Posted in Critical Analysis, Personal Laws

A case for a BAN ON POLYGAMY in India after the Landmark Triple Talaq Judgement

The Supreme Court of India on March 22, 2017, made a mark in history by declaring the practice of Triple Talaq as unconstitutional by 3:2 majority. The court said that it violates the fundamental rights of Muslim women as it irrevocably ends a marriage and is against the basic tenets of Qur’an. This judgement opens the door for challenging Polygamy on the basis of its being arbitrary, unilateral, and unconstitutional.

Sec 494 of the Indian Penal Code, 1860 outlaws polygamy but since the examination of personal laws is a pre-requisite to the applicability of this section, it is legal in the Muslim community as Islamic law allows polygamy for men (only in exceptional conditions) and imposes monogamy on women. Verse 4:3 of the Quran says that,

“And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]

In the pre-Islamic era, men were entitled to have more than one wife. One must not forget the significance of the period and the circumstances in which verse 4:3 was revealed allowing men to marry up to four wives; the battle of Uhud took a heavy toll on men, leaving a large number of widows and orphans. The multiplicity of wives became a social necessity and in verse 4:3 which was revealed after this great battle, the Holy Prophet, allowed polygyny but under the strict injunction that all the wives must be treated with perfect equality. Many Classical jurists interpret the last portion of the verse to mean that polygamy should be restricted as The Quran states in the same chapter that it is not possible to be equitable and fair in these situations; “Ye are never able to do justice between wives even if it is your ardent desire

It is a well-known jurisprudential rule in Islam, that “verses in the Qur’an explain each other,” i.e., the Qur’an is an integral whole and thus the full and proper meaning of any verse cannot be understood in isolation from other verses in the rest of the Qur’an. We can thus logically conclude that a man should marry only one wife. Therefore, the general belief that under Muslim Law, a husband has an unfettered right to marry again even where his earlier marriage is subsisting is egregious and baseless. This is clearly a manifestation of how patriarchal interpretation can prevail over reason and gender equity.

Polygamy clearly violates Article 21 of the Indian constitution as the Right to Life also includes the right to live with dignity. As far as Indian Judiciary is concerned, a catena of Indian case laws suggests that the touchstone of judging laws on polygamy can be our own constitution. In Javed v. The State of Haryana, the court held that “Polygamy is injurious to public morals and can be superseded by the state just as the practice of Sati.”

The flag bearers of Polygamy have contended that banning polygamy would be in violation of Article 25 of the Indian Constitution which guarantees Freedom of conscience and free profession, practice, and propagation of religion. While interpreting the right to Religious freedom, Judiciary takes into consideration the essential religious practices and not the non-essential ones.  Judicial decisions have made an attempt to make a distinction between ‘essential’ and ‘non-essential’ religious practices. In the recent judgement of the Supreme Court in the case of Khursheed Ahmed Khan v. State Of U.P. & Ors , the honourable court reproduced the 1952 judicial precedent in the Narasu Appa Mali case;

“Sharp distinction must be drawn between religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give away before the good of the people as the State as a whole”

There can be no denying of the fact that Polygamy is an anathema to women’s economic, social and emotional well-being and hence, it is clearly opposed to Public order and morality. It is, therefore, safe to conclude that any law in favour of monogamy does not interfere with to right to profess, practice, and propagate religion and does not involve any violation of Article 25 of the Constitution.

Indian Judiciary through its various judgements has made it clear that Polygamy is an inhumane practice which should be eradicated from the society to restore the dignity of Muslim women and achieve the goal of gender justice. The legal reform in personal laws has been one of the critical and yet neglected areas in the Indian Democracy. Muslim women are denied their legal rights in the personal realm despite various rulings of The Supreme Court and various high courts which have declared the practice of Polygamy as unconstitutional. Practices such as polygamy persist in our society despite there being no sanction on these in the Quran.

It is extremely significant to note that a large no. of Muslim countries or countries with a large Muslim population have undertaken significant reforms in marriage and divorce laws. As per the Indian Law Commission’s report, bigamy has been fully abolished or severely controlled by law in most Muslim countries of the world. Turkey and Tunisia have completely outlawed it while in Egypt, Syria, Jordan, Iraq, Yemen, Morocco, Pakistan and Bangladesh; it has been subjected to administrative or judicial control. It is now India’s turn as the World’s largest democracy to put a complete ban on polygamy, thereby ensuring dignity and gender equality to women.


