreme Court has held that the right to health and Medical care is a
fundamental right under Article 21 of the constitution as it is essential for making the life
of the workman meaningful and purposeful with dignity of person. “Right to life” in
Article 21 includes protection of the health and strength of the worker. The expression
‘life’ in Article 21 does not connote mere animal existence. It has a much wider meaning
which includes right to livelihood, better standard of life, hygienic conditions on
workplace and leisure. The court held that the State, be it Union or State Government or
an industry, public or private is enjoined to take all such action which will promote
health, strength and vigour of the workman during period of employment and leisure and
health even after retirement as basic essentials to life with health and happiness. The right
to life with human dignity encompasses within its fold, some of the finer facets of human
civilization which makes life worth living.

The court accordingly laid down the following guidelines to be followed by all asbestos
industries: In Kirloskar Brothers Ltd v. Emplyees’ State Insurance Corpn219. The
Supreme Court, following the Consumer Education and research Center’s case, has held
that ‘right to health’ is a fundamental right of the workmen. The Court also held that this

216
(1984)AIR SC 802
217 (1987)AIR SC 990- 995
218 (1995) 3AIR SSC 42
219(1996) 2 SCC 682.

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right is not only available against the State and its instrumentalities but even private
industries to ensure to the workmen to provide facilities and opportunities for health and
vigour of the workman assured in the provision of Part IV of the Constitution which are
‘integral part of right to equality under Art 14 and right to invigorated life under Article
21 which are fundamental rights to the workmen.

Further in, State of Punjab and Others vs. Mohinder Singh Chawala220 “it has been
held that right to health is integral to right to life. Government has a constitutional
obligation to provide health facilities.” Similarly, the court has upheld the state’s
obligation to maintain health services.

The case of LIC of India v. Consumer Education and Research Centre221, deals how
equality applies in protection of health of the people. In this case LIC, which is a
statutory body, introduced a scheme of life insurance, which was open only to persons in
government or semi-government service or of reputed commercial firms. This scheme
was declared unconstitutional as being violative of Article 14. LIC argued that this
salaried group of lives formed a class with a view to identify health conditions. But the
Supreme Court rejected this argument observing, “The classification based on
employment in government, semi-government and reputed commercial firms has the
insidious and inevitable effect of excluding lives in vast rural and urban areas engaged in
unorganized or self-employed sectors to have life insurance offending Article 14 of the
Constitutionand socio-economic justice.” Hence equality principle should be applied
whenever the health facilities are provided by the Government.

Justice Bhagwati has observed in Francis Coralie v. Delhi222, “We think that the right to
life includes the right to live with human dignity and all that goes along with it, namely,
the bare necessaries of life such as adequate nutrition, clothing and shelter over the head
and facilities for reading, writing and expressing oneself in diverse forms, freely moving
about and mixing and commingling with fellow human beings.”

220(1997) AIR SC 83.

221 (1995) AIR 1811, (1995) 5 SCC 482
222 (1981) AIR 746, (1981) 2 SCR 516

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In Mahendra Pratap Singh vs. State of Orissa223, a case pertaining to the failure of the
government in opening a primary health care centre in a village, the court had held “In a
country like ours, it may not be possible to have sophisticated hospitals but definitely
villagers within their limitations can aspire to have a Primary Health Centre. The
government is required to assist people get treatment and lead a healthy life. Healthy
society is a collective gain and no Government should make any effort to smother it.
Primary concern should be the primary health centre and technical fetters cannot be
introduced as subterfuges to cause hindrances in the establishment of health centre.” It
was also stated that, “great achievements and accomplishments in life are possible if one
is permitted to lead an acceptably healthy life”.

Thereby, there is an implication that the enforcing of the right to life is a duty of the state
and that this duty covers the providing of right to primary health care. This would then
imply that the right to life includes the right to primary health care.

Article 23224 of our Constitution prohibits traffic in human beings, begar and forced
labour. The Article protects the individual not only against the State but also against
private citizens. The term begar means compulsory work without any payment. Traffic in
human beings connotes buying and selling of human beings as if they are chattels, such
practice is now totally abolished by our Constitution, as it has a direct effect on the health
of human beings. Human beings involved in trafficking have a very high risk of
communicating sexually transmitted diseases. The Immoral Traffic (Prevention) Act,
1956 has been passed to the effect in order to punish brothel keepers and middlemen.

Supreme Court has also in several cases interpreted forced labour in an expansive form.
The first of the case relating to bonded labour is the Asiad case i.e. People’s Union for
rights v. Union of India225, where the Court held that bonded labour is violative of
human dignity and is contrary to the basic human values. The Court insisted to abolish
allforms of forced labour within the inhibition of Article 23 and made no difference

223(1997) AIR Ori 37

224The Constitution of India, 1950
225 (1982) AIR 1473, (1983) 1 SCR 456

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whether the person who is forced to give his labour or service to another is remunerated
or not. Justice Bhagwati emphasized in his words:

“ where a person is suffering from hunger or starvation , when he has no resources at all
to fight disease or to feed his wife and children or even to hide their nakedness, where
utter grinding poverty has broken his back and reduced him to a state of helplessness and
despair and where no other employment is available to alleviate, the rigor of his poverty,
he would have no choice but to accept any work that comes his way, even if the
remuneration offered to him is less than the minimum wage. He would be in no position
to bargain with the employer. And in doing so he would be acting not as a free agent with
a choice between alternatives but under the compulsion of economic circumstances and
the labour or service provided by him would be clearly ‘forced labour’.”

Article 24226 puts a partial restriction on employment of child Labour. It states that
children below the age of fourteen years shall not be employed to work in any factory or
in or engage in any other hazardous employment.

It has been held Asiad case that construction work is a hazardous employment and so no
child below 14 should be allowed to work in construction work. The same principle was
reiterated in the case of Labourers Working on Salal Hydro Project v. State of
Jammuand Kashmir227, where the Court directed the Central Government to enforce
this prohibition. The Court observed that ...the problem of child labour is a difficult
problem... and so an attempt has to be made to reduce, if not eliminate, the incidence of
child labour.

The question of child labour has been dealt by the Apex court in several public interest
litigations. In the case of M.C.Mehta v. State of Tamil Nadu228, the Court considered
the Constitutional perspective of the abolition of the child labour in the notorious
Sivakasi Match industries. The Court has issued detailed directions to eradicate the
practice of employing children below the age of 14 years in this hazardous industry

226 TheConstitution of India,1950

227 (1984)1 SCALE 680, (1984) 3 SCC 538
228(1987) AIR. S.C. 1086

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Medical Assistance and Right to Health:

This has been explicitly held with regard to the provision of emergency medical
treatment in Pt. Parmananda Katara vs. Union of India229. It has been held that held
that it is the professional obligation of all doctors, whether government or private, to
extend medical aid to the injured immediately to preserve life without waiting legal
formalities to be complied with by the police under Cr.P.C.

Article 21 of the Constitution casts the obligation on the State to preserve life. No law or
State action can intervene to delay the discharge of this paramount obligation of the
members of the medical profession. The obligation being total, laws of procedure
whether in statutes or otherwise which would interfere with the discharge of this
obligation cannot be sustained and must, therefore give way. This is a very significant
ruling of the Court. It is submitted that if this decision of the Court is followed, in its true
spirit it would help in saving the lives of many citizens who die in accidents because no
immediate medical aid is given by the doctors on the ground that they are not authorized
to treat Medico-legal cases. Let us hope that all doctors (Government or private) of this
country should follow this ruling of the court earnestly.

Medical Examination of rape victim and Right to health care:

It was a common practice among the doctors to refuse to examine the rape victim unless
she is not referred by the police. However, the Supreme Court in State of Karnataka vs.
Manjanna230 , has recognised the right of the rape victims medical examination and
disapproved the refusal of some government hospital doctors, particularly in rural areas,
where hospitals are few and far between, to conduct any medical examination of a rape
victim unless the case of rape is referred to them by the police. Such refusal to conduct
the medical examination necessarily results in a delay in the ultimate examination of the
victim by which time the evidence of the rape may have been washed away by the
complainant herself or be otherwise lost.

229 (1989) AIR 2039, (1989) 3 SCR 997

230 (2001) 4 LRI 731, (2000) 6 SCC 188.
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Working of Blood Banks and Right to Health Care:

The instrument of Public Interest Litigation used by Common Cause, addresses the issue
of the working of commercial blood banks. The court in Common Cause vs. Union of
India and Ors.231, while recognizing that blood donation is considered as a great life
saving service to humanity, it must be ensured that the blood that is available with the
blood banks for use is healthy and free from infection. The Supreme Court in this case
laid down a system of licensing of blood banks. It may be inferred from the above
reasoning that the State is entrusted with the responsibility in matters of health, to ensure
efficient functioning all centres relating to health care.

Cases of HIV/AIDS and Right to health care:

Recently the Supreme Court232 has addressed the epidemic of HIV/ AIDS. In a case
where the court had to decide whether an HIV positive man should disclose his condition
to the woman he was to marry, the court has held that “the woman’s right to health to
precedence over the man’s right to privacy”. It found that the hospital did not error in
disclosing his status to his fiancé.

Living and working conditions of workers and right to health care:

While the provision of health services is essential to ensure good health, there are several
others factors that influence a person’s health. In Citizens and Inhabitants of Municipal
Ward vs. Municipal Corporation, Gwalior233, the court deliberated on the question- Is
the State machinery bound to assure adequate conditions necessary for health? The case
involved the maintaining of sanitation and drainage facilities by municipal corporations.
It was held that the State and its departments (in the instant case, the Municipal
Corporation) are bound to assure hygienic conditions of living and health.

Mentally ill person and right to Health care:

There is sufficient case law on the issue of health in State run institutions such as remand
homes for children and “care homes”. In Sheela Barse vs. Union of India and
231(1996) AIR SC 929.
232Sahara House v. Union of India. [W.P, (C) No. 535 of 1998]
233 (1997) AIR MP 33

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Another234, a case pertaining to the admitting of non-criminal mentally ill persons to
prisons in West Bengal, the Supreme Court has held that “Admission of non-criminal
mentally ill persons to jails is illegal and unconstitutional…. The Judicial Magistrate will,
upon a mentally ill person being produced, have him or her examined by a Mental Health
Professional/Psychiatrist and if advised by such MHP/Psychiatrist, send the mentally ill
person to the nearest place of treatment and care.” It has further directed the state to
improve mental health institutions and integrate mental health into primary health care,
among others. Further in Sheela Barse v Union of India and Others, the Supreme Court
has entrusted to High Courts the duty to monitor the conditions of “mentally ill and
insane” women and children in prisons and pass appropriate orders from time to time. In
the most recent case involving the death of 25 inmates of a mental health institution in
Erawadi, Ramnathapuram District as they were chained to poles or beds and could not
escape from a fire that broke out, the Supreme Court has directed the state to implement
the provisions of the mental health act as well as to undertake a survey of all institutions
that provide mental health facilities and ensure that they are maintaining standards of
care. Section 81 of the Mental Health Act, 1987, has provided that mentally ill person be
treated without violation of human rights.

Biomedical Waste and Right to Health Care:

The Biomedical Waste (Management and Handling) Rules, 1998 and The Biomedical
Waste (Management and Handling) Amendments Rules, 2000 was notified by the Central
Government in exercise of the powers conferred by Ss 6, 8 and 25 of the Environment
(Protection) Act, 1986. The act makes it a duty of every occupier of an institution
generating biomedical waste which includes a hospital, nursing home, clinic, dispensary,
veterinary institution, animal house, pathological laboratory, blood bank by whatever
name called to ensure that such waste is handled without any adverse effect to human
health and the environment.

234 (1986) AIR 1773

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Pollution and Right to health Care:

In Santosh Kumar Gupta vs. Secretary, Ministry of Environment, New Delhi235,

contended that the policy, controls / regulations and their implementations are inadequate
thereby causing health hazards. In its judgments, the High Court of Madhya Pradesh has
laid down that pollution from cars poses a health hazard to people and that the State must
ensure that emission standards are implemented maintained. In the land mark MC Mehta
vs. Union of India236, the Supreme Court has held that environmental pollution causes
several health hazards, and therefore violates right to life.

Specifically, the case dealt with the pollution discharged by industries into the Ganges. It
was held that victims, affected by the pollution caused, were liable to be compensated.

Ayushman Bharat

The Ayushman Bharat is a scheme that aims to provide health assurance to 10 crore
families or around 50 crore benificiaries. They will be given a cover of Rs 5 lakh per
year,. The scheme was launched to target the poor, deprived rural families and an
occupational category of urban workers families. It is a cashless and paperless access
access to services for the beneficiary at the point of service.

Conclusion:

It can be concluded that the judiciary has clearly read into Article 21, Right to Life, the
right to health. Enumerated rights have an edge over wider interpretations of existing
rights, as States can be held accountable for violations. However, with the extensive case
law that is available is it not possible to use what is available to ensure that health care,
facilities and condition ensuring health are fundamental rights of every citizen? If the
case law reflects the ability of the courts to read the meaning of ‘health’ in very wide
sense, then why not use the instrument of case law to confer rights? It is this question that
must be examine in the light of the recent amendment guaranteeing primary education for
all. The process that led up to the amendment must be looked at critically as well as how
the implementation of it is currently taking place. Any amendment guaranteeing the right
235 (1998) AIR MP 43
236(1987) AIR SC 1086.
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to health should have a focus on primary health care, which is preventive and curative. It
should also have specific focus on the health of women more specifically reproductive
health, children, and the disabled- both physically and mentally. Keeping this in mind
there must be more detailed examination of an amendment to the Constitution,
guaranteeing the right to health.Also the Central government has recently announced an
health care programme Ayushman Bharat for the citizens which will cover over 50 crore
beneficiaries.

“Comparative Study On Recognition Of Divorce Jurisdiction”

Rajmani Mohanty237

Abstract

Transformed by the advent of globalization, and the increasing movement of individuals

and families across national borders, international family law has become a significant
subject, bridging the traditional boundaries of public and private international law. In the
context of Recognition of foreign divorces under different jurisdiction issues such as in
American courts, Indian Court, UK courts, Australian court been implemented in federal
legislation and uniform state laws. Foreign marriage certificates are often only recognized
by domestic authorities. International human rights norms provide a useful reference both
to emphasize the importance of full and free consent to enter into a marriage, and also to
underline the respect due to marriage and family relationships. This paper of mine will
highlight the status of Recognition of divorces in different parts of the world. The process
starts with, Applications must be made in an official form, which can be obtained from
the registry offices, the marriage departments of justice. If a further marriage is entered
into abroad before the dissolution of the first marriage has been recognized by the
competent Land department of justice. Currently, the rules on the law applicable to
divorce and legal separation apply in 16 EU countries. The process of recognition of

2371584009,Student,School Of Law,KIIT DEEMED TO BE UNIVERSITY.

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foreign decisions238 in matrimonial matters is important as it establishes certainty as
regards the existence or non-existence of a marriage, and a large number of legal
consequences hinge upon. A marriage has far-reaching implications in terms of taxation
law, aliens law, social law and civil law. For the same reasons, creative approaches to
cross border recognition for alternative status such as civil union and international comity
approach should also be a priority and only by this the recognition of divorces can be a
easy process.

Key Words-Cross Border, Divorce, Globalization, Norm, Recognition.

⚫ Introduction

Distances are diminishing as ever more networks span the globe. As globalization
progresses, modern means of transport and communications technologies are bringing
people closer together, a fact which is also reflected in the growing number of
“international marriages”. There are many reasons why bi-national couples marry outside
of Germany.

In addition, many German couples239 wish to get married when on holiday, which often
means abroad. Yet in the lights of Las Vegas, Venice or the tropical palms of a South Sea
island, it must be remembered that marriage is, first and foremost, a legally binding
contract which has many consequences and that additional requirements may have to be
met if the ceremony is performed abroad.

⚫ Recognition of foreign marriage in different parts of the world

A foreign marriage certificate proves that a marriage has been entered into abroad.

In some states (e.g. the US and Canada) the couple is only given a provisional certificate
after the ceremony. The marriage240 must subsequently be registered with the competent
authority in order to obtain a full extract from the register.

238Matrimonial and Family Proceedings Act 1984, Part III (Eng) (1984).
239 Basiouny v. Basiouny, 445 So.2d 916.
240 Shikoh v. Murff, 257 F.2d 306.

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Foreign marriage certificates are often only recognized by domestic authorities or courts
241
when their authenticity or evidentiary value has been determined in separate
proceedings. A number of standard international procedures have been developed for this
purpose.

Australia

Australia's laws on divorce and other legal family matters were overhauled in 1975 with
the enactment of the Family Law Act 1975, which established no-fault divorce in
Australia. Since 1975, the only ground for divorce is irretrievable breakdown of marriage,
evidenced by a twelve-month separation. However, a residual "fault" element remains in
relation to child custody and property settlement issues.

India

In Hindu religion marriage is sacred and not a contract, hence divorce was not recognized
before the codification of the Hindu Marriage Act in 1955. With the codification of this
law, men and women both are equally eligible to seek divorce. Hindus, Buddhists, Sikhs,
and Jains are governed by the Hindu Marriage Act 1955, Christians are governed by The
Divorce Act 1869, Parsis by the Parsi Marriage and Divorce Act 1936, Muslims by the
Dissolution of Muslim Marriages Act, 1939 and Inter-religious marriages are governed
by The Special Marriage Act 1954. Conditions are laid down to perform a marriage
between a man and woman by these laws. Act allow such a decree only on specific
grounds as provided in these acts: cruelty, adultery, desertion, apostasy from Hinduism,
impotency, venereal disease, leprosy, joining a religious242 order, not heard of being alive
for a period of seven years, or mutual consent where no reason has to be given. Since
each case is different, court interpretations of the statutory law gets evolved and have
either narrowed or widened their scope.

241 Gustafson v. Jensen, 515 So.2d 1298.

242Aleem v. Aleem, 931 A.2d 1123, 1123.
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United States of America

Divorce in the United States is a matter of state rather than federal law. In recent years,
243
however, more federal legislation has been enacted affecting the rights and
responsibilities of divorcing spouses. The laws of the states of residence at the time of
divorce govern; all states recognize divorces granted by any other state through the
principle of comity, enshrined in Article IV of the U.S. Constitution. All states impose a
minimum time of residence in the state. Typically, a county court's family division judges
petitions for dissolution of marriages. In some countries there may be a bias towards the
man regarding property settlements, and in others there may be a bias towards the woman
concerning property and custody of any children. Some of the more important aspects of
divorce law involve the provisions for any children involved in the marriage, and
problems may arise due to abduction of children by one parent, or restriction
of contact rights to children.

United Kingdom

In England and Wales, divorce is allowed on the ground that the marriage has
irretrievably broken down. The Matrimonial Causes Act 1973 specifies that the marriage
may be found to have irretrievably broken down if one of the following is established:
1. Adultery
2. Unreasonable behavior
3. Desertion (two years)
4. Separation, agreed divorce (two years)
5. Separation, contested divorce (five years)
Civil remarriage is allowed. Religions and denominations differ on whether they permit
religious remarriage.

A divorce in England and Wales is only possible for marriages244 of more than one year
and when the marriage has irretrievably broken down. If there are any outstanding

243 Restatementsecond of Foreign Relation law,(incorporating HagueConvention of 1 June 1970 on the Recognition of Divorces
and Legal Separations (June 1, 1970).
244Family Law Act of 1986 (Part II) (U.K.).

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financial issues between the parties, most solicitors would advise resolving these by way
of a Clean Break' Court order prior to obtaining the Decree Absolute.

European Union (EU)

EU rules are in place to work out with which court spouses should file an application for
divorce. Under the regulation concerning jurisdiction and the recognition and
245
enforcement of judgments in matrimonial matters and the matters of parental
responsibility, a divorce pronounced in one EU country is easily recognised in other EU
countries.

To bring legal certainty to international couples wishing to divorce246 , there is also

a regulation to help spouses agree on the national law that should apply to their divorce.
If the couple does not agree on which law to pick, the court or authority responsible
determines which national law should apply to the divorce.

⚫ Recognition of abroad divorces

In accordance with the general principles of constitutional and international law, court
judgements and similar sovereign acts only have direct legal effect within the territory of
the state in which they were passed or performed. Every state is free to determine
whether and under which conditions it will recognize foreign sovereign acts, insofar as it
is not bound to do so by treaty. The dissolution of a marriage is thus basically only valid
in the state in which it was dissolved. In Germany a marriage dissolved abroad continues
to be viewed as still in existence. For example, the man and wife continue to be listed as
such in German civil247 status records and registers of residents until the foreign divorce
has been recognized. It is thus not possible to enter into a new marriage in Germany
before the divorce has been recognized, as it would be bigamous. Orders in matrimonial
matters which were made in an EU state (other than Denmark) will as a rule be
recognized in the other Member States without requiring any separate judicial
proceedings for recognition. The nationality of the parties is not relevant. Nor are any
special proceedings now required for amending German civil status records, provided the
245 Theprovision in Sec-484(2)(b), reflected the rule in New York and several other states.
246 J.
Thomas Oldham, Why a Uniform Equitable Distribution Act is Needed to Reduce Forum Shopping in Divorce Litigation.
247Nigel Lowe, Bromley’sFamily Law (11th ed. 2015).

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judgement is absolute and final and not subject to any appeals in the Member State in
which it was passed. Recognition proceedings are thus not necessary for judgements from
EU Member States (with the exception of Denmark). Recognition will only be denied on
the ground of major procedural irregularity or for reasons of German public policy248.

The EU Regulation (No. 2201/2003 of 27 November 2003) does not however prevent
anyone from seeking a court order on the recognition or non-recognition of a foreign
judgement, if you have a interest in so doing. For a divorce to be recognized, you must
provide the divorce decree and a special certificate obtained from a court or authority249
in the Member State where the divorce was obtained. This certificate must take a certain
form250.

In all other cases not mentioned above, formal recognition of foreign judgements in
matrimonial matters251. The Land departments of justice are as a rule responsible for the
recognition of such foreign judgements. Their duties may also be delegated to the
Presidents of the Higher Regional Courts.

The recognition or non-recognition by the Land department of justice is binding on all

courts and administrative authorities in Germany. Upon recognition252 the divorce is valid
under the law with retroactive effect from the date on which the foreign decree entered
into force.

Applications must be made in an official form, which can be obtained from the registry
offices, the Land departments of justice. If a further marriage is entered into abroad
before the dissolution of the first marriage has been recognized by the competent Land
department of justice, the second marriage bears the taint of bigamy and is thus voidable.

The process of recognition of foreign decisions253 in matrimonial matters is important as

it establishes certainty as regards the existence or non-existence of a marriage, and a large

248Sec-328 (1) 4, German Code of Civil Procedure.

249Art-37,European union Regulation,10/2011.
250
See Articles 37 and 39 in conjunction with Annex 1 to the EU Regulation,10/2011.
251article 7, section 1 of the Family Law Amendment Act (Familienrechts-Änderungsgesetz).
252
Art-3,Hague Convention on the Law Applicable to Matrimonial Property Regimes.
253Matrimonial and Family Proceedings Act 1984, Part III (Eng) (1984).

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number of legal consequences hinge upon this question.A marriage has far-reaching
implications in terms of taxation law, aliens law, social law and civil law.

254
The recognition by the Land departments of justice is however limited to the
dissolution of the bonds of marriage. Any other arrangements included in the foreign
judgement regarding related issues I.e-maintenance claims, pension arrangements,
property, are not affected by the decision of the Land departments of justice.

⚫ Conclusion

In order to prove that a marriage has been dissolved abroad, the marriage certificate,
divorce decree and, if necessary, other documents must be submitted to authorities or
courts. Information on obtaining these foreign documents can be found on the websites. It
is to be noted that it can only obtain notarial, court or other documents for you. In
accordance with the general principles of constitutional and international law, court
judgements and similar sovereign acts255 only have direct legal effect within the territory
of the state in which they were passed or performed. Every state is free to determine
whether and under which conditions256 it will recognize foreign sovereign acts, insofar as
it is not bound to do so by treaty. The dissolution of a marriage is thus basically only
valid in the state in which it was dissolved.EU Member States (excluding Denmark)
accept the divorce decree and a special certificate obtained from a court or authority in
the Member State where the divorce was obtained as proof that you have been divorced.
When a married couple decides to separate permanently, one or both spouses will
generally start divorce proceedings. In most countries divorce is decided by a court, and
that court's judgment dissolves the marriage.

When the two spouses wishing to divorce257 have different nationalities, have lived in
different EU countries during their marriage or no longer live in the same EU country,
they need to know which court will hear their case and which country's law applies to

254 Millerv. Miller, 861 N.E.2d 393.

255Inre Marriage of Lasota, 17 N.E.3d 690.
256Art-9,Hague Convention on the Recognition of Divorces and Legal Separations.

257Buckley & O Mahony,Recognition of Foreign Divorces91983),I.R.23.

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them.EU law provides for common rules to work out with which court international
spouses should file an application for divorce.

All other states, however, usually require a decision by a court or authority of their own
before they will recognize divorces. Bilateral or multilateral agreements are in force with
some states which facilitate the mutual recognition of divorce decrees.

Currently, the rules on the law applicable to divorce and legal separation apply in 16 EU
countries: Austria, Belgium, Bulgaria, France, Germany, Greece, Hungary, Italy, Latvia,
Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.

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Crossroads Of Intellectual Property Laws and Insolvency Laws in India: The Need
For a New Regime

- Anjana Sridharan

Introduction:

The increase in entrepreneurship in the markets has impacted the credit markets and led
to an increasing demand for the same. This has also led to strains in the economy, often
leading to bankruptcy and requiring some sort of systematic protection to be afforded to
these creditors, both secured and unsecured, financial and operational and other
categories of individuals whom the company owes money to. This calls for a system
that’s more and more streamlined and standardised to speed up the process and increase
its efficiency and thus came about the modern insolvency laws, and in India, the
Insolvency and Bankruptcy Code, 2012.Evaluating and assessing the value of intellectual
property is one of the more difficult tasks at hand for a company going into liquidation.
However, the significance of Intellectual Properties during the process of liquidation is
thoroughly undervalued. The valuation of a company’s Intellectual Property could make
or break the company’s existence.

Research question:

This article explores how the value of the intangible assets such Intellectual Property can
leave a huge impact on the valuation of the company and the options available to it
during insolvency, and whether,

1. The valuation of Intellectual Property should be done before

2. An individual with specific expertise and experience in the field of intellectual
property rights should be appointed statutorily for the same.
3. The IBC should have detailed provisions regarding the evaluation and/or disposal
of Intellectual Properties.

Complications in Evaluation during Liquidation:

A lot of complications arise around the reputation of a brand when it goes into
liquidation. A question arises as to whether the Intellectual properties of a company
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should be valued at such value as it would have had before the instance of
liquidation/bankruptcy or whether, like all other assets, it should be valued at its value at
the time of liquidation. The author believes that, the asset that is Intellectual Properties
should be given special consideration and be evaluated at such value as it would have had
during the time before the liquidation order was passed. The reasoning behind this is that
once the intellectual properties have been acquired by another company or the company
itself has been allotted a Corporate Insolvency Resolution Plan which can be successfully
implemented, the reputation of a company can be reinstated or reacquired hence restoring
its value to its pre-bankruptcy state (in case of Trademarks and such) and the market
value of its goods would be restored as well. Further, this would make easier, smoother
and hence more efficient the process of liquidation and lay the foundation for a speedier
revival of the company. Uncovering the value of a company’s intellectual property rights
(IPR) during an administration, liquidation or insolvency can be a complicated process.
Precise evaluations can be hard to come by and should be left to the experts.

Categories of Intellectual Properties and their Evaluation:

1. Patents:

Term of every patent in India is 20 years from the date of filing of patent
application, irrespective of whether it is filed with provisional or complete
specification. However, in case of applications filed under PCT the term of 20
years begins from International filing date. As a general rule for valuing a patent,
the longer the patent has to run, the more it will be worth.

Evaluating the patent takes into consideration factors such as nature of the
invention, applicability, etc. However, factors to consider include the number of
similar patents that exist, how broad the protection provided by the patent is, and
the size of the industry the patent applies to.

1. Trademarks:

Trademarks can be divided into two categories, namely, registered trademarks and
unregistered trademarks. As is obvious, a registered trademark tends to be heavier
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 in terms of its value as compared to unregistered trademarks. Unlike patents,
which can retain their value despite a company collapse or liquidation, the value of
a trademark is usually dependent on the strength of the company behind it.
Therefore, as mentioned earlier, it would be fair if a provision were to state that a
Trademark is to be evaluated at such value as it would have had before it files
for/goes into liquidation, in case of bigger brands which have worked more
towards building its reputation over longer periods of time.

1. Designs:

Similar to trademarks, a design can be registered or unregistered, with registered

designs protected for up to 25 years. The value of design will remain even if the
business goes bust in the same way as a patent.

1. Copyright:

Copyright cannot be registered in the same way as designs, trademarks and

patents. Instead, Copyright applies to original work produced by the company that
satisfies the necessary criteria. The copyright rules can be inconsistent and
confusing, particularly where the application of new technologies are concerned,
but copyrighted works do tend to command a high a price. Tracing ownership of
copyright can be a problem in itself, not to mention the many other aspects that
need to be considered before a value can be placed on copyright. However, taking
the time to establish and cement your ownership of a copyright in an insolvency or
company rescue procedure can create significant rewards

There can also be untapped value in other intangible company assets, such as
databases, domain names and even industry know-how.

Need for a Hard and Fast Provision Regarding the Evaluation/Disposal of

Intellectual Properties in the Indian Market:

The Insolvency and Bankruptcy Code, 2016 was passed with a view to simplify the
process of liquidation of a company in the event of insolvency. However, the code is

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silent on the aspect of disposal of intellectual property of the corporate debtor. The only
instances where intellectual property is discussed in the code are:

1. With respect to the duties of the Interim Resolution Professional wherein

according to S. 18(f) he is to take control and custody of any asset over which the
corporate debtor has ownership rights and S.18(f)(4) expressly includes intangible
assets including intellectual property.
2. With respect to disclosure of details of the Corporate Insolvency Resolution Plan
to the resolution applicant, the same shall be disclosed only if the applicant
undertakes to protect the intellectual property of the company in question [S. 29
(2)(b)]
3. With respect to the inclusion of intangible assets such as intellectual property
(inclusive, not exhaustive) in the liquidation estate which is to be consolidated,
maintained and held in fiduciary nature by the liquidator.

However, it is apparent that there is no detailed instruction/procedure in the IBC which

elaborated on how intellectual property is to be valued and disposed of, whether there
shall be a transfer of rights, etc.,

There are no cases in India that specifically discuss the involvement of intellectual
property, so the author will be taking up and analysing overseas cases where there is an
entanglement of intellectual property and liquidation in bankruptcy.

In re Simonds AG Bankruptcy Litigation was one of the cases the court analysed.
Simonds, the court addressed whether granting comity to a provision of German
insolvency law, which terminated the rights of a patent licensee, would be manifestly
contrary to public policy. The German law conflicted with 11 U.S.C. § 365(n), which
gives intellectual property licensee the right to (i) treat a contract that has been debtor-
licensor as terminated or (ii) retain its rights under the contract for the duration of the
contract. The Simonds bankruptcy court held the termination provision to be manifestly
contrary to U.S. public policy because a failure to apply Section 365(n) would severely
impinge upon an important liberty of statutorily accorded licensees of U.S. patents and

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stifle technological innovation. This calls to question the rights of patent licensees in the
event of winding up of a company which has not been dealt with under any Indian law.

Now, analysing the progress of the English market over the 21st century, we can see that
the value of intangible assets have been increasing steadily and traditional labour-based
markets and industries are giving way to skill based employment. In a nutshell, a labour
based economy is now becoming a knowledge intensive economy. India has not reached
this level of knowledge intensity based economy as yet, but the move towards this is fast
and very apparent as more and more companies give importance to their intangible assets
over the tangible ones. So, the value of Intellectual Properties and their utilisation in the
process of liquidation or revival of a company are of extreme significance.

Since pledges and liens arise consensually or by operation of law and are possessory in
nature, they have no application to intangible intellectual property that is not evidenced
by title documents. Whilst it is true that registered trademarks and patents are evidenced
by certificates of registration, these are not negotiable title documents, as would be
necessary to create a lien or pledge. Thus, these cannot be a valid security for secured
creditors nor can they satisfy their debts out of the same. However, during the process of
liquidation, what would happen to these assets remains a worrisome question.

In an age and time where most marketing relies on the goodwill of the brand and
customer faith and loyalty in and to existing brands, it is almost essential to have a
separate statutory coverage for the same. Further, many major brands which have gone
into liquidation have worked over a large period of time to build a reputation for their
respective brands and it times of insolvency and liquidation, this alone could help
implementing large part of the corporate insolvency resolution plan. In this regard, the
Insolvency Professional should be one who has experience and expertise with respect to
the valuation of Intellectual Property. Further, the Code should have detailed provisions
which deal with the valuation and, more importantly, the disposal of Intellectual
Property. It is a rather dubitable idea since the valuation of intangible assets have long
been subject to debate and discussion; the conclusion, almost always, being that the
valuation intangible rights is highly subjective.
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It’s also important to note that IPR, here, isn’t simply restricted to trademarks but also
applies to patents and copyrights and industrial designs. Intellectual Property Rights
which of high value in terms of human creativity and effort, should they be included as
such as a part of the liquidation process? Is it moral and ethical to pass off the labour,
skill and judgement of one individual to another under these extraordinary
circumstances?

