NIRMA UNIVERSITY LAW JOURNAL

Bi-Annual Refereed Journal

ISSN 2249 – 1430

Volume XII • Issue II • July 2023

Chief Patron
Dr. Anup K. Singh
Director General, Nirma University

Editor in Chief
Dr. Madhuri Parikh

Editors
Dr. Wesahl Domingo
Dr. Manoj Kumar Sinha
Dr. Ujjwal Kumar Singh
Dr. Rajneesh Kumar Patel
Dr. Varsha Ganguly
Dr. Chhote Lal Yadav
Dr. Deba Ranjan Hota

Student Editors
Sejal Dass
Samarth Jain
 FOREWORD

Nirma University Law Journal has completed the eleventh year of a

landmark journey of publication exploring and changing dynamics of law
at national and global scenarios, with a sense of spirit of inquiry resulting
the new knowledge and path-breaking insights of mundane ideas and
ways of living.

I am pleased to present to you all the Volume -XII, Issue – II July 2023
Nirma University Law Journal (NULJ) Peer reviewed and Referred
Journal. The Journal aims to encourage writings that are interdisciplinary
in nature expanding contemporary issues across disciplines likewise as
sociology, Political Science, Public policy, Economics, Science and
Technology, and contemporary aspects in the context of law. I am happy
to share that the article that has been published in this Journal is indexed
to HeinOnline, Manupatra, and SSC Online. The overwhelming response
we received from contributors for the publication of Volume XII, Issue II.

The veritable contributions are indicative of the efforts and ingenuity of the
author, and the academic and practical impact on the reader its must be
credited to the qualitative and insightful writings of the authors. On behalf
of Nirma University, I congratulate the authors for maintaining the
highest standards of academic honesty and purity of thought.

We feel pride in being a medium of expression broadcasting novel ideas

and being a crucial platform for legal, interdisciplinary, and
contemporary legal discourse.

Prof. (Dr.) Madhuri Parikh

Chief Executive, Nirma University Law Journal
Director and Dean, I/c
Institute of Law, Nirma University
 TABLE OF CONTENTS

Articles

ACCESS TO JUSTICE THROUGH VIRTUAL COURTS: AN 01

ANALYSIS OF THE INDIAN SCENARIO
Rohit Pareek & Chirayu Vashishtha

EVOLUTION OF DESERTION AS A GROUND FOR DIVORCE 17

UNDER THE HINDU MARRIAGE ACT OF 1955
Shravin Relan

EXPLORING SOCIAL ENTREPRENEURSHIP IN INDIA'S 29

INLAND WATERWAYS
Rupesh Kumar & Dr. Sharad Kumar

REVISITING DALIT FEMINISM IN THE 21ST CENTURY 45

Pooja Yadav & Dr. Sudeep Basu

REDEFINING THE PARADIGM OF THE INDIAN LEGAL 59

SYSTEM THROUGH ARTIFICIAL INTELLIGENCE
Boddu Harshith Sai & Naveen Sharma

THE NON-REFOULMENT PRINCIPLE AND THE 83

ROHINGYA CRISIS: AN ANALYSIS OF THE HUMAN
RIGHTS AND LEGAL FRAMEWORKS FOR PROTECTING
REFUGEES FROM FORCED RETURN
Dayanidhi & Anish Kumar Sinha

“TRANS” FORMING SOCIETY THROUGH THE SOCIAL 103

INCLUSION OF “TRANS” GENDERS
Sakshi Tiwari and Sarvagya Agarwal

Book Review

A CONSTITUTION TO KEEP: SEDITION AND 123

FREE SPEECH IN MODERN INDIA
Hartej Singh Kochher
 ACCESS TO JUSTICE
THROUGH VIRTUAL COURTS:
AN ANALYSIS OF
INDIAN SCENARIO

Rohit Pareek*
Chirayu Vashishtha**
ABSTRACT

The Covid-19 pandemic has advanced the fostering of virtual courts in

India. While virtual courts have been utilized in India for a long time, the
pandemic has constrained a quick shift towards virtual trials and hearings.
In this unique circumstance, understanding the effect of virtual courts on
access to justice in India is fundamental. This paper maps the advantages
and disadvantages of virtual courts; lessening travel expenses, remote
access to courts, and adaptability in scheduling as advantages while the
digital divide and absence of actual presence could build a gamble of
specialised errors or security breaks as disadvantages. In the context of a
fair trial, the paper discusses the utilization of virtual courts that raises
worries about straightforwardness and accountability, and the
effectiveness of judicial framework. The absence of actual presence and
non-verbal signs could make it hard to evaluate the validity of witnesses or
the demeanour of parties.

Keywords: - Access, India, Justice, fair trial, Technology, Virtual Courts.

* ICFAI Law School, The ICFAI University, Jaipur, Rajasthan.

** ICFAI Law School, The ICFAI University, Jaipur, Rajasthan
02 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

1. INTRODUCTION

Access to justice in layman’s terms means approaching the courts and

judicial forums with minimal obstacles and through maximum ways for
seeking relief against any human rights abuses. In a democracy, the right of
access to justice is visualized as sine qua non.1 Access to justice has
encountered various phases of important transformation over the years
because initially it was considered symbolic to a mere formal right of an
aggrieved person to litigate or defend their interests before the court of law.
However, this understanding of access to justice progressed because it no
longer only refers to the basic right of litigation, but it also includes the
opportunity to receive redressals against violation of human rights in a just,
fair, and speedy manner. Technology advancement in recent times increased
the pace in terms of access to justice which in turns fulfilling the
contemporary trends in judicial system in India. Access to justice is a
constitutional right2, the judiciary has turned to virtual justice to minimize
social isolation and ensure that human rights are not violated. Much
technical advancement has been made in the judiciary, such as capturing
testimony by video conferencing3, however, the Covid-19 pandemic has led to
a significant shift in virtual courts..

Virtual courts, also known as online courts or e-courts, refer to the use of
technology to conduct legal proceedings remotely, without the need for
physical presence in a traditional courtroom. Through the use of video
conferencing, electronic filing, and other technological tools, virtual courts
have the potential to streamline the legal process, reduce costs, and increase
efficiency, thus improving access to justice for all.

One of the primary benefits of virtual courts is their ability to overcome

geographical barriers. In many countries, access to justice is limited for
individuals who live in remote or rural areas, where physical courts may be
1
Gurmeet Nehra, Access to justice: Role of legal aid in its complete realization, 2(5) Int. J.
Law, 77-83 (2016).
2
Anita Kushwaha v. Pushapa Sadan, (2016) 8 SCC 509.
3
State of Maharashtra v. Praful B. Desa, (2003) 4 SCC 601.
ACCESS TO JUSTICE THROUGH VIRTUAL COURTS: AN ANALYSIS... 03

far away and costly to access. Virtual courts can bridge this gap by allowing
litigants to participate in court proceedings remotely, eliminating the need
for travel and reducing costs associated with attending court hearings. For
example, in the case of State of Maharashtra v. Dr. Praful B. Desai4, the
Supreme Court of India held that virtual courts can be used to conduct
proceedings remotely in cases where the physical presence of the accused is
not necessary, thereby promoting access to justice for individuals in remote
areas. Furthermore, virtual courts can also improve access to justice for
individuals with disabilities or mobility issues. Physical courtrooms may not
always be accessible to individuals with disabilities, which can create barriers
to their participation in the legal process. Virtual courts, on the other hand,
can be designed to accommodate different accessibility needs, such as
providing closed captioning for individuals with hearing impairments or
allowing for remote sign language interpretation. This was highlighted in the
case of R. v. LaChance5, where the Supreme Court of Canada emphasized the
importance of ensuring equal access to justice for individuals with
disabilities and recognized virtual courts as a viable means to achieve this
goal.

The first and foremost virtual court of India was launched in Faridabad in
the year 2019. Up to then uncommon endeavors were made by the Indian
Judiciary to change over the conventional courts into virtual ones. The
Supreme Court of India launched an application uncovered by the Leader of
India, having the capability of successfully making an interpretation of
English legal records into nine vernacular dialects as well as the other way
around, The Supreme Court’s bilingual application called “Supreme Court
Vidhik Anuvaad Software” sustains the client with admittance to constant
legal information, insights, case status, audit screen, everyday orders, and
decisions, and so forth. Certain high-level advancements, for example,
catching testimony by video conferencing and so on have without a doubt
gotten easement and effectiveness in the method for the equity conveyance

4
Id.
5
R. v. LaChance, [1990] 2 S.C.R. 1490.
04 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

framework. The Supreme Court of India had given rules to guide the courts
at all levels to approach components for utilizing web-based
videoconferencing till the standardization of the circumstance. While High
Courts and many District Courts keep on hearing cases on the web, a few
legal counselors find it challenging to contend complex cases with volumes of
records through videoconferencing. In addition, there is a need for
normalization and consistency in the organization of software apparatuses
and rehearses in embracing virtual courts in India. After the fruitful launch
of the e-courts project, the e-courts documenting software is accessible for
use in 21 High Courts and 18,000 district courts of India. National
Informatics Centre has been involved in the computerisation of courts since
1990 and continues to do so to bring speedy access to justice to all litigants
across India. Certain projects like “The E-courts Mission Mode Project” (e-
Courts MMP) is an ambitious initiative by the Government of India to
modernize the Indian judiciary through the use of information and
communication technology (ICT). Launched in 2005, the e-Courts MMP
aims to automate court processes, digitize court records, and promote
transparency, efficiency, and accessibility in the Indian judicial system6 &
“National Judicial Data Grid” is a significant initiative that promotes
transparency, efficiency, and data-driven decision making in the Indian
judicial system. The NJDG has the potential to improve case management,
accountability, and accessibility, and facilitate evidence-based policy-
making. However, addressing challenges and ensuring complete and
accurate data will be crucial to realizing the full potential of the NJDG in
transforming the Indian judiciary.7

In the present time, where the quantities of internet users have expanded to
59% in India, the suggestion of having “virtual courts” is viewed as more
attainable than at any other time. Accordingly, organizing of innovation in

6
e-Courts Mission Mode Project, “About Us, (July 13, 2023, 9:29 PM) E-Courts Mission Mode
Project | Official Website of e-Committee, Supreme Court of India | India (ecommitteesci.
gov.in).
7
National Judicial Data Grid, “About NJDG”, (July 13, 2023, 9:29 PM) https://njdg.ecourts.
gov.in/njdgnew/index.php.
ACCESS TO JUSTICE THROUGH VIRTUAL COURTS: AN ANALYSIS... 05

the court cycle is the need of great importance. The use of virtual courts in
the Indian legal system has positively impacted access to justice by
overcoming barriers of geographical distance, cost of travel, and lack of
infrastructure, leading to increased efficiency, effectiveness, and expanded
access for marginalized populations.

RESEARCH OBJECTIVES

• To explore the concept of access to justice and its importance in the

Indian legal system.

• To examine the existing judicial system in India and identify the

challenges faced by the courts in ensuring access to justice.

• To evaluate the potential of virtual courts in enhancing access to justice

for litigants in India.

• To suggest measures for the effective implementation of virtual courts in

India and to address the challenges that may arise in the process.

RESEARCH QUESTIONS

• What is the concept of access to justice and how is it relevant to the

Indian legal system?

• What does the Indian judicial system face the challenges in ensuring
access to justice for litigants?

• How can virtual courts help in enhancing access to justice for litigants in
India?

• How have virtual courts impacted the efficiency and effectiveness of the
Indian judicial system?

• What measures need to be taken for the effective implementation of

virtual courts in India and how can challenges be addressed?
06 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

RESEARCH METHODOLOGY

In terms of methodology, this paper broadly covers the qualitative research

approach. This research study involves doctrinal methods in the study of the
problem at hand to answer the research questions while keeping in view the
research objectives.

II. LITERATURE REVIEW

R Jain & S Chaudhary provides an overview of the potential benefits and

challenges of virtual courts in India. The author argues that virtual courts
have the potential to significantly improve access to justice for marginalized
and vulnerable groups, particularly in rural and remote areas. However, the
author also acknowledges the need for a reliable technological infrastructure,
concerns about privacy and data protection, and the potential impact on the
legal profession.8

VK Agrawal in his article discusses the potential role of virtual courts in

improving access to justice in India, particularly in the context of reducing
case backlogs and improving efficiency. The authors argue that virtual courts
have the potential to significantly reduce the cost of legal proceedings for
litigants and the government. However, the authors also acknowledge the
need for a secure and reliable technological infrastructure.9

P Golder in his article provides a critical analysis of virtual courts in India,

discussing the potential benefits and challenges, as well as the need for a
comprehensive legal framework to ensure due process and protection of
rights. The author argues that virtual courts have the potential to
significantly improve access to justice for marginalized and vulnerable
groups, particularly in rural and remote areas. However, the author also
acknowledges concerns about the ability of virtual courts to maintain due

8
R. Jain and S. Chaudhary, The Renaissance of Virtual Courts: Towards the Digital Age, 4(3)
Int’l JL Mgmt. & Human., 5722 (2021).
9
V.K. Agrawal, Importance of Virtual Courts in India, 26 Supremo Amicus, 550 (2021).
ACCESS TO JUSTICE THROUGH VIRTUAL COURTS: AN ANALYSIS... 07

process and provide adequate opportunities for legal representation and fair
hearings.10

MI Hasan & B Mia in their article discuss the potential of virtual courts to
improve access to justice in India, including the potential to reduce costs and
improve efficiency. The authors argue that virtual courts have the potential
to significantly reduce the cost of legal proceedings for litigants and the
government. However, the authors also acknowledge the need for a
comprehensive legal framework to ensure due process and protection of
rights.11

Overall, these articles suggest that virtual courts have the potential to
significantly improve access to justice in India, particularly in rural and
remote areas. However, there are additionally difficulties and worries that
should be addressed to guarantee that virtual courts maintain due process,
protect privacy and data, and provide a fair and accessible justice system for
all.

BENEFITS OF VIRTUAL COURTS IN PROMOTING ACCESS TO

JUSTICE

Virtual courts in India refer to the use of technology to conduct legal

proceedings remotely, without the need for physical presence in a traditional
courtroom. Virtual courts can be used for various legal proceedings,
including hearings, case management, and document exchange, among
others. The use of technology in virtual courts includes video conferencing,
electronic filing, and other tools that enable remote participation in court
proceedings. In the case of Swapnil Tripathi v. Supreme Court of India12, the
Supreme Court of India highlighted the importance of virtual courts in

10
P. Golder, Future of Virtual Courts in India Post Pandemic: An Analysis, 7(2) IJRAR, 982-
987 (2020).
11
M.I. Hasan and B. Mia, Initiation of virtual court system during COVID-19 pandemic and e-
judiciary: challenges and way forward, 1(1) Daengku: Journal of Humanities and Social
Sciences Innovation, 8-17 (2021).
12
Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 628.
08 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

ensuring access to justice during the COVID-19 pandemic. The court

emphasized that virtual courts have enabled uninterrupted court
proceedings, facilitating access to justice for litigants across the country, and
helping reduce the backlog of cases.

One of the significant benefits of virtual courts in India is their ability to

overcome geographical barriers. India is a vast country with a diverse
population, and access to justice can be challenging for individuals who live
in remote or rural areas, where physical courts may be far away and costly to
access. Virtual courts can bridge this gap by allowing litigants and advocates
to participate in court proceedings remotely, eliminating the need for travel
and reducing costs associated with attending court hearings. In State of
Maharashtra v. Dr. Praful B. Desai13, the hon’ble SC recognized the
importance of virtual courts in conducting proceedings remotely in cases
where the physical presence of the accused is not necessary, thereby
promoting access to justice for individuals in remote areas. Virtual courts
have also been utilized to conduct trials of under-trial prisoners who are
lodged in jails in remote areas, allowing them to participate in court
proceedings without the need for physical transportation to the courts, as
seen in Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar14.

Furthermore, virtual courts in India can improve access to justice for

individuals with disabilities or mobility issues. Physical courtrooms may not
always be accessible to individuals with disabilities, which can create barriers
to their participation in the legal process. Virtual courts, on the other hand,
can be designed to accommodate different accessibility needs, such as
providing closed captioning for individuals with hearing impairments or
allowing for remote sign language interpretation. This was highlighted in the
case of the National Association of the Deaf v. Union of India15, where the
Supreme Court of India emphasized the importance of ensuring equal access

13
Supra note 5.
14
Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, (1980) 1 SCC 81.
15
National Association of the Deaf v. Union of India, W.P. (C) No.6250/2010.
ACCESS TO JUSTICE THROUGH VIRTUAL COURTS: AN ANALYSIS... 09

to justice for individuals with disabilities and recognized virtual courts as a

viable means to achieve this goal. Another significant advantage of virtual
courts in India is their potential to reduce court backlogs and expedite the
legal process. The Indian judiciary has been grappling with a backlog of
cases, leading to delays in the resolution of disputes and prolonged legal
battles. Virtual courts can help alleviate this issue by leveraging technology
to streamline court proceedings, allowing for faster scheduling of hearings,
electronic filing of documents, and remote access to court records. For
example, during the COVID-19 pandemic, the Indian judiciary turned to
virtual court systems to continue their operations, which helped reduce the
backlog of cases and ensured access to justice was not severely impacted.

Virtual courts in India also offer cost-effective solutions for litigants.

Traditional court proceedings involve various costs such as travel expenses,
accommodation costs, and loss of wages for litigants, witnesses, and lawyers.
Virtual courts eliminate these costs as they allow remote participation in
court proceedings, reducing the financial burden on litigants. In Santhini v.
Vijaya Venketesh16, the Court recognized the cost-saving benefits of virtual
courts. The court held that virtual courts can significantly reduce the
expenditure incurred by litigants in attending court hearings, especially in
cases involving parties residing in different cities or countries, and can thus
enhance access to justice by making it more affordable. Also, in Salem
Advocate Bar Association v. Union of India17, the Apex Court of India
recognized the cost-saving benefits of virtual courts. The court highlighted
that virtual courts could lead to significant savings in time, effort, and
money, as they reduce the need for travel and other expenses associated with
physical court appearances. The court further noted that virtual courts could
enable more efficient utilization of judicial resources and reduce the burden
on the traditional court system.

Efficiency is another significant benefit of virtual courts in India. Traditional

courts often face challenges such as delays, adjournments, and backlogs,
16
Santhini v. Vijaya Venketesh, (2018) 1 SCC 62.
17
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
10 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

resulting in a slow and cumbersome judicial process. Virtual courts, on the

other hand, can streamline court proceedings by leveraging technology.
Digital platforms can enable seamless communication, document sharing,
and video conferencing, reducing the need for physical movements and
paperwork. This can result in faster and more efficient resolution of disputes.
In the case of Central Electricity Regulatory Commission v. National
Hydroelectric Power Corporation Ltd.18, the Supreme Court of India
highlighted the efficiency benefits of virtual courts. The court observed that
virtual courts could reduce the time and effort required for court proceedings
and enhance the speed and efficacy of justice delivery. The court further
noted that virtual courts could facilitate the exchange of information and
evidence in a more efficient manner, leading to quicker dispute resolution.

III. CHALLENGES TO VIRTUAL COURTS IN

PROMOTING ACCESS TO JUSTICE

Virtual courts, also known as e-courts or online courts, have gained

momentum in recent years as a way to modernize the Indian justice system.
These courts use digital platforms and technology to conduct court
proceedings remotely, eliminating the need for physical presence in a
traditional courtroom setting. While virtual courts offer numerous benefits,
including increased access to justice, cost-effectiveness, efficiency, and
transparency, they also face several challenges.

One of the primary challenges to virtual courts in India is the lack of

adequate infrastructure, particularly in remote areas. Access to reliable
internet connectivity, electricity, and necessary hardware, such as computers
and cameras, can be limited in many parts of the country. This poses a
significant challenge for the effective functioning of virtual courts, as both
litigants and court officials require reliable technology infrastructure to
participate in online court proceedings. The effectiveness of virtual courts is
contingent upon the availability of reliable internet connectivity, and

18
Central Electricity Regulatory Commission v. National Hydroelectric Power Corporation Ltd.,
(2010) 10 SCC 280.
ACCESS TO JUSTICE THROUGH VIRTUAL COURTS: AN ANALYSIS... 11

highlighted the need for the government and other stakeholders to address
the infrastructure gaps to ensure the smooth functioning of virtual courts
across the country.

Another challenge to virtual courts in India is the technological limitations of

the digital platforms used for court proceedings. While technology has
advanced rapidly, there are still limitations in terms of the functionality and
reliability of virtual court platforms. Technical glitches, such as video lag,
audio disruptions, and connectivity issues, can hamper the smooth conduct
of court proceedings and adversely impact the quality and efficiency of
justice delivery. Virtual courts are still in the nascent stage in India and face
challenges in terms of technical reliability and functionality. The need for
continuous improvement of virtual court platforms to overcome
technological limitations and ensure the effectiveness of online court
proceedings. The Supreme Court of India, in the case of Naresh Sridhar
Mirajkar v. State of Maharashtra19, recognized the importance of
technological infrastructure for virtual courts. The court observed that the
successful implementation of virtual courts requires adequate technological
infrastructure, including reliable internet connectivity and other necessary
tools. In Shreya Singhal v. Union of India20, the Supreme Court of India
recognized the importance of technological infrastructure for the effective
implementation of virtual courts. The court observed that technological
advancements were necessary to ensure that virtual courts function
optimally and provide access to justice to all citizens, including those in
remote areas. The court emphasized the need for continuous improvement of
technology infrastructure to overcome challenges in the implementation of
virtual courts.

Virtual courts also face procedural hurdles, including challenges related to

the admissibility of electronic evidence, authentication of documents, and
the requirement for physical signatures. In the Indian legal system, there are

19
Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
20
Shreya Singhal v. Union of India, AIR 2015 SC 1523.
12 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

specific procedural requirements and evidentiary rules that may not be

seamlessly applicable to virtual court proceedings. This can pose challenges
in terms of the admissibility and authentication of electronic evidence,
leading to potential disputes and delays in the resolution of cases. In Shafhi
Mohammad v. State of Himachal Pradesh & Ors.21, the Apex Court of India
addressed the procedural challenges of virtual courts. The court
acknowledged that virtual courts may face challenges in terms of the
admissibility and authentication of electronic evidence and emphasized the
need for the development of appropriate rules and procedures for virtual
court proceedings to ensure the smooth functioning of online courts.

Virtual courts involve the use of digital platforms for sharing, storing, and
processing sensitive legal information. This raises concerns over data
security and privacy. There may be risks of data breaches, unauthorized
access, and tampering with court records and documents. Additionally,
virtual court proceedings may require the recording and storing of audio and
video data, which raises concerns over the privacy rights of litigants and
other participants in the court proceedings. In the State of Maharashtra v.
Dr. Praful B. Desai & Ors.22, the Apex Court of India emphasized the need to
ensure the security and confidentiality of virtual court proceedings. The
court observed that virtual courts should have robust security measures in
place to protect against unauthorized access to court records and
information. The court further noted that virtual courts should also ensure
that sensitive information, such as personal data and evidence, is handled in
a confidential manner.

Virtual courts in India also face legal and ethical implications that need to be
addressed. For example, issues related to the admissibility and authenticity
of electronic evidence, the role of virtual court intermediaries, and the ethical
considerations of conducting court proceedings online, such as privacy
concerns and ensuring equal representation, require careful deliberation and

21
Shafhi Mohammad v. State of Himachal Pradesh & Ors., (2018) 2 SCC 801.
22
Supra note 5.
ACCESS TO JUSTICE THROUGH VIRTUAL COURTS: AN ANALYSIS... 13

guidelines. In the case of Shafhi Mohammad v. State of Himachal Pradesh23,

the Supreme Court of India highlighted the legal and ethical implications of
virtual courts.