ABOUT THE AUTHOR

Rashi Rawat

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Rashi Rawat is a second-year student from Gujarat National Law University, Gandhinagar pursuing B.A. LLB (Hons.). She has a keen interest in Competition law, Intellectual Property Rights, Family Law, Public International law and Human Rights law. She is also a member of the Editorial Board of the GNLU Journal of Law and Economics and keeps herself updated with the role that law and economics play in improving the efficiency of laws. Being a staunch feminist, she loves to read and research about contemporary issues revolving around women empowerment.  She’s a huge Potterhead and firmly believes in the saying, “It is our choices that show what we truly are, far more than our abilities.”

Posted in Critical Analysis

Conundrum of Modification and Application of Personal Law, Customs, and Religious Doctrines in Society

Personal Laws and Customs are integral to societal behaviour and norms. Invalidating them vide avenues of Legal Fiction often results in intruding into the lives of citizens, thereby eroding their faith in the system. Certain customs seem to be exemplary of alleged inequality; however, they are not always detrimental, especially when the said inequality may be a derivation of a religious sanction or historically accepted tradition. In this regard, would it not be appropriate to state that ‘To erode a man’s faith is perhaps a crime, even when facilitated by an institution of Justice.’

In Narasu Appa Mali v. State of Bombay[1], the Bombay High Court held that Personal Laws are not a part of Article 13, nor they are outside the ambit of Judicial Scrutiny. Justice Chandrachud in the Indian Young Lawyers Association v. The State of Kerala[2] overruled, by implication, the celebrated judgement, and presented refuting arguments on the same. The article presented herewith attempts to include additional arguments in the said matter, in addition to those stated in Narasu Appa.

Firstly, MP Jain emphasized that Personal Laws are not covered under Article 13. Courts deemed it prudent not to interfere with these laws on the touchstone of fundamental rights.[3] In the case of Krishna Singh v. Mathura Ahir[4] the Apex Court while considering the question whether a Sudra could be a Sanyasi or Yati held that Part III of the Constitution is not applicable to Personal Laws, and if the constitutional validity of such Personal Laws is to be verified, then the trail of study, research and application must be carried out with reference to all sources of the laws being considered. The same was upheld by the Hon’ble Supreme Court in the case of Madhu Kishwar & Ors v. State Of Bihar & Ors.[5] On the issue of constitutional validity, Chief Justice Khehar and Abdul Nazir J. held that Triple Talaq cannot be challenged as it had been in practice for over 1400 years, continues to be an accepted norm, and is also included in Sharia Law. They further held that Triple Talaq is not open to challenge on the grounds of violation of Fundamental Rights as it was a Personal Law.[6]

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In the case of Harvinder Kaur v. Harmendar Singh[7], the Delhi High Court was required to decide as to whether the provisions of Section 9 of the Hindu Marriage Act,1955 providing for restitution of conjugal rights is in violation of Article 14 and Article 21 of the Constitution. The court upheld the validity of the section and also held that ‘the introduction of Constitutional Law in the home is most inappropriate, and it could be a ruthless destroyer of the marriage institution and all that it stands for’. It was also held that in the privacy of the home, and in married life, neither Article 21 nor Article 14 are appropriate for application. Marriage is an integral part of every religion and hence in the case Sardar Sydena Taher Saifuddin Sahed v. State of Bombay[8] it was stated that the exception to the Freedom of Religion as provided in Article 25(2) enabling the state to frame laws for ‘social welfare and reform’ cannot permit the legislature to ‘reform’ a religion and transform its orignal existence or identity.  In this case, the Court elucidated that the intention of Article 25 (2) (b) is to cover only those laws that do not contravene the essentials of a religion, and a law which infringes such right cannot be permitted in the name of social reform because such action would place a religion out of existence. The expression ‘social reform’ doesn’t extend to the basic and essential practices of religion, which is guaranteed by Article 25(1) itself. In fact, it sanctions ‘social’ reform and not ‘religious’ reform.  It has been observed by H.M. Seervai in the case of Inayatullah v. Gobins Dayal[9] that, Hindu and Mohammedan Laws are so intimately connected with religion that they cannot readily be dissevered from it. Personal Law is intrinsic to Religion, and it should hence be the prerogative of the doctrines of religion, to decide what is a part of that particular religion.