There are virtually no cases that deal with this question at hand and there is little
literature on how this issue is to be dealt with, despite Intellectual Property being and
becoming the cornerstone of modern economy.

Conclusion:

Conclusively, it can be unanimously agreed with that the existing markets in most
developing countries are moving more towards knowledge based one rather than labour.
The economy is largely reliant upon the cornerstone of Intellectual Property, especially
with growing developments in networking and widening reach and access to the public of
various kinds of data. Further, with the flow of the economy increasing, and its growth
rate also progressing likewise, it has put great strains on the financial stability of this
chain as a whole. There are a number of companies which have a huge influence on the
public as well as the economy, which are starting to declare bankruptcy and going into
liquidation. This alone is an indicator of the significance of the need for a streamlined and
efficient and concretised system to deal with IPR’s in the event of liquidation.

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 RIGHT TO PRIVACY
TOPIC:
RIGHT TO PRIVACY: ISSUE AND CHALLENGES
Details of Author(s)
Name of the Author: RAKHI
Name of the Co-Author: RADHIKA AGARWAL

ABSTRACT
The Right to Privacy is a multidimensional concept. In modern society right to privacy
has been recognised both in the eye of the law and in common parlance. Article 21
protects the right to privacy and promotes the dignity of the individual. In Kharak Singh
v. State of U.P.1, Gobind v.

State of M.P.2and R Rajagopal v. State of T.N.3it was held that ‘Right to privacy is a
part of the right to “life” and “personal liberty” enshrined under Article 21 of the
Constitution. The said right cannot be curtailed except according to procedure established
by law.’ The right to privacy is considered a ‘penumbral right’ under the Constitution.

Though the phraseology of Article 21 starts with negative word but the word “No” has
been used in relation to the word deprived. The Supreme Court stretched Article 21 from
its negative phraseology to positive.

But right to liberty can nowhere be absolute. In the U. S. A., the executive may impinge
upon individual liberty if it acts in accordance with “due process of law.” and thus
restrains both the executive and the legislature. The courts, in India, not only restrain
arbitrary action of the executive, they also examine whether the laws providing for
curtailment of liberty are “arbitrary,unfair or unreasonable.”

Intrusion into privacy may be by- Legislative Provision, Administrative/Executive

order and Judicial Orders

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INTRODUCTION
On 24th August’2017 in Justice KS Puttaswamy (Retd.)& Anr. v. Union of India &
Ors,4 the Supreme Court of India unanimously by virtue of 9:0 upheld privacy as a
fundamental right, thus making it clear that anyone can challenge the actions of the state
or other entities against this right. The Privacy bench unanimously found that privacy was
a right emanating from Article 21 of the Constitution, which guarantees right to life and
personal liberty.

The Supreme Court overruled the decisions rendered in the M.P. Sharma case5 and the
KharakSingh case6up to the extent that they held Right to Privacy is not a Fundamental
Right under Part-III of the Constitution.

The various opinions by the Constitution Bench delve into this question, drawing out
what could eventually be used by the government as reasonable restrictions on the
fundamental right of privacy. These sections of the opinions and observations are the
most crucial parts of the judgment in a sense, because they cover how privacy will
actually be enforced as a fundamental right so far as the State is concerned.

As such, the opinions of Supreme Court don’t codify the definition of privacy, nor do
they offer a detailed litmus test against which restrictions may be judged. Majority of the
opinions concur that these issues will have to be dealt with on a case-to-case basis.
Regardless, the judgment does go into the question of reasonable restrictions which Right
to privacy can be subjected to.

The Judgment bewildered not only the general public but also the legal fraternity to a
great extent. The primary question which begotten in everyone’s mind was that whether
the right to privacy as declared by the Supreme Court as an intrinsic part enshrined under
Fundamental Rights is absolute or curtailed? Meaning thereby, whether this Right to
Privacy is an absolute right or is it subject to certain limitations and restrictions.

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 ORIGIN OF PRIVACY

The Greek philosopher Aristotle spoke of a division between the public sphere of
political affairs (which he termed the polis) and the personal sphere of human life (termed
oikos). This dichotomy may provide an early recognition of “a confidential zone on
behalf of the citizen”.7 Aristotle’s distinction between the public and private realms can
be regarded as providing a basis for restricting governmental authority to activities falling
within the public realm. On the other hand, activities in the private realm are more
appropriately reserved for “private reflection, familial relations and self-determination.”8

Austin in his Lectures on Jurisprudence (1869) spoke of the distinction between the
public andthe private realms: jus publicum and jus privatum. The distinction between the
public and private realms has its limitations. If the reason for protecting privacy is the
dignity of the individual, the rationale for its existence does not cease merely because the
individual has to interact with others in the public arena. The extent to which an
individual expects privacy in a public street may be different from that which she expects
in the sanctity of the home. Yet if dignity is the underlying feature, the basis of
recognizing the right to privacy is not denuded in public spaces. The extent of
permissible state regulation may, however, differ based on the legitimate concerns of
governmental authority.

In their seminal article, Warren and Brandeis observed that: “The principle which
protects personal writings and all other personal productions, not against theft and
physical appropriation, but against publication in any form, is in reality not the principle
of private property, but that of aninviolate personality.”9

The right “to be let alone” thus represented a manifestation of “an inviolate personality”,
a core of freedom and liberty from which the human being had to be free from intrusion.
The technology which provided a justification for the need to preserve the privacy of the
individual was the development of photography. The right to be let alone was not so

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much an incident of property as a reflection of the inviolable nature of the human
personality.

EVOLUTION OF THE DOCTRINE OF PRIVACY IN INDIA

Constituent Assembly after discussing this issue decided not to put Right to Privacy in
the Indian Constitution.

Justice K.S. Puttaswamy (Retired) filed a petition in the year 2012 in the Supreme Court
challenging the constitutional validity of Aadhaar on the grounds that it violates the right
to privacy enshrined under Article 21 of the Indian Constitution. During the hearings, the
Central government opposed the categorization of privacy as a fundamental right. The
government's opposition to the right relied on two early decisions i.e. MP Sharma v.
Satish Chandra10 in 1954, and KharakSingh v. State of Uttar Pradesh11in which had
held that privacy was not a fundamental right.

In M.P Sharma case, the bench held that the drafters of the Constitution did not intend
to subjectthe power of search and seizure to a fundamental right of privacy. They argued
that the Constitution of India does not prescribes any language similar to the Fourth
Amendment of the US Constitution, and therefore, interrogated the existence of a secured
right to privacy. The Supreme Court clarified that M.P Sharma Case did not specifically
decide that whether a constitutional right to privacy is intrinsic the right to life and
personal liberty embodied under Article 21 and protected and guaranteed by other
provisions contained in the Part-III of the Constitution including among them, the right to
life and personal liberty embodied under Article 21.

In Kharak Singh case, the decision invalidated a Police Regulation that provided for
nightlydomiciliary visits, calling them an “unauthorized intrusion into a person’s home
and a violation of ordered liberty.” However, it also upheld other clauses of the
Regulation on the ground that the right of privacy was not guaranteed under the
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Constitution, and hence there was no application of Article 21 of the Indian Constitution
i.e. the right to life and personal liberty. It is pertinent to note

That Justice Subbarao's dissenting opinion clarified that, although the right to privacy
was not expressly recognized as a fundamental right, it was an essential ingredient of
personal liberty under Article 21.

Over the next 40 years, the interpretation and scope of privacy as a right expanded, and
was accepted as being constitutional in subsequent judgments. During the hearings of the
Aadhaar case, the then Attorney-General (AG) representing the Union of India
questioned the very existence of the right to privacy. The AG argued that the framers of
the Constitution never intended to incorporate a right to privacy as a fundamental right,
and therefore, to read it as intrinsic to the right to life and personal liberty under Article
21, or to the rights to various other freedoms (such as the freedom of expression)
guaranteed under Article 19, would amount to rephrase the Constitution. The government
also contended that privacy was “too amorphous” for an explicit and unambiguous
definition and an elitist concept which should not be elevated and interpreted to that of a
fundamental right.

Sensing the need for reconciliation of the divergence of opinions on privacy, the Court
referred this mechanical clarification on constitutionality of the right to a larger bench.
The bench was set up not to look into the constitutional validity of Aadhaar, but to
consider a much larger and significant question that whether the right to privacy is a
fundamental right and can be traced in the rights to life and personal liberty under
Article-21.

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 POSITION AFTER RIGHT TO PRIVACY JUDGMENT 2017
The Privacy Bench unanimously held that the right to privacy is fundamental right
protected under Article 21 of the Indian Constitution. The judges have delivered 6
judgments: Justice Chandrachud has delivered on behalf of himself, and on behalf of
Chief Justice JS Khehar, Justices Agrawal and Abdul Nazeer which is also referred to as
Lead Judgment. Whereas separate judgments were written by Justices Nariman, Sapre,
Chelameshwar, Bobde, and Kaul stating their own findings, conclusions and
observations. A consolidated judgment holds that:

1. The right to privacy is protected as an intrinsic part of the right to life and personal
liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the
Constitution; and

2. The earlier judgments of the SC in Kharak Singh and MP Sharma are overruled to
the extent they held otherwise,

The Lead Judgment starts by acknowledging that (i) Privacy allows each individual /
personto be left alone in a core which is inviolable; (ii) this autonomy is further
conditioned by their relationships with the society; (iii) those relationships pose questions
to free choice and autonomy. The overarching presence of state and non-state entities
regulates aspects of social existence which bear upon the freedom of the individual; and
(iv) privacy is required to be analyzed in an interconnected world and the SC has to be
sensitive to the needs of and the opportunities and dangers posed to liberty in a digital
world.12

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 THE CONCEPT OF PRIVACY AS A FUNDAMENTAL RIGHT WITH
REFERENCE TO JUSTICE PUTTASWAMY CASE, 2017

The Judgment has not created a new right to privacy as a fundamental right but has
clarified the status of the right to privacy as fundamental right under the Constitution. It
traced its recognition in the right to life and personal liberty under Article 21 of the
Constitution of India (“Constitution”), but found that it was also embedded in certain
other rights, such as Article 19.13

The judgment clarifies that a constitutional right to privacy can be defined in both
negative and positive aspects, i.e.:

a. To protect the individual from unwanted intrusion into their private life, including
political affiliation, sexuality, religion and other similar aspects. (the negative freedom)

b. To oblige the state to adopt suitable measures to protect an individual’s privacy,

by removing obstacles to it (the positive freedom)
1. Privacy as an inalienable right:
Privacy is a natural right, inherent to a human being. It is therefore emanating
from pre-constitutional era which exists from time immemorial and vests in
humans by virtue of the fact that they are human. The right has been preserved
recognized and protected by the Constitution, not framed or created by it. Privacy
is not bestowed upon an individual by the state, nor capable of being taken away
or curtailed by the State. It is thus inviolable and unassailable.

2. Relationship with Dignity:

It was argued by the State that the recognition of privacy would require a
Constitutional amendment, and could not be added just by interpreting the
Constitution. The judgment has recognized that privacy was intrinsic to other
liberties guaranteed as fundamental rights under the Constitution. Privacy is an
element essential to human dignity, and ensures that a human being can lead a life
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 of dignity by, inter alia, exercising a right to make imperative choices for himself,
to express oneself, dissent, etc. Dignity was, consequently, an innate and inherent
aspect of the right to life and liberty enshrined under Article 21 of the

Constitution, as ‘life’ was not limited to mere existence, but was made dignified
living because of the attendant freedom of dignity. It was only possible when life
could be lived with full dignity and worth that liberty could be of any substance.

3. Commitment to International Obligations:

The recognition of privacy as fundamental constitutional value was a part of
India’s
commitment5to safeguard human rights under international law under the
International
Covenant of Civil and Political Rights (“ICCPR”) which found reference in
domestic law under the Protection of Human Rights Act, 1993. A right to privacy
is recognized by The
ICCPR14. A right to privacy is also specifically recognized by the Universal
Declaration of Human Rights.15 The Judgment has held that constitutional
provisions had to be read and interpreted in a manner such that they were in
conformity with international commitments made by India.

14
Article 17 of the ICCPR states: 1. No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful attacks
on his honour and reputation 2. Everyone has the right to the protection of the law
against such interference or attacks.
15
Article 12, Universal Declaration of Human Rights

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 RIGHT TO PRIVACY: WHETHER ABSOLUTE OR CURTAILED?
- Rakhi

Since the fundamental rights are not to be read in isolation, any encroachment of
fundamental rights will therefore have to pass the basic tests of Articles 21 and 14 of the
Constitution. These tests are discussed below16:

1. The first requirement that there must be a law in existence to justify an

encroachment on privacy is an express requirement of Article 21. Because no person can
be deprived of his life or personal liberty except in accordance with the procedure
established by law. Thus an essential requirement is the existence of Law.”

2. “Secondly, the necessity, in terms of a permissible state aim, ensures that the
principle and nature of the law which imposes the restriction falls within the zone of
reasonableness mandated by Article 14, which guarantees against arbitrary state action.
The pursuit of alegitimate state aim ensures that the law does not suffer from
manifest arbitrariness.”

3. “The third requirement ensures that the means which are adopted by the
legislature areproportional to the object and needs sought to be fulfilled by the law.
Proportionalityis indeed an essential aspect of the guarantee against arbitrary state action
because it ensures that the nature and quality of the encroachment on the right is not
disproportionate to the purpose of the law.”

Furthermore, if the test of “reasonableness” is too broad, then it won’t effect that privacy
is a fundamental right, since the government would have a free hand in going around it. If
it is satisfactorily narrow, one might even be able to make conclusions about what

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today’s judgment might mean for Aadhaar, among other government schemes that will
now have to be tested against the fundamental right.

The opinion of Justice DY Chandrachud’s, co-signed by Chief Justice of India JS

Khehar, Justice RK Agrawal and Justice S Abdul Nazeer, reminds us of the test used for
all restrictions on Article 21, under which privacy is being read.

This test predates Right to Privacy’s judgment, but will now be used in earnest to
examine any government action that seeks to suspend the right to privacy. As such it
provides an insight of a few aspects: The use of Aadhaar will need to be backed by a law
to become mandatory. For the delivery of services connected to the Consolidated Fund of
India an Aadhaar Act exists, and the government has also passed a law making it
mandatory for income tax purposes. But both the Union and state governments have used
it for many other things without the backing of a law that may now be illegal.

The government also needs to identify its legitimate aims. The conclusions of
Chandrachud’s opinion give a few examples of what these might be. “The legitimate
objects and goals of the state would include for instance protecting national security,
preventing and investigating crime, encouraging innovation and the spread of knowledge,
and preventing the dissolution of social welfare benefits,” as the Order provides for.

That expansive set of categories could help the government defend a number of its laws
or proposed ones that have been accused of violating a right to privacy. The draft of the
DNA profiling Bill, which puts forward the creation of a national DNA data bank, might
also be safeguarded and secured under the garb of “preventing and investigating crime”
exception that Justice Chandrachud lists.

Later, Justice Sanjay Kishan Kaul in his concurring opinion also lists out a potential set
of legitimate aims that may form the grounds for reasonable restrictions such as other

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fundamental rights, legitimate national security interest, public interest including
scientific, historical or statistical purposes, criminal offences, anonymized data and taxes

The first test of the new recognition of privacy as a fundamental right will come when the
petitions challenging the validity of Aadhaar are put before another Constitution Bench.
For now it seems as if the nine-judge bench has upheld privacy as a fundamental right but
opened the door to Aadhaar being accepted as a reasonable restriction – at least as long as
it is backed by a law and used for social welfare delivery.

The Lead Judgement notes the tests for the reasonable restrictions on the right to
privacy.17 It holds that a law which encroaches upon the right to privacy will have to
“withstand the touchstone of permissible restrictions on fundamental rights” Any
infringement of privacy must be by a law which should be “just, fair and reasonable”.

The three-fold requirement for such infringement would be: “(i)legality, which postulates
the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them”18

Justice Chelameshwar has held that aside from meeting the ‘just, fair and reasonable’
requirement under Article 21, there should be a necessity for ‘compelling state interest’
for those privacy claims which deserve the ‘strictest scrutiny.’19

Justice Bobde held that any infringement of the fundamental right to Privacy must pass
the samestandard required for the infringement of personal liberty, i.e. In terms of the
judgement in the case of Maneka Gandhi v. Union of India20, such law must be “just,
fair and reasonable, and notfanciful, arbitrary or oppressive.”21

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Justice Nariman held that statutory restrictions on privacy would prevail if it is found
that the ‘social or public interest and the reasonableness of the restrictions outweighs the
particular aspect of privacy claimed.22

Justice Sapre says that the right to privacy is subject to reasonable restrictions “in view
of the social, moral and evoking public interest that the state is entitled to impose by
law.”23

Justice Kaul has held that that right to privacy would be subject to reasonable
restrictions on thegrounds of national security, public interest and the grounds
enumerated in the provisos to Article 19 of the Constitution.24

INTERPRETATION IN THE CONTEMPORARY ERA

Privacy is a constitutionally protected right emerging primarily from the guarantee of

right and liberty in Article 21 of the Indian Constitution. It includes the preservation of
personal intimacles, sanctity of family life, marriage, procreation, the homo and sexual
orientation. It also connotes the right to be left alone and safeguards individual autonomy
and recognizes one’s ability to control vital aspects of his or her life.

Privacy is not an absolute right, but any invasion must be based on legality, need and
proportionality, government must put in place a robust regime for data protection. It must
bring about a balance between individual interest and legitimate state concern.

Furthermore, in the current scenario, several piece of legislations such as Aadhaar Act
under which the personal information is collected by the central and state governments
will have to pass the test of reasonableness laid down by the Supreme Court to curtail the
right to privacy.

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Such State actions that deal with privacy and personal information will be tested on the
reasonable restriction principles i.e. there is a need for an existence of a Law, This Law
should not be against the principle of Rule of Law and Natural Justice. Moreover, the
infringement of the right by such Law should have a nexus in achieving state aim.

23
paragraph 26 of Justice Sapre’s judgment

24
paragraph 72 of Justice Kaul’s judgment

CONCLUSION

Agreeing with the recommendations of AP Shah Panel25, it is inferred that there should
be a new and comprehensive law to protect the privacy in the public and private spheres
and also setting above self-regulating organizations by the industry which would develop
a base line legal framework enforcing right to privacy.

Thus it can be incurred that Right to Privacy though is a fundamental right intrinsic to life
and personal liberty, still it is not absolute and is subject to certain restrictions.

Moreover, Justice Kaul’s opinion gives us a better insight to the issue:

“The State must ensure that information is not used without the consent of users and that
it is used for the purpose and to the extent it was disclosed”26

This assertion has been supported by an observation by Justice Chandrachud in Para

177 of the Lead Judgement.27

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In other words, if the State ought to take away or abridge the right to privacy of the
individuals, it can be permitted and justified to do so only by establishing a Law.
Moreover, such Law should pass the test of reasonableness i.e. it should be just, fair and
reasonable and should have a nexus to achieve the State aim. The later part ensures that
there is no misuse of power by the State in curtailing the right to privacy of the people
and puts a check on arbitrary action of the State.

25
Dated: 16th Oct’ 2012.
26
paragraph 70 of Justice Kaul’s opinion

27
“The sphere of privacy stretches at one end to those intimate matters to which a
reasonable expectation of privacy may attach. It expresses a right to be left alone. A
broader connotation which has emerged in academic literature of a comparatively recent
origin is related to the protection of one’s identity. Data protection relates closely with
the latter sphere. Data such as medical information would be a category to which a
reasonable expectation of privacy attaches. There may be other data which falls outside
the reasonable expectation paradigm. Apart from safeguarding privacy, data protection
regimes seek to protect the autonomy of the individual. This is evident from the emphasis
in the European data protection regime on the centrality of consent. Related to the issue
of consent is the requirement of transparency which requires a disclosure by the data
recipient of information pertaining to data transfer and use”

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 Female Feticide, its Social Issues and Legal Implications

Meetali handa

ABSTRACT

Indian society has given birth to many social problems and females feticide is one among
all. The girl children become targets of attack even before they are born. This is evident
from the declining sex ratio, especially in the northern states, according to census 2011
report. Sons are preferred over daughter for various social, economic and religious
reasons such as family linkage, type of insurance for the future, prestige and power,
financial support, salvation, dowry, low status of women, gender discrimination, family
name as traditional causes and Pre-Natal Diagnostic Technology which is considered as
bales of advancement in science and technology.There is a need to strength the ethical
code of conduct and above all imbibe values among new generation. The aim of this
article is not only to give stress over women's issues, but to highlight the problem of sex
selection and its legal implication.

Keywords: Female feticide, gender, sex ratio, sex selection technology

INTRODUCTION

In India low gender ratio is the result of common custom of Gender Selective Abortion.
Birth of a girl is considered as a curse and a punishment for parents. Moreover a girl has
always been blamed for all the misery and misfortune. Female feticide has emerged as a
burning problem\ during the last few years. A girl child is treated as a burden, an extra
mouth to feed, a liability and another man’s property.In Vedic period a woman was
considered as guides, the mistress of the home, who have an equal share in the
performance of religious rites. Manu, the law giver said, The gods are satisfied wherever
women are honored, but where they are not respected, rites and prayers are
ineffectual.Women in India have made progress in various fields such as education,
health, economics as a result of science and technological developments. Though the

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number is small but today India has women in almost all spheres of life. Women of today
are doctors, engineers, pilots, journalists, teachers, administrators, judges,state governors,
ambassadors, members of parliament and ministers. India has had a woman Prime
Minister and a President of the UN Assembly. In spite of these achievements the fact
remains that ordinary women’s condition is a grim reality to have social sanctions.

SOCIAL ISSUES

Female Feticide and Infanticides

It is sex selective abortion before the birth. Sex selective abortion cases have become a
significant social phenomenon in several parts of India. Diaz, (1988) states that in a well-
known Abortion Centre in Mumbai, after undertaking the sex determination tests, out of
the 15,914 abortions performed during 1984-85 almost 100 percent were those of girl
fetuses. Similarly, a survey report of the women’s center in Mumbai found that out of
8,000 fetuses aborted in six city hospitals 7,999 fetuses were of girls.

According to Crime in India (2000) feticide cases reported an increase by 49.2 per cent
over the previous year and infanticide cases increased by 19.5 per cent over the previous
year.

Early marriages

Child marriage in India, according to the Indian law, is a marriage where either the
woman is below age 18 or the man is below age 21. Most child marriages involve
underage women, many of whom are in poor socio-economic conditions. Early marriages
are favored in some Indian states like Rajasthan, because families favor younger brides.
The biological family no longer has to support the girl. The husband’s family may view
her as cheap labor in the household and fields, and more accommodating, in that they do
not question their husband’s family. Customary laws based on religion are a major barrier

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in ending child marriage in India. Social pressure to marry at puberty can be enormous
within certain castes.

Trafficking

Trafficking in India is rising, and sometimes this, too, is driven by the value of the dowry.
India is both a source and destination for trafficked women and girls into prostitution and
bonded labour .Some of the girls have been trafficked from other countries. They marry
Indian men in exchange for dowry. India is also a destination for women and girls from
Nepal and Bangladesh trafficked for the purpose of commercial sexual exploitation.
Nepali children are also trafficked to India for forced labour in circus shows. Indian
women are trafficked to the Middle East for commercial sexual exploitation.

Prostitution

A number of related activities including soliciting in a public place, kerb crawling,

owning or managing a brothel, prostitution in a hotel, child prostitution, pimping and
pandering are illegal. There are, however, many brothels illegally operating in Indian
cities including Mumbai, Delhi and Kolkata. It is the sexual exploitation or abuse of
persons for commercial purpose Prostitution is sometimes defined to be indiscriminate
sexual commerce for gain. To satisfy the sexual appetite of men, women are exploited. It
is the major problem of the society.Surveys show there are an estimated 1.2 million
children involved in prostitution. International organisations like Free a Girl are very
willing to assist the Indian police in capturing traffickers, pimps and sex offenders.

Gender discrimination

In India, discriminatory attitudes towards either sex have existed for generations and
affect the lives of both sexes. Although the constitution of India grants men and women
equal rights, gender disparities remain. The bias against females in India is grounded in
cultural, economic and religious roots. Sons are expected to work in the fields, provide
greater income and look after parents in old age. In this way, sons are looked upon as a

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type of insurance and responsible for preservation of the family name. Also, as per Hindu
belief, lighting the funeral pyre by a son is considered necessary for salvation of the spirit
. This strong preference for sons, which results in a life-endangering deprivation of
daughters, is not considered abhorrent culturally and socially . As per Census of India,
2011, there are 940 women per 1000 men.
Dowry
Dowry system in India. The dowry system in India refers to the durable goods, cash, and
real or movable property that the bride's family gives to the bridegroom, his parents, or
his relatives as a condition of the marriage .Dowry normally means gifts given during the
marriage to the son–in –law or his parents either in cash or kind. From the point of view
of women’s status, however, dowry has to be looked at as constituting what is given to
the bride, and is often settled before hand and announced openly or discreetly. The
Dowry system has always given rise to innumerable socioeconomic problems. Of late,
numerous incidents of bride burning, harassment and physical torture of the young brides
and various kinds of pressure tactics being adopted by the husbands. This exploitative
system that has turned the custom of giving gifts and well wishes into a compulsory
demand for money, respect and subjugation, is the one of the major contributing factors
hindering the growth of the Indian society where being a woman is still viewed
synonymous to being a burden.
Illiteracy
The illiteracy rate among girls is higher than that of boy’s.The reason is that the parents
prefer their son’s education as an investment and neglect girls’ education. They think that
the girl will reach others house after marriage and her duty is to maintain home, but boy
will look after their parents in old age. As per Census of India, 2011, the literacy rate for
males and females works out to 82.14 per cent and 65.46 per cent respectively.

LEGAL PROVISION

Over the years, the Indian State has enacted special laws in addition to gender specific
provisions .Some illustrations are

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 1) The Immoral Traffic Prevention Act 1956 (ITPA) is the widely used law to
prosecute traffickers, but also is invoked to target prostitution.
2) The Dowry Prohibition Act, 1961 (DPA) to prohibit the practice of giving and
taking dowry.
3) Medical Termination of Pregnancy Act, 1971. This law was conceived as a tool to
let the pregnant women decide on the number and frequency of children
4) The commission of sati, Act, 1987 that penalizes those involved in the commission
of sati and its glorification
5) The Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 (PC&PDT Act) to prevent the misuse of diagnostic
techniques resulting in sex selective abortions.
6) Domestic Violence Act, 2005 (PWDVA). It provides protection from violence in
the household from not only male, but female also like mothers-in-law and other
female members in extended families.
7) The Prohibition of Child Marriages Act 2006.

CONCLUSION

Even though the law is a powerful instrument of change yet law alone cannot root out this
social problem There is an urgent need to tackle this brutal form of violence against
women by changing the belief that son extends the lineage, enlarges the family tree,
provides protection, safety and security for the family and is necessary for salvation and
it is possible through awareness, mass appeal, social action, voluntary organizations,
active function of women’s groups and media. It is not too late to energize efforts to put
gender equality at the top of the development agenda. Apart from the above, there is a
need of value, moral and religious education.

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COPYRIGHT PROTECTION IN CYBERSPACE: WITH REFERNCE TO
ELECTRONIC COPYRIGHT MANAGEMENT SYSTEM (ECMS)
- Swetaparna Priyadarshini

ABSTRACT:

This paper is an analysis of the protection of the literary, scientific and artistic work in
the copyright law in cyberspace. The copyright laws encourage people to emerge with
new creative work and skills.` The copyright law provides protection people from
copying other creative works such as literature, artistic or scientific. In the modern era,
we have witnessed how technology has been playing a vital role in the life of every
human and this world is approaching the advancement in the technological field.
Nowadays technology is not just a medium it has become a way of life. In order to keep
up with the pace off technological advancement, the copyright laws have to spawn
various changes within it and take necessary steps for its enhancement. Internet is easily
accessible everything and being few clicks away has to eradicate the difference between
the original and duplicate to a large extent and it has also introduced infringements like
Deep linking, Framing, piracy, and Digital copyright infringements. Internet which
makes it easier for any other person to copy the others or creators skills and creativity
which is beyond the capacity of the author to control his work from copying, for which
copyright law takes advancement measure to protect works that have been protected
under copyright law through electronic medium like Electronic Copyright Management
System (ECMS) . In this era, it has been so much easier in licensing one’s work through
mobile applications and websites. Copyright in cyberspace provides the author with a set
of powers to display and to sell or transfer his work to the public by taking his ownership
on the work. In this era copyright law also provide protection to the Computer program
which prohibits others from copying the same segments of code, the program is
copyrighted from the movement it has been saved by the programmer in his file. But
copyrights doesn’t protect ideas, concept or algorithms.

Keyword: Technology, infringement, protection

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INTRODUCTION:
The advancement of new technology has been taking place time to time and it has been
really fast in the 21st century like robots, applications, phones with extraordinary
specifications the producers are fighting among themselves to bring and introduce a new
thing to the public. Technology has been making life easier than it was before. The
Internet has reached every nook and corner and is easily accessible by one and all.
Technology has pushed the copyright growth first Copyright Act of 1790 only provided
protection to unauthorized copies of maps and charts and books but with the growth. It
gradually started giving protection other creative work like photographs, visual, art,
motion picture, sound recording, software, computer programs and architectural work
which does not only provide the writer to protect but it also privileged the creator with
the exclusive right as public distribution, derivatives, public performance, and public
display.

Although in one hand technology definitely help in the growth of copyright protection in
the other hand it allows unauthorized user to copy the work of the author from the
internet without the consent of the creator and anyone can steal where there will be no
difference or very minimal difference between the original and copied work so,
Electronic Copyright Management System was implemented to demonstrate that
licensing of rights and promotes electronic registration of copyright work.

To prohibit crimes like piracy and to protect the authors and creators right and to provide
him the right to enjoy his creativity The Digital Millennium Copyright Act was
established that protects creative works on the internet and provide the legal foundation
of rights management in digital works. It protects both the copyright owner and the
internet service, provider.

HOW COPYRIGHT WORKS?

Copyright is implemented to give the creator the right to protect his literary, dramatic,
artistic, musical work bundle of rights to protect his work from being copied by any

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unauthorized user and it safeguards the right of the creator or the owner making it
impossible for others to copy their creative work, which in return would enable others to
bring forth new ideas. The copyright provides protection of expression but not ideas

⚫ To claim copyright protection it is not necessary to register the work?

Copyright is automatic in nature and does not need any formality to acquire the copyright
protection. But certificate of registration of copyright can be granted after the registration
is being made by the owner for original work in the registration office which is known as
copyright office u/s 9 of The Copyright Act. Which is a shred of necessary evidence or a
prima facie evidence in the court of law regarding any dispute arising regarding the
ownership of the creator or author.

⚫ Procedure for registration of work under The Copyright Act,1957

Copyright operates as soon as the work is being created and no registration is required to
complete for acquiring copyright protection.

* The owner can register the copyrighted work to grant the license in respect of his work,
in the Copyright office according to Sec.9 of The Copyright Act,1957 which speaks
that258

(1) The office shall be established for the purpose of this Act and to be called the
Copyright Office.
(2) The office should be under the immediate control of the Registrar of Copyright who
shall work under the supervision and direction of the Central government.
(3) There shall be a seal to be given for The copyright office.

* The registration of certification works as a piece of prima-facie evidence in the court of

law if any dispute arises regarding the ownership of the work.

258The copyright Act,1957

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⚫ Which works are being protected under The Copyright Act,1957

U/s. 9 of The Copyright Act, provides protection for original work of literary, dramatic,
musical and artistic work and it also provides protection for cinematographic films and
music with word or without so that no unauthorized person shall copy from the original
work but it does not grant protection to Ideas, thought or concept. It only provides
protection for original work and the first creator gets the protection from the date of its
creation.

In the case, In the case Fateh sigh vs A.P Singhal AIR 1990[ Fateh sigh V.A.P Singhal
259
AIR 1990 There can be no copyright in an idea, motif, scenario or historical or
legendary facts and breach of copyrights in such cases is restricted to the form, technique,
process, and proclamation of the idea by the creator of the copyrighted work.

Where the same idea is being evolve in a different manner, it is manifestation is that the
source being common, it’s pretty much obvious that similarities will necessarily occur. In
comparable case the Courts should examine, whether or not the similarities are on the
fundamental or substantial aspect of the mode of expressing way adopted in the
copyrighted work. If the defendant's work is nothing but a literal imitation of the
copyright protected work with some variations here and there it would amount to
violation of the copyright in other words, in order to be actionable the copy must be a
substantial and material one which at once leads to the conclusion that the defendant is
guilty of an act of piracy.

