Environment and the Indian Constitution

(Valsamma Paul, MA., LL.M., Applied Economics, University of Cochin.)

India is one of the very few countries of the world, which have enshrined in its Constitution a commitment to environmental protection and improvement. But the Constitution of India, as originally adopted in 1950, did not contain any definite provision for the protection of environment. However, one could locate an indirect reference in Article 47, which reads:

"The State shall regard the raising of the level of nutrition and the standard of Irving of its people and the improvement of public health as among its primary duties........"

For the improvement of public health, it is necessary that the State should be able to provide pollution - free environment.

It was in the year 1976, that it was thought necessary to make a direct provision for the protection of environment in the Constitution. This was done by the Forty-second amendment of the Constitution, effected in that year by the insertion of Articles 48 A and 51 A(g), which are reproduced below:--

Article 48 A:-"The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country".

Article 51A(g):—"It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures."

Thus the Constitution makes two-fold provisions. On the one hand, it gives directive to the State for the protection and improvement of environment. On the other hand, it casts on every citizen the duty of protecting and improving the natural environment.

The words 'protect' and 'improve' in Article 48A are very meaningful in the sense that the State is obligated not only to endeavour to preserve the environment but also to improve its quality. Article 48A provides a positive and dynamic connotation so that the State may deliberately take steps and impose restrictions on the use of resources, which adversely affect the environment. It further clarifies that the State is not forced to protect and improve the environment, but merely shall endeavour to do so [1].

It is true that Article 48 A is a directive principle and thus not enforceable through courts. Yet its directive character does not dilute its significance and the obligation of the State to protect and improve environment [2].

Environmental Legislative Powers

Article 246 of the Constitution deals with the subject matter of laws made by Parliament and the Legislatures of States. Parliament and the legislature of any State have exclusive powers to make laws with respect to any of the matters enumerated in List I (Union list) and List II (State list) in the seventh schedule to the Constitution respectively. Parliament and Legislature of any State have power to make laws with respect to any of the matters enumerated in List III (Concurrent list) of the said schedule.

Environmental legislative powers are available under all the three lists as below:--

List I - Union list

Entry 52 -- Industries

Entry 53 -- Regulation and development of oil fields and mineral resources.

Entry 54 -- Regulation of mines and mineral development.

Entry 56 -- Regulation and development of inter-State rivers and river valleys.

Entry 57 -- Fishing and fisheries beyond territorial waters.

List II-State list

Entry 6 -- Public health and sanitation

Entry 14 -- Agriculture, protection against pests and prevention of plant diseases.

Entry 17 -- Water, that is to say, water supplies, irrigation and canals.

Entry 18 -- Land, that is to say, rights in or over land.

Entry 21 -- Fisheries

Entry23 -- Regulation of mines and mineral development subject to the provisions of List I.

Entry 24 -- Industries, subject to provisions of List I.

Entry 25 -- Gas and gas-works.

List III - concurrentlist

Entry 17 A -- Forests

Entry 17 B -- Protection of wild animals and birds

Entry 20 -- Economic and social planning.

Thus, akin to other Federal States, India's national environmental policy must take shape within the context of divided jurisdiction between the Federal and State governments. In addition to the separate federal and State jurisdictions, there exists a concurrent list of legislative powers, which includes items such as population control and family planning, social welfare, regulation of industries, forests and the protection of wildlife and birds. The concurrent list appears to give superior power to the federal government, although State governments have executive authority over the management of these items [3].

It cannot be forgotten that entries in the three lists are liable to generate jurisdictional problems between the Central and the State governments. For example, regulation of inter-state transportation, shipping and navigation, exploration and extraction of mineral resources, and atomic energy fall within the jurisdiction of the Federal government. But the State governments have legislative authority for ownership, management and the use of natural resources such as water and land.

It goes without saying that the aforesaid provisions are wide enough to empower the government to do all that is necessary to do by legislative and administrative action to protect human environment. No doubt, Part IV of the Constitution, which refers to directive principles of State policy are not judicially enforceable. But Article 31C provides:--

"Not withstanding any contained in Article 13, no law giving effect to the policy of the State towards securing [all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away, or abridges any of the rights conferred by (Article 14 or Article 19) (and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy)".

