Recent Changes in the Citizenship Law of India

By Dr. Werner F. Menski, M.A., Ph.D., S.O.A.S. London

Introduction

In the current debates on freedom of movement in Europe after 1992, the position of non-EEC citizens resident in an EEC country is of particular interest. There are substantial numbers of such people living within the EEC, though we have no precise statistics; they are either unable or unwilling to become citizens of their respective EEC country of residence. Often their arguments for retaining an overseas citizenship relate closely to the legal provisions of their country of origin. This raises important questions in legal practice, for which few European immigration and nationality lawyers will be prepared.

Earlier, I began to discuss the notion of 'denizens' and their precarious legal position (see l & NL& P Vol.4 No.2 [April 1990], pp.86-88). While increasing recognition of this difficult problem, which is a mixed one of nationality and immigration law, is certainly welcome, we are still far from having satisfactory guarantees for the freedom of movement of such people within the EEC. The purpose of the present article is, however, not to discuss the rights of Indian Citizens in the EEC context, but rather to focus on the provisions of Indian Citizenship law, particularly some recent changes that seem to follow the restrictive trends of British law and have important implications for many British Asians and other overseas Indians.

Some legal practitioners in Britain today, and certain local law centres in particular, will occasionally be called upon to advise clients on the citizenship laws of India, Pakistan or some other South Asian country. Questions may arise as to the right of certain individuals to claim or retain Indian citizenship. Particularly the position of British-born children, whether or not either parent holds Indian citizenship, will be of some interest. Many Asians in Britain, asking themselves whether they should become British citizens, or whether it was wise to do so, will want to know what rights they may still have under Indian law. The aim here, then, is to guide advisers through various relevant South Asian laws. The present article focuses on India and is the first in a projected series of essays on the citizenship laws of South Asian countries.

It will be obvious to most readers that among Britain's resident 'Asian' population there are many people who have retained the citizenship of a South Asian country. As Commonwealth citizens (a term that means very little in the immigration context today) they have important rights in Britain, such as the right to vote and to stand in elections, which are not given to a German or French citizen resident in Britain, for example. In the domestic immigration context, on which our literature, professional concerns and newsflashes concentrate, such 'Asian' non-citizen residents may pose no specific problems, particularly if they have indefinite leave to remain in Britain. Rather, advisers may be dealing with an emigration issue and advice may be sought on the position of dependants with British citizenship and/or on the rights and privileges attached to Indian citizenship. Since India has introduced some important legal changes in the Citizenship (Amendment) Act, 1986 and these amendments are likely to affect many Asians in Britain, material on this complex subject will, I hope, be found useful. The present essay will first provide a basic outline of the development of the current citizenship laws of India and will then make particular reference to the impact of the recent legislative changes.

Citizenship under the Indian Constitution

Indian citizenship law has, a long history under the British raj, which does not concern us here (for details see Sinha 1962; Master 1970; Sethi 1981). In essence under British rule all Indians became British subjects, a status confirmed by the British Nationality Act of 1948, with the well-known result that this entailed a right to come to Britain, which was then taken away by a restrictive regime of immigration laws commencing with the Commonwealth Immigrants Act, 1962.

By that time, India and Pakistan had become independent on 14th August 1947. As a recent study notes (Agrawala and Rao 1990:71), all Indians and Pakistanis should automatically have lost their British nationality on that date. But both countries retained the colonial system of citizenship law and took some time to develop their own rules on citizenship, a pattern matched by many Commonwealth countries, especially in Africa. Thus, all Indians remained British subjects, definitely until 26 November 1949, when some provisions of the Constitution of India, 1950 (Arts. 5-9) came into force (Agrawala and Rao 1990:70). The Indian Constitution itself only came into force on 26 January 1950, so some doubts may remain about the intervening period, but this will be of little practical significance. Definitely, from 26 January 1950 all relevant provisions of the Constitution of India were in full operation, establishing for the first time an independent Indian citizenship (on details see also Agrawala and Rao 1990:65-75).

Part II ('Citizenship') of the Constitution contains Arts.5 to 11 which laid down, in essence, who was an Indian citizen on the date that the Constitution came into force. The Constitution neither defines 'citizenship of India' nor did it provide for acquisition or loss of citizenship after the commencement of the Constitution. This was to be done by later legislation, which is envisaged in Art.11.

Basically, under Art.5 all persons domiciled in India and either born there or either of whose parents was born there, or who had been ordinarily resident in India for not less than five years immediately preceding the commencement date (26th November 1949), became a citizen of India. This included many non-Indians, e.g. British settlers who had not, for whatever reasons, returned to Britain by 1950. The Indian Supreme Court has confirmed that satisfaction of any one of the above conditions, provided a person had Indian domicile, was sufficient to give that person Indian citizenship (Abdul Sattar AIR 1965 SC 810).

Art.6 made special provisions for persons who had migrated from Pakistan to India during or after partition and included them as citizens of India, provided they fulfilled certain conditions. Since these provisions concerned millions of people who had become embroiled in the refugee streams of 1947-48, they were obviously very important. Pakistani law, of course, contains corresponding provisions to take care of its own citizens in similar circumstances. Significantly, Art.7 of the Indian Constitution denies Indian citizenship to persons who migrated to Pakistan after 1 March 947 but before 26 January 1950. This includes people who fled to Pakistan in the initial turmoil and later wanted to come back to India. It appears that the law has treated such persons rather harshly (for details see Agrawala and Rao 1990:84-9); there is a considerable body of case law on this particular problem, mainly concerning the rights of Muslim individuals, some of whom merely wanted to visit relatives in Pakistan and found, on return, that their Indian citizenship status was being challenged. I see some parallels here with current British difficulties over the rights of returning residents; this material could well be the subject of an interesting piece of comparative legal research.

Art.8 of the Indian Constitution affected Indian?, overseas and is an important provision for Asians in Britain and elsewhere. It gave all persons who were either born in India or either of whose parents or any of whose grandparents was born in undivided India and who were ordinarily resident in any country outside India the right to become Indian citizens by registration. At that time, of course, the Asian population of Britain was not yet large, so this provision is more likely to have affected East African Asians, some of whom-opted for Indian citizenship (see Meher 1970), while many people, as we know, relied on their British citizenship status, only to see it eroded by the Commonwelath Immigrants Act of 1968 (see Steel 1969).

On the other hand, all persons who voluntarily (as distinct from 'by operation of law') acquired the citizenship of a foreign state (this excluded all Commonwealth countries according to Art.367(3) of the Constitution and the Constitution (Declaration as to Foreign States) Order 1950 made under it), thereby lost their claim to Indian citizenship by birth or descent. This constituted, in effect, a refusal on the part of Indian law to accept dual nationality (on this see now in some detail Agrawala and Rao 1990:105-6).

Since these constitutional provisions only regulated the position as on 26 November 1949 and 26 January 1950, Art.10 of the Constitution provided for the continuance of the above regulations and Art.11 gave powers to Parliament to create a full future Indian law of citizenship. Thus, any person born in India on or after 26 January 1950 was not covered by the above provisions but, as Agrawala and Rao (1990:76-7) argue, it would be wrong to speak of a lacuna here, since the British Nationality and Status of Aliens Acts 1914-1943 still applied in India till 30 December 1955, the date when India's Citizenship Act of 1955 came into force.

India's Citizenship Act of 1955

This Act first of all regulated the position of persons born on or after 26 January 1950 and provided a permanent law of Indian citizenship which, together with the Citizenship Rules of 1956 is still in force today. Being a federal republic, India saw a need to emphasise that only one citizenship and domicile was recognised in the country (Hem Chandra AIR 1956 Calcutta 378), a position reiterated by the Supreme Court more recently in Pradip Jain (AIR 1984 SC1420, at 1427), although in a different context.

The Act first of all supplements Part II of the Indian Constitution by making retrospective provisions for all persons born in India on or after 26 January 1950. At the same time, this Act provides for the future and thus lays down a comprehensive scheme for acquisition and loss of Indian citizenship. The Act is a fairly standard form of citizenship law with many features replicated in other jurisdictions. While one could go into great detail here, the present coverage is restricted to the most important aspects of the 1955 Act and to those provisions that have been subject to amendment in 1986.

Under the Act, acquisition of Indian citizenship is provided for by birth (S.3), descent (S.4), registration (S.5), naturalization (S.6) or acquisition of territory (S.7). Sections 8-10 cover various forms of termination and deprivation of citizenship, In its supplemental provisions, the Act continues to recognise Commonwealth citizenship (S.11).