AUTHOR’S INTERPRETITON OF COPYRIGHT IN CYBERSPACE

With the development and advancement brought about with the advent of the
technological era, the copyright laws, in cooperation with this age, have taken a huge leap
toward. Nowadays, the internet being easily accessible by one and all from every nook
and corner of the world and with the availability of innumerable contents and creative
works provide

259Fateh Singh v. A.P Singhal

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and owned by various owners from all over the world, every information and knowledge
on various topics, issues, etc. are a few clicks away, and within no time.260

One such remarkable example on the use of the internet in providing the phrase “ The
world is a small place” truly, is the “Google book search”, which helps us get in touch
with innumerable books from the best libraries of the world within a few seconds.

Although the internet has been a boon for almost all, it also has some various
shortcomings, lack of originality is one such disadvantage, resulting from the easy
accessibility of the internet. With the advent of this technology, it has become much
easier the user to copy the original content and creative works of the owner, it being
impossible to be stopped by the latter.

To forestall such copyright infringement, the US copyright called for required steps to be
taken at a large especially motion picture, television programmes, books, and software.
The protection of originality of the texts or works is the incentive, the creator was mainly
concerned with preventive their works from being infringed.

COPYRIGHT DEVELOPMENT IN INTERNET ERA

The application of Technology on all face has made everything much simpler and has
provided the consumers or users with much better service, making the contemporary
generation completely reliable on the electronic mode to gain access to data. The method
of registration has become much easier and more readily available and accessible to the
public 24×7, with the help of the internet, keeping in view the requirement of Technology
in today's world and the increasing demand for it, Electronic copyright management
system and Digital Millennium copyright act 1998 was executed.

The main goal of Electronic copyright management is the management of issues related
to trading multimedia documents. It is mainly concerned with the removal of any sort of
doubts related to copyright questions by clarifying them and also doubts regarding

260Legislative policy priority regarding rouge website

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techniques of regulating documents and information management systems such as access
control, author feedback, and availability. Protection of the rights of both the Founder
and the consumer is the main concern of the so-called objective of the latter. Under the
World intellectual property organization treaty (WIPO) this law is followed.

The copyright infringement has become a major concern and has evidently increased with
the electronic libraries being easily accessible as well as available to the general public,
giving rise to the requirement of legal protection as without this little steps the creators,
afraid of blood prism and originality of the text being affected or copied, would be
reluctant to forward and published their works. And the second most broad concern
being the idea of the foundation open with their work stands open that makes it
prominent among all others, contributing its original it being stolen, away and being
remade by those who stole it with the creator's idea in such a way that it becomes difficult
for the people to distinguish between the original and the copied. In such a scenario with
the shopping of original takes being carried out without the consent of the creator
whatever affects the creator's moral rights and contributing to copyright infringement.
Hence the requirement of Copyright development with technology in order to make it
simpler for the author for Reproduction, Distribution public performance digital display,
Derivative work, Coaching is evident.

Development of many reports in accordance with copyright law application such as

software enables consumer products 2016, Making available rights in the United States
2016 and Orphan mass digitalization 2015 was, made in the year 1950.

INFRINGEMENT OF COPYRIGHT IN THE INTERNET WORLD

In the year 1990, the court of law first state the word "internet in a Judicial review in the
case Us versus Robert Tapan Morris"261. This case declaration of the verdict of a jury was
held under the computer fraud and abuse at an appeal for sentencing of the Robert
Tappan Morris a graduate student for producing and for the emancipation the Morris

261United states v. Morris (1991)

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worm on November 2 1988, in every part of the internet and gained a widespread
recognition of the media which was the emergence of the felony conviction in the US
under the 1986 under the Computer Fraud and Abuse act262 Computer fraud: Dressler, J.
in the case "US v. Morris". Cases and substance on Criminal Law. Morris was sentenced
because his worm that crashed hundreds of institutional and defense computer and
impacted computers attached to the internet. He was tried and held liable for breaching
United States code title 18 (18 U.S.C g 1030), the computer fraud and abuse at in US v
Morris. After an application made in front of the honorable court of law, he was
sentenced for 3 years and penalized $10,050. Morris worm was mentioned as General
worm because of his process of causing so much damage effect, that it produced on the
Internet which affected the certainty of the internet.

The first case on internet copyright infringement is the case Atari games vs Nintendo
(1992). This was made in United States code for the federal circuit case in which the
court was of the judgment that Atari games breached the copyright lockout system and
gain an unauthorized copy of the original code from the copyright of office after making
failed effort to overturn engineer lockout system. Nintendo professes infringement and
used " fair use" as a rebuttal and Atari by fraudulently. Atari copyright fraudulence was
averted by the doctrine of unclean, has which announces the equitable defense in which
dependent argues the plaintiff is not entitled to acquire remedy because the plaintiff has
performed in bad faith this is a rule by A.P Herbert in atypical law.

In the case Future Dontics, Inc v Applied Anagramics Inc 263, an unauthorized hyperlink
formulated by the AAI, to the future Dontics website, that enables the copyrighted
materials on the users' web site appeared within one of the frames. On a website, handled
by the defendant AAI, full pages were split into frames. the AI contributed contents that
constituted the balance of the page which also included the logo and information about
business operations.

262http://www.ariadne.ac.uk/issue2/copyright/
263Future Dontics Inc v. Applied Anargamics Inc

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The AAI and charged against conduct comprising copyright infringement by the plaintiff
Future Dontics and were deprived of any possibility of discharging these allegations,
keeping in view that the complainant Future Dontics might substantiate discharge against
AAI of inventing an unauthorized by-product of the original work.

After the court dismissed all claims made by the complainant, with the latter being unable
to establish the alleged claim of copyright infringement as a veracious claim and its
application to prohibit.

The application of Technology on all fails has made everything much simpler and has
provided the consumer or users with a much better service. Making the contemporary
generation completely reliable on the electronic mode to gain access to data the method
of registration and has become much more readily available access to the public 24×7
with the help of internet keeping in view requirement of Technology in today's world and
the increasing demand for it the Electronic copyright management system and Digital
Millennium copyright act 1998 was executed. The management of issues concerning the
trade of multimedia documents.

When the creative work is being published on the internet it became available to the
public free of cost and the owner cannot restrict the viewing. However, corporate work
when published on the internet without authorization, it became an infringement of
copyright law.

In Playboy enterprise Inc v Frena, the case was decided by the United States district court
the court held and review that on unauthorized use of photographs is an infringement of
copyright. When any photograph of the video is being published to the public without an
Accountant of the artist featuring of head given consent of something is and the
photograph of the video is used for some other objective then it is a copyright
infringement.

Authors right and WIPO internet treaties in the year 1970 WIPO undertake to effective
ways to adopt new advancement it states in order to you cope with the Technologies. In

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1991 people came up with two committees professionals to give due consideration of the
intervention of new instrument to address the issues for the development behind
copyright regime for the depository of works and objects of neighbouring rights in digital
system ,limitation and exception of rights in digital environment, electronic protection of
rights and measures of management information.

The agenda of digital protection to provide protection for authors literary and artistic
work carried by the WCT committee and WPPT which includes protection for performers
and producers of phonograms.

The committee debated the need to protect the author's right in the light of the digital
approach on-demand convenience and agreed. The system of work an object of
neighboring rights over the internet and the author should be given exclusive rights of
authorization of the rights. The committee did not agree with this.

AUTHOR’S RIGHT IN COPYRIGHT LEGISLATION

Right of Reproduction:

This right is one of the vital rights under the umbrella of the segments of work that have
been protected. Under this right the issue that has to be debated here whether the
cropping of the creative unique work of the author is an infringement or not.

In the internet platform the taste of similarity if the work is copied or unique work. In this
264
case of Atari games Corporation v, Nintendo of America Inc. is the United States
Court of appeal for the federal circuit. In this case, the court held that Atari games
infringed copyright by copying the Lockout system of Nintendo's 10NES. The court, in
this case, held that Atari had infringed Nintendo copyright by creating verbatim
"substantially similar" and stated that verbatim copying is an infringement.

Sec 102(b) clearly states that copyright protection doesn't extend in protecting ideas,
procedures, process systems, method operation, concept or Discovery.

264Atari Games Corporation v. Nintendo of America Inc

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In other words, it does not provide authorization to non-literal aspects of the computer.

Public performance and display right:

It does not cover the Ambit of computer software. The right to public display owners has
the exclusive right to display a or to officially allowed the right to display the copyrighted
work. This right is given protection to your musical work but not to the recording of
sounds. Public display of copyrighted material means to show a visual copy of the work
to the public. This includes individual still images from the film, Reproduction of
painting and drawing, sheet music for musical works of photos. It may be direct or
indirect through the use of film slides or television

Distribution right:

Copyright law enshrines the author of the copyright exclusive right to reproduce copies
of the work to the public by the sale or transfer of ownership by one person to another.
Internet being open in nature provides the user copying of the work in an infinite number
of copies which may be similar to the real quality of work. The issue is that under the
legislation disagree with work on Digital Network not only comprises of public
performance for display by means of transmission. A public that has access to the internet
can receive a copy of the work.

When a person distributes software does not transfer the ownership.

Derivative work:

In the computer era, the situation of imitating the work of another artist is very different it
includes programmers or updaters. There have been some cases, where programmers
copied and generated their own program by the combination of two or more programs.

In the case of Midway Mfg Co. V Art Int265, The court case United States district court
for the northern district of Illinois held that the feature of a video gallery game was

265Midway Mfg Co. V. Art Int

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protected under copyright even though the pictures that become visible or noticeable on
the screen where impermanent and transitory. The case was pronounced by the United
States Court of appeal for seventh circuit. The court decided that it constituted to the
unauthorized adaption of the plaintiff's copyright.

In the case of Apple computed Inc v. Franklin computer Corp, was the first time and
appellate level court in the United States held in his decision that a computer operating
mechanism could be protected by copyright. in the case clarify that binary code,
machine-readable software is copyrightable too not only for the readable source code.

Coaching:

computer application. it may be local coaching or proxy coaching it may be local

coaching or proxy coaching. Coaching in Coaching caused countless copyright
infringement over the internet, in relation to the includes the creating of similar copies, it
is an immediate issue of infringement of the right of reproduction. The Public
Distribution, public performance and policies, digital performance arise due to Proxy
catching which further rise to an infringement. Under the WIPO, catching also infringes
the transmission access right.

The problem of copyright infringement cannot be anyway Limited. It is a large and vast
surface area where to copyright Law the internet cannot be restricted to the referred
rights.

LEGAL ISSUES IN TECHNICAL COPYRIGHT SYSTEM

Possession of the rights:

The creator normally enjoys the right to work legal Association mail like to implement
work for their rights with someone else. The question is confusing in the scenario of
illustration like a film or plays when further Like holder and producers of performance

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maybe elaborated. electronic corporate management system required to have information
about the owner who owns the right to license the use of specific work in an entire party.

Rights that are included

It embraces the number of independent States which have segregated actuality in the in
this entire world. So it is called the standing stone. hence it is constituted of three
magnitudes of a forge.

The Berne convention contains copyright rights and their components are available in
many Nation laws there are two across the bow categories as moral rights and economic
rights. The electronic copyright management system is apprehensive and lives with
owners write that can be authorized or down listed on a regular basis.

Which rights are granted?

An electronic communication indicator copy at least point of response. Some also

question that Electronic Communication the right of distribution a copy is not actually
distributed.

ELECTRONIC COPYRIGHT MANAGEMENT SYSTEM

Electronic copyright management system is a rocket with the issue of pirated copies on
the internet of any original software that is loaded from the publisher's homepage. The
epidemic use of computerized Technology to invent, reverse, administer distribute,
mechanism information of all types of artistic and literary works. The implementation of
digital is that what is essential to protect without limitless work. Corporate management
system usually involved two basic distinct attributes, which is a sense of recognition of
content and aim to preserve and licensing the owner for their unique work for being the
only one kind, the measurement of a surface area of payment also a part of the system.

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Protecting the right of individuals or any mediator on behalf of the author. The holder of
such right may use the Apparatus to follow the trail of the performance of various works.
The use of may be granted for the unique work for the testimony for a single thing for a
described purpose.

PROGRESS TECHNOLOGY
Today's were mostly depend on the technological instrument which generally provides
the user and the rights holder desirable access through using computers. The
authorization function can be made an effort list and trouble-free with the help of
electronic devices. Although Technology indeed brought many changes the execution
improvement is not that expeditious, with authority of database even the electronic
copyright management system are settled electronically and may have replaced the
traditional use, but the personal action is needed to for the authorization or licensing
request. An entirely computerized authorizing or licensing process that comprises of the
scanned complete list of the required payment, accessible content round the clock.

A set of things or networks that would entitle the rights of the proprietor, to enable their
rights of information and allow the license to the owner so that could function without
person interference, which would generally be provided with the benefit of charging cost
low. The most accomplishing feature is delivering the context rapidly, which are being an
advantage by the journal and Publishers. A high standard system maintains well between
with both for the depository and transactional rights.

In the depository writes the electronic copyright management system perpetuates the
owner's database that keeps the pace with both the owner and their work they are allowed
to obtain authorization of license as well as license renewal function. when this
conceptualization of an electronic corporate management system is applied to the
experimental rights licensing and application, the immense significance of the system

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becomes reluctant. Individual rights, give the necessary opportunity to the owner to
enable their rights to interchange it with other rights owners and more strategically to a
series of actions of individual agreements from users. That is to grant authorized access
to grant authorization for a distinct work automatically to an individual user. An
individual user to get the right to use an image, songs. Computerized apps may be sold
online with numerous classification of license. When accomplished online without person
interference transactions evaluated very inexpensive.

In a transactional license, and electronic copyright management system performs as a

licensing "mechanism". There is the miscellaneous implementation of such a mechanism
that spans in electronic worldliness, a user will apply online through electronic medium
to a collective management institution that would exercise it physically and send it to the
user. In moderated technological scenario the organization would operate a technical
database but still exercise physically of the license request. With a comprehensive
electronic copyright management system, search and rights are contemplated online. The
bulk of electronic copyright management system drafted with a nonreciprocal
convenience in judgment. It may pertain list error-free configuration of management.
There are various assemble of affairs that are making it difficult for the improvement of
the electronic copyright management system. Little caliber and the little area constitutes
the technical barrier but do not constitutional is 10 than them till the observation of facts
authentication the misuse in required for a solution

ECMS consists of the rights of the data and authorization function. Preferably the least
conclusive kind of content, it provides content linking automatically, therefore,
permitting the owner to clarify his rights and acquire the content in one set of transaction.
There are several working ECMS operating in today's world although the field is bit new.
The report was being concluded in the year 1996 that the mechanism is still emerging.
The Pronouncement of the electronic copyright management system is being used in
large because of the blunt, least expensive of polishing of copying substance in
instrument comprehensive form of changing print materials into electronic forms. No, the

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country as of now has the proper implementation of a system but in a short time
preferably have the back in of law in the USA.

DIGITAL MILLENIUM COPYRIGHT ACT

In the USA for the safeguarding of authors right, it was first mentioned in the report of
the working committee on intellectual property rights. it is a constitutionally authorized
by the United States of Congress, in the year 1998 October that brought massive changes
to the copyright act. This development was obligatory to initiate in confession with the
World Intellectual Property Organization. The digitalization Nourished the little
protection of the property right through the help of Technologies. The DMCA is a 5
subject or called as section, the title that has the most immediate effect on India is online
service providers that comprise to limit the legal obligation with legal liabilities.

The copyright holder has an option to select to conveyed complaints through the OSP for
the need of action or notice to the infringer pleading not sufficient amount of knowledge
about copyright infringement proceeding. It is the users' duty to have knowledge about
copyright infringement laws for which IU encourages the user to educate themselves.

The Digital Millennium copyright act was signed by President Clinton on the year 1998.
The UN General States the grant of license to the party to provide sufficient and
appropriate legal protection and legal remedies against copyright infringement. The
technological medium that is being utilized by the creators in connection with the rights
under the Berne Convention. The development of copyright has a connection with
technological development. Standing with technological development made the
protection of copyright more complicated.

ANALOGY OF ECMS and DMCA:

It becomes comprehensible from the position taken in both of the ads, which protects the
rights of the owner or author for creative work over the internet. It grants the user to have
access to the public domain after the required payment. It influenced people to come

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forward and register their work. The impact of technological access is advantages but on
the other hand, we cannot really presume to what extent the creator may loose.

Save cutting the works through electronic medium says that the options work are
protected under the DMCA section 5 12(a)

Rapid development has effectively open of roots for copyright infringement and the
necessity for an effective legal instrument to constraint such

CONCLUSION:
Therefore, both the US and EU have adhered to similar standards regarding the questions
of Acess and pay-per-view business type. It has been made pretty clear by that
circumvention of access controls is prohibited under the DMCA. Although the EU is
making attempts in allowing the circumvention of controls, which can only be applied
one time, the works gain lawful access. In both the EU and US, that the accessibility of
the public domain and its price, is made according to the demand of the market forces.

Intellectual Property Protection, has never been a more controversial matter than in the
recent past 10 years passage, the DMCA with its far-reaching impact that supports the
attempt s of copyright holders to control access to and subsequent use of their content has
been a controversial act. Allegedly the jeopardization of the doctrine of "fair use" has
never been so, much as it is now, so much so that ever scientific study and research holds
no water under fair use defense. According to the interpretation of the court this law that
fair use is not a defense as witnessed in the case of Felten v. RIAA, therefore the
academic freedom being supposedly in peril certain doubts and uncertainties, still have
clouded doubts and uncertainties, still have clouded the minds of many users of member
state that if without any sort of changes, the EU directive is applied in law, Europe might
have to deal with its own versions of Dmitri Skylar's prosecution.

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A threat prevails access might be denied by such measure to all having apart those who
willingly pay and o particular terms and conditions applied unilaterally by the copyright
owners. Technology protection measures, typically in standard and non-negotiable form,
used in conjunction with contracts or together with Electronic Copyright Management
System to control access and impose other terms and conditions, may have consequences
such as enabling right holders to exert a greater degree of control over their works that is
statutorily permitted. The expansion of the scope of the rights controlled by the copyright
owner and improvising or overriding the legitimate access to work as provided by the law
is one of the possible effects of it.

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 HUMAN TRAFFICKING IN 21ST CENTURY
STUDENT DETAILS
NAME OF THE AUTHOR: LOVELY TOKAS
NAME OF CO-AUTHOR: ARYAMAN TYAGI

HUMAN TRAFFICKING IN 21ST CENTURY

ABSTRACT

Human trafficking in 21st century is the worst kind of exploitation and a big shame to
humanity. This paper focuses on how India is becoming largest country of this organized
crime with the help of case studies. Most common types of human trafficking is sexual
exploitation, sale of women and children into prostitution, forced labour, illegal activities,
for entertainment purpose, removal of organ etc. This process of human trafficking
includes various stages and stakeholders and in this victim is being recruited or taken
through fraud and then transported to the demand markets with the help of traffickers.

This paper deals with the following information also:

• Study of National Human Rights Commission with regards to the several methods
of Human Trafficking
• Legal framework within India to stop Human Trafficking
• Reason behind flourishing crime of Human Trafficking

Keywords: Article 23 (1) of Indian Constitution, Sale of human being, Modes of Human
Trafficking, Legal Interventions

Page | 234
 “HUMAN TRAFFICKING – A SHAME TO HUMANITY”

- Lovely Tokas

BRIEF INTRODUCTION

Human trafficking is serious issue that has taken a rapid step in 21st century. Many of the
states in India is becoming the victim of this exploitation where women, children are
being transported for one place to another in the name of fulfilling their dreams and
providing them job opportunities in different area. Human traffickers play a very
organized game with people they brought women and children from rural areas or from
other states and involve them in illegal activities such as sexual activities, bonded or
forced labour, begging etc. One should not get confused with two different terms i.e.
human trafficking and human smuggling. Smuggling involves illicit crossing of nation
state –border with proper intention and consensus of the individual and human trafficking
is the act without consent of the individuals leading to vulnerability and exploitation.
Human trafficking is major criminal activity which is spreading all over like an infectious
disease. This paper will suggest different measures being taken up by Human Rights
Commission and others bodies to stop this illegal activity. Migration is an element of
trafficking but all migrants are not trafficking victims. Similarly trafficking does not
involve migration or movement.

The whole process of human trafficking is divided into stages where people just for the
sake of earning huge profit sell the humans to other states and country the trafficking for
labour activities is taken for the benefits in the industries when children are employed and
exploited in number of trades, bonded labour, domestic worker, agriculture labour,
construction , garment industry etc. moreover trafficking for illegal activities includes
begging, selling of human organs , false marriage ,bride trafficking etc. Also, recruitment
of children as child soldiers or for underground arm groups is also being involved in this
process.

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DEFINITION

According to Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish
Trafficking in Persons 266
defines “Trafficking in Persons as the recruitment,
transportation, transfer, harbouring or receipt of persons, by means of the threat or use
of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery, servitude or the removal of organs.”

PROCESS OF HUMAN TRAFFICKING

Human trafficking mainly involves three stages namely:

1) Recruitment
The first stage is of recruitment when the person is drawn into the trafficking chain. This
happens when people are recruited through lucrative job offers, internet, love, friendship,
issue of information. And some of the common ways are job offers in daily newspapers,
social networks and others. Due to poverty and poor economical condition person
become the victim of fraud.

2) Transition
In this stage person is transported from the recruited place to another place, either within
India or outside India depending upon the network of traffickers. Here victim has to stay
for a limited period of time. This place becomes an origin for next transportation. This
chain works in a network which is not known to anyone, also known as hidden network
to elude from law enforcement.

266United Nation Office on Drugs and Crimes available at:https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html

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 3) Exploitation
The last stage is of exploitation where transported person is finally delivered to owner
and then victim is asked to do the illegal activities to provide services to the customers.
This is the phase when victim has no idea and no other way to get out of the situation
because here person is trapped in a fraud where victim has to do work irrespective of his
consent.

NATIONAL HUMAN RIGHTS COMMISSION (NHRC) ON METHODS OF

HUMAN TRAFFICKING

According to NHRC Report on Trafficking in Women and Children in India267 several

methods that how person is trafficked is explained namely:

• Offering jobs as domestic servants

• Promising jobs in the film world
• Promising jobs in factories
• Offering money
• False promises of marriage
• Coercion including kidnapping and drugging
It has been found especially in India that traffickers by opening special marriage bureaus,
placement agency, tutorial centre etc. involve various agents circulate money to all the
stakeholders which are present in every stage. And these agents make the whole
documents of the women and children for further transition. And in this process of
trafficking it involves various informers, supporting personnel and specialist, debt
collectors, money movers, transporters who gather information on matters such as transit
process, law enforcement activities, surveillance and other information which is
important for a trafficker to take further step. Recently in newspaper it has been found
that children have been trafficked by the NGOs from a backward and poverty effected
267National Human Rights Commission available at: http://nhrc.nic.in/documents/reportontrafficking.pdf

Page | 237
region in order to attract donors and to get the heavy donations from abroad. Also one of
the trending methods used by traffickers is through social networking sites in which
younger generation get trapped easily by false promises and abuse of trust.

Due to very organized system of human trafficking sometime it is difficult to gather

information about traffickers. Measuring its prevalence is both difficult and complicated.
Sources estimate that between 27 million and 45.8 million individuals around the world
are victims of human trafficking.268 Moreover, for traffickers, exploiting humans is an
extremely profitable enterprise. Globally, forced labor and sexual exploitation generate
an estimated $150 billion annually in illegal profits, making it one of the largest sources
of profit for global organized crime, second only to illicit drugs.269

LEGAL FRAMEWORK IN INDIA

According to Article 23 of Indian Constitution -“Prohibition of traffic in human beings

and forced labour

(1) Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in
accordance with law

(2) Nothing in this article shall prevent the State from imposing compulsory service for
public purpose, and in imposing such service the State shall not make any discrimination
on grounds only of religion, race, caste or class or any of them.”270

Our Indian Constitution gives us right to stop trafficking in human beings. Also different
act has been made namely The Immoral Traffic (Prevention) Act, 1986 which is a special
legislation deals with trafficking. This Act penalizes trafficking for commercial sexual
exploitation with prescribed penalty of 7 years’ to life imprisonment. It is the primary
legislation for the prevention of sexual exploitation for women and girls. The word

268Trafficking in Persons Report,” 2016, United States Department of State

269The Global Slavery Index, 2016, Dalkeith, Western Australia: Walk Free Foundation
270 The Constitution of India 1949, art.23

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“trafficking” is defined only by the Goa Children’s Act, 2003, which is a state law. Thus,
while the Immoral Traffic (Prevention) Act is the main legislation related to the
commercial sexual exploitation of children, it does not define trafficking.

Offences specified are271:

• Keeping a brother or allowing premises to be used as a brothel

• Living on the earnings of prostitution
• Attempting, procuring or taking person for the sake of prostitution
• Detaining any person in premises for prostitution
• Prostitution in the vicinity of public places
• Seduction of a person in custody

272
Also the Information Technology Act, 2000 penalises transmission of any such
material in electronic form which is inappropriate and lascivious. This act also addresses
the problem of pornography.

Section 67A of this Act punishes publication or transmission of material containing

sexually explicit act in electronic form.

Section 68B of this Act punishes publication or transmission of material depicting

children in sexual explicit act in electronic form.

India prohibits bonded labour and forced labour through Bonded Labour Abolition Act
1976, Child Labour (Prohibition and Regulation) Act, 1986. Also Sec. 366 A and 372 of
Indian Penal Code, prohibits kidnapping and selling of minor into prostitution
respectively. A penalty provided under this is maximum of 10 years imprisonment and
fine. Different measures have been taken by the Indian government to stop human
trafficking such as:

271Human trafficking available at: https://blog.ipleaders.in/human-trafficking/

272Human trafficking available at: https://blog.ipleaders.in/human-trafficking/

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 • Anti Trafficking Cell (ATC)
It was setup by ministry of Home Affairs in 2006 to act as a main source for taking up
decisions and further action related to human trafficking.

• Advisories
Advisories have been set up to improve the effectiveness in tackling the crime of human
trafficking. MHA has issued comprehensive advisories to all states and UTs.

• Judicial Colloquium273

In order to train and sensitize the trial court judicial officers, Judicial Colloquium on
human trafficking are held at the High court level with an aim to sensitize the judicial
officers about the various issues concerning human trafficking and to ensure speedy court
process. So far, 11 Judicial Colloquiums have been held.

Many of the leading case laws can be observed where court has taken strict decision in
combating human trafficking. In Kamaljeet v. State of NCT of Delhi 2006274 held that
trafficking is an organized crime and stringent measures are required to combat it. Also
the court n its order stated that Govt. of India’s Action Plan of 1998 to combat trafficking
and commercial sexual exploitation of women and children had not delivered the desired
results and more stringent measures were the crying need of the day.

Also one of the famous Punjabi pop singer Daler Mehndi is involved in 15 year old
human trafficking case in which complaints alleged that Daler and his brother took
‘passage money’ to help traffickers in migrating to U.S. illegally but failed to do so.
Patiala court sentenced two years in jail and a fine. However Daler was released on bail
bond.

273 Report on Legal Protection against Human Trafficking in India

274Kamaljeet Singh & Ors v State Of NCT Delhi on 24 November, 2014

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In one of the leading newspaper 275 in 2012 five women were rescued from Upvan Hotel,
in Thane. All of them were brought from Bangladesh with promise of work and forced
into prostitution in a brothel run by the family.

In Bachpan Bachao Andolan Vs Union of India276awrit petition filed concerning the

exploitation and trafficking of children in circuses where SC by the formation of special
scheme for rehabilitation of children rescued them from circus.

In Budhadev Karmaskar v. State of West Bengal277, Supreme Court appoints a panel to

monitor and suggest Rehabilitation scheme for trafficked sex workers and trafficked
victims. The court observed that a woman is compelled to indulge in prostitution not for
pleasure but because of abject poverty.

One of the cases of Nagpur, Maharashtra - A baby girl was found abandoned near a
garbage heap. She was picked up by some people and brought to a woman, apparently a
widow, and in need of money. She was promised a handsome monthly allowance and
asked to take care of the baby as if it were her own daughter, with enough to pay for her
food, education and clothing. In fifteen years, the little girl grew with the woman,
believing her to be the mother. The widow too developed a strong bond with the girl. The
girl was a student of class X when a man came to the woman, told her that her “duties”
with regard to the child were over, handed her some money and took the girl away. The
story came to light when anti-trafficking activists subsequently rescued the girl.278

Still after so many legal sanctions, the crime of human trafficking is not reduced yet. In
fact it is flourishing and increasing its existence among the country and has a huge impact
on our fundamental rights of having a dignified life with full liberty as guaranteed by the
constitution.

275
Editorial, “Thane: Three sentenced to ten year jail for running brothel, human trafficking” The Indian Express,
2012
276Bachpan Bachao Andolan v. Union of India 2011 SCC (5) 1
277Budhadev Karmaskar v. State of West Bengal, (2011) 11 SCC 538
278Examples of Human Trafficking In India available at: http://creative.sulekha.com

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WHY HUMAN TRAFFICKING IS FLOURISHING?

• Poverty and lack of employment – people in search for better life or due to poor
condition of family or economic hardship try to move in some other place where
they get trafficked because mostly traffickers trap the people from this section.
• Children and women – early marriage and lack of birth registration further
increase the chance of trafficking because they are targeted to meet the demand of
sex markets.
• Demand for cheap labour – service industry such as restaurants, hotels or
agricultural work needs cheap labour, they are common exploiters of human
trafficking because they promise safe and healthy working environment to people
and later on provide minimum wages and poor working conditions.
• For earning profit – as this crime is done in very organized form so it generates
huge profit commonly through sexual exploitation, removal of organs, selling of
women and children. It is considered second largest crime industry after drug
trafficking.
• Internet – Internet is becoming a free channel in world for giving rise to crime
through different social networks such facebook, twitter where people by abuse of
trust or by fake promises of marriage take the person from one state to another.
• Diplomats - Diplomats to this country may take advantage of immunity by
allowing obtaining special visa to bring workers from their home country. Several
women have been sexually exploited under these condition and diplomats are not
prosecuted because of diplomatic immunity.
• Organization of human trafficking - The organization of human trafficking in such
a professional manner has also been taken as a backdrop of the emerging
phenomenon of globalization, feminization of international migration and state
policies to sustain in the present competitive economic scenario. 279

279Human Trafficking In India available at: https://www.researchgate.net/publication

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 • Natural disaster - in a scenario of natural calamity people move from one place to
other in search of food, shelter and home but traffickers by organized mechanism
send them to the place of exploitation.
• Very little and reliable data exists about distribution of victims, traffickers, buyers
and exploiters. And available data can be inaccurate, missing or false.

SUGGESTIVE MEASURES

• By spreading awareness about this issue in schools, rural areas, universities,

panchayat and ensuring safety of children.
• By providing support in the rescue area ,in alliance with police ,C.I.D., Child Line,
Directorate of Social Welfare and the Juvenile Justice System.
• By emphasizing on strategies made by the government to protect victim of human
trafficking.
• By restraining child marriage so that basic rights to good health, nutrition,
education, freedom from violence, abuse and exploitation.
• It is important to follow strict monitoring system as well as strong interventions
and commitments through this crime can be removed.
• Enhancement of techniques and methodologies related to human trafficking.
• Supporting the anti trafficking efforts in your community.
• By hosting awareness raising events and to make films about the same explaining
with the reason that how it is affecting our society.
• By setting up web alert to receive all the current human trafficking news as this
process is done in US.
• Establishing special anti-trafficking courts to file and prosecute cases on the local
level.

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CONCLUSION

Human trafficking is a serious problem prevailing in our society. And it is important to

follow the stringent steps taken by Supreme Court to stop human trafficking. It is a big
shame to humanity because dreams of many lives have been destroyed. In hope of living
better life they get trapped in these activities by fraudulent means. The study of different
bodies such as NHRC helps in knowing statistics and why India is becoming the hub of
human trafficking. The procedure, process, means, methods as well as rate of
involvement is increasing due to lack of resources, highest demand in the market, very
few income options and impotent legal system. It is necessary to check on social network
for ensuring safety of younger generation.

This problem is prevailing not only in India but overall in world. Efforts to identify and
respond to the commercial sexual exploitation and sex trafficking of minors in Unites
States is also emerging but efforts to overcome this situation is insufficient,
uncoordinated and unevaluated. At the same time factors like corruption and lack of
training and resources make it difficult to ensure that programs are effective. One of the
important recommendations is to increase awareness by supporting the development,
implementation, and evaluation of national, regional, state and local public awareness
camps and by using special strategies for raising awareness among children and
adolescents.