IV. BEST PRACTICES FOR VIRTUAL COURTS IN INDIA TO

PROMOTE ACCESS TO JUSTICE

Access to justice is a fundamental right and a cornerstone of any democratic

society. However, in recent times, the traditional approach to dispensing
justice through physical courtrooms has faced numerous challenges, such as
backlog of cases, limited resources, and geographical barriers. As a result,
virtual courts have emerged as a viable alternative to ensure access to justice
for all citizens in India. Virtual courts refer to the use of technology,
particularly videoconferencing and other digital platforms, to conduct court
proceedings remotely. However, the effective implementation of virtual
courts requires adherence to best practices to ensure fairness, transparency,
and efficiency. These can be certain best practices for virtual courts in
promoting access to justice:

a. Ensuring Equal Participation and Accessibility: Virtual courts

must ensure that all parties, including litigants, lawyers, and judges, have
equal access to the proceedings. It is crucial to ensure that the technology
used for virtual courts is user-friendly and accessible to individuals with
disabilities, ensuring that no one is left behind. In the case of the State of
Maharashtra v. Dr. Praful B. Desai24, the Supreme Court of India emphasized
the importance of providing equal opportunities to all individuals, including
those with disabilities, in accessing justice. Virtual courts should also provide
support services, such as sign language interpretation, for individuals with
hearing impairments, and facilitate reasonable accommodations for
individuals with visual impairments.

b. Protecting Privacy and Confidentiality: Virtual courts must

prioritize the protection of privacy and confidentiality of the parties involved
23
Supra note 23.
24
Supra note 5.
14 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

in the proceedings. The use of secure videoconferencing platforms and other

technology with robust encryption and data security measures is crucial to
prevent unauthorized access or leakage of sensitive information. Virtual
courts must also ensure that the recording of proceedings is done only for
official purposes and is not disseminated without proper authorization. In
the case of K.S. Puttaswamy v. Union of India25, the Supreme Court of India
recognized the right to privacy as a fundamental right under the Indian
Constitution and emphasized the need to protect personal information from
unauthorized access.

c. Maintaining Transparency and Accountability: Virtual courts

must maintain transparency and accountability in their proceedings to
ensure public trust and confidence in the justice system. All virtual court
proceedings should be recorded, and the recordings should be preserved
securely for future reference. In the case of Swapnil Tripathi v. Supreme
Court of India26, the Supreme Court of India emphasized the importance of
transparency in court proceedings and directed the courts to ensure that
video recordings of proceedings are made available to the public upon
request. Virtual courts should also ensure that court documents and orders
are made available online in a timely and accessible manner.

d. Conducting Fair and Impartial Proceedings: Virtual courts must

ensure that all parties are provided with an opportunity to be heard and
present their case effectively. Judges must conduct virtual court proceedings
in a fair and impartial manner, adhering to the principles of natural justice.
In the case of A.R. Antulay v. R.S. Nayak27, the Supreme Court of India
emphasized the importance of fairness and impartiality in court proceedings
and held that a hearing must be meaningful and effective. Virtual courts
should also provide clear instructions to all parties on the conduct of virtual
proceedings, including the use of virtual tools, timelines, and procedures, to
ensure that all parties have a level playing field. Also, in the case of Amitabha

25
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
26
Supra note 14.
27
A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531.
ACCESS TO JUSTICE THROUGH VIRTUAL COURTS: AN ANALYSIS... 15

Dasgupta v. United Bank of India28, the Calcutta High Court directed that
virtual court proceedings should be recorded and transcribed, and the
parties should be provided with copies of the transcripts for reference.

e. Ensuring Technological Infrastructure: The success of virtual

courts depends on the availability of robust technological infrastructure,
including internet connectivity, video conferencing facilities, and secure
platforms for court hearings. It is imperative that virtual courts have reliable
and secure technology infrastructure to ensure smooth functioning of court
proceedings without any technical glitches. In the case of Paramveer Singh
Saini v. Baljit Singh and Others29, the Punjab and Haryana High Court
emphasized the need for adequate infrastructure for virtual courts, stating
that “adequate infrastructure, technical facilities and manpower must be
provided to ensure effective functioning of virtual courts.”

f. Facilitating Access to Virtual Courts: Virtual courts should be easily

accessible to all stakeholders, including litigants, lawyers, and judges.
Measures should be taken to provide necessary training and technical
support to those who may face difficulties in accessing virtual courts due to
lack of familiarity with technology.

g. Ensuring Effective Legal Representation: Virtual courts should

ensure that litigants have effective legal representation, and lawyers have the
necessary tools and resources to effectively represent their clients in virtual
court proceedings. Measures ought to be taken to guarantee that lawyers
have access to relevant case laws, legal databases, and research tools during
virtual court hearings.

V. CONCLUSION

Access to justice through virtual courts has emerged as a promising solution

in the Indian scenario to address challenges such as backlog of cases,
geographical barriers, and cost of litigation. Virtual courts have the potential
28
Amitabha Dasgupta v. United Bank of India, (2021) SCC OnLine SC 124.
29
Paramveer Singh Saini v. Baljit Singh and Others, (2021) 1 SCC 184.
16 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

to improve accessibility, enhance efficiency, and reduce costs, while also

promoting inclusivity and leveraging technology for a more streamlined
justice system. However, successful implementation of virtual courts in India
requires robust technological infrastructure, capacity building for
stakeholders, inclusivity measures, cyber security protocols, and data privacy
regulations. A balanced approach that combines virtual and physical court
proceedings, along with a focus on addressing the needs of vulnerable
populations, is essential. Overall, virtual courts have the potential to
transform the Indian justice system and make justice more accessible and
efficient for all. Continued efforts in improving technology infrastructure,
capacity building, inclusivity, and cyber security measures will be key to
realizing the full benefits of virtual courts in ensuring access to justice for all
citizens in India.
 EVOLUTION OF DESERTION
AS A GROUND FOR DIVORCE
UNDER THE HINDU
MARRIAGE ACT, 1955

Shravin Relan*

ABSTRACT

This paper examines the concept of desertion under the Hindu Marriage
Act, of 1955 and how the concept has evolved over the course of time. The
paper also looks at the recent development on the ground of desertion for
divorce by the High courts and the Supreme Court. An attempt has been
made through the work to understand via the case laws the evolution of the
term “desertion” and its elements. The significance of 2 year waiting period
after the taking place of desertion is also discussed in detail as the stance of
the courts on its importance and on what basis this compulsory period is
criticized. There has also been a discussion on the various types of desertion
which are existing under the law. Lastly, the termination of desertion has
been examined in brief. The paper in its conclusion portrays how just like
two sides of a coin, desertion despite being well-formed legislation, has
loopholes that are often been exploited by the deserting party, while the
deserted party has no rights in that regard and has to remain a mute
spectator.

Keywords- Desertion, Hindu Marriage Act, separation, animus

deserendi.

* Jindal Global Law School.

18 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

I. INTRODUCTION

Marriage is considered to be a sacred and holy union between two

individuals as a social institution. The special contract between the two
individuals could only be terminated when any of the spouses commits an
act that inherently undervalues the significance of the institution of
marriage. Section 13 of the HMA of 1955 mentions numerous grounds for
divorce. One of the grounds on which a divorce petition may be filed is the
desertion mentioned under Section 13(1)(i)(b). In 1976, an amendment was
made to the Hindu Marriage Act, of 1955 through which desertion was added
as a ground for divorce, prior to the amendment desertion was only
considered to be a ground for seeking the relief of judicial separation. The
petition for divorce on the grounds of desertion can be filed when the
deserting party deserts the deserted party without any reasonable cause and
without the consent of the other party for a continuous period of 2 years
immediately before the filing of the petition. Desertion can also be termed as
the repudiation of marital obligations i.e., putting an end to the marital bond
which is the foundation on which marriage is built. 1

In the case of Prabhakar Govindrao Bokade vs Mangala Prabhakar Bokade

(1989)2 the Bombay High Court was of the opinion that the term “desertion”
cannot have a fully comprehensive definition but rather would be
determined by the facts and circumstances pertaining to each case on an
individual level in line with the meaning of Section 13(1)(i)(b) of the Hindu
Marriage Act, 1955. In the landmark case of Lachman v/s Meena(19633), SC
expanded the interpretation of the term “desertion” in its very essence to
include the intentional act of one spouse of leaving the matrimonial home
and refusing to cohabit without any reasonable cause or consent of the other
spouse. Desertion as a concept was also held to include wilful neglect by one
spouse towards the other spouse in a marriage. SC while expanding the
ambit of desertion held that if one of the parties wilfully refuses to take care

1
Section 13(1)(i)(b), Hindu Marriage Act, 1955
2
1992 0 MhLJ 1098
3
Lachman Utamchand Kiriplani v. Meena alias Mota, AIR 1964 SC 40
EVOLUTION OF DESERTION AS A GROUND FOR DIVORCE UNDER THE HINDU... 19

of the other party or fulfill the needs of the spouse with the knowledge that
such wilful neglect would lead to negative consequences for the other spouse,
is said to have committed desertion. The burden of proof lies on the party
filing the petition and such party needs to prove beyond reasonable proof
that the other spouse is guilty of desertion.

Courts have time and again also insisted on the use of corroborative evidence
for proving the offense of desertion. There is no necessity to produce
corroborative evidence, however, courts have given preference to the parties
which are successfully able to produce such corroborative evidence to
support their narrative. In the case of Dr. Malathi Ravi, MD vs B.B Ravi MD
(2014)4, the wife was alleged to have committed desertion by her husband on
the accusation that she had left him without his consent and thereafter, the
two did not meet for a significant period of time. The corroborating evidence
proved that the husband’s accusations were wrong as the husband and his
family wilfully refused to attend the naming ceremony. In addition, the
husband had met the wife while she was completing her studies. Therefore,
even though not absolute but courts preferred to base the decision taking
note of corroborative evidence.

In the case of Rajalaxmi Ammal v/s Jambulinga Muralidhar (1954)5,

Madras HC asserted that the withdrawal from cohabitation and
abandonment of one spouse by the other without the consent of the deserted
spouse is considered desertion only when such an act is done deliberately. In
Savitri Pandey v/s Prem Chandra Pandey (2002)6 the Allahabad High Court
elaborated on the concept of desertion and said that desertion is the total
repudiation of marital obligations, not the departure from a place, but rather
from the circumstances. A single act cannot be defined as desertion, rather is
a continuing course of conduct and previous cohabitation between the
parties is a necessity for desertion to take place.

4
Dr. (Mrs.) Malathi Ravi, M.D. v. Dr. B.V. Ravi (2014) (7 SCC 640)
5
AIR 1956 Mad 195
6
AIR 2002 SC 591
20 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

II. ELEMENTS OF DESERTION

It was in the case of Bipin Chandra Jaisinghbai vs Prabhavati (1957)7 that

the Supreme Court of India clarified the elements concerning the issue of
desertion in India. It was held that to successfully argue for desertion, it
needs to be proved, on deserting spouse’s behalf, that a) there was an act of
separation, b) there existed an intention to cease the cohabitation
permanently. Two other elements also need to be proved, on the deserted
spouse’s behalf, that a) the act of separation was not consensual, and b) there
existed no conduct which provided the other party with reasonable ground to
leave the matrimonial bond. The act of separation and the intention to leave
the matrimonial cohabitation should be present at the same time for the
occurrence of desertion to take place. Only the act of separation alone will
not amount to desertion, in the same way, the mere intention to bring the
cohabitation to an end would not constitute desertion. The same view was
reiterated in the case of Bhupinder Kaur Vs Budhi Singh (2002)8, where it
was held that only the act of a party living away from the other party for a
significant period of time cannot be held to impose animus deserendi or the
intention to move out of marital cohabitation on the said party. Further, in
the case of Pradeep Kumar Kalita Vs Hiran Provo Kalita( 2003)9, Guwahati
High Court was of the opinion that the wife’s decision to leave the
matrimonial home and live in her parent’s house with them because of the
fact that the husband refused to let her stay in her own matrimonial home,
would not be held against her and thus, the wife cannot be held guilty of the
offense of desertion. In the case of Manjit Kaur Vs Mohan Singh (2006)10,
an army officer filed a petition in the Punjab & Haryana High Court, alleging
desertion on part of his wife as the wife stayed with him in his house when he
came back, but left to stay in her parent’s house as soon as he went away for
his duty. The court held that the wife cannot be held to be guilty of desertion
since the act of separation should be towards the spouse and not the spouse’s
7
Bipin Chandra v. Prabhawati, AIR 1957 SC 173
8
Bhupinder Kaur Vs Budhi Singh, AIR 2002
9
2002 0 AIR(Gau) 60
10
AIR 2006-3-545
EVOLUTION OF DESERTION AS A GROUND FOR DIVORCE UNDER THE HINDU... 21

family. Also, the court found that there existed no intention on the part of the
wife to desert her husband since she chose to stay with him every time he
was back in his home on leave.

In P. Kalyanasundaram Vs K Paguialatachamu (2003)11, the Madras High

Court took notice of the wife’s intention, accused of desertion by her
husband. The wife lived separately from her husband and continued to do so
for 14 years, however, one day somehow accepted her husband’s request to
come back and live with him. But she failed to come back and cohabit with
her husband for even a single day and filed a suit for separation from her
husband. The filing of the suit made it quite clear that she had animus
deserendi and had already been living separately, thus she was held to be
guilty of desertion. Court found that the wife’s act of filing a suit indicates
her intention to never come back to her husband, i.e., (animus non-
revertendi).

III. SIGNIFICANCE OF 2 YEAR PERIOD

The 2-year period in Section 13(1)(i)(b) of the Hindu Marriage Act, 1955 is
not an aggregate period, but rather has to be a continuous period for which
the parties were separated and never lived together during the stretch of the
period. In case the deserting spouse comes back prior to the expiration of the
period, the waiting period will start all over from the time the deserting
spouse leaves the matrimonial house again. Desertion continues even after 2
years if the parties continue to live separately and become actionable only
when a petition for separation is filed or a petition for divorce is filed on the
grounds of desertion. Desertion is an inchoate offense that only comes into
effect when a petition is filed in a court of law. If the parties continue to live
separately for 5 years and after that decide to resume their marital
cohabitation, desertion will be held to be void as there was no petition for
divorce with desertion as a ground for the period in which they were living
separately.

11
2004 0 AIR(Mad) 43
22 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

In the case of Santosh Kumari Vs Shiv Prakash Sharma (2001)12, the court
said that the petition for divorce will be entertained in the court of law, in
cases where the statutory period has not expired since the alleged desertion.
The case of Satgunj Vs Rahmat Dil Murad (1946) 13held that the time frame
of 2 years does not indicate several short spells of unwillingness to live
together as an aggregate, but rather means a continuous period of 2 years.

In the case of Rakesh Ranjan Vs Dr. Anita Sood (1989)14, the wife cohabited
with her husband in their matrimonial home for a few days, after which the
husband went away for the resumption of his duties in the Katni district.
After passing of 25 days, the wife shifted to the hostel in the medical college
she was studying. After the completion of her course, she got a job at a
hospital. She wrote letters to her husband stating that she wanted to resume
marital cohabitation with them, however, she insisted on not staying with his
whole family as she felt the house gets congested in such a case.

TYPES OF DESERTION

Desertion can be classified into 2 basic categories as Actual desertion as well

as Constructive desertion. However, the courts have evolved 2 other types of
desertion namely, Mutual Separation and Supervening desertion, which have
come to exist.

1) ACTUAL DESERTION- Actual Desertion takes place when a spouse in

the marriage abandons the other spouse which results in the complete
refusal to perform their part of the marital obligations and such party
permanently ceases to cohabit with the other spouse in their own
matrimonial home. The origin of actual desertion can be linked to the
co-existence of the act of separation and animus deserendi on the behalf
of the same spouse.

12
2001 5 AD(Del) 963
13
Satgunj v. Bahmat Dil Murad, 1946 (33) AIR(Sind) 48
14
Rakesh Ranjan Vs Dr. Anita Sood, AIR 1989
EVOLUTION OF DESERTION AS A GROUND FOR DIVORCE UNDER THE HINDU... 23

2) CONSTRUCTIVE DESERTION- Constructive Desertion occurs when

the behavior of one party makes it increasingly difficult for the other
party to cohabit in the same matrimonial house. Behavior and the
conduct of one spouse become so unreasonable that the other spouse
cannot be expected to be with the former. It can be called a compulsive
measure on the part of the petitioner in the form of desertion. In cases
of constructive desertion, it is the party that makes the circumstances
difficult for the other party either by the use of words or conduct and
ultimately forces them to leave the marital bond will be held guilty of
constructive desertion, even if it is the other party which has physically
exited the matrimonial home.

In the case of Rengaki Vs Arungiri (1993)15, the husband brought a

mistress into the same house in which he and his wife were residing,
even after the wife’s protest. The husband had sexual intercourse with
the mistress at the time of his wife’s presence, which forced to wife to
abandon her matrimonial home. The Court held that the husband was
guilty of desertion since it was his unreasonable acts that had driven the
wife out of the marital home.

In the case of Dharam Dev Malik Vs Rajrani (1984)16, the husband

relying on the faithfulness of the wife sent her to stay with her father at
his home after about roughly 1.5 years of marriage. The wife stayed at
her father’s house for 15 years and in all these 15 years there was never
an attempt made by the husband’s side to re-establish cohabitation with
his wife. So, when a petition was filed by the husband for divorce on the
ground of desertion, the court rejected his petition, and the husband
was held guilty of constructive desertion.

3) SUPERVENING DESERTION- Supervening Desertion occurs when

there is an act of separation on the part of one spouse, however, there
exists an intention to come back again and make cohabitation possible,
15
Rengaki V/s Arungiri, AIR, 1993
16
Dharam Dev Malik V/s Rajrani, AIR, 1984
24 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

but later there develops an intention to not return and desert the other
spouse. If a spouse goes out of the matrimonial home for work with the
intention to come back after her work, but subsequently develops an
intention to cease marital cohabitation and not return, at that stage
since the intention is there to cease the matrimonial obligations and not
return, this spouse is the deserter while the other spouse is the deserted
party. The statutory waiting period commences from the time the
intention was formulated of not returning to the matrimonial home.

4) MUTUAL DESERTION- Mutual Desertion occurs when both spouses

without expressly taking each other’s consent start to live separately
from each other, However, there is no mention of this type of desertion
in HMA, 1955.

IV. COURT’S INTERPRETATION OF DESERTION - RECENT

DEVELOPMENTS

• The Chhattisgarh High Court recently in the case of Hemant Parasar

V/s Kamini Parasar (2018)17 held that the act of a wife taking up a Job
at a place other than her marital home cannot be said to fall within the
meaning of desertion. In this case, the wife had landed a job at some
place other than her marital home and her husband pressurized to not
join the job at the place of posting, while the wife still accepted the offer
of the job and had to leave her matrimonial home, without the consent
of her husband. Therefore, the husband filed a petition for divorce on
the ground of desertion. The court while dismissing the petition
reasoned that the wife in today’s world cannot be restricted in the
sphere of her marital obligations and the balance of the matrimonial
relationship is dependent on both wives as well as the husbands.

• Jharkhand High Court recently in the case of Sanjay Kumar Vs Suman

Kumari (2020)18, held that desertion as a ground for divorce should be

17
2018 SCC OnLine Chh 663
18
2020 SCC OnLine Jhar 773,
EVOLUTION OF DESERTION AS A GROUND FOR DIVORCE UNDER THE HINDU... 25

committed wilfully and voluntarily. In response to the suit filed by the

husband, the wife contended that she agreed to cohabit in a respectful
manner in her marital home while the husband did not agree to the
same. The court rejected the suit filed by the husband and reasoned that
the act of separation when done wilfully and voluntarily without any
reasonable cause, would be considered desertion. In this case, the
couple had to live separately due to the acts of the husband, thus no
desertion on the part of the wife.

• The Supreme Court in the case of Debananda Tamuli Vs Kakumoni

Kataky (2022)19, held that the deserting spouse can only stay away from
the matrimonial home with a reasonable cause. If the court finds that
there is no reasonable cause, it can hold the deserting spouse to be
guilty of desertion. In this case, the wife and the husband were living
separately since 2009. The wife paid a visit to her marital home for a
single day on the account of the death of her mother-in-law and it can
reasonably be inferred that there existed no intention on her part which
prompted her to the resumption of marital cohabitation with her
husband. The court reasoned that the wife had no reasonable cause to
be living exclusive of her marital boundaries. Thus, she was held guilty
of desertion.

TERMINATION OF DESERTION

Termination of desertion can take place in three distinct ways –

1) Resumption of Cohabitation- Once the spouses start living together

again, desertion ceases to exist, notwithstanding the tenure of the
desertion period. The resumption of marital cohabitation should be
with the consent of both parties and the intention of the parties to
reconcile and live together again. Temporary restoration of marital
cohabitation would not lead to the end of desertion. Thus, the mental

19
2022 SCC 167
26 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

and physical act of resumption of cohabitation is necessary for desertion

to end.

2) Resumption of Marital Intercourse- Resumption of marital intercourse

would also bring desertion to an end. However, the casual acts of
marital intercourse would not result in cessation of desertion. After the
marital intercourse has taken place, if the parties feel the need to get
separated due to circumstances that become inescapable for the parties
involved, then the cessation of desertion does not take place.

3) Offer for reconciliation- The desire by the deserting spouse to restore

marital cohabitation would result in the cessation of desertion. In the
event of the refusal of the deserted spouse to cohabit with the deserting
spouse, guilt would be shifted to the deserted spouse. The offer by the
deserting spouse should be made with the desire for the resumption of
matrimonial cohabitation and the means for the fulfilment of such
intention should be justified. The offer so made should also not have
any unfair or arbitrary conditions attached to it which makes the
resumption of marital restoration extremely difficult. The deserting
spouse making the offer should be free from committing any marital
wrong or misconduct.

V. CONCLUSION

Just like two sides of a coin, desertion being a ground for divorce has two
sides- first, it has been a savior and acted as a ground for divorce for the
spouses not willing to live with their spouses for reasonable causes, while on
the other hand, 2 year waiting period seems to be too severe and
burdensome for the spouses with the knowledge that the other spouse is
highly unlikely to return even after the waiting period. Thus, the concerned
spouse has to complete the waiting period in order to file a petition for
divorce under the ground of desertion. In these cases, it becomes very
difficult to procure evidence that exemplifies that there existed an intention
on the part of other spouses to bring an end to cohabitation. It can be
EVOLUTION OF DESERTION AS A GROUND FOR DIVORCE UNDER THE HINDU... 27

concluded, that there exist some lacunas in the legislation which need to be
altered to specifically take into account the concerns and apprehensions of
spouses in our country.
 EXPLORING SOCIAL
ENTREPRENEURSHIP IN
INDIA'S INLAND
WATERWAYS

Rupesh Kumar*
Dr. Sharad Kumar**
ABSTRACT

The Indian government has undertaken several initiatives to enhance

maritime and international trade, including lowering the cost of freight
logistics, fostering social entrepreneurship, and developing inland
waterways. After the declaration under the National Waterways Act of
2016, 111 National Waterways were also considered for integrated
development. 17 National Waterways are moving freight. Consequently,
opportunities for social entrepreneurship are created. Cargo
transportation requires development of ports and terminals. It impacts the
project influence area, creating a hinterland for cargo supply and
generating employment opportunities for social entrepreneurs. This
research focuses on the social entrepreneurship opportunities provided by
the development of National Waterways in India, mainly for its
stakeholders. Developing inland waterways is expected to create an
ecosystem of social entrepreneurship. Descriptive statistics were used to
answer the research question of the study. The findings of the research
show that there may be numerous entrepreneurship opportunities through
the development of inland waterways, such as bringing more tourism,
boosting labour, the technology sector, and many more. These types of

* A Ph.D. Research Scholar at the Institute of Advanced Research, Gandhinagar.

** CEO, I-DAPT Hub Foundation, Institute of Technology (BHU) Varanasi.
30 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

projects increase sustainable social entrepreneurship, which helps

individuals.

Keywords: Inland Waterways, Inland Water Transport, National

Waterways of India, Social Entrepreneurship, Sustainable Logistics.

I. INTRODUCTION

India has a vast network of waterways in the context of rivers, tunnels,

hinterlands, creeks, and coastlines that are accessible via seas. These are the
primary sources of inland waterways in India1. In this context, water
transportation is important for the economy and for global trade. Hence, the
Indian government has taken numerous initiatives to develop inland
waterways. This initiative will bring numerous benefits, such as reducing
freight transportation costs; it can also provide favourable opportunities for
aspiring entrepreneurs. In addition to cost-effective transportation and
consistent cargo movement through waterways, it also opens doors in the
international market for local merchandise and creates employment
opportunities2. This implies that entrepreneurs have numerous prospects for
taking advantage of opportunities by exploring sea routes.

The movement of goods and passengers via waterways requires the

establishment of numerous landing and loading/unloading locations3. This
results in the creation of a large, easily accessible hinterland to deliver goods
that can be transported for less money. Accessible hinterlands will also
create new market prospects for entrepreneurs. This study has been
prepared to investigate entrepreneurship potential.

1
Munavar Fairooz Cheranchery et al., Identifying areas of intervention for enhancing the
attractiveness of Inland waterway transport based on users’ perception: A case study of
Kerala, 9 CASE STUDIES ON TRANSPORT POLICY 1006 (2021).
2
Boadu Solomon et al., Inland Waterway Transportation (IWT) in Ghana: A case study of
Volta Lake Transport, 10 INTERNATIONAL JOURNAL OF TRANSPORTATION SCIENCE
AND TECHNOLOGY 20 (2021).
3
József Rohács & Győző Simongáti, THE ROLE OF INLAND WATERWAY NAVIGATION IN A
SUSTAINABLE TRANSPORT SYSTEM, 22 TRANSPORT 148 (2007).
EXPLORING SOCIAL ENTREPRENEURSHIP IN INDIA'S INLAND WATERWAYS 31

THE RATIONALE OF THE STUDY

It is suggested that effective entrepreneurial opportunity advancement will

result in budding entrepreneurs’ employment and strongly impact the
economy and new wave of employment options. As a result, the researcher
believes that conducting a study to determine entrepreneurial opportunities
in India is beneficial.

RESEARCH QUESTION

1. How have entrepreneurship opportunities developed in India via inland

waterways?

2. Which sectors emerge as a result of India’s inland waterways?

RESEARCH METHOD

The research questions were investigated using three research designs:

experimental, descriptive, and causative. Descriptive research aims to collect
raw data and create details from which investigators can demonstrate cause-
and-effect relationships between two or more economic factors. Moreover,
this research method helps demonstrate the link between concepts and
anticipated outcomes. This research is based on secondary data obtained
from various books, trade journals, government publications, newspapers,
etc.

II.WATERWAY IMMENSE CARGO TRANSPORT

India has 7,500-kilometer-long adjoining coastal waters and comprehensive

traversable inland waterways, providing an excellent opportunity to tap into
an environmentally friendly water-based mode of transport that can
supplement rail and highway cargo movement4. Water-based transport is
intrinsically cheaper than road and railway modes; therefore, increasing its
share would result in lower transportation costs for manufacturing

4
https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1777764 accessed on 05/04/2023
32 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

industries. Nevertheless, the potential structural advantages of efficient

distribution systems that employ proximity to the coast have not been fully
exploited in industrial growth.

