95 PAGES Casihr - Journal - of - Human - Right - Practice - J

THE ROLE OF UNMIK AND EULEX IN THE WAR CRIMINAL
PROSECUTION PROCESS IN KOSOVO

Julia E. García Álvarez*
1. Historical Background
Kosovo is a region located in the south west of Serbia, and it concentrates eight different
ethnicities. In 1990, the population of Kosovo were 81% Albanians, 11% Serbs and
Montenegrins, 3% Gorani Moslem-Serbs, 2% Roma people and 2% other minorities.1
That year, a pacific movement organised by Kosovo-Albanians – that were being
oppressed by the nationalist Serbs government of Milosevic – declared Kosovo
independence, without the recognition of Belgrade. The tension increased between Serbs
and Albanians and the continuous repression convinced many Albanians that only armed
resistance would change the situation, which triggered the constitution of the Kosovo
Liberation Army (KLA), and the beginning of the war.2
The War in Kosovo started on February 1998 and finished in June 1999, taking all the
international attention and ending with a NATO intervention. In February 1998 the KLA,
as Albanian paramilitary organization, launched guerrilla attacks on Serb police and
civilians and soon, the KLA would control more than the 30% of Kosovo. Serbian
authorities, following Milosevic orders, responded to these attacks with severe measures
against Kosovo Albanian civilians; including bombings, massive killings and murders.
Milosevic‘s strategy was to disguise Kosovo-Albanians ethnic cleansing as legitimate
Serbian military action against the KLA. By August 1998, the Serbs had retaken 90% of
Kosovo, with hundreds of soldiers and civilians killed, and about 360.000 civilians
fleeing to Albania and Macedonia.3
However, the Serbs re-occupation did not work indefinitely; the international community
reacted. The 23rd September 1998 the UN demanded a ceasefire, that Serb forces returned
to barracks and that they permitted access for an international monitoring force, under
threat of NATO air-force intervention. Although Milosevic initially complied with UN
demands, he secretly ordered to his units an attack to KLA in Kosovo in November 1998.
NATO intervened with aircraft carriers, assault ships, destroyers and frigates attacked
military, causing an immense damage to Serbia‘s infrastructure, worsening the
* Julia E. García Álvarez PhD student in Human Rights / University Carlos III of Madrid.
1
Nigel Thomas & K. Mikulan, The Yugoslav Wars (2): Bosnia, Kosovo and Macedonia 1992–2001
(1st edn, Bloomsbury Publishing2013) 31.
2
ibid 45.
3
ibid 48.
CASIHR JHRP Volume V Issue I
humanitarian disaster. Finally, Milosevic admitted defeat on 4th June 1999, and the 10th
June the peace was signed with NATO, a day after the ceasefire.4
The legal order and all institutions in Kosovo were collapsed after the war. The 10th of
June 1999 the UN Security Council issued the Resolution 1244 which set out the basis of
a transitional regime leaded by the UN in Kosovo; the UN Interim Mission in Kosovo
which established strategies regarding civil administration, humanitarian affairs, economy
and development, democratisation and rule of law institutions building, including the
investigation and prosecution of war crimes.
On February 2008 the independence of Kosovo from Serbia was declared and this year
the UNIMK was restructured and transferred all the competence and responsibility
related to rule of law (including the prosecution of war crimes) to EULEX according to
the President of the Security Council Statement5.
2. Unmik Contributions and Failures
The war criminal prosecution process is one of the four transitional justice pillars, which
includes the investigation and prosecution of international crimes; inter alia genocide,
crimes against humanity and war crimes. The implementation of this pillar, as well as the
whole transitional justice process in Kosovo was characterised by the presence of the
international community. The international community intervened in Kosovo
disregarding the principle of state sovereignty over its own territory due to the intense
armed conflict and gross human rights and humanitarian law violations committed by the
Serbian government and the KLA. After the peace was reached, the UN, for the first time
in history, undertook the mission of administering a protectorate itself. The UNMIK was
in charge of the civil and military administration, whereas the UNHCR leaded the
humanitarian and refugees‘ affairs, the OSCE leaded the democratisation process and
institution-building and rule of law, and the EU would work on the economic
development. In this sense, the transitional justice strategy in Kosovo was planned to
carry out an institutional rebuilding process previously to develop the war criminal
prosecution process, so that the new institutions could tackle this prosecution process, as
well as the constitution of truth commission and victims‘ reparations.
Since 1999 until 2008, the UNMIK has contributed to the establishment of a considerable
number of Kosovar rule of law institutions that achieved a big progress in the criminal
prosecution of war crimes. These include the Department of Judicial Affairs in July 1999,
4
ibid 49-50.
5
UN Security Council, ‗Statement by the President of the Security Council‘ (26 November 2008)
S/PRST/2008/44.
2
aiming the prosecution of inter-ethnic and organized crimes counting with the support of
international judges and prosecutors. This Department also created the Office of Missing
Persons and Forensics, and the Office of the International Prosecutors/Criminal Division.
Moreover, this department played a very important role for the establishment of more
than 60 Courts and offices of public prosecutors in Kosovo6.
In order to carry out investigations of war and other serious crimes, the UNMIK police
and prosecutors worked on investigations of enforced disappearances and made an
important effort in this regards through the UN Office of Missing persons. According to
the UN, 5206 people were reported missing after the conflict and from 2002 onwards, the
UN Office on Missing Persons succeeded in reducing the number over 50%. 7 On
December 2006, 1807 missing persons were found dead and the remains were returned to
their families.
Nevertheless, an extensive report issued by Amnesty International8 reveals that UNMIK

police and prosecutors were not capable or willing to effectively develop judicial
investigations and prosecutions on Missing Persons cases. Particularly, this report
claimed that UNMIK failed to initiate prompt or thorough investigations when people
reported their family members missing in the immediate aftermath of the war.9Amnesty
International based this statement on evidences taken from the Human Rights Advisory
Panel (HRAP or the Panel), Panel created by the UNMIK Regulation No. 2006/12 to
address complains of alleged human rights violations committed or attributable by
UNMIK, and make recommendations to the Special Representative of the Secretary-
General in Kosovo when appropriate.10
The process of allegations consisted of a complaint-based system, where individuals who

believed that UNMK was responsible for a violation of their human rights could submit a
complaint to the Panel, and the latter determinates whether that complaint is admissible
according to law. If the complaint was declared admissible, the Panel rendered an opinion
6
UNMIK, ‗Rule of Law in Kosovo and the Mandate of UNMIK‘ (2021)
<https://unmik.unmissions.org/rule-law-kosovo-and-mandate-unmik> accessed 18 March 2021.
7
UN NEWS, ‗Over half Kosovo‘s missing accounted for, mostly through body identification‘ (6
December 2006) <https://news.un.org/en/story/2006/12/202122-over-half-kosovos-missing-
accounted-mostly-through-body-identification-un> accessed 20 March 2021.
8
Amnesty International, ‗Kosovo: UNMIK‘s Legacy, The failure to deliver justice and reparation to
the relative of the abducted‘ (Amnesty International Publications, 27 August
2013)<https://www.amnesty.org/download/Documents/16000/eur700092013en.pdf> accessed 20
March 2021.
9
ibid 9
10
UNMIK, ‗The Human Rights Advisory Panel‘ (2021) <http://www.unmikonline.org/hrap/Eng/
Pages/default.aspx> accessed 20 March 2021.
3
to the Special Representative, or a recommendation if the Panel eventually considered