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 INTER-STATE RIVER WATER DISPUTES, AN ANALYSIS
Authors:
Vishnu Sudarshan P, CMR School of Legal Studies, Bangalore
Ishani Bhattacharjee, University Law College, Bangalore
Abstract
The cooperative federal structure of the Indian constitution has proven itself to be an
efficient method of governing the Indian system. Considering the vast ideological
differences prevalent in the Indian State, it is imperative to allow every sect of the society
contend their ideologies. However, a plethora of issues have arisen due to this system.
One such issue being inter-State water disputes. The Indian government has made
several attempts to curb the aforesaid disputes but the implementation of these measures
seemed to be lacking. This paper endeavors to analyse the provisions of law that apply to
inter-State water disputes and to find the inadequacies of the said provisions. The Paper
analyses two main aspects, the cause of the disputes and the inadequacies of the bodies
adjudicating these disputes. The paper essentially provides for substantial solutions to
improve the effectiveness of the adjudication process keeping in mind the current
situation of inter-State river water disputes. Keeping in mind the aforesaid aspects of the
paper, it can be concluded that an overhaul of the adjudication system of inter-state
water disputes is the need of the hour.

A. INTRODUCTION
Inter-State water disputes have been a prevalent problem in the State of India, Many
disputes such as the Cauvery dispute between Karnataka and Tamil Nadu and the
Yamuna river dispute between the States of Delhi, Haryana and Uttar Pradesh have arisen
in the recent past. These disputes owe its inception due to the fact that India follows a
cooperative-federal system where each State is treated as a quasi-sovereign territory.
Since rivers cross State boundaries, it has become harder to allocate the amount of water
that goes to each State. These disputes often cause unrest amongst the victim States, one
such example being the States of Tamil Nadu and Karnataka during the Cauvery water
dispute. The Inter-state River Water Disputes Act, 1956 and The River Board Act, 1956

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were efforts made by the Indian Government to tackle the issue which will be elaborated
through the course of this paper. The paper further analyses the various underlying
complexities in the negotiation process prevalent in the status quo ante which has
seemingly become an apple of discord amongst the stakeholders. The paper provides for
substantial solutions which act as a measure to effectively adjudicate inter-state water
disputes. This paper provides for a consequential analysis on the present legislations and
possible amendments to the same.

B. RESEARCH QUESTIONS
The primary questions that will be dealt with through the course of this paper are:-

i. How does the cooperative-federal system of India affect inter-State river water
distribution?
The Cooperative Federal system in the State of India gives the State within
India autonomy within a certain periphery. Does this interfere with an effective
system of river water distribution?
ii. Does the current system of adjudication of inter-State water disputes hold its
value and is it effective?
In the current epoch, there seems to be certain inadequacies in the
adjudication process of inter-State water disputes. This section seeks to
identify the ineffective aspects of the same.
C. RESEARCH METHODOLOGY
Research methodology can be defined as the process used to collect information and
data for the purpose of making business decisions. The methodology may include
publication research, interviews, surveys and other research techniques, and could
include both present and historical information.280

280BusinessDictionary.com. (2019). Read the full definition.. [online] Available at:

http://www.businessdictionary.com/definition/research-methodology.html [Accessed 29 Mar. 2019]

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The research undertaken is purely doctrinal. The arguments made have been substantiated
keeping in mind the legal concepts that are associated with inter-State water disputes as
well as its history in the State of India.
D. METHOD OF CITATION
The citation design that has been uniformly followed in this paper is the Oxford Standard
for the Citation of Legal Authorities (OSCOLA), fourth edition 2010 published by the
University of Oxford.
E. HOW DOES THE QUASI FEDERAL SYSTEM OF INDIA AFFECT
INTER-STATE WATER DISTRIBUTION?
One of the primary features of the Indian State is the cooperative-federal nature of the
government. A federal system essentially means that the States/Provinces/regions within
a country have a certain level of autonomy in creating its own laws, executing them and
adjudicating them but restricts the same by adding a layer of regulations by the Union
Government. In contrast to a cooperative-federal system, a purely federal system grants
the States as well as the Union with almost the same powers. In India however, the level
of autonomy granted to the States are minimal as compared to the powers vested in the
Union. Although, this autonomy can be enough to grant the States the power to formulate
within itself, policies and laws regarding inter-State river water. There are three essential
provisions that are to be kept in mind while talking about inter-state river water disputes,
namely:-
i. Entry 17 of the State list281
ii. Entry 56 of the Union list282
iii. Article 262 of the Indian Constitution283

281Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject
to the provisions of entry 56 of List I.
282 Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development

under the control of the Union is declared by Parliament by law to be expedient in the public interest.
283 262. Adjudication of disputes relating to waters of inter State rivers or river valleys

(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control
of the waters of, or in, any inter State river or river valley
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other
court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause ( 1 ) Co ordination between
States

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The aforementioned provisions deal with the powers given to the State, and the Union
regarding inter-State river water. Entry 17 of the Seventh Schedule essentially contends
that the States have the power to apply its discretion in terms of irrigation, drainage,
embankments and so on, as long as the actions done are within reasonable limits and
within the ambit of entry 56 of the Union List. Entry 56 of the Union list grants the
parliament to regulate all matters that relate to inter-State river waters. As discussed in
the case of R. Krishnaiah vs Union of India284, It is necessary to keep in mind that any act
taken by the parliament to regulate inter-state river water must be in view of public
interest. However, the term “Public Interest” is vaguely defined. This is best explained
with an example, in a case of a river water dispute between Karnataka and Tamil Nadu,
the Parliament essentially holds the power to regulate or incorporate bodies to adjudicate
the issue. In this case, there are two interests that clash, the intention of Karnataka to win
the dispute and the same goes for the State of Tamil Nadu. In such cases, taking into
consideration “Public Interest” would not be viable simply due to the fact that both of the
interests are bona fide in nature and reasonable. The last provision to be kept in mind is
Article 262 of the Indian Constitution which acts as an extension to Entry 56 of the Union
list. It incorporates one extra addition under Article 262(2) which reads,
“Notwithstanding anything in this Constitution, Parliament may by law provide that
neither the Supreme Court nor any other court shall exercise jurisdiction in respect of
any such dispute or complaint.” This provision essentially restricts the judiciary from
intervening into inter-state water disputes which will be elaborated through the course of
this paper285 .
Keeping in mind that each State possesses a certain level of autonomy in terms of water
supply, the States can make laws and policies that disrupt the water supply of another
State just so it can enjoy a better water supply for itself. This is especially prevalent in the
cases regarding downstream States (A State in which the river water flows from another
State) harming the interests of upstream States (A State in which the river water flows to

284 R.
Krishnaiah vs Union Of India, 1996 (4) ALT 175
285 HarishS, “Part V Federalism, Ch.28 Inter-State River Water Disputes” [2016] The Oxford Handbook of the Indian
Constitution

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another State). The only scenario in which a downstream State can be held accountable is
if it builds a dam/barrage and it results to a flood in the upstream State. Other than this
action, no other action of a downstream State could affect the upstream State's interest
which they have been using for economic, ecological and spiritual/ religious aspects. The
upstream State, however, does have to ensure that the downstream States water supply is
not disrupted in any possible manner. This is an issue which has to be shed light on while
adjudicating inter-State water disputes. Keeping the aforementioned points in mind, it can
be safely concluded that the cooperative-federal structure of India acts as a cause to inter-
State river water disputes.
F. ADJUDICATION OF INTER-STATE RIVER WATER DISPUTES AND
ITS EFFECTIVENESS
As explained earlier, Article 262 prevents the judiciary from intervening into the
settlement of inter-state river water disputes. This is done with good reason; the quasi-
federal structure of the Indian State allows the center to settle any disputes between two
or more States in India. There are two statutes which have to be kept in mind, namely:-

1. The Inter-State Water Disputes Act, 1956

2. The River Board Act,1956
The above laws provide for the intricacies of adjudicating river water disputes. Section 3
of the inter-State water disputes Act, 1956286 essentially States that if in any case there is
a dispute between two States regarding inter-state rivers, the aggrieved parties must refer
to the Centre to resolve the issue. If the central government cannot come up with a
substantial solution, a tribunal must be formed as per section 4287 of the aforementioned
Act within a year’s period. This tribunal will consist of a chairman and two other persons
286 Complaints by State Governments as to water disputes.—If it appears to the Government of any State that a water dispute with
the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the
inhabitants thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by—
(a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or (b) the failure of
the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such
waters; or (c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of
such waters, the State Government may, in such form and manner as may be prescribed, request the Central Government to refer
the water dispute to a Tribunal for adjudication.
287 Constitution of Tribunal.—3 (1) When any request under section 3 is received from any State Government in respect of any

water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, the Central
Government shall, within a period not exceeding one year from the date of receipt of such request.

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nominated by the Chief Justice of India (Must be a sitting judge) and two other persons
nominated by the central government. As per section 5 of this Act288, the tribunals only
have 3 years to make a decision and can only extend this period by 2 years if deemed
necessary289. A few of these provisions are the result of the amendments made in the year
2002 to this Act. Earlier, there would usually be a delay in the formulation of these
tribunals. A simple example of this can be of the Cauvery water dispute between the
States of Karnataka and Tamil Nadu. In this case, the Tamil Nadu government had
requested the central government to constitute a tribunal in the year 1970, but the tribunal
was only set up only in the year 1990 after the intervention of the Supreme Court290 and a
concrete decision was given only recently in the year 2017. Another example is the
Godavari river dispute between four States where the tribunal was constituted 6 years
after the request made by the State governments and the decision was made after 11
years. The amendments made to this Act in 2002 made a considerable impact on the
functioning of these tribunals. Although there are still several issues that still exist, they
will be explained below:-

1. The right of the States to approach the courts after the decision of the
tribunals
291
Section 11 of the Inter-State water disputes Act and Article 262 of the Indian
Constitution restricts the judiciary’s jurisdiction in the cases of inter-State river water
disputes. However, The Indian constitution includes a provision which acts a loophole to
this restriction, Article 131 of the Indian Constitution292. When there is a dispute which

288 5.Adjudication of water disputes—[(2) The Tribunal shall investigate the matters referred to it and forward to the Central
Government a report setting out the facts as found by it and giving its decision on the mattes referred to it within a period of three
years: Provided that if the decision cannot be given for unavoidable reasons, within a period of three years, the Central
Government may extend the period for a further period not exceeding two years.
289 Richards A and Singh N, “Inter State Water Disputes in India: Institutions and Policies” [2001] SSRN Electronic Journal
290 Tamil Nadu Cauvery Neerppasanavilaiporulgal Vivasayigal Nala vs Union of India, 1990 AIR 1316, 1990 SCR (3) 83
291 Bar of jurisdiction of Supreme Court and other courts.—notwithstanding anything contained in any other law, neither the

Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a
Tribunal under this Act.
292 Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the Supreme Court shall, to the

exclusion of any other court, have original jurisdiction in any dispute

(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other States on the other; or
(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the
existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any

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arises between the States of India or between the State government and the Union
Government then it is the jurisdiction of the Supreme Court under Article 131 of the
Constitution that gives it the power to resolve these kinds of disputes293. This provision
essentially gives the States the power to go to the Supreme Court after the decision is
given by the tribunal. Any private persons can also approach the Supreme Court under
Article 32 linking the issue with Article 21 of the Indian Constitution294. Subhash Kumar
v. the State of Bihar295, the Supreme Court held that “the right to life includes the right to
live properly and have the benefit of all natural recourses i.e. unpolluted air and water. It
was observed that "Right to live is a fundamental right under Article 21 of the
Constitution and it includes the right of enjoyment of pollution free water and air for full
enjoyment of life. If anything endangers or impairs that quality of life in derogation of
laws, a citizen has right to have recourse to Article 32 of the Constitution for removing
the pollution of water or Air which may be detrimental to the quality of life.”. By that
logic, the citizens of the State that the tribunal did not favor can approach the courts to
revise the tribunal’s decision. To tackle this issue, there is one possible solution which is
to make a separate provision restricting the scope of Article 131 in inter-state water
disputes and by the suomotu powers of the Supreme Court, to restrict the applicability of
Article 32 to reverse the judgment given by the tribunals.296

2. Multiple Tribunals
According to the Inter-State water dispute Act, 1956, Every time there is a dispute
between two or more States, a new tribunal must be set up. This multiplicity of tribunals
leads to a non standardized set of conventions and norms. As in any case, in a situation
where there is no standard set of established rules on the process regarding the
adjudication, the adjudicators often resort to subjectivity. This is one of the contributing

treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the
commencement of this Constitution, continues in operation after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute
293A.R. Antulay vs R.S. Nayak & Anr 1988 AIR 1531, 1988 SCR Supl.
294 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure

established by law
295 Subhash Kumar vs State Of Bihar And Ors, 1991 AIR 420, 1991 SCR (1)5
296 J.N Pandey, Constitutional Law of India (51 st Edition Central Law Agency ,Allahabad)

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factors to why only 3 out of 8 tribunals set up so far have had a mutual consensus on their
decisions297. To tackle this situation, there must be a single permanent tribunal which
would be responsible for all inter-State water disputes. The main issue with implementing
this system would be that the permanent tribunal’s decision could have a retrospective
effect. The existing disputes that were previously carried out by the existing tribunal
would be transferred to the new permanent tribunal. All the existing tribunals would
either have to be dissolved which would result in the delay of decisions to existing
stakeholders or it would lead to a situation where the permanent tribunal and the existing
tribunal co-exist which would not work. Keeping this in mind, the Inter-State water
disputes Act amendment bill (2017) proposes a dispute resolution committee and a single
permanent tribunal which can be proven to be effective if implemented.

G. CONCLUSION
At this point of the paper, it is essential to understand that inter-State water disputes
cannot be prevented but there can be a better means of adjudicating and settling them. It
is essential that all of the stakeholders to the dispute are equally satisfied. To achieve this,
Aspects such as the multiplicity of tribunals and the rights of the States to resort to the
judiciary in a situation where the State does not accept the terms of the decision must be
dealt with in future amendments. Due to these inter-state water disputes we see the
deterioration of cultures, communities, and ecosystems, creating conflicts between States,
as seen in the Cauvery case and between State and the people, as seen in the Narmada
case. It would be nothing short of criminal to delay the proceedings for these disputes.
Moreover, previous disputes must be taken as precedence to learn the dynamics of the
inter-state river water and ameliorate the adjudication proceedings regarding the aforesaid
disputes. Moreover, it is vital to establish a common set of rules while deliberating on
inter-State water disputes. In essence, we must endeavor to establish an egalitarian
society where every State in India is provided with an adequate amount of clean water

H. BIBLIOGRAPHY

297 Swain A, “Fight for the Last Drop: Inter‐ State River Disputes in India” (1998) 7 Contemporary South Asia 167

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TABLE OF BOOKS

1. J.N Pandey, Constitutional Law of India (51st Edition, Central Law Agency
,Allahabad)
2. M.P Jain, Indian Constitutional Law, ( 7th Edition, Lexis Nexis)
TABLE OF JOURNALS

1. Swain A, “Fight for the Last Drop: Inter‐ State River Disputes in India” (1998) 7
Contemporary South Asia 167
2. J.N Pandey, Constitutional Law of India (51st Edition Central Law Agency
,Allahabad)
3. Richards A and Singh N, “Inter State Water Disputes in India: Institutions and
Policies” [2001] SSRN Electronic Journal
4. Harish S, “Part V Federalism, Ch.28 Inter-State River Water Disputes” [2016] The
Oxford Handbook of the Indian Constitution
TABLE OF LEGISLATIONS

1. The Inter-State Water Dispute Act, 1956

2. The River Board Act, 1956
3. Constitution Of India, 1949
TABLE OF CASES

1. Subhash Kumar vs State Of Bihar And Ors, 1991 AIR 420, 1991 SCR (1)5
2. A.R. Antulay vs R.S. Nayak & Anr 1988 AIR 1531, 1988 SCR Supl.
3. Tamil Nadu Cauvery Neerppasanavilaiporulgal Vivasayigal Nala vs Union of
India, 1990 AIR 1316, 1990 SCR (3) 83
4. R. Krishnaiah vs Union Of India, 1996 (4) ALT 175

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 ROLE OF COMPETITION LAW IN MERGERS AND ACQUISITIONS

- Amogh Ashish Taskar

In the last few years, India has witnessed a substantial increase in Mergers and
Acquisitions deals. is believed to be among the top countries that have entered into
Mergers and Acquisitions market. M&A is the one of the most lucrative careers for
lawyers and investment bankers. Globalization has encouraged companies to expand
beyond their geographical reach. Mergers and Acquisitions play an important role for the
growth of an organization all over the world. After the 1991 Liberalization, Privatization
and Globalization ( LPG ), the scope or Foreign Investments and Inbound and Outbound
Mergers and Acquisitions grew popular in India.

M&A is a great way of achieving strategic goals. Any M&A deal has to undergo the
process of Competition Assessment, as per the provisions laid down by the Competition
Act. Thus, it can be said that M&A and Competition Law are bound to each other.
Sometimes, a M&A deal might lead to Anti-Competitive issues and create Appreciable
Adverse Effect on Competition (AAEC).

COMPETITION LAW:

India was previously governed by the Monopolies and Restrictive Trade Practices Act
1969. In 2002, the MRPT Act, 1969 act was replaced by the Competition Act, 2002.
Competition Law primarily deals with eliminating arbitrary trade practices and unfair
dominance in the Market. The main premises that the Competition Law deals with are
Anti-Competitive Agreements, Abuse of Dominance, Combinations. India’s Anti-Trust
laws are provided by the Competition Law, 2002 which were amended in June 2007
(Competition Amendment Act, 2017).

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 • Anti-Competitive Agreements : Section 3(1) of the Competition Act states that “
No enterprise or association of enterprises or person or association of persons shall
enter into any agreement with respect to production, supply, distribution, storage,
acquisition or control of goods or provision of services, which causes or is likely
to cause an appreciable adverse effect on competition within India. 298
Horizontal Agreements: Horizontal Agreements are those which are made between
entities engaging in the same level of production chain for either fixing prices,
limiting the production and sharing markets.299

Vertical Agreements: Vertical Agreements are those which are made between entities at
different level of production chain, like an arrangement between producer and distributor.

Competition Act, 2002 has expressly provided that Anti-Competitive Agreements

between enterprises, association of enterprises, people, association of people are void.

• Abuse of Dominant Position: An enterprise is considered to be in dominant

position when it shows it’s resilience and is independent from the market forces in
India. If an enterprise is able to take unfair advantage of its dominant position, it is
called as abuse of dominant position. The competition Act, 2002 prohibits entities
from abusing it’s dominant position. Unfair trade practices such as predatory
pricing, price discrimination, barriers to entry by other entities are prohibited. In
other words, competition law prohibits an enterprise to establish monopoly in the
market through its dominance.

• Combinations : A ‘Combination’ as per the Competition Act, 2002300 means,

A. An acquisition of control, shares or voting rights or assets by a person.

298Competition Act, 2002

299https://www.google.com/amp/s/blog.ipleaders.in/anti-competitive-agreements/amp/
300https://www.google.com/amp/s/www.vakilno1.com/legal-news/impact-of-merger-acquisition-on-competition-an-

analysis.html/amp

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 B. An acquisition of control of an enterprise where the acquirer already has direct
or indirect control of another engaged in similar or identical business.
C. A merger or acquisition between or among enterprises, that exceed the
financial thresholds prescribed by the Act.

The Competition Act, 2002 regulates the combination of two entities. Combination
within the Competition Law is the merger between two or more enterprises or firms or
the business sector acquisitions by other business enterprises. The sole purpose of
regulation of combinations between two business entities is that the merger of these two
entities may overshadow other businesses which work on a more intimate basis. It is very
difficult for smaller firms to work in a market which is entirely controlled and affected
the combination of two bigger firms.

Regulation or Combinations301 : The CCI has provided guidelines with respect to the
combination of enterprises in India. The CCI has provided that no person or enterprise
shall enter into a combination which causes or is likely to cause Appreciable Adverse
Effect on Competition (AAEC) within a relevant market in India and such a combination
shall be void. Any person or enterprise which proposes to enter into a combination shall
notify the CCI in the format which is specified along with the prescribed fee. The CCI
notifies that no combination shall come into effect until two hundred and ten days have
passed since the notice of the combination is given to the CCI.

COMPETITION COMMISION OF INDIA (CCI):

The Competition Commission of India was established in 2003 but became fully
operational in 2008. The CCI is a statutory body established by the Government of India
for regulation of competition and markets in India. This commission was preceded by
Monopolies and Restrictive Trade Practices Commission. Section 20 of the Competition

301http://www.arthapedia.in/index.php?title=Regulation_of_Combinations

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Act, 2002 empowers the Commission to inquire into a combination either suo motu or on
receipt of information relating to acquisition whether such combination has caused or is
likely to cause an AAEC in the relevant market in India.302

DUTIES OF THE COMPETITION COMMISSION OF INDIA:

• To eliminate practices having adverse effect on competition.
• To promote and sustain competition.
• To protect interest of consumers
• To ensure freedom of trade carried on by other participants, in markets in India.

MERGER CONTROL:
If the outcome of the M&A can put the parties to the deal in a dominant position and
result into AAEC. Thus, the sole purpose of Merger Control is to prevent the companies
to come into a dominant position. Concern with mergers is ultimately a concern with
market power and possible abuse of the market power by the merged entity. Section 31
for the Competition Act provides that,

• If the commission is of the opinion that the combination is not likely to create
AAEC, then the CCI shall approve the proposed combination.303
• If the commission if of the opinion that the combination is likely to create AAEC,
then the CCI shall disapprove the proposed combination.304
Thus, it is clear that M&A deals might lead to anti-competitive issues and hence there
should be a proper body to regulate competition in India. The Competition Commission
of India is arguably a very important body to guide M&A deals and keep the market
hassle-free.

302www.cci.gov.in
303https://www.iflr.com/Article/3181876/Merger-control-Why-is-competition-law-relevant-to-M-

A.html?ArticleId=3181876
304https://globalcompetitionreview.com/insight/the-asia-pacific-antitrust-review-2018/1166763/india-merger-control

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 CASE REVIEW OF JOSEPH SHINE v.union of india
-Nitish Singh
(A landmark judgment that scrapped158 years old law on adultery)

Background

This writ petition was filed under Article 21 of the Constitution of India, here in referred
as the Constitution, challenging the Validity of section 497 of the Indian Penal Code,
1860, here in referred as I.P.C. Initially the case was heard by a three judge bench of the
Hon’ble Supreme Court of India. Later on, the bench felt the necessity to check the
constitutionality of the provision. Thereafter, the matter was placed before the 5 five-
judge bench headed by the Hon’ble CJI Dipak Misra constituting A.M. Khanwilkar J.,
D.Y. Chandrachud, J., Indu Malhotra, J. and R.F. Nariman, J. Dipak Misra, CJI wrote for
himself and A.M. Khanwilkar, J. while other 3 judges wrote for themselves separately.

Judgement written by Dipak Misra, CJI

The Court begins with observing the beauty of Indian Constitution. While defining the
civility of a civilization with the dignity, equality and privacy of a women, the Court goes
on to explain how, because of growing constitutional percepts and progressive thinking,
any provision which was accepted by the society may have met its ‘epitaph’.

The paragraph 3 of the judgment talks about how the Court either has to follow the
precedent or has to “grow out of it”. What raises the eyebrow about this paragraph is that
the Court fails to explain what is the criteria on which one must decide whether or not to
change the precedent? Though, the Court does explain that with the change in the society
and its approach the precedents fail to fit in the picture yet, what seemed to be missing
was that on how to decide whether or not the precedent must be changed or not i.e. to say
that how to decide whether the societal values have now grown over the values that
prevailed during the time precedent was set. Later on in the same paragraph the Court
also says that “the change perceived……. should be founded in the solid bedrock of the
change that society has perceived.” Again, the question that is raised in mind is, what if

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the change is suicidal, Or as perceived in present times, is a hate crime? Will the Court in
such a situation be prevailed by the societal values to agree to grow towards that side, or
shall we say to backslide?

While ending the paragraph 8 it can be inferred from the judgment that if the manner in
which Court intends to deal with a lis is different then, the Court may need not to
comprise a larger bench as stated in the Central Board of Dawoodi Bohra Community
and another v. State of Maharashtra and another305. What concerns the author, maybe
because of lack of legal knowledge, is that can this supposed power, to decide the
strength of the bench on the nature of dealing, be misused by someone?

The Court there after discusses the cases of Sowmithri Vishnu v. Union of India306 and
another, V. Revathi v. Union of India and others307and W. Kalyani v. State Thro’
Inspector of Police and another308.

Referring to Shayara Bano v. Union of India and others309and Yusuf Abdul Aziz v.
State of Bombay310the Court touched the Section 497 of I.P.C. in the light of Article 14
of the Constitution. The Court, hence, held that Section 497 I.P.C. suffers absence of
logicality of approach making it offend Article 14 of the Constitution because it does not
keep the men and women on the same footing in-front of the law. In Yusuf Abdul Aziz
(supra) the Court faced a similar question and it understood that Article 15 clause (3)
allows the legislature to make laws in the favour of the women.

From paragraph 24 onwards the Court addresses the Section 497 I.P.C. in the yard of
Section 21 of the Constitution. Thereafter Court analysis the precedents that have been

305 (2005) 2 SCC 673

306 (1985)Supp SCC 173 : AIR 1985 SC 1618; The Court ultimately ruled that “It is better, from the point of view of the interests
of the society, that at least a limited class of adulterous relationships is punishable by law. Stability of marriages is not an ideal to
be scorned.”
307 (1988)2 SCC 72; The Court ruled “that since neither of the spouses (man or woman) can prosecute the erring spouse, the

provision does not discriminate on the ground of sex.”

308 (2012) 1 SCC 358
309 (2017) 9 SCC 1
310 1954 SCR 930 : AIR 1954 SC 32

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set in K.S. Puttaswamy and another v. Union of India and others311, National Legal
Services Authority v. Union of India and others312and Common Cause (A Registered
Society) v. Union of India and another313. The analysis reveals that the Court has always
understood the essential dignity which a woman is entitled to have. Section 497 has an
element of connivance and consent which frowns Article 21 of the Constitution as it
creates a dent in the individual dignity of the woman by making her inferior. Though the
Court very well defines the dignity of woman but what it again misses out on how
Section 497 I.P.C. does create a distinction based on gender stereotypes.

Paragraph 42 onwards the Court deals with the criminality of Section 497 I.P.C. Though
the Court states that it must not be misunderstood as there is a social license to destroy
matrimonial homes, yet, the Court is convinced that to treat adultery as crime would be
unwarranted in law. Author feels that the Court has failed to recognize the kind of
environment that is created by such events. The society is brought to terror
psychologically. A mother in law feels insecure about her son/daughter in law because of
her concern for her daughter/son. A husband/wife might feel afraid of something similar
happening to them which happened to their colleague.

Judgment written by Dr. Dhananjaya Y Chandrachud, J.

From the very first paragraph it seems that the Court has already inferred that Section 497
I.P.C. is oppressive, harmful and patriarchal. In first part of the judgment i.e. Part A, the
Court goes on describing how it cannot allow law to oppress people as it will be against
the constitutionality. Also, that while adjudicating any provision in regards to the women,
we cannot keep the oppressive past aside.

In Part B of the judgment, the Court describes the case of Yusuf Abdul Aziz (supra) and
tells that how is the present issue different from the previous ones that were raised. After
this the Court goes on to explain as to what the Sowmithri Vishnu (supra) case was and

311 (2017) 10 SCC 1

312 (2014) 5 SCC 438
313 (2018) 5 SCC 1

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how did it not deal with the main issue by saying “7…It is commonly accepted that it is
the man who is the seducer and not the woman. This position may have undergone some
change over the years but it is for the Legislature to consider whether Section 497 should
be amended appropriately so as to take note of the “transformation” which the society has
undergone.” While dealing with only one aspect of the case i.e. right of the women, with
whom the alleged has committed adultery, of being heard.

The Court also over rules the judgment in V. Revathi (supra), stating that the said
judgment dealt with Section 497 in a sense that it does not establish a good legal
principle.

In Part C of the judgment, the Court observes that Section 497 and Adultery, according to
the Court, is discriminatory, non-discrimination being the essential part of constitutional
morality, and hence cannot be coherent with constitutional morality. The remaining
portion of this part discusses about how the Draft Committee of the Penal Code was
reluctant about making Adultery a criminal offence. Yet, it was forced to make it a
criminal offence because if it had not done so then the “natives” would take the law in
their own hands and it would be more chaotic for the society. Paragraph 22 & 23 talk
about 42nd and 156th report of the law commission of India and Justice Malimath
Committee and their suggestions to repel the section when time seems to be fit and to
make the Section 497 I.P.C. gender neutral.

In Part E of the judgment the Court discusses that the approach of Section 497 I.P.C. is
against the Article 14 of the Constitution and hence makes it unconstitutional. From
Paragraph 31 onwards the Court talks about the manifest arbitrariness that is present in
Section 497 I.P.C. As the Section does not give importance to autonomy of the women it
seems to manifestly arbitrary. Running the test of arbitrariness as stated in Shayara Bano
vs Union of India, the Court finds Section 497 to be “inconsistent with the ethos of the
Constitution” and hence suffers from manifest arbitrariness.

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In Part F of the judgment the Court repeats most of the above said things. Only in the Part
the Court discusses something new i.e. it talks about how Article 15(3) of the
Constitution cannot protect the Section 497 I.P.C. After quoting Government of A
P v P B Vijayakumar and Independent Thought v Union of India the Court
observes that Article 15(3) can only be used to improve the socio-economic
condition of the women and not to entrench patriarchal notion which attacks a
woman’s autonomy and dignity.

In Part G of the judgment, while ending in paragraph 61, for a very small portion, the
Court does appreciate the work of the state to uphold the right of women in cases of
physical emotional abuse, domestic violence, dowry, harassment etc. The Court also talks
about the morality that is violated with the acts of adultery yet; it dissents with the fact of
criminalizing it just because it is unethical just as all non-criminal acts are not ethical.

Final Part, Part H. After summing up everything in Parts A to G, the Court finally, in
paragraph 67 point (4), declares the Section 497 of the Indian Penal Code, 1860 as
unconstitutional.

Judgment written by R F Nariman, J.

The Court, in the beginning, states Section 497, Section 494 of I.P.C. and makes a note
that in Adultery, unlike Bigamy, only the third party male is offender.

Thereafter, taking note of ancient civilizations and religions, the Court observes that from
sixth century England, the offence of Adultery was only a civil wrong. It was only in
1650 that adultery became a capital offence under Cromwell’s Puritanical England. Later
on it was removed by King Charles II. After stating the current position of law in
England and America, in England it is only a ground for divorce and in America it is a
criminal offence in few states but in majority states it is civil wrong only, the Court talks
about how the position was developed in India.

Paragraph 9 describes Lord Macaulay’s dissent in making Adultery a criminal offence

and his opinion that “many things which are not punishable are morally worse than many

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things which are punishable.” Paragraph 10 talks about as to why was Lord Macaulay’s
suggestion turned down and Adultery was added into Draft Penal Code. As stated in
paragraph 10, if the justice is not done by the law then the injured party will do it for
himself by committing crimes like assassinations and poisoning.

Noticing the difference in language in Article 15(3) and 19(2)-(6) and referring to Article
366 the Court holds that Article 15(3) of the Constitution gives the right to “State” but
Section 497 of I.P.C. is existing law. Hence, law isn’t made by the state, over ruling
Yusuf Abdul Aziz (supra).

The Court then discusses Sowmithri Vishnu (supra) and V. Revathi (supra). The Court
then goes on to list few countries which have abolished Adultery as a criminal offence.
From paragraph 23 the Court takes a different view on as to why a man was not culpable
for having sexual relation outside marriage with a single woman. The Court states that
since a Hindu man was allowed to have multiple wives so he could have always married
the woman he had relation with. Thereafter the Court reiterates the arguments of chattel
and how it is unconstitutional in the light of Article 14 of the constitution. The Court then
overrules the judgment in Sowmithri Vishnu (supra) and V. Revathi (supra) and
declares the Section 497 I.P.C. as unconstitutional.

Judgment written by Indu Malhotra, J.

The Court mentions the arguments that were advanced both by the petitioner and the
respondent. Respondent’s counsel argued that family is the fundamental unit of society
and offence of Adultery has the effect of breaking the very fundamental unit. By
deterring individuals from engaging in a conduct that is harmful to the marriage, Section
497 I.P.C. is protecting institution of marriage and promoting social well-being. Striking
down the Section 497 as it is unconstitutional under Article 14 and 21 and that it cannot
take the defense of Article 15(3) of the Constitution the Court gives a hint that legislature
must look at it whether or not adultery maybe left a criminal offence. If it does, then the

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punishment should be minimal. If the purpose is served by keeping it as a civil wrong
then the legislature may not make it a criminal offence.

