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.

Legal Language: A Lingustic Perspective

(K.G. Rajamohan, Librarian, High Court of Kerala)

Introduction

Language is the chief means of communication and is the chief medium of thought. It is perhaps the greatest of man's inventions. Language is the expression of human thinking and is subject to continuous change. It has sometimes been considered as a coding system for ideas. It is usually used for denoting the typical human faculty of interpersonal communication by means of written or spoken symbols which acquire meaning according to usage. Language is mainly a means to bring others to think, feel and act as we desire, it is a medium for inter psychological and social activity. Language is vague, ambiguous, changeable, idiomatic and complex. Artificial languages have been used as alternatives to natural language. Example: Shorthand.

2. Legal Language

Legal language is the professional or occupational language. Most of the terms are technical in nature. These terms are not common in natural language. Legal language is used for expressing most accurately the meaning of the terms used in judicial circles.

The technical terms used in law or similar such disciplines are distinct from ordinary language. The legal language can be had from the legal words (Vocabulary), phrases, maxims in common usage, in judicial proceedings, pronouncement, documentary, commercial transactions, administrative and statutory warning etc. The very existence of the legal terminology is documentary.

The basic need of legal language arises out of the communicative and interpretative capacity of words itself. Every word in law should be interpreted in its own meaning. It is quite impossible to find out exactly similar and corresponding words with regard to legal terms in other languages.

3. Legal vocabulary

A legal vocabulary is a set of expressions which have a legal meaning. This set can be further divided into two subsets, one of which comprises exclusively legal expressions, for example, writ, decree, injunction, appeal etc., and other set used both in common language (literal language) and in legal language, such as justice, custody, witness, divorce, order etc.

The legal documents comprise of also neutral expressions, i.e., expressions which are used in legal language without having a specific legal meaning, such as the norms, i.e., house, water, tree etc.

Legal vocabulary differs from common vocabulary of a language both quantitatively and qualitatively. A specific qualitative feature of legal vocabulary is the fact that its terms are more accurate than the expressions of the common language.

Legal vocabulary achieves this results by the following means:

a. It uses a high number of technical terms of specific, clear-cut meaning such as Bail, writ, oath, etc.

b. It uses some specific combinations of words of clear-cut meaning for example, unless otherwise stated, aid and advice, not withstanding, locus stand.

c. It uses legal definitions, for example:--Article 16, Schedule II.

d. By avoiding the use of synonyms, homonyms, etc.

4. Documentary Language Vocabulary

The development of jurisprudence in the past decade has given rise to numerous documentary languages. The documentary legal language and its vocabulary are derived from the natural legal language and its vocabulary. It is possible for transformation of certain natural legal vocabulary into vocabulary of the documentary legal language.

The construction of a documentary legal vocabulary brings about a number of problems.

a. It is due to the fact that the documentary language, as an artificial language is selective, i.e., documentary legal vocabulary does not include all the words of the natural legal language.

b. It is a strictly standarised language which eliminates any ambiguity of meaning of the expressions used.

There is a possibility for transformation of certain natural legal vocabulary of the documentary legal language.

Generally speaking, the words in law have different meanings, viz. Intended meaning, i.e., law addresses only the intended meaning. Secondly, ordinary meaning, i.e., The reasonable meaning which the plaintiff probably attributes. Third one is comprehended meaning, i.e., meaning attributed to language by the hearer or reader. In general, this is the kind of meaning that is important in law.

Usually words have ordinary meaning and assigned meaning. The ordinary meaning is the commonly accepted meaning, it may be with respect to a particular group or community whereas in the matter of assigned meaning a particular person using a word may assign it a special meaning.

5. Distinction between legal and common language

There is a clear-cut distinction between legal and common language. It is mainly on homonyms and synonyms. In common language a word has several homonyms whereas in legal language it has only fewer meaning or homonyms at all. The words such as Bar & Bench, trial etc. have fewer meanings in legal language than the common language.

6. Relation between legal and common language

a. There are some whose common and legal meaning are identical i.e., the meaning of legal language fully agrees with the meaning of the common language.

Example:--Client, divorce, heirs, witness, etc

b. The tendency of legal language to restrain and specify more accurately the meaning of the expressions of common language.