Figure 1: Volume of cargo transported on Indian national

waterways from 2017-18 to 2021-22

(Source: Annual Report 2022 of Inland Waterways Authority of India)

Scope of water transport

India has numerous inland water transport (IWT) options, including

waterways, water channels, wastelands, bodies of water, and high-tide inlets.
India has 14,500 km inland rivers; however, IWT only significantly affects
the transportation industry. Compared with other best-in-class performance
metrics, India’s modal share of cargo moved on inland waterways has
considerable room for improvement. Increasing the country’s proportion of
inland waterways is essential because it is a cost-effective and
environmentally sustainable mode of transportation5. Presently, coastal and
inland waterways account for approximately 7% of the country’s cargo modal
mix, while neighbouring economic development areas such as Bangladesh
and Thailand have a more significant percentage of water-based transport,
highlighting India’s scope for development. To capitalise on the potential of

5
Shripad Dharmadhikary & Jinda Sandbhor, National Inland Waterways in India,
Blueeconomytribunal.org (2017), http://blueeconomytribunal.org/wp-content/uploads/
Strategic-Status-Report-on-Inland-Waterways-V5-26-Apr-17-FINAL.pdf (Accessed on July 14,
2022)
EXPLORING SOCIAL ENTREPRENEURSHIP IN INDIA'S INLAND WATERWAYS 33

the IWT, the Inland Waterways Authority of India (IWAI) was established
and has worked on the growth and development of inland waterways6.

III. NATIONAL WATERWAYS HAVE BEEN FOUND TO BE

SUITABLE FOR CARGO MOVEMENT.

Under the National Waterways Act, 111 waterways were designated as

National Waterways (NWs) to promote inland water transport. The Inland
Waterways Authority of India (IWAI) has determined that 25 NWs are viable
for cargo/passenger movement based on techno-economic viability and
Development Proposal Reports (DPRs) results in states7. The following is a
list of the 25 NWs. For example, The Tapi River transports the vast majority
of cargo to Gujarat. In 2020-21, approximately 26 million metric tons of
cargo were transported through Tapi, while approximately 80,000 metric
tons were transported through Narmada. Tapi handled 27 million metric
tons of cargo from April 2021 to February 2022, while the Narmada River
handled approximately 40,399 metric tons. All planning and execution
increase entrepreneurship in different sectors. Solanki (2021) suggests that
building jetties, ports, and hubs along the banks of rivers, estuaries, and
streams are necessary for handling and transporting materials from inland
waterways. The immediate effect of this construction is opportunities for
social entrepreneurs 8.

6
P. K. Sarkar et al., Potential for Economic Gains from Inland Water Transport in India, 2033
TRANSPORTATION RESEARCH RECORD: JOURNAL OF THE TRANSPORTATION
RESEARCH BOARD 45 (2007).
7
Aditya Gupta, Neeraj Anand & A K Bansal, A Journey Through Development of Inland
Waterways in India, 5 ARCHIVES OF BUSINESS RESEARCH (2017).
8
Inderveer Solanki, Manoeuvrability of vessels in inland waterways and safety of navigation,
17 MARITIME AFFAIRS: JOURNAL OF THE NATIONAL MARITIME FOUNDATION OF
INDIA 107 (2021).
34 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

Table 1: Showing National transport waterways impact

numerous states
(Source: Ministry of Ports, Shipping and Waterways)
S. National Details of waterways States where development
No. waterways bring
1 National Ganga river system This project brings the development
waterways 1 (Haldia-Allahabad) of the UP and West Bengal
2 National Brahmaputra Dhubri – Sadiyc
waterways 2 The project brings the development
of Assam
3 National Barak river This river project also brings the
waterways 16 development of Assam
4 National West coast canal Kerala
waterways 3
5 National Krishna River Andhra Pradesh
waterways 4
6 National Dhamra-parade Odisha
waterways 5
7 National Alappuzha- Kerala
waterways 8 Changanassery
Canal
8 National Athirampuzha Kerala
waterways 9 Canal
9 National Cumberjua River Goa
waterways 27
10 National Mandovi River Goa
waterways 68
11 National Mandovi River West Bengal
waterways 86
12 National Mandovi River West Bengal
waterways 97
13 National Zuari River Goa
waterways 111
14 National Amba River Maharashtra
waterways10
15 National Ghagra River Bihar
waterways 40
16 National Ichamati River West Bengal
waterways 44
17 National Kali River Karnataka
waterways 52
18 National Kopili River Assam
waterways 57
19 National ChaporaRiver Goa
waterways 25
EXPLORING SOCIAL ENTREPRENEURSHIP IN INDIA'S INLAND WATERWAYS 35

20 National Gandak River Bihar

waterways 37
21 National Dabhol River Maharashtra
waterways 28
22 National Narmada River Maharashtra – Gujarat
waterways 73
23 National Revadanda Maharashtra
waterways 85 Creek River System

This development of waterways will help the country’s economy and

sustainable development stand out in the world, and will help individuals of
the country obtain employment. As the work of these projects began, various
fields needed to be involved in development. With the help of these projects,
the entrepreneur and cargo movement also increased.

IV. ANALYSIS AND DISCUSSION

THE DEVELOPMENT OF INDIAN WATERWAYS HAS BROUGHT

TOURISM

Kumar and Anbanandam (2020) found that the Waterways Conclave

assesses new opportunities for international collaborative efforts in the
waterways industry. This has the potential for economic cooperation in
consumer contracts. It is anticipated that the potential of travel and cruise,
as well as passenger and freight traffic, will be exploited, allowing wireless
integration at a relatively low cost per unit and enhancing the effectiveness of
transportation. The investment’s fiscal multiplier and its interconnections
can create a powerful cycle of overall growth9.

Vast network: The National Waterways Act requires the Central

Government to legislate these watersheds for shipment and route planning
operations to develop in a standardised manner10. These waterways span
9
Aalok Kumar & Ramesh Anbanandam, A Flexible Policy Framework for Analysing
Multimodal Freight Transportation System in India: SAP–LAP and Efficient IRP Method, 21
GLOBAL JOURNAL OF FLEXIBLE SYSTEMS MANAGEMENT 35 (2019).
10
Madhuri Kumari, Sarath Syamaprasad & Sushmit Das, Inland Waterway as an Alternative
and Sustainable Transport in Kuttanad Region of Kerala, India, in LECTURE NOTES IN
CIVIL ENGINEERING 245 (2019), http://dx.doi.org/10.1007/978-981-13-8181-2_19 (last
visited Aug 6, 2023).
36 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

nearly 16000 km across 26 states and two union territories in the country’s
eastern, western, southern, and central regions. Overseas networks will help
entrepreneurs in their personal and national development. For example,
increasing tourism will help build and expand the hotel line business. It
creates a vast network when people are attracted to the development areas of
waterways. They include the country’s river systems, bodies of water, coastal
areas, and related waterway systems. They can be used to transport
passengers and cargo both inside the nation and in the surrounding
countries.

DEVELOPING INDIAN WATERWAYS BOOST LABOUR

T. R. Kesharwani. (1975)11 observed the evolution of inland waterways

necessitates a comprehensive multimodal network, encompassing elements
such as water tunnels, canals, culverts, and bridges. The creation of such an
expansive infrastructure demands a wide array of tasks to be undertaken,
thereby leading to the recruitment of a larger workforce, inclusive of
engineers, to ensure effective progress. Several initiatives have been
instrumental in bolstering tourism. The Jal Marg Vikas project stands as a
significant development in this regard. Encouraging private participation in
terminal operations has also played a crucial role in enhancing the sector.
The implementation of a robust land use policy has further contributed to
this growth. Lastly, the Arth Ganga and Arth Brahmaputra initiatives, aimed
at sustainable development, have been pivotal in attracting tourism, thereby
fostering economic growth and social development. Numerous infrastructure
facilities are required to construct inland waterways, such as riverside jetties
and ports, navigation systems and control points, material handling sites,
storage godowns, barge servicing and repairing centres, fuelling points,
dredging equipment, and vessel car parks12. Conversely, these will be

11
T. R. Kesharwani, Transport Statistics in India: An Evaluation, 10 ECONOMIC AND
POLITICAL WEEKLY 1200 (1975).
12
Avli Verma, National Inland Waterways: Cheap & Eco-Friendly Transport or a New
Onslaught on Rivers?, CENTRE FOR FINANCIAL ACCOUNTABILITY (2019),
https://www.cenfa.org/national-inland-waterways-cheap-eco-friendly-transport-or-a-new-
onslaught-on-rivers/.
EXPLORING SOCIAL ENTREPRENEURSHIP IN INDIA'S INLAND WATERWAYS 37

required for these national waterways, so labour will increase. This implies
that there are several opportunities for social entrepreneurs to start a
business. The multimodal hub at Varanasi is an example of a port or
terminal that is planned to connect rail, road, and waterways. In addition,
there is a project to connect numerous national waterways to major ports,
roadways, and trains. The Integrated National Waterways Transportation
Grid is the name of this plan. According to the Inland Waterway Authority of
India’s National Waterway Transportation Grid. Therefore, it is important to
consider a waterways project as a component of a much broader, ambitious
project that connects other significant infrastructure projects.

MASSIVE IMPACTS OF THE WATERWAYS’ PROJECTS

The most basic requirements for a waterway are a channel (fairway) in a

river with sufficient width and depth for vessel plying, and terminals/ports
for cargo loading and unloading13. Moreover, large barges and ships of this
size require a channel with a depth of 2-4 meters and width of 45-60 meters.
Most Indian rivers do not have this critical component or width.
Consequently, this would have to be created through dredging. - attempting
to cut and excavate the riverbed, river conservation projects such as band
alling, and dam construction. Each of these processes affects the natural
morphological characteristics and ecosystems of significant rivers. This will
increase the entrepreneur by engaging people in projects such as labourers,
engineers, project consultants, constructors, machinery handlers, and
technology handlers. It is also determined that dredging increases turbidity
in water bodies, which reduces the amount of sunlight required by aquatic
species. Dredging significantly affects many aquatic species found in rivers,
in addition to releasing settled sediments that may contain contaminants.
Facilities for berthing ships, storage, and cargo access, such as terminals and
jetties, have also been established. Bulk goods such as coal, fly ash,
fertilisers, cementitious materials, iron ore, substances, and dangerous

13
T. R. Loui et al., Feasibility Study on Sustainable Development of Inland Navigation Under
Changing Traffic Scenario of Kerala: A Case Study, 101 JOURNAL OF THE INSTITUTION OF
ENGINEERS (INDIA): SERIES A 523 (2020).
38 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

products are transported to these waterways. Emissions from handling coal

and fly ash, as well as spillages of oil and lubricating oils from boats, will
significantly impact river ecosystems, plant life, and fauna14.

SMALL AND MEDIUM ENTREPRENEUR OPPORTUNITIES IN

THE DEVELOPMENT OF WATERWAYS

Mineral water is one of the essential items that millions worldwide consume.
Mineral water is often bottled under hygienic practices and better-quality
control before being sold in the market. Its primary application is in five-star
hotels and hospitals, where high-quality pure water is considered necessary
for drinking water purposes. The mineral water industry, also known as the
bottled water market, represents a new way of life in India. While a
significant part of the population struggles to obtain safe drinking water, a
wave of young people, particularly in urban areas, is becoming familiar with
paying exorbitant prices for plastic bottles.

The bottled water will be categorised as “food” and will fall under the
purview of the Preparedness and Response of the Food Adulteration Act.
They had to follow the colour scheme, odour, flavour, cloudiness, total
suspended solids, and respiration microorganism count rules. Carbonated
water is nothing more than a packaged mixture of purged carbon dioxide at
the above pressure and temperature. It can be a PET or glass bottle. A PET
bottle is a contemporary clamshell-packaging material.

Technology sector: The ports and inland waterways solutions and

consulting services provided by technologies address critical opportunities
and challenges for contractors applicable to international megaports to
private shorelines and inland waterways15. Navigational Safety: Ensure the
safe transit of vessels into and out of port operations, despite increasing

14
Chintan B. Maniyar, Abhishek Kumar & Deepak R. Mishra, Continuous and Synoptic
Assessment of Indian Inland Waters for Harmful Algae Blooms, 111 HARMFUL ALGAE 102160
(2022).
15
Lena Partzsch & Rafael Ziegler, Social entrepreneurs as change agents: a case study on
power and authority in the water sector, 11 INTERNATIONAL ENVIRONMENTAL
AGREEMENTS: POLITICS, LAW AND ECONOMICS 63 (2011).
EXPLORING SOCIAL ENTREPRENEURSHIP IN INDIA'S INLAND WATERWAYS 39

passenger numbers, container size, and weight. Operational Efficiency: The

new mantra is to do more with less space. Critical port assets such as
carparks, dumping areas, hoisting, method roads, and rail tracks must be
intelligently managed to increase efficiency, utilisation, and uptime. Cost-
cutting and risk-management strategies include transport infrastructure and
online facility pre-booking to save anchorage time and money, while
increasing occupancy rates. Through the business cycles, evaluate
development strategies, and manage the influence of the environment, while
adding efficiency and driving up sales revenue.

Project consultant: The (PMC) sector managed the waterways project at

various stages by applying their understanding, abilities, and knowledge. At
the same time, the PMC must overcome various obstacles such as design
issues, encounter difficulties, implications, inter-contractor project
complexity, construction issues, and safety concerns, which can only be
overcome by a structured approach by the project manager. Aside from
developing a project management consultancy, managing budgets, and
utilising resources effectively, the project management consultant’s role
entails supervising the project management team, coordinating with relevant
parties, identifying risk responses, and inventing new strategies to achieve
the company’s goals.

Investment/funding: Nair (2022)16 found that waterway construction and

operations require significant financial investment. There is no full estimate
of the money required to accomplish the entire waterways program because
feasibility studies for many waterways are not complete. The Ganga
waterway, also known as NW 1, is the most advanced in terms of its
execution. The World Bank primarily funds this project. However, this
investment is necessary only to create fundamental infrastructure. For the
waterway to be operational, investments are required for barges, storage
facilities, maintenance facilities, etc.
16
Avinash Nair, Over 120 Million Tonnes of Cargo Transported Through Gujarat Waterways in
Past Five Years, The Indian Express (2022), https://indianexpress.com/article/cities/
ahmedabad/over-120-million-tonnes-of-cargo-transported-through-gujarat-waterways-in-past-
five-years-7856973/ (Accessed on July 14, 2022)
40 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

A wide variety of investment instruments is available for projects that

support entrepreneurship and investment within initiatives to boost
employment, each of which provides specific advantages to investors. Mutual
funds are a prevalent investment vehicle among large population segments,
but they are widely misunderstood or overlooked, with individuals acquiring
shares without fully understanding them. Given global growth and progress,
certain sectors have emerged as “the ones” that ensure a good return on
investment, with sector equity funds aiming to provide returns on
investments in these sectors.

As the title indicates, a sector fund primarily chooses to invest in a single

sector or industry, focusing on organisations that operate within the scope of
that sector. When the current economy is divided into multiple sections, a
sector fund assists investors in narrowing the spectrum by offering financial
solutions based on specific needs. For instance, those who choose to enhance
the airline industry’s value to capitalise on the sector’s growth. The primary
goal of continuing to invest in sector funds is to profit from a booming
business although it is experiencing a boom.

Health and livelihood benefits: Water is essential to people’s

livelihoods. It defines livelihoods as “people, their functionality, and their
means of subsistence, including nutrition, revenue, and investments.” A
sustainable livelihood can withstand and be sustainable when it can cope
while also providing for future generations. The fundamental implies and
finally ended of economic empowerment are capacity, equitable, and
sustainability.” Water is critical to several aspects of food security. Access to
sufficient water supply can improve a variety of assets. Inland waterways
projects also help many people in their employment with clean water, better
hospitality, and better livelihoods17.

Private sector: The private sector has played a substantial role in the
development of inland waterways. It was envisioned that the private sector
17
Ashish Trivedi, Suresh Kumar Jakhar & Daneshwar Sinha, Analyzing barriers to inland
waterways as a sustainable transportation mode in India: A dematel-ISM based approach,
295 JOURNAL OF CLEANER PRODUCTION 126301 (2021).
EXPLORING SOCIAL ENTREPRENEURSHIP IN INDIA'S INLAND WATERWAYS 41

would actively participate in various aspects of this development. This

includes the ownership and operation of vessels for the transportation of
goods and people, the construction and operation of terminals and river
ports, and the development and maintenance of fairways. The private sector
has been involved in providing mechanised handling systems, maintaining
navigational facilities, offering pilotage facilities, and establishing and
operating Inland Water Transport (IWT) training facilities. The inclusion of
the private sector in the development of infrastructure and services in the
IWT sector was anticipated to expedite the process of setting up new
facilities. It was expected to introduce the latest technology and improved
management techniques, thereby enhancing the overall efficiency and
effectiveness of the sector. The active involvement of the private sector, thus,
has been instrumental in driving the growth and development of inland
waterways.

V. ABILITY OF WATER TRANSPORT IN INDIA

Commodities such as tea, textiles, and spices moved to the eastern sector,
which was linked to the river port in Kolkata. These were among the early
professional drivers in India. The logistical comfort of river transport, which
was once a deciding factor in place of industrial activity, may be less
important today. However, access to water for computation and untreated
sewage diagnosis remains a factor in some instances. With the notable
exception of Goa’s tidal river canal system, the increase in trade has slowed.
Water-based transportation is efficient because, in general, fuel costs are
low, and environmental contamination is lower than for comparable volumes
of movement by road, rail, or air. One significant advantage is that the
“embodied waterway is naturally available. This study aims to examine the
viability of inland water transport for passengers and freight in India. River
systems, water channels, and lakes are examples of these inland waterways.
The waterway, while naturally available, must be “trained”, retained, and
42 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

upgraded in inland water transport. Inland waterway transportation is

extremely good when the reference and/or tourist attractions are riverfront
areas18.

It is critical to increase the country’s inland waterway share because they are
cost-effective and environmentally friendly modes of transportation. Over
the last five years, the country’s mode shape share of cargo has increased
from 0.5 percent of the total to 2%, with cargo volumes increasing by 20%
year-on-year19.

It has been determined that constructing necessary infrastructure, such as

automated handling at terminals and night navigation facilities, is necessary
to create opportunities for social entrepreneurs. It is commonly
acknowledged that the inland waterway movement offers a variety of
opportunities to a variety of possible stakeholders in a variety of ways. For
instance, Needndkara and TT sheds in Kolkata must be built to integrate
bunkers, lifting equipment, water supply, and electricity. Given the newly
liberalised environment, the private sector can play a significant role in
supplying the infrastructure and services currently delivered by the public
sector or through public-private partnerships.

Additionally, the requirement for effective rail and/or road connections from
waterways forms the basis for the emergence of multi-model logical
solutions, which, if the required customs and clearance centres are set up in
the proper locations, could also form the basis for immediate shipments
abroad.

IMPACT OF IWT

The contribution of IWT to the total freight movement is currently at 2%. As

per the 2014 RITES Report on the “Integrated National Waterways
18
Sanjivi Sundar & Akshima T. Ghate, Transport and Energy: The Indian Perspective, in
TRANSPORTATION RESEARCH, ECONOMICS AND POLICY 147 (2011),
http://dx.doi.org/10.1007/978-1-4419-7643-7_10 (last visited Aug 8, 2023).
19
Valery I. Mineev, Valery M. Ivanov & Mikhail V. Ivanov, ASSESSMENT OF CONDITION AND
DEVELOPMENT PROSPECTS OF CONTAINER TRANSPORTATION BY INLAND WATER
TRANSPORT, RUSSIAN JOURNAL OF WATER TRANSPORT 123 (2020).
EXPLORING SOCIAL ENTREPRENEURSHIP IN INDIA'S INLAND WATERWAYS 43

Transportation Grid”, a cost comparison was conducted between IWT and

other dominant modes of transport. The findings revealed that the cost of
freight movement via railways stood at Rs. 1.36 per tonne-kilometer. In
contrast, highways incurred a higher cost of Rs. 2.50 per tonne-kilometer.
However, IWT emerged as the most cost-effective mode, with a freight cost
of just Rs. 1.06 per tonne-kilometer. The Arth Ganga programme, initiated in
July 2020, aims to stimulate socio-economic growth and provide economic
benefits to farmers, traders, and the public living around the Ganga, reduce
logistics costs, and more. The Jal Marg Vikas Project II, also known as the
Arth Ganga project, entails the construction of 62 community jetties and 10
Ro-Ro terminals in the Indian states of Uttar Pradesh, Bihar, Jharkhand,
and West Bengal. Bihar will have 21 community jetties and 6 Ro-Ro terminal
locations for distribution. In Uttar Pradesh, 15 community jetties and a
single Ro-Ro terminal will be built. Jharkhand is planning three community
jetties and two Ro-Ro terminals. Finally, West Bengal will have 23
community jetties and one Ro-Ro terminal20.

VI. CONCLUSION

This report provides information about entrepreneurial opportunities in

inland waterways that bring about major projects and increase employment.
The report focuses on developing the inland waterway industry in the frame
of reference, setting objectives, infrastructure projects, and environmental
issues. Regional economic, social, and environmental aspects are
significantly affected by inland water transportation. These types of projects
increase employment, which helps individuals. There are many sectors that
will receive help from waterways projects in India. Research has shown that
social entrepreneurs’ opportunities are produced at construction sites as a
result of ongoing transportation, equipment handling, and construction
activities.

The sectors are not limited to those mentioned in this report. Other sectors,
such as hospitality, real estate, and the infrastructure of the country, will also
20
DEVELOPMENT OF INLAND WATERWAYS AND ARTH GANGA INITIATIVE,
https://www.pib.gov.in/PressReleasePage.aspx?PRID=1808089 (Accessed on June 18, 2022).
44 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

increase. The sustainable development of waterways helps infrastructure is

still the backbone of the industry. Therefore, proper maintenance is a
significant concern. It can be a great alternative to rail and road
transportation, and can successfully alleviate the load on it. However, if
inland waterways become a thriving and sustainable solution for commercial
use and large-scale cargo transit, several planned initiatives must be
undertaken. This study adds to the existing literature on social entrepreneurs
in a sustainable manner which is driven by the development of National
Waterways in India. Further study may be carried out to extend this research
work in different regions and to quantify social entrepreneurship
opportunities in the sector.
 REVISITING DALIT
FEMINISM IN THE
21ST CENTURY

Pooja Yadav*
Dr. Sudeep Basu**
ABSTRACT

Dalit feminism, a socio-political movement that emerged in the late 20th

century, is evolving and adapting to the changing contexts. The current
research paper aims to explore the contemporary discourse on dalit
feminism and the various theoretical debates within it, contributing to the
ongoing dialogue on intersectional feminism. It seeks to understand the
unique challenges encountered by dalit women and how dalit feminism
offers to address these issues. Through an assessment of intersection
between patriarchy, caste and gender, the paper seeks to develop insight
into myriad invisible ways in which these oppressive structures operate.
Paper also highlights avenues for future studies and development in dalit
feminism through an identification of key research gaps which will assist in
advocating for more effective policies to address the specific needs of dalit
women in 21st century.

Keywords: Dalit feminism, Intersection, Standpoint, Gender, Caste,

Patriarchy.

* A Ph.D. Research Scholar at the Centre for Studies in Social Management, School of Social
Sciences, Central University of Gujarat, Gandhinagar.
** An Assistant Professor at the Centre for Studies in Social Management, School of Social
Sciences, Central University of Gujarat, Gandhinagar.
46 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

I. INTRODUCTION

‘Women’ in India or any other part of the world does not form a homogenous
category but is marked by differences in class, caste, religion, race, colour,
disabilities. These differences bring heterogeneity in the lived experiences of
oppression/ discrimination. Dalit feminism is described as a theoretical
perspective centring experiences of Dalit women1 in order to understand the
marginalization created by the intersections gender, caste and patriarchy.
It emerged out of the critiques of the mainstream Dalit Movements and
Feminist Movement in India. This feminist paradigm developed in the
1990s, when Dalit women began to organise and theorise independently. The
objective of this paradigm is to address Dalit women’s exclusion (neglect)
from both Dalit organisations, which ignored the relationship between caste
and patriarchy, and mainstream feminism, which completely ignores the
Caste system in its analysis of oppression, resulting in Dalit women’s
experiences and concerns excluded from both places.2 It also attempts to
challenge the notion that all women are oppressed and equally exploited.
This theoretical lens tries to bring out how the ‘social location’ of women can
affect in differential nature and intensity of exploitation. Among its major
proponents are Gopal Guru, Sharmila Rege, Chhaya Datar, Sunaina
Arya,Shailaja Paik.

II. WHY WE NEED DALIT FEMINISM?

Dalits, legally called Scheduled Castes in India, make up about one-sixth of

the Indian population. Positioned at the lowest in the caste hierarchy, Dalits
have historically suffered caste-based violence, discrimination and exclusion.
Landmark legislation like the Abolition of Untouchability (Article 17), the
Protection of Civil Rights (PCR) Act, 1955, and the Scheduled Castes and
Tribes Act, (Prevention of Atrocities) Act, 1989 have been passed since
Independence but discrimination still persists. Women in this community

1
Dalit women constitute 16.60% of Indian female population as per Census 2011 figures.
2
Anita Ghai, Disabled Women: An Excluded Agenda of Indian Feminism, 17 HYPATIA 49-66,
(2002)
REVISITING DALIT FEMINISM IN THE 21ST CENTURY 47

suffer additionally owing to their gender along with caste and class identities.
Dalit women (16.60 percent of India’s female population) face not just
gender and economic disadvantages, but also discrimination based on
religion, caste, and untouchability, which leads to denial of their social,
economic, cultural, and political rights. They were also subjected to heinous
social and religious practices like devadasi/jogini (temple prostitution),
which resulted in sexual exploitation in the guise of religion. Rural Dalit
women who constitute 3/4th of the total dalit women go through abuse,
violence, and systematic oppression inflicted by not just ‘upper class’ but also
by men of their own community. The majority of Dalits are landless and live
on less than one dollar per day. Due to geographical or economic constraints,
many of them aren’t even able to send their children to school. Furthermore,
frequent child marriages render young women unable to be financially
independent, and therefore more prone to crime.