Arguments against the observations of the Court

After reading the judgment it seemed like Court was much more moved by the arguments
from the side of the petitioner. The Court found Section 497 against the Article 14 of the
Constitution as it is arbitrary. Yet, what seems to have not been addressed is that Article
15(3) of the Constitution provides sufficient defense for Section 497 to survive. Later on
the Court urges that since this Section is patriarchal in nature hence it cannot be defended
by Article 15(3). Is it really patriarchal? The Law Commissioners who drafted the Penal
Code very specifically mentioned in their reports that the purpose of not making Adultery
a gender neutral crime is to protect women who have faced oppression in the face of child
marriage and other such acts. If the Section was drafted with this approach then there
seems to be no use of the focus that has been brought upon by the Court on the point that
the Section is not gender neutral. Also, it seems that this view was rather ignored.
According to the Court Section 497 is against Article 14 as it does not allow wife to
prosecute. But when we see Section 497 in the light of Yusuf Abdul Aziz (supra) and V.
Revathi (supra), we observe that on one hand adulteress cannot be prosecuted, either by
her husband or wife of adulterer, because of the privilege that has been provided to
women in Article 15(3) and the intention of Draft committee, for not having women
culpable, was also in the interest of women. And the wife of adulterer cannot prosecute
her husband because of the sanctity of marriage which only leaves the male to prosecute
other male. The Court used a term very often i.e. “A chattel”. What crosses the mind is
that where does this interpretation comes from? Neither the Draft Committee nor the
judiciary or the legislature ever referred to women as “a chattel”. Yet, the Court not only
takes this view rather puts a lot of emphasis on this. Taking note of the immorality of the
act of Adultery, the Court not only scraps Section 497 but also states that this must not be
made a criminal offence. We are talking about a code which has a Section i.e. Section
350 I.P.C. which makes it a criminal offence even to make a gesture that may move

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someone. Yet, the Court, in case of Adultery, fails to recognize the mental agony that
spouses go through, the problems that children face and the fear of being left alone in old
age. It is difficult to comprehend that a gesture which you may forget is a crime but a
mental agony and a lifelong tag of being betrayed is not a criminal offence. A question
that is raised in mind is that where there is no consent of women there the act would
amount to offense of Rape i.e. Section 375 of the I.P.C. Yet the Court repeats it often that
woman’s consent is not even considered in the case of Adultery. The Court here seemed
to be speaking like feminists where as it must speak as a gender neutral body. By
decriminalizing the offence of Adultery the Court has made the very fundamental unit of
a society, which criminal code sought to protect, vulnerable.

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 CRITICAL ANALYSIS OF ROLE OF COURTS IN ARBITRATION

- Simranjeet Kaur Muchhal

Abstract
Arbitration is settlement of dispute outside the court with the voluntary agreement by the
parties which is governed by Arbitration & Conciliation Act, 1996 (herein referred as ‘the
act’). One of the main objectives of the Act is to minimize the role of courts in
arbitration. This paper analyses the role of courts and judicial intervention at three stages
of arbitral proceedings i.e. before and during the arbitral proceeding and also after the
arbitral award has been made. Due to vastness of the topic, the scope of the paper is
limited to the role of courts and judicial intervention in domestic arbitration only and
does not include international commercial arbitration. The paper tries to find out the
extent to which court can make judicial intervention. In the following paper it has to be
observed if the main objective of the act i.e. to minimize the supervisory role of the
courts in arbitral proceedings has been achieved or not. Such analysis will be made with
the help of various case laws. The paper attempts to answer the question whether the
court is silent in matters relating to arbitration and determines the extent to which role is
played by the courts in an arbitral process in domestic law. Further, pros and cons of the
judicial intervention by the courts in arbitration have been discussed. Eventually, the
paper will conclude whether such judicial intervention is justified or not.
Keywords: arbitration proceedings, judicial intervention, role of courts, judicial
assistance
I. Introduction
Arbitration is referred to the settling of disputes by common understanding or agreement
by the parties where the rights and liabilities of the parties are resolved which has binding
effect on them, such settlement may be brought before the arbitral tribunal but not before
the court of law. The object of arbitration is to ensure efficient, speedy and consensual
decision making process in order to evade the arduous process of courts. Arbitration is
modern, organized and legalized form of an old practice where people voluntarily

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referred their disputes to a group of wise men called Panchayat which would pass a
binding resolution.

One of the main objectives of the Arbitration & Conciliation Act, 1996 is to minimize the
role of courts. The statement of object and reason of the Arbitration & Conciliation Bill,
1995 recognizes the minimization of the supervisory role of courts in the arbitral process.
The scope of judicial intervention by the courts shall be restricted in the arbitration.
Therefore, section 5 provides for ‘Extent of judicial intervention’ which reads as
‘notwithstanding anything contained in any other law for the time being in force, in
matters governed by this part, no judicial authority shall intervene except provided in this
part’. Here ‘judicial authority’ shall be comprehended as a court defined in the act but
also includes courts which would either be civil courts or other authorities which perform
judicial functions or quasi judicial functions’.314 Furthermore, the expression ‘intervene’
covers assistance and control or supervision.315 The main function of the said section is to
reveal the object of the act and encourage expeditious and less expensive settlement of
316
resolution of dispute with minimum interference of the court. However, there are
certain instances where the courts steps in to interfere in the arbitral process as provided
by the act.

Arbitration law lays its foundation on the principle of party autonomy which means that
parties voluntarily puts their dispute for resolution before a chosen umpire called
arbitrator. The very principle negates the intervention of courts in arbitral process.

Also, arbitration also has an element of confidentiality which cannot be seen in judicial
proceedings. Since, arbitral proceedings are held in public and only the parties receive the
copies of arbitral award that has been made to them.

II. Judicial Intervention by Courts

314 Morgan Securities and Credit (P) Ltd. v. Modi Rubber Ltd., AIR 2007 SC 683.
315Dr.S.C. TRIPATHI, ARBITRATION & CONCILIATION ACT, 1996 WITH ALTERNATE MEANS OF SETTLEMENT OF
DISPUTES 66 (8 ed. 2017).
316P. Anand Gajapathi Raju v. P.V.G. Raju, AIR 2000 SC 1886.

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Sec. 5 permits the judicial intervention as per the provisions of the act. Courts can step in
to interfere in the arbitral proceeding before its commencement for the purpose of
referring the parties to arbitration and for the appointment of an arbitrator. Also, court can
pass interim measures before or during the arbitral proceeding. Court also provides
assistance in taking evidence during the arbitral proceedings. Moreover, when award has
been made by the arbitral tribunal, court can set aside such award.

Judicial intervention by Courts in an arbitral proceeding can be contemplated in three

stages:

Stage 1- Pre Arbitral Procedure: includes power of courts to refer parties to arbitration
and power to appoint an arbitrator.
Stage 2- During the arbitral proceedings: includes interim measures by courts and
assistance of courts in taking evidence.
Stage 3- Post Arbitral Award: includes setting aside of award by the courts.
Such judicial intervention by the courts in arbitral process can be discussed in detail:

1. Power to refer parties to arbitration

In case where an arbitration agreement exists, Sec. 8 puts an obligation on the courts to
refer the parties to arbitration in terms of their arbitration agreement.317 Language of the
section is pre-emptory.318 If there is an arbitration agreement between the parties and one
party moves to the court to resolve dispute instead of referring the dispute to the
arbitration then other party can make an application before the court to refer the matter to
the arbitration before it submits its first statement on the substance of the dispute along
with the original arbitration agreement failing which a duly certified copy thereof.

Section 8 eliminates the scope for intervention by the courts as it makes it obligatory for
the courts to refer the parties to the dispute to arbitration if the dispute is a subject matter
to the arbitration agreement.

317 Agri Gold Exims Ltd. v. Shri Lakshmi Knits & Wovens Ltd., AIR 2007 SCC 686.
318Hindustan Petroleum Corporation Ltd. v. Pink City Midway Petroleum, AIR 2003 SC 2881.

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Delhi High Court in Gas Authority of India Ltd. v. Spie Capag319 observed that while
considering an application to refer the parties to the arbitration, judicial authority shall
consider following issues:
i. Dispute before judicial authority is arbitral.
ii. There is a valid arbitration agreement between the parties.
iii. One of the parties of the arbitration has started legal proceedings.
iv. The party has not submitted the first statement on the substance of dispute.
2. Appointment of Arbitrators
When a party fails to appoint an arbitrator within the time limit of 30 days of the receipt
of request made for appointment of an arbitrator by the other party or two appointed
arbitrators fail to agree on the appointment of the third arbitrator within 30 days of the
date of their appointment, in such circumstances Supreme Court of India or High Court
or any institution designated by these courts is authorized to make an appointment of the
arbitrator on request of a party.
Sec. 11 provides that an application made under this section for appointment of an
arbitrator shall be disposed of by such courts within the prescribed time period of 60 days
from the date of service of notice on the opposite party.
The legislative intention of Sec. 11 is that if the other side is not ready to follow the
procedure, the applicant may approach the High Court for the direction to the other side
either to follow the procedure or request the high court to appoint an arbitrator in terms of
scheme.320
The Supreme Court SBP v Patel Engineering held that the power of a court for
appointment of an arbitrator under section 11 of the act is not “administrative” power but
a “judicial” power.

3. Interim Measures by Courts

Sec. 9 contemplates two stages when the court can pass interim orders i.e. during the
arbitral proceedings or during the arbitral proceedings. It has been held in N Sekar v.

319 AIR 1994 Arb. L.R. 458 (Del.).

320 D. Raja Reddy v. Director General, National Institute of Agricultural Extension Mgt., AIR 1999 Arb. LR 212 (A.P.).

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Akash housing, Chennai,321 while granting interim injunction the court must be satisfied
that

a) Existence of pima facie case,

b) Balance of convenience, and
c) Potential for irreparable loss or injury
Sec. 9 empowers the courts to grant interim measures as its discretion, thus it is
discretionary power of the court. The court while considering an application made by a
party, would consider the various aspects of the matter such as prima facie case has been
made out, whether the loss would be huge or beyond economic repair, if suitable interim
measures are not being granted.322 However, it has to be noted that interim measure by
the court can only be granted for aiding the arbitration proceedings and not to frustrate
323
them. That means the court while granting interim measures is not supposed to
adjudicate the subject matter of the dispute since it has to be done by the Arbitral
Tribunal and not by the court.

As per Sec.9, an application to the court to grant interim measures can be made on
following purposes:
i) To appoint guardian for a minor or person of unsound mind for the arbitral
proceeding
ii) To obtain custody, preservation and sale of any goods provided such goods are
the subject matter of an arbitration agreement
iii) To cause recovery of the amount as a result of an arbitral award.
iv) To detain, preserve and inspect any property or thing which is subject matter of
an arbitration agreement.
v) To obtain interim injunction
vi) To appoint receiver.

321AIR 2011 LW 357 (Mad.).

322 Transmission Corporation of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd., AIR 2006 SCC 540.
323J. & K. State Forest Corp. v. Abdul Karim Wasi, AIR 1989 SC 1498.

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Moreover, arbitral proceedings must commence within 90 days of the order granting
interim relief or within such further time as the Court may determine.

4. Assistance of Courts in taking Evidence

Sec. 27 signifies very notable approach in matter of arbitration where an arbitral tribunal
may take a court’s assistance to get evidences as such through that court, as per the
court’s process.
If evidence becomes necessary as the arbitral tribunal is required to make an award on the
merits of claim placed before it, therefore tribunal must have power to get the evidence
and for the same purpose enabling provision has been provided by the act. Arbitrator
lacks the power to summon, examination of witnesses and production of document as
evidence. Therefore, Sec. 27 empowers Arbitral Tribunal to seek assistance from the
court for taking evidence.324 Under the said section, the Arbitral Tribunal can seek court’s
assistance in taking evidence by applying suo moto (by its own motion) or on request by
a party. Court may then execute the request of the arbitral tribunal in taking evidence as
per the competence of the court and such evidence is directly provided to the arbitral
tribunal. Moreover, the courts have to adopt the same procedure as the civil courts in
order to give punishment or penalties to the person who does not comply with such
process.
325
Supreme Court in K.P. Poulose v. State of Kerela pointed out that if a material
evidence is not taken in consideration by the arbitral tribunal and an arbitral award has
been made, it would be said to have amounted to an unfair arbitral proceeding and the
arbitral award would be held as invalid which is liable to be set aside by the court.
5. Setting aside of Arbitral Award
Sec. 34 restricts the grounds for setting aside the arbitral award. In simpler words it can
be said that this section specifies the grounds on which court may order for setting aside
of arbitral award. Sec. 34 empowers the court to review the whole arbitration process that
has been followed and to determine its constitutionality. However, court is not

324Delta Distilleries Ltd. v. United Spirits Ltd. AIR 2014 SC 113.

325AIR 1975 SC1259.

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empowered to set aside the award suo moto but only when a party makes an application
to the court and furnishes the proof that:
i) Party was under some incapacity
ii) Arbitration agreement is invalid
iii) Party didn’t receive any proper notice of appointment of arbitrator
iv) Award deals with dispute not falling under the terms of submission to
arbitration.
Or when court finds out that the subject matter of dispute cannot be settled through
arbitration under the law for time being in force or the arbitral award is contrary to public
policy of India. However, ‘Public Policy’ is not defined in the act. Supreme Court in
Oiland Natural Gas Corporation Ltd. V. SAW Pipes Ltd.,326observed that the expression
‘public policy’ of India’ is not to be given a narrow meaning. The expression is subjected
to narrower wide interpretation depending upon the object and purpose of the legislation.
Hence, the award passed in contrary to public policy is liable to be set aside.

Arbitrator has to operate according to the terms of the arbitration agreement and his
function is limited to such terms of the agreement. In Steel Authority of India v. J.C.
327
Budharaj , it was observed that the arbitrator cannot deliberately overlook the
conditions laid down in the arbitration agreement which are binding on the parties to the
contract. Therefore, if he makes an arbitral award by acting beyond the scope of
agreement, such award is liable to be set aside by invoking the Sec. 34 of the act.
Eventually, arbitrator being a creature of the agreement must operate within the four
walls of the agreement and cannot travel beyond it.328

Also, the court may direct the arbitral tribunal to take certain measures which are
necessary for removal of the grounds for setting aside the arbitral award.329

326AIR 2003SC 2629.

327AIR 1999 SC 3275.
328New India Civil Erectors (P.)Ltd. v. Oil and Natural Gas Corporation, AIR 1997 SC 980.
329Union of India v. J.P. Sharma, AIR 1982 Raj 245.

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 III. Judicial intervention – Criticism
Basic idea behind the mechanism of arbitration is to have an alternative for court
litigation. And such judicial control resulting in interference in the arbitration process by
the courts is defeating the very idea of subjecting dispute to the arbitration in the first
place. Judicial intervention also affects the promise of confidentiality that has been
guaranteed under the arbitration.

The act emphasizes on Party Autonomy and interventions by the courts are baring the
concept of autonomy of the parties to the arbitration.

Legislative intent of the Arbitration & Conciliation act, 1996 is to minimize extreme
judicial intervention by the courts because of which Arbitration Act, 1940 had to bear
severe drawbacks.

Though the objective of the act provides for minimizing the supervisory role of courts in
the arbitration and limiting the intervention of courts in an arbitral process is recognized
by the court330 but reality is quite far from being ideal.

In ONGC v. SAW Pipes331, the court interpreted ‘public policy’ in broad sense and further
equated ‘patent illegality’ with ‘error of law’ and held that any contravention of an Indian
legislation would automatically make the award against public policy.

Jurisdiction of arbitrator was challenged in Rajasthan High Court in Union of India v.

Ratan Singh Gehlot332. It was held that in an unreasoned award unless it is found by
seeing at the arbitral award that an error has been committed by the arbitrator, no
interference can be made. The court observed that this is different from saying that when
a challenge is made to the arbitral award by saying that the arbitrator has acted beyond its
jurisdiction. It has to be determined that there is a difference between disputes as to
adjudication of the arbitrator and the dispute as to in what way jurisdiction should be

330Konkan Railway Corporation v. Mehul Constructions Co., AIR 2007 SCC 201.
331AIR 2003 SCC 705.
332 AIR 1999 Del. 44.

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exercised. In the later case the court has no role to play but in former case where there is
a challenge to the jurisdiction of the arbitrator the courts have reason to interfere. The
court further observed that this is within the ambit of the court to see if the arbitrator has
acted within its jurisdiction or not. To that extent court is required to adjudicate.

Supreme Court in SBP & Co. v. Patel Engineering333 widened the scope of judicial
intervention and held that it is in the power of Supreme Court to adjudicate on issue of
validity of arbitration agreement.

334
The apex court in Wellington Association Ltd. V. Kirit Mehta observed that mere
because the new Act, 1996 permits the Arbitrator to decide the question of the existence
of arbitration agreement, it does not mean that Supreme Court or designated institution
cannot decide the question as to the existence of the arbitration clause. The interpretation
of Sec. 16 done by the petitioner that the ‘existence’ of the arbitration clause can only be
decided by the arbitral tribunal is not acceptable for other reasons also apart from the
result flowing from the use of the word ‘may’ in Sec. 16 of the new Act.
IV. Judicial Intervention – an appraisal
Since most of the arbitration tribunals in India are ad hoc and not institutional, therefore
arbitrators being unqualified and untrained are prone to get biased for one or other
reason. In order to overcome the issue judicial intervention to an extent is necessary.

The court in McDermott International Inc. v. Burn Standards Co. Ltd.335 observed that
intervention of courts in arbitration is recognized in certain circumstances only, like, in
case of fraud or prejudice by the Arbitrators, violation of natural justice, etc. The courts
are not there to right the wrongs of the arbitrator but to put the award aside and enabling
parties to start arbitration again if they desire.

333AIR 2005 SCC 618.

334AIR 2000 SC 1379.
335AIR 2006 SCC 181.

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 V. Conclusion
The basic objective of the act provides that supervisory role of the courts shall be
minimized contemplating minimum judicial intervention possible. However, reality
seems different since the fact cannot be denied that the court has been empowered to
interfere in arbitral proceedings at every stage of proceeding i.e. from the commencement
of arbitral proceeding and after the award has been made. Judicial intervention by the
courts in arbitral proceedings adds notably to the delay in the arbitration process and
ultimately negates the advantages of arbitration.

Judicial intervention of the courts cannot be justified since such judicial interference
defeats the very basic feature of the concept of arbitration. Arbitration is an alternative to
litigation and involvement of courts defeat the same idea. Confidentiality is an element
guaranteed in arbitration however as soon as courts step in, there is not confidentiality as
to the subject matter of the dispute is left. Moreover, arbitration emphasizes on the idea
of autonomy of parties and interference by the court also destroys the principle of party
autonomy. Eventually, judicial intervention by courts crushes all these basic features of
the arbitration.

The aims and objectives of the act could only be met with sufficient accessibility of
trained, qualified arbitrators and establishment of arbitration institutions. There should be
more institutional arbitration than ad hoc arbitration for better and efficient disposal of
disputes to arbitration so that court will not be required to intervene in arbitral process.

There is a very thin line between judicial intervention and judicial assistance that has to
be seen and not be crossed while dealing with a matter in arbitration proceeding.

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Critical Appraisal of Freedom of speech and expression in relation: an Analysis in
Indian Perspective
Author-Shishir Agrawal
Co Author-Mrigank Behl
ABSTRACT

Indian Constitution guarantees freedom of speech and expression under Article 19 in Part
4 of the constitution but it is not absolute there are many threats to the society such as
Trolls, Terrorism, hate speeches and fake news. The law of defamation contemplates the
clash between two fundamental rights: Right to freedom of speech and expression and
right to reputation, the rule related to these laws are designed to mediate between these
two rights this decision close from a theoretical analysis of the right in issues. This
freedom is not being exercised as it was provided means that Freedom of right and
expression has regularly been misused in our Country and in the above backdrop this
research article mainly examines the misuse of freedom of expression in different ways.
Keyword: Constitution, Freedom of speech and expression, Right, Mediate and law.

I. INTRODUCTION

The Freedom of speech and expression is recognized as the prior condition of liberty. It
holds a preferred and important position in the hierarchy of liberty. It is very well said
that freedom of speech is mother of all other liberties. In the present scenario it is widely
accepted that the right to freedom of speech is the essence in the society and it must be
protected always. Liberty is to express ideas, thoughts and opinions without hindrance
and especially without fear of punishment plays a vital role in the development of the
particular society and ultimately for state. It is one of the most important fundamental
liberties guaranteed against state suppression or regulation, and it becomes more
important as it is indispensible for the development of one’s own individually and for the
success of parliamentary to democracy. Freedom of speech and expression is not only
guaranteed by the constitution or statutes of various states but it is also provided by

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various international conventions like universal declarations of human rights, European
convention on human rights and fundamental freedoms, international covenant on civil
and political right etc. This declaration expressly talks about for freedom of speech and
expression

I (a).1 Historical background through world prospective

Universal Declaration of Human Rights (UDHR) includes Freedom of speech and

expression under Article 19 and it is also recognized in international human rights law in
the International Covenant on Civil and Political Rights (ICCPR).The Article 19 in the
ICCPR later amends this by stating that the exercise of these rights carries "special duties
and responsibilities" and may "therefore be subject to certain restrictions" when
necessary” respect of the rights or reputation of others" or "or the protection of national
security or of public order (order public), or of public health or morals". The idea of the
"offense principle" is also used in the justification of speech limitations, describing the
restriction on forms of expression deemed offensive to society, considering factors such
as extent, duration, motives of the speaker, and ease with which it could be avoided. With
the evolution of the digital age, application of the freedom of speech becomes more
controversial as new means of communication and restrictions arise, for example the
Golden Shield Project, an initiative by Chinese government's Ministry of Public Security
that filters potentially unfavorable data from foreign countries. The right to freedom of
expression is also related to the right to a fair trial and court proceeding which may limit
access to the search for information, or determine the opportunity and means in which
freedom of expression is manifested within court proceedings Freedom of speech is
understood to be fundamental in a democracy. The norms on limiting freedom of
expression mean that public debate may not be completely suppressed even in times of
emergency one of the most notable proponents of the link between freedom of speech and
democracy is Alexander Meiklejohn. He has argued that the concept of democracy is that
of self-government by the people.
Legal systems sometimes recognize certain limits on or to the freedom of speech,

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particularly when freedom of speech conflicts with other rights and freedoms, such as in
the cases of libel, slander, pornography, obscenity, fighting words, and intellectual
property. In Europe, blasphemy is a limitation to free speech. Justifications for
limitations to freedom of speech often reference the "harm principle" or the "offense
principle". Limitations to freedom of speech may occur through legal sanction or social
disapprobation, or both. Certain public institutions may also enact policies restricting the
freedom of speech, for example speech codes at state schools. Freedom of information
is an extension of freedom of speech where the medium of expression is the Internet.
Freedom of information may also refer to the right to privacy in the context of the
Internet and information technology. As with the right to freedom of expression, the right
to privacy is a recognized human right and freedom of information acts as an extension to
this right. Freedom of information may also concern censorship in an information
technology context, i.e. the ability to access Web content, without censorship or
restrictions

Stanley v. Georgia, 394 U.S. 557 (1969), was a United States Supreme Court decision
that helped to establish an implied "right to privacy" in U.S. law, in the form of mere
possession of obscene materials.

The Georgia home of Robert Eli Stanley, a suspected and previously

convicted bookmaker, was searched by police with a federal warrant to seize
betting paraphernalia. They found none, but instead seized
three reels of pornographic material from a desk drawer in an upstairs bedroom, and later
charged Mr. Stanley with the possession of obscene materials, a crime under Georgia
law. The conviction was upheld by the Supreme Court of Georgia.

The Supreme Court of the United States, however, per Justice Marshall, unanimously
overturned the earlier decision and invalidated all state laws that forbade the private
possession of materials judged obscene, on the grounds of
the First and Fourteenth Amendments. Justices Stewart, Brennan, and White, contributed

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a joint concurring opinion. Justice Hugo Black also concurred, with a separate opinion
having to do with the Fourth Amendment search and seizure provision. The case also
established an implied right to pornography.

The right to privacy to pornography is not absolute, however. For example, in Osborne v.
Ohio (1990) the Supreme Court upheld a law which criminalized the mere possession of
child pornography.

I(a).2 Birth of freedom of speech and expression in India

Under the colonial era, the liberties of the Indians was at a complete stake. The atrocities
of the British Empire actually curbed the freedom of expression and speech of the Indian
masses. From the Sedition laws imposed by the English in 1870 to Section 295A of the
Hate speech law, the British took every possible way to curb opinion making among
Indians in order to suppress the revolutionary sentiments prevailing the masses to an
independent struggle. The prevention of Seditious Meeting Act, 1907 which prevented
open discussions and formation of Unions was also the driving force behind the very
fundamental freedom of speech and expression being guaranteed to the citizens which
they were earlier deprived of. The framers and the architects of the Constitution of India
have also borrowed the idea of freedom of speech from the democratic ideas laid in the
American Constitution. Freedom of speech and expression is a significant feature of the
American Constitution.

I (b) Comparison with other countries

Here the main objective is to know about the nature right to freedom of speech as written
down in the constitution of India, the US and North Korea.

From Indian constitution perspective

The preamble to the constitution of our country was adopted on 26th November 1949 and
one of the important words in it is ―liberty which includes freedom of thought, belief,
expression, speech and worship. The aspect of liberty which is free speech is enshrined in

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article 19 of the Indian constitution. In order to understand the genesis of this we can
focus on the constituent assembly debates. It was said that freedom of speech is the very
life of civil liberties, the means by which voice of minorities can be heard and a tool to
prevent injustice. After the objective resolution was adopted, advisory committee was
constituted and one of the subcommittees was on fundamental rights, which was headed
by Acharya Kriplani. BN Rau prepared a draft report based on the recommendations of
the subcommittee. The report contained two types of rights- justifiable and non-justifiable
rights. Freedom of speech and expression belonged to the former category. This report
was further sent to the advisory committee and the constituent assembly. There were
deliberations on certain terms like morality ‘which was used in the draft section and
whether freedom of press must be included as a part of the bill. But, Dr BR Ambedkar
believed that freedom of press is implicit in the section and the people in the press were
individual citizens who were entitled to fundamental rights. Hence, freedom of press did
not require a special mention.
After renumbering and rearranging the sections of the bill, freedom of speech and
expression was included in article 19(1). Thereafter, certain amendments were made to
the article13. The first amendment in 1951 removed the words slander and libel that was
included previously. the sixteenth amendment act in 1963 added sovereignty and integrity
of India to clause (2) of article 19.
At present, United States of America Like India, the preamble to the constitution of the
US also includes the words blessing of liberty on ourselves‘. The constitution of the
country was signed in 1787 in Philadelphia which was presided over by George
Washington. The most significant developments to the constitution came only in 1791
when the Bill of Rights was passed by the parliament. It is this set of ten amendments to
the constitution that grants human rights and freedom to the citizens of United States
explicitly. The first amendment talks about right to speech and expression.

North Korea

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The constitution of this country was enacted in 1972 and the amended constitution was
adopted in September 1998, Part 5 of the constitution, deals with fundamental rights and
duties of citizens. Article 67 talks about freedom of speech17. It reads as Citizens are
guaranteed freedom of speech, of the press, of assembly, demonstration and association.
The State shall guarantee conditions for the free activity of democratic political parties
and social organizations.‖ if the latter part of the sentence is observed here, the state is
given unrestricted power to set the conditions for free speech and other such activities.

I (c) Events in Constitutional Assembly Debate

The Constituent Assembly of India debated freedom of speech and expression (Article
13(1) of the Draft Constitution, 1948) on 1 December 1948, 2 December 1948 and 17
October 1949. The Draft Article read. Most members of the Constituent Assembly
welcomed the inclusion of the right However; conflict emerged around the proviso in the
Article that placed restrictions on the right: while some members opposed the mention of
restrictions on the right, others supported it. Members who opposed the restrictions
argued that

1. There was no point in having a right to freedom of speech and expression in the
presence of restrictions.
2. Putting restrictions on the freedom of speech and expression was a British practice.
Members who supported the restrictions argued that
3. Restrictions are fine as the government now is not a colonial one.
4. Nowhere in the world is freedom of speech and expression absolute.
5. Law and order and security of the state cannot be compromised. In
the end, the Constituent Assembly voted on the Article and included a right to freedom
of speech and expression in the Constitution of India, 1950 with restrictions similar to
the ones mentioned in the Draft Constitution, 1948. Sardar Bhopinder Singh Man (East
Punjab: Sikh): *[Mr. Vice-President, I regard freedom of speech and expression as the
very life of civil liberty, and I regard it as fundamental. For the

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public in general, and for the minor ities in particular, I attach great importance to
association and to free speech. It is through them that we can make our voice felt by
the Government, and can stop the injustice that might be done to us. For attaining these
rights the country had to make so many struggles, and after a grim battle succeeded in
getting these rights recognized. But now, when the time for their enforcement has
come, the Government feels hesitant; what was deemed as undesirable then is now
being paraded as desirable. What is being given by one hand is being taken away by
the other. Every clause is being hemmed in by so many provisos. To my
mind, suppression of lawful and peaceful opposition means heading towards fascism.]
Seth Govind Das (C. P. and Berar: General): *[Mr. Vice-President, article 13 is the
most important of all the articles concerning Fundamental Rights. The rights that have
been granted to us by these articles are all very important. Yesterday Shri Damodar
Swarup Seth and Shri K.T.Shah moved their amendments in this House. The purpose
of the amendments is that the rights which have been given to us with one hand are
being taken away by the other hand. This may be true to some extent but if we
consider the present national and international situation as also the fact that we have
achieved freedom only recently and our government is in its infancy, we shall have to
admit that it was necessary for the government to retain the rights it has done after
granting these fundamental rights. We see that what is happened in our neighboring
country, Burma. We should also keep in view what is happening in other great leader
countries of Asia I mean that war-torn China. In view of what is happening our
neighboring countries and of the situation in our own country, we should consider how
compulsory it is that the Government should continue to have these powers.
I would have myself preferred that these rights were granted to our people without the
restrictions that have been imposed. But the conditions in our country do not permit
this being done. I deem it necessary to submit my views in respect to some of the
rights. I find that the first sub-clause refers to freedom of speech and expression.
Mr. Vice-President: We shall now take up article 13 for consideration. Shri Damodar
SwarupSeth (United Provinces: General): Sir, I beg to move:

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"That for article 13, the following be substituted:

'13. Subject to public order or morality the citizens are guaranteed—

(a) Freedom of speech and expression;

(b) Freedom of the press;
(c) Freedom to form association or unions;
(d) Freedom to assemble peaceably and without arms;
(e) Secrecy of postal, telegraphic and telephonic communications.
13- A. All citizens of the Republic shall enjoy freedom of movement throughout the
whole of the Republic. Every citizen shall have the right to sojourn and settle in anyplace
he pleases. Restrictions may, however, be imposed by or under a Federal Law for the
protection of aboriginal tribes and backward classes and the preservation of public safety
and peace.' "Sir, article 13, as at present worded, appears to have been clumsily drafted. It
makes one significant omission and that is about the freedom of the press. I think, Sir, it
will be argued that the freedom is implicit in clause (a), that is, in the freedom of speech
and expression. But, Sir, I submit that the present is the age of the Press and the Press is
getting more and more powerful.

II Right to Freedom of Speech and Expression and its Judicial Interpretations

[Freedom of speech and expression is regarded as the first situation of liberty. The right
to express freely by word of printing, mouth, pictures, writting.]

II (a) Freedom of the press

In the USA, the First Amendment specifically protects a free press. The view developed
by the US Supreme Court is that freedom of the press includes more than merely serving
as a “neutral conduit of information between the people and their elected leader or as a
neutral form of debate.” The prime purpose of the free press guarantee is regarded as
creating a fourth institution outside the government as an additional check on the three

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official branches executive, legislative and the judiciary336. It is primary function of the
press to provide comprehensive and objective information on all aspects of the country’s
social, economic and political life. The press serves as a powerful antidote to any abuse
of power by government officials and as a means for keeping the elected officials
responsible to the people whom they were elected to serve.

The democratic credentials of a state are judged today by the extent of the freedom press
enjoys is that state. Douglas J, of the US Supreme Court has observed that “acceptance
by Government of a dissident press is a measure of the maturity of the nation.” 337

The press has no special right which are not to be given or which are not be executed by
the citizens in his individually capacity. The Editor of press or the Manger is merely
executing the rights of the expression, and therefore no special mention is necessary for
the freedom of press.338

In Case of Sakal Paper v. Union of India339 The Supreme Court ruled it invalid for its
purpose was to reduce circulation of some newspapers by making their price
unattractively high for their reader. Reduction in the area for advertisements would
decrease revenues forcing the newspaper to raise their price which was also bound to
affect distribution. This directly affected the freedom of speech and expression because
inherent in this freedom is the right to publish and distribute the publication.

In Case of Bennett Coleman & Company v. Union of India340 The Supreme Court
declared the policy unconstitutional. While the government could evolve a policy of
allotting newsprint on a fair and equitable basis, keeping in view the interests of small,
medium and big newspaper, the government could not, in the grab of regulating
distribution of newsprint, control the growth and circulation of newspaper. The court said
the effect and consequence of the impugned policy upon the newspapers is directly

336 New York Times v. Sullivan, 376 US 254; New York Times Company v. United States, 403 US 713 (1971)
337 Terminiellov. Chicago, 337 US 1
338 Dr. Ambedkar speech in Constituent Assembly Debates
339 AIR1962 SC 305 : (1962) 3 SCR 842
340AIR 1973 SC 106: (1972) 2 SCC 788

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controlling the growth and circulation of newspapers. The Court maintained that the
freedom of the press embodies the right of the people to speak and express.