In case of a conflict between religious practice and the need for social reform, religion must be the dominant force. [10]A similar viewpoint was observed in the Constitutional Assembly debate, where Naziruddin Ahmed pleaded that the abrogation of a Personal Law should not be treated as a regulation of secular affairs surrounding a religion or as a measure of social welfare and reform.[11]

Additionally, in the early years of British rule in India, there was a policy of non-interference in religion and laws of Muslims. A manifestation of such non-interference is The Hastings Plan of 1772 and Article xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims in all suits regarding inheritance, marriage, caste and other religious circumstances or institutions’. The Hastings Plan of 1772 provided for Maulvis (Muslim Priests) to help and advise the courts on matters of Muslim Personal Laws. Muslims continued to follow their un-codified personal laws in matters such as succession of property, marriage and divorce. There was no interference from the courts in the Personal Laws of people.

It is also said that Personal Laws form the immutable element of religion. This is because there is always, even above the constitutional law or a written transnational law, an immutable unwritten higher law rooted in nature or reason which is more precious and deserves to be zealously guarded against a passing law written by a particular legislature at a given time. Religious personal laws are divine and inviolable because such laws are deemed to be an ordinance by God or the Prophets. Law cannot become a fulcrum of change, if society is unwilling to accept them.[12] Similarly, Gudrun Kramer asserts that justice can be realized by various means, as long as they do not conflict with the immutable elements of divine law.[13] Now, if it is possible to amend Sharia law, the problem remains ‘who has the right to reform these laws?’[14]This is because what constitutes essential parts of religion, is determined in respect of the doctrines of that religion itself.[15] Any institution of state should not be given unchecked authority to decide upon the essence of religious denomination and the (un)essential practices thereof.[16] It is also submitted that in the exercise of the power to regulate, authorities cannot sit in judgment over the professed views of the adherents of the religion to determine whether the practice is warranted by the religion or not. This is not considered to be their function.[17]

For instance, as stated by the court in the Shirur Mutt case, if the tenets of any religious sect of the Hindus prescribe that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be recital of sacred texts in terms of marriage, all these would be regarded as parts of religion. Under the Hindu religion, marriage as a sacramental union implies that it is a sacrosanct union; such a marriage then cannot take place without rituals and ceremonies.[18] Under the Muslim law, however, accordance of marriage is not a sacrament but a civil contract hence consent of the parties is integral to a Muslim marriage.[19] Under the Parsi[20] and the Jew[21] laws their respective religious ceremonies, ashirbad and katuba are considered to be essential to the religions. It is important that all these different observations are respectively respected and not placed in a hierarchy, thereby pitting one religious approach against another.

Thirdly, the acclaimed jurist H.M. Seervai has observed that it is not uncommon in a Constitution to make express provisions for matters to which its makers attach great importance, instead of leaving them to the dilatory and hazardous process of litigation.[22] Hence, if personal laws are not mentioned specifically in Article 13 of the Constitution one cannot presume the fact the personal laws come under the ambit of laws under Article 13.

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Fourthly, bringing Personal Laws under the wide umbrella of Judicial Scrutiny goes against Art. 29 of the Indian Constitution. Article 29 protects the interests of minorities by making a provision that any citizen/section of citizens having a distinct language, script or culture have the right to conserve the same.[23] While framing a law it has to be borne in mind that cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for a threat to the territorial integrity of the nation.[24] The Supreme Court in T.M.A Pai Foundation v. State of Karnataka and Ors.[25] reiterated that: The essence of secularism in India is recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole united India.

Therefore, a harmonious construction is very much required between Religion and Society, by delving deep again into this issue. Law would never be able to become the Fulcrum of Change, if it is not accepted by society.

[1] State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.

[2] Indian Young Lawyers Association v. The State of Kerala 2018 SCC OnLine SC 1690.

[3] 1 MP Jain, Indian Constitutional Law 990 (5th ed. 2003).

[4] Krishna Singh v. Mathura Ahir, (1981) 4 S.C.C. 421

[5] Madhu Kishwar  v. State Of Bihar, (1996) 5 S.C.C.  125.

[6] Shayara Bano v. Union of India, A.I.R. 2017 S.C. 4609

[7] Harvinder Kaur v. Harmendar Singh, A.I.R. 1984 Del. 66.

[8] Sardar Sydena Taher Saifuddin Sahed v. State of Bombay 1962 AIR 853.

[9] Inayatullah v. Gobins Dayal, (1885) I.L.R. 7 ALL. 775.

