Will the rainbow flags soon be waived in full glory : LGBT community

LGBT CommunityAbstract

As the Supreme Court has exceptionally accepted the curative petition in the case filed by Lawyers Collective to decriminalize same-sex sexual intercourse, the constitutionality question of Section 377 IPC has been raised once again. This article portrays an image of the historical position of the LGBT community before criminalizing legislation came into force. The legal framework will set out and it will be shown what the colonial legislation has changed. Important case law regarding this legislation will be dealt with. Three landmark judgments will be highlighted; the 2009 Delhi High Court decision which declared Section 377 IPC unconstitutional; the 2013 Supreme Court decision to uphold Section 377 IPC and the 2015 Supreme Court decision granting the transgender community a third gender and special protection. The implications of all this for the LGBT community will be evaluated, which will show the desirability that the Supreme Court soon bring clarification in its final decision regarding Section 377 IPC.

In a topic as one on hand, there are bound to be as many viewpoints to wit as are colours in a rainbow. No single view point may be fully correct or fully incorrect and yet all of them can peacefully coexist.[1]

1 Behind the Indian rainbow colours

Two weeks ago, the Supreme Court has accepted to hear a curative petition regarding the constitutionality of Section 377 IPC. Most notoriously known as the section criminalising homosexuality. Filing this petition was the last possible step to take by the Lawyers Collective, standing for the LGBT community, in their case to attempt to strike down Section 377 IPC in that it criminalises all same-sex intercourses, both consensual and non-consensual. Their case was brought before the courts in 2001 already, to be followed by a legal rollercoaster. In 2009, the criminalisation was struck down by the Delhi High Court, but in 2013 upheld again by the Supreme Court. Then in 2015, followed a very progressive and unique decision by the Supreme Court to recognise and protect the transgender community.

This article will give an overview of the history of the LGBT community in India and the legal framework. Both the legislation at stake and the landmark judgments will be looked into. An analysis will be made of their implications for the current position of the LGBT community in India, which will show the need for the Supreme Court to deal with the question of the constitutionality of Section 377 IPC once again.

2 Historical and societal perspective

“Unity in diversity”, that is the national slogan of India. Indeed, it is a vast country which is known for its many aspects of diversity. When it comes to the perception of homosexuals and transgenders, however, this message sometimes seems to be forgotten, as there are noticeably very different views and attitudes. Some people, and more broadly some states, are very tolerant towards the LGBT community. Others, on the other hand, are very conservative and do generally not accept the ‘otherness’ of this community.

In ancient Indian culture, acceptance towards homosexuality can be found in various sources. In several Hindu temples, walls are carved with images of same-sexed persons engaging in sexual activities. In ancient literature, most commonly known the Kama Sutra, direct references are made to sexual activities between same-sex partners. This shows tolerance in the Hindu culture towards homosexuality. As for transgenders, descriptions about sexual intercourse with people of a ‘third nature’ (Tritiya Prakriti) can be found in the Kama Sutra as well.

There are other Hindu texts, such as the Manu Smriti, which forbid sex between men. However, this is only sanctioned with minor penalties, such as bathing with one’s clothes on.[2] To place this into context: the same penalty is provided for men who have sex with women in a cart pulled by a bullock, in water or during the day.[3] Also should a man who had unnatural sex, bestial sex, sex with a menstruating woman or in water, atone by performing a Samtapana Krikkhra. This means he has to consume a drop of a purifying substance made of the urine of cows, cow dung, milk, sour milk, clarified butter and a concoction of Kusa grass, and he has to fast for one day and night.[4] The offence was thus only considered a minor one.

Transgenderism, particularly the hijra community, is a long existing part of Indian culture. In ancient times, hijras, being neither men nor women, were called upon for their religious powers to bless and to curse.[5] People wanted to keep them satisfied and gave them money – they feared that or else the hijras could bring them misfortune. Their traditional work is badhai – singing and dancing in public –, blessing new-born babies, or dancing in ceremonies.[6] They are still called upon for the performance of those societal functions at such occasions.

Even though the Indian precolonial era has not always shown much tolerance towards LGBTs, there can be said to have been a general climate of acceptance. This perception has changed radically over the years. This has been acknowledged by relatively recent case law, where it was stated that “[homosexuality] is not considered normal and at best of times looked down upon by the society”.[7] This change of mind-set can be traced back to the introduction of anti-sodomy provisions in the IPC during the British rule.

3 And then came the IPC

Since its entry into force, the IPC contains Section 377, which criminalises “unnatural offences”. It states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The section is largely based upon the traditional Judeo-Christian standards which Macaulay, the British drafter of the IPC, advocated. It was considered to intend criminalisation of all kinds of non-procreative sex that were not penile-vaginal intercourse.

No legal definition is given of “unnatural offences” or “carnal intercourse against the order of nature”. This has later been clarified in case law as to cover oral sex, anal sex and penetration of other orifices.

Today, the provision is mostly known for its penalisation of homosexual conduct. However, this is also the only provision that criminalises sexual activities such as paedophilia and bestiality, as there are no separate provisions in the IPC that address these sexual crimes. This is why, even though there are many opponents of the provision, an entire abolition of the section is mostly not advocated.

4 Case law

The constitutionality of Section 377 IPC has been questioned before the Delhi High Court in 2009. The High Court deemed itself competent to declare Section 377 IPC unconstitutional. It ruled that Section 377 IPC was in violation of the right to equality and non-discrimination and the right to privacy, guaranteed by articles 14, 15 and 21 Constitution, insofar that it criminalised consensual sexual acts of same-sexed adults in private. The section would continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. This clarification by the Court would hold until the Parliament would choose to amend the law. The latter has not happened up until now.

The LGBT community’s euphoria about the High Court’s decision would last long. Four years later, in 2013, the case was brought before the Supreme Court, which decided that Section 377 IPC was not unconstitutional. The Court emphasised the principle of presumption of constitutionality and that the judiciary should exercise self-restraint when dealing with challenges to the constitutionality of laws. This already set the tone for its following findings on the constitutionality.

No violation of the right to equality and non-discrimination under articles 14 and 15 Constitution was found, because the classification that Section 377 IPC makes, would not be arbitrary nor irrational. According to the Court, those who have intercourse in the ordinary course and those who have intercourse against the order of nature, constitute different classes and they can thus be treated differently.[8] It did not accept that there was sufficient proof of a discriminatory attitude by state agencies towards sexual minorities and a consequential denial of their basic human rights.[9] Also the LGBT community was said to be only a miniscule fraction of the Indian population and over the last more than 150 years, less than 200 people had been prosecuted for committing an offence under Section 377 IPC.[10]

The right to privacy under article 21 Constitution was not found violated either, because alleged harassment of the LGBT community on the ground of Section 377 IPC was neither mandated nor condoned by the section.[11] The fact that the section was misused by police authorities and others, could be a relevant factor for the legislator to consider when judging on a contingent amendment of Section 377 IPC, but could not influence constitutionality of the section.

The Supreme Court thus radically reversed the progressive decision by the Delhi High Court to strike down the criminalisation of same-sex intercourse. It applied a rather rigid interpretation of the law to uphold the section as it had always been interpreted before.

In the light of the foregoing, it was rather surprising that two years later, in 2015, the Supreme Court made a most progressive decision regarding the legal recognition of transgenders’ gender identity.

The Supreme Court judged that transgenders should be recognised as a third gender, for they faced wide-spread discrimination and the non-recognition of their identity in Indian legislation, denied them equal protection of the law.[12] The Court continued that they should be treated as a socially and educationally backward class and are entitled to reservations in cases of admission in educational institutions and public appointments.[13] Several measures were ordered to be undertaken to address their struggles in society, such as separate public toilets and separate HIV sero-surveillance centres.

 

5 Implications for LGBT position

The Supreme Court decisions of 2013 regarding the upholding of the criminalisation and of 2015 regarding the recognition and protection of the transgender community as third gender, seem to be in tension with each other to some extent. The first decision is a conservative one, which completely swept the liberal reasoning by the Delhi High Court under the carpet. The latter is, on the contrary, unique in its progressiveness and a model case for other countries in the international community.

Transgenders are provided extra protection and rights, whereas the same-sex sex ban has been reinstated. Now what does this mean? It is not unlikely that both instances occur in one case. It seems absurd how transgenders get reservations in education, jobs and welfare schemes – must be protected! –, but on the other hand, if they perform the sexual acts that are intertwined with their gender identity, they are to be criminalised – not acceptable, criminal offence! It seems to imply some kind of split personality of transgenders…

Sound explanations are difficult to provide. Perhaps the fact that hijras are a visible class in society, which homosexuals are not, has to do with it. Perhaps homosexuality is still less accepted in Indian society than transgenderism is. Perhaps the bench in 2013 was just more conservative than the one deciding the transgender case two years later. Whatever the reason may be, although the latter case can be considered a step forward, the legal position of the LGBT community is still currently very ambiguous.

The fact that the Supreme Court has now agreed to hear the curative petition which has been filed as a last remedy in the case concerning the constitutionality of Section 377 IPC, shows that there still is some hope for the LGBT community.

 

6 Conclusion

A reflection on the history of the LGBT community, shows the struggles which it has faced, especially since the colonial legislation was introduced in India. There were four years of a feeling of victory, after the Delhi High Court had decided to strike down the criminalisation of consensual same-sex intercourse between adults. The Supreme Court, however, reversed this liberal decision and re-enforced the same-sex sex ban.

It is to be awaited what the Supreme Court will decide in its final decision, as it has recently accepted the curative petition considering this constitutionality. As curative petitions are admitted only very exceptionally, in 1% of the cases, this can already be considered a big step forward. The LGBT community will surely be holding their rainbow flags ready to waive in victory in case of a definite decriminalisation. All will have to exercise patience to see which path the Supreme Court will take on its final journey regarding Section 377 IPC…

By Iris Leerdam

 

 

[1]Gujarat High Court 28 February 2014, X v. State of Gujarat, § 24.
[2] I. Trivedi, “The Indian in the Closet. New Delhi’s Wrong Turn on Gay Rights”, Foreign Aff. March/April 2014, vol. 93, (21) 23.
[3]Manu Smriti Chapter XI, verse 175.
[4]Manu Smriti Chapter XI, verse 174 and 213.
[5]P. S. Jagadish, “Mainstreaming Third-Gender Healers: The Changing Perception of South Asian Hijras”, VURJ 2013, vol. 9, (1) 1.
[6] S. Nanda, Neither Man nor Woman. The Hijras of India, New York, Wadsworth Publishing Company, 1999, ed. 2, 1, 119.
[7] Gujarat High Court 28 February 2014, X v. State of Gujarat, § 21.
[8] Supreme Court 11 December 2013, Suresh Kumar Koushal and Another v. Naz Foundation and Others, http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070, 82-83, § 42.
[9]Ibid. 78-79, § 40.
[10]Ibid. 83, § 43.
[11]Ibid. 91-92, § 51.
[12] Supreme Court 15 April 2014, National Legal Services Authority v. Union of India, http://supremecourtofindia.nic.in/outtoday/wc40012.pdf, 72-73, § 75.
[13]Ibid. 109-110, § 129.

Juvenile Justice Bill, 2014 Conceded A Necessity Rather Than A Popular Demand

Juvenile Justice BillThe Rajya Sabha passed the much awaited and contested Juvenile Justice Bill, 2014 on 22nd December 2015 after a public row post the release of the Juvenile convict in the Nirbhaya Gang rape case.

As per the new bill, Juveniles aged between 16- 18 years can now be tried as adults for heinous offences like rape and murder in the criminal courts. This bill will mandate the accused Juvenile to be presented before a Juvenile Justice Board to be comprised under the new bill. This board will decide whether to send the Juvenile for trial as an adult or send him to rehabilitation.

Ostensibly a necessity with the growing Juvenile Delinquency, the idea to pass the bill was somewhat conflicting with the views of those who believed that every Juvenile should be treated equally and that they are not mature enough to understand the gravity of the crime they commit and hence they should not be tried as adults.

When the latter group raises their voice to protect child rights and privileges, I believe we as a society need to ask ourselves who we want to protect, a criminal child properly planning and executing his/ her act or a victim child who commits the crime not knowing what he is doing. There are juvenile offenders like the former and the latter and the ones with the mind and knowledge of the former very well know that regardless of what they do they cannot be put through a trial for the crime they commit.

This bill will not put a juvenile directly into jail but will only enable the psychologists, doctors, social workers forming the Juvenile Justice Board to carefully yield the decision of whether the particular Juvenile offender needs to be tried as an adult or as any other Juvenile.

Are criminals born or are they made? I believe it is not the nature but the nurture what makes a criminal who he is. No one person is born depraved but it is his/ her surroundings, his peers, his family, his background what forces him to take such way.  A juvenile commits a crime in life because he is not able to understand the act he is doing and with the weak laws he starts believing that he can get free every time. With the kind of laws preceding the JJ Bill, 2014, every Juvenile would be sent to a Juvenile home regardless of the intentions, the reasons and the offender’s knowledge of his act. However, the JJ Bill, 2014 will enable the law to separate those who commit the crime knowing what they are doing and those juveniles will not be able to get away simply by raising the Juvenile Banner. It will depend upon the circumstances in each case.

The common argument raised is if a juvenile is old enough to rape he is old enough to suffer as an adult for it. I do not fully support this view because of the fact that sometimes these acts happen as a result of anger, hatred with a childlike mind or as a direct result of cumulative provocation. I agree that these cases do not demand a harsh punishment or treatment but when this is not the case, a deterrent needs to be there which will reduce the ever significantly increasing rates of Juvenile crimes.

The new law is only presuming that with time, growth and development of human species, a child can have the mental capacity for commitment of these heinous offences and even then he will have his fate decided by the Juvenile Justice Board.

India signed and ratified the UN Convention on the Rights of Child in 1992. The preamble of this convention expressly lays down the rights of the child such as the best environment for a child to grow, the importance of child protection, best interest of the child, recognising child participation. It has been said that JJ Bill, 2014 contravenes this convention as now juveniles can be treated differently. I don’t believe the 2014 bill violates the convention.

Article 3 of this convention states that, “In all actions concerning children, the best interests of the child shall be a primary consideration.” The new bill in no way violates this provision. I have mentioned it above and will not wary away from mentioning it again that the misconception regarding the fact that every juvenile between 16- 18 years of age will be sent to jail for committing a crime and that they will be tried as adults. The fact is they will only be liable to the decision of the Juvenile Justice Board, a board which will have people capable enough to determine as to the cause of why the child committed the crime and whether it was with a childlike mind or not.

India needs to think and realize that this is the need of the hour for the betterment of the society. The National Crime Rate Bureau (NCRB) clearly shows that there were 28,000 Juvenile offenders out of which 3,887 were offenders of heinous crimes. Research shows that after getting out of Juvenile homes today, these juveniles go onto commit even more sombre crimes. The question that we need to ask is who is responsible for it. Is it the bad condition of the Juvenile homes in rehabilitating the child? Or is it that these children think whatever they do, they will eventually evade the law? If not the former and nor the latter, we should ask ourselves what makes these children get involved into criminal activities in future after coming out of the juvenile homes.

Opposition raised the point that our country with this new bill will be taking revenge from young and innocent children. I fail to understand how the new bill does not protect our young and innocent children. It has at every instance carefully been designed to ensure fairness to the juvenile from separate jails to juvenile justice boards to child welfare committees etc.

I agree that Retribution is never a replacement for rehabilitation and I don’t know whether juvenile justice bill, 2014 can reduce the juvenile crime rates or not but from what the current scenario is we can’t and we shouldn’t just sit back and watch the developed juvenile delinquents who appropriately plan, execute, and commit a crime of which they can very well know the consequences and instead welcome the new law and hope for a better society!

 

Tushar Mahajan

3rd year at Jindal Global Law School, Sonipat

Enforcement of Foreign Decrees / Judgement in India

This Article aims to study in detail the enforceability of foreign Judgements/decrees passed by a foreign court and the scope of Sec. 13 of the Civil Procedure Code, 1908.