S.3(1) of the Act applies the ius soli principle and provided that, with very few exceptions focusing on foreign diplomats and enemy aliens, listed in S.3(2), ‘every person born in India on or after the 26th January, 1950, shall be a citizen of India by birth.' This was the case even if both parents were foreigners. This provision corresponded to that in English law under S.4 of the British Nationality Act, 1948 prior to its amendment by the British Nationality Act, 1981. As we shall see below, India too has now abandoned the pure ius soli principle, so that a child born in India today would not automatically acquire Indian citizenship.

Citizenship by descent is provided for under S.4 of the 1955 Act, the basic rule of S.4(1) being that 'a person born outside India on or after the 26th January 1950, shall be a citizen of India by descent if his father is a citizen of India at the time of his birth', provided that the birth is registered within a specified time. This amounts to a fairly generous application of the ius sanguinis principle.

It appears that, being aware of the existence of so many millions of overseas Indians, Indian law made fairly generous provisions for the acquisition of citizenship by registration in 1955. These were tightened up significantly by the 1986 Amendment Act. The provisions under the 1955 Act are found in S.5. They allowed a person of Indian origin, defined in the explanation as 'deemed to be of Indian origin if he, or either of his parents, or any of his grand-parents, was born in undivided India', to register as an Indian citizen. This could either be done if such person was an ordinary resident in India for at least six months immediately prior to making an application [S.5(1)(a)] or even from abroad [S.5(1)(b)] and was also open to women married to Indian citizens [S.5(1)(c) and to minor children of such citizens [S.5(1)(d)] as well as adult citizens of a number of countries specified in the First Schedule to the Act [S.5(1)(e)]. These countries are the UK, Canada, Australia, New Zealand, South Africa, Pakistan, Ceylon, the Federation of Rhodesia and Nyasaland (now Zimbabwe, Zambia and Malawi) and the Republic of Ireland, with New Commonwealth countries being added later, as they became independent. Overall, these provisions constituted a liberal regime, welcoming all those that sought to join the body of Indian citizens. It is known that these provisions were used by many Pakistani citizens, in particular, and that they were applied to Sri Lankan Tamils.

Similarly, the Indian provisions for acquisition of citizenship by naturalization appear quite liberal. S.6 contains the general rules, while the Third Schedule of the Act lists a number of conditions, such as an existing or former close connection with India (established in a variety of ways), the intention to retain such connection, good character of the applicant and knowledge of at least one of a specified range of languages. Paragraph (b) of the Third Schedule also lists a requirement that such persons must renounce their existing citizenship. In general, there seems plenty of scope for administrative discretion, which is acknowledged in the Act itself (S.14), but there is no evidence from the provisions of the Act itself to suggest any underlying hostility to persons seeking to acquire Indian citizenship.

Ss.8-10 in the 1955 Act provide for the loss of Indian citizenship by renunciation, termination or deprivation. Under S.8, an Indian citizen holding dual citizenship may voluntarily renounce Indian citizenship 'by making a declaration in a prescribed manner. This shows again that Indian citizenship law is not in favour of dual nationality.

Certainly of much greater practical importance is S.9, under which the voluntary acquisition of citizenship of another country (i.e., also of any Commonwealth country) leads to the automatic termination of Indian citizenship. In practice, this means that 'Asians' who are Indian citizens resident in Britain would automatically lose their Indian citizenship status if they were to acquire British nationality. This, no doubt, is one of the major reasons why many 'Asians' in Britain have not wanted to become British citizens. Whether this reluctance has more to do with the 'myth of return'(Anwar 1979) or with the desire to retain Indian citizenship for practical and legal reasons (often at least for one member of the family) is an interesting question that cannot be answered here; it would warrant some detailed research.

In Indian law, S.9 of the 1955 Act has given rise to an important debate about the respective powers of the executive and the judiciary to determine when a person has voluntarily acquired another citizenship (for details see now Agrawala and Raol990:85-9). There is a considerable body of case law on this, again involving mainly Muslim individuals embroiled in the tensions between India and Pakistan.

S.10(1), by implication, makes it apparent that an Indian citizen by birth or descent (sometimes referred to as natural born citizens) may never be deprived of citizenship, while several other categories of Indian citizens may lose their Indian nationality status. Such loss may result from fraud or false representation when acquiring Indian citizenship by registration or naturalization, disloyalty towards India in various forms, acquisition of a serious criminal record or prolonged -continuous residence abroad for more than seven years under S.10(2)(e). Again, there is much room for discretion here. Further, it has been argued that such provisions for deprivation of citizenship may lead to statelessness and are, therefore, undesirable (Agrawalaand Rao 1990:90-l).There are no indications, though, that the provisions of S.10 have been invoked frequently by Indian law.

At least one academic author (Master 1970:40) has complained that the Constitution and the 1955 Act created a confusing mess of different categories of citizens. The Citizenship Act, 1955 has been supplemented by the Citizenship Rules of 1956 (7 July 1956) which have often been used to clarify certain provisions of the 1955 Act and contain an abundance of procedural detail and guidance on the relevant forms, none of which concerns us here.

India's concerns about immigration rather than emigration

In conclusion of the previous sections, it would appear that with the exception of its treatment of Muslims with a Pakistani connection, Indian citizenship law has not been specifically concerned to exclude people. Rather, it has sought to facilitate access to Indian citizenship status for all those individuals who desired a connection with India.

In Europe, we are used to seeing India as an emigration country rather than a place to which people might wish to migrate. While this may have been right in the 1950s and 1960s, the past two decades have produced new developments which are now reflected in the recent changes to the Indian citizenship law. As a result, India's open door policy and liberal approach have been abandoned to an extent, and it is not surprising that some guidance seems to have been taken from the British Nationality Act of 1981.

The result, for some British Asians at least, has been harsh treatment from both English and Indian law. Of course, not only British Asians are affected by the new law; it has important implications for all overseas Asians with ancestral links in India. To an extent, India appears now torn between seeking to attract investment from the NRIs (Non-Resident Indians), a policy that has been spectacularly successful in some instances, and between attempting to keep out undesirable individuals or even groups of people, as some minorities would allege.

It must also be understood, however, that India has a huge immigration problem in its Eastern regions bordering on Burma and Bangladesh, in particular (see Nag. 1990). The extent of recent uncontrolled immigration in those parts of the country seems to have forced policy changes in citizenship law on the whole country. The concerns are, in principle, not different from those of any country that perceives itself as being 'swamped' by aliens: the reaction has been to create barriers for the acquisition of Indian citizenship. I doubt whether this strategy will solve any of the perceived or actual problems; in the short terms, the effects of the new law appear quite drastic, but they are not a viable solution to the immigration problems faced by India.

India's Citizenship (Amendment) Act of 1986

This short Act (No.51 of 1986) came into force on 28 November 1986. Its effects are, however, not yet covered by Agrawala and Rao (1990), whose otherwise excellent and very informative article is therefore to be read subject to the present section.

S.2 of the 1986 Act substitutes S.3(1) of the 1955 Act with a new wording and has dramatic and immediate effects. S.3(1) now reads:

'Except as provided in sub-section (2), every person born in India,-

(a) on or after the 26th day of January, 1950, but before the commencement of the Citizenship (Amendment) Act, 1986;

(b) on or after such commencement and either of whose parents is a citizen of India at the time of his birth,

shall be a citizen of India by birth.'

Thus, any person born in India on or after 28 November 1986 becomes a citizen of India by birth only if either of the child's parents is an Indian citizen at the time of the child's birth. This new provision, probably copied from S.1 of the British Nationality Act 1981, but (for obvious reasons) not including its residence clause, abruptly terminates the automatic application of the ius soli principle in Indian citizenship law. This new law creates quite obvious problems for children of unknown parentage, particularly for foundlings, as no provisions are made for them elsewhere. Under the old law, at least, the ius soli principle would appear to have come to their rescue, now there is a lacuna which needs to be filled with some urgency.

According to an article by Tania Midha (India Today 15 December 1986:39-40), opposition politicians and human rights activists vehemently opposed the new law as violative of the equality principles of the Indian Constitution and 'against the ethos of the whole country', as a leading human rights lawyer put it. The tightening up was justified by the Union Minister for Home Affairs as a protective measure against the large-scale illegal influx of people from Bangladesh, Sri Lanka, Pakistan and some African countries. The most likely effect of this change in the law appears to be the creation of large numbers of 'denizens', foreign nationals residing in India, or indeed of stateless persons. How Indian immigration law would treat such people is not well known at present; there is an urgent need for work in this field (see Menski 1990).