Example:--Consideration, litigation, etc

c. The shifting of meaning of a word in the common language when it is used in the legal language.

7. Acquisition of legal vocabulary

The legal vocabulary is enriched by means of the following:

a. Borrowing:-

Borrowing of words or lexical items from one language to the other. In English language a lot of words and phrases are borrowed from Latin, Arabic, Greek etc. The Latin maxims are very generously used in English law. '

b. Coinage:

This is the other mode by combination of more than one words. Example: Aid and Advice, Law and Order.

c. Other type of acquisition of legal vocabulary are by adoption and adaptation.

8. Characteristic of Legal Language:

a. Co-ordinate Construction:

The peculiar feature of legal language is that it is full of co-ordinate constructions.

b. Technical terms/Jargons

The asset of legal language is the abundance of technical terms.

Example: Writ, suit, etc.

c. Use of Capital letters

In order to give specific meaning to the words, Capital letters are used at initial positions.

Example:- Article, Act, Schedule, Section etc.

d. Legal maxims

The legal maxims are yet another special feature of legal language.

Example:--Actio quaelibet it sua via                         (An action keeps its course)

e. Usages:

Certain addressing terms are used only in judicial circles, which is not so common in ordinary usage in common language.

Example: Your Lordship, Your Honour, The Honourable.

f. Definite meaning:

The words used in legal language has very definite and concrete meanings. Alternative meanings are very rare.

g. Ambiguity:

Less ambiguity is the Characteristic of legal language.

h. Punctuation marks:

Punctuation marks play an important role in legal language and the misplace ment of punctuations often creates problems.

9. Scope for machine translation

The legal language is full of technical terms so that it is easy for machine translation. In legal language synonyms and homonyms are very rarely used. Preparation of legal dictionary is also easy.

10. Conclusion

For lawyers language has a special importance because it is the greatest instrument of social control. Curiously enough, lawyers regard law as the sole means of social control, forgetting that law is only one department of language.

From the professional point of view, words are of central importance for the lawyer, because language is the tools of their trade. Words occupy the lawyers attention in the drafting and interpretation of law. Words are said to be the raw material of the legal profession, and the assiduous study of words, and the proper use of words have always been part of the lawyer's most desirable accomplishments" [1]. "The legal profession is defined as the vocation based on expertness in the law and its application" [2]

The ambiguity of words gives troubles to lawyers not only in manipulating their own technical language but also in the construction of non-legal language in documents. Lawyers are aware of ambiguity so they preserve a moderately precise technical language. The legal language is widely enriched by contributions from Latin, Arabic, Greek etc. Etymological conceptions, semantic conversions, borrowing, translations, custom and usages all are the contributive factors to the legal language.

An analysis of legal language should be intended to bring out the peculiarities, characteristic features, its practice and practicability exercised by lawyers, jurists, law students, scholars, professionals and such other personnel who are invariably connected with the subject.

References

1. BLOM-COOPER, Louis; The Law As Literature: An Anthology of great writing in and about the law, London: Bodley, 1961.

2. Encyclopedia Britannica: Macropaedia, Vol.10 p.779; Chicago, University of Chicago, 1979.

3. MARTINO, AA Ed: Deontic Logic Computational Linguistics and Legal Information Systems, Vol.11 Chapter: Legal Thesauri, by Victor Knapp, pp. 276-81.

4. NAYEEM, M.A; Library Service in Legal Profession, Herald of Library Science, Vol.24 (4), 1985, pp. 308-12.

5. Rajamohan, K.G.: Linguistic Analysis of Legal Language, 1989 (1) KLT Journal part p.13 & 14.

6. WILLIAMS, Glanville; Learning the Law, 11th ed.

________________________________________________________________________________

Footnotes:

1. Lord Birkett

2. Encyclopedia Britannica, Vol.10, p.779.

A Woeful Difference

(Varghese T. Abraham, Subordinate Judge, Ernakulam)

Home I returned on that day

Sorry and soil weather was on that day

Heavy was the work and fatigued the body

Hurried up blood pressure and worried was mind

Sat on the chair and relaxed for seconds

Recalled the mandate: "Clear up the dues"

Opened I the box - the peon brought

Untied the file - a 'Jambuvan Docket'.

Appeared in the scene - my better half in a hurry

Piercing was the look and showered her queries

"Are you a restless creature in this world?