[10] Khursheed Ahmad Khan v. State of Uttar Pradesh, A.I.R. 2015 S.C. 1429.

[11] VII Constitutional Assembly Debates, 540-41 (1948)

[12] Justice D.M. Dharmadhikari, Law: Fulcrum of Change?,(2013) 4 SCC J-44

[13] Rudolph C. Barnes, Jr., Religion, Law and Conflicting Concepts of Legitimacy (2016).

[14] Myriam Sfeir, Round Table Personal Status Laws 21 (2006).

[15] The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others (1983) 4 SCC 522

[16] Mohammad Ghouse, Freedom of Religion and Judicial Review: A Critique of the Canon of Adjudication,  The Indian  Law Institute (Dec. 22, 2016), http://14.139.60.114:8080/jspui/bitstream/123456789/712/31/Freedom%20of%20Religion%20and%20Judicia l%20Review%20.pdf.

[17] Jesse Cantwell v. State of Connecticut J., 310 U.S. 296 (1940)

[18] Paras Diwan, Law of Marriage and Divorce 18 (7th ed. Universal Law Publishing)

[19] Ghulam Kubra v. M. Shaf, A.I.R. 1941 Oudh. 284.

[20] Parsi Marriage and Divorce Act, 1936 § 3 cl. b

[21] Benjamin v. Benjamin, I.L.R. 50 Bom. 359.

[22] 1 H.M. Seervai, Constitutional Law of India  (4th  ed. Universal Law Publishers 1991)

[23] Indian Const. art. 29

[24] Law commission of India Consultation Paper on reform of family law, 9 (31 Aug. 2018)

[25] T.M.A. Pai Foundation v. State of Karnataka, (1994) 2 S.C.C. 195


ABOUT THE AUTHOR

Deeksha Sharma

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Deeksha Sharma is currently a second-year student at Dr. Ram Manohar Lohiya National University, Lucknow. Her areas of interest are Constitutional Law, Arbitration Law and Criminal Law. She has written many papers, especially areas covering women and her rights. She has won “Best Memorial” (Petitioner) at M.C Chagla Memorial Moot, GLC Mumbai.

 

Posted in Critical Analysis

Liquidation under IBC 2016: Proceeding against Guarantor’s Assets?

The emanation of new precedents on Insolvency and Bankruptcy Code, 2016 (IBC) gives us a clear and lucid picture of what the code aims to achieve. However, it is incumbent to interpret the devised principles in the context they were delivered. One such ruling was given by National Company Law Tribunal, Mumbai (NCLT) in the case of Punjab National Bank v. Vindhya Vasini Industries Limited.[1] The issue which precisely dealt with was that whether the assets of guarantor of a corporate debtor against whom an insolvency proceeding has been initiated can be attached and liquidated.

NCLT by virtue of Section 60(2) of the IBC came to the conclusion that assets of a guarantor can be liquated as the assets are closely connected to the debt which was sought to be recovered. However, if one tracks the legislative intent behind Section 60(2) it was made to provide a common arena for insolvency proceedings.

In the instant case, the loan agreement by virtue of which the assets of the guarantor were mortgaged to avail the financial debt was used as a basis to proceed against the assets of the guarantor. The insolvency committee report has paid heed to such situations and pointed out to Section 128 of the Indian Contract Act, 1872 which stipulates that a creditor can proceed against a borrower or surety and that too in no particular order. This is the reason the committee recommended that the assets of the guarantor be seen differently from that of the assets of the corporate debtor, so that those assets do not come under the scope of Moratorium under Section 14 of IBC which basically bars other proceedings for recovery of debt against a debtor.

To that effect, on examination of Section 36 sub-section (3) and Section 36 sub-section (4) which stipulates for assets of a corporate debtor which can be used for liquidation, it nowhere includes the assets of a guarantor.

Even under the inherent power granted to the National Company Law Tribunals[2] which allows them to make such orders for meeting the ends of justice, the scope of the power conferred cannot go to the extent of giving it unbridled powers. The Hon’ble Supreme Court has already established the principle that inherent powers granted to a court or a tribunal cannot be exercised as against the powers given to it by other provisions of a code. There has to be consistency and harmony while exercising inherent powers and other powers conferred to a judicial authority under other codes as well.[3]

Thus, on an inspection of the above discussion, it is clear that the appointed liquidator cannot be allowed to liquidate the assets of a guarantor of a corporate debtor. The case of Vindhya Vasini Industries has to be seen in a different light as in this case the creditors under the guarantee contract and liquidation proceedings were one and the same. Therefore, the position of directly liquidating a guarantor’s assets must not be applied directly to each and every case as a matter of precedent but heed must be paid to peculiar facts and circumstances of each case.