S.3 of the 1986 Amendment Act changes certain important details in S.5 of the 1955 Act relating to acquisition of Indian citizenship by registration. Firstly, persons of Indian origin wishing to register as Indian citizens must now have resided in the country for five years rather than merely six months immediately prior to making an application for registration. Secondly, the same residence requirements now apply to persons who are, or have been, married to citizens of India, as an amendment to S.5(1)(c) indicates. This is a significant tightening since there was no such requirement before. But the old law only applied to women, so here at least sexual equality has been introduced. It may be quite relevant for practitioners to be aware that S.5(1)(d) was not amended, so that the position today still appears to be that minor children of persons who are citizens of India may register as Indian citizens with comparative ease.

The third amendment in S.5 of the 1955 Act is of particular relevance for overseas 'Asians' and has many implications in legal practice, though perhaps more in countries like Trinidad, Guyana, Fiji or Kenya than in Britain. The point here is that the explanation in S.5 as to who is deemed to be a 'person of Indian origin' (see above) has been vitally affected: the 1986 Amendment Act, with a typical swift stroke of the pen, has cut off the grandparent generation, so that 'Asians' overseas now will need to be either born in India or have atleast one parent born in India to be able to avail themselves of the registration provisions in S.5. It seems that India has here partially, if not totally, cut the umbilical cord for many millions of overseas 'Asians'. Their preferential treatment, should they wish to return to India, has been curtailed significantly. Quite why this should be so still needs to be researched.

S.4 of the 1986 Amendment Act also changes certain provisions in the Third Schedule of the principal Act which, as we saw above, concerns the naturalization provisions. The effect of the 1986 Act here is to raise the qualifying periods of residence in India in clause (d) from seven to 12 years, out of which now an aggregate of nine rather than four years must have been spent resident in India and/or in government service in the country. A related amendment is made in clause (ii)of the proviso, to the effect that periods of residence or service earlier than 13 rather than eight years may be taken into account. Here, too, then, longer qualifying periods have been introduced, presumably to test the depth of an individual's connection with India.

Epilogue

In principle, if we wish to respect the right of countries to develop and determine criteria for their citizenship, we cannot find much fault with the recent developments in Indian citizenship law, though the critical comments about violating the basics of the Indian ethos seem justified. The recent changes have clearly made it more difficult for overseas 'Asians' to retain citizenship links with 'Mother India', who seems to push them away. Perhaps it has played a role that she surely has enough children? We have seen clear indications that the changes in the law were not so much directed at the overseas Indians as at illegal immigrants from neighbouring countries. I do not wish to trivialise the restrictive nature of the new law. Clearly, for British and other 'Asians' (especially those of Hong Kong and Fiji), there is a serious predicament in being made to feel unwanted wherever you go. In the case of India, as elsewhere, the test will lie in the application of rules of immigration law, the basic question being whether individuals will actually be allowed to stay in India long enough to clock up the qualifying periods that are now required by the law.

Bibliography

Agrawala, S.K. and M. Koteswara Rao(1990); 'Nationality and international law in Indian perspective'. In: Ko Swan Sik (ed.): Nationality and international law in Asian perspective. Dordrecht: Martinus Nijhoff Publishers, pp.65-123.

Anwar Muhammad(1979): The myth of return: Pakistanis in Britain. London.

Master Meher K(1970): Citizenship of India. Dual nationality and the Constitution. Calcutta.

Menski Werner F.(1990): 'South Asian laws in British legal practice: a matter for immigration lawyers?' In Vol.4 No.2 [April 1990] l & NL & P, pp.63-7.

Nag Sajal(1990) -.Roots of ethnic conflict. Nationality question in North-East India. New Delhi.

Sethi R.B.(1981): Law of foreigners and citizenship. Third ed. Allahabad.

Sinha Amarendra Nath(1962): Law of citizenship and aliens in India. London.

Steel David(1969): No entry. The background and implications of the Commonwealth Immigrants Act 1968. London.

Bottlenecks of Justice? A Further Note on the Limits of Public Interest Litigation

(By Dr. Werner F. Menski, SOAS, University of London)

AT 1990 (2) KLT, J. 45-47,1 discussed the limits of public interest litigation (hereafter p.i.1.), taking the example of two petitions dismissed by the Kerala High Court, in which local strongmen had sought to abuse the procedural relaxations of p.i.1. to gain advantages over their rivals. My conclusion then was that the Kerala High Court had been correct in acting with vigilance to curb vexatious and frivolous litigation between business rivals under the p.i.1 banner.

While p.i.1. itself is now firmly entrenched in the Indian legal system and has led to very significant developments which appear without parallel in their extent, compared to Western legal systems, the danger of its abuse seems ever-present and continued judicial alertness is called for.

The issue itself has come up before the Supreme Court in many cases. At a time in the early 1980s, when activists like Mr. Justice Bhagwati defended the widest possible relaxations of procedure in p.i.1 cases, other judges, for example Mr. Justice Pathak, voiced reservations which some took as evidence of conservatism and legalism, but did not consider worthy of detailed analysis. A case in point is the difference of opinion between these two judges as illustrated in Bandhua Mukti Morcha (AIR 1984 SC 802).

In the case of Chhetriya Pardushan Mukti'Sangharsh Samiti v. State of U.P. and others (A.I.R. 1990 SC 2060), this old conflict re-appears, with implications that I find dangerous for the preservation of fundamental rights in India. At first sight, the Supreme Court has here taken the same line as the Kerala High Court in the two cases I discussed earlier, rejecting the claim of a petitioner who appears to abuse the relaxed p.i.l. procedures for his own personal gain. However, the present case appears to be filed by a social action group concerned to protect the environment rather than an aggrieved individual. Nevertheless, Chief Justice Sabyasachi Mukharji, as he then was, declared firmly that the apex court has to protect society from so-called protector's and refused to grant relief to the petitioner. How did he arrive at this finding? I am less concerned about this particular petition than the principles involved and applied here in adjudicating on a p.i.1. case, since it remains a fact that there are far too few studies on p.i.1. cases in India.

The petition concerns environmental pollution from a number of mills and plants in a certain locality and is a classic Article 32 case under the original jurisdiction of the Indian Supreme Court. Section 21 of the Air (Prevention and Control of Pollution) Act, 1981and S.2(e) of the Water (Prevention and Control of Pollution) Act, 1974 have also been invoked in this petition. The Supreme Court acted on the basis of a letter written by the petitioners and initially saw the case, in the line with the important dicta in M.C. Mehta [AIR 1988 SC 1037], "as a matter of great public importance" (p.2061), clearly in view of the alleged serious pollution of a locality. But the petitioners were apparently also objecting to the issue of licences for the polluting industrial units "to one rich man." (p.2061), a piece of information which, indeed, raises a suspicion of politicking.

Thereafter the proprietor of an oil mill as respondent No.3 submitted a detailed counter-affidavit. We may assume that as a commercial enterprise, the company had the resources to commission the compilation of a detailed affidavit, something that the petitioners either did not consider necessary, or could simply not afford. In this counter-affidavit, references were made to Bandhua Mukti Morcha (AIR1984 SC 802), as a legal authority to the effect that satisfactory verification of allegations is a crucial element in adjudication, even more so in p.i.1. cases, where the traditional adversarial proceedings are not used. Further, the respondent's affidavit basically claimed that since there is a statute for controlling pollution, the case should have been brought under that statute. The argument here would appear to be that in the presence of the Environment Protection Act, 1986 there is no need, indeed no justification, for filing p.i.1. cases on environmental matters. But do not the various M.C. Mehta cases demonstrate exactly how necessary it is to proceed with p.i.1. petitions on environmental law issues? Current doctoral research in this field conducted in London by an advocate from Kerala shows precisely the same: the existing relief mechanisms under the 1986 Act, nor indeed under the Air Act and Water Act are not effective enough, so that the only remaining option would appear to be a p.i.1. petition.

The learned Chief Justice chose not to apply his mind to this matter at all. Instead, he got interested in the third part of the counter-affidavit, which asserted that "between the petitioner Sita Ram Pandey and respondent No.3, there was a long rivalry" (p.2062). This wording indicates a slight confusion: was not the petition brought by a social action group rather than an individual? We may imagine that this particular individual perhaps wrote the letter that was turned into a petition, but there is no attempt here to clarify the relationship between Mr. Pandey and the social action group. Even the counter-affidavit does not attempt to claim that. Mr. Pandey was a kind of bogus or unrepresentative spokesperson for the petitioner group. We may all be aware of this particular problem in the organisation of social action groups, or any group of humans, for that matter, but we are neither told who Mr. Pandey is nor how representative he is of the group.