Round the clock you work and speaks never a word

How handsome were you on that wedding day!

A promising bud in the lawyer's robs

"Industrious Junior" said your Senior

"Feather on my cap" praised my father

Took me you to joyful resorts

Purse you had with plenty of notes

Came daily to home numerous clients

Shined you in the Bar surpassing the giants

Misfortune fell - "111 fate" I say

Joined you service - despite my protest

Dissuaded my father and also the in-laws

Persuaded the hostile enemies in the Bar

Bring you home paltry amounts a mensem

How can we live in this city of commerce?

Suffered I a lot and held up my tongue

Now I say - because of our kids.

Wake you up early in the dawn

Work you till late in the dusk

Frugal comforts - this family is denied

Conjugal comforts -1 am also deprived

Talks none to me: I am Ceaser's wife

Comes none here - except your staff

o on foot our children to school

Excursion trips - their forbidden fruits

Look there! See! your neighbour - a lawyer

Fabulous income gets he a year

Medicore was he! (I heard) in the class room

Medalist nay he! but fairs in the court room

Salmond and Winfield he never cares

Denning and Cardozo are not his friends

Voluminous evidence doesn't he read

Age old doctrines never he bothers

Acquisition matters and Accident claims

Accelerate his income; also his fame

Resides he in a Building - A Babel's Tower in the town

Mints he money - like herrings spawning in the sea

Gets he time to relax with wife

Lead his children a luxurious life

Clients queue up early in the morning

Crowd of visitors daily I see.

Fashionable dress wears she with pleasure

Weekly shoppings makes she in this town

Make they cheerful trips in luxurious vehicles

Travel we in crowded omnibus with kids

"Divine is the work" often you say

Impoverished future awaits you I say

Status and salutes you get I know

Impecunious Head is a curse to the Home"

Stood I up to pacify the wooing wife

"Darling I concede: Painful is our life

Different am I from a lawyer in this land

I 'AM AN INCOME TAX PAYEE; He's not.

Proper Court Fee

(Shaji Oommen, Advocate, Ernakulam)

Kerala Court Fees and Suits Valuation Act 1959 Act 10 of 1960, Schedule I and II fixes the amount of court fees to be paid by the litigants in suits and other proceedings. Advocates of the State has had raised the grievance that the amount of court fees fixed in the Schedule is very high and made representations to the authorities of the State, so as to enable the litigants to get justice which are denied because of heavy court fees levied.

The Kerala Court Fees and Suits Valuation Act provides in its Schedule II, Article 11(r) that in a writ petition under Article 226 and 227 of the Constitution of India, the Court fees to be levied is Rs.25/-. In schedule II of the Act, Article 3(2) (c) provides that in case of an appeal under S.5 of the Kerala High Court Act 1958, the court fees to be paid is Rs.100/- against judgments of a single Judge under Article 226 and 227 of the Constitution of India.

The question as to whether the occupier or the owner of a building is liable to pay 5 years of arrears of Building tax under the Kerala Panchayat Act 1960 came up for consideration before the High Court in original Petition No.2760 of 1989. The High Court office insisted payment of court fees at Rs.25/- for 5 years and the same was levied. Against the judgment of the Single Judge in the above case Writ appeal No.828 of 1989 was preferred and High Court office returned the appeal memorandum stating that Rs.100/- paid in the writ appeal is insufficient, presumably on the view that court fees should be paid treating the appeal as 5 appeals. The writer of this Article who filed the above writ appeal returned the above appeal memorandum with the endorsement that Rs.100/- alone is liable to be paid as the appeal which arose out of a single proceedings and in support of that stand cited the decision of Supreme Court in Civil Appeals No.41 of 1962, an Orissa case, decided on 5-4-1963 reported in 1963 KLT 1063. Thereon the High Court office accepted the contention and sent up the writ appeal before the Bench without referring the question before the Bench to render a decision on the subject to enable the Law Journals to report for the guidance of the Bar. So far Kerala High Court has not rendered a decision on this question.

It is thus made clear that in writ appeals relating to Revenue Recovery proceedings initiated for recovery of arrears of Building tax for many years under the Kerala Panchayats Act and Rules the court fees to be levied is only Rs.100/- and not the multiples of such years-challenged.