that a human rights violation occurred.11
This Panel addressed 250 complaints submitted by relatives of missing persons who
claimed that their family members had been abducted by members of the KLA and the
UNMIK police had failed to investigate these facts.
According to Amnesty report, 247 out of 250 complaints were found admissible and by
2013, the Panel had made public 20 opinions concluding that ―each complainant alleged
that UNMIK failed to conduct effective, prompt, thorough and impartial investigations
into the abduction and/or murder of their missing family member: this is considered to be
a violation of the ―procedural obligation‖ of Article 2 of the ECHR [European
Convention of Human Rights], which guarantees the right to life.‖12
A similar pattern was identified in all the cases; UNIMK failed to conduct a prompt
gather evidence or incomplete documentation of evidence, including the absence of
testimony of witnesses, failed to regularly review investigations and inform relatives
about the progress of the investigations. Particularly, in many cases, UNMIK failed to
continue investigations after the dead bodies appeared and the mortal remains were
returned to the relatives. In this regards, the European Court of Human Rights (ECHR)
has held that the procedures of exhuming and identifying mortal remains do not exhaust
the obligation under Article 2 ECHR.13 In this sense, the report includes twelve cases
addressed by the Panel, where human rights violation of art 2 and 6 ECHR related to
judicial guarantees committed by UNMIK were found. It also addresses seven cases
where the Panel considered a violation of art 3 ECHR related to inhuman treatment
caused by the mental suffering of missing persons‘ relatives due to the inaction of
UNMIK Police and authorities in the investigations, based on judicial precedents of the
ECHR.
It needs to be taken into account that HRAP was not a Court, and it could not conduct an
investigation against UNIMK, however HRAP could recommend to open a criminal
investigation when enough evidences were obtained. However, it could be noticed in
many cases UNIMK did not adopt any measure to address HRAP recommendations14.
11
ibid.
12
Amnesty International, ‗Kosovo: UNMIK‘s Legacy. The failure to deliver justice and reparation to
the relative of the abducted‘ (Amnesty International Publications, 27 August 2013) 9.
13
See Palić v. Bosniaand Herzegovina (2011) ECtHR132, and Bogićevićv. UNMIK (2013) 112/09
para. 68.
14
See for example, HRAP, ‗Final Annual Report 2010‘ (HRAP Publications, 17 March 2011) para 12,
where UNMIK responses to recommendations issued by the Panel regarding several specific cases
4
Therefore, we may say that the UN Security Council placed the responsibility to the
UNIMK to comply with human rights standards in the development of the institutional
rebuilding and war criminal prosecution processes but this mission failed in many
occasions to comply with the obligation to investigate war crimes and therefore UNIMK
violated art. 2, 3 and 6 ECHR, and this is recorded and evidenced by HRAP opinions and
recommendations.
3. Eulex Contributions and Failures
EULEX was established in Kosovo in 2008 under the Common Security and Defence
Policy of the European Union. EULEX‘s competences and responsibilities consisted of
exercising police and judicial power in Kosovo and monitoring the rule of law in Kosovar
institutions. One of the EULEX tasks established to fulfil the Mission was to ―ensure that
cases of war crimes, terrorism, organised crimes (…) are properly investigated,
prosecuted and enforced according to the applicable law (…) by international
investigators, prosecutors and judges jointly with Kosovo investigators, prosecutors and
judges‖.15 This means that EULEX judges worked together with Kosovar judges in local
Courts applying not only international but local law and prosecuting war crimes. Hence,
once again EULEX was in charge of the institutional rebuilding process previously to the
war criminal prosecution process in order to ensure that it met all the judicial guarantees.
EULEX received 1200 war crimes from UNIMK in 2008. According to Kosovo
Humanitarian Law Center (KHLC), since the beginning of the mandate until 14 June
2018, EULEX judges reached 479 verdicts in criminal cases including corruption,
organised crimes, money laundering, war crimes and human trafficking. Only 11 out of
479 verdicts were about War Crimes against 41 Albanians, 12 Serbs, and 1 Roma. The
role of EULEX prosecutors and judges was to lead investigations and prosecutions
showing professionalism and serve as an example to local judges.16
Also according to KHLC, the lack of willingness among civil society to support war
crimes prosecution influenced the own EULEX‘s willingness to insist in solving these
war crimes. KHLC also talks about the absence of accountability of EULEX towards this
type of crimes.17
are addressed. https://media.unmikonline.org/hrap/Eng/Documents/annual_report_2010.pdf

accessed 25 March 2021.
15
Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo,
EULEX KOSOVO (4 February 2008) art. 3 (d).
16
Humanitarian Law Center, ‗In the end of EULEX‘s executive mandate: contribution undisputed,
expectations not met‘ (HLC Publications, 2018)<http://www.hlc-rdc.org/?p=35210&lang=
de>accessed 25 March 2021.
17
ibid.
5
In line with this argument, the Annex of the book Eulex’s Performance of its Executive
Judicial Functions (2014) by Andrea Lozano Capussela, includes the analysis of the
negligence committed by EULEX in three war crimes investigated and prosecuted under
its responsibility, among others cases related to corruption and organised crimes.
The first case is against Limaj, who was a member of the parliament accused of
corruption and war crimes, former KLA fighter, considered by civilians as a ―war hero‖.
He could only be arrested with the consent of the Parliament, but the leading faction of
the elite and the international community wanted him to be arrested, and because they did
not expect the Parliament would give the consent, they found an extraordinary and non-
popular solution, taking the case to the constitutional court. EULEX was strongly
criticised by a large part of the population. But the most important failure committed by
EULEX exercising its executive judicial competences in this case was related the
protection of witnesses. The accusation of Limaj was mainly based on the statements and
cooperation of one particular witness: a middle-ranking KLA fighter who reported to
Limaj and commanded the KLA camp where the crimes occurred. This witness was
presumably under protection when he was shot in the hand and leg. After the incident,
EULEX relocated the witness in Germany where he was found hanged himself to a tree
in a public park of Duisburg six months later. There are significant evidences that suggest
that he did not enjoy the adequate protection and he was still identifiable, and that he and
his family, still in Kosovo, were subject to psychological pressure and intimidation.18 In
this sense, in general, witnesses who incriminated former KLA leaders were exposed to
considerable psychological pressure, be considered as ‗traitors‘ by an important part of
the population and may end up as victims of intimidation, threats and murder.
And another point that reveals the incompetence and negligence of EULEX happened
after the death of the witness, when the final and contradictory decision of acquitting
several defendants, Limaj included, is made by EULEX court based on the consideration
of the testimony of the main witness as ―not wholly reliable‖,19 even when there were
enough evidences against the defendants. 20 This case showed the weakness of the
EULEX witness protection system and sent an intimidating message to other witnesses,
who in many cases decided not to testify. 21
18
Andrea Lozano Capussela, Eulex’s Performance of its Executive Judicial Functions (1stedn, SSRN
25618562015).
19
EULEX, ‗Defendants in Klecka case acquitted‘ (EULEX Press releases, 17 September 2013).
20
EULEX, ‗Trial to continue against four defendants on the Klecka case‘ (EULEX Press releases, 30
March 2012).
21
See Matthew Brunwasser, ‗Death of war crimes witness’New York Times (New York, 6 October
2011) <https://www.nytimes.com/2011/10/07/world/europe/death-of-war-crimes-witness-casts-
cloud-on-kosovo.html> accessed 4 April 2021.
6
In the second prominent case, there is a positive remarkable determination of EULEX to

arrest and judge two suspects of war crimes that were former KLA commanders and
distinguished members of the elite political faction, acting bravely against the public
criticism and the government. In fact, EULEX stated publicly in one occasion that ―the
rule of law is non-negotiable‖22. However, the failure and imprudence in this case for
which EULEX is responsible, is the decision of transferring the two suspects to a prison
in Kosovo full of Serb prisoners, a very risky decision taking into account the two suspect
were accused of committing war crimes against Serbs. 23 This decision triggered the
eventual escape of the two suspects from a hospital where they had being treated. After
this occurrence, EULEX negotiated with the counsels of the fugitives and judiciary
institutions and decided to overturned the decision of transferring the suspects to north
Kosovo and the fugitives eventually handed themselves over to the police. Also, no
further hearings related to this case have been held. Hence, EULEX, contradicting its
previous statement, eventually did negotiate the rule of law.24
Finally, the last case, unlike the previous, directly suggests that the political interest of the
mission influenced the conduct of prosecutors and judges. Thus, in this case EULEX‘s
performance was against its own mandate and objectives. This time the suspects of war
crimes were Serbs, and their detention happened to be suspiciously advantageous for the
public image of EULEX. The arrest of the Serb suspects contributed to reduce the
intensity of the attacks from the press, civil society and public opinion towards the
mission for the negotiation of a protocol between EULEX and the Serbian government
related to police cooperation. Moreover, the detention episode was reported by EULEX
press with a non-typical emotional tone different from their usual neutral statements.
After the detention of the suspects, who were eventually acquitted due to discrepancy in
the victim‘s statement, the public opinion and press stopped mentioning the protocol and
commented positively on the arrest, quieting the previous attacks. It also needs to be
taken into account that most of the war crimes arrests were against KLA members, and
only a few cases were opened against Serbs, probably because most of them fled Kosovo
after the war. For that reason, the mission was often accused of being pro-Serbia and anti-
Kosovo, and somehow this episode was beneficial to EULEX public image.25 Hence, the
22
UNMIK, ‗Media Monitoring Headlines‘ (UNMIK Media Reports, 22 May 2014)
<http://media.unmikonline.org> accessed 6 April 2021.
23
BIRN, ‗Fans of fugitive Kosovo fighters seize clinic‘ (Balkan Transitional Justice Report, 22 May
2014), <https://balkaninsight.com/2014/05/22/relatives-of-ex-kla-fighters-seize-clinic/> accessed 6
April 2021.
24
Andrea Lozano Capussela (n 18) 61.
25
ibid 61-66.
7
question is whether the political interest of the mission influenced EULEX prosecutors in
this case, which, once again, would be very detrimental for the rule of law.
4. Connexion with other Pillars of Transitional Justice
Transitional justice strategies are made up of four different pillars; criminal prosecution,
truth commission, victims reparations and institutional reforms. The Transitional Justice
Process carried out in a country cannot be analysed without taking into consideration all
the pillars.
In the case of Kosovo, where the international community had a strong presence in the
development of the strategy, it is necessary to point out the institutional rebuilding
process carried out right after the war by UNIMK, including the creation of the Judiciary
and prosecuting institutions that made possible the prompt investigation and prosecution
of war crimes. Also EULEX provided international judges that participated in war crimes
trials and became members of the local judicial system. Therefore, the institutional
reforms in Kosovo were made by the international community - not by locals -previously
to criminal prosecutions, in order to establish an institutional order that could guarantee
the effectiveness of the whole transitional justice process.
Regarding truth commissions, Kosovo President in 2017 HashimThaci initiated the