Therefore, it is clear that environmental legislation designed to realize the objective mentioned above is immune from judicial attack on the ground of conflict with some fundamental rights included in Part III of the Constitution, so the governments can go ahead bravely along the path of churning out fruitful environmental legislation. But it equally needs to be realized that the laws do not possess self-propelling mechanism. If laws are not put into action, they remain dormant and bring justice to none [4].

Probably, no other Constitution makes specific provisions in regard to environmental pollution. The Constitution of India has taken the lead. It is hoped that with the backing of the Supreme Court and High Courts, the Constitutional imperatives will become meaningful in controlling environmental pollution. The trinity of State must make full effort to ensure cleaner environment - the legislature by enacting the laws, the executive by effective implementation of them and the judiciary by acting as a vigilant and meaningful watchman of both the legislature and the executive. At the same time, the citizens must realize that the surroundings belong to them and that they must keep them neat and clean. If the State and the citizens perform their respective Constitutional duties, the problem can be controlled largely, if not wholly.

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Footnotes:

1 Shekhar Singh. Environmental Policy in India (1984). p.50.

2 R.K. Sapru, Environment Management in India (Vol.1), (1987), p.76.

3 Supra, n.1, p.51.

4 Supra, n.2, p.65.

Comments on M.S.C - Op. C.G.M. Fed. Ltd. v. S.P. Khale, A.I.R. 1989 S.C 485

(Valsamma Paul, MA. LL.M., Applied Economics, University of Cochin)

The expression "unfair labour practice" has acquired a peculiar significance in industrial parlance. It is often used to mean such open or underhand means as are adopted both by the employers and workmen to cause annoyance, disturbance, damage or loss to each other [1]. The Allahabad High Court has laid down that any practice, which conflicts with the spirit and letter of Article 43 [2] of the constitution and other Articles declaring decent wages and living conditions for workmen [3] and which if allowed to become normal would lead to industrial strife should be condemned as unfair labour practice [4].

In order to foster proper industrial relations, it is essential to frustrate unfair labour practices and facilitate free growth of trade unionism. It is, therefore, important to write into the law provisions to prohibit and penalise unfair labour practices. Attempts in this respect were started as early as 1947, when the Trade Unions Act, 1926 [5] was amended by the Trade Unions Amendment Act 1947 [6]. Provision has been made enabling withdrawal of recognition of a registered trade union, when an unfair labour practice [7] is committed by the executive or members of a recognised trade union [8]. An unfair labour practice on the part of the employer [9] has been made an offence punishable with fine [10]. But although the Amendment Act was passed, it never came into force.

The Code of Discipline, 1958 [11] requires both employers and workers to give up unfair labour practices [12]. In February, 1968, the Government of Maharashtra set up a Committee on 'Unfair Labour Practices' [13]. In its unanimous report presented to the Maharashtra Government in July 1969, the Committee listed various acts of omission and commission, which constitute unfair labour practices [14]. The Industrial Relations Bill, 1978 [15], which was introduced in Parliament but could not be passed also contained a list of unfair labour practices' in the Fourth Schedule thereto [16].

After several fruitless attempts, the expression 'unfair labour practice' was accorded statutory recognition by the Industrial Disputes Amendment Act 1982 [17]. 'Unfair labour practice' is defined in the Act [18] as any of the practices specified in the Fifth Schedule to the Act. The unfair labour practices in the Fifth Schedule consist of two groups. Group I relates to unfair labour practices on the part of employers and trade unions of employers and Group II on the part of workmen and trade unions of workmen. Chapter V-C of the Act prohibits and penalises the commission of unfair labour practices [19].

The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 [20] is a pioneering state legislation in this respect. It provides for the recognition of trade unions for facilitating collective bargaining for certain undertakings and provides for the prevention [21] of certain unfair labour practices. Unfair labour practice is defined in the Act as any of the practices listed in Schedules II, III and IV [22]. Schedules II and III enumerate unfair labour practices on the part of employers and trade unions respectively. Schedule IV deals with general unfair labour practices on the part of the employers.