III. THEORETICAL DEBATES IN DALIT FEMINISM

Among the numerous developments, the establishment of the All India Dalit
Women’s Forum and the National Federation of Dalits in 1995 is noteworthy
in setting the pace for the development of Dalit feminism. The current
discussions within Dalit feminism discourse centre around homogenization
within the Dalit women’s identity and the connection between Dalit and
feminist politics.

Caste and gender interrelationships were significant in the debates. As the

homogenization of women’s lives is questioned, so too is the homogenization
of Dalit women.3 Dalit Christian women’s groups pointed out that the plan
did not take into consideration the interests of religious minorities, in this
case the Christian minority, in the proposal. And similar debates can be put
forward by other minorities. The release of Gopal Guru’s essay “Dalit women
talk differently” in 1998 was another major trigger for expanding debates on
the link between Dalit politics and feminist politics. Dalit women’s concerns

3
Anandita Pan, Embracing Difference: Towards Standpoint Praxis in Dalit Feminism, 40
SOUTH ASIAN REVIEW. 34 (2019).
48 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

have been side-lined because of a caste-blind feminist politics and gender-

blind Dalit politics.4 Because Dalit women are underrepresented in both
philosophy and politics, Dalit women argue for the necessity to speak
“differently.”5 He puts across 3 points. (1) the validity of an event being
determined by a person’s gender location in addition to their class and caste
identity. (2) Dalit men are dominate Dalit women using similar mechanisms
that their high caste adversaries used to subjugate women; and (3) the
experience of Dalit women demonstrates the importance of local resistance
within the Dalits. Which is why we should protect Dalit women’s right to
speak differently.6 The publication of this article started a chain of debates
among the feminist groups.

III. (A) ESSENTIALISM VS INTERSECTIONALITY

The essentialist approach supposes common fixed identities, inbred

characteristics that define a specific social group, here, for example, Dalit
women. It argues that Dalit women have a unique identity as a specific group
and that their struggles, specific forms of oppression, and experiences are
similar. Essentialist scholars highlight the importance of this approach to
develop specific strategies unique to Dalit women’s empowerment.

While intersectional approach7 recognises the interplay of multiple social

identities and advocates for a more refined understanding for dalit women’s
experiences and more inclusive analysis of complex power relations. Key
argument being dalit women’s oppression is not just a result of their ‘dalit’
identity, but also shaped by gender, class, religion, disability etc.

The debate is complex in nature, however it is crucial to understand many

dalit feminist assign value to both approaches and there is no fine line of
separation.

4
Gopal Guru, Dalit Women talk Differently, 30 ECONOMIC AND POLITICAL WEEKLY. 2548
(1995).
5
Ibid.
6
Ibid.
7
Coined by Kimberley Crenshaw (1989) in the context of black feminism.
REVISITING DALIT FEMINISM IN THE 21ST CENTURY 49

Sharmila Rege and Gopal Guru have written extensively to recognise the
unique experiences of Dalit women but have also advocated for
intersectionality. Chakravarti, in “Gendering Caste Through a Feminist Lens”
advocates for a separate feminist theory for Dalit women but does not reject
the intersectional approach altogether.8

‘Karukku’ is yet another seminal work in Dalit feminist literature giving an

experiential account of dalitality as experienced by women. It again
challenges the homogeneity of Dalit identity, highlights both the
intersectionality of caste and gender, and still advocates for the unique
experiences/struggles of Dalit women as a social group.9 Pawar narrates her
life as a Dalit woman in ‘Aaydan’. Aaydan is prominent in its contribution to
Dalit feminist literature as it highlights the vivid display of Dalit women at
the intersections of caste, gender, and identity. Economic exploitation, Dalit
patriarchy, social exclusion, abuse, and identity struggles are the prominent
challenges faced by Dalit women in India.10 Concerns about the insufficiency
of intersectionality in capturing the nuanced experiences of Dalit women
have also been raised.11

III.(B) STANDPOINT PRAXIS

Pan12 provides us with a critical analysis of intersection of gender and caste in

the Indian context and how it’s becoming increasingly obvious that
mainstream Indian feminism as well as Dalit Politics is insufficient for
examining the problems of Dalit women. The fact that the subjugation of
Dalit women is a product of both caste and gender systems is entirely
overlooked rather these categories are seen as distinct and mutually
incompatible systems. To fill in the gaps in mainstream feminist theory and
8
Uma Chakravarti, Conceptualising Brahmanical patriarchy in early India: Gender, caste,
class and state, 28 ECONOMIC AND POLITICAL WEEKLIES (1993).
9
BAMA, KARUKKU (Oxford University Press 1992).
10
URMILA PAWAR, THE WEAVE OF MY LIFE: A DALIT WOMEN’S MEMOIR (Columbia
University Press 2009).
11
ANUPAMA RAO, THE CASTE QUESTION: DALITS AND THE POLITICS OF INDIA
(University of California Press 2009).
12
Anandita Pan, Embracing Difference: Towards Standpoint Praxis in Dalit Feminism, 40
SOUTH ASIAN REVIEW. 34 (2019).
50 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

practice she advocates for a ‘standpoint praxis’13 approach to dalit feminism

which essentially combines standpoint theory14 with collective action. Owing
to their unique ‘social location’, each marginalized group can offer more
accurate, inclusive, critical and insightful perspective into the working of
power and oppression. To create a more inclusive intersectional feminist
movement in India, she stress on building alliances/coalitions with different
marginalised groups. Standpoint praxis will help in centring dalit women’s
perspectives and experiences in catalysing social and political change by
recognising their ability, identity and agency to challenge and confront
systems of oppression.

III. (C) Fighting ‘Categorisation’

Dalit feminists resist ‘categorisation’ by prioritising their unique voices.

“Dalit feminists refuse to be subsumed under universal categories of women
or feminism and instead prioritize their own experiences and subjectivities”
(p. 103).15 The series of debate started by Gopal Guru was followed by
Sharmila Rege’s disagreement on emphasis on ‘difference’ and her fight
against ‘categorisation’. She illustrates this problem of restriction to
difference by alluding to the 1980s and 1990s rise of Black and Third World
feminist organising: These categories of difference arose in reaction to white
middle-class feminists’ ignorance to the issues of Black and Third-World
women. However, according to Rege16, such categorization based on
difference leads to a type of division of labour in which ‘historical duties’ are
allocated to various groups, such as combating racism, which becomes the
unique duty of black women, and fighting untouchability becomes the sole

13
Standpoint praxis can be understood as an approach to social and political change through the
integration of standpoint theory with active engagement and practice led by marginalized
groups.
14
The idea of standpoint has roots in Marxist and feminist theories of knowledge production. VI
Lenin and Gramsci argued how ruling class domination is sustained through control on means
of knowledge production. Standpoint theory advocates for producing alternative forms of
knowledge from the standpoint of marginalized groups.
15
Anandita Pan, Embracing Difference: Towards Standpoint Praxis in Dalit Feminism, 40
SOUTH ASIAN REVIEW. 34 (2019).
16
Sharmila Rege, Dalit Women Talk Differently: A Critique of ‘Difference’ and Towards a Dalit
Feminist Standpoint, 33 ECONOMIC AND POLITICAL WEEKLY (1998).
REVISITING DALIT FEMINISM IN THE 21ST CENTURY 51

responsibility of Dalits. But Rege argues, that this is not what we want as
fixating duties comes with categorisation and that means fighting caste is the
duty of Dalit women only. As a category of difference, Dalit feminism would
imply that fighting caste would be the entire duty of Dalit women. She
expresses concern that although Dalit feminism emerges from Dalit women’s
experiential knowledge, it would not prosper if it is segregated from the
ideas, perspectives, and experiences of non-Dalit groups. Relatability of
issues and struggles is essential and so she calls for a revolutionizing from
‘their cause’ to ‘our cause’. A non-Dalit feminist without claiming to ‘speak
as’ a Dalit woman’, still advocates for this group by remodeling themselves as
Dalit feminists.

Paik17 maintains that we can devise the most inclusive and productive
political praxis only by developing an understanding of historical
contradictions, complexities, and pressures inherent in Dalit women’s
location.

The obscurity of women’s contributions and interventions in non-brahman

movements has caused scholars to interpret Dalit women’s new independent
assertion as a distinct voice18As a result, they regarded the development of
independent Dalit women’s groups as “yet another stance” within such a
framework of diversity and numerous stances. Her ‘Dalit feminist’ viewpoint
is ‘accessible’ to non-Dalit feminists as well as Dalit feminists themselves.
Thus, without an essentialist or homogeneous character, she successfully
created a Dalit feminist standpoint.

III.(D) Agency vs. Victimhood

Dalit feminism originates to counter non-acknowledgement of agency and

identity of Dalit women. This perspective is informed in the works of
Sharmila Rege and Gopal Guru. Rege19 argues for recognition of Dalit

17
Shailaja Paik, Dalit Feminist Thought, 56 ECONOMIC AND POLITICAL WEEKLY (2021)
18
Sharmila Rege, Dalit Women Talk Differently: A Critique of ‘Difference’ and Towards a Dalit
Feminist Standpoint, 33 ECONOMIC AND POLITICAL WEEKLY (1998)
19
Ibid.
52 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

women’s voice and agency to bring about the unique experiential knowledge
and perspectives of Dalit women to challenge discriminatory power
hierarchies in “Dalit Women Talk Differently: A Critique of ‘Difference’ and
Towards a Dalit Feminist Standpoint Position”. Guru20 makes similar
assertion to counter Dalit patriarchy from within. He critiques mainstream
feminism for its overemphasis on victimhood rather than agency. The
victimhood perspective posits dangers of reinforcing the powerlessness of
Dalit women’s voices.

The mechanisms through which Dalit women have been victimised is

discussed by Rao21 in “The Caste Question: Dalits and the Politics of Modern
India”. The interplay of caste and gender in victimising Dalit women, she
emphasises needs to be acknowledged to deliver social justice. The problem
of victimization happening within one’s social group through internalised
oppression is underscored by Geetha.22 This debate aims to strike a balance
between recognition of Dalit women’s inherent vulnerabilities on one hand
and acknowledging their agency to resist on the other. This will ensure
targeted social justice delivery and also help in create a comprehensive
knowledge base for Dalit feminism to dismantling oppressive structures.

III. (E) Dalit Patriarchy

Patriarchy is prominent in social systems across societies. However, the

experience of patriarchy in Dalit women is unique due to the intersection of
gender and caste. The role of patriarchy within Dalit communities is much
debated by contemporary Dalit feminists. First brought to the light by Guru23
while explaining patriarchal domination within Dalit communities as one of
the internal factors why Dalit women need to talk differently. This was
further emphasised by Sharmila Rege, Anupama Rao, and Suraj Yengde. The
raounderscores impact of patriarchy on Dalit women is multifold as gender
20
Gopal Guru, Dalit Women Talk Differently, 30 ECONOMIC AND POLITICAL WEEKLY
(1995).
21
ANUPAMA RAO, THE CASTE QUESTION: DALITS AND THE POLITICS OF INDIA
(University of California Press 2009)
22
V Geetha, Periyar, Women and an Ethic of Citizenship. 42 ECONOMIC AND POLITICAL
WEEKLY (2007)
REVISITING DALIT FEMINISM IN THE 21ST CENTURY 53

and caste intersection operate in myriad invisible ways. In his seminal work
‘Caste Matters’, Yengde brings a comprehensive analysis of patriarchy in
Dalits explaining its historical roots within the caste system perpetuated for
centuries and the consequent internalisation of caste-based oppressive
structures/values. He calls for a transformative approach to dismantle these
patriarchal structures to achieve holistic social justice.

IV. CRIME AGAINST WOMEN

During the 1930s, DWOs (Dalit Women Organisations) passed resolutions

condemning practices like child marriages, dowry, and enforced widowhood
calling them Brahminical.24 While reviewing literature on violence against
crime in India, Rege25 argues failure to examine role of patriarchy and caste
in shaping violence against women and advocates for an intersectional
analysis of class, caste and gender to understand crimes against women in
India. The root causes of violence, such as ‘Brahminical patriarchy’26need to
be comprehended in a structural context.

Rege27asserts the difference in the nature of violence against women of

different castes. Frequency of incidences of violent control of a women’s
mobility and sexuality, dowry death are seen more among upper caste
women while abuse of physical nature, both at home and outside, along with
collective threats of rape, and sexual violence are seen more among Dalit
women.28 Sexual domination/violence is used as a ‘weapon of patriarchal
control’ to break assertions of self-respect in these communities and to

23
Gopal Guru, Dalit Women Talk Differently, 30 ECONOMIC AND POLITICAL WEEKLY
(1995).
24
Sharmila Rege like Ambedkar put forward the argument how caste system is maintained by
controlling a women’s sexuality through practices like sati, child marriage, enforced widowhood
etc.
25
Sharmila Rege, Caste and Gender The Violence Against Women in India. EUROPEAN
UNIVERSITY INSTITUTE (1996).
26
Uma Chakravarti, Conceptualising Brahmanical patriarchy in early India: Gender, caste,
class and state, 28 ECONOMIC AND POLITICAL WEEKLY. (1993).
27
Sharmila Rege, Caste and Gender The Violence Against Women in India.
28
GABRIELE DIETRICH, WOMEN’S MOVEMENT IN INDIA: CONCEPTUAL AND
RELIGIOUS REFLECTIONS (Breakthrough Publications 1988).
54 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

reinforce their subordinate position within the caste fold (Rege, 1998). Dalit
feminists argue violence and a crime against women, essentially sexual
crimes, also need to be analysed through the filter of caste in the Indian
context. Dalit women’s sexuality is targeted in order to extract labour out of
them and keep them in subjugation perpetually. The problem of violence
towards women requires an immediate and thorough examination to
formulate appropriate strategies and measures to prevent such occurrences.
Omvedt explores a range of theoretical models used to scrutinize violence
against women in India. She delves into radical feminist theories that focus
on patriarchy, and conventional Marxist theories that emphasize class
conflict, and also highlights some emerging theoretical approaches in India
that connect caste, class, patriarchy, and violence. In the Indian context,
patriarchy interacts with other class and caste structures in a complex
fashion. She advocates for integrative frameworks and discusses theoretical
approaches of 1. theory of the ‘exploitative-caste patriarchal system’ 2. The
‘maldevelopment theory’ links environmental destruction, unequal
development, and violence against women in ways that crisis exacerbates
violence against women. 3. Lastly, the theory of Brahminical patriarchy.29

V. PANDEMIC AND DALIT FEMINISM

Surepally30 successfully brings out the multi-layered burden of the Covid-19

pandemic on Dalit women and has developed interesting arguments within
Dalit feminism. Much of the discussion around the pandemic is only in
medical terminology like disease, cure, rescue, etc. Yet field observations
indicate that the disease’s experience is mediated by caste and gender.31 Due
to the double burden of care; household chores, care work for the sick, and
wage labour that is mostly unpaid, Dalit women suffer disproportionately.
The pandemic unlocked new norms of exclusion for Dalits. First, technology-
poor rural Dalit households were excluded from online education. And this
29
GAIL OMVEDT, VIOLENCE AGAINST WOMEN: NEW MOVEMENTS AND NEW THEORIES
INDIA (1990).
30
Sujatha Surepally, Pandemic in the Time of Dalit Feminism, 56 ECONOMIC AND POLITICAL
WEEKLY, (2021).
31
Ibid.
REVISITING DALIT FEMINISM IN THE 21ST CENTURY 55

struggle for access to education led them back to daily wage labour. Second,
the guidelines of lockdown, social distance, and staying home led to more
spread of infection among Dalit households as they have small huts,
congested, and many Dalit communities don’t even have homes. For Dalit
women, it meant the absence of a place for safe defecation and rest. Case
studies also highlighted gender bias, one such case being elderly women
segregated alone in the backyard. Three, geographically, crucial meetings
regarding isolation guidelines, discussions, and decisions took place in
centrally located regions of villages, which were inaccessible to Dalits located
on the outskirts of ghettos.

Women and Dalits faced disproportionately significant losses, long-term

damage, and humiliation. Much of their practice was intimately placed,
shaped by local possibilities, compromises, and bargaining. It arose from a
sense of helplessness as the debates surrounding Dalit feminism produced a
political space of black-and-white choices in which Dalit feminism began to
appear as one of a set of separate identities capable of speaking for
themselves only in oppositional practice where savarna feminists and Dalit
feminists were incapable of speaking on caste together. We needed to find a
practice that could go above and beyond this, argues Sujatha. Working
towards collectivisation rather than autonomy within the patchwork of
homes is the need of the hour. Dalit feminism needs to be strongly inspired
by practical knowledge. Medical practices and government initiatives also
need to be informed by the sensibilities of dalit feminism as so far, caste has
been reduced to poverty in state-led initiatives ignoring socio-economic,
cultural elements of caste. Surepally32 symbolic wins of daily battles and
attention to stories of suffering will further the cause of intersectional
understanding in dalit feminist approach.

VI. GAPS IN DALIT FEMINISM

Debates on the impact of neo-liberal politics and globalisation argue the

heightened marginalization and increased inequalities among Dalits is also
32
Ibid.
56 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

surfacing.33 It calls for an alternative development model that prioritises

social justice effectively. Studies in this area are still insufficient. More needs
to be explored on this in context of Dalit women.

More qualitative/empirical research is required highlighting the lived

experiences of Dalit women especially an intersectional analysis.34Rege
emphasises on incorporation of Dalit women’s voices in educational process
in the development of Phule-Ambedkarite feminist pedagogical practice to
create a more inclusive educational environment.

There is absence of intersectional impact of disability and Dalit feminism in

the literature so far. More need to be done to understand the intersection of
disability with Dalit women. Research is also limited in understanding Dalit
women’s contribution to feminist movements and participation/role in other
socio-political movements.35 India owing to its diverse nature, experiences
variations in social structures functionality regionally. How caste and gender
intersectional dynamics pan out across different regional and cultural
contexts will be interesting to find out. Comparative studies highlighting role
of diverse cultures would contribute to the understanding of Dalit
feminism.36 Dalit women in diaspora needs further attention to understand
oppression and discrimination in transnational context.

Addressing these research gaps will help in bringing out more effective
feminist strategies for social change and will assist in advancing more
nuanced and contextualised understanding of intersectional feminism.
Further research and collaboration in this field is necessary.

33
Leela Fernandes, The Politics of Forgetting: Class Politics, State Power and the Restructuring
of Urban Space in India, 41 URBAN STUDIES (2004).
34
Sharmila Rege, Education as Trutiya Ratna: Towards Phule-Ambedkarite Feminist
Pedagogical Practice. 45 ECONOMIC AND POLITICAL WEEKLY (2010)
35
SHAILAJA PAIK, DALIT WOMEN’S EDUCATION IN MODERN INDIA: DOUBLE
DISCRIMINATION (Routledge 2014)
36
UMA CHAKRAVARTI, GENDERING CASTE THROUGH A FEMINIST LENS (Stree 2003)
REVISITING DALIT FEMINISM IN THE 21ST CENTURY 57

VII. CONCLUSION

Since its emergence in the late 20th century, Dalit feminism has adapted and
evolved to the changing socio-political contexts. However Dalit women
continue to be marginalised owing to the myriad invisible manners in which
complex structures of caste, gender, class, and patriarchy intersect. What is
required is a more interdisciplinary approach utilising policy perspectives,
queer theory, legal frameworks, etc. to further enrich Dalit feminist
discourse. Addressing the gaps in knowledge will need more empirical data
grounded in Dalit women’s lifeworld and everyday realities. Overall the
paper highlights the journey of Dalit feminism by bringing out major themes
and theoretical debates within it, arguing for a continuation in its scope
expansion to better uphold Dalit women’s rights in the 21st century.
58 Nirma University Law Journal: Volume-XII, Issue-2, July 2023
 REDEFINING THE PARADIGM
OF THE INDIAN LEGAL
SYSTEM THROUGH
ARTIFICIAL INTELLIGENCE

Boddu Harshith Sai*

Naveen Sharma**
ABSTRACT

Law is a global phenomenon and one of the highest revenue-generating

industries. Due to its slow pace of development, it becomes difficult to adopt
new technologies and tools for the better administration of the law. In the
legal profession, researching is a requisite skill for lawyers. Even though
legal research skills vary from lawyer to lawyer, even in the same case,
every lawyer must engage in legal research to solve legal problems.
Artificial Intelligence (AI) is a computer system that does tasks effectively
and efficiently without any need for human intelligence. Much has been
propounded on (AI) and the law in recent times, this paper focuses on
elucidating AI and its relation to the practice and administration of the law,
by addressing key issues on these topics. The paper aims to showcase that
although the law is rigid, there is a very real possibility that it might
change shortly with the help of artificial intelligence interference, which
would change the working of the law in the country. It demonstrates the
effects of artificial intelligence, both advantages and disadvantages and
examines how they affect other areas of the law while using doctrinal
methods of research.

* Bennett University.
** Bennett University
60 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

In India, there is no specific legislation governing artificial intelligence; the

authors have looked into the laws of the US, and UK governing AI and have
examined the Personal Data Protection Bill, 2019, and stated challenges
that will be faced with the takeover of artificial intelligence.

Keywords: Artificial Intelligence, Law, Human Intelligence, Criminal

Liability, Criminal Law.

I. INTRODUCTION

This research paper an overview of the concept of artificial intelligence and

its impact on the present prevailing legal system. Paper discusses to
showcase whether the takeover of artificial intelligence will hamper legal
systems across the world. On the face of it, the authors are on the viewpoint
that the utilization of Artificial Intelligence (AI) in the legal system will be
changed. Firstly, the term Artificial Intelligence (AI) refers to the creation of
computer systems that are capable of doing activities, which traditionally
require human intelligence such as sensing, reasoning, and decision-making
is known as Artificial Intelligence (AI). It can be used in a wide arrange of
applications such as virtual assistants, fraud detection, and autonomous
vehicles. Artificial Intelligence (AI) has the potential to revolutionize the
Indian Legal system by increasing the efficiency of the system, with the
practice of streamlining processes, and reducing the costs in the traditional
legal system. There are some potential ways in which AI could redefine the
paradigm of the Indian Legal System such as in the aspects of legal research
AI can assist the judges and the lawyers in sifting through large volumes of
books, data, cases, and precedents. With this lot of time and also effort
finding something will be saved and somehow AI manages to provide the
relevant information regarding a particular topic. The AI algorithms can
analyze past cases by the courts and are likely to predict the outcome of the
present cases, which will be helpful for jurists to make more informed
decisions and reduce the cases that are going to trial. In India, we know that
there are many languages spoken and it is no surprise that some of the
required documents may be in the regional or in the vernacular language
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 61

which would not be understood by everyone, So, AI could be helpful in the

translation of legal documents from one language to another. This could be
particularly useful in cases relating to international law. AI can be useful in
resolving disputes in online hearings instead of physical hearings of the cases
in the court. However, there are certain problems concerned with AI such as
job displacement, bias in the data provision, safety and security concerns,
and privacy and ethical concerns. A detailed analysis of the above-mentioned
issues has been conducted with the help of relevant literature and related
legislation.

II. ARTIFICIAL INTELLIGENCE

The advent of new technologies in artificial intelligence is bringing a

transformational change in modeling new processes and setting new
standards of doing work with more efficiency and effectiveness and various
sectors around the world are adopting new changes and technologies.

The concept of AI dates back to 1955 when the term was First coined by John
McCarthy Marvin L. Minsky, Nathaniel Rochester, and Claude E Shannon, in
their paper, ‘A Proposal for the Dartmouth Summer Research Project on
Artificial Intelligence’ 1. The technology has seen major use since its
origination. Artificial intelligence (AI) is understood as a branch of science,
engineering, and technology that entails the development of sophisticated
algorithms to simulate human thought and reasoning. AI comprises a wide
range of tasks, from general-purpose ones like observation and logical
thinking to more specialized ones like playing chess, proving mathematical
theorems, producing poetry, and diagnosing diseases2. However, defining
artificial intelligence can be a challenging task as the field of AI can involve
any technology which can a think like human authors like Haugeland defines
AI as those who possess a mind and are capable of thinking 3. Bellman defines

1
John McCarthy et al., A Proposal for the Dartmouth Summer Research Project on Artificial
Intelligence, 27 (4) AI MAGAZINE 12 (2006).
2
S. Russel and P. Norvig, Artificial Intelligence: A Modern Approach (1edn, Prentice Hall of
India Pvt. Ltd.,1995)
3
John haugeland, Mind design ((MIT Press Massachusetts, 1981)
62 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

AI as automating human activities like thinking, decision-making, problem-

solving, and learning4. Different authors have tried to explain AI however of
all these definitions a common thing can be assimilated i.e that AI is systems
or machines which can as reasonable and intelligibly that can be used to
perform tasks that require intelligence of humans in doing tasks such as
solving issues, making automated judgments, or making forecasts5.