With the advent of globalization and with India poised as a major international and global player in the world economy, it is apposite to consider the law concerning enforcement of foreign judgments in India. In law, the enforcement of foreign judgments is the recognition and enforcement rendered in another (“foreign”) jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement. The “recognition” of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another “foreign” country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.

Recognition will be generally denied if the judgment is substantively incompatible with basic legal principles in the recognizing country.

However, the Code of Civil Procedure, 1908 has defined Foreign Court and Foreign Judgements as :-

Section 2 of the CPC, 1908

(5) “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;

(6) “foreign judgment” means the judgment of a foreign Court;

In other words, a foreign judgment means an adjudication by a foreign court on a matter before it.

ENFORCING FOREIGN JUDGMENTS IN INDIA

A foreign judgment can be enforced in India in one of two ways:

  1. Firstly by filing an Execution Petition under Section 44A of the CPC (in case the conditions specified therein are fulfilled).

In other words – Judgments from Courts in “reciprocating territories” can be enforced directly by filing before an Indian Court an Execution Decree.

  1. Secondly by filing a suit upon the foreign judgment /decree

In other words – Judgments from “non-reciprocating territories,” such as the United States, can be enforced only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment. The foreign judgment is considered evidentiary. The time limit to file such a law suit in India is within three years of the foreign judgment.

However, “reciprocating territory” is defined in explanation 1 to Section 44A of India’s Civil Procedure Code as:

Any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare as a reciprocating territory.”

 

The List of the Reciprocating Territories as per the Provisions of Section 44 A of the Code of Civil Procedure, 1908, is as under :

  1. United Kingdom
  2. Singapore
  3. Bangladesh
  4. UAE
  5. Malaysia
  6. Trinidad & Tobago
  7. New Zealand
  8. The Cook Islands (including Niue)and The Trust Territories of Western Samoa
  9. Hong Kong
  10. Papua and New Guinea
  11. Fiji
  12. Aden.

 

44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in [India] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

“The Supreme Court held in the case of Moloji Nar Singh Rao vs Shankar Saran AIR 1962 SC 1737 that a foreign judgment which does not arise from the order of a superior court of a reciprocating territory cannot be executed in India. It ruled that a fresh suit will have to be filed in India on the basis of the foreign judgement.”

Therefore Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating territory are executable as a decree passed by the domestic Court. In case the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India and a fresh suit will have to be filed in India on the basis of such a decree or judgment, which may be construed as a cause of action for the said suit. In the fresh suit, the said decree will be treated as another piece of evidence against the defendant.
However in both cases the decree has to pass the test of S. 13 CPC which specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.

Sections 13 and 14 enact a rule of res judicata in case of foreign judgments. These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court and will operate as res judicata between the parties thereto except in the cases mentioned in Section 13.

A foreign judgment may operate as res judicata except in the six cases specified in the section 13 and subject to the other conditions mentioned in Sec. 11 of C.P.C.

 

Sec. 13 of CPC, 1908:- When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of [India] in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained as opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in [India].

The awards and decrees of the Indian courts are sacrosanct. However, Section 13 of the Code of Civil Procedure 1908 (CPC) lays down that a foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except in few cases.

The operation of section 13 would be better appreciated by the following illustration:

 

“A sues B in a foreign court. If the suit is dismissed, the decision will operate as a bar to a fresh suit by A in India on the original cause of action, unless the decision is inoperative by reason of one or more of the circumstances specified. If a decree is passed in favour of A in the foreign court and A sues B on the judgment in India, B will be precluded from putting in issue the same matters that were directly and substantially in issue in the suit in the foreign court, unless the decision is once again inoperative for the said exceptions.”

 

  1. NOT PRONOUNCED BY A COURT OF COMPETENT JURISDICTION

 

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, AIR 1973 Mad. 141, it was alleged by the respondent that since he was not a subject of the foreign country, and that he had not submitted to the jurisdiction of the Foreign Court (Singapore Court), the decree could not be executed in India. The Appellant, in defense of this argument, stated that the Respondent was a partner of a firm which was doing business in Singapore and had instituted various suits in the Singapore Courts. Therefore, the Appellant argued, that the Respondent had accepted the Singapore Courts jurisdiction. The Court held that it was the firm which had accepted the jurisdiction of the foreign Court and the Respondent, in an individual capacity, had not accepted the jurisdiction. This was one of the reasons for which the High Court held that the decree against the Respondent was not executable.

The High Court in the above case had referred to a decision of the Madras High Court in the case of Ramanathan Chettiar v. Kalimuthu Pillai AIR 1914 Mad. 556, which lays down the circumstances when the foreign courts would have jurisdiction under this Section. The circumstances mentioned are as follows:

a)Where the person is a subject of the foreign country in which the judgment has been obtained                             against him on prior occasions. b) Where he is a resident in foreign country when the action is commenced. c) Where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later. d) Where the party on summons voluntarily appears e) Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained.

In the case of Oomer Hajee Ayoob Sait v. Thirunavukkarasu Pandaram, the Madras High Court while dealing with the issue of submission to jurisdiction held that mere conduct or circumstances indicative of intention to submit to the jurisdiction is enough to derive a conclusion of submission to jurisdiction. In the present case, during the pendency of the suit, plaintiff effected attachment before judgment of certain property of the defendant and the defendant by a letter acknowledged the attachment and requested merely for a concession, which was not a conditional request and when the offer is refused and the defendant remained ex parte and the suit was decreed, it was deemed that the defendant submitted to the jurisdiction of the foreign Court.

In the case of British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries Ltd. the Supreme Court held that even though the defendant had taken the plea of lack of jurisdiction before the trial Court but did not take the plea before the Appeal Court or in the Special Leave Petition before the Supreme Court, it amounted to submission to jurisdiction.

           PROPOSITION

 

By reading the aforesaid cases under Section 13(a) of CPC the following proposition may be laid:

 

In case of actions-in-personam, a Foreign Court may pass a decree or judgment against an Indian defendant, who is served with the summons but has chosen to remain ex parte. But the said judgment or decree may be enforceable against such a defendant in India, only if by fulfilling any of the following conditions it can be shown that the Foreign Court had jurisdiction upon the Indian defendant:

 

  • Where the person is a subject of the foreign country in which the judgment has been obtained against him on prior occasions.
  • Where he is a resident in foreign country when the action is commenced.
  • Where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later
  • Where the party on summons voluntarily appears
  • Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained

 

 

 

 

  • Not given on the merits of the case:

 

 

The fountainhead of all decisions under this head has been the decision of the Privy Council in the case of D.T. Keymer v. P. Viswanatham. In this case, a suit for money was brought in the English Courts against the defendant as partner of a certain firm, wherein the latter denied that he was a partner and also that any money was due. Thereupon the defendant was served with certain interrogatories to be answered. On his omission to answer them his defence was struck off and judgment entered for the plaintiff. When the judgment was sought to be enforced in India, the defendant raised the objection that the judgment had not been rendered on the merits of the case and hence was not conclusive under the meaning of S. 13(b) of CPC. The matter reached the Privy Council, where the Court held that since the defendant’s defence was struck down and it was treated as if the defendant had not defended the claim and the claim of the plaintiff was not investigated into, the decision was not conclusive in the meaning of S. 13(b) and therefore, could not be enforced in India.

In deciding International Woolen Mill’s case (supra), the Supreme Court of India also noted with approval the decision rendered by the Kerala High Court in the case of Govindan Asari Kesavan Asari v. Shankaran Asari Balakrishnan Asari AIR (1958) Ker. 203 wherein the Kerala High Court held as follows :-

(a) In construing section 13 of the CPC, the Indian Court has to be guided by the plain meaning of the word and expressions used in the section itself and not by other extraneous considerations. There is nothing in the section to suggest that the expression “judgment on the merits” has been used in contradistinction to a decision on a matter of form or by way of penalty.

(b) The section prescribes the conditions to be satisfied by a foreign judgment in order that it may be accepted by an Indian Court as conclusive between the parties thereto or between parties under whom they or any of them litigate under the same title. One such condition is that the judgment must have been given on the merits of the case.

“Whether the judgment is one on the merits, must be apparent from the judgment itself. It is not enough if there is a decree or a decision by the foreign court. In fact, the word “decree” does not find a place anywhere in the section.

What is required is that there must have been a judgment. What the nature of that judgment should be is also indicated by the opening portions of the section where it is stated that the judgment must have directly adjudicated upon the questions arising between the parties”.

(c) The Court must have applied its mind to that matter and must have considered the evidence made available to it in order that it may be said that there has been an adjudication upon the merits of the case. It cannot be said such a decision on the merits is possible only in cases where the defendant enters appearance and contests the plaintiff’s claim. Even where the defendant chooses to remain ex-parte and to keep out, it is possible for the plaintiff to adduce evidence in support of his claim and such evidence is generally insisted on by the Courts in India, so that the Court may give a decision on the merits of the plaintiff’s case after a due consideration of such evidence, instead of dispensing with such considerations and giving a decree merely on account of the default of appearance of the defendant.

     PROPOSITION

Under Section 13(b) of CPC the following proposition may be laid:

A judgment or decree passed by a Foreign Court against an Indian defendant, who has    chosen to remain ex-parte, may not be enforceable against him, until unless it can be shown that the said judgment was passed after investigation into, and leading of evidence on the plaintiff’s claim

 

 

  1. Where the judgment is passed disregarding the Indian Law or the International Law. –

 

      In the case of Panchapakesa Iyer v. K.N. Hussain Muhammad Rowther, the facts were that the foreign Court granted the probate of a will in the favour of the executors. The property was mostly under the jurisdiction of the foreign Court, but some of it was in India. A suit came to be filed by the wife of the testator against the executors for a claim of a share in the property. The suit of the widow was decreed and a part of it was satisfied. The remaining part the widow assigned in favour of the Plaintiff in the present suit. In the present suit the Plaintiff relied upon the foreign judgment for a claim against the defendants for a share in the property within the jurisdiction of the domestic Court. One of the defences which was taken for resisting the suit was that the widow’s claim was founded upon a breach of a law in force in India. The Court observed that

She made as the Learned Subordinate Judge has found in another part of his judgment, a claim which could not be entirely supported by the law of British India; but that is a different thing from founding a claim on a breach of the law in British India, for instance a claim in respect of a contract which is prohibited in British India.”

 

      Another issue which fell for the Courts consideration was that whether the foreign Court had decreed the suit on an incorrect view of International Law. In this regard the Court held that the foreign Court had adopted an incorrect view of International Law, since a foreign Court does not have jurisdiction over the immovable property situated in the other Country’s Court’s jurisdiction. Therefore the judgment was declared to be inconclusive and unenforceable in India.

 

PROPOSITION

       Under Section 13(c) of CPC the following proposition may be laid:

 

  • A judgment or decree passed by a foreign Court upon a claim for immovable property which is situate in the Indian territory may not be enforceable since it offends International Law.
  • A judgment or decree passed by the foreign Court to where before a contrary Indian law had been shown, but the Court had refused to recognise the law, then that Judgement or decree may not be enforceable. However if the proper law of contract is the foreign law then this may not be applicable. 

 

 

  1.  
  • Where the proceedings in which judgment was obtained are opposed to natural justice –  

 

  1.  
  2.  

In the case of Sankaran Govindan v. Lakshmi Bharathi, the Supreme Court while interpreting the scope of S. 13(d) and the expression “principles of natural justice” in the context of foreign judgments held as follows:

 

“… it merely relates to the alleged irregularities in procedure adopted by the adjudicating court and has nothing to do with the merits of the case. If the proceedings be in accordance with the practice of the foreign court but that practice is not in accordance with natural justice, this court will not allow it to be concluded by them. In other words, the courts are vigilant to see that the defendant had not been deprived of an opportunity to present his side of the case. … The wholesome maxim audi alterem partem is deemed to be universal, not merely of domestic application, and therefore, the only question is, whether the minors had an opportunity of contesting the proceeding in the English Court. If notices of the proceedings were served on their natural guardians, but they did not appear on behalf of the minors although they put in appearance in the proceedings in their personal capacity, what could the foreign court do except to appoint a court guardian for the minors.”

 

PROPOSITION

 

Under Section 13(d) of CPC the following proposition may be laid:

 

The Foreign Court which delivers the judgment or decree must be composed of impartial persons, must act fairly, without bias in good faith, and it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case, in order to avoid any allegation of not fulfilling the principles of natural justice in case the judgment or decree comes to the Indian court for enforcement. Unless this is done the judgment or decree passed by a foreign Court may be opposed to Principles of Natural Justice.

 

  • Where it has been obtained by fraud- In the case of Sankaran v. Lakshmi the Supreme Court held as follows:“In other words, though it is not permissible to show that the court was mistaken, it might be shown that it was misled. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely that on the merits, the decision was one which should not have been rendered but that it can be set aside if the Court was imposed upon or tricked into giving the judgment.” 
  • PROPOSITION 

 

           Under Section 13(e) of CPC the following proposition may be laid:

 

“In case the plaintiff misleads or lies to the Foreign court and the judgment is obtained on that basis, the said Judgment may not be enforceable, however if there is a mistake in the judgment then the Indian courts will not sit as an appeal Court to rectify the mistake”.

 

  1. Where it sustains a claim founded on a breach of any law in force in India –
  2. “It is argued that the Orissa Money Lender’s Act precludes a decree being passed for more than double the principal amount and in passing a decree, based on a claim which violates that rule, the English Court sustained a claim founded on the breach of a law in force in the State of Orissa. I am unable to accept the argument. The claim was not based on the law as prevailing in India at all. Rightly or wrongly, the plaintiffs alleged that the parties were governed not by the Indian law but the English Law. The English Court accepted that plea and were consequently not sustaining a claim based on any violation of the law in India. Suppose, that the defendant had submitted to the jurisdiction of the English Court and that Court passed a decree. Such a decree would by implication have decided that the defendant was bound by English Law and that the Orissa Money Lender’s Act did not apply. Such a decision would be binding from the international point of view and the point could not be further agitated in these Courts.”
  3. In the case of I&G Investment Trust v. Raja of Khalikote, it was held as follows:

 

PROPOSITION

             Under Section 13(f) of CPC the following proposition may be laid:

 

A judgment or a decree, passed by a foreign court, on a claim founded on a breach of any law in force in India may not be enforceable. However, in case it is based upon a contract having a different “proper law of the contract” then it may be enforced.

 

 

 

 

 

 

 

 

 

With the liberalization of Indian economy and the globalization of business activities, there is now almost a free flow of foreign capital/funds in India and similarly Indian companies are increasingly investing in foreign companies. Naturally, in many such international contracts, there are provisions for settlement of inter-se disputes through arbitration at International level or through the adjudication of disputes by the foreign courts. While routinely signing such international contracts may not be in vogue, but still many Indian companies assume that just like in India, litigation in foreign courts will also be protracted and time consuming and that somehow the Indian companies can stall the enforcement of decrees passed by the foreign Courts against Indian companies.

“Recently the Bombay High Court had rendered a judgment ordering admission of a winding up of an Indian company based on the decree passed by a foreign court”

 

The Bombay High Court has passed a judgment in China Shipping Development Co. Limited v. Lanyard Foods Limited (2007-77 SCL 197-Bom) wherein the High Court has held that a petition for winding up of an Indian company would be maintainable on the basis of judgment of foreign Court. In the above case before the Bombay High Court, the foreign company delivered cargo to the Indian company in compliance with requests made by the Indian company and in the process the foreign company had incurred certain liabilities towards third parties and it had to pay certain amount in legal proceedings and therefore, in terms of the letter of indemnity issued by the respondent Indian company, the foreign company claimed the amount from the respondent Indian company, which denied its liability and therefore the foreign petitioner company initiated legal proceedings against the Indian company in the English Courts as provided in the Letter of Indemnity. The respondent Indian company did not file defence and therefore the English Court passed ex-parte order awarding certain amount in favor of the petitioner foreign company and the foreign court’s order made it clear that the said order was passed on consideration of evidence and was a judgment granted on merits of the claim filed by the foreign company. By a notice issued under sections 433 and 434 of the Companies Act, 1956, the petitioner foreign company called upon the respondent Indian company to pay the amount due under the order of the English Court. As the respondent Indian company still did not pay the amount, the Petitioner foreign company filed a petition for winding up of the Indian company. In the above circumstances since the records of the case manifestly revealed that the respondent Indian company was unable to pay its debts, the petition for winding up was admitted vide order dated 4.4.2007 under sections 433 and 434 of the Companies Act, 1956.