The question whether non-giving of permanent status to employees will amount to unfair labour practice falling under items 6 and 9 [23] of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 came up for consideration before the Supreme Court in the case under comment. The Maharashtra State Co-operative Marketing Federation was appointed the Chief Agent in the Cotton Monopoly Scheme by the Government of Maharashtra. In February, 1984, the Government separated the operation of the levy of cotton from other activities of the Marketing Federation and assigned them to another society, namely the Maharashtra State Co-operative Cotton Growers' Marketing Federation Ltd. The Government directed the Marketing Federation to terminate the services of the seasonal staff working under the Cotton Monopoly Scheme and transfer the services of the regular staff working in the Cotton Department of the Federation at Bombay and in the Mofussil areas to the new organisation.

There was an award by the Industrial Tribunal, declaring the seasonal staff as permanent employees. Yet the Marketing Federation and the Co-operative Society were reluctant to accord them permanent status. So they approached the Industrial Court, complaining of unfair labour practices [24] on the part of the Marketing Federation and the Society. S.5(d) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 requires the Industrial Court to decide complaints relating to unfair labour practices except unfair labour practices falling in item 1 of Schedule IV. The Industrial Court took the view that the complaint of the respondent is covered by item No.1 [25]. Hence it was beyond its jurisdiction to look into the same. Further, it could not find any unfair labour practices on the part of the Marketing Federation or the Co-operative Society. Above all, the complaint was barred by limitation, as it was filed after [26] 90 days from the date of accrual of the cause of action. Because of these reasons, the Industrial Court dismissed the complaint.

The respondents filed writ petitions before the High Court against the order of the Industrial Court. The High Court allowed the writ petitions and quashed the order of the Industrial Court. Thereupon, the matter was taken up in appeal to the Supreme Court.

The Supreme Court is quite convinced that there has been unfair labour practice on the part of the Marketing Federation and the Society, the appellant. The seniority list, prepared by the appellant for the year 1985-86, shows that most of the respondents have been in the employment of the Marketing Federation since 1972. The annual increment list shows that the respondents were given annual increment on November, 1985. Still, the respondents have been shown in the seniority list and also in the annual increment list as temporary employees. In view of the award of the Industrial Tribunal, the respondents should have been treated as permanent employees.

The Supreme Court does not find any justification for the finding of the Industrial Court that the complaint of the respondents does not come within the purview ofItemNos.6and 9 of Schedule IV [27]. No reason has been given by the Industrial Court why the complaints come within item No.1 of Schedule IV and as such cannot be decided by the Industrial Tribunal.

There is nothing to show when the respondents received the appointment letters. Hence, the Industrial Court was not at all justified in holding that the complaints filed by the respondents were barred by limitation. Even if the complaints were barred by limitation, the Industrial Court should have given an opportunity to the respondents for explaining the delay.

It is gratifying to note that the Supreme Court has, in this case, raised its eyebrows against one of the devilish unfair labour practices, resorted to by the employers who leave no stone unturned in swelling their profits at the expense of the workers. But one wonders whether this sort of raising the eyebrows of the Supreme Court only to the extent of stigmatizing non-giving of permanent status to employees as unfair labour practice without ordering the faulty employer to do the needful will be of any use in eradicating this unfair labour practice which is taking roots and eating into the vital of the sweating class like cancer. It would also have been a welcome measure, if the Court has directed the appellants to recompense adequately the misery caused to the respondents by their failure to give them permanent status for a very long time.

It is too much to expect that the industrial relations will improve overnight with the prohibition of unfair labour practices as contained in the Maharashtra Act. [28] More subtle ways will be invented by the parties to avoid the nuances of law. No law can become effective, unless it is properly barricaded by the Supreme Court, the supreme law pronouncer of the land. For maintaining good labour-management relations and thus making the nation tread the path of prosperity the judiciary must see that all the unfair labour practices which are now prohibited by law are uprooted by its effective and definite pronouncements. Otherwise laws like the Maharashtra Act will remain mere paper-tigers.