[1]Punjab National Bank v. Vindhya Vasini Industries Limited, C.P. (IB)-1170(MB).

[2] Rule 11 of the National Company Law Tribunal Rules, 2016 .

[3] Ram Chand and Sons Sugar Mills v. Kanhayalal, (1961) 1 S.C.R. 884.


ABOUT THE AUTHOR

Jai Bajpai

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Jai Bajpai is currently a student in the five-year BBA LLB (Hons) course at University of Petroleum and Energy Studies, Dehradun.

Posted in Critical Analysis, Social Issues

28/04/2018. Dear diary… (On Restitution of Conjugal Rights)

28/04/2018                       

1:35 am                       

Dear Diary,

“To keep your marriage brimming, with love in the loving cup, whenever you’re wrong, admit it; Whenever you’re right, shut up.”

Here’s a picture that I’ve attached, that goes back to my first night. I was lying stark naked next to the love of my life, who was trying to make love with me, who was, for the first time trying to enter my body, that is, only after they allowed us to have our first time.

A Hindu wedding, one of the most sacred of rites, incorporates many timeless rituals and customs, and one such tradition which we were to follow, where the newly-weds were served with a glass of milk on our wedding night in order to de-stress the body and keep the sex drive high[1]. Sadly, these age-old traditions have trivialized this so-called sacred institution of marriage to that of a mere physical form of love. Which makes me wonder, why do we tend to love someone? Is it because we can’t keep our hands off each other’s bodies or is it this deeper connection with our souls which mould us into one entity. Then why is it that in our nation marriage is considered so sacred yet the first act after marriage is celebrated with sex?

Ironically, we are punished for public display of affection and as soon as we are married we are pushed into a room with a glass of milk and a bed decorated with flowers? What if I don’t want to have sex with my partner? What if my partner doesn’t want to have sex with me? Do we defy the institution of marriage if we don’t have sex on the night of the marriage? Why is it that we cannot look at marriage beyond sex? Or maybe without it? Will our marriage not be validated if the act of consummation is not performed? The concept of Consummation is something that I’ve failed to decipher, I mean it neither preaches procreation nor is it the social expectation of sexual satisfaction in marriage.[2] So then why exactly are we still so loyally bound by something, that reduces the magical act of two individuals who are willing to share their body to a mere social obligation to have sex, as and when required.

They say they can’t interfere in the private space of two beings, they can’t indulge in what happens behind the closed doors of this intimate space called bedroom, they can’t intrude in the matters of violation like marital rape where consent is in question. So then why do they contradict themselves by entering the same prohibited area of private spaces and tell us to perform sexual intercourse, to follow the ritual of consummation only after which will they call us legally married. It’s surprising how sometimes, they invade our privacy when we don’t want them to and sometimes they simply don’t, even after we plead them too. How they ignore our cry for justice and yet shamelessly impose rituals in the name of society. And what deepens my agony even more is the fact that the prevalence of the concept of consummation simply fosters the previously existing cultural and societal attitudes and understandings of marriage that make it more difficult to acknowledge these violations.[3]

But that wasn’t enough for us, there also lies a greater evil which creates an inseparation of marriage with that of sexual cohabitation. They call it the restitution of conjugal rights, a process through which the courts will tell me to return to my husband or wife because I am depriving them, because they need me to fulfil their natural urges, because they need my body and physical presence to be constantly available[4].

Now, Marriage has to be seen as one living with another with no autonomy? Neither bodily nor otherwise. This is what has become of this institution, a mere obligation which we owe to our significant other and if we don’t fulfil them, we have a judge and a judiciary who are ready to get involved and tell us what to do in OUR relationship. If this is how marriage is being defined as of now, then it is no different from the forceful forfeiture of our very own body, if marriage cannot be seen separate from sexual cohabitation, then the court order of going back to my spouse against my will is nothing but forfeiture of my body. I’ve started to come in terms with reality, where love in marriage is nothing but a myth and the body and sex are the pith and substance.

So, since you know I am right, do I have to shut up now?

Thanks for keeping my feelings safe, diary.

Ananya Kanoria.