 

 

Therefore the Analysis of the legal issues involved in enforcement of foreign decrees in India emphasizes the need for the Indian business sectors not to treat the summons received from foreign courts casually and enter appearance and make submissions against the plaint initiated in the foreign courts. Otherwise, to contend at a later stage that the foreign decision/decree is not based on “merit” and does not conform to the provisions of the Indian Civil Procedure Code, may turn out to be too much of a risk and may jeopardize the protective umbrella which the Indian companies are so accustomed to while dealing with litigations in Indian courts.                                                                                                                                    

                                                                                                                                            AASHISH. M DAFARIA

  CHENNAI LAW ASSOCIATES.

Homosexuality-the legal arguments against it

safder kazmi

377 IPC DOESN’T  VIOLATE THE PRINCIPLE OF EQUALITY ON THE BASIS OF SEX ENSHRINED IN ARTICLE 14 AND 15 OF THE CONSTITUTION OF INDIA.

Article 14 of the Constitution of India guarantees two rights that the State shall not deny:

  i.            Equality before the Law

ii.            Equal protection of laws within the territory of India.

The former would mean that irrespective of any discrimination, law has to be absolutely applicable in the same manner to all. This has been an adoption of rule of law in Britain, the theory propounded by A.V. Dicey.[1] And the latter, postulates the application of the same laws alike and without any discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances.[2] In order to violate the principle of equality enshrined in Article 14 of the Constitution of India, law has to discriminatory in nature in similar circumstances. However, § 377 by a bare perusal does not qualify to be in the arena of such violation because it is applicable only to whoever voluntarily commits the said offences. Section  377 is in conformity and is in furtherance of Article 14 as it is applicable on all without any remotest discrimination.

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transaction by the legislature for the purpose of achieving specific ends. Classification should be reasonable, should fulfil the following two tests:

i.        That the classification is founded on an intelligible differentia and

ii.      That differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. [3]          

In the light of preceding paragraph, it is noteworthy to bring to the light the fact that § 377, IPC has been incorporated in the statute as a curative and punitive provision in reference to sexual offences which are otherwise not included in any other section. Therefore, it can be rightfully interpreted as a residuary clause for crime related to sexual offences. Therefore, the provisions of § 375-§ 377 have to be read together and not separately if the true intention of the legislation has to be brought to light. Justice Parke has held that in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.[4]

Thus, while enacting this Section, did not intend to include consensual and private sex within the ambit of § 377, IPC. Justice Scalia has observed that consensual sodomy, like heterosexual intercourse, is rarely performed on stage.  If all the Court means by acting in private is on private premises, with the doors closed and windows covered, it is entirely unsurprising that evidence of enforcement would be hard to come by.  (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.)  Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a fundamental right, even though all other consensual sodomy was criminalized.[5]

Therefore a  statutory provision has to be interpreted in such way that the reasonableness is judged with reference objectives of legislation and not cosmetic moral considerations.[6]

 

LEGALIZING HOMOSEXUALITY BY STRIKING DOWN § 377 IPC TO SUCH EXTENT INFRINGES RIGHT TO HEALTH AS EMBODIED IN ARTICLE 21 OF THE CONSTITUTION.

A  grand step was taken by the Court by expanding the scope of Article 21 of the Constitution of India it argued that lifein Article 21 does not mean merely animal existence but living with human dignity.[7] Therefore, the act of homosexuality itself is animal like and does not reasonably qualify to be within the ambit of natural and legitimate acts. It has been scientifically proved on various occasions that it becomes a cause of severe health hazards, and it the duty of the State to protect individuals from such activities which might hazardous to their health and the health of the society.

The Federal Centres for Disease Control and Prevention (CDC) and other health agencies report a disturbing increase in high-risk sexual behaviours and substance abuse among some groups of MSM in recent years.[8] Media reports also confirm a trend in dangerous behaviours among MSM, such as:

i.            Bug chasing. Another disturbing phenomenon among some MSM involves HIV-negative MSM who actively seek HIV infection by engaging in high-risk sexual activities with infected male partners. A 2003 Rolling Stone article brought national attention to “bug-chasing,” which the article described as “an intricate underground world that has sprouted, driven almost completely by the Internet, in which men who want to be infected with HIV get together with those willing to infect them.”[9] Carlos, a “bug chaser” who claimed to have had several hundred sexual partners and said he regularly had sex with three or four HIV-positive men a week, told Rolling Stone, “I know what the risks are…But I think it turns the other guy on to know that I’m negative and that they’re bringing me into the brotherhood. That gets me off, too.” [10]

ii.            Physical Damage: Homosexual men who engage in anal sex are at a significantly high risk for numerous health problems. The high-risk nature of anal sex is simple: the rectum was not designed for sexual intercourse. According to amfAR, “compared to the vagina, rectal tissue is much more vulnerable to tearing during intercourse and the larger surface area of the rectum/colon provides more opportunity for viral penetration and infection.”[11]In her book, Epidemic, Dr. Meg Meeker, a pediatrician, writes: “The anus opens into the rectum…which is not as well suited for penile penetration as the female vagina is. Both the anus and the rectum have rich blood supplies, and their walls, thinner than the walls of the vagina, are easily damaged. When penetration occurs, it’s easier to tear the blood vessels, which in turn increase the risk of acquiring or receiving an infection…”[12]

iii.            Anal Cancer: Homosexual men are also at an increased risk for anal cancer. [13]According to the American Cancer Society, risk factors for anal cancer include: Human papilloma virus (HPV), which causes anal and/or genital warts; multiple sexual partners; and anal intercourse.[14] Due to concerns about anal cancer, some health professionals now recommend anal Pap Smears for MSM.[15]

iv.            STDs: Compared to heterosexual men, MSM are at an increased risk of contracting a number of dangerous STDs, including HIV/AIDS. According to the GLMA, these STDs include: “urethritis, proctitis, pharyngitis, prostatitis, hepatitis A and B, syphilis, gonorrhea, chlamydia, herpes, genital warts and HIV infection.”[16]

v.            HIV/AIDS: Despite efforts by gay activists to disassociate homosexuality from the spread of AIDS, homosexual behavior, particularly among males, is associated with an increased risk of HIV. Although HIV can be transmitted through both vaginal and anal intercourse, receptive anal sex without a condom is at least 10 times more risky for contracting HIV than vaginal sex without a condom, according to amfAR.[17]

the word ‘expression’ occurring in Article 19(1) (a) of the Constitution canNOT  be read disjunctively from the word ‘speech’ and HENCE CAN NOT  include expression of sexual orientation of a citizen

Article 19 (1) of the Constitution of India reads as follows:

(1) All citizens shall have the right:

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India…………

If the intention of the legislation was to read the two words disjunctively, then the same would have been separated while the Constitution was being drafted. The Hon’ble Supreme Court has held that the intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[18] Furthermore, the Hon’ble Supreme Court has also held that a construction which requires for its support addition or substitution of words or which result in rejection of words as meaningless has to be avoided completely.[19] It should be observed for better interpretation of this Article that the legislation has made a deliberate effort of using the word “And” in Article 19 (1) (a) and not “or” as it has been used in Article 19 (1) (c) and Article 19 (1) (g). Thereby, this means that “And” is a compulsive inclusion and its exclusion would change the meaning and destroy the essence of the Article.

The scope of Article 19 (1) (a) has rightfully been expressed by this Court that the right to express one’s conviction’s and opinions freely, by word of mouth, writing, printing, picture or in any other manner (addressed to the eyes or the ears). It includes the expression of one’s idea by any “visible representation”, such as by gestures or the like.[20] Therefore, that Sexual orientation cannot be legitimately interpreted to be within the purview of Article 19 (1) (a).

Relying on the above mentioned points, the words freedom of speech and expression have been written together and separating them for a wider interpretation would be absurd and unjust. In this regard, Jervis, C.J has rightfully held that ifthe precise words are plain and unambiguous, then the Court is bound to construe them in their ordinary sense, the failure of which will leadto absurdity or manifest injustice.[21] Thus, the intention of the legislation was to read the words together and therefore it would ultimately lead to manifest injustice if such a wide interpretation is taken.

The Constitution strikes a balance between individual liberty and social control. A Division Bench of the Hon’ble Delhi High  Court has held on the above mentioned balance by holding that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.[22]

sexual intercourse of the same sex is against such established and recognised norms of human behaviour that indulgence in it may justify curtailment of individual liberty by the State within parameters of a reasonable restriction on grounds of public decency or morality under Article 19(2).

India is a diverse nation having a rich and multi-cultural heritage accommodating a majority of the religions in the world.

Our Constitution guarantees in its Preamble that India is a secular state and thus, implying that the religious sentiments of all the cultures in this community are to be respected.[23]Secularism is a basic feature of the Constitution,[24] Rule of Law[25] and the Rule of Equity.[26] Therefore,a legislation cannot be made or amended which contravenes any of the said norms of any religious community existing in our country. Acts of homosexuality are condemned both in text and context by more than one religion being practiced in our country. The Srimad Bhaagvad Gita states that a Hindu marriage joins two individuals of opposite sex for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families. Furthermore, the Quran condemns homosexuality by stating that Of all the creatures in the world, will ye approach males, “And leave those whom Allah has created for you to be your mates? Nay, ye are a people transgressing“[27] and even prescribes a punishment for such acts.[28] Even the canon law prohibits such acts.

Therefore, reasonable restriction is imposed in order to prevent that religious sentiment from being hurt of any particular community. The Hon’ble  Delhi High Court has held that the words ‘reasonablerestriction’ corresponds to the societal norms of decency, e.g, respect of rights or reputation of others, protection of national security or of public order, or of public health or morals etc.[29]

In its judgement, the Hon’ble Punjab and Haryana High Court have referred to Lord Devlin to emphasize the need of morality in the society. The Hon’ble Court has said that Lord Devlin appears says that society has the right to enforce morality as such on the ground that a shared, morality is essential to society’s existence, it is not at all clear that for him the statement that immorality jeopardizes or weakens society is a statement of empirical fact. It seems sometimes to be an a priori assumption, and sometimes a necessary truth and a very odd one. The most important indication that this is so is that, apart from one vague reference to “history” showing that the loosening of moral bonds is often the first stage of disintegration, no evidence is produced to show that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society.[30]

The Supreme Court has held that if the Court finds on scrutiny, that the law has not overstepped the constitutional limitations, the court will have to uphold the law, whether it likes it or not.[31]Furthermore, the Hon’ble Supreme Court has even held that if a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to the other persons.[32]

Furthermore, the Hon’ble Supreme Court of the United States of America has held that the right to engage in homosexual acts is not deeply rooted in any country’s history and tradition.[33] American Courts have also held that countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority is belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.[34]In relevance to the instant matter, it has been held by that engaging in homosexual acts outside the scope of marriage is not protected by any constitutional mandate.[35]The Hon’ble Supreme Court of the United States of America has observed that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in validation of laws based on moral choices.[36]



[1]Wade and Phillips, Constitution and Administrative Law, 87 (1977)

[2]Mohd. Shaheb Mahboob v. Dy. Custodian, AIR 1961 SC 1657

[3]Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 487

[4] Becke v Smith (1836) 2 M&W 195

[5]Lawrence v. Texas, 539 U.S. 558 (2003)

[6] R.K. Garg v. Union of India, (1981) 4 SCC 675

[7]Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

[8]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[9]Freeman, Geoffery, “Bug Chasers: The men who long to be HIV+,” Rolling  Stone magazine, February 6, 2003.

[10]Ibid

[11]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[12]Meeker, Meg, MD, “High-Risk Sex,” Epidemic: How Teen Sex is Killing Our Kids, Regnery Publishing, Washington, DC: 2002, pgs. 152.

[13]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.111.

[14]American Cancer Society, “What are the risks of anal cancer,” All About Anal Cancer, www.cancer.org.

[15]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.120.

[16] Ibid

[17]amfAR, “HIV Prevention for Men Who Have Sex With Men,” Issue Brief  #4, June 2006, pgs. 1-2.

[18] Gwalior Rayon Silk Mfg. Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747

[19] Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678

[20]Romesh Thapar v. State of Madras, (1950) SCR 594

[21] Abley v. Gale, 20 L.J.C.P (N.S) 233 (1851); Arul Nadar v. Authorised officer, Land Reforms, (1998)7SCC 57

[22]A.K. Gopalan v. State of Madras, (1950) SCR 88 (253-54)

[23] See The Preamble, The Constitution of India, 1950

[24]Shri Adi Visheshwara of Kashi Vishwa Nath Temple, Varanasi v. State of U.P, (1997) 4 SCC 606

[25]High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patel, (1997) 6 SCC 379

[26]Indira Sawhney v. Union of India, (2000) 1 SCC 168

[27] Qur’an (26:165-166)

[28] Qur’an (4:16) – “If two men among you are guilty of lewdness, punish them both.

[29]Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346

[30] Kailash Alias Kala v State of Haryana, 2004 CriLJ 310

[31] Anwar v. State of J&K, AUR 1971 SC 337(388); Arunachal v. Khudiram, (1994) Supp (1) 615, para 75

[32]Chiranjit Lal v. Union of India, (1950) SCR 869; State of Bombay v. Balsara, (1951) SCR 682 (708-09)

[33]See Bowers v.  Hardwick, 478 U. S. 186(1986)

[34]Williams v.  Pryor, 240 F. 3d 944, 949 (CA11 2001)

[35] Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999)

[36]Supra Note 14

Examination of Section 66A of the Information Technology Act

Technology changes the dimension of the society. Obscenity in electronic form, morphing  of images, defamation, text bullying, stalking, spamming, unsolicited emails, criminal intimidation, extortion, public mischief, insult, threat to cause injury have penetrated in this modern society with the help of cyber technology. Under this back drop the legislative body incorporated section 66 A under the Information Technology Act. The Information Technology Act, 2000 was amended in 2008. The amended Act which received the assent of the President on February 5, 2009, contains section 66A.

Section 66 A of the Information Technology Act, 2000 runs as under:

“66A. Punishment for sending offensive messages through communication device, etc.-Any person who sends, by means of a computer resource or a communication device,—

(a)    any information that is grossly offensive or has menacing character; or

(b)    any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c)     any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation.— For the purpose of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.”

 

Area of controversy:

Free speech is the life blood of a democracy. Now the free speech is becoming un-free due to vague section in Information Technology Act.  Section 66 (A) provides for a jail term of up to three years for anyone who uses a computer or any other communication device to send information that is grossly offensive, menacing’, causes annoyance or hatred. Section 66(A) fails to define the term grossly offensive and annoyance. Under the banner of the word grossly offensive and causes annoyance police can arrest any person because it gives the police unfetter power to arrest anyone in this modern technological age. It is very true that the mental ability of tolerance and annoyance differ person to person, place to place and time to time. Different persons with different mental structure have their different level of annoyance.An April Fool joke ca not also get exemption under Section 66A of the Information Technology Act.

Under this purview it can be said that Section 66 is vague and hence violative of Art 14 of the Constitution. Unfetter power of the police affects the very right of freedom of speech and expression under Article 19(1)(a) of the Constitution. Threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc. are listed in Article 19(2) as grounds to limit freedom but not the matter of grossly offensive and annoyance, menacing character or causing inconvenience, danger, obstruction or insult. Right to life and personal liberty is a guaranteed right under Article 21 of the Constitution and by the virtue of the Section 66A the police gets the unfetter power to arrest any person to consider a tweet or blog ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’, is also a great threat to Article 21.

 

Conclusion:

From the above noted observation it can be said that Section 66A of the Information Technology Act is in conflict with Article 14,19(1)(a) and 21 of the Constitution as because Section 66A  absolutely  provides the police with the power to arrest any person under the banner of the word ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’ after considering  e-mails, SMSes, blog, vblog, tweets, image, sound(VoIP). It is the need of the hour to amend this draconian section of the Information Technology Act.