establishment of a Truth and Reconciliation Commission, under the argument of
―Kosovo society and the Balkans in general is still a hostage of these old narratives and
the generations that were born after the war still see their peers from the other community
as enemies and as a threat, not as a society for cooperation and coexistence‖26. The truth
must be confronted and contradictory narratives among ethnicities must be clarified in
order to move forward as a society and achieve reconciliation. In this regards, it is also
very important the role played by UNIMK and the UN Office of Missing Persons, which
dealt with finding these persons and the truth behind, bringing them to their families and
open police and judicial investigations afterwards.
To know the truth about what happened has been necessary for judicial investigations and
eventually, to reach reconciliation and peace. However, sometimes to know the truth and
obtain evidences is not enough to achieve justice, but it is also necessary to guarantee the
judiciary independence from any political interest and a real commitment from
prosecutors to investigate war crimes and reach justice for victims. Connecting this fact
with victims‘ reparations, all human rights violations shall be repaired to the victims, not
26
SerbezeHaxhaij. ‗Can Kosovo‘s Wartime Truth Commission Achieve Reconciliation?‘(Balkan
Transitional Justice Report 27 June 2018) <https://balkaninsight.com/2018/06/27/can-kosovo-s-
wartime-truth-commission-achieve-reconciliation-06-25-2018/> accessed 6 April 2021.
8
only those ones committed by perpetrators, but also the ones committed by institutions
responsible for the protection of human rights. In this sense, UNIMK and EULEX did not
repair their failures in criminal prosecution to the victims of cases that they were
responsible to prosecute and investigate27.
Therefore, whilst the institution rebuilding process was considerably successful wherein
the international community had a central role, other pillars were not as much effectively
implemented. Civil society-based documentation and truth commissions had the potential
to overcome the ethno-nationalist tensions and entanglements, pursuing peace and
reconciliation of civil society. But also this effort had to compensate the inability or
unwillingness of the international community to conduct an adequate and effective war
criminal prosecution process, in many occasions due to their own political interests,
causing the subsequent lack of justice and reparations for victims.
5. Conclusions
The international community undertook the commitment to fight against impunity and
develop war criminal prosecutions giving the seriousness of the situation in Kosovo after
the war and the following years. The responsibility of UNIMK and EULEX was to
combat impunity in Kosovo by playing an impartial role that dealt with Kosovar political
elite (some of them former members of KLA and other suspect perpetrators), and with
the different positions and narratives among the ethnicities. However, the international
community was not able to carry out this impartial approach, probably influenced by the
necessity of negotiation instead of punishment, in order to achieve a more stable and
peaceful society, at the expense of maintaining an environment of impunity.
To conduct and execute a strategy to achieve transitional justice and effectively re-
establish the rule of law in post-conflict areas is essential to achieve peace and justice for
victims and institutional rebuilding. The case of Kosovo is a unique case, where the
international community actively intervened and intended to set an example of post-
conflict reconciliation and peace-building. The UN Security Council placed responsibility
on UNMIK, which included the prosecution of war crimes in Kosovo. This responsibility
was reinforced by the constitution of a Panel to monitor that UNMIK itself respected
human rights standards. Otherwise, if the international community is not bound by the
same human rights standards, checks and balances when exercising executive and
27
Amnesty International, ‗Kosovo: UNMIK‘s Legacy. The failure to deliver justice and reparation to
the relative of the abducted‘ (Amnesty International Publications 27 August 2013) 28
<https://www.amnesty.org/download/Documents/16000/eur700092013en.pdf> accessed 4 April
2021. Amnesty International recommends the UN Security Council to require UNIMK to pay
reparations to victims of human rights violations committed by UNIMK.
9
legislative power over a territory, the international community would lose all credibility.
Since most of the opinions and recommendations of the Panel with regards to accusations
of violations of the right to life, the right to judicial guarantees and the right to not being a
subject of inhuman treatment, were not addressed by UNMIK, this mission failed to
provide compensation and redress for violations of human rights to victims, as well as it
failed to conduct a successful war criminal prosecution process in Kosovo.
On the other hand, EULEX provided international judges to courts and attempted to set
an example in the war criminal prosecution process, consolidating impartiality and
contributing to the achievement of justice. However, EULEX had to face the disapproval
and rejection of a large part of the population, who saw them as strangers illegitimately
named in charge of their institutions, interfering in their political life and judging political
figures, who, as happened with guerrilla leaders, were widely recognised as heroes. This
fact jeopardised EULEX mission, and required additional guarantees that EULEX failed
to provide. Among others, EULEX failed to consistently maintain a determinant position
of neutrality and impartiality. In some occasions, it failed to contribute to the enforcement
of rule of law and the principle of judicial independence, and it failed to ensure witnesses‘
safety and protection during war crimes prosecutions, hence the lack of testimonies
affected the access and achievement of justice for victims and contributed to the impunity
of perpetrators of war crimes.
Therefore, the passive performance of UNIMK and EULEX to face war crimes proves
that the international community, in several occasions was neither capable nor willing to
investigate war crimes. Furthermore, this position of avoiding confrontation and not to
insist in prosecuting war crimes is a violation of human rights standards committed by
UNIMK and EULEX as special missions to which the UN and EU had attributed the
responsibility and obligation to prosecute war crimes perpetrators.
Although the international community frequently highlights the milestones achieved in

Kosovo, it is also important to remember UNIMK and EULEX failures, which
constituted human rights violations themselves, and contributed to build a climate of
impunity for the commission of war crimes, and hindered the peace and reconciliation
building process within the Kosovar society.
10
CUSTOMARY LAW OF INHERITANCE IN BODH TRIBE OF
SPITI : A HUMAN RIGHTS CONCERN
Upneet Kaur Mangat*&
Padma Chhoing**
1. Introduction
Indigenous people have very strong historical and ongoing relation with the land,
territory and nature. The United Nations Human Rights Commissioner‘s (2013)
report on “Indigenous Peoples and the United Nations Human Rights
System” 1 explores that a movement led by tribals, non-government organizations,
international organizations, and the organizations of national, regional, and global
levels. It has resulted as the rights of tribal peoples have developed into a crucial part
of international policy and legal frameworks during the past three decades. The ILO
Convention concerning Indigenous and Tribal Peoples in Independent Countries,
1989 (No. 169), Declaration on the Rights of Indigenous Peoples, and regional and
domestic implementation of indigenous peoples‘ rights are just a few of the
international instruments that define indigenous people and their rights. The United
Nations Declaration on the Rights of Indigenous Peoples includes the rights to self-
determination, lands, territories, and resources, as well as socio economic rights,
collective rights, cultural rights, rights of equality, and non-discrimination rights.
The report by Rights and Resources Initiative (2017) states that the 2.5 billion
individuals who have historically owned and used these lands are primarily women
and the lands of tribals and regional communities represent over half of the global
total area.2 Nevertheless, the entitlements of rural and indigenous women to these
vital resources and lands as well as their involvement in local governance, have
received little consideration in development. Secure land rights for rural and
indigenous women are by no means a minor concern for development. This research
offers a ground-breaking analysis of the state of legal frameworks in Concerns over
women‘s rights to communal land in developing countries and whether or not states
* Dr. Upneet Kaur Mangat, Assistant Professor, Centre for Human Rights and Duties, Panjab
University, Chandigarh.
** Padma Chhoing, Research Scholar, Centre for Human Rights and Duties, Panjab University,
Chandigarh.
1
United Nations Human Rights Office of High Commissioner, Indigenous Peoples and the United
Nations Human Rights System (Fact Sheet No. 9/Rev.2, United Nations 2013).
2
Rights and Resources Initiative, Power and potential: A Comparative Analysis of National Laws
and Regulations Concerning Women’s Rights to Community Forests (Rights and Resources
Initiative 2017).
are adhering to their national as well as international legal responsibilities. It gives a