The fourth industrial revolution started with the invention of AI and it is

changing work paradigms all around the world as the interaction of
technology with soothe it leaves an Impact on society’s, values, and ethics
and major countries like China, America, and the UK are adopting AI use in
their policies and are taking initiatives to change the traditional methods of
workings and are adopting AI and other technologies. The impact can be
seen by comparing how much these countries have developed by adopting AI
in their domain. However, India is still trying to pace up with the use of
technology and AI as Rajiv Malhotra in his book “artificial intelligence and
the future of power: 5 battlegrounds” writes that “India presently has a
disappointing level of AI development and it needs to embark on a rapid
program to catch up,”6.

India has not been optimistic with regards to the use of technology and
adopting it because of digital illiteracy in India and the policies and approach
of government were also not technology friendly however the approach has
changed and Artificial intelligence is no longer a fringe technology in India,
as businesses and manufacturer as gain a lot from better use of machine
learning and AI. Companies in India are using AI more and more to improve
business results and in the past few years, new technologies have changed
the way businesses and industries work, which affects the production process
and supply chain.
4
R.E. Bellman, An Introduction to Artificial Intelligence: Can Computers Think? (Boyd and
Fraser Publishing
Company, San Francisco, 1978)
5
H. Surden, “Artificial Intelligence and Law: An overview” (2019) Georgia State University
Law Review 1305.
6
Rajiv Malhotra, “Artificial Intelligence and the Future of Power: 5 Battlegrounds” (Rupa
Publications, India,2021).
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 63

The Indian judiciary and Indian legal system also come out as an exception
in the use of technologies as the courts are still working on its traditional
methods which have led to a huge burden of cases on the Indian judiciary
according to the National Judicial Data Grid7 4.3 crore cases are pending at
district level and approximately 59 lakhs cases in the high court and around
70 thousand in the supreme court8. There are various reasons behind delays
in court proceedings such as poor infrastructure and digital illiteracy are the
main reasons for the inability of the legal system to adopt technology and
artificial intelligence in its domain. The court still works on traditional
methods and this has delayed delays in delivering justice. However, the
approach has changed and the judiciary is transforming itself with the help
of technology and artificial intelligence.

HISTORY OF TECHNOLOGY DEVELOPMENT IN THE INDIAN

LEGAL SYSTEM

As Hippocrates said ‘desperate times call for desperate measures’ is the

journey of digitization in the Indian legal system since inception the courts
have retracted themselves from digitization it was until the pandemic when
covid-19 hit the county and the courts were not able to perform physically
then digitization and artificial intelligence came out as a useful measure. As
the courts out of necessity adopted the virtual court and this came out to be a
feasible solution for the judiciary. The benefits arising were the virtual courts
were found to be time and cost-effective as the parties don’t have to travel
and were less hectic than real courtrooms.

The digitization of courts was adopted under the national e-governance plan9
the government has initiated the eCourts Integrated Mission Mode Project
throughout the country to computerize District and subordinate courts to
increase access to justice via the use of technology. It aimed at making the
7
National Judicial data grid, (31st December,2020) < https://njdg.ecourts.gov.in/njdgnew/
index.php> accessed 30th march 2023
8
Supreme court of India, (1st march,2023)< https://main.sci.gov.in/statistics> accessed 30th
march 2023
9
E-committee, supreme court of India, National Policy and action plan for implementation of
information and communication technology in the Indian judiciary (2005)
64 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

work of the judiciary and to make the judicial system efficient, clear, and
cost-effective. Since 2007 the project is implemented and phase-1 was
between 2011-2015 which planned to set up the databases of district and
talukas level courts on the national judicial data grid. It established a method
for keeping track of how matters are handled in the High Courts and
Subordinate Courts. A thorough database of orders, rulings, and case
information from District and Subordinate Courts as well as High Courts is
made available by NJDG. Anyone accessing the National Judicial Data Grid
portal can get the statistics on pendency at the National, State, District, and
Individual Court levels.10

Phase II of the project, which began in 2015, has computerized 18,735

District and Subordinate courts. Along with it all Court Complexes, including
taluk level courts, have received one piece of video conferencing equipment,
and funds have been approved for the purchase of additional VC equipment
for 14,443 courtrooms, and VC services were made available between 3,240
courthouses and 1,272 prisons. Alongside it, websites such as epay, e-filing,
and e-court facilities were established to provide paperless processes and
simplify the filing procedure.

Phase II is nearing completion and Phase III is approved by the Supreme

Court of India. The third phase of the e-Courts project describes a judicial
system that is more affordable, accessible, economical, stable, dependable,
and transparent for every individual in India who seeks justice or
participates in the delivery of justice. Digital and Paperless Courts aimed at
bringing court proceedings under a digital medium in a court; Online Court
focus on erasing the appearance of litigators in the court; expansion of the
scope of Virtual Courts and use of emerging technologies such as Artificial
Intelligence and its sub-components such as Optical Character Recognition
(OCR) etc. for analysis of case pleadings11. The ambition of the e-court
projects was to provide a system to make the judiciary more efficient in
10
National Judicial data grid, (31st December,2020) < https://njdg.ecourts.gov.in/njdgnew/
index.php> accessed 30th march 2023.
11
‘Digitization of Courts’ (PIB Delhi, 03 Feb 2023). <https://pib.gov.in/PressReleaseI
framePage.aspx?PRID=1896034> accessed 30th March 2023.
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 65

providing the details to the parties and to remove the unwanted delays that
exist in the legal system such as location barriers etc.

There are various hindrances in the process of digital transformation as

India is not a technologically developed nation and digital literacy is almost
non-existent to the masses12. It is not easy for socially -economically
backward to access and use technology easily and the judges and clerks,
registrars and other Individuals would also need to be literate regarding the
use of technology. This raises the issue that even if technology was made
available to the general public as it won’t be used in its complete sense
because of digital illiteracy this was the major problem of turning to virtual
courts is the illiteracy of technology among the lawyers and judges as many
of the judges and lawyers were not compatible with the use of technology and
according to BCI 90% of the judges were not familiar with the use of
technology13. The infrastructure and limited resources are also a catch in
conducting the virtual courts.

The current state of the judiciary is not in a position to conduct virtual courts
as it is not in a similar position as physical appearance in the courtrooms and
an overall change is required for making the use of technology accessible for
all interested parties in a courtroom. However, according to the Detailed
Project Report (DPR), artificial intelligence (AI) could be employed for
forecasting and prediction, improving administrative effectiveness,
automating filing, intelligently scheduling cases, enhancing the case
information system, and communicating with litigants through chatbots that
could aid in early case resolution.

12
Dilip Modi, ‘Fostering digital literacy in rural India’ (Economic Times, 25 September 2022).
<https://bfsi.economictimes.indiatimes.com/blog/fostering-digital-literacy-in-rural-
india/94402027> accessed 30th March 2023.
13
Akshita saxena, ‘90% advocates unaware of technology’ ( live law,28 april,2020) <
https://www.livelaw.in/top-stories/90-advocates-and-lawyers-unaware-of-technology-bci-
chairman-writes-to-cji-advising-against-continuation-of-virtual-hearings-post-lockdown-read-
letter-155917> accessed 30th march 2023.
66 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

III. ARTIFICIAL INTELLIGENCE IN THE LEGAL SYSTEM: BOON

OR BANE

In general, the term Artificial Intelligence (AI) means a simulation of human

intelligence in computerized machines that are programmed to perform the
tasks that usually require human cognition such as problem-solving skills,
decision making, and language processing. AI has numerous applications
across various industries such as finance, law, healthcare, education, and the
automobile industry. Artificial Intelligence (AI) has the potential to be both
boon and a bane, depending on how it is created and applied. Generally, like
any other innovation AI also has both advantages and drawbacks. The
following are some of the justifications for either side:

Advantages

• AI can help in completing tasks within less time in comparison to the

traditional sense in which humans perform tasks.

• AI can help automation of tasks and complete tasks without humans, to

focus on more creative and strategic work.

• With the usage of AI new products can be developed which were

previously impractical or impossible to come into practice.

• Even AI can be useful as an accessibility tool for persons with disabilities,

by providing speech recognition and image recognition.

• In the past, conducting legal research was a labour-intensive and

laborious process that required junior associates at law firms and law
students to go through hard copies of case law volumes for pertinent
precedents.

• This process has been digitalized as a result of recent advancements in

software and computers, and lawyers have begun conducting a
substantial legal study through internet resources like Manu Patra and
SCC. AI software tools also help in analysing past cases and are likely to
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 67

decide the outcome of the present case which is of the same subject
matter.14

• The major drawback with the advent of AI would be job displacement, it

means that with the rise of AI in modern society there are many high
chances that people might lose their jobs and will be replaced by Artificial
Intelligence.

• Sometimes AI algorithms can lead to bias if the information on which

they were created and trained upon bias, which would lead to
discriminatory outcomes.

• As AI collects and uses data in all aspects, there is a big question

concerning the privacy of individuals because we may not know who the
people accessing the information are and their purpose.

• Even though steps have been done to control AI and ensure that it is
managed properly, India does not currently have any laws that
specifically address the issue. Many difficulties are encountered as a
result.

The legal industry is slow-paced and rigid to adapt to any new technologies
and has been suffering from the pressures to innovate and transform from
various quarters. However, the advent of new technologies spurred by the
development of automated artificial intelligence may significantly disrupt the
traditional practice of the legal system as this new technology has been
underutilized.15 As far as the developments in the technological fields are
concerned every industry has been affected in one way or another other and
it is no surprise that the legal industry may be immune to the latest
developments in the technological fields.16 Due to a combination of old
14
Bernard Marr, How AI and Machine Learning are transforming the law firms and the legal
sector, Available at: <https://bernardmarr.com/how-ai-and-machine-learning-are-
transforming-law-firms-and-the-legal-sector/>
15
LexisNexis (2014) Workflow and Productivity in the Legal Industry. Available online at:
<https://www.legaltechnology.com/wp-content/uploads/2014/11/Legal-Professional-
Efficiency_whitepaper_final.pdf> [Accessed 28 March 2023].
16
Sheppard, B. (2015) Incomplete innovation and the premature disruption of legal services,
Michigan State Law Review, 5: 1797–1910.
68 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

practices and cautiousness, the legal services sector has generally been
resistant to development and reluctant to adopt new technologies in
comparison to other valuable sectors. It is challenging to persuade highly
successful law firms, among other things, to adopt disruptive technologies
like AI. Yet, the industry is about to endure a structural reconfiguration that
will significantly impact business models and is being pushed by both
technological, mostly in the form of automation and artificial intelligence
(AI), and market forces. The danger is that businesses will be at a deficit if
they do not begin to consider embedding AI into their business practices.
This might have an impact on the sector’s competitiveness and overall
economic health on a global scale.17

The term artificial intelligence has been coined by McCarthy in the mid-
1950s who referred to it as “the science and engineering of making
intelligent machines, especially intelligent computer programs”18. In the
market for legal services, emerging technologies, in particular artificial
intelligence (AI), machine learning (ML), and automation, are pushing
businesses to find new methods to produce, distribute, and profit from their
operations. Due to the opportunity it gives businesses to learn from and
adapt to their external environment and customer needs to remain
competitive, technological innovation acts as a catalyst for Broad Market
Index.

AI could give legal firms access to resources that help them transform in a
way that is both profitable and economically beneficial. Even though
artificial intelligence has the potential to have an effect on every aspect of
legal services, it is more likely to have an impact in the short- to medium-
term on the configuration elements of the BM. These elements deal with the
way the company is structured and how funds are used during the process of
value creation. For example, recent research on technological innovation in

17
Alarie, B., Niblett, A. & Yoon, A. H. (2018) How artificial intelligence will affect the practice of
law, University of Toronto Law Journal, 68: 106–124.
18
McCarthy, J.(2007) What is artificial intelligence?, Available online at:
<http://jmc.stanford.edu/articles/whatisai/whatisai.pdf>
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 69

legal services reveals that certain legal technologies, such as document

arrangement, automation, and artificial intelligence, are predicted to
undermine the present frameworks and business strategies of legal services
firms while also bringing about new opportunities for client interaction and
involvement.19

But nevertheless, in the long run, modern technological instruments are

going to have an evolutionary impact. This indicates that they will not
replace attorneys but rather improve them by assisting them in making
evaluations using reasoned judgement, which is something that robots are
unable to accomplish. It is also projected that AI would enable lawyers to do
more in the same amount of time while substantially cutting the time
required to complete tasks that were previously labour-intensive. This will
enable them to expand rather than confine their areas of specialization. The
writers are of the opinion that artificial intelligence also has the ability to
modify not just the nature of the law but also the manner in which legal
services are generated and utilized by clients. It is possible that as a result of
this, increased speed, accessibility, and personalization of services will be
possible. However, there is also the possibility that there will be risks to the
client-attorney confidentiality, the complete replacement of human
attorneys, and changes to the regulatory environment as a whole.20

IV. ARTIFICIAL INTELLIEGNCE AND ITS IMPACT ON LEGAL

INDUSTRY

In general, AI can be defined as systems that are capable of calculating,

learning, and making decisions autonomously. However, the said definition
can be differentiated from the meaning of automation, because automation
includes only the area of assisting human activities and making a judgment
but not having the power to make the decisions autonomously. But AI has

19
The Law Society (2017) Capturing Technological Innovation in Legal Services. Available online
at: <http://www.lawsociety.org.uk/support-services/research-trends/capturing-technological-
innovation-report/> [Accessed 28 March 2023].
20
Rostain, T. (2017) Robots versus lawyers: a user-centered approach, Georgetown Journal of
Legal Ethics, 30: 559.
70 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

been enabled with technical innovation and development. The authors

believe that AI does not only include automation but it is more than
automation and it has wider scope because the decisions are self-made. The
development of Artificial intelligence and technology is still in its evolution
phase in India as the technology literacy among individuals is still low and
the availability of the internet and smartphones among individuals has
opened new avenues of crimes known as cybercrimes which under its broad
category includes the use of a computer to accomplish unlawful goals, such
as fraud, the trafficking of child pornography and stolen property, identity
theft, and privacy violations. The relevance of cybercrime, particularly over
the Internet, has increased as the computer has taken center stage in
business, entertainment, and government21. Due to the increase in the
availability of the internet, the statistics of cybercrime took a major hit rising
from 3477 in 2012 to 52974 in 202122 and major cybercrimes included an
invasion of privacy, phishing scams, frauds, etc. The statistics emphasize the
need for the development of laws for proper governance of technology.

The current laws to govern and stop Internet-related criminal activity The
Information Technology Act of 200023 was passed primarily to foster a
business-friendly environment for I.T. The acts that have been rendered
punishable are listed in the IT Act. Moreover, cybercrimes are now covered
by the Indian Penal Code, of 186024. Major sections under the IT ACT deal
with matters related to hacking, data alteration, privacy breaches, and
tampering with computer source documents. Under IPC 1860 the topics
covered related to defamation, forgery, cyber frauds, etc.

These laws have been amended from time to time as per the need of the hour
however the laws are still in the development stage as AI has no limit to

21
Dennis, Michael Aaron. “Cybercrime”. Encyclopedia Britannica, (2023).
<https://www.britannica. com/topic/cybercrime>. Accessed 31 March 2023.
22
Tanushree Basuroy, ‘Number of cybercrimes reported across India from 2012 to 2021’
(Statista,13 Oct 2022) <https://www.statista.com/statistics/309435/india-cyber-crime-it-act/>
accessed 30th March 2023.
23
The Information Technology act,2000 (Act 21 of 2000).
24
The Indian Penal Code,1860(Act 45 of 1860).
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 71

evolution. As there is no codified law for the particular governance of

artificial intelligence and the current laws do not directly fall aspects of
technology could not be governed under the current prevailing law of India.

The significant use of artificial intelligence in various sectors and cheap

access to personal data of individuals by AI has created ethical and legal
difficulties in the maintenance of a balance between the use of personal data
by AI and the privacy protection rights of personal data. Via AI algorithms,
these challenges have become crucial to the rapid development of technology
and its expanding application in society. Individually Identifiable
Information (PII) may now be accessed and analyzed with ease, allowing
diverse firms to adapt and achieve success. This has led to the question of
whether the privacy of personal data is at risk, especially since the Supreme
Court of India ruled in a recent case (Puttaswamy and Anr v Union of India
and Others25) that the right to privacy is constitutionally protected.
Currently, there is no law regarding the protection of the data of individuals,
and the Digital data protection bill, 202226 is pending in the parliament. The
bill focuses on providing a system of collection of personal data and other
compliances.

Needless to say, AI also raises some important legal questions as well. One of
the crucial and significant questions is that of the legal personality of the AI.
Second, it relates to the digital economy that with the advent of AI there is a
blur in the national and interstate boundaries and there is no restriction on
the transfer of information. Third, there is a gap between the rules that were
in existence and the reality and AI requires the modification of the present
laws or making of the new laws to include the aspects which the previous law
has not covered. In addition to the above-mentioned, there is one more
practical problem concerning AI’s legal personality which is the abuse of its
recognition. For instance, a company may take the help of AI in making a
particular business model and if it creates any problem then the company
takes the shield as it was made by the AI.
25
K.S. Puttaswamy and Anr. vs. Union of India ((2017) 10 SCC 1)
26
The Data Protection Bill,2022
72 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

The authors opine those regulations related to AI are still at the preliminary
stage and both national and international laws are slow in developing the
laws regulating the conduct of AI. In this fast-moving digital world, there
might be drastic changes due to the utilization of AI as a tool for essential
tasks. The delay in making the laws may also spark international disputes
which might lead to disrupting the global legal regime, which has the
possibility of slowing down the process of developing a vicious cycle in this
particular area.

V. CRIMINAL LIABILITY OF ARTIFICIAL INTELLIGENCE

In this rapidly growing technological world artificial intelligence is changing

and defining new and changing existing dimensions it raises several legal
concerns such as who would be held criminally responsible if an AI-powered
entity hurts a person or their property? Is it the Artificial Intelligence entity
itself (such as robots), the Artificial Intelligence entity’s
producer/programmer (a programmer can also be a third party operating for
the producer; however, for the purpose of this article, we will consider them
to be the Artificial Intelligence entity’s producer), the Artificial Intelligence
entity’s user (i.e. owner/buyer), or is it an act of God? In a case that involves
an Artificial Intelligence Entity, what aspects of the offence need to be
proven beyond a reasonable doubt? Finally, in the event that an entity with
artificial intelligence, like a robot, is found to be responsible for a crime,
what kinds of punishments ought to be imposed on it? There is a wide range
of unsolved legal issues associated with this nature.

Due to the advent of new technologies, Artificial Intelligence has been a

dream for mankind for many decades both in philosophy and fiction. The
inception of AI has made human life easier by providing the required
27
information within no time and it has been cost-effective. From the
development of the automated vehicle to drones, and in many sectors such as
health care and education there is almost every sphere of life in which AI has
been involved. AI has made human life easier and more efficient and it
27
0. E.R. adutniy, (2017), Criminal Liability of the Artificial Intelligence, 138 Probs. Legality 132.
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 73

provides valuable information without delay. 28The authors after examining

sources available on the internet and books, noted that the term Artificial
Intelligence has no precise definition, and it can be said as only the ability to
improvise the relevant subject as per the feedback received to solve the
issues, which are beyond the framework on which the AI system has been
programmed with. 29The growing influences of artificial intelligence across
the world have raised many problems in daily life. From day to day, we often
witness that AI entities have made racist comments and even tried to kill
people. When comes to the aspect of liability typically, crimes done by an AI
entity can be attributed to humans because they were either committed by
humans using it, the programming was faulty, or it was anticipated that it
might do so if not regulated properly. Generally, when making a person
liable for specific offenses the two main aspects will be examined they are
“actus rea and men’s rea”. If any act done by AI is criminal, which is
foreseeable in normal circumstances then the criminal liability can be
attributed to the user of the AI, who has given such an order. In some cases,
the actions of AI cannot be made as a responsibility of humans then some
strenuous questions may arise, because AI software is unpredictable, and the
results it provides are autonomous. The authors are on the thought that
everyone is aware that AI systems depend on technology and it is built on
several programs and the results it provides do not explicitly require human
intelligence. Sometimes, the information it provides may not have been
foreseen by the creators themselves, and in such cases, it becomes difficult to
determine how AI did have acted in such a way. 30

The term criminal law as per the Black’s law dictionary means “that branch
or division of law which treats of crimes and their punishments. In the
plural— “criminal laws”—the term may denote the laws which define and
28
Matilda Claussen-ICarlsson, (2017), Artificial Intelligence and the External Element of the
Crime: An
29
Dafni Lima, (2018), Could AI agents be held criminally liable: Artificial Intelligence and the
Challenges for Criminal Law, 69 S.C.L. REV. 682.
30
Mireille Hildebrandt, (2008), Ambient Intelligence, Criminal Liability and Democracy, 2
Crim L. & Philos. 163, 164-170.Available Online at: <https://criminallawstudiesnluj.
wordpress.com/2021/01/19/analysing-the-possibility-of-imposing-criminal-liability-on-ai-
systems/#_ftn1>
74 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

prohibit the various species of crimes and establish their punishments”.

Under criminal law, there are two necessary conditions to prove whether the
acts that have been committed were criminal they are mens rea and actus
rea. AI systems are no excuse for these principles and they also must possess
both mens rea and actus rea for criminal liability. The authors intend to
prove that if AI does not have any affirmative purpose, then imposing
criminal liability would not be feasible further authors believes that the
direct imposing of criminal liability on the AI would be equivalently
imposing criminal liability on the animals because it cannot form the mens
31
rea. However, this thought is on the basis that AI as a computer system it
only works on the program that has been developed by the humans or users
wanted it to be. Gabriel Hallevy contends that even AI could fulfill all the
requirements of mens rea which would lead to criminal liability.32

The effective legal jurisprudence on the criminal culpability of AI entities is

quite limited, with relatively few statutes and cases addressing this topic,
particularly in India. Under criminal law, common punishments include the
death penalty, imprisonment, and a fine. And even AI systems could be
subjected to similar punishments with some more modifications. For
instance, permanent deletion of the AI entity’s software would have the same
effect as the death penalty on humans. Furthermore, temporary software
deletion could be equated with human criminals being imprisoned. An
analogous punishment for the AI entity could be community service.

VI. COMPARISON OF LEGISLATIONS GOVERNING ARTIFICIAL

INTELLIGENCE WITH OTHER ECONOMIES

The advent of digital society and the inception of artificial intelligence have
guided new modes of day-to-day activities in all spheres of society. In the
present times, artificial intelligence has become a pervasive concept, as it is

31
Id., at 166.
32
Gabriel Hallevy, (2018) Dangerous Robots- Artificial Intelligence vs. Human Intelligence,
Dangerous Ideas 205, 210-216. Available at: <https://criminallawstudiesnluj.
wordpress.com/2021/01/19/analysing-the-possibility-of-imposing-criminal-liability-on-ai-
systems/#_ftn1>
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 75

present across the globe in one form or the other. The software program that
has developed artificial intelligence will guide the system in the automation
of the results. At the present rate of growth of AI, it is no surprise that AI will
take over the world in the near future both in the public and private sectors.
There are many goods and services are being sold in the market with the help
of AI and other sensor technologies. New inventions such as drones,
automated vehicles, and sensor-based home appliances are some of the
merging items in the global market and it is very much expected that they
will gradually become majorly demanded and sold items in the global market
in the future.33 The authors are on thought that these new goods and services
may create new kinds of roles for both the consumers and the sellers, such
for instance we learned that in some nations food is being delivered by
drones, which are based on AI-driven technology and were programmed in
such a way that they deliver the goods at the exact location.34

Artificial Intelligence is one of the latest innovations in the technological

field, there are no proper laws explicitly governing AI both nationally and
internationally. AI could challenge human rights in one form or another
other engaging in the works in which human intelligence is required for the
commission of a specific act and it is no surprise if it raised questions as to
what is meant by humans.35 And human rights can be under threat due to the
excess usage of AI, as it creates job displacement and there should be certain
norms that are to be followed by the nations to control the ambit of AI.36 In
some cases, if the government takes a step forward as to AI should make the
laws as it is more time efficient and cost-effective that governing humans
then it is of such a nature that human rights are at stake and vulnerable in
the hands of AI.37 As the pace of digitalization accelerates in the world, the

33
Mc Kinsey, The Internet of Things: How to Capture the value of IoT (2018), p.26.
34
Hamza Shaban, Amazon is Issued Patent for Delivery Drones that Can React to Screaming
Voices, Flailing Arms, The Washington Post (Mar, 22, 2018).
35
Steven Livingston, and Mathias Risse, The Future Impact of Artificial Intelligence on Humans
and Human Rights, Ethics & International Affairs, Vol. 33, No. 2 (2019)
36
Mathias Risse, Human Rights and Artificial Intelligence, Human Rights Quarterly, Vol. 41,
Issue 1 (2019).
37
Ibid. p. 153.
76 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

aspect of AI is always under the discussion in international organizations

and it is the UN that has rightly determined that there is a legal vacuum in
the regulation of the laws that are to govern AI. The UN Convention on
certain conventional weapons has been utilized as a forum to address the
development of laws to regulate the laws concerning concepts of AI and
weaponry.38

As far as the new developments are concerned concerning India, the Indian
legal industry, the growth of AI has been sluggish. Only 4% of Indian
lawyers, according to research, use AI for their profession. The first law firm
in India to use AI, which mostly used to evaluate and develop contracts and
other legal documents, is Cyril Amarchand Mangaldas. In India, there are no
particular laws governing the actions committed by artificial intelligence and
other software automated systems. However, sections 43A and 72A of the
Information Technology Act, of 2000 protect the individual’s data and
privacy.39 As stated under the General Data Protection Regulation the IT act
has some similar provisions concerning the compensation for unauthorized
disclosure of personal information. Artificial Intelligence has the possibility
to increase GDP by 957 billion US dollars by 2035, or approximately around
15% of India’s current GDP. As it is a well-known fact that AI is going to
change everyone’s life in some way in the coming years. In 2018, the policy
commission, NITI Aayog, has launched no. of policies and programs on AI
applications. The Ministry of Electronics and Information Technology
formed four committees to study artificial intelligence laws and regulations.
The Joint Parliamentary Committee has debated and argued on the PDP Bill
(Personal Data Protection Bill) 2022 based on a proposed data protection
statute.