II (b) Freedom of silence

The right to speech indirectly the freedom of silence it implied freedom, not to listen, and
not to be forced to listen. The right comprehends the freedom to be free from what one
desires to be free from. A loudspeaker forces a person to hear what he wishes not to hear.
The use of a loudspeaker may be incidental to the executing of the right but, its use is not
matter of right, or part of the rights guaranteed by Article 19(1)

In Case of Bijoe Emmanuel v. State of Kerala341The Supreme Court held that no

person could be compelled to sing National Anthem if he has genuine conscientious
objections based on his religious belief. The Kerala High Court upheld their expulsion
from the school on the ground that it was their fundamental duty to sing the National
Anthem and that they committed an offence under the Prevention of Insults to National
Honours Act, 1971. The Supreme Court, however, reversed the decision of the High
Court and observed that they did not commit any offence. It was held that the expulsion
of the children from that school was a violation of their fundamental right under Article
19(1)(a) which also included freedom of silence.

In Re: Noise Pollution - Implementation of the Laws for restricting use of

loudspeakers and high volume producing sound systems342 Constitution of India--
Articles 19 (1) (a), 21--Noise pollution --Aural aggression --Increase in volume of speech
with assistance of artificial devices so as to compulsorily expose unwilling persons to
hear noise raised to unpleasant or obnoxious levels, is violation of the rights to peaceful,
comfortable and pollution free life--Right to speech implies right to silence, not to listen
and not to be forced to listen. Those who make noise often take shelter behind Article 19
(1) A pleading freedom of speech and right to expression. Undoubtedly, the freedom of

341 AIR 1987 SC 748

342 AIR 2005 SC 3136

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speech and right to expression are fundamental rights but the rights are not absolute.
Nobody can claim a fundamental right to create noise by amplifying the sound of his
speech with the help of loudspeakers. While one has a right to speech, others have a right
to listen or decline to listen. Nobody can be compelled to listen and nobody can claim
that he has a right to make his voice trespass into the ears or mind of others. Nobody can
indulge into aural aggression. If anyone increases his volume of speech and that too with
the assistance of artificial devices so as to compulsorily expose unwilling persons to hear
a noise rose to unpleasant or obnoxious levels then the person speaking is violating the
right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21.
Article 19 (1) A cannot be pressed into service for defeating the fundamental right
guaranteed by Article 21. Free speech is not to be treated as a promise to everyone with
opinions and beliefs, to gather at any place and at any time and express their views in any
manner. The main prayer was for a direction to the authorities to rigorously enforce the
existing, laws on noise pollution in C.A. No. 3735 of 2005. The vires of the Central
Government amendment to the Noise Pollution Control and Regulation Rules, 1999 were
challenged as the State Governments were empowered to permit the use of loudspeakers
during night hours (between 10 p.m. and 12 p.m.). The High Court of Kerala dismissed
the petition. Feeling aggrieved the petition was filed by special leave.
Disposing the matter by giving very specific directions and laying down guidelines for
the authority the court.

II (c) Right to Receive Information

In Case of M.C. Mehta v. Union of India343“We are in a democratic polity where

dissemination of Information is the foundation of the system. Keeping the citizen
informed is an obligation of the Government it is equally the responsibility of the society
to adequately educate every component of it so that the social level is kept up”.

III Reasonable restrictions of freedom of speech and expression

343 AIR 1992 SCC 382

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Article 19 imposes reasonable restrictions on freedom of speech and expression under its
clause (2).

[Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the state from making any law, in so far as such imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in the interests of the security
of the state, friendly relations with foreign states, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence.]
III(a) Sovereignty and integrity of India

it was added by 16th Amendment Act, 1963 of Constitution of India and the objective was
to overcome cries for secession and the like from organizations such as the Dravida
Kazhagam in the South and the Plebiscite Front in Kashmir.

III (b) Public Order

This was inserted by 1st Amendment Act,1951 and the “Public order” is an expression of
wide connotation and signifies “that state of tranquility which prevail among the
members of political society as a result of integral regulations enforced by the
government which they have established .” in Romesh Thapar v. State of Madras
in this case, Constitutionality of Section 9 (1-A) of the Madaras Maintenance of Public
order Act was challenged and The Section allowed the state government, for the purpose
of securing public safety and maintaining public order, to control and regulate the entry
and circulation of any set of documents (primarily, newspaper) in the state.
Supreme Court declared this Section as Unconstitutional.

III (c) Decency of Morality

It is related to the Section 292 to 294 of the Indian penal code.

R.v. Hickin, -“ the test of obscenity is this, whether the tendency of the matter charged as
obscene is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands the a publications of this sort may fall. It is quite certain

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that it would suggest to minds, of the young either sex, or even to persons of more
advanced years, thoughts as a most impure and libidinous character.”

Ranjit D. Udeshi v. state of Maharashtra also accepted the tests that were laid down in
R.v. Hicklin case.

Aveek Sarkar v. State of west Bengal, Supreme Court said that Hicklin test is not the
correct test to be applied to determine “what is obscenity” and suggested to apply the
“community standard test” and message against the racial discrimination that was
prevalent in germany.

III (d) Contempt of court

“Faith in the administration of justice is one of the pillars through which democratic
institutions functions and sustains. In the free marketplace of ideas criticisms about the
judicial system or judges should be welcomed, so long as such criticisms do not impair or
hamper the administration of justice”.

It was observed by Hidayatullah, C.J speaking for the court that the law punishes not
only acts which do in fact interfere with the courts and administration of justice but also
those which have that tendency, that is to say, are likely to produce a particular result.

III (e) Defamation

In Subramanian Swamy v. Union of India344, In this case validity of Section of 499 and
500 was challenged that penalizes defamation. Hon’ble Supreme Court upheld the
validity of criminal defamation law.

“Reputations cannot be allowed to be sullied on the anvils of free speech as free speech is
not is absolute. Right to Life and Freedom of Speech both have to be mutually
respected”.

III (f) Incitement of an offence

344 AIR 2016 7 SCC 221

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It was inserted by 1st Amendment Act, 1951 Ram Manohar Lohia v. Superintendent,
Central Jail345“The security of a State is endangered only by a serious and aggravated
form of a public disorder as distinguished from minor breaches of the peace which
endanger only public order. Incitement to a non-payment of irrigation dues not such a
serious and aggravated form of public disorder as is likely to endanger the security of a
state”.

IV Right to Reputation

Reputation is an important part of one’s life. The right to life includes the right to
reputation and it is one of the finer graces of human civilization which make life worth
living. The Supreme Court referring to an American decision

In Case of State of Maharashtra v. Public Concern for Governance Trust346Held that

a good reputation was an element of personal security and was protected by the
constitution, equally with the right to be enjoyment of life, liberty and property.

IN Case of State of Bihar v. Lal Krishna Advani347Two member of a commission of

inquiry appointed to inquire into the communal report, which impinged upon the reputation
of the respondent as a public man, without affording him an opportunity of being heard.
Deprecating the action of the commission, as affecting his right to life and liberty, the Apex
Court said that the respondent could move the Court for Deletion of such remarks.
Disturbances in Bhagalpur District on 24th October, 1989, made some remarks in their.

V Need to protect freedom of speech

Freedom of speech offers human being to express his feelings to other, but this is not the
only reason; purpose to protect the freedom of speech. There could be more reasons to
protect these essential liberties. There are four important justifications for freedom of
speech –
345 AIR 1960 SC 633
346 AIR 2007 SC 777
347 AIR 2003 SC 3357

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1) for the discovery of truth by open discussion - According to it, if restrictions on speech
are tolerated; society prevents the ascertainment and publication of accurate facts and
valuable opinion. That is to say, it assists in the discovery of truth.
2) Free speech as an aspect of self- fulfillment and development – freedom of speech is
an integral aspect of each individual’s right to self-development and self-fulfillment.
Restriction on what we are allowed to say and write or to hear and read will hamper
our personality and its growth. It helps an individual to attain self-fulfillment.
3) For expressing belief and political attitudes - freedom of speech provides opportunity
to express one’s belief and show political attitudes. It ultimately results in the welfare
of the society and state. Thus, freedom of speech provides a mechanism by which it
would be possible to establish a reasonable balance between stability and social
change.
4) For active participation in democracy – democracy is most important feature of today’s
world. Freedom of speech is there to protect the right of all citizens to understand
political issues so that they can participate in smooth working of democracy. That is to
say, freedom of speech strengthens the capacity of an individual in participating in
decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of
freedom of speech is important for the discovery of truth by open discussion, for self-
fulfillment and development, for expressing belief and political attitudes, and for active
participation in democracy. The present study is intended to present the provisions of the
American and Indian Constitution which recognize the freedom of speech and
expression, the basic fundamental rights of human being. It is also to be examined that
what is judicial trend in interpreting the freedom of speech and expression provisions.
The study also covers the comparison between the approaches of both countries as far as
freedom of speech is concerned.

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VI CONCLUSION

Freedom of speech and expression should be absolute means it should not be influenced
by individuals or state as it is an important fundamental right.
Fundamental rights demand equality code for an individual and the equality code is the
foremost basic structure of Indian constitution. Indian constitution is a well designed
manuscript that has its own unique features and one of them is freedom of speech and
expression. Freedom of speech and expression is based on the concept of liberty and
liberty has to be provided by the state to each and every individual of the society.
But the problem is that peoples are exploiting others freedom of speech and expression
for their own interests and the state needs to take initiative on this as one has the right to
exercise his freedom of speech and expression means if one has the right then other has a
duty towards it. For removing these things from our society we need proper laws and
that means providing freedom of speech and expression is not just sufficient, the
constitutional makers imposed a restriction on it under Article 19(2) but is it satisfactory
the law maker’s i.e. parliament of our country needs to think on it as we require adequate
provision on it. The position of Fundamental right is different in different countries and if
particularly Freedom of speech and expression is taken into consideration it is also
different so, it can’t be compared as every society is going through different
circumstances so, as per the position of society we require laws to be implemented.
Freedom of speech and expression has to be exercised in a natural manner as then only its
principals can be executed under the supervision of certain restrictions.

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 PROTECTION OF ENVIRONMENT THROUGH BIO-DIVERSITY ACT

“Nature has enough to satisfy everyone’s need but

Has not enough to satisfy every man’s greed”.

-N.ILAKKIYA348

ABSTRACT

Environment, the most important source of every human being to live.When

this Environment faces any adverse effect then some measure has to be taken
from our side. We are now facing serious problems and we are losing a
peaceful Environment to live.

This Essay specifies the protection of Environment through Bio-

diversity Act. When we are not ready to protect the Environment we are living, then
it leads to various threats which affect us and all other living creature present in the
Earth. By this there is a greater lead to many health effects; hence we have to
control these effects to a greater extent. It is the duty of Government as well as
human to protect our Environment i.e. the surrounding we are living. There are also
many statutes enacted by our Government but they are ineffective to an extent. The
laziness on our part of Government leads to failure in protecting our nature. Hence
we should direct our Government and other citizens also should indulge themselves
to protect the nature. Thus, “it is our duty to protect our nature” and to protect it
from any harmful effects.

Keywords: Environment, Biodiversity.

348 N.Ilakkiya,student, Tamil Nadu Dr.Ambedkar Law University (School Of Excellence in Law-SOEL) Chennai, email-
id:ilakkiyasree1997@gmail.com, phone number: 9566294732.

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INTRODUCTION:-

Nature provides the most healthy and hygienic Environment349for the survival of
the mankind, but now Environment has been changed by mankind for their
selfish ends by adding concrete, charcoal, plastics, toxic chemicals, hazardous
waste, and many more objects and devices. These man-made additions have
unbalanced the eco-system and are primarily responsible for the Environmental
Pollution350and subsequent health hazards.

The word Environment refers to or concerned with the impact of human activities
on the Natural Environment.351 It is also defined as the complex of physical,
chemical, and biotic factors (such as climate, soil, and living things) that act upon
352
an ecological community and ultimately determine its form and survival.
Human beings are dependent on the Environment353354for their basic needs.

To meet all the needs of a human, they are using the resources at a rapid rate
which leads to long-term adverse effect. These adverse effects become
Environmental issues of the entire surrounding in which the human beings,
animals and living creatures live. Hence when there is a negative cause to the
surrounding we are living then such an effect leads to various consequences and
the persons doing such activities like destroying the Environment due to various

349The Natural Environment comprises of the sum total of all conditions and influences which affect the life and development of
an organism. Accordingly, it includes natural resources like water, air, soil, and all living organisms
350Environmental pollution is a sudden or slow contamination of Environment by human activities to such an extent that it may
be presently or potentially harmful to the human life as well as to other living forms existing in the total ecological community.
In the Environmental statute, “Environmental pollution “means the presence in the Environment of any Environmental pollutant.
It also defines the “Environmental pollutant” as any solid, liquid, gaseous substances present in such concentration as maybe, or
tends to be, injurious to the Environment. Section 2(b) and section 2(c) of the Environmental (protection) Act, 1986.
351https://www.thefreedictionary.com/Environmental

352https://www.merriam-webster.com/dictionary/Environment

353According to the Environmental Protection Act, 1986, ‘Environment’ is defined under section 2 (a) - the Environmental
protection Act, 1986 (India)- the term ‘Environment’ includes water, air and land and the interrelationship which exists among
and between water, air, and land, and human beings, other living creature, plants micro-organism, and property;

354Section 2(d) - the National Environmental Tribunal Act, 1992 also defines the term ‘Environment’.

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modes then he/she will also deserve punishment from Nature itself. Even the
factors like industrialization, urbanization, and over-exploitation of resources, the
disruption of natural eco-system as well as the destruction of a multitude of
animal and plant species for economic reasons are the major factors that have
contributed to Environmental deterioration.355

When it comes to Environment then it also implies to the

biodiversity. Bio-diversity356 is the condition where different species of plants
and animals, live together and depend on each other in the same habitat. For
example, planktons- small crustacean- fish- Man.

Thus the main aim of the Government is to regulate the policies and give
direction to protect the Environment and also to avoid bio-piracy.

BIOLOGICAL DIVERSITY ACT- MAIN OBJECTIVES AND SALIENT

FEATURES:

▪ It was pursuant to the Convention on Biological Diversity; hence

India enacted the Biological Diversity Act, 2002 and also notified
Biological Diversity Rules in 2004, to give effect to the provisions of
the Convention. The Act comes under the Ministry of Environment,
Forest and Climate change.
▪ The National Biodiversity Authority (NBA)357 was set up in October
2003.

355Shri Sachidanad Pandey v.theState of Bengal, AIR 1987 SC 1109 at 1114.

356“BIO-DIVERSITY” is defined under section 2(b) of the Bio-diversity Act, 2002; section 2(b)- According to the Act “Bio-
diversity” means the variability among living organisms from all sources and the ecological complexes of which they are part,
and includes diversity within species or between species and of ecosystems;

357
Section 8(4) of the Bio-diversity Act,2002- the NBA consists of a Chairperson, five non-official and
ten ex-officio members to be appointed by the Central Government to represent various Ministries.

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 ▪ The global treaty protects the plant genetic resources of microbes,
plants, animals. It recognizes that benefits arising out of the use of a
community’s traditional knowledge should be shared with the people
everyone in the world.
▪ The Act is one of the main Acts in the Indian legal main-stay against
bio-piracy.
▪ Mission of the NBA358 is to ensure that the Bio-diversity Act, 2002
and the Bio-diversity Rules, 2004 is implemented effectively for the
conservation of biodiversity, sustainable use of its components and
fair and equitable sharing of benefits arising out of the utilization of
genetic resources in India’s rich biodiversity and associated
knowledge with people’s participation, ensuring the process benefit
sharing for well being of present and future generations.
▪ Apart from the commissions appointed by the Central and State
Government regarding the implementation of the bio-diversity Act,
there are also other institutions called Biodiversity Management
Committees set up by the self-Governments in the respective area.

LOSS OF BIODIVERSITY:

The depletion of flora and fauna has been generally grouped into two:

(i) Natural depletion includes the floods, earthquakes landslides,

natural competition between species, lack of pollination and
diseases.
(ii) But the depletion made by man is more dangerous than the natural
depletion. The Man-made threat to bio-diversity is deliberate

358The NBA will also regulate access to the diverse plant and animal genetic resources.

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 destruction of the eco-system, especially in the disappearance of
habitats, in the wake of development activities like
industrialization, urbanization, mining, construction of dams,
deforestation, grazing, over-exploitation, etc.

The bio-diversity Act is propagated for the concept- benefit

sharing. The concept is considered as a benefit until when it does not
affect the eco-system. The materials were taken from a particular place;
then researched; the researchers produce a new variety of seeds; then
given to multi-national companies and those companies sell in the market
at high rates. It is to be noted that agricultural methods are not
patentable359 because it should be provided for all the people living in the
world and not alone the researcher of the seed or the company or the rich
to be benefitted.

The Native habitat of those places, where the material for

research is taken is to be given a greater amount of compensation since
these people are depleting their place of living. But this is not happening
so. The persons who are taking the material for research purposes are
looting it in larger amounts without getting the permission of the
Government. Thus there should always be a check for those persons. Even
when the Government came to know about this they are being corrupted
and then they become dumb. It should be noted that money is the only
necessary thing to lead a life. It is just a part of our living to meet our

359 Section 3(h) of the Patents Act, 1970- a method of agriculture and horticulture are not patentable. Tracing history, we find that
the Indian policy was based on the concept that plant varieties and seeds were the common heritage of mankind. Though there
was an increase in the rate of growth in agriculture, the state could not meet the rising demand for food. The need for attaining
self-sufficiency in food led to the pursuit of Green Revolution. During the colonial period, food production was on a decline.
Land reforms had a great impact on the agrarian structure. The rise of modern technology culminated in agricultural research.
This formed the foundation of technological farming. The vision of our forefathers was towards the alleviation of poverty. This
could be obtained only by excluding methods of agriculture from protection. The Large population of the country derives their
livelihood from agriculture. Agriculture is the backbone of India’s economy. Small and marginal farmers predominate
agriculture. The main aim of excluding methods of agriculture from protection was to the alleviate poverty and to ensure that
there would be self-sufficiency in the food sector.

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 360
necessary things. Only food, agriculture, and Environment are very
important for ages. Now, these things are being depleted to a larger extent.
One thing all must remember is the corrupted money can make us happy
only for a particular time, and the things we are depleting now is not only
for us, it’s for our future generation. The corrupted persons should
remember that even their generation have to live in this same land and to
eat the products produced in the land and hence they should not give
permission for these soughs.

It should also be noted that the things cultivated in the land

which is termed to be “organic” are purely not organic. They are not
produced in an organic manner. The multi-national companies are selling
the seeds in-order to cultivate their seeds in our poor farmer lands. Are
their seeds really organic in nature? The answer is definitely no. Now in
India the farmers are not even able to buy the seeds for cultivation. They
have to depend on the private companies and those companies are selling
in higher rates. The farmers are not able to meet these requirements. Hence
the Government should undertake this and provide the seeds at a lower
cost for the farmers. This indeed is welfare to our society.

Thus the Government on their part should do all these

things before giving the approval to benefit sharing. The Government
should also to ensure that there should not be bio-piracy. The farmers are
also to be protected from various things. The farmers are to be given more
consideration since nowadays there are only a few farmers left for doing
farming. The next generation is not taught to do farming instead they are
imbibed that education alone is everything and they won’t know what is
farming. So our next generation might or may not excel in farming and
hence the present farmers are to be protected from various issues.

360Necessary things- food, shelter, water, clothes.

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CONCLUSION:

“Ecology is a sine qua non to the survival of human race”. Man’s survival on
his dear planetary home depends on his harmony with nature.

But unfortunately in the yearning for progress and

development we have undergone rapid industrialisation, urbanisation,
explosion of population, over-exploitation of resources, indiscrimination
mining, depletion of traditional source of energy, pollution of water, air, and
soil with chemicals, killing of birds and animals for economic and other
reasons and ignored completely the impact it would have on the environment
and ecology of the planet. Men have to do anything by having concern for the
future generation.

Let we people not flatter ourselves overmuch on account

of our human victories over nature. For each victory, it is true in the first place
brings about the results we expected, but in the second and third places, it was
quite different. We are in the second stage and fast moving towards third,
taking, us to devastatingly dangerous environmental disaster. We also have
already initiated a process of digging graves for ourselves. We must stop our
homicidal attitude at once for our own survival.

Thus seeing all the above effects, it can be clearly viewed that it has both
effects on the environment as well as on the humans. It is relatively important
that both the environment and humans are very important. It can’t be simply
left when one is affected. Both the elements should not be getting affected.
One cannot be without another. Thus before doing anything, we should be on a
concern that it should not lead to any kind of pollution.

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 Thus India is a country, where agriculture is the backbone of the country.
Without agriculture, no person can eat food what he wants today. That
agriculture is in crisis now because of the use of chemicals like these
pesticides in a higher amount. The pesticides are causing this depletion to the
agriculture in-turn to the environment. Thus instead of using these chemicals
for the growth of the crops, we should now opt for the organic method of
growing the crops because this uplifts the texture of the soil to a very greater
extent.

Hence the Government should ensure all these things and enact and
implement those enactments for the betterment of the society. Nature is
everything and the person protecting are the saviours of the society.
Agriculture is very important to be protected for both present and future
generations. It is our duty to protect our Environment for the future generation.
We must hand-over the Environment to them and hence we hold a greater
responsibility. Thus bio-diversity Act to be modified more and to take all the
above concerns in depth and in a positive manner. They are also participating
to protect nature. Hence the NGO’s are also striving hard to protect our
Environment.

“Man is both creator and moulders of his environment, which gives him
physical sustenance and affords him the opportunity for intellectual, moral,
social and spiritual growth. In the long and tortuous evolution of the human
race on this planet, a stage has reached when through the rapid acceleration of
science and technology man has acquired the power to transform his
environment in countless ways and on an unprecedented scale. Both aspects of
man’s environment, the natural and manmade are essential to his well being
and to the enjoyment of basic human rights even the right to life itself”.361

361The UN conference on human environment, held in Stockholm in June 1972.

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 Thus the man always should remember that he is nothing in front to
nature because if we deplete the nature then, in next few seconds, the nature
will show her power towards us. She is many more times powerful than us.
Hence it is our duty to protect her. When we fail to protect her, it’s not only a
failure for her it’s a failure for the mankind too, we humans depend her a lot
for many times and for many things. Hence it now a time to show her our
sincere gratitude towards her by way of protecting her.

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Srishti Sahu

Student , B.A.LLB.(Hons.) (Semester – VIII)

Email Id:- srishtisahu.hnlu@gmail.com

Contact No. :- 9770995289 / 8839034452

Hidayatullah National Law University , Atal Nagar, Raipur (C.G.)

Abstract

The Tribal People in the Scheduled Areas are discriminated and encounters problems
relating to their position and status. The tribes constitute a major portion of India’s
population which is approximately 8.2% of the total population (according to Census,
2011). In 1950 Constitution of India has provided self- governance in tribal majority areas.
Later in 1999 National Policy of Tribal was drafted to fulfil the required needs of tribal
populations, including Scheduled Tribes. The paper elucidates the struggle by the tribes
and rights of the tribes provided through various judgements of the courts and also by
various Municipal Laws and International Instruments. The focal point of this paper
examines the application of the two major Legislations enacted by the Parliament of India
,that are Panchayat (Extension to Scheduled Areas) Act, 1996 confronting different powers
to Gram Sabha and secondly the Forest Rights Act , 2005 stating provisions and giving
more transparency to it. Moreover rights provided in the Constitution of India under
Article 14, 15 ,19 , 21, 244 and 245 and also through the Fifth and Sixth Schedule under
the Part IX and Part IX-A of the Constitution of India is being explained. The importance

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of tribal rights has been perceived on the International platform through various
instruments like The United Nations Permanent Forum on Indigenous Issues (UNPFII) and
The United Nations Declaration on the Rights of Indigenous People (UNDRIP) stating
special measures for protection of tribal rights. The final analysis of the paper talks about
the lacunae in the implementation of various instruments available for the protection of
tribal rights.

Keywords :- Tribes , Scheduled Areas , Panchayat (Extension to Scheduled Areas) Act,

1996, Forest Rights Act, 2006, The United Nations Declaration on the Rights of
Indigenous People, United Nations Permanent Forum on Indigenous Issues.

Introduction

India being the land of Love and Diversity has a wide range of population living in the
country who observe a wide range of various cultural practices , customs , way of living
and Tribes occupy a unique and special position in this regard . Tribe is one of the most
important feature of India’s diversity. Tribal are also known as ‘Adivasi’ majorly in South
Asia. India’s population includes nearly one hundred million of tribal people which
constitutes to about 8.2% of the total population of the Country . The tribal population in
India is mainly settled in two regions that are country’s North- Eastern border with China
and Burma, and the highlands and plains of its Central and Southern regions. The Central
and Southern regions of the country are home for about 80 % of the tribes, which differ
from the North –Eastern tribes in ethnicity and in having experienced “greater intrusion of
the Indian mainstream and of the Pan – Indian model of the state , society , economy and
culture” . There are also differences in the extent to which the tribes interact with the non-
tribe communities. Despite some regional variation the tribes share many practices and
traits, including living “in relative geographical isolation , and being relatively more
homogeny and more self-contained that the non- tribal social groups.” Consequently
several problems prevail in the relation of the tribes with the non-tribes , on one hand , and
the tribes and the State, on the other.

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India has struggled to maintain the balance in practice. The most common problems relate
to recognizing that the tribes have a right to autonomy and not merely decentralized
administration ; that they have right to seek justice within their own traditional or
customary laws; and they have a right to own and exploit the natural resources in their
habitat. The conventional and largely accepted solution to this problem is to balance the
dichotomy between assimilation of tribal peoples and their independent identity, and
delineate the contours of a national policy that would allow them to preserve their way of
life without compromising with development . These issues are addressed in the
Constitution of India and through the tribal people specific statutes , but there are
considerable differences in the way the North-Eastern and peninsular tribes are treated in
the Indian legal system. This distinction in the extent law is based on the two criteria that
had guided the colonial British Indian government in determining the degree of self –
government that the tribes would have exercise :-

a) whether the tribe had the ability to manage its own affairs;

b) whether the tribal region in question had significant non-tribal population.

To solve these problems and make this arrangements has been codified in the
Constitution’s Fifth Schedules for the tribes in the Peninsular region of the country and the
Sixth Schedule for the North-Eastern tribes . The separate systems were approved by the
Constituent Assembly formed at the time of independence for drafting the Constitution of
India after receiving recommendations that the distinct ‘community structures ’ and
‘attitudes’ of the tribes in the two regions could not be treated in a common law. Though
an overwhelming majority of India’s tribal people inhabit the Fifth Schedule Areas, they
were only recently introduced to decentralization when the Indian Parliament legislated the
Panchayat (Extension to Scheduled Areas) Act, 1996 (or PESA) exclusively for these
areas.

Federalism and Tribal Governance in India

The Constitution of India establishes a federal structure in which legislative authority is

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divided between the central government (“The Union”) on one hand and the State
legislatures and governments on the other . In 1992 the Indian Parliament decided to
distribute powers and decentralize the state executive and legislative authority by adding
two entirely new parts to the Constitution i.e. Part IX and Part IX –A . Part IX of the
Constitution required the states to establish local government bodies i.e. Panchayats in the
rural areas , while Part IX-A mandated the municipalities in urban areas. The intention of
the Parliament by the introduction of these two parts was “to enshrine in the Constitution
certain basic and essential features ” of such local bodies “to impart certainty , continuity
and strength to them.” Part IX broadly lays down the composition and jurisdiction of the
Local Governments , the states , as mentioned earlier , have a significant role to play in this
scheme . Almost all the provisions in Part IX require implementation through state law.
With the Introduction of PESA in 1996, however, Part IX was extended to the Fifth
Schedule tribal areas. Thereafter , states that had jurisdiction over these areas were to some
how foster tribal self- government , even though the Fifth Schedule was not amended and
continued to perpetuate state government control in tribal affairs. The resultant legal
scheme in place today thus appears inherently unworkable.

Constitutional Provisions

According to Article 342 of the Constitution of India, the President , after consulting with
the State Governments, has promulgated nine orders so far. This promulgation has clearly
specified the Scheduled Tribes in the relation to the concerned State and Union Territories.
The Fifth and Sixth Schedules under Article 244 of Indian Constitution in 1950 provided
for self- governance in particular tribal majority areas. The then the Governmental
administration issued a draft of National Policy of Tribals in 1999 to meet the
developmental needs of the tribal populations, including Scheduled Tribes. Prominence
was laid on education , forestry , health care , land rights ,language policy and
resettlement. The Government had established a Ministry of Tribal Affairs. It was designed
out the States of Chhattisgarh and Jharkhand in acknowledgement of tribal sentiments.
Subsequently, the Controversial draft of Scheduled Tribes (Recognition of Forest Rights)

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Bill 2005 was prepared.

Action Plans for the Development of Scheduled Castes and Scheduled Tribes

Considering the Social Plane in India we have a society which is based on graded
inequality , which means elevation of some and degradation of others. While on the
economic plane , there is society where in there are some who have immense wealth and
some who live in abject poverty. Some Steps and suggestions which can be helpful in
protecting the indigenous people :-

• Reservation in Service

The reservation policy in services for the Scheduled Tribes and Scheduled Castes has been
a key instrument in enhancing the social and economic justice as enshrined in the Preamble
of the Constitution, The policy of reservation for Scheduled Tribes in services was made in
pursuance of Constitutional provisions has been challenged in various courts at several
occasions on the grounds of ‘equality’ and ‘efficiency’ but its validity has been maintained
by the judicial instruments. The policy of reservation can be replaced by making suitable
enactment under the Ninth Schedule of the Constitution to ensure implementation process
effectively.

Article 16 of the Constitution provides reservations in all matters of appointments and

posts; It is widely recommended to make appointments for short term and ad hoc ,
contract vacancy and reappointment to be made compulsory in all the Governmental and
Public undertakings.

• Social Security

The mechanism to effectively enforce the provisions of the Scheduled Castes & Scheduled
Tribes (Prevention of Atrocities) Act , 1989 needs to make amendments at the root levels .
For Instance, Section 4 of the Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act , 1989 which relates to ‘ Punishment for neglect of duties’ needs amended
to include public servants belonging to SCs/STs .

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Public Interest Litigation (PIL) conceived by P.N.Bhagwati J. by treating an open letter as
a writ petition has been ineffective in its implementation as the PILs are manipulated by
vested interests in their favours. Therefore, it is suggested that either the PILs should be
banned or its scope should be limited to provide justice only to poor people.

• Economic Development

Funds at least in proportions of SC/STs population should be allocated at national, state,

district , block and village should be earmarked out of the various plans at all the levels
and these funds should be placed under the disposal of one nodal department or the
planning department. The State Government should create ‘Common Land Pool’ acquired
under ceiling and should be distributed to the landless SC/ST without bringing any other
party in the picture.

To give legal status the occupants/possessors of the forest villages and the land cultivated
by them , they should be converted into revenue villages in all seriousness of the
timeframe. As because of the absence of proof of legal ownership they are unable the avail
the benefits of the various governmental schemes such as Indra Awas Yojana , Irrigation
schemes and financial benefits under various schemes.

Another major problem which is faced is ‘Unemployment’ . To solve this problem is to

provide quality self- employment to educated trained youth , a group of 2-3 such educated
unemployed youth should be provided interest free loans of Rupees 5-15 Lakh. The
interest subsidy should be borne by the State. Also there should be trading centres and Pre-
Recruitment Training Centres for recruiting SC/ST candidates .

The Authority of the Centre and the States in Tribal Affairs

Fifth and Sixth Schedule of the Constitution

Fifth Schedule

The Fifth Schedule of the Indian Constitution mainly deals with the administration and
control of Scheduled Areas as well as the Scheduled Tribes in whole of the country except

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few states of the north-eastern region like Assam , Meghalaya and Tripura. The main
feature of the administration provided in this Schedule is establishment and constitution of
the Tribes Advisory Councils. These bodies are essentially advisory in nature, and provide
recommendations and advice on the matters pertaining to the welfare and betterment of the
Scheduled Tribes in the states. The Schedule granted the authority to the Governor of each
state “to make regulations for the peaceful and good governance of the State in any area of
the state.” Thus, the Governor was “the sole Legislature for Scheduled Areas and
Scheduled Tribes.” The scope of Gubernatorial authority was of very wide nature and
was subject to only two restrictions :

(i) that the Governor would consult a Tribe Advisory Council before making any
regulation; and

(ii) (ii) that all regulations would receive the Presidential assent before taking effect.

Sixth Schedule

The tribal areas in the states of Assam , Meghalaya , Tripura and Mizoram are separately
dealt with and the provisions for the administration in these states in the Sixth Schedule of
the Constitution. It provided that these tribal areas are to be administered by autonomous
district councils and the regional councils. The autonomous districts councils are not
outside the state executive by the provisions made by these district councils shall be
applicable on these scheduled areas. These councils make laws mainly on certain specified
fields such as management of forests other than a reserved forests , inheritance of property
, marriage and social customs, and the government may confer these councils the power to
try certain suits.