Crime & Punishment

CRIME on the OFFENCE JUSTICE on the DEFENCE

India, no doubt, is a great country. It has a great system of criminal jurisprudence in which an individual/group has a right to commit a crime, heinous included, to run away from the scene of crime and, if caught, the right to claim he is innocent. This exactly is what we call ”choriaurseenazori”.

There are a few instances in which people in the heat of moment have committed crime, even of murder, and then they have voluntarily surrendered before police or courts confessing their crime, even before the police had actually got a whiff of it. At the same time, they have their unchallenged inherent right to resile from their confessional statements in the heat of moment and to claim innocent denying their confession.

Our law also provides alibis and chances to prove themselves juvenile, under the influence of intoxication, depression, provocation or other mitigating circumstances to prove their innocence or seek punishment lesser stringent than the extent of their crime due under the law.

Even when a case of murder is proved against a person, he can be sentenced to capital punishment only, as the Supreme Court has decreed, if the case falls in the category of ”rarest of the rare” in the opinion of the concerned learned court.
On the one hand, we all – the executive, the legislature, the judiciary, the media and the people – are one in the need for dispensing quick justice to the victims of the heinous crime of rape and on the other, our courts are showing leniency and consideration to the accused. The latest is the case in which the Supreme Court (SC) on January 29, 2013 ruled that the man who had raped his minor daughter and killed her and his wife and who had been sentenced to death, need not be sent to the gallows ”as the crime did not fall under the rarest of rare cases”. The SC further said that ”his reformation is not foreclosed in this case.”

An SC double bench set aside the death sentence, awarded by trial court and upheld by the Punjab and Haryana High Court, saying that the convict was feeling frustrated because of the attitude of his wife and children.

The history of the conduct of the convict Mohinder Singh speaks otherwise and does not inspire confidence that ”his reformation is not foreclosed”. He committed the crime while on parole from jail where he was undergoing a 12-year sentence for raping his 12-year-old daughter. In January 2005, he came out on parole and killed his wife who was a witness to the rape, and the daughter he had raped.

A father raping his daughter and killing her and his wife, a witness to the crime, needless to say, is not a daily routine but a rarest of the rare heinous crimes in India. That the convict was ”feeling frustrated because of the attitude of his wife and children” does not mitigate the intensity of his crime. On the contrary, it only shows that the father did not appear to be ashamed and repentant for the sin he committed and instead wanted his wife and daughter to be a conspirator in his crime and save him by telling a lie in the court. His conduct during his parole itself belies the hope that ”his reformation is not foreclosed in this case”.

Juvenile hardcore criminal
No less astonishing is the report that the ”most brutal” accused in the gang-rape and killing of a paramedical student Nirbhaya in New Delhi last month has been declared a ”minor” by the Juvenile Justice Board on January 29 on the basis of the date of birth on his school certificate and ordered his trial under the Juvenile Justice (Care and Protection of Children) Act. The Board also rejected the plea of the Police for bone certification test of the accused to determine his age.

This suspicion got further strengthened by a Times of India story which on February 01 quoted the mother of the accused who claims to be juvenile saying: ”I have no idea regarding either the day or date of admission. I just went to the school and told the teacher that this is my child, he is five years of age, write down his name. They started teaching him after that.” And yet our Juvenile Justice Board has blind faith in the school certificate that shows the age of the accused.

The decision based on ”school certificate” is open to question because everyone knows that in India, for various reasons, parents of children have been getting birth certificates of their children showing an age less than the actual one. The ”bone certification” would have been more scientific and reliable.

It is ironic that a person who allegedly committed one of the most heinous crimes, which even a hardened criminal would have dreaded to perform, should be dispensed Care and Protection reserved for juveniles. We need to distinguish between juvenile delinquency and juvenile crime. Juveniles have been dispensed care and protection because their crime was not heinous but could be considered a delinquency like a child playing with a knife accidently killing another child or pushing a fellow child without realizing that his act could cost a life or a child playing with fire incidentally causing a great inferno resulting in huge loss of life and property. These may be crimes but seem to have been inadvertently committed with no set motive. But that is not the case of this juvenile accused in Nirbhaya gang-rape and murder. One has to go by the enormity of the heinous crime and not by the age of the culprit.

This gives another indication of the kind of justice and the criminal jurisprudence we have. This stands in the way of justice. It fails to punish the culprit because it itself raises many ifs and buts in the smooth way of handing out punishment to the person guilty of a crime. The loopholes in the justice system only help the accused and not the innocent and the aggrieved in his quest for justice.

Justice should not only be dispensed but also appear to have been dispensed. It is absence of this scenario that is prompting people to take law into their own hands and dispense justice themselves there and then.
The writer is a Delhi based political analyst and commentator.

“TIME IS OF THE ESSENCE” CLAUSE IN COMMERCIAL CONTRACTS IN INDIA

Commercial Contracts in India more often than not contain a clause of “Time is the essence of the Contract”. This clause becomes imperative considering the fact that sometimes the transactions are of enormous value and any kind of delays on the part of one party can entail very large amounts of losses for the other. The consequences of delay are different depending on whether time is of the essence and when it is not.

Garner’s Dictionary of Modern Legal Usage defines the phrase “time is of essence” in the following words: “When a contract stipulation relating to the time of performance is ‘of the essence’ of a contract, a party’s failure to meet that stipulation automatically justifies the other party’s rescinding the contract—no matter how trivial the failure.” A time-of-essence provision is a powerful weapon, since it can give an otherwise minor delay the legal effect of a material breach of contract.

In India, the provision relating to “time as the essence of contract” is contained in Section 55 of the Indian Contract Act, 1872. Stating simply, the Section provides that if something is promised to be done at a specified time and the same is not performed, the contract becomes voidable at the option of the promise if it was the intention of the parties that time should be of the essence of the contract. Further, the section provides that if it was not the intention of parties to make time of the essence, the promisee is entitled to claim compensation for any loss caused by the default. Finally, the section goes on to say that if time is intended to be of the essence by the parties but performance is accepted on some other time, compensation cannot be claimed by the promise unless he gives such a notice to the promisor.

Intention of the parties

In Indian law the question whether or not time is of the essence of the contract would essentially be a question of the intention of the parties which are to be gathered from the terms of the contract. An express stipulation in this matter cannot be a conclusive determination of the intention of the parties. If the contract in its terms provides that time is the essence of the contract, but other terms of the agreement show that the parties did not intend time to be of the essence, the court has held that time is not of the essence. The intention of the parties can be ascertained from:
(a) The express words used in the contract;
(b) The nature of the contract itself;
(c) The nature of the property which forms the subject matter of the contract;
(d) The surrounding circumstances.
It has been held in the case of China Cotton Exporters v. BeharilalRamcharan Cotton Mills Ltd .that in commercial contracts time is ordinarily of the essence of the contract. The rule is that except in commercial contracts, the ordinary presumption is that time is not of the essence of the contract. This presumption can be rebutted by showing the intention of the parties. Time is presumed not to be of essence in contracts relating to immovable property , but of essence in contracts of renewal of leases . At common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed as conditions precedent. The onus to plead and prove that time is of essence of the contract is on the person alleging it, thus giving opportunity to the other party to adduce rebuttal evidence that time was not of essence. Where both the parties are engaged in business and articles are purchased by one party from the other party for business purposes the transaction falls within the term ‘mercantile transaction. ’

Stipulations in the Contract and their consequence

In order to ascertain whether time was intended to be of the essence or not, the terms and conditions of the agreement should be carefully read . If the parties intend to make time of essence, they must express this intention in clear and unambiguous terms. If no time is specified, the question of time being of the essence does not arise at all. However, merely specifying the time at which the contract has to be performed does not make time the essence of the contract. If the contract provides that in case of delay by any party the contact would be held to be cancelled, it raises a strong evidence towards the parties intending the time to be of the essence.

An express stipulation, however, is not a conclusive proof of time being of the essence of the contract. Even where the parties have expressly provided that time is of the essence of the contract, such a stipulation will have to be read along with the other provisions of the contract. It is pertinent to note the case of Hind Construction Contractors v. State of Maharashtra to further elucidate this point. The Appellant entered into a contract with the respondent on July 2, 1955 for the execution of a work with the condition that contract should be completed in 12 months from the commencement of the work. The Appellant could not complete the work within the stipulated time and the Respondent rescinded the said contract with effect from August 16, 1956. The Appellant contended that time was not of the essence and further on account of several difficulties, such as excessive rains, lack of proper road and means of approach to the site, the completion was delayed. The Supreme Court, in deciding that time was not of the essence in relied on two clauses in the contract. First, there was a power to grant extension of time on reasonable grounds on an application by the contractor/appellant. Second, there was a provision to recover penalty/compensation from the appellant at specified rates during the time the work remains unfinished. These two provisions, as per the court, exclude the inference that time was intended to be of the essence of the contract.

Time, when it is not of the essence, can be subsequently made so, by notice by the party not in default. The notice must, however, contain clear stipulation that it wants to make time of the essence, with express provision or necessary implication. Any such notice ought to fix a reasonably long time requiring the other side to perform his part of the contract. In the notice for making time of the essence of the contract, the party can be intimated that in default of compliance with the requisition, the contract will be treated as cancelled. The party who serves such a notice must himself be bound by it.

Extension of time

Since one party to the contract cannot unilaterally alter or vary the terms thereof he also cannot extend the time thereof without the other party’s intimating its consent or agreement thereto by any of the methods stated in section 4 of the Contract Act. Therefore, time for performance can be extended only by an agreement arrived at between the promisor and promisee. A mere extension of time and nothing more is only a waiver to the extent of substituting the extended time for the original time and not an utter destruction of the essential character of time. Where one party intimated to the other about the extension of time, but the other party did not communicate any acceptance, time for performance was not extended.

When time is not of the essence

Time is not of the essence where the contract provides for damages for delayed completion, or for extension of time in certain circumstances, despite express provision making time of the essence, or provision of a default clause. These provisions are inconsistent with the intention to make time of essence. Time was not of essence where the time for performance was extended twice and the object of a purchase was not a commercial undertaking.

Time is not of the essence when the contract did not specify a date for the completion, but merely provided for completion to take place as soon as reasonably expected. A party’s general right to have the contract performed within reasonable time is unaffected by the fact of time not being of the essence. Time was held to be not of essence where in a contract for import and supply of sugar, the port of discharge had not been named and the surveyor not been appointed without whose certificate the question of payment did not arise.

Acceptance after the specified time and Waiver

When a party waives his right by taking benefit under a contract after the fixed time, he cannot rely on time being of the essence of the contract in order to avoid a contract. A claim for compensation under this section would be barred, if the promisee accepts performance after stipulated time unless he had given notice to the promisor of his intention to do so. In the case of State of Kerala v. M.A Mathai , it was held that if there are any delays in the performance of reciprocal obligations by an employer, the contractor gets the right to avoid the contract but if he does not avoid the contract and accepts the belated performance, he cannot claim compensation for any loss sustained to him due to delay in performance, unless he gives a notice of the same to the delaying party.
CONCLUSION
From the above analysis of the concept of time as the essence of the contract, in light of the provisions of the Indian Contract Act, it may be concluded that the question as to whether time is of the essence of the contract or not, can only be answered by looking at the intention of the parties. Clauses such as extension of time and imposition of liquidated damages or penalty etc. may go against the intention of the parties to make time of the essence since the parties find an adequate remedy in the way of penalty or LD. It may also be concluded that in case of a commercial or mercantile contract, time is presumed to be of the essence.

INDIA’S TOP10 LAW INSTITUTES 2012

If you want to join India’s best law schools but have no information about schools, people are misguiding you, then get over your confusion. Gone are the days when you used to ask about best law schools in India from here and there, now you can get information by a click of the button. Here is the list of India’s Top 10 Law schools:

  1.  National Law School of India University

CITY: Bangalore

A large number of retired judges of the Supreme Court and High Courts as well as senior advocates have offered to assist the NLSIU in its teaching and research programmes making education at NLSIU a rare and exciting experience to students

2. Campus Law Centre, Delhi University

CITY: New Delhi

The Faculty of Law was established in 1924 and was initially housed in the Prince’s Pavilion in the Old Viceregal Lodge Grounds. In 1963, the faculty moved to its present location at the Chhatra Marg, University of Delhi

3. National Academy of Legal Studies and Research University

CITY: Hyderabad

NALSAR University of Law, Hyderabad, is a residential university established in 1998 under the National Academy of Legal Studies and Research University Act (Andhra Pradesh Act 34 of 1998) of the Andhra Pradesh State Legislature

4. Symbiosis Society’s Law College

CITY: Pune

Symbiosis conducts two 5-year integrated law courses, a BA LLB course covering Arts subjects with Law and the second is a BBA LLB course which covers Management and Business subjects with Law

5.National Law Institute University

CITY: Bhopal

The National Law Institute University has earned frontline status of an institution imparting quality legal education, conducting research in cutting edge areas of law and organising workshops, seminars and training programmes

6.National Law Institute University

CITY: Jodhpur

The National Law Institute University has earned a frontline status of an institution imparting quality legal education, conducting research in cutting edge areas of law and organising workshops, seminars and training programmes.

7.The WB National University of Juridical Sciences

CITY: Kolkata

The West Bengal National University of Juridical Sciences was established under the WBNUJS Act, 1999 (West Bengal Act IX of 1999) adopted by the West Bengal Legislature in July 1999.

8.Faculty of Law, Aligarh Muslim University

CITY: Aligarh

The Faculty of Law of AMU is one of the oldest law colleges in the country

9. Gujarat National Law University

CITY: Gadhinagar

Gujarat National Law University is the statutory university established by the Government of Gujarat National Law University Act, 2003. The University is recognised by the Bar Council of India and University Grants Commission

1o.ILS Law College

CITY: Pune

The Indian Law Society was established in 1923 as a public charitable trust registered under the Societies Registration Act. The Indian Law Society established the Law College in 1924, which has since then established itself as a premier institute for legal studies in India. In 2004, the ILS Law College was accredited the A+ level by NAAC.

 

 

LIVE-IN RELATIONSHIP AMONG HINDUS: REINCARNATION OF MARRIAGE

Nitansh rai, Sukant singh rawat

live-in relationshipSignificance of Marriage

“Let There Be Faithfulness To Each Other Until Death. This, In Short, Should Be Known As The Highest Duty Of Husband And Wife. So Let Husband And Wife Ever Strive Doing All Their Duties; That They May Not Be Separated From Each Other, Wander Apart.

-Manu Dharma Shastra

9.101-2.Sd, 161

Centuries ago, civilized societies recognized and acknowledged the most basic instincts of all – i.e., the need for companionship – and founded an honorable institution known as marriage. Hindu ancestors set out some guidelines to make sure that the institution is a permanent one capable of not only bringing happiness to two young people but also providing a delicate balance so that the family enjoys the fullness of life within the framework of what they called Dharma, the Hindu code of right conduct

This may sound like a newly discovered concept by modern psychologists but an ancient Hindu prince known as Yudhishtira revealed this “secret” about 4000 years ago. In an episode known as YakshaPrashna in the AranyaParva of the great epic, the Mahabharata. One of the questions theYaksha asked Yudhishtira was

“kimsvinmitramgrhesatah?” i.e. who is the friend of a householder?

To which the prince answered

“bhaaryaamitramgrhesatah,” i.e., the friend of a householder is his spouse.

 

“The Wife Is Half The Man

The Best Of Friend,

The Root Of The Three End Of Life,

And Of All That Will Help Him In The Other World

With A Wife A Man Does Mighty Dees

With A Wife A Man Find Courage

A Wife Is The Safest Refuge……………………..”

 

According to Hindus, therefore, the basis for marriage is friendship and such friendship is the understanding, the promise and the commitment that unites a man and a woman. With such authority, there is then no question about the role of a woman, her importance, her position in this equation that binds them together.