In fact, this aspect has been entirely ignored by the learned judge, who proceeds to lend his ear to further allegations contained in the counter-affidavit. These amount to a quite impressive catalogue of pretty disreputable matters, including not only a general condemnation of Mr. Pandey as "an anti-social element" (p.2062), but also the accusation that he himself was out to extort money, that he had in fact done so in other cases, and that he had been the target of some litigation in this regard, as well as himself instituting other proceedings against the respondent company in the present case. The learned Judge is clearly disgusted with what he terms "a rather disgraceful state of affairs" (p.2062), but he seems not ready to probe any further. The fact that an earlier case filed by Mr. Pandey was dismissed is simply taken as evidence of his status as a meddlesome interloper. Though that term is nowhere mentioned, the notion must have been at the back of the learned judge's mind, blocking out, one may presume, the fact that the respondent's case is not quite lilywhite either. For example, the respondent company simply did not file a rejoinder which was requested by the court, nor were better particulars given to support some of the allegations made against the social activist petitioner.

Instead, the learned judge was impressed with the repeated assertions of the respondent that there was no evidence of environmental pollution or of violation of any of the relevant Acts. No attempt was made to examine the truth of such assertions or to' ascertain the actual facts in situ, which is exactly what I think Mr. Justice Pathak meant when he emphasised in Bandhua MuktiMorcha that there was a need for "insisting at the earliest stage, and before issuing notice to the respondent, that an appropriate " verification of the allegations be supplied”. [A.I.R. 1984 SC 802, at 840].

In the light of Mr. Justice Pathak's eminently sensible suggestions, it becomes apparent that the present case is flawed by non-observance of the appropriate verification procedures. Rather than organising an independent fact-finding process on behalf of the court, the learned judge relied on the counter-affidavit of the respondents to yield substantive evidence. But in this semi-adversarial setting, one is clearly expecting too much of lawyers who are trained to construct affidavits rather than to compile investigative commission reports.

As a result, one must suspect that the truth of the matter was not allowed to come out. From a desk in London one cannot, of course, find out more about the local facts, and I have not been able to send my own little fact-finding commission to Sarnath. But the case-report, if we read carefully, gives us important information. Thus, the . learned judge, referring in the final paragraph to "the ugly rivalry here" (p.2063), feels betrayed: "We have no doubt that between the contestants, the court was misled and we must, therefore, proceed with caution" (p.2063).Well and good, but by this time, the die is long cast against the petitioner. The learned judge had earlier stated that "prima facie the provisions of the relevant Act have been complied with and there is no conduct leading to pollution of air or ecological imbalances calling for interference by this Court" (p.2062). This particular finding of fact is evidently based on affidavits, probably not quite the appropriate form of verification that Mr. Justice Pathak would have advised to use.

On the other hand, the petitioner's evidence is judged as tarnished by his reputation as a troublesome individual whose petition "is only a cloak to feed fact ancient grudge" (p.2062). But what if we ask ourselves whether the petitioner was not perhaps an active social activist, an uncomfortable opponent of those 'in charge', with a history of struggles against those who feel entitled to violate the law, knowing that they have the power and the money to put down any opposition? What if the people of Sarnath" were in fact suffering the effects of pollution, but their champion was simply dismissed as a troublemaker?

There is no evidence of any judicial concern for this particular point. Instead, the judge sees himself as a protector of the public interest, which involves, in such cases, "to ensure that this weapon under Art.32 should not be misused creating a bottleneck in the superior, court preventing other genuine violation of fundamental rights being considered by the Court.Tb.at would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights" (p.2062).

With respect, I am not convinced that this subtly reworded reference to the floodgate argument in p.i.1. cases is sound. Apart from the absence of evidence that there is a real flood of p.i.1, cases, the present case shows a careless approach to the real issues in the protection of fundamental rights in India and hides behind formal statements and pseudo-legalistic arguments. How much easier is it for Upendra Baxi's 'men with long purses' to create bottlenecks for justice! Do Indian judges still side with the more resourceful party in a litigation struggle? A pessimistic assessment could be that we have not made any progress in p.i.1. cases, even in the 1990s. I prefer to think that the present case, as a slap in the face for social action groups, should be understood as evidence that Indian judges need to be much more sensitive to the needs of their less privileged fellow citizens who have little chance to protect themselves against the effects of pollution, be it of the environment or of their reputation.

Literalegis v. Sententia Legis, 1989 (2) KLT 648

(V.K. Sathyavan Nair, Advocate, Kottayam)

The landlord goes on a tour or pilgrimage to some foreign countries during the pendency of an appeal filed by a tenant against an order of eviction and by misfortune he dies in a foreign country. It is quite likely that the information of his death reaches even in his home town after the lapse of more than fifteen days. How is it possible for the tenant-appellant to implead the legal representatives of the deceased landlord within fifteen days? This is one of the problematic hypothetical instances considered by His Lordship Justice Thomas in interpreting Rule 10 of the Kerala Buildings (Lease and Rent Control) Rules 1979 in the case of Surendran v. The Munsiff Rent Controller, Perinthalmanna and others (1989 (2) KLT 648). The court has also placed reliance on one of the rules of interpretations that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature the Court may modify the language used by the legislature.

The crucial question is whether the Court is justified in invoking the extraordinary power of judicial legislation. That no words are to be added to a statute unless there are adequate grounds to justify an inference that the legislature has intended something which it has omitted to express is a well known rule of interpretation. Absurd result alone is no ground for interfering with the plain and natural meaning of the words. So also if there is no ambiguity the literal rule would apply and the provision should be construed in the ordinary and natural meaning of the words and sentences. VERBIS STANDUM UBI NULLA AMBIGUITAS. There is no case that Rule 10 of Rent Control Rules is ambiguous. The meaning is quite clear. Therefore the only aspect to be considered is whether there is any manifest absurdity inconsistent with the legislative intent, as far as Rule 10 is concerned.

Rule 10 provides the time limit for impleading legal representatives. Every application for making the legal representative, or legal representatives of a deceased person, party to a proceeding under the Act, shall be preferred within 15 days from the date of death of the person concerned. The rule specifically directs that an impleading application shall be filed within fifteen days from the date of death of the party. There may be a few instances where the rule may workout inconvenience or hardship to the parties to the Rent Control proceedings. From the inconvenience or hardship or even from the absurd result that may sometimes follow it cannot be readily inferred that the Rule making authority has intended that the time shall run from the date of knowledge of death and it has failed to express that intention. Is it not more reasonable to assume that the Rule making authority was aware of all these consequences at the time when the rules were formulated? Legislative intention has to be gathered not from the results that follow the application of the statutory provisions in particular cases, but from the object and language of the Statute.

The declared purpose of the Act is protection of tenants from unreasonable eviction. It is a statute to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala. Rent Control Act is a self contained statute and the rights and liabilities of the landlord and tenant are to be governed by its provisions.

S.24 of the Rent Control Act says that the Rent Control Court shall, as far as may be practicable, pass final orders in any proceeding before it within four months from the date of appearance of parties thereto. A reading of the statute and the Rules would reveal the legislative intent that the proceeding should be disposed of summarily and expeditiously avoiding delay as far as possible. It is quite clear that that is the reason why Rule 10 provided for a shorter period of 15 days than the period prescribed by the Limitation Act. The High Court concluded that it cannot be presumed that the legislative intent was to ignore the harsh consequences, absurdity and even injustice resulting from the inability of one party to come to know of the death of his opposite party within 15 days. If that were the intention of the Rule making authority it could have very well expressed its intention by saying so. The provision is neither logically defective nor would it lead to such absurdity and unreasonableness as to make itself evident that the legislature could not have meant what is said. It is submitted that the functional approach made in interpreting Rule 10 by adding the word 'knowledge' appears to be repugnant to the true legislative intent. In this context it is relevant to note what Salmond says.

"Nevertheless in all ordinary cases the Courts must be content to accept the literalegis as the exclusive and conclusive evidence of the sententia legis. They must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said.

Ita scriptum est is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law, simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it." (Salmond on Jurisprudence, 12th edition PP 132-133).

However the Court has rightly observed that there can be little dispute over the draconian character of Rule 10, if it is construed literally. The law has to be changed, but not by the court. It has been laid down by our High Court in several decisions that the Limitation Act is not applicable to Rent Control proceedings. This aspect has been succinctly discussed in 1985 KLT1015 by Bhat, J. It has been rightly concluded that the Appellate Authority constituted under the Act has no inherent power to condone the delay in filing, an application for impleading legal representatives of a deceased party. Therefore a party who fails to file such application within 15 days would be put to great hardship.