Failures

The Fifth Schedule fails because it has never been applied . The PESA should have been a
landmark for tribal communities. It mandates the state to devolve certain political ,
administrative and fiscal powers to the local governments elected by the communities.

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This was majorly because the Fifth Schedule gave importance and promoted tribal self
governments.

The Sixth Schedule gave tribal communities considerable autonomy ; in the form of the
District Council and the Regional Council under the Schedule and these councils have real
powers to make laws on various legislative subjects , receiving grants in aids from the
consolidate fund of India . The embodiment of automony is on its own shortcoming ;
breakdown of law in the Sixth Schedule.

Panchayats (Extension to Scheduled Areas) Act , 1996 or PESA ,1996

Panchayats (Extension to Scheduled Areas) Act , 1996 or PESA is an Act to provide for
the extension of the provisions of Part IX of the Constitution relating to the Panchayats to
the Scheduled Areas in the 9 states of India. The Act extends the provisions to the 9 states
namely Andhra Pradesh , Chhattisgarh , Madhya Pradesh , Gujarat , Himachal Pradesh ,
Maharashtra , Jharkhand , Orrissa and Rajasthan ; these states are listed under the Fifth
Schedule of the Constitution.

The Act had certain important features out of which it endowed specifically various
powers to the Gram Sabha under the Act . These Powers are :-

• The power to enforce or to regulate or restrict the sale and consumption of any
intoxicant;

• The ownership of minor forest produce;

• The power to alienation of land of the Scheduled Areas and to take appropriate action to
restore any unlawfully alienated land of a Scheduled Tribes;

• The power to manage village markets by whatever name they are called;

• The power to exercise control over institutions and functionaries in social sectors;

• The power to control over local plans and resources for such plans including Tribal sub-
plans .

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The Act was provided various powers to the various authorities but still suffered certain
shortcomings in its implementation. The various shortcoming can be summarised as :-

• PESA diluted at State Level : A comparative analysis of PESA and the legislations
enacted by the states on this subject matter shows that the provisions of the PESA have
been highly diluted in the process of ratification by the States and most of the powers of
the Gram Sabha have been given to the district administration or the Zila Parishad.

• Gram Sabhas continued at Revenue Village level instead of Hamlet Level: One major
impediment in implementation of PESA is the absence of a proper administrative
definition of village that is in consonance with the Act. All states, without exception have
continued with their earlier revenue definitions of the village. Thereby several revenue
villages are clubbed together to form Gram Panchayat.

• Ineffective Functioning of Gram Sabhas: The success of PESA hinges crucially on the
effective functioning of the gram sabha. Today , there is a large measure of exclusion of
women and children from the gram sabha. There is a need to ensure that gram sabhas
actually meet and become vibrant forum of participatory democracy and also to spread
greater awareness of laws such as PESA and the Forest Rights Act (FRA).

• Land Alienation and Land Acquisition: A clear and categorical provision should be made
in the Panchayati Raj Act or the revenue laws to empower the gram sabha to restore the
unlawfully alienated land to its lawful owner .

• Rights of Mines and Minerals : The mineral rules should be amended transferring all
quarries with annual lease value up to ₹ 10 lakhs to the gram sabha and panchayats at the
different levels. This dispersion should cover all minor minerals also the consent of the
concerned gram sabha should be made mandatory.

• Inadequate Administrative Mechanism : It is very clear that the existing administrative

structure have been found inadequate in the process of implementation of PESA. A
permanent body may be constituted to monitor and oversee the bodies under the Fifth

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Schedule under the PESA and FRA.

Forest Rights Act , 2006

India’s forest are home to crores of people , including many scheduled tribes who live in or
near the forest areas of the country. Nearly 250 million people live in and around forests in
India, out of which majority population is Indigenous Adivasi or tribal population (100
million approx). As it can be traced from the history , since time immemorial , the tribal
communities of the India have had an integral and close knit relationship with the forests
and have been dependent on these forests for their livelihood and existence. The
relationship was mutually beneficial and not one sided , but these rights were rarely
recognized by authorities and because of the absence of the real owners of the land , the
local dwellers were to suffer. To safeguard and for the protection of the forests in the
country Forests Laws were enacted and the Forest Rights Act, 2006 is a key piece
legislation in India passed on 18th December , 2006. The Act claimed to redress the
historical injustice committed against the forest dwellers , by including provisions for
making conservation more effective and more transparent. This Act was a weapon for the
struggle for achieving the democracy in forests by the Scheduled Tribes and Forest
Dwellers.

Significance of the Act

The Act is significant because for the first time the Forest Rights Act recognises and
secures following rights.

Types of Rights

The Act provided certain rights under Section 3(1) of the Act :-

1. Right to hold and live in the forest land under the individual or common occupation for
habitation or for self-cultivation for livelihood by a member or members of a forest

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dwelling Scheduled Tribe or other traditional forest dwellers;

2. Community rights such as nistar, by whatever name called, including those used in
erstwhile Princely states, Zamindari or such intermediary regimes;

3. Right of ownership, access to collect, use, and dispose of minor forest produce( includes
all non-timber forest produce of plant origin) which has been traditionally collected within
or outside village boundaries;

4. Other community rights of uses of entitlements such as fish and other products of water
bodies, grazing (both settled or transhumant) and traditional seasonal resource access of
nomadic or pastoralist communities;

5. Rights including community tenures of habitat and habitation for primitive tribal groups
and pre-agriculture communities;

6. Rights in or over disputed lands under any nomenclature in any State where claims are
disputed;

7. Rights for conversion of Pattas or leases or grants issued by any local council or any
State Govt. on forest lands to titles;

8. Rights of settlement and conversion of all forest villages, old habitation, unsurveyed
villages and other villages in forest, whether recorded, notified or not into revenue
villages;

9. Right to protect, regenerate or conserve or manage any community forest resource

which they have been traditionally protecting and conserving for sustainable use;

10. Rights which are recognised under any State law or laws of any Autonomous Dist.
Council or Autonomous Regional Council or which are accepted as rights of Tribal under
any traditional or customary law of the concerned tribes of any State;

11. Right of access to biodiversity and community right to intellectual property and
traditional knowledge related to biodiversity and cultural diversity;

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12. Any other traditional right customarily enjoyed by the forest dwelling Scheduled
Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in
clauses-1 to 11, but excluding the traditional right of hunting or trapping extracting a part
of the body of any species of wild animal.

These rights can be summarised as follows :-

• Title Rights - i.e. ownership - to land that is being farmed by Tribal or forest dwellers as
on 13 December 2005, subject to a maximum of 4 hectares; ownership is only for land that
is actually being cultivated by the concerned family as on that date, meaning that no new
lands are granted

• Use Rights - to minor forest produce (also including ownership), to grazing areas, to
pastoralist routes, etc.

• Relief and Development Rights - to rehabilitation in case of illegal eviction or forced

displacement; and to basic amenities, subject to restrictions for forest protection

• Forest Management Rights - to protect forests and wildlife.

The Act also provided that the Gram Sabha or village assembly, will initially pass a
resolution recommending whose rights to which resources should be recognised. This
resolution is then screened and approved at the level of sub- division and then
subsequently at the district level.

Failure of the Act

As it is evidently for the success of any Act it is very important to have a proper and
effective implementation of the Act . The failure in implementation of the Act is majorly
because of following reasons:-

Rights Ignore : In most villages, an individual’s right to cultivable land in forests has
been ignored in different ways. Firstly, in many places, the claims of the villagers were
delayed without any reason. A claim has to pass through a sub divisional-level committee

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and then a district-level committee. The rejection rate of claims is very high. Secondly, the
claims are substantially reduced by the administration despite gram sabhas’ approval.

Disregard of Community Rights : Another important violation of the Act is the complete
disregard for the community rights of forest dwellers. Adivasis are vulnerable to
exploitation by forest officials; that is why community rights are so important. However,
the administration is treating the FRA as a land distribution scheme at best, without
understanding the real problems of Adivasis.

Gram Sabhas constituted at Revenue Village Level : The FRA clearly says that the gram
sabha should be the first unit at the hamlet level but in most places, gram sabhas have been
constituted at the revenue village level, which is usually represented by non-Adivasi
communities who work against the interests of Adivasis.

Land Diversion : In the last few years, there has been a huge diversion of forest lands
for mining, even before gram sabhas had been formed and the process of recognising the
rights of Adivasis had begun.

Attitude of Forest Bureaucracy : The problem with legislation like the FRA is that it
requires greater decentralisation of governance, with a central role for the gram sabha.
However, the existing top-heavy bureaucracy thinks of the FRA as an impediment.

International Instruments

The United Nations Permanent Forum on Indigenous Issues (UNPFII)

Indigenous peoples around the world have sought recognition of their identities, their ways
of life and their right to traditional lands, territories and natural resources; yet throughout
history, their rights have been violated. Indigenous peoples are arguably among the most
disadvantaged and vulnerable groups of people in the world today. The International
Community now recognizes that special measures are required to protect the rights of the
world’s indigenous peoples. Indigenous people have often found their lands and cultures
overridden by more dominant societies.

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Many Europeans at that time saw native peoples from regions such as Africa, Asia and the
Americas as “primitives,” or “savages” to be dominated. This would help justify settlement
and expansion into those lands, and even slavery. Without civilization these people could
be regarded as inferior, and if seen as “non-people” then European colonialists would not
be impeding on anyone else’s territory. Instead, they would be settling “virgin territory”
overcoming numerous challenges they would face with much courage. The various
International Conventions obliges governments to identify the lands and protect these
rights. It ensures recognition of tribal peoples’ cultural and social practices, obliges
governments to consult with tribal peoples about laws affecting them, guarantees respect
for tribal peoples’ customs, and calls for protection of their natural resources. The struggle
for such rights is still not over. Many governments routinely violate the rights of
Indigenous people. This instrument laid down the foundation stone of UNDRIP.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

India has not only made Municipal Laws and provisions for the protection of Indigenous
people but the need for the protection of Indigenous people has raised on the global
platform as well . Thus, to meet these needs and solve the problems faced by the tribes and
the Indigenous people one of the major International Instrument is The United Nations
Declaration on the Rights of Indigenous People (UNDRIP).

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was
adopted by the General Assembly on Thursday, 13 September 2007, by a majority of 144
states in favour, 4 votes against (Australia, Canada, New Zealand and the United States)
and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya,
Nigeria, Russian Federation, Samoa and Ukraine). While as a General Assembly
Declaration it is not a legally binding instrument under International Law.

UNDRIP codifies "Indigenous historical grievances, contemporary challenges and socio-

economic, political and cultural aspirations" and is the "culmination of generations-long
efforts by Indigenous organizations to get international attention, to secure recognition for

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their aspirations, and to generate support for their political agendas."

The main purpose of the Declaration is it sets out the individual and collective rights of
Indigenous peoples, as well as their rights to culture, identity, language, employment,
health, education and other issues. It also "emphasizes the rights of indigenous peoples to
maintain and strengthen their own institutions, cultures and traditions, and to pursue their
development in keeping with their own needs and aspirations". It "prohibits discrimination
against indigenous peoples", and it "promotes their full and effective participation in all
matters that concern them and their right to remain distinct and to pursue their own visions
of economic and social development".

According to Article 31, there is a major emphasis that the indigenous peoples will be able
to protect their cultural heritage and other aspects of their culture and tradition, which is
extremely important in preserving their heritage.

Content

The Declaration is designed according to the United Nations resolution, with 23

Preambular clauses and 46 Articles. Articles 1–40 concern particular individual and
collective rights of indigenous peoples; many of them include state obligations to protect
or fulfil those rights. Article 31 concerns the right to protect cultural heritage as well as
manifestations of their cultures including human and genetic resources. Articles 41 and 42
concern the role of the United Nations. Articles 43–45 indicate that the rights in the
declaration apply without distinction to indigenous men and women, and that the rights in
the Declaration are "the minimum standards for the survival, dignity and well-being of the
indigenous peoples of the world," and do not in any way limit greater rights. Article 46
discusses the Declaration's consistency with other internationally agreed goals, and the
framework for interpreting the rights declared within it.

In Furtherance to the UNDRIP, there is The International Labour Organisation(ILO),

Convention concerning to the Indigenous and Tribal Peoples , 1989 and is based on the

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principle of “respect for the culture and ways of life of indigenous peoples” and also
recognises their “right to land and natural resources and to define their own priorities for
development.” India is not a party to this , but it is party to the ILO Convention which is
concerned with the Protection and Integration of the Indigenous and other Tribal and
Semi- Tribal Population of the Country which is now outdated and is closed for
ratification.

Conclusion

The tribes which form an important feature of the India’s diversity in the context of
modern Indian society signifies a group of people living in the hills and forests and having
their own language and a culture. Although there is a wide variation in the social
organisation , customs , practices , culture and institutions of the tribes from the general
population of the India. The tribal society in India particularly remained isolated till the
attainment of independence from the mainstream of national life.

The Constitution of India provides various provisions for protection of Tribal and for
establishment of various institutions under Article 342 and 244 . The Introduction of the
PESA in 1996 was definitely signalled the intention of the Indian Parliament to abandon
command-and-control for new governance in the tribal areas . However, by choosing
decentralization the law makers made the mistake of matching the right idea with the
wrong solution. The Fifth Schedule, as part of the Constitution applies to the pockets of
tribal areas scattered within the peninsular regions of the vast country instead should have
provided for a provision which shall uniformly apply to all the tribal areas of the country.
Encompassing these issues in a single work runs the risk of trivializing the distinct
problems faced by the tribes.

India being the agro-based country and as majority population of the country depends on
agriculture, land and forests for their livelihood and shelter and tribal peoples are the major
forest dwellers thus , to protect their livelihood and habitat various Forest Laws were
legislated by the Indian Parliament. The Forest Rights Act , 2006 was a key legislation in

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relation to the protection of forests and forest dwellers. The Act tried to secure the title
rights, utility rights and also provided the relief and development rights to the Tribal. The
Act did not overlook the socio-economic situation of the Country and thus the Act was
welcomed by the people of all Scheduled Areas.

Indigenous peoples around the world have sought recognition of their identities, their ways
of life and their right to traditional lands, territories and natural resources; yet throughout
history, their rights have been violated. Indigenous peoples are arguably among the most
disadvantaged and vulnerable groups of people in the world today. The International
Convention UNDRIP has codified Indigenous historical grievances, contemporary
challenges and socio-economic, political and cultural aspirations" and is the culmination of
generations-long efforts by Indigenous organizations to get international attention, to
secure recognition for their aspirations, and to generate support for their political agendas.
The main purpose of the Declaration as it sets out the individual and collective rights of
Indigenous peoples, as well as their rights to culture, identity, language, employment,
health, education and other issues.

Indigenous peoples around the world have sought recognition of their identities, their ways
of life and their right to traditional lands, territories and natural resources; yet throughout
history, their rights have been violated. Indigenous peoples are arguably among the most
disadvantaged and vulnerable groups of people in the world today. The international
community now recognizes that special measures are required to protect the rights of the
world’s indigenous peoples. Keeping in view the socio economic backwardness of tribes
the framers of the Indian Constitution provided special privileges for their development in
independent India. Gradually it can be considered that because of the call of the situation
many laws have been passed and a separate administrative systems has been constituted
with an aim to bring the tribes in mainstream of our ideal democratic system. Thus, in last
it can be concluded by saying that the laws which exists in the present scenario is not
accurate but need certain modifications to meet the challenges faced by the tribes in this
contemporary society.The survival of pandas and the bamboo plant. The pandas are

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dependent on bamboo shoot for their survival. Therefore, in CHINA due to degradation of
bamboo the pandas have become endangered and are at the verge of extinction because of
loss of habitat and starvation.378

Plants are the oxygen producing and carbon dioxide absorbing natural apparatus.
Moreover, the Amazon rainforests not only provides oxygen but are also the source of
sustenance of the region. Plant are rich source of many important and basic medicine
require for the well being the human being or animals. It provides habitat and shelter to
many species existing on the planet.

Thus, flora and fauna play a vital role not only in the maintenance of the ecosystem but
also in the survival of humans on this planet. This interaction or linkage together forms our
ecosystem.

Factors leading to Depletion of flora and fauna

The destruction to the plant and animals is not a recent issue it was started long back in
history. The process started from the expansion of railways, industrialization, urbanisation
and growth of a particular specie of plant for commercial purposes which after sometimes
makes the land barren or infertility.
Human activity to cause the greatest extinction of living things. Man-made environmental
destruction and the extinction of life on the earth's environment quickly than evolutionary
change, both climate change and natural disasters. Global warming is the result of the
human inadequate activities giving rise to increase in depletion level of flora and fauna.
According to the landmark report, by the UN Intergovernmental Panel on Climate Change
(IPCC) was released in Incheon in South Korea on October 8, 2018. The report says there
is only a dozen years for global warming to be kept to a maximum of 1.5C, beyond which
even a degree will significantly worsen the risks of drought, floods, extreme heat (resulting

378
www.eartheclipse.com

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in extinction of various types of species) and poverty for hundreds. It said keeping the rise
in temperature to 1.5C would mean sea levels by 2100 would be lower than if the warming
was 2C, the likelihood of an Artic Ocean free of sea ice in summer would be once per
century not at least once a decade, and coral reels would decline by 70-90 percent instead
of being virtually wiped out. Thus, leading to adverse effects to the biodiversity of the
world.

The increase use of natural resources like wood, rubber, gum, leaves, animal-skin, hair,
teeth, etc, for the purpose of business and making human live luxurious and precious, the
life of the animals and plants are sacrificed, resulting in the depletion of forest and
wildlife. Deforestation of land for agriculture has also added to the cause. Moreover,
mining activities, enrichment plantation, increasing population and exploitation of
commodities, overgrazing by cattle herds also leads to large-scale destruction of pastures
and natural forests. The main reason for the depletion of fauna is excessive hunting and
poaching. Forests and wetlands are natural habitats of animals and the destruction of these
has resulted in the depletion of our wildlife. Factors like environmental pollution and
forest fires lead to a depletion of both our flora and fauna.379

Consequences of depletion of flora and fauna

Earth’s average surface temperature, including that of the oceans, is rising annually mostly
due to uncontrolled human activities. The increase in land, air and water temperatures is
causing the unprecedented damage to life and property. The effects of forest depletion
include climate changes, flooding, famine, loss of habitat, disease outbreaks and soil
erosion. The depletion of flora and fauna also has considerable impact on society, who are
directly dependent on forests for resources and livelihood. Women have to walk long
distances to exploitation collect food and firewood which leads to neglect of their children
and household. Scientific studies show that in 2017 one year just after 2016 PARIS

379
brainly.in

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CLIMATE AGREEMENT was signed, the rate of carbon dioxide hiked up to record level.
This is due to over dependence on fossil fuel (mining), and reckless agricultural practises
and deforestation.

Everybody is bound to suffer in future due to these wrongful methods being followed.
Basically, if there are no big Carnivores, then the forest will be full of Herbivores and over
grazing will occur, and the primary producers like grass, plants & shrubs will dwindle. The
humans will not be afraid without the Carnivorous animals, and they will take over the
wild areas - similarly if there are no Primary Producers or Herbivores, then the pure
carnivores will not find food to survive. For example, a certain type of butterfly in Africa
feeds on the dung of leopards. If the leopards die out, the butterflies will either die out or
become weaker. If that happens, animals that eat those butterflies also are affected.380

Even species have become endangered. As per the 2011 Quantitative Evaluation, done by
the International Union for Conservation of Nature (IUCN) there are 57 critically
endangered species of animal in India. The critically endangered species are BIRDS
White-belled Heron, Forest Owlet, Spoon-Billed Sandpiper, Siberian Crane.

The world’s last male northern white Rhino died, leaving behind only two females of its
subspecies alive in the world. White rhinos are the largest land mammals after the
elephants and typically live in the herds of up to 14 animals.381

SUDAN, WORLD’S LAST MALE WHITE RHINO

380
www.answers.com
381
www.nytimes.com

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However, the responsibility for the protection and conservation of the environment is not
shared by people in proportion with the resources that they consume. The flora and fauna
of India are under severe threat, and require immediate measures of conservation.

Forest Conservation: A Leap Forward

India is the seventh largest country in the world occupying 2.4 percent of the world area.
However, only 1.8 percent of forests cover lies in India. In spite of recent efforts to
increase forest cover through reforestation, being carried out mainly under Compensatory
Afforestation Management and Planning Authority (CAMPA), India’s forests are in a
devastated condition, with just over 21 percent of India under forest cover in 2007. Dense
forests cover only 12 percent of land. The policy requirement is that the forest cover
should be 33 percent of the area of the country, and all of this should be closed forest.
However, we are far from achieving this figure.

The Government of India Act of 1935, and the Constituent Assembly Debates, of 1947-
1950, added a key dimension to the development of about the environment and its
government in India by inserting them other debates about the shape of Indian
federalism.382

382 Atul Kohli, “Introduction.” In the Success of India’s Democracy, CAMBRIDGE: CAMBRIDGE UNIVERSITY PRESS, 1-19 (2001).

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In India, the need for protection and conservation of environment and sustainable use of
natural resources is reflected in the constitutional framework of India and also in the
international commitments of India. The Constitution under Part IVA (Art 51A-
Fundamental Duties) casts a duty on every citizen of India to protect and improve the
natural environment including forests, lakes, rivers and wildlife, and to have compassion
for living creatures.383

Further, the Constitution of India under Part IV (Art 48A-Directive Principles of State
Policies) stipulates that the State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country.384

In addition, a full-fledged Ministry of Environment and Forests (MoEF) was established

in 1985, which today is the apex administrative body in the country for regulating and
ensuring environmental protection and lays down the legal and regulatory framework for
the same. Since the 1970s, a number of environment legislations have been put in place.
There are many legislations regarding the safeguard of the environment:

The National Green Tribunal Act, 2010 (No. 19 of 2010) (NGT Act) has been enacted with
the objectives to provide for establishment of a National Green Tribunal (NGT) for the
effective and expeditious disposal of cases relating to environment protection and
conservation of forests and other natural resources including enforcement of any legal right
relating to environment and giving relief to persons for matters connected.

The wide spread concern for large-scale deforestation resulting in ecological imbalance
and environmental degradation led to the enactment of the Forest (Conservation) Act,
1980. No state government or other authority can, without the prior approval of the central

383 Article 51(A) in the Constitution of India 1949, by constitution (42nd amendment) Act, 1976; reference pg. no. 391 V.N. SHUKLA’s
CONSTITUTION OF INDIA, EBC publication.
384 Article 48 (A) in the Constitution of India 1949, by constitution (42nd amendment) Act, 1976; reference pg. no. 388 V.N. SHUKLA’s

CONSTITUTION OF INDIA, EBC publication.

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government, make any order to:
(i) de-reserve forest
(ii) use any forest land for non-forest purpose;
(iii) lease out forest land to a private agency; or
(iv) cut naturally grown trees in forest land for the purpose of using it for re-afforestation.
The expression ‘non-forest purpose’ is significant. It denotes breaking up or clearing of
forest land for the cultivation of tea, coffee, rubber, plants, oil bearing plants, horticulture
crops, or medicinal plants. Breaking up or clearing of forest land for the purpose of re-
afforestation is not a use for a no-forest purpose, and therefore can be allowed. However,
for the purpose of re-afforestation, naturally grown trees cannot be cut without prior
sanction. Any work relating, or ancillary, to conservation, development, and management
of wildlife and forest is also not a non-forest purpose and hence, it can be allowed. 385

In UNION OF INDIA v. KAMATH HOLIDAY RESOURCE PVT. LTD386, the held that
forest (conservation) act 1980 applies to union territories as also to state.

The Indian Forest Act, 1927 consolidates the law relating to forests, the transit of forest-
produce and the duty leviable on timber and other forest-produce. The Act facilitates three
categories of forests, namely: Reserved forests, Village forests, Protected forests.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006, recognises the rights of forest-dwelling Scheduled Tribes and other
traditional forest dwellers over the forest areas inhabited by them and provides a
framework for according the same.

The Wild Life (Protection) Act, 1972 was enacted with the objective of effectively
protecting the wild life of this country and to control poaching, smuggling and illegal trade

385
S.2, The Forest (Conservation) Act, No. 69, Acts of Parliament, 1980 (India).

386 AIR 1996 SC 1040, reference pg. no. 339, ENVIRONMENT LAW IN INDIA by Gurdip Singh, published by MACMILLAN QUALITY LAW BOOKS

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in wildlife and its derivatives. The Act was amended in January 2003 and punishment and
penalty for offences under the Act have been made more stringent. The Ministry has
proposed further amendments in the law by introducing more rigid measures to strengthen
the Act. The objective is to provide protection to the listed endangered flora and fauna and
ecologically important protected areas. The WLPA provides for several categories of
Protected Areas/Reserves: National Parks, Wildlife Sanctuaries, Tiger Reserves,
Conservation Reserves, Community Reserves.387

WOODEN FURNITURE WORKS AND ORS. v. GOVERNMENT OF ANDHRA

PRADESH AND ORS.,

The forests in India are dwindling. An aerial survey by Indian Space Research
Organisation in 1974 found many of the Reserve Forests sans trees. The Satellite
photographic showed tree growth in 1.5 million hectares was lost every year. The-
establishment while it prescribed 33 per cent of the land is to be covered by green belt,
curiously the records showed only 23 per cent of the land was covered by forests. On
physical verification in 1975 forests were found in less than eleven per cent of the total
land the situation discovered was rather alarming Then followed an intense activity to
preserve trees. Simultaneously strenuous effort was made to stop illicit felling of trees. In
Andhra Pradesh there is no “Chipko” movement Effort however is made to streamline the
statutes, to preserve trees. In this regard on May 23, 1985 by G. O. Ms. No. 234 Andhra
Pradesh Saw Mill Regulations of 1969 were radically amended. 388

It can be seen in the above case-law that the court considered the Chipko incident, and this
in turn was instrumental in directing the mind of the court towards a just outcome and
judgement.

387 www.mondaq.com
388
AIR 1988 AP 301

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Policies for protection of flora and fauna
National Wildlife Action Plan (2002-2016) replaces the earlier Plan adopted in 1983 and
was introduced in response to the need for a change in priorities given the increased
commercial use of natural resources, continued growth of human and livestock
populations, and changes in consumption patterns. It focuses on strengthening and
enhancing the protected area network, on the conservation of Endangered wildlife and
their habitats, on controlling trade in wildlife products and on research, education, and
training. The Plan endorses two new protected area categories: “conservation reserves,”
referring to corridors connecting protected areas, and “community reserves”, which will
allow greater participation of local communities in protected area management through
traditional or cultural conservation practices. It includes the restoration of degraded
habitats outside protected areas as a key objective.

The National Forest Policy, 1988, (NFP) is primarily concerned with the sustainable use
and conservation of forests, and further strengthens the Forest Conservation Act (1980). It
marked a significant departure from earlier forest policies, which gave primacy to meeting
government interests and industrial requirements for forest products at the expense of local
subsistence requirements. The NFP prioritizes the maintenance of ecological balance
through the conservation of biological diversity, soil and water management, increase of
tree cover, efficient use of forest produce, substitution of wood, and ensuring peoples’
involvement in achieving these objectives. The NFP legitimizes the customary rights and
concessions of communities living in and around forests, stating that the domestic
requirements of the rural poor should take precedence over industrial and commercial
demands for forest products.389

Extent of Implementation of laws

Environmental laws in India are strong but it lacks obedience from the people. Despite
having a specialized court which deals with environmental cases. India still ranks high in

389
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terms of pollution around the world. According to the Environmental Performance Index
India currently ranks 177 out of 180 countries. Environmental law in India truly faces an
implementation crisis.390

REASONS:
● One of the main reasons for this is that the there is no independent regulatory
body for environmental governance. It is looked after the Ministry of
Environment Forest and Climate Change (MoEF). Due to excessive interference
by government on the governance of the Ministry, there is poor implementation
of environmental law.391
● There is also a lack of political will and public awareness.392
● We have an ineffective pollution control mechanism. The present framework
under the Water Prevention and Control of Pollution Act, 1974 and Air
Prevention and Control of Pollution Act, follows the command and control
structure.
● There is also a lack of funds to the Pollution Control Boards and they don’t even
have proper infrastructure or laboratories.393
● There are certain laws which are not very elastic.
● Environmental Litigation is more expensive compared to other disputes as it
involves expert testimony and technical evidences.394

SOLUTION:
● Public awareness and an increase in political will is a must. NGO’s can play a
very important role in this.
390
India ranks 177 out of 180 in Environmental Performance Index, The Hindu
(2018), https://www.thehindu.com/sci-tech/energy-and-environment/india-ranks-177-out-of-180-in-environmental-
performance-index/article22513016.ece
391
Dr. Deva Prasad. M, Taking Environmental Law Seriously: An Indian Perspective, Live Law.in
(2017), http://www.livelaw.in/taking-environmental-law-seriously-indian-perspective/
392
Shailesh, How we failed to implement environmental laws in India, Green Clean Guide
(2017), http://greencleanguide.com/how-we-failed-to-implement-environmental-laws-in-india/
393
Article on importance of environmental laws in India, Law Updater
(2016), https://lawupdaterblog.wordpress.com/2016/09/07/article-on-importance-of-environmental-laws-in-india/
394
blog.ipleaders.in

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 ● There should be less political interference in the independent regulatory body.395
● More decision-making power needs to be given to the boards. There is also a
need to establish a body of experts just like the civil services.
● It is important that laws give environmental values to the society and Courts and
Tribunals should refrain from carrying out policy functions and must focus on
making a strong environmental jurisprudence in India.396
● The National Environmental Policy 2006 identifies and indicates that there is a
need to move to a strong civil liability mechanism which is based on the polluter
pay principle instead of a criminal penalty mechanism.

Change in the scenario

According to the India State of Forest Report (ISFR) 2017, India ranks among the top ten
countries of the world in terms of forest area, with 24.4% of land area under forest and tree
cover, even though it accounts for 2.4% of the world’s surface area and sustains needs of
17% of human and 18% of livestock population, despite the fact that none of the other 9
countries has a population density of more than 150 persons per sq. km, compared to India,
which has a population density of 382 persons per sq. km.
Strongly emphasizing the increasingly green credentials of the country, Union Minister for
Environment, Forest and Climate Change, has said that India has shown an increasing
trend in the forest and tree cover, in comparison to the global trend of decreasing forest
cover during the last decade.397 15 states/UTs have above 33% of geographical area under
forest cover. About 40% of country’s forest cover is present in 9 large contiguous patches
of the size of 10, 000 sq.km, or more.
CORAL REEFS: India has an area of 2383.87 sq. km with the major areas identified for

395
Dr. Deva Prasad. M, Live Law.in (2017), http://www.livelaw.in/taking-environmental-law-seriously-indian-
perspective/
396
Dhvani Mehta, India and Climate Change: Lack of clear regulatory framework sets country behind,
Firstpost, https://www.firstpost.com/long-reads/india-and-climate-change-lack-of-clear-regulatory-framework-sets-
country-behind-3448112.html
397
India environment portal

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intensive conservation and management of coral reefs. Gulf of Mannar, Gulf of Kachchh,
Lakshadweep, Andaman and Nicobar Islands- constitute 80% of the global coral diversity.
India’s national Coral Reef Research Centre is located at Port Blair.

A COMPARISON OF FOREST COVER: 2005 AND 2013

Chart Title
90
80
70
60
50
40
30
20
10
0

2005 % of GA 2013 % of GA Series 3

398

Moreover, 7 States/UTs have more than 75% forest cover: Mizoram, Lakshadweep,
Andaman & Nicobar Islands, Arunachal Pradesh, Nagaland, Meghalaya and Manipur.
8 States/UTs have forest cover between 33% to 75%: Tripura, Goa, Sikkim, Kerala,
Uttarakhand, Dadra & Nagar Haveli, Chhattisgarh and Assam.
Top 5 States with maximum increase in forest cover: Andhra Pradesh (2141 sq. km),
followed by Karnataka (1101 sq.km) and Kerala (1043 sq.km), Odisha (885 sq.kms) and
Telangana (565 sq.kms).
Top 5 States with maximum Forest cover (in terms of area): Madhya Pradesh (77,414
sq. km) Arunachal Pradesh (66,964 sq. km) and Chhattisgarh (55,547 sq. km).
Top states with highest Forest cover in terms of percentage geographical area:
Lakshadweep with (90.33%), Mizoram (86.27%) and Andaman & Nicobar Islands

398
Reference pg. no. 355 Manorama Yearbook 2019

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(81.73%)
Top 5 states where forest cover has decreased: Mizoram (531 sq. km), Nagaland (450
sq. km), Arunachal Pradesh (190 sq. km), Tripura (164 sq. km) and Meghalaya (116 sq.
km). These states are in North Eastern region of the country where total forest cover is
very high i.e. more than 70% in each state.