starting point for reporting on the Sustainable Development Goals for women‘s rights
and assessing global development. Critically, the data demonstrates that governments
are not upholding their international commitments to provide equal rights and
safeguards for rural and indigenous women. Women have always played a crucial
role in communal administration and land management. Effects of women‘s land
rights having little legal recognition globally are magnified by recent population
shifts brought on by rising rates of male emigration and resource depletion, which are
boosting the leadership positions held by women from rural and indigenous areas.
Protecting women‘s rights to public lands is the most efficient means of achieving
peace, prosperity, and biodiversity in the world‘s agrarian and forested regions.
Despite the lack of adequate legislative safeguards, tribal and regional women leaders
have made significant advancements in claiming their rights, which is enhancing
their societies.3
The United Nations Declaration on the Rights of Indigenous Peoples (2007) and the
ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries,
1989 (No. 169), are two key international agreements that cover tribal people‘s
rights.4 A claim to their historical lands, regions, and resources as well as the right to
self- determination but are currently controlled by others in accordance with the law,
are some of the crucial rights outlined in the declaration and convention. The
relationship with land, resources and territory is the basic feature for indigenous
people. In the Declaration ―Article 26 (1) states that tribal people have the right to the
lands, territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.‖ The Declaration and ILO Convention No. 169 uphold
the rights of indigenous people to a high quality of living, as well as to health,
education, employment, housing, and sanitation. Article (3) of the Declaration, which
expresses their ability to freely choose how they want to lead to economic growth,
socially, and culturally is very important. According to definition prior to the
realisation of other rights, tribal rights, which are collective rights, must be realised.5
Equal rights and the absence of discrimination are the main goals of both ILO
Convention No.(169) and the Declaration on Indigenous and Tribal
3
Rights and Resources Initiative, Power and potential: A Comparative Analysis of National Laws
and Regulations Concerning Women’s Rights to Community Forests (Rights and Resources
Initiative 2017).
4
UN General Assembly, Indigenous and Tribal Peoples Convention, 1989 (The General Assembly
2007).
5
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples (The
General Assembly 2007).
12
CUSTOMARY LAW OF INHERITANCE IN BODH TRIBE OF SPITI:
A HUMAN RIGHTS CONCERN
Peoples.Indigenous peoples have the right to exercise all human rights, whether
collectively or individually, according to Articles (1) and (2) of the Declaration.
Article (1) states ―Indigenous peoples have the right to the full enjoyment, as a
collective or as individuals, of all human rights and fundamental freedoms as
recognized in the Charter of the United Nations, the Universal Declaration of Human
Rights and international human rights law‖. Article (2) ―Indigenous peoples and
individuals are free and equal to all other peoples and individuals and have the right
to be free from any kind of discrimination, in the exercise of their rights, in particular
that based on their indigenous origin or identity‖.6
The Declaration covers tribal people‘s right to work, education, and health as well as
to lands, territories, resources, and customary law. The non- discrimination of
indigenous people is the main focus of ILO Convention No. 169 addresses
tribal peoples‘ rights to work, education, and health as well as their lands, regions,
customary laws, and resources. The Convention on Indigenous Peoples‘ requests for
more possessing authority over their systems and way of living is its principal goal.
Twenty-two nations, mostly in Latin America, have ratified ILO Convention No. 169
at the time of writing (Indigenous Peoples and the United Nations Human Rights
System).The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) provides legal safeguards to indigenous rural women for non-
discriminatory gender equitable communal practises in addition to these international
agreements.7
2. Indigenous Tribes In India
India has been a land of tribes from centuries or beginning of human existence. They
are the natives of this land before the coming of Aryans. India is home to various
distinct tribes, each of which has a distinct linguistic and cultural heritage. A tribe is
defined by anthropological literature as having the following characteristics: (a)
habitat in forested environments, as well as in mountainous or hill-clad terrain; (b)
separation from the greater group, either fully or partially; (c) poverty-level economy
with no production surplus; (d) inefficient technology; (e) absence of labour division
(f) These shared ideals and convictions make to a ―collective conscience.‖ (g) barter-
based economic trade; and (h) additionally, political independence or having one‘s
6
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples (The
General Assembly 2007).
7
UN General Assembly, The Convention on the Elimination of All Forms of Discrimination against
Women (The General Assembly 1979).
13
own policy includes. 8 The term ―Scheduled Tribe‖ is not defined in the Indian
Constitution; however, Article 366(25) 9 refers to communities that have been
scheduled in compliance with Article 34210 of the Constitution as being Scheduled
Tribes or tribal communities, or parts of these tribes and tribal communities that have
been declared as such by the president through a public notification.11
3. The Law of Inheritance in Himachal Pradesh
Himachal Pradesh was a component of the Punjab Hill Republics, which were
created in 1948 as a result of the union of over 30 princely states. All of these
cultures fell within the purview of Punjabi customary law. With relation to
inheritance, ownership, property, and control over land, each of those states had its
distinct custom. According to the Punjab Laws Act of 1872, the kingdoms were to
follow tradition when it came to inheritance, special ownership for women, marriage,
separation, alimony, adoption, guardianship, relations between minorities in families,
wills, endowments, and divisions. Customs served as the main criterion for all
decisions in this subject. Only in the absence of customary law were the laws of
Hindu and Islam to be implemented. The following paragraphs provide a description
of several prominent hill state customs.12
According to District Gazetteer of Punjab; Parmar and Rizvi in Himachal Pradesh‘s

Shimla Hills, Sirmaur, Kangra, Kullu, Lahaul and Spiti and Chamba regions,
polygamy and polyandry were both common practises. In significant portions of
8
John K. Thomas, Human Rights of Tribals: Vol. 2. Empowerment and Protection of The Rights of
Tribals (1stedn, Isha Books 2005).
9
INDIA CONST. art 342, cl.1 & 2 states ―The President may with respect to any State or Union
territory, and where it is a State, after consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups within tribes or tribal communities
which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to
that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude
from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal
community or part of or group within any tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not be varied by any subsequent notification Part Xvii
Official Language Chapter I Language of The Union‖ (Constitution Of India, 1950). The President
may, with regard to any state or union territory, and where it is mentioned, after consulting with the
Governor thereof, by public notification, identify the tribes or tribal communities or portion of or
groups within tribes or tribal community; but, saying as aforesaid, a notification made under the said
section must not be modified by any further notification.
10
John K. Thomas, Human Rights of Tribals: Vol. 2. Empowerment and Protection of The Rights of
Tribals (1stedn, Isha Books 2005).
11
ibid.
12
Raj Mohini Sethi, ‗Customary Practices, Law and Gender in Himachal Pradesh‘ in Prem
Chowdhary (eds), Gender Discrimination in Land Ownership: Land Reforms in India Volume 11
(Sage 2009).
14
Saraj, Kullu, Shimla Hills, Bashahr, Sirmaur, LahaulSpiti, and Kinnaur, polyandry
predominated. In these regions, there were two types of polyandrous marriage one in
which the shared spouses were brothers, and the other without them. The former was
more prevalent among kanets 13 , while certain Brahmin and Rajput subgroups of
lower social levels also adhered to the norms. The third type of polyandry was two
unrelated males who then became ―dharma bhais‖14and they had the same wife. The
father‘s brotherhood was not open to the kids in these marriages. This kind of
marriage was typically chosen by cousins and half-brothers. However, the most
typical pattern had uterine brothers from the same parents having a joint wife.15
District Gazetteer of Punjab (1910) notes that in the princely states, the rulers
encouraged the practise of polyandry and exacted punishments if the landholdings
were divided. A polygamous union ―allowed a balance to be reached between the
family‘s need for the labour in the fields and danger of generating more offspring
than the crops could support,‖ 16 according to Rizvi (1996). Although polyandry
seemed to be the most notable aspect of traditional family life on the surface, it was
actually founded on the mono-marital rule, that prohibited more than one marriage
per home within a generation.17
Regarding the recognition of paternity in polyandric unions, customs varied.

Typically, each child‘s father was acknowledged to be one of the husbands.
Tegbabach (older father) was the oldest father, while the others were gatobabach
(younger fathers). The woman identified the fathers of her children in case the joint
family ever disintegrated for whatever reason. With regard to the distribution of
children among lower castes, a draw of lots was occasionally used in the event that
one of the brothers desired a division of the family estate in order to wed a different
woman. In certain cultures, the lady is regarded as the eldest brother‘s wife, and all of
the children are regarded as his children.18
Primogeniture 19 , also known as ―Jathong‖ and ―Kanchong,‖ which refers to the
13
In the state of Himachal Pradesh in northwest India, the majority of farmers are Rajputs, or ―Kanet.‖
In Sanskrit, the word ―Kanet‖ denotes a disregard for caste. The Kanets assert that they are
decedents of the kings of a mountain empire that reigned two thousand years ago. o
14
―dharmabhais‖ means religious brothers.
15
(Sage 2009).
16
ibid
17
ibid
18
ibid
19
Primogeniture‘ has two symmetric meanings: (1) ―a principle of seniority and authority whereby
siblings are ranked according to their ages, with the eldest coming first; and (2) a principle of
15
rights of the eldest and youngest, was the basis for the division of property and
inheritance within polyandric house-holds. Before the property was actually
divided, the youngest brother received the ancestral home and the eldest brother
received a good farming area. The remaining assets were then split into equal
portions. The argument used to defend the practise was that the youngest child was
too young to build a new home for himself and that the seniority of the eldest
should be honoured. The inheritance regulations that three or four brothers who
shared a bride followed were the ones where the first son is often seen as being the
responsibility of the oldest brother, followed by the second brother for the third
child, and so on. However, among the Thakur households in Lahaul, primogeniture
was the accepted practice. As long as the younger brother lived with the elder
brother, they were guaranteed to sustenance. However, if they decided to live
separately and construct their own homes, they were only given a tiny piece of land
known as the younger son‘s property, also known as dotoenzing. The eldest son or
head of the home was expected to receive services from the descendants of the
youngest sons or pay rent. All sons of minor landowners were eligible to receive
equal parts of their father‘s holdings. They rarely divided the family‘s assets,
though, and instead shared a wife, a home, a yard, and some animals. 20
Singh‘s compilation of Tribal Custom: Rewaj-i-Am prevalent in Kullu, Lahaul,

Spiti Settlement is the most important source of understanding customary
indigenous law of Himachal Pradesh. This book codified the custom related with
Betrothal, Bastardy, guardianship, marriage and divorce, Succession, alienation,
Adoption, Ghar- Jawai, Polyandry Special Property to women and partition with
exhaustive questionnaire compromising 139 questions was drawn up but it sums up
with 124 questions on all matters. This book stated that in Waziri Spiti“the eldest
son inherits while younger sons became Lama. The younger brothers were entitled
to maintenance only.”21
4. Rule of Primogeniture and Inheritance in Spiti
Primogeniture is the form of patriarchy where the firstborn male has the all the power
to inheritance and succession rights. Male domination is key in patriarchal system
inheritance, in which the firstborn child receives all or his parents‘ mostsignificant and valuable
property upon their death. In most cases, the rules have been applied primarily or exclusively to
males‖.
20
(Sage 2009) 62.
21
Bachittar Singh, Tribal Custom: Rewaj-i-Am: Kullu, Lahaul, Spiti Settlement: 1945-51 (H G 2003).
16
which follows the form of masculinities and patriarchal dominance.
Blackstone defines that in primogeniture ―the male issue shall be admitted before the
female, and that when there are two or more males in equal degrees the eldest shall
only inherit, but female all together‖.22 Primogeniture encompasses all of the causes
of single inheritance; it could be defined as primogeniture enjoyed by the oldest male
child or, in the absence of a male child, by the eldest female daughter. The eldest
male child has preference over younger children under customary succession law.23
Primogeniture is believed to be a feudal institution, yet there is no evidence that it