In the U.K., the British Government unveiled a book called, AI rule book to
promote innovation and boost public trust in the government regarding the

38
Library of Congress, Regulation of Artificial Intelligence: International and Regional
Approaches (Jan. 2019), available at: <https://www.loc.gov/law/help/artificial-intelligence/
international.php>
39
Information Technology Act, 2000, (No 21 of 2000), ss.43A & 72A.
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 77

AI regulations in the country. As far as this rule book is concerned, it defines

artificial intelligence as a “general purpose technology” that is like electricity
or the internet, will have a significant impact on many aspects of our lives
and will vary significantly depending on the context and application. Many of
which we can no longer forecast. However, this AI guideline is distinct from
the EU AI Act, which will be governed by a single regulatory body and seeks
to harmonize EU law across all member countries. The EU’s regulatory
approach has a relatively fixed definition in its legislative proposals, as far as
the rules are concerned.

While each state in the United States has enacted its own artificial
intelligence laws and regulations, the country as a whole takes a fragmented
approach to the issue of artificial intelligence governance. There is no
national law in the United States that governs AI. Most of the legislation
enacted by the states have primarily focused on establishing a variety of
committees to determine how state agencies can use majority of the
legislation enacted by the states have primarily focused on the establishment
of a variety of committees to decide how state agencies can make use of AI
technology and investigate AI’s potential effects on the workforce and
consumers. This has been the case for the majority of the legislation that has
been enacted. A common piece of state legislation that is presently being
considered goes one step further by limiting the responsibility and
accountability of AI systems when they study and make choices based on
customer data. After the enactment of the National AI Initiative Act by
Congress in 2021, the United States established the National AI Initiative to
further improve and coordinate AI research, development, demonstration,
and education across all United States Departments and Agencies. The Act
has established new offices and task forces within various U.S.
administrative agencies, such as the Federal Trade Commission (FTC), the
Department of Defense, the Department of Agriculture, the Department of
Education, and the Department of Health and Human Services, to
implement a national strategy for laws and regulations pertaining to artificial
intelligence. Although it has yet to pass either chamber of Congress, the
78 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

Algorithmic Accountability Act of 2022 would require “covered entities,” or

businesses that satisfy certain criteria, to perform impact evaluations before
using automated decision-making systems. This law was enacted after
hearing claims that AI can be prejudiced and discriminating.

Concerning International Law, The Special Rapporteur on Extrajudicial,

Summary, or Arbitrary Executions, Mr. Christof Heyns, argued in a 2014
report to the UN Council on Human Rights that the use of LAWS or lethal
autonomous robots (LARs) “may be unacceptable because no adequate
system of legal accountability can be devised, and because there is currently
no legal framework that addresses these issues. The ability to decide a
person’s life or death shouldn’t belong to a robot.40Many non-governmental
organizations have called for the banning of autonomous weapon systems
out of fear that “killer robots” could one day endanger humanity. According
to the leader of one such organization, “our concern is that humans, not
sensors, should make targeting decisions.”41 As per the report stated in the
Special Rapporteur on it has been stated that there are many current weapon
systems already include sensors that “determine targets.” 42

VII. FINAL THOUGHTS

AI and digitization are the future and in the upcoming years will completely
change the parameters of work in every field. The advent of new technologies
such as ChatGpt gives the gist of what the future will probably look like. It’s
high time for India to completely revolutionize its existing working models in
every sector to compete and stay ahead in the race. Countries such as the
USA, China, and the UK have already adopted AI as a conventional method
of doing work and doing work efficiently. India however lagged in adopting
revolution 4.0 i.e. artificial intelligence revolution. India is, however, pacing

40
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UNGA Human Rights
Council, 23rd Sess., U.N. Doc. A/HRC/23/47; Cited by Beard, Supra note 160, p. 619.
41
Paul Marks, Anti-Landmine Campaigners Turn Sights on War Robots, New Scientist (Mar. 28,
2008), available at <http://www.newscientist.com/article/dn13550-antilandmine-
campaignersturn-sights-onwar-robots.html>
42
Supra note 160, p. 619.
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 79

up with adopting artificial intelligence in various departments and the covid-

19 pandemic emphasized the need for AI and technologies.

The authors through this paper like to state that in the ensuing decades,
artificial intelligence and its applications will inevitably advance. There is no
reason why all the special criminal culpability standards that apply to
individuals but cannot be applied to companies can’t be applied to AI entities
as well. 43Having strict legal standards to control the criminal responsibility
of AI entities would assure greater social order and make determining
relevant proper liabilities in the instance of an AI entity’s offense easier,
which would eventually result in the welfare of the people.

Laws and regulations governing artificial intelligence would have a

significant impact on democracy and society as a whole. Ultimately, it is true
for all legal systems that competent oversight determines their efficacy.
Supervisory authorities must collaborate and act closely more regularly, even
though it is still unclear exactly how this coordination should appear. For
this reason, it is still crucial to pay attention to how monitoring is set up.

The Indian legal system is also digitizing its courts for efficient working of
the judiciary and is adopting new technologies and AI methods to make the
court process easy and paperless and less expensive. However, the use of AI
also raises several doubts about its safe application as the personal
information of individuals is being stored as there are chances of violation of
the privacy of individuals by using this data for unlawful purposes, and as
India currently does not have any law for data protection of individuals
hence this raises the issue of is adopting AI in the judiciary will be safe as
there are chances of data breach and hacking.

In the present times, we have witnessed that various legal enthusiasts are
now debating whether the introduction of AI into the legal field would
eliminate the need for lawyers and analysts or whether AI-based systems and
platforms will increase the effectiveness and efficiency of firms and lawyers.
43
Mindaugas Naucius, Should Fully Autonomous Artificial Intelligence Systems Be Granted
Legal Capacity, 17 TEISES APZVALGA L. REV. 113 (2018).
80 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

The authors are on the thought that in the legal field, various novel
agreements have been introduced where technological advancements have
enhanced the expertise of legal advisors, contract investigation, brand name
search programming, legal research, programming, and much more.
However, none of the AI-based initiatives or programming focuses on
replacing a lawyer’s efficiency and critical thinking skills; rather, they all
strive to increase the objectivity, accuracy, and focus of examination and
investigation, making them more goal-oriented presently. The legal
profession is duly influenced by examination, dynamics, decision-making,
logical reasoning, critical thinking, and analysis, which cannot be automated
by any software system. Rather computer-based intelligence-based
programming and projects can significantly reduce a lawyer’s time and
exertion while also assisting attorneys and firms in providing more precise
and result-oriented advice to their clients.

In India, the legal sector is still expanding, and more AI-based and
computerized assisting instruments and programming are expected. In any
case, these AI-based and mechanized assisting system software and
programming software will not replace lawyers’ work where logical thinking
and decision-making are required, but will rather make them more
productive and capable while automating various administrative tasks.

VIII. CONCLUSION

AI is a new and growing technology and is widely adopted by various

countries and private companies and is beneficial for efficient working
however the sunshine should not hide the dark clouds as the adoption of AI
also raises several legal issues such as hacking, privacy breaches, data
breach, etc. and the concept of criminal liability of artificial intelligence is
still a developing concept and there are no parameters regarding who can be
held liable for the wrongdoings of AI hence this puts questions on whether a
trust should be put On AI.
REDEFINING THE PARADIGM OF THE INDIAN LEGAL SYSTEM THROUGH... 81

The approach can be to take a middle ground and be not dependent on AI for
the work however in some areas AI can be beneficial in transforming such as
increasing the efficiency of the judiciary by adopting technologies such as
automated research systems, case reference systems, and digitizing the
courts which can increase the working of the courts and making justice
accessible for all. The judiciary after the covid-19 pandemic is considering
the digitization of courts as a necessity as it is necessary for establishing a
system for efficient workings and fast delivery of justice. The biggest problem
is digital literacy among the individual which comes as a hindrance as it
impleads the workings.

The complete digitalization and use of AI in courtrooms is still a long way

because of the problems and disadvantages with the adoption of AI and
solutions to these issue has to be found for the proper and safe use of AI in
the country and the users have to be made literate towards the use of
technology. As AI advances across the world, it will be critical to consider the
potential risks and take steps to mitigate them. Furthermore, ongoing
research and development will be required to ensure that AI is developed
and deployed safely and responsibly. In this modern world, AI is being used
in a variety of applications, including self-automated cars and voice
assistants. However, there are concerns about the ethical implications of AI,
such as bias, privacy, and job displacement. To summarize, although AI has
the prospective to transform many aspects of our lives, we must be aware of
the risks it poses and work to ensure that it is used responsibly, ethically, and
not hampering the lives of humans.
 THE NON-REFOULEMENT
PRINCIPLE AND THE
ROHINGYA CRISIS: AN
ANALYSIS OF THE HUMAN
RIGHTS AND LEGAL
FRAMEWORKS FOR
PROTECTING REFUGEES
FROM FORCED RETURN
Dayanidhi*
Anish Kumar Sinha**
ABSTRACT

The Rohingya crisis has been widely recognized as one of the most
significant human rights and humanitarian crises in recent times. The
crisis has also led to the displacement of millions of Rohingya refugees who
have been forced to flee their homes and seek the protection of neighboring
countries.

The paper begins by exploring the history and development of the non-
refoulment principle and its incorporation into international refugee law
including various legal instruments, legal framework and mechanisms,
and treaties that have modified the principle including the 1951 convention
relating to the status of refugees and its 1967 Protocol with an Indian
perspective. The paper then analyses the application of the non-refoulment
principle to specify the situation of Rohingya refugees, including the
challenges and obstacles they face in accessing protection from forced
return. Further, this paper explores the role of international organizations
and actors in upholding the non-refoulment principle and protecting the
human rights of refugees, especially the efforts of the United Nations High
Commissioner for Refugees (UNHCR).

Keywords: Refoulment, Rohingya, Migrants, Human Rights, UNHCR.

* The Asian Law College, Noida Uttar Pradesh.

** The Asian Law College, Noida Uttar Pradesh.
84 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

I. INTRODUCTION

It is well said by Walter Kalin, Professor of Constitutional and International

Law at the University of Bern and former representative of the UN
Secretary–General of Human Rights of Internally Displaced Persons that
“The principle of non-refoulment is one of the most basic norms of
International law, reflecting the conviction that no one should be returned to
a place where their life or freedom would be threatened.

The Rohingya crisis has been widely recognized as one of the most
significant human rights and humanitarian crises in recent times. The crisis
has also led to the displacement of millions of Rohingya refugees who have
been forced to flee their homes and seek the protection of neighboring
countries. The non-refoulment principle is a fundamental principle of
international refugee law that prohibits the return of individuals, if they may
face persecution or a serious Sam. This research will perceive to examine the
non-refoulment principle and its application to the Rohingya crisis.

The paper begins by exploring the history and development of the non-
refoulment principle and its incorporation into international refugee law.
The study also examines the various legal instruments and treaties that have
modified the principle including the 1951 convention relating to the status of
refugees and its 9067 Protocol. The paper then analyses the application of
the non-refoulment principle to specify the situation of Rohingya refugees,
including the challenges and obstacles they face in accessing protection from
forced return. This analysis includes an examination of the legal framework
and mechanisms that have been put in place to protect refugees from forced
return, including national and international human rights law.

Despite the existence of the third principle, many individuals around the
world continue to be forcibly returned to their home countries, where they
might be facing persecution, torture, or even death. This is a violation of
their human rights, and it is the responsibility of the international
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 85

community to ensure that the principle of non-refoulment is upheld and

respected.

International organizations play a crucial role in promoting nonrefoulement

and protecting the rights of refugees and asylum seekers. The United Nations
High Commissioner for Refugees (UNCHR) is the main UN agency
responsible for protecting refugees and promoting their rights. The UNCHR
works closely with governments and other organizations to ensure that the
principle of non-refoulment is respected and upheld. In addition to UNCHR,
other international organizations, such as the International Organization for
Migrants and the International Committee for the Red Cross (ICRC), also
play an important role in promoting non-refoulment, and protecting the
rights of refugees and asylum seekers. However, there are challenges to
promoting non-refoulement and protecting the rights of refugees and asylum
seekers. One of the biggest challenges is the lack government political will
among some governments to uphold the principle of refoulement. Some
government’s view refugees and asylum seekers as a burden or a threat to
national security and may be unwilling to provide them with protection.

Another challenge is the lack of resources and capacity among some

international organizations to effectively respond to the needs of refugees
and asylum seekers. International organizations often rely on funding from
governments and others donors, and budget cuts or a lack of funding can
have a significant impact on their ability to provide assistance and protection
to refugees and asylum seekers.

STATEMENT OF PROBLEM

The role of the international Organisation in promoting the non-refoulment

of human rights, social security, and other factors has been discussed in
much of the literature and research in different manners. Even though the
recognition of non-refoulement is a fundamental principle of international
law, The effective implementation of this principle remains a significant
challenge, especially in the area of forced displacement caused by conflict,
86 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

persecution, and supplement forms of human rights violations. The aim of

this research paper is to understand the Steps and policies of international
organizations to promote the effective implementation of non-refoulment
and focus on the root causes of forced displacement, by addressing the
advancement of Human Rights, Social Security, and the battle against
poverty.

THE OBJECTIVE OF THE RESEARCH

The primary objective of this research is to assess the difficulties and

obstacles encountered by migrants, specifically refugees and asylum seekers,
in the regions of Myanmar and Afghanistan. The study aims to highlight the
infringement of human and fundamental rights.it also intends to
demonstrate the emergence of international organizations and India as a
Source of support for migrants. Finally, the Study seeks to identify
recommendations for enhancing the migrant’s standard of living and rights.

II. REVIEW OF LITERATURE

The literature review highlights “The importance of non-refoulement in

protecting the rights of vulnerable individuals and promoting human rights,
social justice, and sustainable development. International organizations have
an essential role to play in promoting the implementation of non-refoulment
and addressing the root cause of forced displacement. However, there are
also significant challenges to harnessing the power of international
organizations effectively. Nonetheless, by building Partnerships and
strengthening their capacity international organizations can make a
significant contribution to promoting nonrefoulement1

Mark R. von Sternberg, The Evolving Law of non-refoulment and its

Influence on the Convention Refugee Definition, Vol. 24 (2001), pp. 205-223
He covers refugees and asylum issues, Federal legislation (including the 1986
legalization program ), family- and employment-based immigration, public

1
Buddenburg, Doris and Hakan Demirbuken, Afghanistan Opium Survey 2006, Kabul: United
Nations Office on Drugs and Crime, Issue, September 2006. International Crisis Group,
Disarmament and Reintegration in Afghanistan, Asia Report 65, September 2003.
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 87

benefits eligibility post9/11 immigration developments and many other

issues. Gilles Dorronsoro, a visiting scholar at the Carnegie Endowment, is
an expert on Afghanistan, Turkey, and South Asia. The Taliban strategy has
been successful so far. They have achieved most of their objective in the
south and east and they are making inroads in the north. The Taliban are
unlikely to change their strategy significantly in the face of the U.S. troop
surge. The leadership will probably not concentrate forces to challenge the
IC, as they regretted doing in 2005. The Taliban could decide to exert more
pressure on cities such as Kabul, Ghanzi, and Kandahar, where they are well-
infiltrated.

Omar Chaudhary, Turning Back: An Assessment of non-refoulement under

Indian Law, Vol. 39, No. 29 (Jul. 17-23, 2004), pp. 3257-3264 This paper
hopes to ensure that any refugees policies pursued by the government of
India are based on sounds analyses of the Existing Domestic Law vis-vis
international standards. Otherwise, a proponent of refugee rights risks the
wrath of legislators who feel betrayed by misleading promises from the
scholarly community. Their ire could lead to the repeal of any progressive
legislation, as well as a hostile attitude toward further human rights
initiatives and the academic community at large.

Md. Saddam Hossain and Md. Sajjad Hossain, Rohingya Identity Crisis: A
Case Study, ISSN 2415-6248, pp. 238-2412 The Rohingya crisis has been a
topic of ongoing debate between Myanmar and Bangladesh, but in recent
times, it has received significant attention from nations and international
organizations due to the mass exodus of Rohingya Refugees to Bangladesh.
his paper aims to provide an in-depth perspective on the crisis by Examining
it from a close range. To gather data, The Author conducts direct interviews
with refugees in the Rohingya refugee camps located in Cox’s Bazar.
Additionally, they gathered information from various published sources such
as media reports.
2
AIR SC, volume 3011, Posted: 1997 the Foreigners Act of 1946, the Foreigners Order of 1948,
and the Citizenship Act of 1957. As previously mentioned, the Constitution also grants
Parliament broad powers over these areas. 71 Both the Foreigners Act and the Foreigners Order
permit India to restrict the movement of aliens inside India, to mandate medical examinations,
to limit employment 68 Vishaka v. State of Rajasthan.
88 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

III. HISTORY OF MIGRANTS

AFGHAN MIGRANTS

Afghanistan has been experiencing war, conflict, and in of safety and better
opportunities. The history of Afghan migration can be traced back to stability
for several decades, leading to a large number of Afghans feeling their homes
in search k to the late 1970s when the Soviet Union invaded Pakistan and
Iran, with estimates of over 6 million Afghan leaving the country during the
conflict.

Following the withdrawal of Soviet troops in 1989, Afghanistan plunged into

a period of civil war, with various factions fighting for control of the country.
This led to further displacement, with Afghan seeking refugees in
neighboring countries and beyond. In recent years, the ongoing conflict
between the Taliban and the Afghan government, as well as the presence of
foreign troops has continued to drive migration.

MYANMAR MIGRANTS

Myanmar also known as Burma has a history of migration that dates back
centuries, however, in recent years, political instability, conflict, and
economic hardship have driven a significant number of Myanmar citizens to
seek better opportunities elsewhere. The military junta that ruled Myanmar
from 1962 until 2011 implemented policies that restricted freedom of
movement and made it difficult for citizens to leave the country legally.
However, many Myanmar citizens still migrated illegally, particularly to
neighboring countries such as Thailand, Malaysia, and Bangladesh, in search
of work and better economic opportunities.

In recent years the Rohingya crisis has also led to a significant number of
Myanmar citizens feeling the country, The Rohingya, a Muslim ethnic
minority in Myanmar, have been subjected to persecution and violence by
the country’s military. This has resulted in a large-scale exodus of Rohingya
refugees who have fled to neighboring Bangladesh and other regions.
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 89

PROTECTION OF REFUGEES AS A JUS COGENS NORMS

The principle of protecting refugees as a jus cogens norm is an essential

aspect of international law that emphasizes the critical role of states in
safeguarding refugees’ rights. It is a fundamental and non-derogable right
and principle of customary international law. This indicates that it is a
peremptory norm that cannot be disregarded by any State, even in cases
where there are agreements or circumstances to the contrary.

The principle imposes an absolute obligation on States to protect refugees

from persecution, torture, and other forms of inhumane treatment, and this
obligation cannot be subject to derogation or limitation. It holds true even in
situations of war, emergencies, or national security concerns.

The principle of protecting refugees is enshrined in the 1951 Convention

relating to the Status of Refugees, its 1967 Protocol, and the Universal
Declaration of Human Rights. These international instruments establish the
legal framework for the protection of refugees, defining their rights, and
obligations, and emphasizing the significance of providing them with access
to asylum, preventing their forced return to their country of origin, and
safeguarding them from discrimination or persecution. Additionally, the
principle of protecting refugees is a jus cogens norm, reinforced by the
International Court of Justice and other international bodies. In various
cases, the court has upheld the obligation of States to shield refugees from
persecution, torture, and other inhumane treatment. This norm underscores
the international community’s dedication to safeguarding the rights of
refugees by emphasizing the significance of providing them with protection,
asylum, and respect for their fundamental human rights.

IV. CONTEMPORARY ISSUES AND CHALLENGES

SURROUNDING THE REFUGEE CRISIS

At present, the world is undergoing one of the most severe refugee crises in
history with over 26 million refugees worldwide as of 2021. This crisis has
90 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

created a range of contemporary issues and challenges that affect the

refugees and their host communities. Here are some of the major challenges
surrounding the refugee crisis:

Ø Lack of access to basic needs: A significant number of refugees are

residing in overcrowded camps in urban areas, without access to
essential necessities such as food, water, and healthcare. The absence of
access is worsened during periods of crisis or conflict, when delivering
humanitarian aid becomes a challenging task.

Ø Host community tension: The presence of refugees can lead to

tensions with host communities, particularly when resources are scarce.
This can lead to social unrest, discrimination, and even violence.

Ø Legal challenges: Many refugees face significant legal challenges,

including difficulties in accessing legal assistance, being denied the right
to work or education, and navigating complex legal systems in their host
countries.

Ø Xenophobia and political backlash: The refugee crisis has fuelled

xenophobia and political backlash in many countries. This has led to the
rise of anti-refugee sentiment, restrictions on migration, and policies
that make it more difficult for refugees to seek asylum.

Ø Climate change: Climate change is expected to drive significant

population displacement in the coming years, which will future
exacerbate the refugee crisis. This will pose significant challenges for
governments and international organizations tasked with managing the
crisis.

The contemporary issues and challenges surrounding the refugee crisis are
complex and multifaceted. Addressing these challenges will require a
coordinated and collaborative effort by governments, international
organizations, and civil society actors to ensure that refugees receive the
protection and support they need.
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 91

V. UNDERSTANDING THE LEGAL UNDERPINNINGS OF THE

MECHANISM OF REFUGEE AND AFGHAN MIGRANTS’
PROTECTION

THE INDIAN CONTEXT

The Foreigners’ Act of 1946 and the Citizenship Act of 1955 primarily govern
refugees and migrants. These laws allow for the prosecution and deportation
of foreigners who enter India without valid travel documents or whose visas
have expired. However, the Indian government has also issued a number of
policies and notifications providing relief and protection to refugees and
migrants, including:

Ø In 2011, India implemented a Policy on Refugees that established a

comprehensive framework to protect and assist refugees. The policy
aims to balance humanitarian concerns with national security and
includes a range of measures to provide refugees with support and
protection.

Ø In 2015, a notification was issued granting citizenship to refugees from

Pakistan, Afghanistan, and Bangladesh who had resided in India for at
least six years.

Ø In 2019, the Citizenship Amendment Act amended the Act of 1955 to

offer citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and
Christians from Afghanistan, Pakistan, and Bangladesh who had lived in
India for at least five years.

Ø The National Register of Citizens (NRC) and By the Assam Accord is an

initiative designed to identify and deport illegal migrants from
Bangladesh who entered India after March 24, 1971.

VI. THE UN CONTEXT

The United Nations has established a number of International Conventions

and laws to protect the rights of refugees and migrants, including; the 1967
92 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

Protocol relating to the Status of Refugees expands on the scope of the 1951
Convention and removes restrictions based on geography and time. The
1990 International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families defines the rights of migrant
workers, including access to social security, healthcare, and education.

The Global Compact on Refugees, adopted in 2018, establishes a

comprehensive framework for responding to refugee situations. This
includes addressing the root causes of displacement, providing protection,
and supporting refugees and their host communities.

Both India and the United Nations have established legal frameworks and
policies to address the needs of refugees and migrants. However, the
implementation and effectiveness of these policies remain a challenge,
particularly in the face of increasing numbers of displaced persons and
ongoing conflicts and crises.

MIGRATION AND HUMAN RIGHTS

About 3.6% of the world’s population, or 282 million people, live outside
their country of origin due to reasons such as poverty, lack of resources,
environmental degradation, persecution, and conflict. However, a lack of
human rights-based migration governance is leading to the violation of
migrants’ rights. Migrants in an irregular situation and are particularly
vulnerable to discrimination, exploitation, and denial of their rights. OHCHR
aims to address the denial of fundamental rights such as civil, political,
economic, social, and cultural rights, which are often a result of
discriminatory laws and attitudes toward migrants. Its focus is to safeguard
the human rights of all migrants, especially those who are vulnerable and at
a higher risk of facing rights violations. The organization advocates for a
human rights-cantered approach to migration that prioritizes migrants and
their rights in the development and implementation of migration policies
and governance. This includes the integration of migrants into relevant
national action plans and strategies.
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 93

VII. EVOLUTION OF NON-REFOULMENT AND ITS CURRENT

STATUS IN INTERNATIONAL LAW

The principle of nonrefoulement is a crucial aspect of International Human

Rights Law that deports a person to their home country where they might
encounter danger or mistreatment. This principle is enshrined in several
international laws and treaties, including the 1951 Refugee Convention, The
Universal Declaration of Human Rights, and the International Covenant on
Civil and Political Rights. Over time, this principle has evolved to include
other categories of individuals, such as asylum seekers, stateless persons,
and victims of trafficking. Despite facing significant challenges in recent
years, the principle of nonrefoulement remains a cornerstone of
international human rights law and continues to play a vital role in
protecting the rights of vulnerable individuals worldwide.