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Footnotes:

1 K.P. Chakravarti, Labour Management and Industrial Relations (1988), P.268.

2 Article 43 provides: "The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas".

3 See the Constitution of India, Articles 39 and 42.

4 Eveready Flash Light Co. v. Labour Court, Bareilly, AIR 1962 All. 497, P.500, per Dhavan J.

5 The Trade Unions Act, 1926 is an Act to provide for the registration of Trade Unions and in certain respects to define the law relating to registered Trade Unions.

6 Act No.45 of 1947

7 The Indian Trade Unions (Amendment) Act, 1947, S.28J.

8 Id., Section 28 G.

9 Id., Section 28 K.

10 Id., Section 32 A.

11 The Code of Discipline was approved by the All-India Organisation of Employers and Workmen at the 16th session of the Indian Labour Conference held at nainital in May 1958 - K.D. Srivastava, Commentaries on Industrial Disputes Act, 1947 (1985), P.963. Its object is to maintain discipline in Industry. To achieve this object, there has to be (i) a just recognition by employers and workers of the rights and responsibilities of either party and (ii) a proper and willing discharge by either party of its obligations consequent on such recognition - Report of the National Commission on Labour, 1969, P.A28.

12 Id, PP. 346, A28, A29.

13 The object of the Committee was to define activities which should be treated as unfair labour practices on the part of employers and workers and their organisations and to suggest action to be taken Report of the National Commission on Labour (1969), P.336.

14 Id., P.340.

15 Bill No.13 of 1978.

16 K.D. Srivasthava, Op. cit., P.962.

17 Act No.46 of 1982.

18 Section 2(ra)

19 Sections 25-T and 25-U

20 Act No.1 of 1972

21 Section 27

22 Section 26

23 Items 6 and 9 are as follows:-

'Item 6. To employ employees as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees'.

'Item 9. Failure to implement award, settlement or agreement'.

24 Vide items Nos.6 and 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

25 Item No.1 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 reads:-

"To discharge or dismiss employees-

(a) by way of victimisation;

(b) not in good faith, but in the colourable exercise of the employer's rights;

(c) by falsely implicating an employee in a criminal case on false evidence or on concocted evidence;

(d) for patently false reasons;

(e) on untrue or trumped up allegations of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;

(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment".

26 S.28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

27 Supra, note 23.

28 Supra, note 21.

Polygamy in Islam : Misrepresented and ill Judged

(M. Fazlul Haq, Advocate, Varkala)

Dr. W.F. Menski was written an elaborate reply (“Comparative legal training in action: a reluctant defence of Polygamy”, 1990 (1) KLR J.p.50-69) to Mr. Mustafa Ali Khan on his essay, “Islami Polygamy - a blessing in disguise” (1989 (1) KLT J. p.47-58).

In a discussion on the subject: "Polygamy in Islam", two points crop up for consideration:

(1) What are the injunctions of Islam?

(2) What is the relevancy of those injunctions in the modern World?

On the first point, as observed by the Allahabad High Court (D.B.) in a recent decision, the Qur'anic injunctions are clear, but misrepresented and ill-judged by laymen outside the religion of Islam.

The Court held: "..............................It is a dangerous game to tear tenats from another persons' religion out of their context for one's personal advantage. Polygamy under Islam was always an exception, and never a generality. Then Polygamy went and goes with the obligation of equality, equity, Justice to be discharged or dispensed amongst more than one wife. The Koran speaks of conscience as an obligation on the husband before taking two, or three or four wives. It speaks of equality of love amongst wives, and equality which is within the sole perception of the woman not the male. It is a hard discipline of the Islamic religion which requires perfection as any wife in a polygamous marriage can as of right speak out in a case of in equal treatment, and make matters difficult for a husband. Thus, a polygamous marriage, under Islam, is exception with a mathematical justice of equality amongst the wives - the woman is the Keeper of conscience. The husband only discharges it with an effort which borders on justice. The scales are with all the wives. If one complains of in-equality no one can question her. Such is the discipline of the Koran...............The concept of marriage and Polygamy under Islam and as is referred to in the Koran is clear, but misrepresented and ill-judged by laymen outside this religion.............................": (See Chandrapal and others v. Keshav Deo and others, 1990 (1) Civil Law, J. 790).