existed prior to feudalism.It has been mostly discarded by those nations that have
completely de-feudalized, but it is fully entrenched in those and only those that are
known to have accepted the feudal system.24
Throughout ―Inheritance Laws Across Colonies: Causes and Consequences”25Alston

and Schapiro (1984) look at the consequences and causes of inheritance laws in
America‘s colonies. Property distribution was dominated by primogeniture and
multigeniture. According to the report, primogeniture favoured big agricultural units
and resulted in asset concentration, allowing owners to wield power. Because each
child knows that he or she will receive an equal part in the future, multigeniture
provided encouragement for family farm labour. Primogeniture, as a result, leads to a
low rate of population expansion. Multigeniture leads to population growth, but if
land is scarce, population growth is limited in both systems. Multigeniture may urge
all of the offspring to marry, but primogeniture may only encourage the eldest to
marry.
In his article ―Gender and Command over Property: A Critical Gap in Economic
Analysis and Policy in South Asia,” 26 Agrawal (1994) explored gender
discrimination in South Asian property rights. The importance of arable land as a
source of subsistence and the most important type of property in South Asia is
emphasised. Their independent land rights are closely related to any significant
alteration in their political, social, or economic circumstances. Improved employment
22
Radhabinod Pal, The History of The Law of Primogeniture: With Special References to India,
Ancient and Modern (University of Calcutta 1929).
23
ibid.
24
ibid.
25
Lee J. Alston & Morton Owen Schapiro, ‗Inheritance Laws across Colonies: Causes and
Consequences‘ (1984)44(2) TJEH <https://www.jstor.org/stable/2120705?seq=1#metadata
_info_tab_contents)> accessed on 02 November 2021.
26
Bina Agarwal, ‗Gender and Command over Property: A Critical Gap in Economic Analysis and
Policy in South Asia‘ (1994) WD <https://www.binaagarwal.com/downloads/apapers/
gender_and_command_over_property.pdf> accessed on 20 October 2021.
17
prospects can be helpful, but land rights are most important for ensuring their social
equality. Although laws are progressive, difficult problems including social,
administrative, and ideological considerations make it difficult to achieve equality in
property rights. The difference between women‘s legal rights and actual land
ownership can be attributed to several obstacles.
4.1. Spiti: Succession and inheritance Rights
The geographical overview of the Spiti valley was covered by Egerton (1864) in his
book ―Journal of a Tour through Spiti: To The Frontier of Chinese Thibet”27wherein
he emphasised that the law of primogeniture strictly governs inheritance and
succession rights. All younger sons must become monks and are not permitted to
marry a woman. During the summer, they work in the fields with their father and
older brother. During the winter, they all congregate in one of the five monasteries:
Kee, Tanygyut, Dhankhar, Pin, and Tabo.
“The Himalayan Districts of Kooloo, Lahoul, and Spiti” 28 by Harcourt (1871),

provides an outline of the socioeconomic organisation in the districts of Kullu,
Lahaul, and Spiti. He stated that all of the districts have been divided into ―kothees,‖
each of which pays taxes to the appropriate state. There were five Kothees in Spiti,
each with its own headman. In Spiti, the Nono was an honorary magistrate with no
civil authority. He was aided by the Gyatpos, a group of five people. In Spiti, each
village had a Lumberdar, who were second in command after the Gyatpo. In the
census of 1868, the population of Spiti was 2272 people. In Spiti, the climate only
allowed for one harvest every year.
In his research ―A Buddhist Land in Western Himalaya‖29 by Verma (1997) addresses

the physical and cultural perspectives of the Spiti valley. He remarked that the
valley‘s wealth is extremely limited. Because of the geographical location, the total
area available for cultivation is limited, and a single crop production is insufficient to
feed the entire population. It is risky to raise the population in the face of limited
resources. As a result, the elderly in Spiti created a rigorous social order centred on
primogeniture. Under this arrangement, the eldest son inherits all of the property and
is given the name ―Khang-Chen,‖ which means ―larger home,‖ while younger sons
are given the option of living with their father in ―Khang-Chun,‖ which means
27
Philip Henry Egerton, Journal of A Tour Through Spiti: To the Frontier of Chinese Thibet, (Tharah
Kardu 1864).
28
Alfred Frederick Pollock Harcourt, The Himalayan Districts of Kooloo, Lahoul And Spiti (Wm. H.
Allen & Co. 1871).
29
V. Verma, Spiti: A Buddhist Land in Western Himalaya (Br Publishing Corporation1997).
18
―smaller house,‖ or being sent to monasteries at a young age. As a result, there was
no the amount of households has grown or fragmentation of the family estate, and the
primogeniture system was successful. If no sons are born, the father desires to marry
one of the girls and make her husband the property‘s heir.
The paper ―Political Space and Socio-Economic Organization in the Lower Spiti
Valley (Early Nineteenth to Late Twentieth Century)‖ 30 by Jahoda (2008) examines
the connection between political influence and socioeconomic structure in the lower
Spiti valley, where Buddhism is the majority. The paper examines how changes in
the land-law system impacted Khangchen households, also known as Khralpa
(taxpayer) households. Continual development of Khangchun (smaller household),
which controlled a tiny amount of land, was transferred by Khangchen household and
Yangchun pa (smaller than Khangchen), where only parents lived, in the nineteenth
century. The Khangchunpas were also required to pay land taxes on a few bigger
plots of land. It discusses how traditional monasteries had a significant role in
society‘s socioeconomic, political, and religious dimensions. There were two types of
taxation systems in the British regime: one for monasteries, which was usual, and
another for British, which was imposed after the mid-nineteenth century. Following
India‘s independence (1947-2000), the political power structure shifted, and the
Panchayat system took its place. The progress of society was aided by many projects
under the five-year plans. Inheritance in the Spiti is still governed by customary law,
and the Khangchen household retains the tradition of primogeniture. These are the
main customs that have led to the perpetuation of supremacy in various ways to this
day.
Sethi‘sstudy about the laws and gender in Himachal Pradesh‘s traditions explores the
indigenous customary laws practiced in different part of state of Himachal Pradesh.
In her study she cites before the formation of state in 1948, the 30 princely states
were under Punjab Hill states, Every princely sate had its own traditions about land
ownership, control, and succession. The Punjab law Act 1872 allowed states to
follow their own customs in matter of succession, property, marriage, divorce and
partition etc. According to her study custom of primogeniture existed in Inheritance
and succession rights in Spiti. After the marriage of eldest son, he succeeded
ancestral property and household known as ‗Khangchen‘ (big household). Younger
siblings were sent to the monasteries. The system of mono-marital prevailed, that is,
30
Chritian Jahoda, ‗Political Space and Socio-Economic Organistaion in The Lower Spiti Valley:
Early Ninteenth to Late Twentieth Century‘ (2008) IATS 4(1).
19
one marriage in one generation in per household in each generation.31In Spiti the rule
of primogeniture follows where eldest brother gets married then he becomes the head
of household taking the place of father and other younger brother and sister go to
monastery. In the absence of sons then daughter can inherit after the marriage where
her husband comes to live with her and looks after the property: the husband is called
―Makpa” in Spiti.32
The law of Primogeniture prevails in inheritance and succession rights in strictest

manner. All younger sons are obliged to become a monk called ‗Lama‘, and not
allowed to marry. They reside in monasteries which are five in numbers: Kee,
Tanygoot, Dhankhar, Pin and Tabo.33
In the Spiti valley after getting the older son married, the parents get separated from
the elder son they live with their other children. Perhaps, this is only in Spiti that
during the lifetime of father his eldest son become the owner of the property. He
becomes Khangchen-Pa (lord of the house) who lives in Khangchen(big house). This
is the custom of Spiti valley which is primogeniture in nature, where eldest son not
eldest daughter succeeds his father during his lifetime. The house where parents
reside is called Khangchun (smaller household) and they are known as Khangchun-
pa. For the livelihood of parents, the small plot is given where the rest of the family
lives and earns its livelihood. After the death of the parents, the ownership of land
and property automatically devolves to the Khangchen-Pa.34
As a result, the primogeniture rule also applies to inheritance in Spiti the ancestral
property is passed down to the eldest son after his marriage, and he immediately
settles into the big home known as the ―Khangchen.‖ After taking over, the father
decides to move into a modest house with a small upkeep plot of land known as
―Khangchen‖. He then releases himself from any obligations related to the family
estate. Khan-Chang-pa (father) sends his younger sons and brothers to Buddhist
monasteries when they are young, where they live out their entire lives. One of the
brothers would leave the monastery and replace the eldest brother if the Khan-Chang-
pa was unable to conceive a child. According to the mono-marital principle,35 there
31
Raj Mohini Sethi, Customary Practices, Law and Gender in Himachal Pradesh‘ in Prem Chowdhary
(eds), Gender Discrimination in Land Ownership: Land Reforms in India Volume 11 (sage 2009).
32
Shiva Chandra Bajpai, LahaulSpiti: A Forbidden Land in Himalayas (Indus Publ. Co. 1987).
33
Philip Henry Egerton, Journal of A Tour ThroughSpiti: To the Frontier of Chinese Thibet
(TharahKardu 1864).
34
Hari Chauhan, Rediscovering Spiti: A Historical and Archaeological Survey (Himachal State
Museum 2017).
35
Mono-marital marriage principle recognizes that in each generation of a family only one marriage
can be contracted.
20
was only one marriage in each of these households‘ foundational generations.