Before concluding this note it has become necessary to point out that there seems to be no discussion in 1985 KLT 1015 on the question why abatement cannot be set aside by the Rent Control Courts and Appellate Authority. True that no delay can be condoned. But setting aside abatement is a different procedural right. Order 22, Rule 3 sub Rule 2 says that where within the time limited by law no application is made under Sub Rule (1) the suit shall abate as far as the deceased plaintiff is concerned. Sub Rule (3) of Rule 4 of Order 22 also reads that where within the time limited by law no application is made the suit shall abate as against the deceased defendant. Ignorance of the death of the defendant is a ground to condone delay under Sub Rule (5). But the said Sub Rule contains the words 'within the period specified in the Limitation Act' and therefore it may be held to be inapplicable to Rent Control proceeding in the light of the reasonings stated in 1985 KLT 1015. Rule 9(2) of Order 22 provides for setting aside abatement.

"The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from continuing the suit the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit."

Can it be held that Rule 9(2) of Order 22 is not applicable to Rent Control proceedings on the ground that Limitation Act is inapplicable? If the Limitation Act is not applicable the result is that there is no time limit for setting aside abatement. It cannot be argued that that procedural right has been taken away. It is a right conferred on the party under S.22 of the Rent Control Act read with Order 22 C.P.C It is doubtful whether it can be presumed that the right to set aside abatement has been nullified by the Government by providing a time limit of 15 days under Rule 10 of the Rent Control Rules for filing an application for impleading legal representative. Has the Rule making authority such a power to render a statutory provision nugatory? These aspects were not at all considered by the Court in 1985 KLT 1015.

These being the circumstances, it is submitted that 1989 (2) KLT 648 and 1985 KLT 1015 require reconsideration.

Transsexualism: Male to Female or Vice Versa? -

(By Shrinivas Gupta)*

Madhu is all happy to find her old friend and college mate, Manju transferred into her husband Manish. Dressed in a bright red marriage suit, she arrived in a Delhi nursing room where Manish was convalescing after the sex-change-surgery. He was inspired for this sex transformation operation partly by her yearning to seek social security due to her tomboyish look and partly due to her immense love towards-Madhu. Dr. Ravi Aggarwal who conducted this operation said that Manish would have near normal functioning. He could have urge for sex but he would not be able to have the feeling of organism. He would in no way be able to father a child because an artificial reproductive system could not be introduced into him. According to Dr. Aggarwal, in the first stage of such operations female organs like uterus and ovaries are removed and the breast tissues, known as liposuction cannulae' are sucked out and the second stage involves the removal of flaps from abdomen and thighs which is Shifted down to the urethra. A tube is then inserted to form an artificial male organ which in turn is covered with skin and attached to the urethra.

The 18 years old Miss Sharitulnishan, a student of class ten who used to go to the school in 'burka' is now Mr. Mansoor after a surgical operation. Mr. Mansoor was brought up as a daughter up to 18 years but on the failure of menstruation and development of breast when the parents consulted the doctors of Sir Sunderlal Hospital of Banaras Hindu University, they recognised the true sex of the patient and carried the requisite operation.

The girl, Miss Brinda Kumari of Champaran in Bihar, had some symptoms of male hormones and was brought to the SSL Hospital of BHU for treatment by her parents. After examining her, the surgeon Dr. H.S. Shukla, found to his surprise that male hormones were dominating her physique. He sought her parent’s consent for the surgical operation and turned her into a cheerful boy, Brinda Kumar.

Kumari Yasmine of Saadateganj in Lucknow, in 1980, wrote a letter to the Surgeon SC Roy of local Balrampur Hospital wherein she had disclosed fully the change in her feelings and personality. He asked her to visit the hospital and after examining sent her to Dr.BNS Yadav, a plastic surgeon in the same hospital who advised her to undergo a surgical operation and on December 3,1981 she became Mohammad Yasmine, a man.

A few years back a sixteen year old girl, Sharda, from Ashta village in Sehore district of Madhya Pradesh turned into a boy. The flat-chested teenager Sharda was operated upon by Dr. Syed Zaheerul Islam in Hamidia Hospital. Doctor Islam told that Sharda had herself felt that she was becoming a boy from the girl. He explained that while Sharda had all the male morphological features and attributed her not having male organs to an "embryological male development'. He corrected the nature's fault removing the vagina and shaping the clitoris into penis by auto grafting.

A person is a transsexual who belongs to a particular sex anatomically but psychologically he is obsessed with a desire to change to the other sex which, is his rightful gender. Dr. Harry Benjamin in his treatise 'The Transsexual Phenomenon' defines transsexualism as 'split between the psychological and the morphological sex'. John Money and Viela G Lewis say that the developmental biographies differ from person to person under transsexualism. One type is effeminate males and conversely virilistic females. Such persons have an active exotic imagery, if not experience, with same sex partner from very early years. A second type is that of a person who, even if he or she manifested no cross gender signs in childhood and adolescence, was always secretly obsessed with being sex reassigned, at puberty this person is erectically inert. The third type of persons have two names and two personalities until middle life, but after that a complete transsexualism tends to emerge.

J Morris was a transsexual. In his autobiography he has pointed out, 'no true transsexual has yet been persuaded, bullied, drugged, analysed, shamed, ridiculed or electrically shocked into an acceptance of his physique. According to David William Meyers in 'Problems of Sex Determination and Alteration' (36 Medice Legal-Journal 174 (1968), so long as such persons live with their biological organs, they feel miserable merbidly longing for the 'conversion'. Surgery they think will make them look as they really should'.

The transsexuals are not bisexual or hermaphrodite. It is very difficult for them to adjust themselves in the society. They always feel ashamed of and embarrassed with their features so much so that many a time they think for committing suicide. Jerold Taitz in 'The Legal consequences of a sex change - A Judicial Dilemma' (97 South African Law Journal 65, 1980) says that a transsexual is a person whose biological sexual development is normal, but who strongly believes that he or she is a member of the opposite sex. A transsexual may be distinguished from a transvestite as the later has a desire for, and is gratified by, dressing up in the clothes tailored for the women. He has no desire and urge for changing his sex.

Legality of Sex Reassignment Surgery:

The First and foremost issue in this connection relates to the legality of such operations. The only way to hold them legal or illegal is to go through the general provisions of Criminal Law dealing with the consent to surgical operations. In our country if a surgeon performs a surgery on the person of a patient with consent in good faith and for his benefit, he would be protected under the provisions of S.88 of the Penal Code, which reads as under:

Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

Regarding the Judicial verdict on the point, in our country the matter has so far not arisen before the courts. However, according to a new report published in the Times of India of December 3,1979an Indian girl of 19was refused admission to a Junior School at Karimganj in Bihar unless she produced a medical evidence in confirmation of her sex. She was also denied an opportunity to participate in a tournament of Kabaddi, the game in which she had won laurels in the previous years. She had developed certain male characters like moustache. The doctor opined that she was undergoing sex transformation.

Position in other countries:

In Canada surgical operations for reassignment of sex are permitted under S.45 of the Candian Criminal Code, 1970 which provides as follows:

Everyone is protected from criminal responsibility for performing a surgical operation upon any person for the benefit of that person if: (a) the operation is performed with reasonable care and skill, and (b) it is reasonable to perform operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.

The Belgian law on the point requires that the patient must give his consent for such operation and that there must be adequate pre-operative medical evaluation. In Argentina, if physical abnormalities exist then such surgery can be performed but with the free consent of the patient. At the Charing Cross Hospital in London the patients have to live in new sex role for at least six months prior to surgical operations, for the purpose of transformation of sex, to ensure that they would make better adjustment in the role they desire than the role they are already playing. Such a surgery is permitted in Great Britain only if undertaken for genuine therapeutic purposes. In the United States there are many research and treatment centres for studying the problems of transsexuals, where the persons are primarily examined, but very extensively. Then a team of a Psychologist, a Surgeon and a Psychiatrist interview them. If a person is found to be a true transsexual and physically and mentally suited to them the hormonal therapy is applied for changing his secondary sexual characters. This is followed by another psychological test in order to study the effect of hormonal therapy. When there is a consensus in the clinical staff that the patient is prepared, physically as well as mentally, for the complete sexual transformation, the surgery is performed. Special care is also taken so as to facilitate him to assimilate into the world of different sex.

Problem of Identification:

Problems of personal identification after such transformations are also grave and have much to take with the law. We do not find any uniform practice in various legal systems. In some countries the legislatures have taken hold and enacted appropriate Legal provision for the purpose of reflecting the transformation of sex in birth certificates and other documents of personal identity whereas in other countries the courts have been vocal.

In this connection South African Government has recognised the need for specific statutory provision for making changes in documents and records which provides as follows:

The Secretary of the Interior may, on the recommendation of the Secretary for Health alter, in the birth register of any person who has undergone a change of sex, the description of the sex of such person and may for this purpose call for such medical reports and institute such investigations as he may deem necessary.