REASONS WHY NON-REFOULEMENT IS CRUCIAL FOR THE

PROTECTION OF HUMAN RIGHTS, SOCIAL SECURITY, AND
THE FIGHT AGAINST POVERTY

Non-refoulement is critical for protecting Human Rights, and social security,

and for the fight against the poverty. Firstly, it ensures that the individuals
are not sent back to countries where they face persecution. Torture, and
serious harm, which is essential for preserving for the right of life and
freedom from torture and suppression. Secondly, it enables vulnerable
individuals to access social security benefits and services, which helps to
prevent forced displacement, which is a significant poverty and social
instability, by promoting the rights of individuals to remain in their home
countries. Therefore, is a crucial tool for promoting Human Rights, social
justice, and Sustainable Development.
94 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

VIII. CASE STUDIES FOR EFFECTIVE IMPLEMENTATION OF

NON-REFOULMENT AND PROTECTED INDIVIDUALS’
HUMAN RIGHTS BY INTERNATIONAL ORGANIZATIONS

There are several cases where the effective implementation of non-

refoulment and protected individuals’ human rights by international
organizations. Here, we discussed a few case studies:

Ø The case of Rohingya refugees in Bangladesh: In 2017, Myanmar’s

security forces launched a crackdown on the Rohingya Muslim minority
in Rakhine State, leading to a mass exodus of refugees to neighboring
Bangladesh. Despite the immense pressure on the Bangladesh
government, it refused to forcibly return the refugees to Myanmar, citing
the principle of nonrefoulement. The government worked closely with
shelter, food, and other essential services.

Ø The case of asylum seekers in the European Union: The European Union
has faced a significant influx of asylum seekers in recent years, with
many individuals raising their lives to cross the Mediterranean Sea in
search of safety. The EU has been criticized for its restrictive
immigration of policies, but it has also implemented many measures to
protect the principles of non-refoulment, for example, The EU has
provided funding to “The United Nations High Commissioner for
Refugee (UNHCR)” and other organizations to support asylum seekers
in the third countries and prevent their forced return to their origin
countries from where they are residing now.

Ø Human trafficking is a severe infringement of human rights that usually

entails the coerced transportation of individuals across borders.
International organizations such as the International Organization for
Migration (IOM) have collaborated to address this issue.

Ø The Taliban takeover of Afghanistan caused many Afghans to seek refuge

in neighboring countries, including one family who sold their
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 95

possessions and fled to Pakistan. The family faced challenges at the

Kabul airport and obtaining travel documents, and struggled to adapt to
their new surroundings in Pakistan which was a new place to them.
Despite the difficulties, they were grateful to have escaped and hope to
settle in a more stable country in the future.

International Organizations’ Role in Tackling the Root Causes of Forced

Displacement and Advancing Sustainable Development: Addressing Conflict,
Poverty, and Environmental Degradation

Forced displacement stems from various factors like poverty, conflict, and
environmental degradation. International organizations are crucial in
addressing the underlying causes of forced displacement and promoting
sustainable development by addressing these factors.

Ø Addressing Conflict: Conflict is one of the main factors of forced

displacement. International Organizations work to promote peace and
security by supporting conflict prevention and resolution efforts. They
work with governments, civil society organizations, and other
stakeholders to identify and address the underlying causes of conflict.
International organizations also provide humanitarian assistance and
protection to those affected by conflict and displacement, including
refugees and internally displaced persons (IDPs).

Ø Addressing Poverty: Poverty is another key driver of forced

displacement. International organizations work to address poverty and
inequality by promoting sustainable development and economic growth.
They provide support for marginalized communities through initiatives
such as education and health care and work to improve access to basic
services such as clean water and sanitation. By addressing quality and
inequality, international organizations can help to reduce the likelihood
of forced displacement.

Ø Addressing Environmental Degradation: Environmental

degradation, such as natural disasters and climate change, is also a
96 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

significant driver of forced displacement. International Organizations

work to address these issues by promoting sustainable environmental
practices and providing support for communities affected by natural
disasters. They work with the government and other stakeholders to
develop policies and strategies that promote sustainable environmental
practices and address the underlying causes of environmental
degradation.

Ø Advancing Sustainable development: International organizations

work to promote sustainable development by addressing the root causes
of forced labor displacement.

By promoting peace and security, addressing poverty and inequality, and

promoting sustainable environmental practices, international organizations
help to create more sustainable and stable societies. This contributes to
reducing forced displacements and promoting sustainable development.

As overall, International Organizations play a vital role in addressing the

root causes of forced displacement and promoting sustainable development.
By tackling issues such as conflict, poverty, and environmental degradation,
international organizations help to create more stable and sustainable
societies, ultimately contributing to reduced forced displacement and
promoting sustainable development.

THE IMPACT OF THE COVID-19 PANDEMIC ON THE

IMPLEMENTATION OF NON- NON-REFOULEMENT AND THE
ROLE OF INTERNATIONAL ORGANIZATIONS IN MITIGATING
ITS EFFECT ON REFUGEES AND OTHER DISPLACED PERSONS

The COVID-19 pandemic has had a significant impact on the implementation

of nonrefoulement, which is a fundamental principle of international refugee
law. Non-refoulement prohibits the return of refugees or asylum seekers to a
country where they may face persecution or other serious harm. The
pandemic has created a range of challenges that have made it more difficult
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 97

to uphold this principle and protect the rights of refugees and other
displaced persons. One of the main challenges created by the pandemic is the
closure of the borders and the suspension of asylum seekers to access
protection which has led to situations where they are at risk of being
returned to countries where they may face persecution or other serious
harm.

International Organizations have played an important role in mitigating the

effects of the pandemic on refugees and other displaced persons. They have
worked to raise awareness about the impact of the pandemic on vulnerable
populations and to advocate for policies that protect the rights of refugees
and asylum seekers. International Organizations have also provided support
to refugees and other displaced persons during the pandemic. This has
included providing access to essential services such as healthcare, shelter,
and food, and working to ensure that these services are delivered safely and
in compliance with public health guidelines.

In addition, international organizations have worked to ensure that refugees

and other displaced persons are included in the national COVID-19
vaccination programs. This is important not only for their own health and
well-being but also for the broader public health response to the pandemic.

DISCUSSING THE ETHICAL AND MORAL IMPLICATIONS OF

NON-REFOULMENT AND ITS IMPORTANCE FOR PROMOTING
SOCIAL JUSTICE

Non-refinement is a fundamental principle of international refugee law that

prohibits the return of refugees or asylum seekers to a country where they
may face persecution or other serious harm. This principle is essential for
promoting social justice as it upholds the rights and degrees of individuals
who have fled their homes and countries due to fear of persecution or
violence.

The ethical and moral implications of non-refoulement are significant.

Returning refugees or asylum seekers to a country where they may face harm
98 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

violates their basic human rights and puts their lives at risk. It also goes
against the principle of compassion, empathy, and respect for human dignity
which is the core of social justice. Non-refoulement is important for
promoting social justice because it ensures that individuals are not
discriminated against based on their race, religion, nationality, political
opinion, or membership in a particular social group. It provides a
mechanism for protecting vulnerable members of society, including women,
children, and individuals from marginalized communities. Non-refoulement
also promotes social justice by recognizing the principle of burden-sharing.
This principle acknowledges that countries have a shared responsibility to
protect refugees and asylum seekers and to provide them with access to basic
services such as healthcare, education, and employment. By sharing this
responsibility, countries can work together to create more equitable and just
societies.

HOW INTERNATIONAL ORGANIZATIONS HAVE RESULTED

INTO HELPING HAND OF MIGRANTS AND REFUGEES TO
PROTECT THEIR HUMAN RIGHTS

International organizations have played a significant role in protecting the

human rights of migrants and refugees. Advocacy and awareness-raising
campaigns by international organizations have helped shift public
perceptions and contributed to the development of more supportive policies
and programs. These organizations provide essential services and support to
migrants and refugees, such as access to healthcare, education, and legal
services organizations work to strengthen legal frameworks that protect the
human rights of migrants and refugees, both at national and international
levels. The organizations promote greater collaborations among countries
and build partnerships to protect the human rights of migrants and refugees.

International organizations have been crucial in advancing the protection of

human rights for migrants and refugees. Through their multifaceted efforts,
they have helped to promote greater respect for the rights and dignity of
migrants and refugees, and they continue to work towards creating more
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 99

equitable and just societies that uphold the principles of non-discrimination

and equality.

SOME INTERNATIONAL ORGANIZATIONS HELPING

MIGRANTS, REFUGEES, AND ASYLUM

There are several international organizations that are dedicated to helping

migrants, refugees, and asylum seekers. Some of these organizations include:

1. United Nations High Commissioner for Refugees (UNHCR): This

organization is the UN’s refugee agency, and it works to protect and
provide assistance to refugees and asylum seekers around the world.

2. International Organization for Migration (IOM): This is an

intergovernmental organization that works to promote safe, orderly, and
regular migration.

3. International Rescue Committee (IRC): This organization provides

humanitarian assistance to refugees and other displaced persons, and it
works to help them rebuild their lives in the aftermath of conflict or
disaster.

4. Médecins Sans Frontiers (MSF): This organization provides medical

assistance to people affected by conflict, epidemics, and other disasters,
including refugees and asylum seekers.

5. World Food Program (WFP): This is the UN’s food assistance

organization, and it provides food assistance to refugees and other
vulnerable populations around the world.

6. Save the Children: This organization works to protect and support

children affected by conflict, displacement, and other crises, including
refugee and asylum–seeking children.
100 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

7. Amnesty International: This is a global human rights organization that

works to promote and protect the human rights of all individuals’
refugees and asylum seekers.

SUGGESTIONS FOR THE IMPROVEMENT AND EFFECTIVE

IMPLEMENTATION OF THE PRINCIPLE OF NON-
REFOULEMENT.

Ø States should demonstrate greater political will and commitment to

respect the principle of non-refoulment and safeguard the rights of
refugees and asylum seekers.

Ø To tackle the root cause of displacement and migration, including

conflict, poverty, and environmental degradation, sustainable and
equitable policies should be developed and implemented.

Ø International organizations and civil society groups need to be

empowered to advocate for the rights of refugees and asylum seekers
and hold governments accountable for their obligations under
international law.

Ø Cooperation and coordination among states, international organizations,

and civil society groups should be promoted to provide adequate
protection and support for refugees and asylum seekers.

Ø The COVID-19 pandemic poses specific challenges for refugees and other
displaced persons, who should be included in national vaccination
programs and provided with essential services and support.

Ø Raising public awareness about the rights and needs of refugees and
asylum seekers and challenging negative stereotypes and discriminatory
attitudes towards them is crucial.
THE NON-REFOULEMENT PRINCIPLE AND THE ROHINGYA CRISIS: AN ANALYSIS... 101

IX. CONCLUSION

The principle of nonrefoulement is a fundamental principle of international

human rights law that seeks to protect the rights of refugees and asylum
seekers. The international organization has played a critical role in
promoting and implementing this principle, protecting the rights of those
who are forced to flee their home due to conflicts, poverty, and other
complex factors. However, challenges still exist, and it is crucial for states to
work together to address the root cause of displacement and migration and
provide protection and support for those who are forced to flee. The COVID-
19 pandemic has posed significant challenges to the implementation of non-
refoulement, but international organizations have worked tirelessly to
mitigate its effects on refugees and other displaced persons. By upholding
the principle of non-discrimination and equality, and promoting social
justice, international organizations have contributed to the creation of more
equitable and just societies. The protection of refugees as a jus cogens norm
emphasizes the absolute obligation of states to safeguard refugees’ rights,
even in situations of war, emergencies, or national security concerns.
Therefore, the potential of international organizations in promoting non-
refoulement, advancing human rights and social justice, tackling poverty,
and sustainable development needs to be harnessed effectively, for the
betterment of society.
 “TRANS” FORMING SOCIETY
THROUGH THE SOCIAL
INCLUSION OF “TRANS”
GENDERS

Sakshi Tiwari*
Sarvagya Agarwal**
ABSTRACT

The paper sheds light on the discrimination and prejudice experienced by

the transgender community in the culture at large. According to World
Health Organisation (WHO), Gender encompasses the socially constructed
attributes, behaviours, and roles assigned to women, men, girls, and boys,
along with their interpersonal connections. On the other hand, gender
identity pertains to an individual’s personal and distinct perception of their
gender, which may or may not align with their assigned sex at birth.
Transgender people are those whose gender identity does not associate
with their sex at birth. The people belonging to this community have been
subjected to heinous and derogatory treatment for a long time now. They
are denied access to proper education, health care facilities, basic
amenities, ancestral properties etc., due to the dogma and stigma
prevailing in the society. This is not just the scenario in underdeveloped or
developing but the developed countries as well. This paper aims to examine
the discrimination and bigotry attitudes flourishing in society and suggest
some measures to tackle them and make the transgender community
socially inclusive.

* Dr RML National Law University, Lucknow.

** Dr RML National Law University, Lucknow.
104 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

Keywords: Transgender, Gender Identity, Discrimination and Prejudice,

Gender Equality, Socially Inclusive.

I. INTRODUCTION

‘Sex’ is in conformity with chromosomes, hormone prevalence, and external

and internal anatomy,1 whereas the term ‘gender’ refers to the social and
culturally prescribed roles, behaviours, standards, and identities that
societies place on people based on their sex, which is usually defined as male
or female. People who identify as neither males nor females are at odds with
the gender roles that society has established. Transgender individuals, who
identify themselves as straight men or women, are perceived differently by
society, leading to them being labeled as “transgenders” or the “third
gender.” The term “transgender” was initially coined by Dr John F. Oliven in
his 1965 medical text titled “Sexual Hygiene and Pathology.”

The presence of transgender people in India has been recognised since

ancient times. We can find descriptions of Transgenders in Vedas and
scriptures, as the ‘Tritiya Prakriti’, those who were not entirely male or
female, both in mind and body. Their existence can also be traced back to
Ramayana and Mahabharata. Apart from Hindu mythology, traces of the
transgender community can be found in scriptures belonging to different
religions, including Jainism, Buddhism etc. During the Mughal period as
well, the transgender community thrived and was honoured with positions of
significance. However, with the arrival of the Britishers, like the corroding
walls of the Taj Mahal, the reputation of the Transgenders also disintegrated.
After the independence, the constituent assembly provided many rights to
the Transgender community. However, as stated by Dr B.R. Ambedkar in his
final speech addressing the constituent assembly, the constitution depends
upon the people who are called upon to implement it.2 It took almost 70
years to enact legislation ensuring their rights in 2019. Numerous difficulties

1
Bhavya Agarwal, Is it Possible for Transgenders to Be Legal and Free? SCC Online Blog,
https://scc-nlul.refread.com/Members/SearchResult.aspx (accessed 12 May 2023).
2
G..Reddy and Bagelkar Akash Kumar, Transgenders and the Law A Commentary, 1st edition,
2022.
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 105

exist for the transgender group in various spheres of society. All aspects of
existence involve discrimination against these people. They struggle to
survive, from their homes to their places of employment, and have to deal
with discrimination constantly. There is an immediate requirement to
implement essential progressions in addressing the challenging atmosphere
prevalent in society to foster social inclusivity for the transgender
community.

IDENTIFICATION OF STATEMENT OF RESEARCH PROBLEMS

The aim of this paper is to identify and analyse the major problems faced by
the transgender community, examine the existing government initiatives and
interventions undertaken to address these issues and propose
recommendations for further improvement.

RESEARCH METHODS

The research approach employed in the paper is centered around doctrinal

research. This type of methodology involves a thorough investigation and
analysis of established legal principles, doctrines, and authorities. It entails a
systematic and scholarly examination of legal materials, including
legislation, court rulings, legal textbooks, and academic articles, in order to
acquire a comprehensive comprehension of legal doctrines and their
interpretations. We have appropriately acknowledged the sources of the
materials used in our paper.

II. THE STIGMATISATION AND DISCRIMINATION FACED BY

TRANSGENDER PEOPLE

The effects of marginalisation on the life of a transgender individual are

deeply intertwined. Stigma and transphobia contribute to isolation,
economic hardship, violence, limited access to social and financial support
networks, and compromised health outcomes. Each of these circumstances is
interconnected and frequently worsens the others.3

3
Vivek Divan et al., Transgender Social Inclusion and equality: Pivotal Path to Development, 19
J of the Int AIDS Society (17 July 2016).
106 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

Families, especially in India, conform to certain gender norms and believe in

the duality of sex. People presume that any deviation from this is unnatural
or a disease that needs to be treated. As a result, many transgender people
who express their gender identity are considered to disgrace their families
and are also subjected to rejection and humiliation. Many times, they are
banished by their own families, and if not so, they are shunned within
households leading to a significant impact on their mental and physical
health. They are often not provided with sensitive support and required
social services.

Transgender individuals encounter discrimination not only within their own

families but also from society at large. They are presented with limited
chances to access the education and employment opportunities they need.
Findings from a 2018 study carried out by the National Human Rights
Commission reveal that 96 per cent of transgender people face job denials
and are compelled to accept poorly compensated or undignified occupations
for their livelihoods, such as engaging in traditional blessings, engaging in
sex work, or resorting to begging. According to the inaugural research
conducted on transgender rights, an overwhelming 92 percent of
transgender individuals are denied the opportunity to engage in any kind of
economic endeavors within the nation. This includes even qualified
transgender individuals being rejected for job opportunities.4 The National
Human Rights Commission (NHRC) additionally reported that 52 per cent of
transgender individuals faced harassment from their peers, while 15 per cent
experienced mistreatment from teachers, ultimately leading them to
abandon their educational pursuits. 5 This resentment and derogatory
treatment by society hinder the Right to Education of the transgender
community and disallow them from accessing higher education.

The legal system of the country, even though it is progressive and efforts are
being made to bring the transgender community to par with other members
4
The Transgender and Unemployment in India, Outlook India (16 February 2022, 6:12 PM),
https://www.outlookindia.com/national/transgender-and-unemployment-in-india-news-
182617.
5
Id.
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 107

of society, there is still a long way to go. The failure to acknowledge the
identities of Hijra/Transgender individuals in different laws deprives them
of fair legal protection, leading to pervasive discrimination against them.6
Article 14 of the Constitution guarantees equal protection, thereby placing a
responsibility on the state to enact appropriate social and economic reforms.
This ensures that all individuals, including transgender individuals, have
equal access to the protection of laws, without any denial of such safeguards.7
Even though the courts have perspicuously stated this and the constitution
also advocates in favour of transgenders, they are rarely provided with such
protection. In fact, a lot of time, trans people are subjected to abuse,
exploitation, and mistreatment. They are often falsely charged for creating a
‘public nuisance’ and are rarely provided with the opportunity to be heard.
This abuse can even continue within police custody or by inmates within a
legal system that fails to acknowledge them properly.

Many healthcare institutions and personnel lack the necessary knowledge

and awareness to effectively accommodate individuals who do not fit within
the traditional male/female binary framework. This exclusionary approach
towards transgender people leads to a healthcare system that fails to meet
their specific medical requirements. Consequently, these individuals face
severe injustices, continuous stigmatization, marginalization, and increased
vulnerability to violence, all while being denied basic human rights. These
circumstances significantly elevate their susceptibility to mental health
disparities and substance abuse.

III. STEPS TAKEN TOWARDS SOCIAL INCLUSION OF

TRANSGENDERS

In recent times, the government has undertaken crucial initiatives aimed at

promoting social inclusivity for the Transgender community. These efforts
have been consistent and substantial, with a clear focus on creating a society
that embraces transgender individuals. By recognizing and protecting the

6
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
7
Id.
108 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

fundamental right to live a life of dignity, as outlined in Article 21, the

government has implemented various measures to ensure the well-being and
rights of the transgender community are safeguarded.

• THE TRANSGENDERS PERSONS (PROTECTION OF RIGHTS)

ACT, 2019: The enactment of the Transgender Persons (Protection of
Rights) Act, 2019 aimed to address the widespread prejudice and unfair
treatment experienced by transgender individuals and elevate their
quality of life to match societal norms. The legislation aimed to enhance
the responsibility of the central government, state governments, and
union territories in addressing matters related to transgender
individuals, placing a stronger emphasis on accountability.8 The bill
advocated against the discrimination faced by transgender people in
education, employment, healthcare, etc. The government’s intention
was to prevent the separation of transgender children from their
immediate families and to provide them with proper healthcare
services, including dedicated HIV surveillance centers and sex
reassignment surgeries. Furthermore, the act aimed to review medical
education and research to equip doctors with the knowledge and skills
necessary to address transgender-related concerns. The National
Council for Transgender Persons was also established with the primary
motive of advice as well as monitoring the impact of policies and
projects on transgender people.

• TRANSGENDER PERSONS (PROTECTION OF RIGHTS)

RULES, 2020: The rules were formulated by the government by the
power conferred by section 22 of the Transgender Persons (Protection
of Rights) Act, 2019. Certain additional features and functions were
added to regulate further and ease up the lives of transgender people.

8
Ministry of Social Justice and Empowerment, Transgender Persons (Protection of Rights) Bill
2019 passed by the Parliament, pib.gov.in (27 November 2019), https://pib.gov.in/
PressReleasePage.aspx?PRID=1593871.
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 109

• SMILE (SUPPORT FOR MARGINALISED INDIVIDUALS FOR

LIVELIHOOD AND ENTERPRISE): The SMILE scheme was
launched by the Ministry of Social Justice and Empowerment in
February 2022 with the aim to provide welfare measures to the
transgender community and for beggars with a major emphasis on
rehabilitation, providing medical facilities, counseling, education, skill
development, etc. The scheme was further divided into two sub-
schemes, one of which is a Central Sector Scheme for Comprehensive
Rehabilitation for the Welfare of Transgender People.9 This sub-scheme
advocates providing scholarships to transgender students from classes
9th to post-graduation to ensure all-round educational development.
There is also a provision for providing a comprehensive package in
collaboration with Pradhan Mantri Jan Arogya Yojana (PM-JAY) for
Gender-Reaffirmation surgeries in selected hospitals. The
establishment of ‘Garima Greh’, where food, housing, recreational skills
development, etc., will be provided, has also been included under the
scheme along with other various welfare measures.

• NATIONAL PORTAL FOR TRANSGENDER PERSONS: The

Ministry of Social Justice and Empowerment unveiled the National
Portal for Transgender Persons, providing a platform that caters
specifically to the needs of transgender individuals. This portal has
removed the need for people to be physically present in order to obtain
a certificate of identity and identity cards. It provides the easement of
applying for an identity card from across the nation in a seamless
process. The process will include monitoring the status of applications,
rejections, and grievance resolutions, ensuring transparency. Issuing
authorities must adhere to precise guidelines for prompt issuance of
certificates, avoiding unnecessary delays. Having an identity certificate
enables individuals to modify their first name on their birth certificate

9
Ministry of Information and Broadcasting, Welfare of Transgender Persons in India: Slew of
Measures by Central Government in last three years, static.pib.gov.in (30 June 2022),
https://static.pib.gov.in/WriteReadData/specificdocs/documents/2022/mar/doc20223522601.
pdf.
110 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

and other pertinent official records. Obtaining a Transgender certificate

of identity is necessary to access welfare benefits provided by the
SMILE scheme.

IV. SUGGESTED STEPS FOR TRANS SOCIAL INCLUSION

• RIGHT TO GENDER RECOGNITION: For trans individuals to be

accepted as human beings, a set of fundamental rights that ordinary
people take for granted must be guaranteed. These rights must
acknowledge their legal existence. Transgender people are not
recognised as legal persons in several nations, ranging from Malaysia to
Mexico, as the Global Commission on HIV and the Law noted10. Gender,
a fundamental aspect of their identity, is not acknowledged. The
recognition of their gender identification is crucial for trans individuals
as it forms the basis for their inherent dignity and entitlement to
various rights, including healthcare and protection from HIV.
Unfortunately, trans people face significant obstacles in accessing
proper medical information and care due to frequent rejection of their
requests.

Acknowledging a transgender individual’s gender involves honoring

their choice to identify as male, female, or a gender that doesn’t
conform to the traditional male-female binary. This includes
recognizing the concept of a “third” gender, as embraced by various
longstanding trans communities such as the hijras in India. This is true
regardless of the sex assigned to them at birth. For transgender people
to achieve full personhood and citizenship, this is a necessary condition.
Ensuring gender recognition on official government documents, such as
passports and identification cards, has far-reaching implications for
transgender individuals. It grants them access to various fundamental
aspects of life that cisgender people take for granted, including opening
bank accounts, applying to schools, signing housing contracts, seeking

10
UNDP, H. and AIDS Group, 2012. Global Commission on HIV and the law: risk, rights and
health. New York: UNDP.
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 111

employment, voting, traveling, receiving healthcare services, and

accessing state subsidies. This recognition not only facilitates their full
participation in public life but also promotes their economic
advancement, social inclusion, and legal equality. Moreover, it
empowers transgender individuals and fosters their self-worth, shaping
the perspectives of their families, society, law enforcement, government
officials, and healthcare providers who regularly engage with them.
These rights have been acknowledged by UN treaty bodies,
underscoring their critical importance. The UN High Commissioner for
Human Rights has advised States to “facilitate legal recognition of the
preferred gender of transgender persons and establish arrangements to
permit relevant identity documents to be reissued reflecting preferred
gender and name, without infringements of other human rights”11.

• ENABLING ACCESS TO HEALTH CARE: You can’t tell if someone

is transgender unless they tell you because gender identity is a personal
and individual construct for each person. Additionally, gender
presentation, or how someone presents themselves concerning gender
norms and expectations, does not always indicate a person’s gender
identity. Determining who is transgender and who is not is not the goal
of a transgender-inclusive health centre. Even if you are unsure about a
person’s gender identification, the goal is to provide healthcare
treatments that include all gender identities.