According to the district gazetteer of 1897, monogamy was the custom in Spiti, and a
second wife was rarely brought home under unusual circumstances. The lowest social
classes known as ―dutalpas‖ and ―buzhans,‖ they were descended from Pin
monastery monks, practised polyandry often. Lower classes struggled to survive on a
daily basis since they had extremely little holdings or no land at all.36
According to Ministry of Tribal Affairs Statistics Division (2013) the number of

distinct ethnic groups, etc. that have been notified as Scheduled Tribes totals 705 in
India. In Himachal Pradesh 10 types of Scheduled tribes have been notified as shown
in Table 1.1.
Table 1.1
Classification of Scheduled Tribes in Himachal Pradesh
Sr. No. Tribes in Himachal Pradesh

1. Bodh, Bhot
2. Lahaula
3. Swangla
4. Gaddi
5. Jad, Lamba, Khampa
6. Pangwala
7. Domba, Gara, Zoba
8. Kanaura, Kinnara
9. Gujjar
10. Beta, Beda
Source: Directorate of Census Operations Himachal Pradesh, 2011.
According to Directorate of Census Operations Himachal Pradesh (2011), Swangla

and Lahaula in Lahual and Bodh in Spiti division are the major three tribes in the
district of Lahaul and Spiti.37
36
Hari Chauhan, Rediscovering Spiti: A Historical and Archaeological Survey (Himachal State
Museum 2017).
37
Directorate of Census Operations Himachal Pradesh, District Census Handbook Lahul & Spiti
village: Town wise Primary Census Abstract (Census of India 2011)
21
In Spiti people practice the Tibetan Buddhism. In Spiti majority of people are
Buddhist and belong to Bodh Tribe. According to Census 2011, the total population
of Spiti is 12457out of which10544 (84 percent) people are from the Bodh/ Bhot
Tribe which is a Scheduled Tribe. The Scheduled Caste population is 536 i.e. (4.3
percent) and 1187 (9.5 percent) people are migrant laborers, traders etc.38
In Spiti the applicable Tribal Customary Law among the indigenous tribes is ‗Rewaj-
i-Am’ i.e. ―a set of rules which have been collated from the social customs codified
during the British rule‖. This law still holds good and is applied in legal procedures
concerning bethrothal, marriage and divorce, bastardy, succession and alienation,
adoption, polyandry, partition and special property to women. It clarifies certain
typical points related to succession. It is stated in this customary law that” In Waziri
Spiti, the eldest son inherits while younger become lamas”. It further states “the next
younger brothers are entitled to maintenance only while remaining get nothing”.
This law is gender discriminatory in nature as it based on principle of primogeniture
which is rooted in patriarchy39. It deprives younger male siblings as well as females
from inheritances rights.
The women‘s movement in Himachal Pradesh has been advocating for indigenous
women‘s right to inheritance vis-à-vis Rewaj-i-Am and this law was challenged in
the case Bahadur v. Bratiya and Others40, decided by the High Court of Himachal
Pradesh, Shimla in 2015. The court held that:
The upshot of the appreciation of the evidence and the law discussed hereinabove is
that daughters in the tribal areas in the State of Himachal Pradesh shall inherit the
property in accordance with The Hindu Succession Act, 1956 41 and not as per
customs and usages in order to prevent the women from social injustice and
prevention of all forms of exploitation. The laws must evolve with the times if
societies are to progress. It is made clear by way of abundant precaution that the
observations made hereinabove only pertain to right to inherit the property by the
daughters under the Hindu Succession Act, 1956 and not any other privileges
38
Directorate of Census Operations Himachal Pradesh, District Census Handbook Lahul&Spiti
village: Town Wise Primary Census Abstract (Census of India 2011)
39
Bachittar Singh, Tribal custom: Rewaj-i-Am: Kullu, Lahaul, Spiti Settlement:1945-51 (H. G 2003)
40
Bahadur v. Bratiya and Others, (2003) RSA No.8 (HCHP).
41
The Hindu Succession Act,1956 applies to three categories namely, a)Any person who belongs to
the Bodh, Sikh, Hindu, Jain religions; b)Those who are Hindus (Jain, Buddhist, Sikh, or by birth) or
those who were born to Hindu parents. (c) Anyone who is not a Muslim, Jew, Parsi, Christian, or is
not subject to any law. However, its applicability to the Scheduled tribes is based on notifications
issued by the central government in the Official Gazette as stated ―Notwithstanding anything
contained in sub-section (2), nothing contained in this Act shall apply to the members of any
Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the
Central Government, by notification in the Official Gazette, otherwise directs‖ (INDIA CONST. art.
366, cl.2).
22
enjoined by the tribal in the tribal areas. In view of the definite law laid down by
their Lordships of the Hon‘ble Supreme Court and the judgments of various other
courts, provisions of subsection (2) of Section 2 of Hindu Succession Act, 1956 will
not come in the way of inheritance of the property by the daughters belonging to
tribal area where Hinduism and Buddhism is followed. The personal laws
inconsistent with the constitutional mandates are void under Article 13 of the
Constitution of India.
However, this judgment was challenged in the Supreme Court and the decision is still
pending.
5. Human Rights Concerns
The inherent value and dignity of the individual are the foundation for human rights.
The Universal Declaration of Human Rights has reaffirmed fundamental liberties and
human rights. Fundamental freedom and respect for human rights are mutually
reinforcing and interdependent. Individuals‘ human rights are consequently
fundamental, essential, and inseparable components of universal human rights,
regardless of their gender. Primogeniture is essentially patriarchal in nature by giving
inheritance rights to eldest first-born male, it also leads to hegemonic masculinity
thereby discriminating younger male siblings of their inheritance rights. It also
renders females landless who are victims of patriarchal order of the society which is
essentially primogeniture in character. The customary law of inheritance in existence
in Spiti which is based on rule of primogeniture is ‗patriarchal‘ 42 in nature which
leads to subjugation of younger siblings both males and females. The presence of
‗hegemonic masculinity’43 as a consequence of gender discriminatory nature of the
indigenous customary law poses serious human rights concerns. It also deprives the
younger siblings both male and females of fundamental freedoms that are
concomitants of human rights and‘emotionology’44. Furthermore, it is recommended
that indigenous customary law of inheritance of Bodh tribe of Spiti should be
42
The term “Patriarchy‖ describes an oppressive system that justifies male privilege as well as
privileges based on race, class, and sexual orientation. The basic tenet of the patriarchal system is to
validate male dominance over women and femininity. Hegemonic masculinity is elevated above
other manifestations of masculinity and femininity in this gendered hierarchy.
43
― Hegemonic masculinity”a theory that describes how the existence of several masculinities promotes
hierarchical domination not just between men and women but even within men. According to R.W.
Connell, hegemonic masculinity is the theory that there is a dominant socially constructed form of
masculinity that is ―culturally exalted above other forms of masculinity‖ as well as femininity.
44
“Emotionology‖ is the study of the standards or attitudes that a society, or a specific group within a
society, upholds toward basic emotions and their appropriate expression, as well as the ways that
institutions reflect or support these standards in people‘s behavior. Arlie Hochschild claimed that
people control their emotions to make appropriate displays in accordance with ideologies and
cultural norms. Humans are thought to better communicate their emotions according to Chris
Lucerne‘s idea of emotions.
23
reviewed holistically by the policymakers in the backdrop of Domestic legislation