According to Hinduism, marriage between two souls is a very sacred affair that stretches beyond one life-time and may continue up toat least seven lives. According to Manu, the daughter is given in marriage only once and she remains wife of that person to whom she is given in marriage, for her whole life. Thus, the Hindu Marriage connotes the idea of permanence. Permanence is attributed to the Hindu marriage by the fact that it is essentially a sacrament, a Hindu Marriage is said to be a sacrament because the marital relation between the spouse are created not on account of any contract between the two but by virtue of a gift of the girl by her father to the bride-groom. The gift is holy and accompanied with the religious ceremony of saptapadi. Because, in the ceremony of saptapadi the bride and the groom hold hands and take seven steps together as husband and wife as they walk around Agni, the God of fire and pledge to each other their eternal friendship. Marriage is a religious injunction intended to fulfill religious duties and to achieve the higher ends of life, namely, dharma, artha, kama, and moksha. Marriage is essential because all the religious ceremonies and rites are to be performed by a Hindu in the companionship of his wife, otherwise they will not bear any fruit . Procreation of male offspring is one of the reasons behind marriage. Male issue was prized for it helped a Hindu to pay off pitririn, i.e. debt to his father. Also a Hindu achieves moksha only when upon his death his funeral rites are performed by his son. Thus, the Vedas declare “Endless are the world of those who have sons, there is no place for the man who is destitute of male offspring”

 

Evolution Of Live-In Relationship In India

India is a country, which is slowly opening its doors for western ideas and lifestyles and one of the most crucial episodes amongst it, is the concept of Live-in relationships. In ancient India, though the marriage was a general norm, the Hindu scriptures describe and admit the existence of premarital relationships as well. According to Manu, premarital relationships existed both in the Vedic period and afterwards, but was a rare occurrence . This concept of live-in relationship is not new in India; in ancient times it was known as maitri-karar in which a written agreement was made between the two opposite sex that they would live together as friends and look after each other.

Also, Gandharva marriage, i.e. one of the eight Hindu marriages, has incidents which are quite similar to that found in a live-in relationship . The concept of live-in-relationship is defined neither in dictionary nor in law. Live-in-relationship means a woman living with a man as husband and wife for a reasonable period, without marrying him. These relationships are called and stigmatized as socially ambiguous and sexually exploitative relationships.

“Married in haste, we repent at leisure”. The above line by William Congreve truly defines the mentality of the live in couples. The hectic lives of the metros don’t leave time for nurturing a family in its true sense. Now a days people are becoming more and more individualistic and career oriented. They spend less time at home and more time in offices.With more and more women going out for work, the nurturer of the family is not giving enough time for family and children. So actually why is there the need to go into marital bonding and forsake one’s liberty? Everyone likes a life free of tensions and responsibility. After working fornight shifts who want to get up early the next day to prepare children’s tiffin and make ready them for school? Whenever one thinks about live-in relationships the first question which comes in mind is, why couples believe in having such a relationship instead of legally, religiously and socially sanctioned marriage? There may be many answers to it such as-

1. Lifestyle:- In olden times, the lifestyle of an average Indian was such that a boy and a girl did not get much opportunity to interact with each other. Thus, the possibility of them entering into a live-in relationship was negligible. But today, a girl and a boy, either in an educational institution, or a workplace, or pub, a discotheque, etc., get ample opportunity to know and spend time with each other. This boosts the chances of them to enter into a live-in relationship.

2. Age of Marriage: – Earlier, the average age of marriage among Indians was quite low. A person was married at a very tender age and, therefore, there was really no chance for him/her to enter into a live-in relationship. But today, with the gradual increase in the age of marriage, there is abundant opportunity for a person to live-in.

3. Economic Independence: – Youngsters, especially in urban areas, are becoming more and more economically independent. Thus, there dependence on their respective families has considerably reduced, which in turn allows them to ignore the diktats of their families regarding their personal lives.

4. Away from home: – Many people, either for the purpose of education, job, etc., live away from their homes. Thus, they are not subject to the immediate control of their families. Also, the rent and other expenses in an urban area are quite unaffordable, which, if shared with someone, becomes bearable. These circumstances encourage the youngsters to enter into a live-in relationship.

5. Urbanization: – In the rural areas, every person is subject to strict social control; his conduct is always under the scrutiny of the fellow villagers. But as far as cities are concerned, there is no such control as no one is interested in the personal life of a person. Thus, there is ample freedom for a person to live as he likes.

6. Course, they cannot marry each other due to social hurdles. This is true in the case of a couple belonging to different religions, castes or classes, marriage between whom is still not approved by the society at large.

 

Legalization Of Live-In Relationship In India

At present there is no special law in India to deal with the concept of live-in relationships and its legality. However, the Courts in India, through their decisions in various cases, have laid down the law in respect of such relationships. Some of the landmark decisions of the courts in this regard are:-

 

1. Premarital sex and live-in not an offence:- The Fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law. In Payal Sharma v. Superintendent, Nari Niketan Kandari Vihar The Allahabad High Court has held that a lady of the age of majority has a right to go anywhere she wants and that both men and women can live together even without getting married. In Patel and others case , the Supreme Court of India held that live-in relation between two adults without a formal marriage cannot be construed as an offence. This stand was reiterated by the Supreme Court in the case Khushboo v. Kaniammal and another .

2. Presumption of Marriage: – Section 114, Indian Evidence Act, 1872, lays down that where independent evidence of solemnization of marriage is not available, it will be presumed to be a valid marriage by continuous cohabitation between the parties unless the contrary is proved. In Gokal v. Parvin , the Supreme Court held that continuous prolonged cohabitation raises a presumption in favour of marriage, and against concubinage.

3. Legitimacy of Children: – A necessary corollary of making a presumption in favour of a marriage is the presumption of legitimacy of child born out of such relationship.

In Radhika v. State of Madhya Pradesh it was held that in the case of a live-in relationship, not only does the law presume in favour of a valid marriage, but also it deems the child born out of such a relationship to be legitimate. The Court also held that such children will have the rights in their parent’s property.

The same approach was adopted by the Supreme Court in a recently delivered judgment in the case of Veluswamy v, D. patchiammal .

4. Maintenance: – The courts have also conferred to a woman in a live-in relationship the right to claim maintenance.

In Abhijit Bhikaseth Auti v. State of Maharashtra and others , the Supreme Court also observe that it is not necessary for woman to claim maintenance under section 125 of the Code of Criminal Procedure, 1973. A woman in a live-in relationship may also claim maintenance.

5. Application of the Domestic Violence Act, 2005:- The Domestic Violence Act is an Act enacted with the object of protecting women against Domestic Violence. The effect of Section 2(f) of the Act is that it brings within its ambit even the violence caused under a live-in relationship.

 

It is proposed that if a woman has been in a live-in-relationship for a reasonable period, she should enjoy the legal rights of the wife . The Committee also recommended the amendment of the definition of wife under Section 125 of the Cr.P.C (Code Of Criminal Procedure, 1973) so that a woman live-in-relationship can get the status of a wife. .

Reincarnation of Marriage

The judgments mentioned above had caused great furore and were subjected to severe public anger, they were seen as a step to demolish the culture and tradition of India and to encourage the western concept of live-in relationship. But few do realize that these judgments have acted not as an incentive to live-in relationship, but as a discouraging factor. An analysis shows that the characteristics of live-in relationship which attracts people towards it are lack of responsibility, freedom and lack of commitment. But the judgments of the courts in India have attached several responsibilities to the said relationship in the form of maintenance, presumption of marriage, legitimacy of children, etc. Thus, the legalization of live-in relationship defeats the very reason for which most urban and financially independent individual, especially youngsters of modern society, opt this as opposed to the institution of marriage. Attributing the incidents and consequences of marriage to live-in relationship, brings it ALMOST at par with marriage. Now, why would an ordinary prudent man opt for a live-in relationship, which is almost similar to marriage? He would rather go for marriage itself which involves stability, certainty and social recognition.

Thus, the courts in India, by their various landmark judgments, have re-instituted the institution of marriage. The live-in relationship in India has, to a considerable extent, become marriage with a different face.

Conclusion

“Chains do not hold a marriage together. It is threads, hundreds of tiny threads which sew people together through the years”.

Simone Signoret Need for the institution of marriage is inherent in every man. This fact is evident from the fact that the institution of marriage has evolved and is in existence in almost every civilized country. This need for marriage is rooted in the man’s urge for certainty and for achieving stability in life. Such stability and certainty can be achieved only through marriage. Therefore, whenever a new kind of relationship between a man and woman is innovated, it is bound to acquire the form and the traits of marriage. Same has been the case with live-in relationship; initially, it started of as something different from marriage, but gradually it has imbibed almost all the characteristics of a marriage.

IMPLEMENTATION AND ENFORCEMENT OF RIGHT TO EDUCATION IN INDIA’

NEERAJ GAHLAWAT

Introduction

Illiteracy is our sin and shame and must be liquidated.

By Mahatma Gandhi

Education has an immense impact on the human society. One can safely assume that a person is not in the proper sense till he is educated. It trains the human mind to think and take the right decision. In other words, man becomes a rational animal when he is educated.

It is through education that knowledge and information is received and spread throughout the world. An uneducated person cannot read and write and hence he is closed to all the knowledge and wisdom he can gain through books and other mediums. In other words, he is shut off from the outside world. In contrast, an educated man lives in a room with all its windows open towards outside world. Without education, a man is so circumstanced he know not how to make best of himself. Therefore, for him the purpose of society is ab-initio frustrated.

Education is powerful because without it, early civilizations would have struggled to survive and thrive as a culture. It is important that adults trained the young of their society in the knowledge and skills they would need to master and eventually pass on. It is universally accepted that education empowers the people for the full development of human personality, strengthens the respect for human rights, and helps to overcome exploitations and traditional inequalities of caste, class and gender.

Without knowledge you can’t be informed nor can you truly understand the meaning of many topics. It is important to have knowledge, so you can pass your knowledge to the next generation. Education is important because it equips us with all that is needed to make our dreams come true. Education opens doors of brilliant career opportunities. It fetches better prospects in career and growth. It is a preparation for living in a better way in future with an ability to participate successfully in the modern economy and society. Education is empowerment for socio-economic mobility, an instrument for reducing socio-economic inequalities, and equipment to trigger growth and development.It is through education that knowledge and information is received and spread throughout the world.

There has been a paradigm shift in this sphere: from education as a transcendental and value to education to cost recovery system. The feature such as commodification of education, private sector’s dominance in higher education, and market-driven education flowing from world trade law stand juxtaposed to the fact that largest pool of illiterates is in India and high dropouts of students even at primary level here is owing to economic reasons. The linkage of right to education to right to dignified life, equality, freedom and cultural and minority right has made it highly intricate and the extent of regulations relating to it from different perspectives, quite complex.

The right to education originates from the apparent motion that it obligatory for the state to provide education to its citizens. The core of the right to education relates to its substance, which differs from education itself. Effective and transformative education should be the result of the exercise of the right toeducation, which is a universal human right. The right is about the entitlement to claim the substance of it; it relates to the possibility of demanding the right to education and making it justiciable.

The substance of the right to education is given in broad terms by international legislation but realmeaning is given to it as national legislators incorporate it. The process of incorporation is more important than the process of adhering to an international treaty because it is this incorporation that entitles people to demand for their right to education.

The importance of education cannot be neglected by any nation. And in today’s world, the role of education has become even more vital. It is an absolute necessity for economic and social development of any nation. In the context of a democratic form of the government like ours, education is at once a social and political necessity. Even several decades ago, our leaders harped upon universal primary education as a desideration for national progress. It is rather sad than in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure. A true democracy is one where education is universal and the nation and know-how to govern themselves.

Education is undoubtedly a human right which has been transformed into a “luxury” instead of a right in many places. Signs of that can be seen through words and images of student journalists who report on thecondition of education worldwide for the Education for All consortia and observe that hindrances in education range from lack of schools in Mozambique to issues that affect curricula formulation and not living up to the prestige of a previous era, like in the Russian Federation system. In India the situation is no different as many people were excluded from their right to education for very many years. . It is rather sad that in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure. A true democracy is one where education is universal and where people understand what is good for them and the nation and know-how to govern themselves.

In this background, “Implementation and Enforcement of Right to Education in India”attempts to analytical study of right to education in India. This project is divided into four chapters. First chapter concentrate on the historical prospective of Indian education system which deals with the demand for free education in pre-independence period. The second chapter deals with various committees and national policies formed in relation to fulfilment of the demand of free and compulsory education. The third chapter concentrate on the constitutional provisions and judicial trends that followed. The fourth chapter concentrates on the administrative steps taken by the government for the enforcement and implementation of free and compulsory education in India. This chapter also shows the some lacunas in programmes and gives some data about present situations.This project also suggests some ideas to make programmes effective.

Chapter 1

Education System: Historical Prospective

 

1.1. Demand for Free and Compulsory Education in the Pre Constitutional Era

 

Education has its functionalism in almost all sphere of life. Its signification can never be marginalized. An educated society prepares the present generation for a bright future and enables the individual to galvanize the capacity of collective. More than 2300 years back Chanakya had said “that mother and that father are enemies, who do not give education to their children”. In the recent past Nelson Mandela had proclaimed, “Education is most powerful weapon which you can to change the world”

There is disagreement amongst scholars regarding the origin and nature of the education system in ancient India. Some of them hold the view that it is difficult to speak of ancient Indian education with certainty, as our information is based on the documents of ‘unequal value and unequal date.’ Nevertheless, it may be stated that education in India has been notorious for not being socially inclusive. Till the 19th century, it was largely considered a privilege restricted to persons at the higher end of the caste or class system. History is replete with examples of caste, class and gender-based discrimination in imparting education. Education was the sole privilege of the priestly castes (Brahmins) primarily because of the religious basis for the content of education, coupled with the elitist medium of instruction that was chose to impart the knowledge. Admission to Gurukulas or Ashramas was not open to all. People from lower castes, and socalled ‘shudras’ (untouchables), in particular, were barred from receiving education. Several learned Brahmins started Pathasalas (schools) in important towns where they received patronage. The Muslim rulers of the Indian sub-continent also did not consider education as a function of the State. It was perceived as a branch of religion and therefore entrusted to learned theologianscalled ‘Ulemas’. Therefore, in ancient and medieval India, education was intertwined with religion. From the location of Gurukulas to excluding sections of the society from accessineducation, the system of education was clearly not accessible to all persons.

The discovery of the sea route to India, in 1498, influenced the course of development of education in the Indian sub-continent. Although many scholars have commended the British policy of introducing modern education, it was not a spontaneous benevolent act. The progress in education was facilitated with a view to serving their vested interests, i.e., to train Indians as clerks, managers and other subordinate workers to staff their vast politico-administrative machinery. However, education of the ‘Indian masses’ was largely neglected, and by the beginning of nineteenth century, it was in shambles. The demand for education in India can be traced back to the early stages of the freedom struggle in British India. It subsequently became an integral part of the freedom struggle. The Indian National Congress fought valiantly for the expansion of elementary education and literacy, in general, and in rural India, in particular. The first law on compulsory education was introduced by the State of Baroda in 1906. This law provided for compulsory education for boys and girls in the age groups of 7–12 years and 7–10 years respectively. The Legislative Council of Bombay was the first amongst the Provinces to adopt a law on compulsory education. Gradually, other Provinces followed suit as control over elementary education was transferred to Indian Ministers under the Government of India Act, 1919. However, even though Provincial Legislatures had greater control and autonomy in enacting laws, progress in universalizing education was poor due to lack of control over resources.

In 1937, at the All India National Conference on Education held at Wardha, Gandhi mooted the idea of self-supporting ‘basic education’ for a period of seven years through vocational and manual training. This concept of self-support was floated in order to counter the Government’s constant excuse of lack of resources. The plan was to not only educate children through vocational training/manual training by choosing a particular handicraft, but also to simultaneously use the income generated from the sale of such handicrafts to partly finance basic education. Furthermore, education was supposed to be in the mother tongue of the pupils with Hindustani as a compulsory subject.