In the United States the position relating to the changes in the birth certificates has been very much interesting. Before going through any controversy let us note the statutory provisions in Louisiana and Illinois States which are following, namely:

Any person born in Louisiana who, after having been diagnosed as a transsexual or as a pseudo hermaphrodite, has sustained sex reassignment or corrective surgery which has changed the anatomical structure of the sex of the individual to that of a sex other than that which appears on the original birth certificate of the individual, may petition a court of competent jurisdiction............to obtain a new certificate of birth.

Similarly the law in Illinois requires an affidavit of the physician that 'he has performed an operation on a person, and that by reason of the operation the sex designation on such persons' birth record should be changed'.

When a new certificate is issued, the original is sealed. It may, however, be available only if the court orders for it to be produced before it.

Judicial Concern:

In West Germany when in 1931 the first surgical operation transforming the sex of the patient was performed, the courts had refused to accept it as altering the legal status of the person. The courts in Frankfurt and Berlin held that alteration of sex by surgical removal of the sexual organs would not be accepted as a basis for altering a passport or for avoiding a possible presumption for homosexuality. In Scotland a marriage bond was severed because a man, who was married and had two children, had developed feminine characteristics. He happily applied for necessary changes for being made in the records but his application was rejected as S.63 of the Registration of Birth, Deaths and Marriages (Scotland) Act, 1854 was interpreted as permitting amendments only in the entries which originally made incorrectly and not in the entries which became incorrect because of alleged changes in the sex subsequent to registry at birth.

In a case from New York, published in 18 Syracuse L Rev 383, a transsexual had become female by surgery. He requested the Director of Bureau of Records and Statistics of New York City Department of Health to issue a fresh birth certificate. His request was turned down by the Board. So he then filed a suit for court order requiring the agency to change her sex and issue afresh certificate but this suit was also dismissed. However, in In re Anonymous Justice Pecera criticising the Judgment in the above case, permitted the petitioner to alter her name and directed the Board of Health to attach a copy of the order of the court to the applicant's birth certificate. There has been a liberal approach in Switzerland on this point even in the absence of any Statute. In 1945 in a case it was held that after sex reassignment surgery, the changed sex should be legally accepted. Then the State of Belgium in the case of Van Oosterwijck versus Belgium refused to give official recognition to the new sex of a transsexual who after a sex transformation surgery had become a female from a male one. The European Court of Human Rights held in this case, that the claim of the petition could not be determined on its merits because he had failed to exhaust the domestic remedies. However, the European Commission of Human Rights had considered this case on merits and regarding the contention of violation of Article 8 of the Convention, guaranteeing the right to respect for private and family life, the following observation was made:

It would appear scarely compatible with the obligation to respect private life to force a person who on the recommendation of his doctor and by undergoing a lawful treatment has taken on the appearance and, to a large extent, the characteristics of the sex opposite that which appears on his birth certificate to carry identity documents which are manifestly incompatible with his appearance. In such a case he would in fact be exposed to having to reveal to anyone information relating to his private life and subsequently to being excluded from certain employments, activities and relationships on account of the explanations about his position which he had improperly been required to give.

Transsexualism and Sporters

The point of sex determination of athletes not only relates to the individuals but also has implications at State, Nation and International levels. There have been many instances which have prompted the need of sex determination test before the games actually take place so as to find out if any female is within the team of males or vice versa.

The case of Hilda Strike, a Canadian grandmother, is very interesting. She had participated in the 1932 Olympics but lost by a narrow margin in a race to Stella Walsh whose autopsy on death in 1980 revealed that she was not a woman but a man. On the petition of Hilda for her gold medal John Helt of International Amateur Athletic Federation observed that on the basis of that reported inquest on the late Stella Walsh Hilda was quite entitled to have been the world's fastest woman at the time.

Some of the sporters feel embarrassing to undergo that test so much so that they prefer not to play. Tamara Press of Soviet Union had refused to play only on this very ground. Ewa Klobukewaka of Poland in 1965 was debarred from international competition as she failed to chromosomal test. Her all previous records were also stripped of.

Richards versus US Tennis Association

The case was that Rennace Richards was an American tennis player of high rank. He underwent a surgery and became a female so 'she' sought to enter the women single competition in U.S. 'She' was required to undergo and pass the chromosome test by the authorities. This was resented by 'her' and 'she' went to court. The New York Supreme Court held that this was "grossly unfair, discriminatory and violative of her rights". It observed that previously the association had relied on observation of primary and secondary sex characteristics to determine the sex of potential competitors, that the defendants had instituted the test which Richards could have failed - for the sole purpose of excluding her and that she is now a female" as her external organs, her appearance and her psychological and social status were that of a woman and her internal sexual structure was automatically similar to that of a person born female who had suffered a total hysterectomy and ovariectomy".

Matrimony and Transsexualism

The matrimonial aspect of the individuals is directly related to the phenomenon of transsexualism. A sex transformation surgery may be undertaken before or after the marriage by the individuals and so the controversy may arise in both the situations. As regards pre-marital sex-transformation, an important case is of Corbett v. Corbett (1970 2 A11.ER 33). In this English case the facts were that the respondent, wife, was born, registered and brought up as a boy. 'Her' name was George Jamieson. When 'she' reached at the age of 25 'she' became April Ashley by undergoing sex transformation surgery. Then she married a man, the petitioner, and this was followed by a petition for the annulment of the marriage by the parties on the ground of incapacity and willful refusal to consummate the same. The petitioner alleged that the marriage was between two males and so was void. The court held that the validity of the marriage depended on the respondent being a woman and that the operation cannot change the respondent's true sex which undoubtedly was male at the time of birth. The petitioners' application for declaration that the marriage was null and void being a marriage between two biological males, was granted by the court.

The New York Supreme Court in case of B v. B (355 N Y S 2d. 712 (1974), observed that a marriage, between a woman and a transsexual who was born a female but later had undergone sex transformation surgery before the marriage, was void, However, in Ml v. MT (355 A 2nd 204 (1976)) a marriage of a transsexual was held to be valid by a US Court and the husband was ordered to pay spousal support to the wife.

Jonker v. Jonker is a South African case in which the judgment remained unreported. However, Sunday Times of March 1, 1970 from Johansburg reported that in this case the husband had petitioned for conjugal rights against his wife who, prior to the sex transformation surgery, was a male and that the order sought was granted. Then in W v. W (1976 (2) SA 308 W) the plaintiff wife, who was an erstwhile male, sued her husband for divorce on the ground of his adultery with another woman. The adultery was proved while the validity of the marriage was contested. The plaintiff told the court that she had been born and registered as a male and because of her transsexual tendencies, she had to undergo a sex change surgery, and that the parties had been enjoying normal marital life since 1972 and hence the breakdown of marriage had nothing to take with sex transformation in her. The court stressed the concept of biological factors in sex determination and declared that the marriage was null and void being one between two persons of the same sex.

However, in a Swiss case of In re Leber (1945) it was held that psychological sex, coupled with surgical reassignment, should be accepted as a criterion. Van Niokork in his 'Sex Operation and the Law' SALJ 239 (1970) has written that in fact denying transsexuals the right to marry would be condemning them to the twilight limbe which can only be immensurably increase their unhappiness and frustration.

Another important point to be considered in this regard is the effect of sex transformation on the continuity of marriage. As per a news report published in Toranto Daily Star of July 13, 1968 there are reports that some married transsexuals, after having undergone surgery, continued to live with their original wives as sisters. In the situations where due to sex change surgery undergone by any of the spouses, both the spouses became of same sex, if the spouse with unchanged sex, seeks divorce on the ground of change of sex in the other spouse, it should be granted on appropriate medical and morphological evidence.

Regarding the effect of sex transformation in the parents, on the right to hold the custody of the children, the transsexualism per se cannot be a stigma to the worthiness of either of the parents. In an American case of Christian v. Randall (33 Cole, App 129,516 p.2d 132, 1973), after the divorce had been granted, the mother was given the custody of her four small daughters. The mother then underwent sex reassignment surgery and married a woman. At this the father of daughters filed a case for change of the custody of the children in the light of changed circumstances. It was held by the court that 'there was no evidence that the 'mother's' transsexuality adversely affected 'her' relationship with the children or impaired their emotional development' and the mother was ordered to keep the custody of the children.