and international human rights agreements. A civil society advocacy by grassroots
organisations to empower the indigenous people and tapping theiremotional journey
and anxiety of being deprived of inheritance faced by younger siblings both males
and females can be helpful.As a result, the indigenous people have been empowered
and awakened to the fact that all forms of discrimination in customary law of
inheritance based on gender are violations of fundamental freedoms and human
rights.
6. Conclusion
To conclude, international norms and the Indian constitution provides safeguards for
gender justice in all aspects of life but poor regulation and strong patriarchal structure
undermines the fundamental human rights. The rule of primogeniture is based on the
feudal society where land as means of livelihood, a symbol of pride and power tends
to follow primogeniture system which keeps all the inheritance and succession rights
reserved for the first-born male child. The article reflects that in Spiti primogeniture
has been followed from the centuries among the Bodh Tribe which has a major the
impact on gender and human rights concerns of the indigenous community i.e. Bodh
Tribe. In other belts of Himachal, the women‘s movement has challenged the
discriminatory inheritance laws through judicial and civil society intervention which
deprives them of their fundamental freedoms. Moreover, the system of inheritance
and succession rights of Spiti is different from the other tribes of the Himalayan
region. The article describes that there are major two types of household in Spiti 1)
Khangchen (bigger house) 2) Khangchun (smaller house).The firstborn child has all
the rights of inheritance and succession rights after marriage his household is known
as Khangchen (bigger household) whereas other siblings male or female are sent to
monasteries at a very early age without their will or stays with their parents in
Khangchun (smaller house) household with a small piece of land for their
maintenance. This customary law is gender discriminatory for siblings both male and
female and has been followed from centuries. This requires civil society intervention
for empowering the younger siblings for leading an organized human rights advocacy
campaign to make customary law of inheritance consistent with state law and global
human rights norms.
24
THE LIVING CONSTITUTION THEORY AND INHERENT
RIGHTS : AN INDIAN PERSPECTIVE
Kulwinder Singh Gill*&
Ramandeep Singh Sidhu**
1. Introduction
Dignity, liberty, and equality are fundamental guarantees which are enumerated in
each constitution of around the globe and are basis of other human rights, underlying
human existence.1 The Constitution of India, which is a living and organic document,
starts its preamble with ―we the people of India‖, and establishes goals to achieve
such as, ―justice, liberty, equality, and dignity of an individual‖.2These goals have
further been incorporated in Parts III and IV in the form of Fundamental Rights and
Directive Principles of State Policy, respectively. Rights enshrined in the constitution
are not absolute, having some restrictions required to be balanced between an
individual and the society. The constitution is a document of a country that
establishes various organs, their powers, and inter-relationship between them and
how those powers should be exercised. Apart from that, it contains fundamental
rights and liberties of an individual.3 Constitutional law contains both ―legal‖ and
―non-legal norms‖ which are enforceable by the courts of law when violation occurs.
Constitutionalism is another term which is the need of the hour. A country may have
constitution not but necessarily constitutionalism. Constitutionalism means it works
as check on unrestrained powers of various organs, such as legislature, judiciary, and
executive.4 A written constitution, independent judiciary, power of judicial review,
judicial activism, rule of law, and separation of powers are essential facets of
constitutionalism. But when we talk about constitutionalism in context of inherent
rights, these somewhere include the meaning of constituting or constructing on the
basis of written provisions and applying these in modern times.5 Fundamental rights
* Kulwinder Singh Gill, LLM (International & Comparative Law) The West Bengal National
University of Juridical Sciences, Kolkata and also worked as Assistant Professor at K R Mangalam
University, Gurugram.
** Dr.Ramandeep Singh Sidhu, Assistant Professor (Guest Faculty) School of Legal Studies and
Governance (Central University of Punjab) Bathinda.
1
Susanne Baer, ‗Lecture: Liberty, Equality and Dignity: A fundamental Rights Tringle of
Constitutionalism‘ (2009) 59 University of Toronto Law Journal 417.
2
The Constitution of India, 1950, Preamble.
3
M P Jain, Indian Constitutional Law (8thedn, Lexis Nexis, 2018) 3.
4
ibid 6.
5
Ekaterina Yahyaoui Krivenko, Rethinking Human Rights and Global (Cambridge University Press,
2017) 12-13.
are quintessential for human survival, and without invoking directive principles of
state policy which are socio-economic rights, former become somewhat redundant.
So far as fundamental rights are concerned, the rule of law is very essential to foster
equality, enable Indian citizens to enjoy their liberty and live dignified life. The
Indian society is a caste-ridden society where inequalities are ingrained and
hierarchal structure has subjugated the vulnerable communities and stigmatized them.
The constitution of India is a living and organic document, which changes with the
time and judiciary is playing very significant role in its pragmatic interpretation and
accommodating all changing social norms. This paper analyses the living constitution
theory and inherent rights in India, and that how far constitutional courts are
interpreting the constitution as a living document keeping in mind intent of drafters
as well as accommodating changing social needs in such a diverse society. Part I of
the paper opens with constitutionalism and problems prevalent in the Indian society,
and how these can be remedied through interpretation of the constitution. Part II of
the paper analyses the notion of the living constitutional theory, discussing its
historical origin. Also, this provides an insight into two aspects of the living
constitutional theory: living originalism and living constitutionalism, and how these
concepts are looking ahead for changing social norms and interpretation. This part
further provides an insight into nationalist and cosmopolitan nature of the
constitution and how Indian constitution is of cosmopolitan nature. Part III analyzes
role of Indian higher courts in interpretation of the constitution by invoking both the
concepts of living originalism and living constitutionalism. Furthermore, it illustrates
how courts are trying to realize constitutional goals such as liberty, dignity, equality
and justice and transform caste as well as disabilities ridden society intothe modern
democratic society. Part IV deals with how transformative constitutionalism is
working as a tool for interpretation of constitution as a living and organic document.
Part V concludes on the basis of discussion held in the preceding parts.
2. Living Constitutionalism and Living Originalism: Two Complimentary

Theories
The concept of living constitutionalism is not new one, it has been taken from
Howard Lee McBain‘s Book ―The living Constitution‖ that was published originally
in 1927. This concise work by McBain contains number of significant topics and not
particularly focusing on the living constitutional theory. The following lines make the
reader understand McBain‘s notion of living constitution as:
A word”, says Mr. Justice Holmes, “is the skin of a living thought.” As applied to a
living constitution the expression is particularly apt; for living skin is elastic,
expansile, and is constantly being renewed. The constitution of the United States
26
THE LIVING CONSTITUTION THEORY AND INHERENT RIGHTS:
AN INDIAN PERSPECTIVE
contains only about six thousand words; but millions of words have been written by
the courts in elucidation of the ideas these few words encase. 6
According to McBain the constitution is a living document and can be read by any
human being and interpreted in changing societal context. The living
constitutionalism requires change in law with the norms and customs of society.
There are two versions of living constitutionalism theory: living constitutionalism by
David Strauss and Living Originalism by J M Balkin. Although, both of the theories
are against the conventional originalism and propounded new methods of
interpretation of the constitution. Altogether, living constitutionalism and living
originalism form the living constitutionalism theory. Both of the theories are
remedies for the lacks of each other.7 Sandy Levison has distinguished constitutional
interpreters into two categories i.e. protestants and Catholics. J M Balkin and others
who consider that constitution is a text which everyone has right to interpret
according to existing norms and circumstances are protestants, where as Strauss and
others who confer these powers on the judiciary and consider their decisions are
more accurate in changing times are Catholics.
Living Originalism: J M Balkin, diverts from the traditional originalism, states there
are five elements of term , ―original meaning‖ as follows: ―(1) semantic content
(―What is the meaning of this word in English?‖); (2) practical applications (―What
does this mean in practice?‖); (3) purposes or functions (―What is the meaning of
life?‖); (4) specific intentions (―I didn‘t mean to hurt you‖); or (5) associations
(―What does America mean to me?‖)‖ 8 But he says that constitution is a living
document and it changes and adapts according to the society. He offers a
constitutional theory of living originalism against the traditional view of originalism.
Balkin offers two ideal contrasting theories of originalism: Living Originalism and
Skyscraper originalism. Both types of originalism differ in degree of constitutional
construction and application that future generations may engage in. 9 Skyscraper
originalism refers to constitution as a finished product which can be amended
through formal amendments to accommodate changing norms but it is not
constitutional construction. On the other hand, living originalism views the
Constitution as an initial framework for governance that sets politics in motion and
6
Charles A. Beard, ‗The Living Constitution’ (1936) 29 Annals of the American Academy of
Political and Social Science185.
7
J M Balkin, ‗The Roots of Living Constitution‘ (2012) 92 Boston University Law Review 1129.
8
J M Balkin, Living Originalism (Belknap Press of Harvard University 2011) 12.
9
ibid 21.
27
must be filled out over time through constitutional construction. 10 According to

framework originalism constitution can be constructed by judges as well. For living
originalism, he offers a theory of interpretation and construction, the method of text
and principle. It requires fidelity to the original meaning of the constitution,
especially to the rules, principles, standards entailed by the constitution‘s text. It also
requires faithfulness to the principles which underlie the text of the constitution and
apply to build out constitution construction in the present times.11 The method of text
and principle is both originalist and living constitutional but it just diverts in case of
expected application. Living originalism requires that the constitution ought to be
interpreted without defying the intention of drafters, just its application must reflect
the changing social norms.
Both Living Originalism and skyscraper originalism proposes a different account of

constitutional construction which are democratically legitimate. So according to
skyscraper originalism political organizations engage into construction through
amending the constitution. Through theory of originalism looks at the constitution
with the designers‘ perspective and also strives to keep the original framework but it
does not preclude the possible future changes. Rather, in the originalism theory
constitution is never finished product and it has been constructed through judicial and
political ventures.12
Living Constitutionalism: David Strass starts his work with a question do we have a
living constitution? According to him ―living constitution is one that evolves,
changes overtime and adapts to new circumstances, without being formally
amended.‖13 The Living Constitution is manipulable. If the constitution is changing
with time, then surely someone is changing it and it is judges who does so. He has
criticised the idea of originalism, he says essence of the constitution is not text but its
living intention that changes overtime. He has criticised originalism on three grounds
as follows: firstly, amateur history, which requires judges to look into what the
proposers were intending and working at that time while framing the constitution.14
Secondly, there is problem of translation of those words, whether those words were
for their own society when they enacted or for a particular society, 15 and thirdly
Jefferson‘s statement ―earth belongs to the living‖. Jefferson wrote James Madison in
10
ibid.
11
David A Strauss, The Living Constitution (Oxford University Press2010) 3.
12
J M Balkin, ‗Framework Originalism and the Living Constitution‘ (2009) 103 Northwester
University Law Review 549.
13
Strauss, Living Constitution (n 11) 1.
14
ibid18-21.
15
ibid.21-23.
28
1789, ―one generation cannot bind another: We seem not to have perceived that, by
the law of nature, one generation is to another as one independent nation is to
another.‖16According to Jefferson‘s problem that a constitution which is adopted two
centuries ago cannot bind the present and future generations.
Majority of the time the living constitutionalism is considered as just ―interpretation

of the constitution‖, but it is not just confined to one task of interpretation, apart from
interpretation it requires to ascertain the meaning and secondly it involves
constitutional construction which is larger task during the interpretation.
Construction is required in two matters first where a provision is vague or ambiguous
in nature, secondly when there is need to create institutions to bridge or fulfil the
constitutional objectives. 17 These two practices is considered as living
constitutionalism. The Framework originalism leaves the gap to be fulfilled by future
generations and this space is occupied by living Constitution. So here both
framework originalism and living constitutionalism are inextricably connected.
So, according to Strauss, conventional originalists are considering constitution as a