Despite the consistent demand for free and compulsory education during the freedom struggle, at the time of drafting the Constitution, there was no unanimous view that the citizens of India should have a right to education, let alone a fundamental right. The Constitution Assembly Debates reveal that an amendment was moved to alter the draft Article relating to FCE, by removing the term entitled to ensure that it was merely a non-justifiable policy directive in the Constitution. Therefore FCE made its way into the Constitution as a directive principle of State Policy under the former Article 45, whereby States were required to ensure that free and compulsory education was provided to all children till the age of fourteen.

The effects of above mentioned initiatives had come in forms of various committees and national policies on education. In next chapter I have mentioned about such committees and policies.

 

Chapter 2

 Policies and Committees on Education

 

As the demand and supply rules always present in society, after being felt, the great importance and demand of education for the development of new independent India, Government of India moved forward in this direction and made various efforts to make India educated.

 

2.1Kothari Commission (1964)

In view of the important rote of education in the national development and in building up a truly democratic society the Government considered it necessary to survey and examines the entire field of education in order to realize a well-balanced, integrated and adequate system of national education capable of making a powerful contribution to all aspects of national life. To achieve these objectives speedily, the Government of India in October 1964 set up an Education Commission, under Resolution of July 14, 1964.

The Commission in particular was to advise the government on the national pattern of education and on the general policies for the development of education at all stages-ranging from the primary to post-graduate stage and in all its aspects besides examining a host of educational problems in their social and economic context. The Commission was, however, not to examine legal and medical education.

The Commission in its report in 1964-66 recommended the establishment of a Common School System for all children irrespective of their class, caste, religious or linguistic background. The commission stated that in order to fulfil this purpose, neighbourhood schools should be established in all localities. It also recognized that this was the only way we can promote social harmony and equality of education. This commission given much importance to CommonSchool System because they said that by common school system will eradicate many problems and give common platform to every individual.

NEED FOR APPOINTMENT OF COMMISSION:

1) Need for a comprehensive policy of education in spite no. of educationcommittees after independence, satisfactory progress would not beachieved.

2) Need for detailed study even though a good deal of expansion ofeducation facilities took place, it was at the expanse of quality.

3) Need to emphasize role of people in national development.Tomake people aware that they have a share in the nationaldevelopment along with the government.

4) Need for overview of educational development.To create more integration between various parts and consider it as awhole not as fragments.

5) Need for positive approach to the status of teacher.The teacher community had been neglected suffering many hardships requiring a positiveapproach to the problem.

2.2 The National Policy on Education, (1968)

The National Policy of 1968 marked a significant step in the history of education in post-Independence India. It aimed to promote national progress, a sense of common citizenship and culture, and to strengthen national integration. It laid stress on the need for a radical reconstruction of the education system, to improve its quality at all stages, and gave much greater attention to science and technology, the cultivation of moral values and a closer relation between education and the life of the people.

After the adoption of the 1968 Policy, there has been considerable expansion in educational facilities all over the country at all levels. More than 9 % of the country’s rural habitations now have schooling facilities within a radius of one kilometer. There has been sizeable augmentation of facilities at other stages also. Perhaps the most notable development has been the acceptance of a common structure of education throughout the country and the introduction of the 1 +2+3 system by most States. In the school curricula, in addition to laying down a common scheme of studies for boys and girls, science and mathematics were incorporated as compulsory subjects and work experience assigned a place of importance.

A beginning was also made in restructuring of courses at the undergraduate level. Centers of Advanced Studies were set up for post-graduate education and research. And we have been able to meet our requirements of educated manpower.

While these achievements are impressive by themselves, the general formulations incorporated in the 1968 Policy did not, however, get translated into a detailed strategy of implementation, accompanied by the assignment of specific responsibilities and financial and organizational support. As a result, problems of access, quality, quantity, utility and financial outlay,accumulated to implement all the provision. Besides, a variety of new challenges and social needs make it imperative for the Government to formulate and implement a new Education Policy for the country.

 

2.3 The National Policy For Children, 1974

The National Policy for Children 1974 was founded on the conviction that child development programmes are necessary to ensure equality of opportunity to these children. It provides the framework for assigning priorities to different needs of children, and for responding to them in an integrated manner. Other policies, programmes and schemes for child development have been formulated, keeping in mind the objectives of this National Policy. The National Policy provides the framework for assigning priorities to different needs of children, and for responding to them in an integrated manner. Other policies, programmes and schemes for child development have been formulated, keeping in mind the objectives of this National Policy. The policy reaffirmed the constitutional provisions for adequate services to children, both before and after birth and through the period of growth to ensure their full physical, mental and social development.

Accordingly, the government is taking action to review the national and state legislation and bring it in line with the provisions of the Convention. The aim of this policy also was to inserts much new provision relating this child policy in constitution. “It shall be the policy of the State to provide adequate services to the children, both before and after birth and though the period of growth, to ensure their full physical, mental and social development. The State shall progressively increase the scope of such services so that, within a reasonable time, all children in the country enjoy optimum conditions for their Balance growth. ”

In particular, the following measures shall be adopted towards the attainment of these objectivesthat all children shall be covered by a comprehensive health programmes, programmes shall beimplemented to provide nutrition services with the object of removing deficiencies in the diet ofchildren, programmes will be undertaken for the general improvement of the health and for thecare, nutrition and nutrition education of expectant and nursing mothers.

The State shall take steps to provide free and compulsory education for all children up to the age of fourteen for which time-bound programmes will be drawn up consistent with the availability of resources. Special efforts will be made to reduce the prevailing wastage and stagnation in schools, particularly in the case of girls and children of the weaker sections of the society. The programmes of informal education for pre-school children from such sections will also be taken up.

This policy not only given facilities regarding the education but also tried to eliminate the restriction in social life of children by protecting against neglect, cruelty and exploitation and no child under 14 years shall be permitted to be engaged in any hazardous occupation or be made to undertake heavy work. This policy also emphasis on amendment of existing laws to be amended so that in all legal disputes whether between parents or institutions, the interest of children are given paramount consideration.

 

2.4 National Policy on Education, (1986)

The National Policy on Higher Education (1986 ) translated the vision of Radhakrishnan Commission and Kothari Commission in five main goals for higher education, as enumerated below; which include Greater Access, Equal Access (or Equity), Quality and Excellence, Relevance and Value Based Education.

1. Greater Access requires an enhancement in the education institutional capacity to provide opportunities to all who deserve and desire higher education.

2. Equity involves fair access to the poor and the socially disadvantaged groups.

3. Quality and Excellence involve provision of education by accepted standard so that students receive available knowledge of the highest standard and help them to enhancetheir human resource capabilities.

4. Relevance involves promotion of education so as to develop human resources keeping pace with the changing economic, social and cultural development of the country;

 

2.5 165th Law Commission Report, 1998

 • Advocated legislation of a central Act for providing free and compulsory education without waiting for any amendment in the Constitution of India.

• Suggested to include private unaided institutions in the scheme of free and compulsoryEducation.

• Advocated dispensing with the tuition fee, providing free text books, free uniform, freelunch, etc. whatever necessary.

• Interpreted compulsion as:

• Compulsion on state

• Compulsion on parents

• Compulsion on society

 

As the effects of all above mentioned committees and policies is the 86th amendment of constitution which added a new clause in Art. 21 and created new clause, Art. 21-A. Apart form all these things, the Constitution of India holds the spirit of education in itself from very beginning. In next chapter we will see, how the Constitution of India explain this spirit.

 

Chapter 3

 Constitution Provisions and Judicial Trends

 

Making India educated, judiciary of India has explained the concept of education , as the constitution holds in itself, by delivering various decisions. In this chapter, we finds how judiciary explained all these things.

 

3.1 Identification of Right to Education with reference to Part IV and Art. 21 and 14

 

The extent of right to education as a component of right to life is determined with reference to State’s duty under Part IV of the Constitution and by applying Art.21. While primary and secondary education is inevitable for the right to life, attainment of higher education is not indispensible for human dignity. The opportunity for higher learning depends upon individual aptitude and capacity of student.

Under the ICSECR, primary education is directed to be compulsory and free for all, whereas concerning higher education, equal accessibility base on individual capacity is assured. Universal Declaration of Human Rights also makes such distinction.

According to Article 45 of the constitution, “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”. While this duty isirrespective of State’s economic ability, under Art.41 State’s duty of making effective provision for securing right to education is “within the limits of its economic capacity and development”. Since positive rights of life are carved out in case law by gathering the values of Part IV, the above dichotomy necessarily influenced stage-wise differentiation in recognizing right to education as a component of right to life.

Initially, the Three Judges Bench of the Supreme Court Mohini Jain ruled that right to education at all levels is concomitant to the fundamental rights observed, “The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of citizens”. But the Five Judges Bench of Supreme Court in Unnikrishnan v State of A.P. overruled the principle laid down in Mohini Jain’s case. The majority in Unnikrishnan viewed that content of right was to be determined in the light of Directive Principles, and so understood it meant that (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of economic capacity of the State and its development.

A landmark development in the matter of right to primary and secondary education is the passing and incorporation of the Constitution (Eighty-sixth Amendment) Act 2002. It inserted a new Article 21-A that states, “ The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may by the law, determine.” It substituted Article 45: “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”. A new fundamental duties was added in Art.51-A, so that it shall be the duty of every citizen of India “who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years”. The interactions of provisions in Arts.19(1)(g), 26(1), 29(1) and 30(1) vis-à-vis Art.21-A would means that State has power and duty to ensure right to education under Art.21-A by imposing reasonable obligation upon private educational institutions to realize the objective of compulsory education.

3.2 Right to education and rights under Arts.19, 21, 26, 29 and 30

 

Right to education has a relation of mutual assistance with other positive rights of life and with various liberties. The links of educational rights with freedom under Art.19 are also significant. In Santosh Kumar , while ordering that Sanskrit should also be included as one of the optional languages at the level of secondary education, the Supreme Court replied on the aspects of freedom of speech and conversation of culture.

The role of freedom of association in forming educational institutions is given judicial recognition in D.A.V. College and Unnikrishnan. In Unnikrishnan, the Court ruled that Professional Education Intitutions could be established by registered societies only. The role played by educational associations at lower levels of education is also important.

About Art. 26(a) as the basis for educational right, the Supreme Court in Bramhachari Siddeshwar ruled that religious denominations could establish institutions for charitable purpose subject to limitations prescribed under Art. 26(1). The TMA Pai Foundation judgment made significant contribution in this sphere by holding, “The right to establish maintain educational institutions may also be sourced to Art. 26(a), which grants, in positive terms, the right to every religious denomination of any section thereof to establish and maintain institutions for religious and charitable purpose, subject to public order, health and morality. Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Art. 29(1) and 30(1), have the right to establish and maintain religious and educational institutions”. This enables the religious denominations of majority religious community also to set up any educational institution.

The rights of any section of every citizens, under Art. 29(1) having distinct language, script or culture of their own to conserve the same entitles them to establish and maintain educational institution for this purpose. The right of religious and linguistic minorities to establish and administer educational institutions for their choice under Art. 30(1) also provides a basis and opportunity for education.

 

3.3 Right to Education and Right to Equality

While the Supreme Court, in its recent judgment in the Mohini Jain v Karnataka case, may be faulted on both doctrinal and practical grounds for its use of article 21 of the Constitution for articulating the right to education, its indictment of the capitation fee system has not come a day too soon. THE Supreme Court has recently declared that right to education was a fundamental right and that the charging of capitation fee was arbitrary, unfair and therefore violative of the fundamental right to equality contained in article 14 of the Constitution. Since the decision of the Supreme Court is the law of the land, the above decision has created a storm in the educational world. The immediate reactions have been hostile to the decision. Usual comments such as that the court has gone too far or that the decision is impractical have already come in. While we share the court’s agony over the immoral practice of capitation fee in the new medical and engineering colleges, some wider propositions enunciated therein need careful examination. The purpose of this article is to examine the three leading propositions, namely

(1) That every person has the right to education as part of his right to live with dignity included in article 21 of the Constitution;

(2) That the practice of capitation fee is violative of the guarantee of equality enshrined in article 14 of the Constitution; and

(3) That the state is under a constitutional mandate to provide educational institutions at all levels for the benefit of its citizens.

Some of the outstanding development and application of right to equality in India have been in the domain of educational right. Brown v. Board of Education decision on progressive desegregation has expanded the scope of right to education. In India, in addition to general provisions like Art. 14 and 15(1), the principle of non-discrimination in the matter of admission to State funded educational institutions, is laid down in Art. 29(2). Quashing of a Communal GO, which had provided for compartmentalised treatment of caste-based claims in admission to educational institutions, was the starting point set in Smt. Champakam Dorairajan . The subsequent insertion of Art. 15(4) for enabling special provision for SEBC, SC and ST was to give a dimension of substantive equality to the disadvantaged sections of the society. In Ajay Hasia v. Khalid Mujib, right to equality could be claimed in the matter of admission to engineering college run by a registered society with the assistance of state fund. In Vibhu Kapoor v. Council of I.S.C. Examination , arbitrary treatment of students by educational institutions could be remedied by invoking Art. 14 and 12.

3.4 Right to Education Under Article 21-A

 

The Constitution (Eighty-sixth Amendment) Act 2002, created a history in field of education as a landmark of right to education in India. It inserted a new Article 21-A that states, “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may by the law, determine.” The Constitution of India is a directive Principle contained in Art. 45, has made a provision for free and compulsory education for all children upto the age of fourteen years within ten years of promulgation of Constitution. We would not achieve this goal even after fifty years of adoption of the provision. But the right to education under Art. 21-A will give required momentum to compulsory education to children upto age of fourteen. The right to education under this article would cover primary as well as secondary education and petitioner can claim the benefit of Part III as well. After the insertion of Art.21-A, every child upto the age of fourteen has a right to compulsory education and under Art.45 State is under the duty provide this compulsory education to every child upto age of fourteen. But in Unnikrishnan v State of A.P. wherein it was held that free education until the child completes 14 years is a fundamental right and after the completion of 14 years, his right to education is circumscribed by the limits of the economic conditions of State and its development. Recently it was held that to improve education, various State Government grant aid to educational institutions and by large teachers of aided private schools deserve to be treated on a par with teachers of Government Institution to the extent possible especially when Art. 21-A makes education a fundamental right.

As we find that in Mohini Jain Case and in Unnikrishnan Case , the judiciary explained the right to education. The judicial activism in this direction played a vital role. The effects of all activism is in form of the Right of Children to Free and Compulsory Education Act, 2009. The Government of India has started various scheme and plans to make every child educated. Next chapter we will discuss all these things in detail.

Chapter 4

 Administrative Steps and Efforts towards Education

4.1 The Right of Children to Free and Compulsory Education Act, 2009

“I beg to place the following resolution before the council for its consideration.…the state should accept in this country the same responsibility in regard to mass education that the government of most civilized countries are already discharging and that a well-considered scheme should be drawn up and adhered to till it is carried out.. The well-being of millions upon millions of children who are waiting to be brought under the influence education depends upon it…”

 

The above words are part of the resolution which Gopal Krishna Gokhale moved in the Imperial Legislative Council on 18th march, 1910 for seeking provision of ‘Free and Compulsory Primary Education” in India.

If Gopal Krishna Gokhle, one of the greatest sons of India, would have been alive today, he would have been the happiest person to see his dream of ‘Right to Education’ for the children of the country come true. It was he who, a hundred years ago, urged the Imperial Legislative Assembly confer such a right on Indian children. That goal has been realized a century later.

The present Act has its history in the drafting of the Indian constitution at the time of Independencebut is more specifically to the Constitutional Amendment that included the Article 21A in the Indian constitution making Education a fundamental Right. This amendment, however, specified the need for a legislation to describe the mode of implementation of the same which necessitated the drafting of a separate Education Bill. The rough draft of the bill was composed in year 2005. It received much opposition due to its mandatory provision to provide 25% reservation for disadvantaged children in private schools. The sub-committee of the Central Advisory Board of Education which prepared the draft Bill held this provision as a significant prerequisite for creating a democratic and egalitarian society. Indian Law commission had initially proposed 50% reservation for disadvantaged students in private schools. The Government has finally come over all the odds and given effect to the Right to Education Act. The very first step toward the achievement of right to education as fundamental right is enactment of the Right of Children to Free and Compulsory Education Act, 2009. This Act holds some specific features for the making Shakshar Bharat. On 1st April, India joined an elite group of countries which gives high regard to the fundamental rights of its citizens. It was a historic step making a law which promises education a fundamental right of every child come into force. The Right of Children to Free and Compulsory Education Act, 2009 will do well to the millions of children who are aspiring to contribute to their countries development. The right to education is inserted under the garb of right to life covered under article 21A of the constitution of India. Article 21 over the years, has pushed its legal boundaries to incorporate all the rights which are basic to the dignified enjoyment of life. Right to education is one peculiar right which is concomitant to other fundamental rights under ‘Right to Life’.