The uncertainty relating to the legal status of transsexuals is thus a proven fact and the number of their cases is rapidly increasing. Some countries are already facing the problems and the law courts often find themselves in state of confusion as there do not exist adequate legal problems on the point. In our country also certain such cases have taken place but so far no law to deal with them has been enacted. It is a mere chance that the courts have not to face any such case here unlike the other countries. It is high time when the legislature should awake and enact sufficient laws on the subject. Each of every surgical operations involving sex transformation should be watched and regulated by the law. In all the government hospitals a separate ward should be established to deal with such cases either surgically or hormonally or medically. In case of minors the consent of the parents should be made compulsory. The hospitals should be required to maintain the records of such cases and they should be sent to the other offices for the purpose of amendment in birth records, certificates, passports and visas etc. Matrimonial laws also need to be supplemented so as to incorporate in its corpus adequate provisions for the transsexuals and their rights and duties. The grounds for granting divorce should also include breakdown of marriage by sex transformation in any of the parties. Assimilation of transsexuals into the world of other sex should be facilitated. The position of custodial rights of the transsexuals also needs to be made clear.

Footnote:

*B. Sc, LL.M., Lecturer in Dayanand College of Law, Kanpur; Editor KANPUR LAW Journal; Editor Advisor VIDHIKA.

'Just Compensation'

To a Workman Under the Motor Vehicles Act and The Extent of Liability of the Insurer

(K. Radhakrishnan Nair MA., LL.M. Legal Officer, The Oriental Insurance Co. Ltd. Cochin)

The statutory provisions [1] governing the grant of compensation to a workman under the Motor Vehicles Act as expounded by the courts seems to have however created much ado about nothing. Of course there are draftings which are not always as clear as it might be and owing to the lack of human prescience there will always be cases for which inadequate provision is made by the statute. But wherever the legislative intention is apparently clear on a plain reading itself as it could be from the provisions under discussion. It is sincerely doubted whether such provisions need be subjected to any rules of interpretation, may be of the literal rule, the golden rule, or even the mischief rule [2]. What required here is to declare the law as it is. In this context it is proposed to examine a welter of judicial dicta which vary considerably in weight, age and uniformity in respect of the law relating to the grant of compensation to a workman under the Motor Vehicles Act.

As interpreted, the judicial skill could declare the relevant law laid down by the legislature into three different ways viz.

(a) that the Motor Accidents Claims Tribunal is always bound to fix the compensation to a workman according to the Schedule of the Workmen's Compensation Act 1923 [3] only,

(b) that the Motor Accidents Claims Tribunal is not at all bound by the schedule of the Workmen's Compensation Act 1923 and the liability of the Insurer also is not limited to any such schedule [4] and

(c) that the Motor Accidents Claims Tribunal can award a higher compensation than that awardable under the schedule of the Workmen's Compensation Act. But the liability of the Insurance Company is always limited to the amount provided in the schedule of the workmen's Compensation Act unless otherwise shown [5] An authoritative pronouncement by our Supreme Court can only resolve the issue finally. Despite of which it can reasonably support the last dictum as the correct one even on the strength of the case law.

The law - past and present

A workman had to file either a suit for damages in the civil court or an application in the court of Workmen's Compensation Commissioner constituted under the Workmen's Compensation Act 1923. Soon after the formation of Motor Accidents Claims Tribunals in the year 1956 the jurisdiction of the civil courts was ousted vesting the same with the tribunal by inserting S.110-F in the Motor Vehicles Act 1939 with effect from 16-2-1957. And it was open to a workman to seek relief simultaneously both under the Workmen's Compensation Act and the Motor Vehicles Act. This has resulted at times gross misuse and the chances of double benefits could not be easily dispensed with. It is to arrest this type of discrepancy section 110-AAwas incorporated by the Act 56 of the 1969 in the Motor Vehicles Act 1939 which came into force with effect from 2-3-1970. On the whole the main purpose of the tribunal system was to avoid the inappropriateness of the inherited Anglo Saxon judicial system, and its. alienation from the common people coupled with the intractable problems of delay and arrears resulting in the denial of justice. S.110-AA provides that 'Notwithstanding anything contained in the Workmen's Compensation Act 1923, where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act 1923, the person entitled to compensation may without prejudice to the provisions of Chapter VII-A claim such compensation under either of those Acts but not under both'. In effect the Section gives Only an option to the claimants either to seek compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. What is strictly prohibited that the claimants cannot claim the compensation under both the Acts. A plain but careful reading of this provision would further show that an application under S. 110-A would lie only where the facts give rise to such a claim under the provisions of the Motor Vehicles Act. It is therefore very essential to show by the claimant that the accident took place due to the actionable negligence [6]. Here the substantive laws of common law and Law of Torts play a cardinal role [7].

Jurisdictional Questions

Since a claimant/workman has to prove actionable negligence, there are workmen at times beset with jurisdictional problems. In D. Jayamma v. S. Govindaswamy [8] High Court of Karnataka held that a person cannot claim advantage of his own wrong under the Motor Vehicles Act. In this case a Lorry fell into a ditch while negotiating a curve in the result the driver lost control of the lorry and was killed due to his own negligence. Unless the workman can plead and prove the aspect of actionable negligence, no such application for compensation will be maintainable under the Motor Vehicles Act and the proper forum for such application will be the court of Workmen's Compensation Commissioner. It was relied on while reiterating the same by the Karnataka High Court in B. Prabhakar v. Bachina Musthari [9]. But in such type of cases the Motor Accidents Claims Tribunals will have jurisdiction provided the claimant can also prove that there was also negligence in the maintenance of the Motor Vehicles by the owner [10]. In Jaswant Raiv. v. National Transport Co. Ltd. [11] it was observed by the Punjab and Haryana High Court that the Tribunal is not competent to award compensation under the Workmen's Compensation Act in a claim where the claimant have already failed to get a relief as there was no allegation of negligence. In a slightly different context as held by the Madras High Court in Subramanya Naicker v. Kuppuswamy [12] it is also not open to the Tribunal to fasten the liability on the employer and his insurer on the basis of the Workmen's Compensation Act if the workman has already opted to recover damages from the tort feasor, who has been found to be a tort feasor by the Tribunal.

It may well be argued that the purpose of these Social Security enactments would have been best served if such pure technicalities are to the possible extent waived. In such claims, the Motor Accidents Claims Tribunal would be able to award at least against the statutory obligation to the extent provided under the Workmen's Compensation Schedule. This will help the poor claimants to be free from the evils of multiplicity of proceedings. Some High Courts seems to have favourably considered this aspect.

In National Insurance Co. v. Narayanan Nair [13] High Court of Kerala was pleased to observe that since two different types of risks (one for the tort in which negligence is a necessary element and the other the statutory obligation of an employer under the Workmen's Compensation Act) have been covered statutorily and by the terms of the policy of insurance the insurer cannot escape the liability in respect of one of such risks for the reason that an element necessary to establish the other is not proved by the claimant. Similarly the High Court of Orissa in Subhasini Panda v. State of Orissa [14] held that by virtue of S.95 of Motor Vehicles Act, Motor Accidents Claims Tribunal is competent to determine the liability of the Insurance Co. to the extent the workman was entitled to compensation under the Workmen's Compensation Act 1923. But it is reminded that it cannot be further extended to say that the Motor Accidents Claims Tribunal can act in substitution of the authority under the Workmen's Compensation Act 1923 [15]. In Venkataraman v. Abdul Munaf Sahib [16], Oriental Insurance Co. Ltd. v. Bidi [17] and National Insurance Co. Ltd. v. Harekrishna Sahu [18] also a more or less same reasoning was adopted. TheAndhra Pradesh High Court was also pleased to award such a Workmen's Compensation liability by the Motor Accident Claims Tribunal independent of proof of negligence in New India Assurance Co, Ud. v. Kamaraju Sunkamma [19]. In the ordinary circumstances no insurer will object to such a benevolent step since their liability is limited to Workmen's Compensation Schedule only irrespective of the forum.