Given the serious public health issues the transgender population is

experiencing, healthcare organisations must take all reasonable steps to
ensure that transgender people may get health treatment respectfully
and beneficially. Any client will have a better experience and be more
willing to use healthcare in the future if they are appreciated, listened
to, and given the proper care.

11
UNHRC, Discriminatory laws and practices and acts of violence against individuals based on
their sexual orientation and gender identity, A/HRC/19/41, 17 November 2011.
112 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

Here are five directions we recommend taking:

1. Before the transgender population is counted in the next census, it is

essential to create a supportive environment;

2. Address societal problems like stigma and discrimination that put

transgender people at risk for health problems;

3. Afford them equitable human and legal rights to ensure their access to
healthcare and related services.

4. Incorporate a section on transgender health into the medical syllabus

and offer orientation to newly graduated physicians.

Involving the transgender community in studies on their health - “No me

without me.”

• FOLLOWING SUSTAINABLE DEVELOPMENT GOALS: While

there have been some positive strides in securing human rights for
transgender individuals, much of the progress remains piecemeal,
lacking a cohesive and comprehensive approach. The hostile
environments in which transgender people still reside make it clear that
more substantial and systematic changes are urgently needed. It is
crucial to achieve scalable and widespread improvements to address the
pressing issues faced by the transgender community and ensure their
rights are fully protected. The international community’s recent
adoption of the Sustainable Development Goals (SDGs) offers a chance
to increase constructive actions12.

The foundation of equitable and sustainable development is the

prevention of social exclusion and breaches of human rights. The
attainment of all 17 SDGs is crucial for everyone, including trans people,
and this is true for trans individuals just as much as it is for other

12
Transforming our world: the 2030 Agenda for Sustainable Development, UN Department of
Economic and Social Affairs, https://sdgs.un.org/2030agenda (last visited 14 May, 2023).
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 113

people. SDG 3 of these SDGs, “Ensure healthy lives and promote well-
being for all at all ages,” contains fundamental support for trans
people’s health and human rights. SDG 10 calls for reducing inequality
within and between nations, and SDG 16 urges the promotion of
inclusive societies for sustainable development, universal access to
justice, and the creation of inclusive institutions at all levels.

This new shared agenda has received the unqualified support of UN

Member States for the near future. The SDGs necessitate a clear,
inclusive, and long-term political will manifestation. The way they
express themselves through language effectively communicates the
urgent needs of transgender individuals, who rely on the interconnected
rights of healthcare access, protection from violence and discrimination,
and legal acknowledgment of their gender identity.

The Sustainable Development Goals (SDGs) emphasize the urgency of

addressing key issues concerning transgender individuals. Governments
are urged to engage with the trans community actively, unequivocally
support their right to legal recognition of their gender, facilitate the
documentation of human rights abuses against them, establish secure
and transparent channels for reporting violations, take appropriate
action against perpetrators, ensure proactive measures to prevent such
violations, and uphold the rights of transgender individuals. Only by
fulfilling these commitments can we create a world that respects their
inherent worth and where they can live with dignity, equality, and well-
being.

• INCLUSIVE SCHOOL CURRICULUM: Diversity and inclusivity

within educational institutions have gained increasing attention in
recent years. There has been a request to create an inclusive school
curriculum that acknowledges the particular needs and experiences of
13
Inclusion of Transgender children in school and education: concerns and roadmap,
Department of Gender Studies- National Council of Educational Research and Training,
https://clpr.org.in/wp-content/uploads/2022/01/Inclusion_of_Transgender_Children_
in_School_Education.pdf (last visited 15 May, 2023).
114 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

transgender kids as part of this movement. Such a curriculum not only

promotes an atmosphere of acceptance and understanding but also
gives transgender people the tools they need to succeed both
academically and in their personal lives. Schools may promote a more
inclusive and equitable learning environment for all children, regardless
of gender identification, by adding transgender viewpoints, experiences,
and challenges into the curriculum. This includes understanding the
lives, fears and needs of transgender children, facilitating them
according to their requirements and sensitising other children to have
transgender children as their classmates and friends like any other
child.13 In order to establish an inclusive environment for children who
identify as transgender or gender nonconforming, the following
measures can be followed:

V. CREATION OF TRANSGENDER-FRIENDLY
INFRASTRUCTURE

The existing infrastructure in numerous educational institutions primarily

caters to binary genders, neglecting the needs of non-binary individuals.
Society’s deep-rooted adherence to binaries has resulted in segregated
infrastructures based on gender, such as single-sex schools for boys and
girls, gender-specific restrooms, changing room facilities for sports, hostel
arrangements, and common areas14, among others. This situation has led to
challenges for transgender and gender non-conforming children who often
avoid school restrooms due to concerns that can detrimentally affect their
physical and mental well-being. Regrettably, instances have occurred where
these children, while attempting to access school restrooms, have faced
backlash, bullying, and distressing experiences. In higher education, colleges
often lack gender-neutral hostel facilities, forcing many transgender
individuals to seek accommodation outside the campus. Consequently, some
are compelled to drop out of college due to the inconvenience caused by the
absence of inclusive infrastructure. In the past, schools excluded females

14
Id.
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 115

from certain educational facilities, but appropriate measures were taken by

the government to address this issue.15 Similarly, concerted efforts are
required to ensure inclusive infrastructure for transgender and gender non-
conforming children. The government should work towards establishing
gender-neutral facilities, analogous to the measures taken to create
disability-friendly schools that feature wheelchair ramps and visually
impaired-friendly classrooms.

TAKING STRICT ACTIONS AGAINST ANTI-TRANSGENDER OR

LGBTQ+ BEHAVIOUR

Bullying involves the consistent and intentional abuse of power within

relationships, where individuals engage in repeated acts of verbal, physical,
or social behavior with the aim of causing harm to others physically, socially,
or psychologically. It can encompass situations where an individual or a
collective exerts their authority, whether real or perceived, to exploit or
manipulate others who find themselves unable to prevent such actions.16
Regrettably, individuals who deviate from societal norms regarding
mannerisms and behaviours often become primary targets of such bullying,
leading to severe consequences for gender nonconforming and transgender
children. To address this issue effectively, it is imperative for teachers to
prioritise immediate intervention when encountering instances of bullying.
They should clearly define derogatory and unacceptable behaviour while
sensitising students through educational instruction to refrain from engaging
in such conduct.17 Additionally, helpline numbers should be introduced
specifically for transgender students, providing support and assistance in
cases of violence or harassment.18 Establishing efficient mechanisms to
address wrongful actions promptly is also crucial. Complaint boxes should be

15
Id.
16
Definition of Bullying, National Centre Against Bullying, https://www.ncab.org.au/bullying-
advice/bullying-for-parents/definition-of-bullying/ (last visited 18 May 2023).
17
Developing LGBTQ- Inclusive Classroom Resources, GLSEN, https://www.glsen.org/activity/
inclusive-curriculum-guide (last visited 15 May 2023).
18
Inclusion of Transgender children in school and education: concerns and roadmap, supra note
1.
116 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

strategically placed within school premises, allowing students to report

incidents where they themselves have been victimised or where they have
witnessed acts of bullying taking place. Furthermore, schools must ensure
that appropriate and consequential measures are taken against bullies, with
the aim of punitive action and encouraging behavioural change. By holding
bullies accountable for their actions and providing them with opportunities
to learn from their mistakes, schools can help prevent the recurrence of such
incidents in the future.

1. SENSITISING STAFF AND STUDENTS- Educational programs

should be organised with the aim of fostering sensitisation among
teachers and school staff, recognising their influential role in shaping
students’ perspectives. The promotion of transgender sensitisation
among educational practitioners is of paramount importance to
facilitate desired changes in school culture. Therefore, it is crucial to
incorporate appropriate inputs on transgender issues in both pre-
service and in-service teacher education. To effectively address these
concerns, chapters focusing on the challenges and obstacles faced by the
transgender community, as well as strategies to overcome them, should
be included in the school curriculum. Introducing these topics early,
children can develop awareness and empathy towards transgender
individuals, thereby diminishing stigma and discrimination.
Furthermore, it is imperative to remove any biases against transgender
persons that may exist in textbooks and other teaching-learning
materials. Including material specifically dedicated to transgender
persons can aid in dispelling prejudices surrounding gender identity
and foster a positive image by highlighting the accomplishments of
transgender individuals and their contributions to society. In
conclusion, the organisation of educational programs targeting teachers
and school staff is crucial in promoting sensitisation towards
transgender issues. By integrating chapters on transgender concerns
into the school curriculum, students can acquire a deeper
understanding, empathy, and acceptance of transgender individuals,
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 117

consequently fostering a more inclusive and equitable educational

environment.

2. CREATING SAFE SPACES FOR TRANSGENDER STUDENTS-

LGBTQ students facing victimization, seeking LGBTQ-related
knowledge, or in need of emotional support require access to secure
environments. This holds particular significance for LGBTQ youth who
encounter different degrees of acceptance or rejection within their
families. When schools provide social support, these students
experience increased safety, a stronger sense of belonging, and
improved overall health and educational achievements.19 It is highly
advisable to promote the establishment of clubs within each educational
institution; wherein students can convene on a regular basis to engage
in open discussions concerning matters pertaining to gender justice,
violence, and any personal apprehensions they may have. These forums
aim to foster mutual support, camaraderie, and the overall development
of a unified community. Furthermore, it is recommended to establish
committees that can arrange for the presence of expert counsellors
specialised in addressing issues that necessitate professional guidance.
Additionally, inviting speakers, role models, law enforcement
representatives, legal professionals, and activists can significantly
contribute to disseminating knowledge and consciousness-raising
among students.

• INVOLVE TRANSGENDER PEOPLE IN DECISION-MAKING:

Developing inclusive and equitable policies and practices requires a
comprehensive approach that considers the diverse needs and
experiences of all individuals, including transgender people. In order to
create laws and regulations that directly address the challenges and
concerns faced by the transgender community, it is essential to include
transgender individuals in decision-making processes. This means

19
Hoanglan Cardinal, Creating Safe and Inclusive Schools for LGBTQ Students, 13 BU J of
Graduate Studies in Education 17, 19-20 (2021).
118 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

giving them a seat at the table on boards, committees, and task forces
where policies are formulated, and decisions are made.

By mandatorily including transgender people in decision-making

bodies, we ensure that their unique perspectives, insights, and
experiences are taken into account when shaping policies and practices.
This not only increases the likelihood of developing more inclusive and
equitable laws but also promotes a sense of ownership and
empowerment among transgender individuals. Their participation can
shed light on issues that might be overlooked by those who are not
directly affected, leading to more comprehensive and effective solutions.
To ensure meaningful inclusion, it is crucial to consult with transgender
individuals and groups fighting for their rights and welfare. Engaging in
dialogue and actively seeking input from these communities provides a
necessary platform for them to voice their concerns, share their
experiences, and contribute to decision-making processes. This
consultation should be seen as a prerequisite, as the knowledge and
expertise of transgender individuals are invaluable in creating policies
that address their specific needs and challenges.

Allocating resources to encourage transgender people to participate in

decision-making is an important step. This can include compensating
them for their time and expertise, acknowledging the value of their
contributions, and removing barriers that may prevent their
participation. Making meeting venues accessible and providing
necessary accommodations, such as sign language interpreters or
gender-neutral restrooms, ensures that transgender individuals can
fully engage in the decision-making process.

In addition to individual efforts, forming partnerships with

transgender-led organisations is crucial for building trust, fostering
collaboration, and promoting synergy in decision-making processes.
These organisations often have a deep understanding of the challenges
faced by the transgender community and can provide valuable insights
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 119

and recommendations. By working in partnership, decision-makers can

tap into the expertise and experiences of these organisations, ensuring a
more informed and inclusive decision-making process.

Ultimately, these steps aim to ensure that the voices of transgender

individuals are not only heard but also actively incorporated into the
development of policies and practices. By including transgender people
in decision-making bodies, consulting with them, allocating resources,
and forming partnerships, we can create a more inclusive and equitable
society. This approach recognises the importance of representation,
collaboration, and shared decision-making, ultimately leading to
policies that better serve the needs of all people, including the
transgender community.

• PROVIDING RESERVATION IN EMPLOYMENT AND

EDUCATION: According to a study conducted by the Kerala
Development Society (KDS- Delhi) in collaboration with National
Human Rights Commission in 2017, about 29.11 per cent of transgender
people in Delhi and 33.11 per cent in UP have never attended school,
and only about 5.33 per cent of transgender people in Delhi and 4 per
cent In UP have a graduation degree. It is a matter of serious concern
that transgender persons are denied the right to education even after
enacting the Right to Education Act of 2009.20 The report also examined
employment patterns and discovered that only 6 percent of transgender
individuals in Delhi and UP are currently employed. Furthermore, their
employment is primarily concentrated in the private or NGO sectors.
The majority of transgender individuals are involved in informal sector
activities. The findings from the field survey also indicated that none of
them were employed in the government sector.21 A significant event
occurred when 150 transgender individuals appeared for a government

20
Kerala Development Society, Study of Human Rights of Transgender as a Third Gender,
National Human Rights Commission (February 2017), https://nhrc.nic.in/sites/default/files/
Study_HR_transgender_03082018.pdf.
21
Ibid.
120 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

job examination. However, due to the absence of horizontal reservation,

they were unable to secure any employment opportunities.22

Providing reservation to the transgender community in employment

and education would be a step towards gender inclusion and equality.
The community has constantly been fighting for its right to be provided
adequate representation. The National Legal Services Authority
(NALSA) vs. Union of India23 2014 decision directed the government to
provide trans people ‘all kinds of reservation’ in admissions to
educational institutions and employment.24 However, even after 9 years
of the judgment, there is still no sign of reservation for transgender
people. Currently, only Karnataka is a state that provides a reservation
of 1% to the transgender community. They frequently have restricted
access to opportunities for education and work due to the widespread
prejudice and marginalisation they experience in society. Reservation
policies will act as a catalyst and can help solve these problems by
offering affirmative actions and chances for transgender people to
access education.

Furthermore, the transgender community is advocating for horizontal

reservation rather than vertical reservation across castes. This means
that within each caste category, including Scheduled Castes, Scheduled
Tribes, Other Backward Classes, and General Categories, there should
be individual reservations for transgender individuals in education and
the workforce. Similar horizontal reservations already exist for women
and individuals with disabilities across caste categories. Let’s take the
example of a Dalit transgender woman. She faces discrimination based
on both her caste and gender identity, so she would require

22
Sudipta Das, An equal stake in the nation: Why transgender people are demanding horizontal
reservation, Indian Express (April 22, 2023, 14:52 PM), https://indianexpress.com/article/
opinion/equal-stake-nation-transgender-people-demanding-horizontal-reservation-8570321/.
23
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
24
Abhinay Lakshman, Movement to secure horizontal reservation for trans people in education
and employment gains momentum, The Hindu (February 11, 2023, 09:05 PM)
https://www.thehindu.com/news/national/movement-to-secure-horizontal-reservation-for-
trans-people-in-education-and-employment-gains-momentum/article66497445.ece.
“TRANS” FORMING SOCIETY THROUGH THE SOCIAL INCLUSION... 121

accommodations in both categories. However, the absence of horizontal

reservation limits the opportunities for transgender people. In contrast,
under vertical reservation, individuals belonging to SC/ST categories
can only claim reservations in one category, either as transgender
individuals or based on their caste.

A Dalit trans activist Grace Banu said, “But what governments need to
understand is that the transgender community is not a homogenous
community. Trans people come from various classes, castes, and
regional and economic backgrounds. Clubbing them into one
homogenous reservation category erases the experiences of Dalit-
Adivasi communities. It is unjust.”25 Reservation policies will act as a
catalyst and can help solve several problems faced by the transgender
community by offering affirmative actions and chances for transgender
people to access education and employment and provide them an equal
stake in the nation.

VI. CONCLUSION

The national and international communities have taken many steps for the
betterment of the lives of people from the Transgender community; however,
these steps rarely deliver fruitful results, and the level of engagement at the
grassroots level is almost non-existent. Trans people continue to face
instances of violence and discrimination. They are still looked down upon,
and their whole lives are wrapped around stigmatisation and alienation by
society. India has had a history of recognising and celebrating gender
diversity since time immemorial. Hence, the current scenario of suppressing,
discriminating and violating the basic rights of Transgenders is a
degradation of the heritage of the country. The need of the hour is to make
gender-inclusive laws and effectively impose the ones made, as well as
actively work towards the eradication of any loopholes present. Government

25
Meenakshy Sasikumar, explained: Why Trans People are Demanding Horizontal Reservation
Across Castes, The Quint (20 April, 2023, 8:23 AM), https://www.thequint.com/explainers/
trans-people-fight-for-horizontal-reservations-across-castes#read-more.
122 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

should engage with trans people to understand their problems and provide
efficient windows where they can report any violation suffered and be
provided with solutions to compensate for the situation. Measures should be
taken to ensure that such violations are not repeated and basic rights of
transgender people are not hindered. Transgender social inclusion is crucial
for building a more equitable and just society. It requires a concerted effort
from individuals, institutions, and the government to create a safe,
supportive, and inclusive environment for all genders. In conclusion, we can
say that the people of the transgender community should be viewed with the
same lens as any other cis-gendered person.
 BOOK REVIEW

A CONSTITUTION TO KEEP:
SEDITION AND FREE SPEECH
IN MODERN INDIA, (INDIA,
HARPERCOLLINS INDIA, 2023)
[PP. 340, ISBN-10 : 9356296650,
ISBN-13 : 978-9356296657
(HARDCOVER)]
Hartej Singh Kochher*

“A CONSTITUTION TO KEEP: SEDITION AND FREE SPEECH IN

MODERN INDIA” by Rohan J. Alva is another spirited attempt by the author
to delve deep into the ocean of Indian Constitutional Law and bring out and
share with the readership, the riches that are contained therein. This time,
he has picked up the subject of sedition law as contained in Section 124A of
the Indian Penal Code, a matter which has evoked much interest among the
intelligentsia due to its frequent use in recent times. So much so that the
highest Court of the country has had to intervene and take up for
examination whether this law is in violation of Indian Constitution. In the
interim, the Court has refrained the Governments in the States as well as the
Union Government from pursuing cases under the law. Under these
circumstances, the author seeks to indulge in a serious probe to find out if
the vision of our legal luminaries as contained in the Indian Constitution
permits the continuation of the sedition law especially in light of the all-
important fundamental right to the freedom of speech and expression
guaranteed to the citizens of this country.

The amount of diligence he has amassed and put into this work is for
everyone to perceive when he in great detail, traces the origins of sedition
law in India. In this attempt, he dextrously connects the early origin of this

* An Assistant Professor of Law at UPES, Dehradun.

Email Id: hartejsinghkochher@gmail.com
124 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

law with the mindset of people like Thomas Babington Macaulay and James
Stephen whose disdain for Indians was reflected in the language and spirit of
sedition law. The author brings out skilfully, the sole purpose of the law
being to demand full obedience from the Indian subjects to the British
Government of the time and suppress dissent of any kind. The biased
approach of the colonial regime being further carried forward to its logical
conclusion is very well brought out by the author in the vivid description of
the sedition trials of Bal Gangadhar Tilak, Amba Prasad and Mahatama
Gandhi where the twisted reasoning and logic of the judges Petheram,
Strachey, Edge and Broomfield is for everyone to feel after reading the
chapter.

In the first trial of Bal Gangadhar Tilak for sedition, Justice Strachey has
been seen to be under the influence of Chief Justice Petherham’s
interpretation of Section 124A earlier in Joginder Chander Bose case of 1891.
As a result, the word disaffection in Section 124A was very wrongfully
interpreted as “absence of affection.” As a result, Tilak was found guilty but
not before Justice Strachey’s blunder in the interpretation of law was clearly
exposed for which he had to offer an apology. In the appeal before the Privy
Council, Tilak was ably represented by Henry Asquith by arguing for the
need to balance section 124A so that any critical comments against the
government “could not be stifled under the garb of Sedition”. Inspite of these
efforts of Asquith, the conviction of Tilak was not interfered with which
speaks of the colonial regime's intention to suppress the Indian subjects to
obedience by all means rigorously, however unfair. The nationalist leaders
Gandhi and Tilak, however were undeterred and took the charges of sedition
as a matter of pride, indicative of their patriotic fervour.

In the late nineteenth century, as per the author, there were attempts at
reconstructing the Sedition Law and M.D. Chalmers, a member of the
Governor General Council played a leading role in the new formulation of
Section 124A. However, dissatisfaction with the law remained because the
changes brought out suffered from the same kind of fallacious approach that
BOOK REVIEW 125

all instances of speech and expression exciting disaffection ought to be

punished.

It is noteworthy to recall that in the 1900s, the author discovered two strands
of decisions by the courts, the first one towing the same line by treating any
speech against the government as sedition while ignoring the possible
consequences of such action. In the other category of cases, the judiciary
looked into the outcome of the impugned speech or expression before
punishing for sedition. Special mention is needed regarding the Niharendu
Dutt Majumdar case decided by the Federal Court. While acknowledging that
section 124A could not treat all forms of speech or expression that criticized
the government, the Court treated an act as a sedition offense only when
some consequences ensued in the form of incitement of public disorder.
Indeed, a revolutionary line of thinking is indicative of a change of mindset
with the changing times.

One interesting fact described in this book relates to the logical expectation
that the sedition law which had invited the ire of the public at large and
nationalist leaders who had borne the brunt of it due to its ruthless
application would have no place in the constitutional scheme of independent
India. However, this was not to be and there was constant dithering and
wavering on the issue in the Constituent Assembly during the period of four
years between 1946 and 1950. Ultimately, with the efforts of K.M. Munshi
and other like-minded members of the Assembly, in the final Constitution
approved by the Constituent Assembly on 26 November, 1949, it was
ensured that sedition was not a ground on which the freedom of speech and
expression could be restricted. Two important cases, Romesh Thappar vs
State of Madras and Brij Bhushan Vs the State of Delhi were decided by the
Supreme Court in the ensuing period. The judgements concluded that any
law which restricted the freedom of speech and expression on the basis of
public order was per se unconstitutional. In Thapar case, the Supreme Court
also stated that sedition law under section 124A of the IPC no longer
survived under the new Constitution. A similar conclusion was arrived at by
126 Nirma University Law Journal: Volume-XII, Issue-2, July 2023

the Punjab and Haryana High Court in the Master Tara Singh Case.
However, the author laments that the Supreme Court in 1962 overturned this
status and declared Section 124A as constitutional and a valid law in the case
of Kedar Nath Singh vs. State of Bihar on the erroneous argument that the
First Amendment to the Indian Constitution adding “public order” to Article
19(2) brought back section 124A to life. The author argues vehemently that
this was not the intention behind the First Amendment as the addition of
new restrictions in Article 19(2) was not related to sedition law at all. It is
also ironic that the Federal Court judgment in Mazumdar case of the British
era which had been seen as revolutionary in the prevailing times would form
the basis of the Supreme Court line of thinking in the Kedar Nath case to put
the clock back. The Federal Court had ruled that section 124A was applicable
when public order was threatened due to the impugned speech. The most
fascinating aspect of this book relates to the chapter where the author brings
out the fact that the law of sedition is an anathema in our constitutional
scheme with its democratic framework essentially requiring people to engage
in political speech. The vivid description of Constituent Assembly
deliberations as well as the Indian jurisprudence bring out clearly the
importance of people using their thought processes and debate on the
functioning of their elected representatives through political speech in a
functional democracy.

The experience of the United States of America and its jurisprudence has
been further used to bring out the importance of free speech in India. In fact,
it has been clearly conveyed that the Constituent Assembly members as well
the Indian Supreme Court have widely acknowledged that the US
Constitution as well as American jurisprudence serve as a beacon light to
India as regards the importance of free speech. This was in the knowledge
that in the U.S., a very high premium is placed on political speech as an
integral part of democratic ideals, a factor which was responsible for the
denunciation of the Sedition Act of 1798.

Recalling the Supreme Court of India order of May 2022, suspending the
operation of the Section 124A of IPC pending its decision on whether this law
BOOK REVIEW 127

is unconstitutional, the author also cautions that even in case, the Supreme
Court finally decides against the constitutionality of this law, problems will
still prevail in the form of Section 2(1)(o)(iii) of UAPA.. He goes on to explain
how this is due to the fact that all the ills that afflict Section 124A are equally
found in Section 2(1)(o)(iii) of UAPA. Just like in Section 124A, the sedition
provision of UAPA is not concerned with the after-effects or consequences of
the speech and expression in question. Both the provisions punish the
expression of less than favorable opinions about the State/Government and
hence, unconstitutionally, restrict the freedom of speech and expression.

Continuing his crusade to highlight the fallacy of the Supreme Court

judgment in the Kedar Nath case, even at the cost of many repetitions which
may also reflect his intellectual commitment, the author laments how this
judgment brought back into the chapter of fundamental rights in the Indian
Constitution, the discredited notion of colonial times that people must
blindly obey the government and say nothing against it. Arguing that an
imminent threat to public order can never be the justification of sedition law
since, for the purpose of Article 19(2), public order is unrelated to State
security. He also uses the judgment of the Supreme Court in the Shreya
Singhal case where Justice Nariman declared Section 66A of the IT Act as
unconstitutional on the grounds it poses similar problems as in Section
124A. He thus concludes that Section 124A is unconstitutional being not a
reasonable restriction on the freedom of speech and expression of people. In
fact, according to the author, it is a law that is to be declared
unconstitutional. The Government has also conveyed to the Supreme Court,
its intention to re-examine this law. It will be interesting to watch the turn of
events in the coming months and later.