The salient features of the Right of Children for Free and Compulsory Education act are-

1. Free and compulsory education to all children of India in the six to 14 age group;

2. No child shall be held back, expelled, or required to pass a board examination until completion of elementary education;

3. A child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age; Provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such timelimits, as may be prescribed: Provided further that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years.

4. Proof of age for admission: For the purposes of admission to elementary education. The age of a child shall be determined on the basis of the birth certificate issued in accordance with the provisions of the Births. Deaths and Marriages Registration Act,1856 or on the basis of such other document, as may be prescribed. No child shall be denied admission in a school for lack of age proof;

5. A child who completes elementary education shall be awarded a certificate;

6. Calls for a fixed student-teacher ratio;

7. Provides for 25 percent reservation for economically disadvantaged communities in admission to Class One in all private schools;

8. Mandates improvement in quality of education;

9. School teachers will need adequate professional degree within five years or else will lose job;

10. School infrastructure (where there is problem) to be improved in three years, else recognition cancelled;

11. Financial burden will be shared between state and central government.

 

In a very brief, the Act provides for neighbourhood schools within reach, with no school refusing admission to any child. It also provides for adequate number of qualified teachers to maintain a ratio of one teacher for every 30 students. The schools have to train all its teachers within 5 years. They have to ensure proper infrastructure, which includes a playground, library, adequatenumber of classrooms, toilets, barriers free access for physically challenged children and drinking water facilities within three years. 75% members of the school management committees will comprise parents of the students who will monitor the functioning of the schools and utilization of grants. The school management Committees or the local authorities will identify the out of school children and admit them to standards appropriate to their age, after giving them proper training.

 

4.2 Sarva Shiksha Abhiyan

The SSA programme is an endeavour to provide an opportunity for improving human capabilities of all children, through the provision of community-owned quality education in a mission mode. The Sarva Shiksha Abhiyan had been set with specific targets. These are:

• All children in school, Education Guarantee Centre, Alternate School or ‘Back-to-School’ camp by 2003.

• All children complete five years of primary schooling by 2007.

• Children complete eight years of elementary schooling by 2010.

• Focus on elementary education of satisfactory quality with emphasis on education for life.

• Bridge all gender and social category gaps at the primary stage by 2007 and at the elementary education level by 2010.

• Universal retention by 2010.

 More recently, the Government of India has launched in 2001 Sarva Shiksha Abhiyan(SSA) a flagship pogramme in partnership with the state government to cover the entire country and address the needs of 192 million children in 1.1 million habitations. The SSA is an extensive scheme to universalize elementary education through district based, decentralized specific planning and implementation strategy by community ownership of the school system. The scheme subsumes all other major governmental educational interventions of the entire country. The SSA is to provide useful and relevant elementary education for children in the 6-14 age groups by 2010.

The SSA focused mainly on alternative Schooling, Children with special needs, Community mobilization, Girls Education, Quality of Elementary Education. The SSA is based on the premise that financing of elementary education interventions has to be sustainable. This calls for a long-term perspective on financial partnership between the Central and the State governments.

The programmes call for community ownership of school-based interventions through effective decentralization. This will be augmented by involvement of women’s group and members of Panchayati Raj institutions. The Programmed will have a community based monitoring system.

The Educational Management Information System will correlate school level data with community-based information from micro planning and surveys . Besides this, every school will be encouraged to share all information with the community, including grants receive. A notice board would be put up in every school for this purpose. SSA lays a special thrust on making education at the elementary level useful and relevant for children by improving the curriculum, child-centered activities and effective teaching learning strategies. It also recognized the critical and central role of teachers and advocates a focus on their development needs, setting up of block Resource centers, cluster resource centers, recruitment of qualified teachers, opportunities for teacher development through participation in curriculum-related material development, focus on classroom process and exposure visits for teachers are all designed to develop the human resource among teachers. As per the its framework, each district will prepare a District Elementary Education Plan reflecting all the investment being made andrequired in the elementary education sector, with a holistic and convergent approach. There will be a Perspective Plan that will give a framework of activities over a longer time frame to achieve aim. There will also be an Annual Work Plan and Budget that will list the prioritized activities tobe carried out in that year. The Perspective Plan will also be a dynamic document subject to constant improvement in the course of programmed implementation. SSA played an important role in making waking individual regard child education as well as child right. It affects the every level of administration to control and make aware of children welfare, right, interest etc.Though the Sarva Shiksha Abhiyan is being administered through government and government aided schools, some private unaided schools are also actively involved in contributing towards universal elementary education. Recently, the government entered into anagreement with the World Bank(External website that opens in a new window) for assistance to the tune of US $ 600 million to fund the second phase of the Sarva Shiksha Abhiyan.

Sarva Shiksha Abhiyan is a valuable endeavour of the Government of India, in the universalization of elementary education, which strives to help citizens to realise the importance of elementary education. Social justice and equity are by themselves a strong argument for providing basic education for all. Provision of basic education also improves the standard of living, especially with regard to life expectancy, infant mortality and nutritional status of children.

 

4.3 Rashtriya Madhyamik Shiksha Abhiyan

Rashtriya Madhyamik Shiksha Abhiyan(RMSA) is aimed at expanding and improving the standards of secondary education classes’ eighth to tenth. The RMSA would also take secondary education to every corner of the country by ensuring a secondary school within a radius of five km for every neighbourhood. RMSA which is the most recent initiative of Government of India to achieve the goal of universalization of secondary education. The SSA program set up by the government to bring elementary education to millions of children has been successful to a large extent, and has thus created a need for strengthening secondary education infrastructure across the country. The HRD Ministry has taken note of this, and now plans to implement a secondary education scheme called RMSA during the 11th plan. “With the successful implementation of the Sarva Shiksha Abhiyan, a large number of students are passing out from upper primary classes creating a huge demand for secondary education,” the HRD Ministry said.

1. To ensure that all secondary schools have physical facilities, staffs and supplies at leastaccording to the prescribed standards through financial support in case of Government/Local Body and Government aided schools, and appropriate regulatory mechanism in thecase of other schools,

2. To improve access to secondary schooling to all young persons according to normsthrough proximate location efficient and safe transport arrangements and residentialfacilities, depending on local circumstances including open schooling. However in hilly and difficult areas, these norms can be relaxed. Preferably residential schools may be setup in such areas.

3. To ensure that no child is deprived of secondary education of satisfactory quality due togender, socio-economic, disability and other barriers

4. To improve quality of secondary education resulting in enhanced intellectual, social andCultural learning.

5. To ensure that all students pursuing secondary education receive education of goodquality.

6. Achievement of the above objectives would also, inter-alia, signify substantial progressin the direction of the Common School System.

 

4.4 Mid-Day Meal

The Mid-day Meal Scheme is the popular name for school meal programme in India which started in the 1960s.It involves provision of lunch free of cost to school-children on all working days. The key objectives of the programme are: protecting children from classroom hunger, increasing school enrolment and attendance, improved socialization among children belonging to all castes, addressing malnutrition, and social empowerment through provision of employment to women. The scheme has a long history especially in the state of Tamil Nadu introduced statewide by the then Chief MinisterK. Kamaraj in 1960s and later expanded by M. G. Ramachandran government in 1982 has been adopted by most of the states in India after a landmark direction by the Supreme Court of India on November 28, 2001. The success of this scheme is illustrated by the tremendous increase in the school participation and completion rates in the state of Tamil Nadu.

12 crore (120 million) children are so far covered under the Mid-day Meal Scheme, which is the largest school lunch programme in the world. Allocation for this programme has been enhanced from Rs 3010 crore to Rs 4813 crore (Rs 48 billion 1.3 million) in 2006-2007.

Various orders and memos from the Ministry of the Rural Development during the last fifteen years have not been enough to feed the primary school children, specially the target group-the needy and the malnourished, through the National Programme for Nutritional Support to Primary Education (NP-NSPE), popularly known as Mid-Day Meal Programme(MDM).

The MDM is the world’s largest school feeding programme reaching out to about 12 crore children in over 9.50 lakh schools/EGS centers across the country.

MDM in schools has had a long history in India. In 1925, a MDM Programme was introduced for disadvantaged children in Madras Municipal Corporation. By the mid-1980s three States viz. Gujarat, Kerala and Tamil Nadu and the UT of Pondicherry had universalized a cooked Mid-Day Meal Programme with their own resources for children studying at the primary stage By 1990-91 the number of States implementing the mid-day meal programme with their own resources on a universal or a large scale had increased to twelve states.

The objectives of the MDM scheme are:

• Improving the nutritional status of children in classes I-V in Government, Local Body and Government aided schools, and EGS and AIE centres.

• Encouraging poor children, belonging to disadvantaged sections, to attend school more regularly and help them concentrate on classroom activities.

• Providing nutritional support to children of primary stage in drought affected areas during summer vacation.

With a view to enhancing enrollment, retention and attendance and simultaneously improving nutritional levels among children, theNP-NSPE was launched as a Centrally Sponsored Scheme on 15th August 1995, initially in 2408 blocks in the country. By the year 1997-98 the NP-NSPE was introduced in all blocks of the country. It was further extended in 2002 to cover not only children in classes I -V of government, government aided and local body schools, but also children studying in EGS and AIE centers. Central Assistance under the scheme consisted of free supply of food grains @ 100 grams per child per school day, and subsidy for transportation of food grains up to a maximum of Rs 50 per quintal.

In September 2004 the scheme was revised to provide cooked mid-day meal with 300 calories and 8-12 grams of protein to all children studying in classes I – V in Government and aided schools and EGS/ AIE centers. In addition to free supply of food grains, the revised scheme provided Central Assistance for (a) Cooking cost @ Re 1 per child per school day, (b) Transport subsidy was raised from the earlier maximum of Rs 50 per quintal to Rs. 100 per quintal for special category states, and Rs 75 per quintal for other states, (c) Management, monitoring and evaluation costs @ 2% of the cost of food grains, transport subsidy and cooking assistance, (d) Provision of mid-day meal during summer vacation in drought affected areas. In July 2006 the scheme was further revised to provide assistance for cooking cost at the rate of (a) Rs 1.80 per child/school day for States in the North Eastern Region, provided the NER States contribute Rs 0.20 per child/school day, and (b) Rs 1.50 per child/ school day for other States and UTs, provided that these States and UTs contribute Rs 0.50 per child/school day.

In October 2007, the scheme has been further revised to cover children in upper primary (classes VI to VIII) initially in 3479 Educationally Backwards Blocks (EBBs). Around 1.7 crore upper primary children were included by this expansion of the scheme. From 2008-09 i.e w.e.f 1st April, 2008, the programme covers all children studying in Government, Local Body and Government-aided primary and upper primary schools and the EGS/AIE centres of all areas across the country. The calorific value of a mid-day meal at upper primary stage has been fixed at a minimum of 700 calories and 20 grams of protein by providing 150 grams of food grains (rice/wheat) per child/school day. 8.41 crore Primary students and 3.36 crore Upper Primary Students i.e. a total of 11.77 crore students are estimated to be benefited from MDM Scheme during 2009-10.

Today, MDM scheme is serving primary & upper primary school children in entire country.

Apart from these programmes, Government of India has been initiated National Programme for Education of Girls at Elementary Education. It is being implemented in educationally backward blocks, where the level of rural female literacy is less than the national average and the gender GAP is more than the national average. About 3286 educationally backward blocks are covered under the scheme in 25 states.

In April 2001 People’s Union for Civil Liberties (Rajasthan) initiated the now famous right to food litigation. This public interest litigation has covered a large range of issues relating to right to food, but the best known intervention by the court is on mid-day meals. In one of its many direction in the litigation the Supreme Court directed the government to fully implement its scheme of providing cooked meals to all children in primary schools. This landmark direction converted the mid-day meal scheme into a legal entitlement, the violation of which can be taken up in the court of law. The direction and further follow-up by the Supreme Court has been a major instrument in universalizing the scheme.

4.5 Kasturba Gandhi Balika Vidyalaya

The Government of India launched a scheme called Kasturba Gandhi Balika Vidyalaya (KGBV) with the objective to ensure access and quality education to the girls of disadvantaged communities by setting up residential schools with boarding facilities at elementary level. In Bihar, till today, 385 KGBV centres have been set up since October 2005 and are functioning to serve the educational needs of approximately 35,938 girls from the disadvantaged communities.

The KGBV scheme is to be implemented in coordination with other existing schemes, and in Bihar, it is being implemented through the Mahila Samakhya (MS) Society in the districts where MS exists, and other districts by Bihar Education Project Council in collaboration with local NGOs/VSS.

The scheme is applicable in those identified Educationally Backward Blocks (EBBs) where, as per census data of 2001, the rural female literacy is below the national average, i.e. 46.58% and gender gap in literacy is more than the national average i.e. 21.7%. Among these blocks, residential schools are to be set up in areas with:

 Concentration of tribal population, with low female literacy and / or a large number of girls out of school;

 Concentration of SC, OBC and minority populations, with low female literacy and/or a large number of girls out of school;

 Areas with low female literacy; or

 Areas with a large number of small-scattered habitations that do not qualify for a school.

Objectives of KGBV

The objective of KGBV is to ensure access and quality education to the girls of disadvantaged groups of society by setting up residential schools with boarding facilities atelementary level as gender disparities still persist in rural areas and among disadvantaged communities.

Strategies

495 KGBV will be opened in a phased manner.

Such residential schools will be set up only in those backward blocks that do not have residential schools for elementary education of girls under any other scheme including that of Ministry of Social Justice & Empowerment and Ministry of Tribal Affairs.

In the state, all the KGBV centres follow the same strategy, which is to provide the enrolled girls with hostel facilities, remedial teaching and life skills. While they learn upper primary level education curriculum at formal schools during schools’ operation period, the KGBV centres provide them with remedial teachers who support them to cope with the learning at schools and also facilitate them to gain life skills, ranging from critical thinking skills to bicycle riding. The KGBV centres that are managed by Mahila Samakhya are following the same functioning structure with the Mahila Shikshan Kendra, residential bridge course programme of Mahila Samakhya. The girls are divided into three groups based on their academic achievement, and being supported by the teachers based on their levels, and they are provided with empowerment programme following Jagjagi manual, vocational training, karate practice, yoga etc, all of which try to aim the empowerment and development of the girls in holistic nature.

 

Components of the scheme

i. Setting up of residential schools where there are a minimum of 50 girls predominantly from the SC, ST and minority communities available to study in the school at the elementary level. The number can be more than 50 depending on the number of eligible girls.

ii. To provide necessary infrastructure for these schools

iii. To prepare and procure necessary teaching learning material and aids for the schools

iv. To put in place appropriate systems to provide necessary academic support and for evaluation and monitoring

v. To motivate and prepare the girls and their families to send them to residential school

vi. At the primary level the emphasis will be on the slightly older girls who are out of school and were unable to complete primary schools (10+). However, in difficult areas (migratory populations, scattered habitations that do not qualify for primary/ upper primary schools) younger girls can also be targeted

vii. At the upper primary level, emphasis will be on girls, especially, adolescent girls who are unable to go to regular schools In view of the targeted nature of the scheme, 75% girls from SC, ST, OBC or minority communities would be accorded priority for enrolment in such residential schools and only thereafter, 25% girls from families below poverty line. Established NGOs and other non-profit making bodies will be involved in the running of the schools, wherever possible. These residential schools can also be adopted by the corporate groups. Separate guidelines are being issued in the matter

The National Literacy Mission has been launched recently as Saakshar Bharat in which at least 7 crore non-illiterates will be made literate to achieve 80% literacy and to reduce gender disparity in literacy from 21% to 10%. 365 districts in the country, with adult female literacy rate 50% or less, have been identified for the implementation of Saakshar Bharat.