Question of Quantum of Compensation

The case law with regard to the question of quantum seems to be short of coherence and clarity of thought. As noted supra a cleavage of judicial opinion prevails. The High Court of Orissa in Govind Nayak v. Shyam Sunder Son [20] held that the Tribunal while determining the compensation in respect of a workman is to keep in mind that the compensation is not a source of profit to the claimant. Award of higher compensation would have ' the effect of deviating from the justness of the compensation determined by the representatives of the people.........by change of forum the standard of justness cannot vary with the Motor Vehicles Act and Workmen's Compensation Act and the rate given in the schedule to the Workmen's Compensation Act 1923 would be the guideline for the Tribunal for determining the compensation to be awarded. This decision stands overruled in Orissa State Road Transport Corporation v. Shankar Sahu [21] and found that the Tribunal is not bound to confine the amount of compensation to the schedule provided in the Workmen's Compensation Act. Though the ratio was correctly put it, the reasoning adopted by the learned Judge also lacks rational nexus. As explained, the option granted is to impose an additional burden on the employer for violating the safety requirements seems to be nothing but an innovation in contradiction with the objects and reasons [22] for inserting S.110-AA in the Motor Vehicles Act. Further, the compulsory third party insurance protection to the extent of Workmen's Compensation liability and additional insurance protection subject to the payment of an extra premium for the common law liability are since long been available to the employer no such deterrent effect is in fact present and obviously no employer is thus exposed to any such risks. But the simple explanation given by the Allahabad High Court in Oriental Fire and General Insurance Co. Ltd. v. Ram Sunder Dubey [23] seems to be more consistent with the scheme of the Act. It was held that there is nothing in the Motor Vehicles Act to show that while awarding compensation to an employee under the Motor Vehicles Act the Tribunal is bound to apply the Workmen's Compensation schedule for determining the amount of compensation since the limitation specifically provided under S.95(1)(i) is with reference to the quantum of liability under the Workmen's Compensation Act to be discharged by the insurer along and not with reference to any forum [24], the Motor Accidents Claims Tribunal has to follow its standard as applied conventionally under the common law and the Law of Torts to quantify the just compensation to a workman. Therefore it is only correct to hold that Motor Accidents Claims Tribunal is not bound by the schedule of the Workmen's Compensation Act to quantify the just compensation to a workman as held in other cases - Kalawati v. Balwant Singh [25] Tarachand v. Chokali [26], Ayisha v. Kalidasan [27].

Extent of liability of the insurer

The other important issue involved was the extent of liability of the Insurance Company in respect of a workman under the Motor Vehicles Act. A difference of opinion can be seen in this aspect also nevertheless the case law is nearly ready for a compromise. The Bombay High Court's ruling in National Insurance Co. Ltd. v. Gonti Flaza David [28] is only an exception which represents thus a minority view and as held by their Lordship, "If the workman has chosen to undertake the responsibility of discharging the onerous burden imposed upon him by Tort Law, it follows that he should get the benefit of the expression "including the liabilities if any arising under the Workmen's Compensation Act 1923" occurring in clause (a) of sub-section (2) of S.95 of the Motor Vehicles Act which implies that insurer is liable for common law damages also and not only liabilities arising under the Workmen's Compensation Act". It is to submit that a plain and careful reading of the S.95(1) and (2) will never lead to such a curious conclusion. But the use of an inclusive definition in drafting sub-section (2) of S.95 seems to suggest that the overall limit of indemnification by the insurer includes the liability of the insured towards third party and his liability towards workman if any to the extent of Workmen's Compensation schedule. In consistent with this the majority view now represents that unless otherwise shown the extent of liability of the insurer is the same as the extent provided under the Workmen's Compensation Act [29]. In Oriental Fire and General Insurance Co. Ltd. v. Bidi [30] it was so heId that "if proceedings were instituted before the Motor Accidents Claims Tribunal and the claimant succeed in proving negligence he may get a far larger amount by way of compensation than the amount payable under the Workmen's Compensation Act. In such a case, the liability of the insurance company would be limited to the amount payable under the Workmen's Compensation Act and the balance amount would in that case be payable by the person whose negligence the loss has occurred". In a number of decisions viz. National Insurance Co. Ltd. v. Achutananda Sahu [31]; Orissa State Road Transport Corporation v. Shanker Sahu [32], Subasini Panda v. State of Orissa [33]; Orissa Co-opeative Insurance Society v. Saratchandra Champati; [34] General Assurance Society v. Mohammed Hussain [35] the extent of liability of the insurer was held to be limited according to the schedule of the Workmen's Compensation Act.

Scope of Wider legal liability

To suit the insuring public some extra benefits are also provided subject to the payment of an additional premium over and above the statutory requirements in the India Motor tariff. Under its endorsement No.16 by payment of an extra premium of Rs.8/- each an employer can purchase a wider legal liability insurance cover for their workmen employed in connection with the operation and/or maintaining and/or loading and/or unloading of Motor Vehicles. The net effect of this extension is that the insurance company will indemnify the employer to the full extent exceeding the Workmen's Compensation limit arising under any one of the following Acts[36].

Viz.     1. Motor Vehicles Act

           2. Workmen's Compensation Act-

           3. Fatal Accidents Act

           4. Law of Torts - Common Law.

Therefore it is essential to be a prudent employer having asocial commitment to secure the full insurance protection, and also the insurers and the States have a very pivotal role to educate the insuring public as well.

Conclusion

The task of 21st century must be towards creating a law of compensation compatible with the requirements of the awakened giant of free enterprises. The present set up of varied systems of compensation with different standards [37] can no longer deliver due justice. The development of Law in the country of New Zealand seems to be highly notable and copiable. The New Zealand Accident Compensation Act 1982 [38] provides a very comprehensive scheme and it has been described as the most ambitious reforms of tort law in the common law world [39]. It deals with all accidental injuries no matter how caused and it is not confined to injuries or death caused by motor vehicle accidents only. As Gaskins Knonick and Vos Burghs [40] put it society as a whole should pay the cost of progress as well as reap the benefits. Justice demands that principles of equity be invoked to determine the standard of payment what are individual actually loses when a community adopts a given way of life should be restored by the community. Such restoration is the right of the individual by virtue of being a victim and no further test of eligibility should be required. Such rights exists for all on a Universal basis. It envisages a social insurance scheme by the State [41]. The practical feasibility and economical viability of such a scheme in a vast and vide country like India yet remains a topic for debate. As the best alternative it is suggested that the existing liability insurance [42] schemes shall be properly and prudently utilised.

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Footnotes:

1 Ss.95 and 110 AA corresponding Ss.147 and 167 in the Motor Vehicles Act, 1988.

2 Rupert Cross Statutory interpretation (1976 edn.)

3 GovindNayakv.Shyam Sunder Soni (1988 ACJ 39 (Orissa H.C)

4 National Insurance Co.Ltd. v. Gonti Eliza David (1984 ACJ 8 (Bombay)

5 Ayisha v. Kalidasan (1987 (1) KLT 509 (Kerala)

6 Orissa State Road Transport Corporation v. ShankerSahu (1989 ACJ 867, 869).

7  Minu B. Mehta v. Balakrishna Ramachandra Nayan (1977 ACJ 118 (SC).

8 1982 ACJ 467

9 1984 ACJ 382 (Karnataka)

10 Orissa State Road Transport Corporation v. Shankar Sahu (1989 ACJ 867); D. Jayamma v. S. Govinda Swamy (1982 ACJ 467).

11 1972 ACJ 21 (P&H).

12 AIR 1989 Madras 297

13 1988(1) KLT 794

14 1984 ACJ 276

15 Id. at p.282

16 1971 ACJ 77 (Mad.)

17 1972 ACJ 187 (Orissa)

18 1977 ACJ 512 (Orissa)

19 1981 ACJ 441

20 1988 ACJ 39

21 1989 ACJ 867

22 See AIR Manual 4th Edn. vol.26 p.284

23 1982 ACJ 365

24 Oriental Fire & Gen. lns. Co. Ltd. v. Bidi (1972 ACJ 187)

25 1986 ACJ 550 (Allahabad)

26 1989 ACJ 802 (Rajasthan)

27 1987 (1) KLT 509 (Kerala)

28 1984 ACJ 8 (Bombay)

29 Ayisha v. Kalidasan (1987 (1) KLT 509)

30 1972 ACJ 187

31 1989 ACJ 463

32 1989 ACJ 867

33 1984 ACJ 276

34 1975 ACJ 196

35 1966 ACJ 203

36 See N.C. Vijayaraghavan and M.B. Gopalan - Motor Insurance Law and Practice (1987 ed.)

37 See Union Carbide Corporation v. Union of India 1989 ACJ 760 (SC); M.C. Mehta v. Union of India (1987 ACJ 386 (SC)

38 Shiela AM Mcclean "Accident compensation liability without fault. The New Zealand Experience (1985-5) The Journal of Social Welfare Law.31.

39 Geoffrey W. Palmer "Compensation for personal injury A Requiem for the common law in New Zealand" (1973) 21 Ame J. Comp. Law 1.

40 L.N. Klar "New Zealand Accident Compensation Scheme - A Tort lawyers perspective (1983) 33 University of Torronto Law Journal 80.

41 M.S. Ruby Insurance Co. Ltd. v. V. Govindaraj. A Division Bench decision of the Madras High Court. AAO.No.607 of 1973 and 296 of 1974 cited in Minu B. Mehta v. B.R. Nayan 1977 ACT 118 (SC)

42 John G. Fleming "Contemporary role of Law of Torts" (1970) 18 The Ame J. Comp. L 1.