In the above case, a Hindu husband who was prosecuted for bigamy challenged the prosecution by a petition under Articles 226 and 227 of the Constitution of India, contending that S.17 of the Hindu Marriage Act, 1955, is ultravires of the equality clause under the Constitution because if he were a Muslim he would get away with it and cannot be prosecuted under S.494, 1.P.C.) and consequently the petitioner contended that even S.494,1.P.C. is ultravires. Dismissing the petition the Court further held:"......................The petitioner's contention that S.17 of the Hindu Marriage Act, 1955 or S.494 of the Indian Penal Code, 1860, are ultravires as they offend his liberty as he understands it, under Article 21 of the Constitution of India is a myth of his own making and an immorality engineered by him and it effects neither religion to which he belongs nor any concept of marriage under Islam......................"

Only a layman can say that a Muslim has a right to have four wives; It may also be noted that no marriage, polygamous or otherwise be solemnized without the free consent of the woman. So, even if a man proposes to contract a polygamous marriage, if no woman is willing, his wish will remain as a mere dream. So, it is respectfully submitted that there is no reason why Dr. Menski and the like-minded scholars should shed crocodile-tears for the women in the name of Polygamy.

Let us now, come to the Qur'anic injunctions on the point:-

"In the name of the Merciful and compassionate God;

(1) O Ye folk! fear your lord, who created you from one soul, and created there from its mate, and diffused from them twain many men and women. And fear God, in whose name Ye beg of one another, and the Wombs; verily, God over you doth watch;

(2) And give unto the orphans their property, and give them not the vile in exchange for the good, and devour not their property to your own property; verily that were a great sin. But if you fear that Ye cannot do justice between Orphans, then marry what seems good to you of women, by twos, or threes, or fours;

(3) If you fear that Ye cannot be equitable then only one..................That keeps you nearer to not being partial;

(4) And give women their dowries freely;

(5) Ye are not able, it may be, to act equitably to your Wives, even though Ye covet it; do not however be quite partial, and leave one as it were in suspense.................": (E.H. Palmer: "The Qur'an", the Chapter of Women (IV) 1-4,125-130).

The Qur'an, thus, permits Polygamy as a part of religious duty to do justice between orphans; not as a sexual variety entertainment. Dr. Menski's comment on the subject is only superficial and biased; and the learned author has not attempted to study the Qur'anic Law on the point; at any rate, his article is silent on that aspect, presumably with ulterior motives.

Let me quote Moulana Muhammad Ali regarding the scope of the above verses; ".....................The care of the orphan was one of the earliest injunctions that Islam gave, and the prophet had always shown a deep anxiety for the welfare of the poor and the orphans.............This Chapter was revealed to guide the Muslims under the conditions which followed the battle of Uhud...................Now, in the battle 70 men. Out of 700 Muslims had been slain, and this decimation had largely decreased....................... Thus, many orphans would be left in the charge of widows, who would find it difficult to procure the necessary means of support..........................We are told that if they could not do justice to the orphans, they might marry the widows whose children would thus become their own children; and as the number of women was now much greater than the number of men, they were permitted to marry even two or three or four women. It would thus be clear that the permission to have more wives than one was given under the peculiar circumstances of the Muslim Society; and the prophet's action in marrying widows, as well as the example of many of his companions corroborates this statement. Marriage with orphan girls is also sanctioned in this passage for there were the same difficulties in the case of orphan girls as in the case of widows...................". ("The Holy - Qur'an", p. 187).

It has been rightly held that polygamy is encouraged or permitted by Islam as an exception and not as a rule. Islam has its own conception of marriage; and does not permit extra-marital relations, which have become the very foundation of what is called the western culture; aptly described as bourgeois, way of life by communists. For example,

"Manifesto of the Communist Party" says:--

"Our bourgeois, not content with having the wives and daughters of their proletarians at their disposal, not to speak of common prostitutes, take the greatest pleasure in seducing each other's wives. Bourgeois marriage is in reality a system of wives in common................": (K. Mark and F. Engels, p.88,1955 Edition).