 

[1] https://www.speakingtree.in/allslides/hindu-ritual-of-serving-milk-on-suhagraat-wedding-night

[2] Marriage Customs of the World: From Henna to Honeymoons, by George Monger, pp 82-84

[3] “Case in point – Is consummation a legal oddity? – Solicitors Journal”.

[4] Hetal Vyas, Denying Sex a Ground for Divorce: Karnataka HC TIMES OF INDIA, Apr. 20, 2012, http://articles.timesofindia.indiatimes.com/2012-04-20/india/31373128_1_family-court-share-bed-hindu-marriage-act.


ABOUT THE AUTHOR

Ananya Kanoria

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Ananya Kanoria is second-year Law student of O.P.Jindal University. She discovered at the age of 13, while making her first journal entry, that writing is a cathartic process, a means of releasing her emotions and giving clarity to her jumbled thoughts. She chose Law as her path of empowerment and writing is her tool of paving this path.

Posted in Critical Analysis, IP Law

Patent on Human Embryonic Stem Cells: A Critical Legal Study

As time and science move forward, the law struggles to keep pace while, at the same time, resisting change in order to maintain stability.”[1]

Human embryonic stem cells (HES cells) is the most sensational discussed topic in present form not only by the biologists who discovered them but also by the medical professional, media, ethicists, governments, Lawyers and politicians etc. These ‘super cells’ have a major clinical potential in repairing tissues, with their proponents it is believed that they represent the future relief or cure of a wide range of common disabilities, such as replacement of defective cells in a patient by transplantation of the HES cells, which would restore the normal functioning of the defective cells.[2]

Associated patent law issues have been a growing concern with the invent of new developments in biotechnology, since the 1980s. Human embryonic stem cell research, as one of the most controversial among all the subcategories within the general field of biotechnology, is receiving different patent system treatment in different countries.[3] That stem cells that involve the destruction of human embryos are not patentable, which was held by the European Court of Justice in October 2011. This landmark judgment provides an interpretation of the term “human embryo” that takes account of current scientific developments. The case had its origin in Germany, where Dr. Oliver Brustle had applied for a patent on brain stem cells (neural or glial progenitor cells) and the processes for producing them from embryonic stem cells. He claimed that such cells could help treat neurological diseases such as Parkinson’s disease. The patent was granted by the German patent office.[4]

The clinical research environment in India is currently undergoing a tremendous change, with regulators coming under stern criticism from the press, public and the elected government. There are the new ICMR-DBT (Indian Council of Medical Research – Department of Biotechnology) draft guidelines on stem cell research which divided the research into three categories, this follows:

  1. Permissible Areas of Research:
    • In-vitro studies on established pluripotent stem cell lines may be carried out with review and approval of ICMR.
    • An Umbilical Cord stem cell bank could be established with the prior permission of the Competent Authority and following guidelines for collection, processing and storage etc.
  2. Restricted Areas of Research:
    • Studies on chimaeras where stem cells from two or more species are mixed and introduced into animals, including primates, at any stage of development and differentiation. This would require the proper approval of Concerned Authority.
    • The stem cells which were derived from the donors and identity of such donors should be readily accessible or might be known to the investigator.
  3. Prohibited Areas of Research:
    • Any kind of research related to human germline genetic engineering or reproductive cloning is prohibited.
    • Breeding of those animals should not be allowed in which any human stem cells have been introduced at any stage of the research development.
    • Research directly involving to any non-autologous donation of any stem cells is also prohibited by virtue of law to a particular individual.

To explore the possibilities of clinical applications using stem cells, through basic research on all types of stem cells i.e. embryonic, adult and tissue is essential. National agencies are pro-active in supporting and promoting this area.

However, there are many challenges in current stem cell research such as non-availability of human resources of adequate expertise. The laws and institutions that regulate the use and ownership of biotechnology in India are multifaceted and complex. Moreover, these laws and institutions are still very incipient and subject to contestation. The process of creating jurisprudence certainly transforms the meaning and interpretation of many of its provisions.

Nevertheless, it is possible to discern patterns in what concerns the protection of the public interest in the various laws that impact the use and ownership of biotechnology in India. Restrictions on patenting of pharmaceuticals and possibilities of opposition to such patenting are intended to ensure broad access to essential medicines and to protect public health.