SURVEY STATISTICS

399

As per the reports, India’s forest and tree cover increased by 5,081 sq. km. while the total
forest cover of the country increased by 3,775 sq. km. As per the report, India’s forest and
tree cover increased by 5,081 sq. km. while the total forest cover pf the country increased
by 3,775 sq. km, the tree cover went up by 1,306 sq. km. The total forest and tree cover of
the country was 79.42 million hectares, which constituted 24.16% of the total geographical
area. India is now ranked 10th in the world, with 24.4% of land area under forest and tree
cover, even though it accounts for 2.4% of the world’s surface area and sustains need of
17% of human and 18% of livestock population. While the open Forest area had increased
by 4,744 sq. km, (which is 9.14% of the geographical area).
NUMBER AND AREA OF NATIONAL PARKS AND WILDLIFE SANCTURIES400

399
currentaffairs.gktoday.in
400
Reference pg. no. 359 Manorama Yearbook 2019

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 STATE/UT NATIONAL AREA (sq.km) WILDLIFE WILDLIFE
PARK SANCTUARIES SANCTUARIES
NUMBER NUMBER AREA (sq.km)
COVER
Andhra Pradesh 5 1368.88 21 11618.12
Arunachal 2 2290.82 11 7487.75
Pradesh
Bihar 1 335.65 12 2901.68
Chhattisgarh 3 2899.08 11 3760.28
Goa 1 107.00 6 647.91
Gujarat 4 480.12 23 16618.42
Haryana 2 48.25 8 233.21
Himachal 5 2271.38 28 6116.10
Pradesh
Jammu & 4 3925 15 10243.11
Kashmir
Jharkhand 1 226.33 11 1955.82

Karnataka 5 2795.76 27 6526.91

Kerala 6 558.16 17 1928.25
Madhya Pradesh 9 3656.36 25 7167.41
The area under very dense forest has increased by 2,404 sq. kms, which is 2.61% of the
geographical area. About 40% forest cover was then in nine big patches of 10,000 sq. km
and more.
The increase in total forest cover also included an increase in total forest cover also
included an increase in the mangrove cover. The effort to increase the forest cover went up
from 24% to 30% of the total geographical area. The maximum increase in forest cover
was observed in Tamil Nadu- 2,501sq km and Madhya Pradesh had the largest forest cover
of 77,462 sq. km.401

401
Reference pg. no. 356 Manorama Yearbook 2019

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Conclusion
Through this paper, it is clear that flora and fauna are an essential part of the ecosystem
and the very survival of all the living creature will be in great threat, if they are not be
saved or protected. In order to save ourselves from the threat of endanger, it is necessary to
save them from verge of being extinct.

Although there are many laws and legislation formed by the legislative council in relation
to the protection of flora and fauna. Many NGOs, International as well as National
Associations are also working to safeguard the biodiversity. However, the major drawback
in the path of successful achievement of this goal is lack of awareness and absence of
participation of common man. Only a hand full of people cannot protect the whole
environment and help in sustenance of the life form on earth. It will only be possible to
achieve success when each and person tries his/ her level best for its protection.
Today, lets pledge for the safeguard and safety of our heritage and biodiversity from
degradation and from the verge of extinction.

An Analysis of Legislations for Protecting the Rights of

Tribal Society in India

Srishti Sahu
Student , B.A.LLB.(Hons.) (Semester – VIII)

Abstract
The Tribal People in the Scheduled Areas are discriminated and encounters problems relating to
their position and status. The tribes constitute a major portion of India’s population which is
approximately 8.2% of the total population (according to Census, 2011). In 1950 Constitution of
India has provided self- governance in tribal majority areas. Later in 1999 National Policy of

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Tribal was drafted to fulfil the required needs of tribal populations, including Scheduled Tribes.
The paper elucidates the struggle by the tribes and rights of the tribes provided through various
judgements of the courts and also by various Municipal Laws and International Instruments. The
focal point of this paper examines the application of the two major Legislations enacted by the
Parliament of India ,that are Panchayat (Extension to Scheduled Areas) Act, 1996 confronting
different powers to Gram Sabha and secondly the Forest Rights Act , 2005 stating provisions and
giving more transparency to it. Moreover rights provided in the Constitution of India under Article
14, 15 ,19 , 21, 244 and 245 and also through the Fifth and Sixth Schedule under the Part IX and
Part IX-A of the Constitution of India is being explained. The importance of tribal rights has been
perceived on the International platform through various instruments like The United Nations
Permanent Forum on Indigenous Issues (UNPFII) and The United Nations Declaration on the
Rights of Indigenous People (UNDRIP) stating special measures for protection of tribal rights.
The final analysis of the paper talks about the lacunae in the implementation of various
instruments available for the protection of tribal rights.

Keywords :- Tribes , Scheduled Areas , Panchayat (Extension to Scheduled Areas) Act, 1996,
Forest Rights Act, 2006, The United Nations Declaration on the Rights of Indigenous People,
United Nations Permanent Forum on Indigenous Issues.

Introduction
India being the land of Love and Diversity has a wide range of population living in the country
who observe a wide range of various cultural practices , customs , way of living and Tribes occupy
a unique and special position in this regard . Tribe is one of the most important feature of India’s
diversity. Tribal are also known as ‘Adivasi’ majorly in South Asia. India’s population includes
nearly one hundred million of tribal people which constitutes to about 8.2% of the total population
of the Country402 . The tribal population in India is mainly settled in two regions that are country’s
North- Eastern border with China and Burma, and the highlands and plains of its Central and

402 Government of India , Census 2011.

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Southern regions. The Central and Southern regions of the country are home for about 80 % of the
tribes, which differ from the North –Eastern tribes in ethnicity and in having experienced “greater
intrusion of the Indian mainstream and of the Pan – Indian model of the state , society , economy
and culture”403. There are also differences in the extent to which the tribes interact with the non-
tribe communities. Despite some regional variation the tribes share many practices and traits,
including living “in relative geographical isolation , and being relatively more homogeny and
more self-contained that the non- tribal social groups.”404 Consequently several problems prevail
in the relation of the tribes with the non-tribes , on one hand , and the tribes and the State, on the
other.

India has struggled to maintain the balance in practice. The most common problems relate to
recognizing that the tribes have a right to autonomy and not merely decentralized administration ;
that they have right to seek justice within their own traditional or customary laws; and they have a
right to own and exploit the natural resources in their habitat. The conventional and largely
accepted solution to this problem is to balance the dichotomy between assimilation of tribal
peoples and their independent identity, and delineate the contours of a national policy that would
allow them to preserve their way of life without compromising with development405. These issues
are addressed in the Constitution of India and through the tribal people specific statutes , but there
are considerable differences in the way the North-Eastern and peninsular tribes are treated in the
Indian legal system. This distinction in the extent law is based on the two criteria that had guided
the colonial British Indian government in determining the degree of self – government that the
tribes would have exercise :-

a) whether the tribe had the ability to manage its own affairs;
b) whether the tribal region in question had significant non-tribal population.406
To solve these problems and make this arrangements has been codified in the Constitution’s Fifth
Schedules for the tribes in the Peninsular region of the country and the Sixth Schedule for the

403 Chanana Karuna, Accessing Higher Education: The Dilemma of Schooling Women, Minorities, Scheduled Castes and

Scheduled Tribes in Contemporary India (1993) 26 Higher Educ. 69 at 71.

404 Virginius Xaxa, Empowerment of Tribes in Debal K. Singha Roy, ed., Social Development and the Empowerment of

Marginalised Groups: Perspectives and Strategies (Thousand Oaks, CA: Sage Publications, 2001) at 203.
405 Shubhankar Dam, Legal Systems As Cultural Rights: A Rights Based Approach To Traditional Legal Systems Under The Indian
Constitution (2006) 16 Ind. Int’l & Comp. L. Rev. 295
406 Amit Prakash, Decolonisation and Tribal Policy in Jharkhand: Continuities with Colonial Discourse (1999) 27 Soc. Scientist 113.

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North-Eastern tribes407. The separate systems were approved by the Constituent Assembly formed
at the time of independence for drafting the Constitution of India after receiving recommendations
that the distinct ‘community structures ’ and ‘attitudes’ of the tribes in the two regions could not
be treated in a common law. Though an overwhelming majority of India’s tribal people inhabit the
Fifth Schedule Areas, they were only recently introduced to decentralization when the Indian
Parliament legislated the Panchayat (Extension to Scheduled Areas) Act, 1996 (or PESA)
exclusively for these areas.408

Federalism and Tribal Governance in India

The Constitution of India establishes a federal structure in which legislative authority is divided
between the central government (“The Union”) on one hand and the State legislatures and
governments on the other409. In 1992 the Indian Parliament decided to distribute powers and
decentralize the state executive and legislative authority by adding two entirely new parts to the
Constitution i.e. Part IX410 and Part IX –A411 . Part IX of the Constitution required the states to
establish local government bodies i.e. Panchayats in the rural areas , while Part IX-A mandated the
municipalities in urban areas. The intention of the Parliament by the introduction of these two
parts was “to enshrine in the Constitution certain basic and essential features ” of such local bodies
“to impart certainty , continuity and strength to them.” 412
Part IX broadly lays down the
composition and jurisdiction of the Local Governments , the states , as mentioned earlier , have a
significant role to play in this scheme . Almost all the provisions in Part IX require
implementation through state law. With the Introduction of PESA in 1996, however, Part IX was
extended to the Fifth Schedule tribal areas. Thereafter , states that had jurisdiction over these areas
were to some how foster tribal self- government , even though the Fifth Schedule was not
amended and continued to perpetuate state government control in tribal affairs. The resultant legal
scheme in place today thus appears inherently unworkable.

407 Constitution of India,1950 , Art.15(4) and Art. 15(5). Also see R.K.Sabharwai v. State of Punjab, [1995] 2 SCC 745 para 4 and Indira
Sawhney v. Union of India , AIR 1993 SC 477.
408 Stuart Corbridge , “ The Continuing Struggle for India’s Jharkhand : Democracy , Decentralisation and the Politics of Names and

Numbers” (2002) 40 Commonwealth & Comp. Pol. 55.

409 Constitution of India ,1950 , Art.245(1)
410 Constitution of India , 1950 ; amended by the Constitution (Seventy- Third Amendment) Act , 1992.
411 Constitution of India , 1950 ; amended by the Constitution (Seventy- Third Amendment) Act , 1992.
412 The Constitution (Seventy – Third Amendment) Bill ,1991, Statement of objects and reasons.

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Constitutional Provisions

According to Article 342 of the Constitution of India, the President , after consulting with the State
Governments, has promulgated nine orders so far. This promulgation has clearly specified the
Scheduled Tribes in the relation to the concerned State and Union Territories. The Fifth and Sixth
Schedules under Article 244 of Indian Constitution in 1950 provided for self- governance in
particular tribal majority areas. The then the Governmental administration issued a draft of
National Policy of Tribals in 1999 to meet the developmental needs of the tribal populations,
including Scheduled Tribes. Prominence was laid on education , forestry , health care , land rights
,language policy and resettlement. The Government had established a Ministry of Tribal Affairs. It
was designed out the States of Chhattisgarh and Jharkhand in acknowledgement of tribal
sentiments. Subsequently, the Controversial draft of Scheduled Tribes (Recognition of Forest
Rights) Bill 2005 was prepared.

Action Plans for the Development of Scheduled Castes and Scheduled Tribes

Considering the Social Plane in India we have a society which is based on graded inequality ,
which means elevation of some and degradation of others. While on the economic plane , there is
society where in there are some who have immense wealth and some who live in abject poverty.
Some Steps and suggestions which can be helpful in protecting the indigenous people :-

• Reservation in Service
The reservation policy in services for the Scheduled Tribes and Scheduled Castes has been a key
instrument in enhancing the social and economic justice as enshrined in the Preamble of the
Constitution, The policy of reservation for Scheduled Tribes in services was made in pursuance of
Constitutional provisions has been challenged in various courts at several occasions on the
grounds of ‘equality’ and ‘efficiency’ but its validity has been maintained by the judicial
instruments. The policy of reservation can be replaced by making suitable enactment under the
Ninth Schedule of the Constitution to ensure implementation process effectively.

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Article 16 of the Constitution provides reservations in all matters of appointments and posts; It is
widely recommended to make appointments for short term and ad hoc, contract vacancy and
reappointment to be made compulsory in all the Governmental and Public undertakings.

• Social Security413
The mechanism to effectively enforce the provisions of the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act , 1989 needs to make amendments at the root levels . For Instance,
Section 4 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 which
relates to ‘Punishment for neglect of duties’ needs amended to include public servants belonging
to SCs/STs.

Public Interest Litigation (PIL) conceived by P.N.Bhagwati J. by treating an open letter as a writ
petition has been ineffective in its implementation as the PILs are manipulated by vested interests
in their favours. Therefore, it is suggested that either the PILs should be banned or its scope should
be limited to provide justice only to poor people.

• Economic Development
Funds at least in proportions of SC/STs population should be allocated at national, state, district ,
block and village should be earmarked out of the various plans at all the levels and these funds
should be placed under the disposal of one nodal department or the planning department. The
State Government should create ‘Common Land Pool’ acquired under ceiling and should be
distributed to the landless SC/ST without bringing any other party in the picture.

To give legal status the occupants/possessors of the forest villages and the land cultivated by them
, they should be converted into revenue villages in all seriousness of the timeframe. As because of
the absence of proof of legal ownership they are unable the avail the benefits of the various
governmental schemes such as Indra Awas Yojana , Irrigation schemes and financial benefits
under various schemes.

Another major problem which is faced is ‘Unemployment’ . To solve this problem is to provide
quality self- employment to educated trained youth , a group of 2-3 such educated unemployed
youth should be provided interest free loans of Rupees 5-15 Lakh. The interest subsidy should be

413 Protection
of Scheduled Tribes Under Indian Constitution , http://lex-warrier.in/2010/11/protection-of-scheduled-
tribes-under-indian-constitution/, June 04 , 2017.

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borne by the State. Also there should be trading centres and Pre- Recruitment Training Centres for
recruiting SC/ST candidates .

The Authority of the Centre and the States in Tribal Affairs

Fifth and Sixth Schedule of the Constitution

Fifth Schedule414

The Fifth Schedule of the Indian Constitution mainly deals with the administration and control of
Scheduled Areas as well as the Scheduled Tribes in whole of the country except few states of the
north-eastern region like Assam , Meghalaya and Tripura. The main feature of the administration
provided in this Schedule is establishment and constitution of the Tribes Advisory Councils. These
bodies are essentially advisory in nature, and provide recommendations and advice on the matters
pertaining to the welfare and betterment of the Scheduled Tribes in the states. The Schedule
granted the authority to the Governor of each state “to make regulations for the peaceful and good
governance of the State in any area of the state.”415 Thus, the Governor was “the sole Legislature
for Scheduled Areas and Scheduled Tribes.”416 The scope of Gubernatorial authority was of very
wide nature417 and was subject to only two restrictions418 :

(i) that the Governor would consult a Tribe Advisory Council before making any
regulation;419 and
(ii) (ii) that all regulations would receive the Presidential assent before taking effect.
Sixth Schedule420

The tribal areas in the states of Assam , Meghalaya , Tripura and Mizoram are separately dealt
with and the provisions for the administration in these states in the Sixth Schedule of the
Constitution. It provided that these tribal areas are to be administered by autonomous district
councils and the regional councils. The autonomous districts councils are not outside the state
executive by the provisions made by these district councils shall be applicable on these scheduled

414 TheFifth Schedule is made applicable to their jurisdiction by Article 244 of the Constitution.
415 Constitution of India , 1950 , Schedule V
416 Edwingson Bareh v. State of Assam ,AIR 1996 SC 1220.
417 Ram Kripal Bhagat v. State of Bihar , AIR 1970 SC 951, and V.S.S. Sastry v. State of Andhra Pradesh , AIR 1967 SC 71.
418 Edwingson Bareh v. State of Assam ,AIR 1996 SC 1220.
419 Constitution of India , 1950 , Schedule V para 4
420 The Sixth Schedule is made applicable to their jurisdiction by Article 244 of the Constitution.

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areas. These councils make laws mainly on certain specified fields such as management of forests
other than a reserved forests , inheritance of property , marriage and social customs, and the
government may confer these councils the power to try certain suits.

Failures

The Fifth Schedule fails because it has never been applied . The PESA should have been a
landmark for tribal communities. It mandates the state to devolve certain political , administrative
and fiscal powers to the local governments elected by the communities. This was majorly because
the Fifth Schedule gave importance and promoted tribal self governments.

The Sixth Schedule gave tribal communities considerable autonomy ; in the form of the District
Council and the Regional Council under the Schedule and these councils have real powers to make
laws on various legislative subjects , receiving grants in aids from the consolidate fund of India .
The embodiment of automony is on its own shortcoming ; breakdown of law in the Sixth
Schedule.

Panchayats (Extension to Scheduled Areas) Act , 1996 or PESA ,1996

Panchayats (Extension to Scheduled Areas) Act , 1996 or PESA is an Act to provide for the
extension of the provisions of Part IX of the Constitution relating to the Panchayats to the
Scheduled Areas in the 9 states of India. The Act extends the provisions to the 9 states namely
Andhra Pradesh , Chhattisgarh , Madhya Pradesh , Gujarat , Himachal Pradesh , Maharashtra ,
Jharkhand , Orrissa and Rajasthan ; these states are listed under the Fifth Schedule of the
Constitution.

The Act had certain important features out of which it endowed specifically various powers to the
Gram Sabha under the Act . These Powers are :-

• The power to enforce or to regulate or restrict the sale and consumption of any intoxicant;
• The ownership of minor forest produce;
• The power to alienation of land of the Scheduled Areas and to take appropriate action to
restore any unlawfully alienated land of a Scheduled Tribes;
• The power to manage village markets by whatever name they are called;

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 • The power to exercise control over institutions and functionaries in social sectors;
• The power to control over local plans and resources for such plans including Tribal sub-
plans .421
The Act was provided various powers to the various authorities but still suffered certain
shortcomings in its implementation. The various shortcoming can be summarised as :-

• PESA diluted at State Level : A comparative analysis of PESA and the legislations
enacted by the states on this subject matter shows that the provisions of the PESA have
been highly diluted in the process of ratification by the States and most of the powers of
the Gram Sabha have been given to the district administration or the Zila Parishad.
• Gram Sabhas continued at Revenue Village level instead of Hamlet Level: One major
impediment in implementation of PESA is the absence of a proper administrative
definition of village that is in consonance with the Act. All states, without exception have
continued with their earlier revenue definitions of the village. Thereby several revenue
villages are clubbed together to form Gram Panchayat.
• Ineffective Functioning of Gram Sabhas: The success of PESA hinges crucially on the
effective functioning of the gram sabha. Today , there is a large measure of exclusion of
women and children from the gram sabha. There is a need to ensure that gram sabhas
actually meet and become vibrant forum of participatory democracy and also to spread
greater awareness of laws such as PESA and the Forest Rights Act (FRA).
• Land Alienation and Land Acquisition: A clear and categorical provision should be
made in the Panchayati Raj Act or the revenue laws to empower the gram sabha to restore
the unlawfully alienated land to its lawful owner .
• Rights of Mines and Minerals : The mineral rules should be amended transferring all
quarries with annual lease value up to ₹ 10 lakhs to the gram sabha and panchayats at the
different levels. This dispersion should cover all minor minerals also the consent of the
concerned gram sabha should be made mandatory.
• Inadequate Administrative Mechanism : It is very clear that the existing administrative
structure have been found inadequate in the process of implementation of PESA. A
permanent body may be constituted to monitor and oversee the bodies under the Fifth

421 Section 4(m) of the Panchayat (Extention to the Scheduled Areas) Act , 1996.

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 Schedule under the PESA and FRA.422

Forest Rights Act , 2006

India’s forest are home to crores of people , including many scheduled tribes who live in or near
the forest areas of the country. Nearly 250 million people live in and around forests in India, out of
which majority population is Indigenous Adivasi or tribal population (100 million approx).423 As
it can be traced from the history , since time immemorial , the tribal communities of the India have
had an integral and close knit relationship with the forests and have been dependent on these
forests for their livelihood and existence. The relationship was mutually beneficial and not one
sided , but these rights were rarely recognized by authorities and because of the absence of the real
owners of the land , the local dwellers were to suffer.424 To safeguard and for the protection of the
forests in the country Forests Laws were enacted and the Forest Rights Act, 2006 is a key piece
legislation in India passed on 18th December , 2006. The Act claimed to redress the historical
425
injustice committed against the forest dwellers , by including provisions for making
conservation more effective and more transparent. This Act was a weapon for the struggle for
achieving the democracy in forests by the Scheduled Tribes and Forest Dwellers.

Significance of the Act

The Act is significant because for the first time the Forest Rights Act recognises and secures
following rights.

Types of Rights

The Act provided certain rights under Section 3(1) of the Act :-

1. Right to hold and live in the forest land under the individual or common occupation for
habitation or for self-cultivation for livelihood by a member or members of a forest
dwelling Scheduled Tribe or other traditional forest dwellers;
2. Community rights such as nistar, by whatever name called, including those used in

422 India’s Tribal laws , Career Launcher , June 5 ,2015, http://www.clexams.com/civils/blog/india-tribal-laws.html

423 http://www.thehindu.com/opinion/op-ed/article7358626.ece?m=dtp
424 http://greencleanguide.com/2012/12/16/forest-rights-act-part-1-2/
425 Statement of Objects and Reasons of the Forest Rights Act, 2006.

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 erstwhile Princely states, Zamindari or such intermediary regimes;
3. Right of ownership, access to collect, use, and dispose of minor forest produce( includes
all non-timber forest produce of plant origin) which has been traditionally collected within
or outside village boundaries;
4. Other community rights of uses of entitlements such as fish and other products of water
bodies, grazing (both settled or transhumant) and traditional seasonal resource access of
nomadic or pastoralist communities;
5. Rights including community tenures of habitat and habitation for primitive tribal groups
and pre-agriculture communities;
6. Rights in or over disputed lands under any nomenclature in any State where claims are
disputed;
7. Rights for conversion of Pattas or leases or grants issued by any local council or any State
Govt. on forest lands to titles;
8. Rights of settlement and conversion of all forest villages, old habitation, unsurveyed
villages and other villages in forest, whether recorded, notified or not into revenue
villages;
9. Right to protect, regenerate or conserve or manage any community forest resource which
they have been traditionally protecting and conserving for sustainable use;
10. Rights which are recognised under any State law or laws of any Autonomous Dist. Council
or Autonomous Regional Council or which are accepted as rights of Tribal under any
traditional or customary law of the concerned tribes of any State;
11. Right of access to biodiversity and community right to intellectual property and traditional
knowledge related to biodiversity and cultural diversity;
12. Any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or
other traditional forest dwellers, as the case may be, which are not mentioned in clauses-1
to 11, but excluding the traditional right of hunting or trapping extracting a part of the
body of any species of wild animal.

These rights can be summarised as follows :-

• Title Rights - i.e. ownership - to land that is being farmed by Tribal or forest dwellers as on 13

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 December 2005, subject to a maximum of 4 hectares; ownership is only for land that is
actually being cultivated by the concerned family as on that date, meaning that no new lands
are granted426
• Use Rights - to minor forest produce (also including ownership), to grazing areas, to
pastoralist routes, etc.427
• Relief and Development Rights - to rehabilitation in case of illegal eviction or forced
displacement;428 and to basic amenities, subject to restrictions for forest protection429
• Forest Management Rights - to protect forests and wildlife.430

The Act also provided that the Gram Sabha or village assembly , will initially pass a resolution
recommending whose rights to which resources should be recognised. This resolution is then
screened and approved at the level of sub- division and then subsequently at the district level.431

Failure of the Act

As it is evidently for the success of any Act it is very important to have a proper and effective
implementation of the Act . The failure in implementation of the Act is majorly because of
following reasons:-
▪ Rights Ignore : In most villages, an individual’s right to cultivable land in forests has been
ignored in different ways. Firstly, in many places, the claims of the villagers were delayed
without any reason. A claim has to pass through a sub divisional-level committee and then a
district-level committee. The rejection rate of claims is very high. Secondly, the claims are
substantially reduced by the administration despite gram sabhas’ approval.
▪ Disregard of Community Rights : Another important violation of the Act is the complete
disregard for the community rights of forest dwellers. Adivasis are vulnerable to exploitation by
forest officials; that is why community rights are so important. However, the administration is
treating the FRA as a land distribution scheme at best, without understanding the real problems
of Adivasis.

426 Section 3(1) of the Act.

427 Section 3(1) of the Act.
428 Section 3(1) of the Act.
429 Section 3(2) of the Act.
430 Section 3(1) of the Act.
431 Section 6(1) of the Act.

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▪ Gram Sabhas constituted at Revenue Village Level : The FRA clearly says that the gram
sabha should be the first unit at the hamlet level but in most places, gram sabhas have been
constituted at the revenue village level, which is usually represented by non-Adivasi
communities who work against the interests of Adivasis.
▪ Land Diversion : In the last few years, there has been a huge diversion of forest lands for
mining, even before gram sabhas had been formed and the process of recognising the rights of
Adivasis had begun.
▪ Attitude of Forest Bureaucracy : The problem with legislation like the FRA is that it requires
greater decentralisation of governance, with a central role for the gram sabha. However, the
existing top-heavy bureaucracy thinks of the FRA as an impediment.

International Instruments
United Nations Permanent Forum on Indigenous Issues (UNPFII)432
Indigenous peoples around the world have sought recognition of their identities, their ways of life
and their right to traditional lands, territories and natural resources; yet throughout history, their
rights have been violated. Indigenous peoples are arguably among the most disadvantaged and
vulnerable groups of people in the world today. The International Community now recognizes that
special measures are required to protect the rights of the world’s indigenous peoples. Indigenous
people have often found their lands and cultures overridden by more dominant societies.
Many Europeans at that time saw native peoples from regions such as Africa, Asia and the
Americas as “primitives,” or “savages” to be dominated. This would help justify settlement and
expansion into those lands, and even slavery. Without civilization these people could be regarded
as inferior, and if seen as “non-people” then European colonialists would not be impeding on
anyone else’s territory. Instead, they would be settling “virgin territory” overcoming numerous
challenges they would face with much courage. The various International Conventions obliges
governments to identify the lands and protect these rights. It ensures recognition of tribal peoples’
cultural and social practices, obliges governments to consult with tribal peoples about laws
affecting them, guarantees respect for tribal peoples’ customs, and calls for protection of their
natural resources. The struggle for such rights is still not over. Many governments routinely

432 Tribal Laws in India and Tribal Conventions on Rights of Indigenous People Worldwide , Akanksha Mishra , February

28 , 2012 , http://www.legalindia.com/tribal-laws-in-india-and-tribal-conventions-on-rights-of-indigenous-people-
worldwide/ , June 07, 2017.

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violate the rights of Indigenous people. This instrument laid down the foundation stone of
UNDRIP.
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
has not only made Municipal Laws and provisions for the protection of Indigenous people but the
need for the protection of Indigenous people has raised on the global platform as well . Thus, to
meet these needs and solve the problems faced by the tribes and the Indigenous people one of the
major International Instrument is The United Nations Declaration on the Rights of Indigenous
People (UNDRIP).
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by
the General Assembly on Thursday, 13 September 2007, by a majority of 144 states in favour, 4
votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions
(Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian
Federation, Samoa and Ukraine).433 While as a General Assembly Declaration it is not a legally
binding instrument under International Law.
UNDRIP codifies "Indigenous historical grievances, contemporary challenges and socio-
economic, political and cultural aspirations" and is the "culmination of generations-long efforts by
Indigenous organizations to get international attention, to secure recognition for their aspirations,
and to generate support for their political agendas."434
The main purpose of the Declaration is it sets out the individual and collective rights of
Indigenous peoples, as well as their rights to culture, identity, language, employment, health,
education and other issues. It also "emphasizes the rights of indigenous peoples to maintain and
strengthen their own institutions, cultures and traditions, and to pursue their development in
keeping with their own needs and aspirations". It "prohibits discrimination against indigenous
peoples", and it "promotes their full and effective participation in all matters that concern them
and their right to remain distinct and to pursue their own visions of economic and social
development".435
According to Article 31, there is a major emphasis that the indigenous peoples will be able to

433 "Declaration on the Rights of Indigenous Peoples". United Nations Permanent Forum on Indigenous Issues. Retrieved 11
December 2015.
434 The Rise of the Fourth World, The Centre for International Governance Innovation (CIGI), retrieved 20

September 2013.
435 Frequently Asked Questions: Declaration on the Rights of Indigenous Peoples United Nations Permanent Forum on

Indigenous Issues.

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protect their cultural heritage and other aspects of their culture and tradition, which is extremely
important in preserving their heritage.
Content
The Declaration is designed according to the United Nations resolution, with 23 Preambular
clauses and 46 Articles. Articles 1–40 concern particular individual and collective rights of
indigenous peoples; many of them include state obligations to protect or fulfil those rights. Article
31 concerns the right to protect cultural heritage as well as manifestations of their cultures
including human and genetic resources. Articles 41 and 42 concern the role of the United Nations.
Articles 43–45 indicate that the rights in the declaration apply without distinction to indigenous
men and women, and that the rights in the Declaration are "the minimum standards for the
survival, dignity and well-being of the indigenous peoples of the world," and do not in any way
limit greater rights. Article 46 discusses the Declaration's consistency with other internationally
agreed goals, and the framework for interpreting the rights declared within it.436
In Furtherance to the UNDRIP, there is The International Labour Organisation(ILO), Convention
concerning to the Indigenous and Tribal Peoples , 1989 and is based on the principle of “respect
for the culture and ways of life of indigenous peoples” and also recognises their “right to land and
natural resources and to define their own priorities for development.” India is not a party to this ,
but it is party to the ILO Convention which is concerned with the Protection and Integration of the
Indigenous and other Tribal and Semi- Tribal Population of the Country which is now outdated
and is closed for ratification.437

Conclusion
The tribes which form an important feature of the India’s diversity in the context of modern Indian
society signifies a group of people living in the hills and forests and having their own language
and a culture. Although there is a wide variation in the social organisation , customs , practices ,
culture and institutions of the tribes from the general population of the India. The tribal society in
India particularly remained isolated till the attainment of independence from the mainstream of
national life.
The Constitution of India provides various provisions for protection of Tribal and for
establishment of various institutions under Article 342 and 244 . The Introduction of the PESA in
436 http://www.unesco.org/new/en/indigenous-peoples/related-info/undrip/, June 05, 2017.
437 Protecting the Rights of Tribal, Pushkar Anand & Amit Kumar Sinha , February27,2017,
http://www.thehindu.com/opinion/op-ed/protecting-the-rights-of-Tribal/article17372134.ece, June 05, 2017.

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1996 was definitely signalled the intention of the Indian Parliament to abandon command-and-
control for new governance in the tribal areas . However, by choosing decentralization the law
makers made the mistake of matching the right idea with the wrong solution. The Fifth Schedule,
as part of the Constitution applies to the pockets of tribal areas scattered within the peninsular
regions of the vast country instead should have provided for a provision which shall uniformly
apply to all the tribal areas of the country. Encompassing these issues in a single work runs the
risk of trivializing the distinct problems faced by the tribes.
being the agro-based country and as majority population of the country depends on agriculture,
land and forests for their livelihood and shelter and tribal peoples are the major forest dwellers
thus , to protect their livelihood and habitat various Forest Laws were legislated by the Indian
Parliament. The Forest Rights Act , 2006 was a key legislation in relation to the protection of
forests and forest dwellers. The Act tried to secure the title rights, utility rights and also provided
the relief and development rights to the Tribal. The Act did not overlook the socio-economic
situation of the Country and thus the Act was welcomed by the people of all Scheduled Areas.
Indigenous peoples around the world have sought recognition of their identities, their ways of life
and their right to traditional lands, territories and natural resources; yet throughout history, their
rights have been violated. Indigenous peoples are arguably among the most disadvantaged and
vulnerable groups of people in the world today. The International Convention UNDRIP has
codified Indigenous historical grievances, contemporary challenges and socio-economic, political
and cultural aspirations" and is the culmination of generations-long efforts by Indigenous
organizations to get international attention, to secure recognition for their aspirations, and to
generate support for their political agendas. The main purpose of the Declaration as it sets out the
individual and collective rights of Indigenous peoples, as well as their rights to culture, identity,
language, employment, health, education and other issues.
Indigenous peoples around the world have sought recognition of their identities, their ways of life
and their right to traditional lands, territories and natural resources; yet throughout history, their
rights have been violated. Indigenous peoples are arguably among the most disadvantaged and
vulnerable groups of people in the world today. The international community now recognizes that
special measures are required to protect the rights of the world’s indigenous peoples. Keeping in
view the socio economic backwardness of tribes the framers of the Indian Constitution provided
special privileges for their development in independent India. Gradually it can be considered that

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because of the call of the situation many laws have been passed and a separate administrative
systems has been constituted with an aim to bring the tribes in mainstream of our ideal democratic
system. Thus, in last it can be concluded by saying that the laws which exists in the present
scenario is not accurate but need certain modifications to meet the challenges faced by the tribes in
this contemporary society.

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