Though all these plans are working well, but there are so many instance where many inconsistencies and lacunas are present, because nothing is absolute and perfect in this universe.

 

4.6 Lacunas in Programmes

 

The RTE Model Rules under RTE Act, 2009 have finalized in February 2010 provide guidelines to be followed by the states to implement the RTE Act. Some of these rules, however, need to be reassessed in order to maximize the chances for success in their implementation.

There is provision mentioned under RTE such as, “No child shall be held back, expelled, or required to pass a board examination until completion of elementary education”, this very provision is very bad in itself. As without obtaining proper ability and qualification, no child can understand in his next class. It will create similar effect of illiteracy and it may be possible that if he/she is not able to understand to what is going on, may create mental agony.

Second where a child above six years of age has not been admitted in any school and if such child is admitted in class appropriate to his age, it will create similar effect as the first one.

The Model Rules hardly provide any details on the implementation of the 25 per cent reservation in private schools. There are many unanswered questions such as;

1. How are weaker and disadvantaged sections defined and verified?

2. How will the government select these students for entry level class?

3. What will be the mechanism for reimbursement to private schools?

4. How will the government monitor the whole process?

5. Would the admission lottery be conducted by neighborhood or by entire village/town/city?

6. What would happen if some of these students need to change school in higher classes?

The reimbursement to private unaided schools for the 25 per cent quota should be calculated not only on the basis of the recurring expenditure in government schools but should also include thefixed or capital expenditures with due allowance for depreciation of assets and interest costs including other costs related to elementary education at all levels of the State Government.

The actual position of Mid Meal Programme is also not very good. There are so many incidents and news about insufficient quality of foods/meal given to children. Various scams involving Mid-Day Meal Scheme have been unearthed since it was started.

In January 2006, the Delhi Police unearthed a scam in the Mid-Day Meal Scheme. In December 2005, the police had seized eight truckloads (2,760 sacks) of rice meant for primary schoolchildren being carried from Food Corporation of India (FCI) godowns in Bulandshahr District of UP to North Delhi. When the police detained the trucks, the drivers claimed that the rice was being brought all the way to Delhi to be cleaned at a factory. However, according to the guidelines, the rice has to be taken directly from FCI godown to the school or village concerned. Later it was found that the rice was being siphoned off by a UP-based NGO, Bharatiya Manav Kalyan Parishad (BMKP), in connivance with the government officials.

In November 2006, the residents of Pembong village under the Mim tea estate (around 30 km from Darjeeling), accused a group of teachers of embezzling mid-day meals. In a written complaint, the residents claimed that students at the primary school had not got midday meal for the past 18 months.

In December 2006, The Times of India reported a scam involving government schools that siphon off foodgrains under the mid-day meal scheme by faking attendance. The modus operandi of the schools was simple—the attendance register would exaggerate the number of students enrolled in the class. The additional students would not exist—they were “enrolled” to get additional foodgrains which were pocketed by the school staff. The scam was exposed, when P Asha Kumari, an assistant teacher at the government model primary school, Jakkur, in Yelahanka acted as a whistleblower. She informed the Lok Ayukta, who conducted a probe and indicted four persons for misappropriation. The whistleblower was harassed by the school staff and requested a transfer. She was transferred to a government primary school at Cholanayakahalli, where she again found the same modus operandi being used to siphon off the foodgrains. She again complained to the Lok Ayukta, who issued notice to the school.

Another instance is, that in April, 2010 in Pune more than 70 children – most of them aged between six and 13 – were hospitalized on Friday after having lunch under the mid-day meal scheme at their school at Bopodi, which is run by the PuneMunicipal Corporation (PMC). Shockingly, dead insects, flies and even tiny pieces of magnets were found in the food served to the children. PMCschool board chairman Sangeeta Tiwari, after visiting the school,said that”The khichadi (rice and daal preparation) was foul-smelling We were shocked to seethe quality of the food”.

 

Despite the success of the program, child hunger as a problem persists in India. According to current statistics, 42.5% of the children under 5 are underweight. This is due to simple reasons such as not using iodized salt. “India is home to the world’s largest food insecure population, with more than 200 million people who are hungry,” India State Hunger Index (ISHI) said, adding that the country’s poor performance is driven by its high levels of child under-nutrition and poor calorie count. “Its rates of child malnutrition is higher than most countries in Sub Saharan Africa,” it noted. A report released as part of the 2009 Global Hunger Index ranks India at 65 out of 84 countries. The 2008 report says that India has more people suffering hunger – a figure above 200 million – than any other country in the world, it says. The report also says “improving child nutrition is of utmost urgency in most Indian states”.

A Citizen’s Review Report (7th Jan, 2008) on “India’s Progress on the MDGs” showed that 55% of Muslims have never attended school compared to national average of 41% (rural); In Bihar 86% of enrolled children drop-out by Standard VI. 99% Dalit children study in Public schools & inadequate facilities and infrastructure as major problem for access to health & education. Whether SSA is performing well but the corruption is also there. The funds are misused.

The total budget for ‘SSA’ stands at Rs.131 billion and the scheme’s operation has come under severe flak from India’s official auditor, the Comptroller and Auditor General (CAG). Out of Rs 8004.71-crore allotted for the development work of “Elementary Education” and “SSA”, only Rs 2,324.99 crore was spent through record. For rest of the money spent on the development work there no records available & Human Resource Department is clueless about rest of the money. It means rest of the money was simply siphoned off. In this Gujarat and Rajasthan governments come first in misusing the funds! Despite the success of the program, child hunger as a problem persists in India. According to current statistics, 42.5% of the children under 5 are underweight. This is due to simple reasons such as not using iodized salt. “India is home to the world’s largest food insecure population, with more than 200 million people who are hungry,” India State Hunger Index (ISHI) said, adding that the country’s poor performance is driven by its high levels of child under-nutrition and poor calorie count. “Its rates of child malnutrition is higher than most countries in Sub-Saharan Africa,” it noted. A report released as part of the 2009 Global Hunger Index ranks India at 65 out of 84 countries. The 2008 report says that India has more people suffering hunger – a figure above 200 million – than any other country in the world, it says. The report also says “improving child nutrition is of utmost urgency in most Indian states”

Child labour is also a main problem. According to an article published in “Nyaya Deep” by Justice Ajit Prakash Shah :-

ALL INDIA

1. Census 2001- 5,79,841 children in the age group of 0-4 years are engaged in household activities in India.

2. Census 2001- 13 million child labourers in age group of 5-14 years i.e. children who are economically active.

3. NSSO’s 61st Report (2004-05)- estimated child labour in India at 8.6 million.

4. “Nowhere children” (i.e. children who are neither in school nor working)- 75 million children who are ‘nowhere’.

5. Education Statistics provided by MHRD, number of children who are out of school during 1997-98 to 2004-05 is 6.55 crores.

6. Proportion of out of school children in the 6-13 age group, computed on the basis of door to door annual surveys of teachers, is reported to about 3.5% (about 75 lakh children) in 2006-07 from 6.94% in September 2005.

 

 

 

IN DELHI

1. Dropout rate is 69.06%

2. In absolute numbers, there are 1.5 million children who are drop outs or who have never been sent to school. However, these children are not counted when calculating thenumbers of ‘out of school’ children. Therefore, the estimate of the Education Department of ‘out of school’ children remains at 54,220.

3. 80% of Class V who pass out of MCD schools do not know how to read and write their names.

4. Only 14% of students who enter government school in Class I make it to Class X.

5. It is estimated that 25%-30% of children drop out between classes I to V.

 

The standards of the Government, municipal schools are appalling. Apart from the inadequacy of infrastructure, there is shocking incidents of absenteeism and neglect on the part of many teachers in Government schools. The school inspection system has practically broken down in many parts in India. Another disturbing element is that that the teachers in Government schools are forced to engage in variety of Governmental works like dise-dine census, elections to local authorities, state legislatures and Parliament and disaster relief duties.

 

 

 

 

 

Conclusion

 

In the context of globalisation, education assumes greater meaning. Greatness of a nation should not be measured by its ranking in global economic order, but by its ability to provide quality education. The last two decade have shown enormous improvement in the literacy scene in the country as reflected by the average literacy figures. Education is perhaps the most vital requirement for inclusive growth, empowering individual and society, opening up opportunities and promoting true public participation in the development process. It is an important factor that fuels both social change and economic growth.

How much education does India need, and for what purpose? We can readily agree that universal good quality basic education is a requisite and moral requirement of all modernsocieties, for the sake of social equity, cultural values, and economic functionality. India is actively pushing forward with its agenda for revamping and restructuring education in the country. It is submitted that though the judiciary has made education as a fundamental right yet it is for the State to secure it for all people. It is beyond any doubt that education is of fundamental significance to the life of an individual and the nation.

We have seen in this paper Right to Education is now a Fundamental Right for all children in the age group of 6 to 14 years. In simple word, it means that the Government will be responsible for providing education to every child up to the eight standards, free of cost, irrespective of class and gender. Part III of the Constitution of India gives all force to every child to get free and compulsory education through Art.21, and insertion of Art.21-A by 86th Amendment is also a landmark in this respect. Thanks to scheme like SSA and MDM Scheme, which are providing almost all necessary requirements to the ‘Future of India’ Enrolment rates in schools have gone up, as the number of schools is rising through these scheme. The progress rate in rural literacy is also rising through the initiative of SSA. The SSA, initiated to universalize quality education, has brought about positive changes by increasing accountability of schools to the community through greater involvement of village education committees and parent-teacher associations. In primary schools especially enrolment and attendance of girls is increasing. The MDM Scheme is helping in taking care of nutritional needs of the students. This is not only affecting positively the health of poor students but also improving learning outcomes by ending ‘school hunger’.

Despite everything is going upward in the right direction, there are so many instance as we have seen in the 5th chapter, though SSA is performing well, corruption is also involved, funds are misused. The quality of foods in the MDM Scheme is not so good.

Calories and nutrients in MDM are insufficient. There is also news that children are more interested in meal only not in education. The shortage of teachers is one of biggest problem in implementation of such schemes, and teachers involved in schemes are less experienced and untrained. Child labour is also a major problem.

However, realization of the objective of ‘Education to All’ is not going to be very easy- not when the school system in the country, especially those rural areas continue to be plagued by problems of poor infrastructure, shortage of teachers, their lack of training motivation besides poverty and livelihood issues that are responsible for the huge drop out of rates. It is estimated that there is a shortage of nearly five lakh teachers, while about three lakh of them are untrained at the elementary school stage. Over 50% of schools have a student teacher ratio much poorer than the 1:30 prescribed under the RTE Act. About 46% schools do not have toilets for girls, which is another reason why parents do not send girl children to schools.

Though, the programmes are implemented in right directions and there are some inconsistency regarding implementation, I want to suggest some idea for better results and strengthening inclusive education.

 

 

 

 

 

 

 

 

Suggestions

Here are some of my (not so complete) ideas for effectiveness of Right to Education:

1. Compulsory free education should be made available till Class XII

The state and central governments should completely absorb the cost of providing free education till 12th standard to every child, irrespective of caste, religion and economic status. This should cover not just school fees, but also free books, food if necessary, uniform clothing and even a place to stay if the parents cannot afford that to their children. Those with money can always opt for their favourite private school, and feed their own children. Alternately, some rich may decide to send their children to the govt. schools.

2. Govt. schools should be run by private entities/entrepreneurs.It is very doubtful if the government can manage hiring qualified teachers and provide quality education to children. Like in the USA, the government can opt for building the schools and make them available to private companies on a long-term lease, based on auction. The organization that comes up with the lowest bid and agrees to maintain the best quality education would be chosen to run each school in each locality.

3. There should be some amendments in the Right of Children to Free and Compulsory Education Act, 2009 as it is provisioned that “no child shall No child shall be held back, expelled, or required to pass a board examination until completion of elementary education” because without having proper ability and knowledge, no child will able to survive in next class.

4. In villages the Panchayat members can play important role in promoting education. The village education committee should not be an ad hoc project arrangement and should be permanent.

5. There should be a teacher and parent interaction because a frequent parent and teacher interaction will enhance student enrolment and attendance rate.

6. The incentives like books, uniforms etc. available to the students must be made at the beginning of session.

7. The quality of MDM needs to be improved, which will attract children of the weaker sections of the society.

8. Village monitoring committees must be formulated so that they will monitor the enrolment and student absenteeism.

9. More Acts like Mahatma Gandhi National Rural Employment Guarantee Act should be started because only those parents who employed think about not to employ their children in any labour work.

10. The goal of 100% female education can be achieved by creating community awareness for girls education at all levels.

11. Improvement in the infrastructure like availability of water, sanitation and toilets in schools should be done on priority basis.

12. Propertraining for teachers and staff should be provided.

13. Training for teachers and staff at the residential schools will be coordinated by the District Institutes of Educational Training, Block Resource Centers and the Mahila Samakhya Resource Groups.

14. All education above higher secondary school level should be primarily dealt with by private entities.

15. If some state governments wish, they can run colleges, but it should be unnecessary. Students should be offered lenient education loans at very low interest rates. These loans are liable to be paid only after the students finish their education and find a job of their own.

16. That is, free education until higher secondary; but paid-for education after that. Those who can’t afford to pay for this higher education get low-cost and lenient loans. This kind of comfortable educational loans are made available to students in USA.

Though the state has the primary obligation to provide education for all children but non-governmental organizations and other civil society partners can make a vital contribution to education by mobilizing public demand and expanding participation. So, the government needs to build effective partnerships with all organizations and institutions that have an impact on children’s education.

I do not claim that these suggestions, if implemented, will remove all problems we have in our education sector. However I am hopeful that they can alleviate the problem considerably.

 

 

 

Bibliography

 

Books, Journals, Articles,Websites

 

1. Diksit S S, 1966, ‘Nationalism and Indian Education’, Sterling Publications, Jullunder.

2. M. P. Jain, ‘Indian Constitutional Law’, 6th Ed., Laxis Nexis Butterworth Wadhwa.

3. Jagdish Swarup, ‘Constitution of India’, 2nd Ed., Modern Law Publications.

4. H.M. Seervai, ‘Constitutional Law of India’ 4th Ed., Vol.2, Universal Law Publication.

5. V.N. Sukla, ‘Constitution of India’ 11th Ed., Eastern Book Company, Lucknow.

6. Kanta Maitra Pandit Lakshmi, 1995, ‘Constitution Assembly Debates’, Volume 7, Universal Publications, NewDelhi,

7. Mukerji S N, 1966, ‘History of Education in India: Modern Period’ Acharya Book Depot, Baroda.

8. Naik J P, 1975, ‘Equality, Quality and Quantity, The Elusive Triangle in Indian Education’, Allied Publisher, New Delhi.

9. Nurullah and Naik J P, 1943, ‘A History of Education in India’, Macmillan, Bombay.

10. Siqueira T. N, 1952, ‘The Education of India’, Oxford University Press, Bombay.

11. Kurukshetra, A Journal On Rural Development.

12. Sumeet Malik, Supreme Educational Institutional Cases, 8th Ed. Eastern Book Company, Lucknow.

13. http://www.education.nic.in/cd50years/g/W/16/0W160401.htm

14. www.education.nic.in/cd50years/y/3P/45/3P450301.htm

15. http://www.education.nic.in/cd50years/g/52/4U/524U0101.htm

16. http://www.education.nic.in/ssa/ssa_1.asp

17. http://www.indg.in/primary-education/policiesandschemes/the-national-policy-on-children-1974

18. http://india.gov.in/spotlight/spotlight_archive.php?id=31

19. http://www.niua.org/Publications/newsletter/uf_english_apr-jun07.pdf

20. http://blog.insightyv.com/?p=1137

21. http://timesofindia.indiatimes.com/city/pune/Mid-day-meal-sends-70-schoolkids-to-hospital/articleshow/6208423.cms.

22. http://www.education.nic.in/ssa/ssa_1.asp