[1] “Patentability of Human Embryonic Stem Cells: Finding the balance between the Moral Hazard in Europe and the wide scope in the U.S.”, Anna Thorstenson (Phd Thesis for “Faculty of Law, University of Lund”)

[2]  https://doi.org/10.1093/humrep/deg143  last accessed on 02/04/2017.

[3] “A Comparative Study on Human Embryonic Stem Cell Patent Law in the United States, the European Patent Organization, and China”, Huan Zhu (Phd Thesis for “School of Law, University of Kansas”).

[4] “Europe Prohibits Patents on Human Embroynic Stem Cells”, Sangeeta Udgaonkar; Published in “The Practical Lawyer”, January, 2012, page no: S–3.


ABOUT THE AUTHOR

Nijhum Seal

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Nijhum Seal completed his LL.M in Business Law from Calcutta University. He has been Legal Editor in some MNCs. He is presently practicing in Calcutta High Court and also he is the Founder of the Association namely “Law Legum Associates”, the Organisation is providing guidance to law aspirants in Competitive Examination such as C.L.A.T, Judiciary, A.I.B.E etc. In his leisure time, he plays tabla and he is also a Certified Martial Artist.

Posted in Critical Analysis

Analysing the Judicial Development of Privacy Law

Right to Privacy was never incorporated in the Indian Constitution nor has been provided by any Ordinary law in India. The Judicial interpretations, as well as the development of the law, has led to the emergence of this right, which remains ambiguous till date. Privacy still remains as subjective as it can be comprehended by one unless a law governs the same, which is highly unlikely as the Government is unwilling to take a step ahead. The cases portray shift of the judiciary in striking out Privacy as any right to providing Right to Privacy, which is inherent in the Constitution.

The Judiciary had initially looked through the Indian Constitution in a very rigid and  inflexible manner. The M.P. Sharma case[1] was decided merely by considering the American law and decision of the Constituent Assembly, without taking into account any other considerations whatsoever. Whereas the Kharak Singh case[2] went on to state that even late night periodical visits in house and unreasonable surveillance do not infringe any Constitutional rights and amount to the violation of Privacy ipso facto.

Both these decided cases can be clearly inferred to be based on the principles laid down in A.K.Gopalan case[3]. The Judiciary has not endeavoured at all to innovate or apply principles of Article 19 and 21 taken together, effectively. If it were done so, Right to Privacy would have been effortlessly recognised as an inherent Fundamental Right post-independence, subject to reasonable restrictions.

The later case of R.M.Malkani[4] laid down a bad law that phone tapping is not violative of Fundamental Rights merely because the communication cannot be distorted in any manner, which has been severely criticised. This was overruled in the much celebrated PUCL case[5] which guaranteed phone conversations as a Right to Privacy. Right to Privacy has been strengthened in the post-liberalisation era.

In a similar state, Rajagopal[6] and Gobind[7] case held that Privacy was intrinsic to Article 21 of the Indian Constitution but was not at all absolute and cannot be claimed without passing the State and Public interest test and also by public officials in the discharge of official duties. By this time, privacy had assumed an inherent role in our fundamental rights jurisprudence that helped us lead a dignified life without fearing surveillance.

The content of the constitutional right to privacy and its limitations have proceeded on a case to case basis, each precedent seeking to build upon and follow the previous formulations. The foundation of Right to Privacy rests upon M.P.Sharma, Kharak Singh and Gobind cases, further contributed by Rajagopal, PUCL, Selvi and ABC cases. The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21 and the freedoms set out in Article 19. The Right to Privacy, partially, had been granted due to changing needs and circumstances and being the need of the hour.

The recent judgement has laid down that Right to Privacy is a Fundamental Rights inherent in Article 21 of the Constitution and includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.[8] It protects individual autonomy and power of individuals to make decisions for their life.

[1] (1954) AIR 300.

[2] (1963) AIR 1295.

[3] (1950) AIR 27.

[4] (1973) 1 SCC 471.

[5] (1997) 1 SCC 301.

[6] (1994) 6 SCC 632.

[7] (1975) 2 SCC 148.

[8] K.S.Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (Supreme Court, 24/08/2017).


ABOUT THE AUTHOR

Devansh Saraswat

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Devansh Saraswat is a second-year BBA LLB student at Gujarat National Law University. Academy sound and possessing a keen interest in writing and being an avid researcher, he has presented papers on diverse issues in various National and International Conferences, and as well grabbed publications in various journals. He wishes to learn the law to transform the society in whatever way possible.