Dr. Menski's comment contains contractory and mutually destructive arguments. While pointing out that Polygamy is only one possible way to alleviate particular social problem and is a useful legal remedy in certain difficult social situations, and that a qualified permission for Polygamous arrangements of any combination seems a reasonable way forward for modern India, the learned author contradicts himself by saying that allowing Polygamy is nothing but a clever device to legitimise sexual relations that may otherwise be illicit. He also states that a female student declared herself ready to accept polygamy provided polyandry was legally recognized. We find in this a plea in disguise for legalization of extra marital sexual relations which have demoralized the western social life. If the western minded people, who are described as bourgeois, by Marx and Engels, want such a legislation to legalize their present immoral life, which is immersed in the "Pleasure in seducing each other's wives", let them have it. It appears that the "qualified permission" which Dr. Menski has in his mind may be the above condition of his female student. On the matters of this kind the Qur'an urges the Muslims to say; "Ye have your religion, and I have my religion". (Chapter 109).

The question is whether Dr. Menski admits that Mr. Khan has correctly cited in his essay the Islamic law on the subject. If so, his criticism will be a fruitless exercise so far as the Muslims are concerned who will ignore it as anti-Islamic.

Here, it may be remembered that prostitution, the greatest evil of civilization which is a real canker, with its concomitant increase of bastardity is practically unknown to Countries where polygamy is allowed as a remedial measure: (Moulana Muhammad Ali, ibid; p. 188)

As a matter of fact, in India, the Muslim community is not confronted with any serious problem arising out of or connected with Polygamous marriages.

As held by the Allahabad High Court (ibid., p. 795): "........................As social conditions in the nation and through out the world continue to change, the reality of life is that even without a code on personal law of Muslims in so far as the Marriage is concerned, Polygamy is going in to oblivion. Education, changing patterns of the family structure, the structure of a family in the context of reality of the world, and economic necessities are on their own precipitating a situation where monogomy is becoming the reality though the religion permits a Muslim with such sanction of conscience to venture in to Polygamy. But, the code upon which Polygamy rests in Islam is strict and difficult to keep. Let no man misunderstand another's religion". (See also "Islamic Law in Modern India", by Indian Law Institute, 1972 Edition p.154).

But, prostitution and extra-marital relations create grave danger to social life in India too because of the influence of the bourgeois' way of life or the western culture. The West is now, punished by God through the fatal disease: AIDS for their promiscous sexual life. "This (the Qur'an) is a guidance, and those who misbelieve in the signs of their Lord, to them is torment of a grievous plague": (Chapter, 45,12).

The problem of prostitution has now, come up for consideration before the Supreme Court of India, in G. Jain v. Union of India, AIR 1990 SC 292. In this case, an application under Art.32 of the Constitution was filed asking for direction to the Union of India and others for making provision of separate hostels for children of prostitutes. The Court observed: "..................Legislation has been brought to control prostitution. Prostitution has, however, been on the increase and what was once restricted to certain areas of human habitation has now spread in to several localities. The problem has, therefore, become one of serious nature and requires considerable and effective attention......."

The court, therefore, constituted a committee to examine the material aspects of the problem and submit a report containing recommendations to the court. How did these women become prostitutes? Who are responsible for the same? Can it be said that Polygamy has produced prostitution? What are the remedial measures to be taken for rehabilitation of prostitutes and their children? Ail these aspects require investigation and serious thoughts.

Though Marx and Engels have visualized that abolition of the present system of production must bring it with it the abolition of the community of women springing from that system, i.e., of prostitution both public and private (ibid.,p.89), it is not clear whether in countries under the rule of Communism this has been achieved.

Dr. Menski says that in several European Countries, esp. Germany, millions of women did not become Polygamous but remained unmarried because of unavailability of men in their age groups. This has become socially acceptable and has caused no noticeable adverse moral effects, and the facts are that many women in those countries, and else where, have become self supporting.

But, if these women, who have become self supporting and at the same time remain un-married, are leading a chaste life also, that is well and good. How many of them lead a chaste life is a matter which is to be enquired into.

However, when the orphans or widows including the prostitutes and their children cannot otherwise be protected or rehabilitated, Polygamous marriages should be encouraged as a remedial measure. Thus, the Islamic Law on Polygamy holds considerable importance in the modern times, too.

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.

_________________________________________________________________

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.