detailed code of historical rules, which will be confined to drafters and its expected
application according to their intentions and cannot be translated into reality these
days. Strauss considered common law as living constitution. He prefers common law
approach over originalism because it is more workable, justifiable, candid and it is
what we do actually. The common law approach is more effective because judges to
reach a decision, make reference to a precedent and if precedents are ambiguous then
they consider arguments on the basis of fair and good policy.18
The living Constitution develops through accumulation and evolution of precedents,

shaped to some degree by notions of fairness and good policy. The common law
exists even before the written constitution and how it has been developing through
precedents and it also gives space to future generations to accommodate changes.
Basically, the living constitutionalism is to give blank check to judges and other
interpreters.19 There are two approaches to being a law: first one is law as an order of
a boss. Here boss does not mean a dictator, it may be democratically elected
legislature. Law as the command theory requires that boss‘s order is final and
originalists fall in this category. But on the other hand, second approach considers
common law evolving and changing with time which is not command of sovereign
16
ibid24.
17
Bruce Ackerman, ‗the Living Constitution‘ (2007) 120 Harvard Law Review 1738.
18
Strauss, Living Constitution (n 11)33.
19
ibid37.
29
and authority of law not arising from any single entity like monarch, rather it is like a
custom that changes and develops overtime. There is no single entity to determine the
content of law and interpreters of law (judges) contribute to the evolutionary process
whereas originalists do not leave scope for independent thinking of judges and binds
them to follow original meaning with intended application of the framers.20 Benjamin
Cardozo one of the Common Law judges of United States said that:
The main purpose of law is welfare of the society. If any rule misses its purpose cannot
permanently justify its existence. [But] it does not mean, of course, judges are not appointed to
set aside a set of rules for any other set of rules which they may think wide or expedient. When
they are called upon to decide how far existing rules need to be extended or restricted, must be
weighed on the basis of welfare of the society.21
David Strauss has taken common law approach and its application in United States
in various cases especially freedom of expression and equality clause which are
most controversial in nature. Common law constitutional interpretation is a
moral reading of the constitution.22 David Strauss provides a significant insight that
how written constitution and common law go hand in hand because common law
does not disregard the past decisions, rather they adopt reasoning for the current
decisions and decide the same. Jefferson‘s problem also entails how only text can be
binding without considering the changing scenario of the society. The common law
approach not only revers the original text but also keeps the changing social norms in
place.
When judiciary exercises its power of judicial review strike down laws which are
unconstitutional or goes against the spirit of the constitution which possibly laws
enacted by the old regimes such as striking down of Section 377 of the Indian Penal
Code by decriminalising the homosexuality in India by protecting rights of
homosexuals under due process clause or procedure established by law.23
3. Constitutional Comparativism: Nationalism or Cosmopolitanism
To deeply understand the theory of Living Constitutionalism, it is required to look

into interpretive aids used for interpretation of constitution by invoking comparative
constitutional approach that has been rejected by Balkin considering constitution as
―our law‖. There are two approaches to understand constitutional comparativism:
20
ibid38.
21
ibid39.
22
James, E Fleming, ‗Living Originalism and Living Constitutionalism as Moral Reading of the
American Constitution‘ (2012) 92 Boston University Law 1171.
23
Also see Lawrence v. Taxes 539 U.S. 558 (2003). The courts interpret the law and construct the
constitution in cooperation with dominant political coalition.
30
constitutional nationalism and Constitutional cosmopolitanism. 24 Nationalist

conception of constitution confines it to a particular area, circumstances and culture
whereas cosmopolitan nature of constitutional interpretation makes it broader.
The Nationalist conception of constitution requires that it must respond to particular

nation because it emerged from it. As Balk in says, the notion of the Constitution as
―our law‖ has embedded within a conception of an intergenerational ―collective
subject‖, ―We the People‖, ―with a collective destiny that engages in collective
activities,‖ which include the construction of the Constitution itself. The notion of
living originalism according to Balk in responds to particular circumstances of
present generation keeping in mind the future generations, and interpreted internally
according to circumstances where foreign sources have no role to play.25A nationalist
conception means a constitution has emerged from particular circumstances, for a
specific community and it must be interpreted exclusively with reference to that
national culture only, without any external influence or reference. But the nationalist
conception is very difficult to be sustained because majority of the constitutions
contain bill of rights which are similar in language and construct a common model of
constitution. In nationalist conception comparative materials are of no assistance
because those are given by external legal system.
On the other hand, Cosmopolitans claim that constitutional guarantees in

constitutions are taken from universal cloth and all constitutional courts are partake
in identification, interpretation and application of the same set of principles.
Cosmopolitans see unity in the midst of diversity. This approach encourages the
courts not only to be confined to national constitutional text while engaging in
interpretation of the constitutional provisions, rather can refer to foreign materials
and international legal materials.26 The courts should interpret the constitutional text
that transcend national boundaries. The International community of states is sharing a
basic commitment to the constitutionalism which is based on principles such as the
rule of law and rights of individuals.27
By this way, cosmopolitan constitutional interpretation accommodates both rights of

individual and their limitations. These rights include the right to freedom of
expression, freedom of religion, and freedom of association etc. underlying the
political theories that what interest these rights are meant to protect. Wherever, these
24
Sujit Choudhary, ‗Living Originalism in India: our Law and Comparative Constitutional Law‘
(2013) 25 Yale Journal of Law and the Humanity 1.
25
Balkin, Living Originalism (n8) 61-64.
26
Sujit, ‗Living Originalism in India‘ (n24).
27
ibid.
31
rights are protected under all the constitutions, are based on liberal political
theories. 28 Comparative jurisprudence approach for interpretation contains various
principles which assist to articulate, explain and comment on the political theories
underlying particular set of constitutional rights. 29 The foreign judgements
significantly contribute to helping implement a right and assist in developing
doctrines for the same.
So far as limitations on rights are concerned, these must be justifiable and it is

common feature of contemporary constitutionalism that rights are not absolute. There
should be fair balance between individual rights and social interests, and limitations
should meet the justification test. To measure the justification of limitations, the
doctrine of proportionality is invoked by the judicial systems, that require a number
of criteria are to be met.30 So far as the rule of construction is concerned, balancing is
essential that can only be done through the principle of proportionality. The rule of
construction is positivistic view, whereas Ronald Dworkin proposed non-positivist
alternative to the balancing. According to him, ―striking a balance is a matter of
‗asking whether the benefits of our policy outweigh its costs to us‖.31 The application
of the constitutional right is said to concern ‗the very different question of what
morality requires, even at the expense of our own interests‘. Dworkin presupposes
that there exists an intrinsic relation between balancing and interests, a relation that
amounts to the thesis that each and every instance of balancing is a balancing of
interests. 32 The principles of construction play very vital role in bridging the gap
between the rule of construction by establishing an essential connection between
constitutional rights and the balancing. Courts, therefore, referring to the text by
invoking comparative jurisprudence strike balance through proportionality and
adopts cosmopolitan approach for adjudication of rights. The courts engage in
comparative exercise not because of similarity of text in constitutions, rather these
assumptions are more persuasive.
The living constitutionalism theory, through living originalism and living

constitutionalism which are supplementary to each other and somewhere becomes
remedies for lacks of each other. The Indian Constitution is notably an example of
living originalism and living constitutionalism which has been interpreted by the
courts since its commencement, by adopting comparative constitutional construction.
28
John Rawls, Political Liberalism (Columbia University Press 1993) 304-350.
29
Sujit, ‗Living Originalism in India‘ (n24).
30
Michel Rosenfeld and András Sajó (Eds), The Oxford Handbook of Comparative Constitutional
Law (Oxford University Press2012) 291-295.
31
Ronald Dworkin, Is Democracy Possible Here? Principles For A New Political Debate (Princeton
University Press 2006) 23-35.
32
ibid.
32
4. Role of Courts in Living Constitutional Theory and Inherent Rights in

India
The constitution of India is a living document which entails both of the aspects of
living constitutional theory: Living Constitutionalism, and Living originalism. The
Indian constitution, initially, was bit hostile to adopting comparative jurisprudence
but it was interpreting the constitution as living document and in later years, courts
have been started invoking comparative jurisprudence to identify, enforce and
reframe the text in Indian context and to realize its‘ both nationalistic and
cosmopolitan nature of rights.
Justice Vivian Bose in his dissenting opinion in K.S. Srinivasan v. Union of India33
said:
There is no sudden and wild departure from the precedents and doctrines that have
already been settled, rather there is contention that the highest court finally forming
and shaping the law of the land, that needs to be understood according to changing
times. The principles of justice enshrined in the constitution have not changed but
never changing complex society needs to review the law and mould the old
principles into a new suitable ideas and ideals. It is very true courts do not legislate
but it is true they mould the existing law and make the law during interpretation.
Justice Vivian Bose has always interpreted the constitution according to present
circumstances, though, interpretation of the constitution by other judges is also very
liberal and went beyond the text and trying to realize the concept of ―we the people
of India‖, and goals enumerated in the preamble itself.
Justice Vivian Bose in his opinion in S. Krishna and ors v. State of Madras34 said
that:
The people of India chose the free way of life and parliament has endowed with to
represent their will and parliament is required to impose limitations on freedoms
after making strict scrutiny. The framers of the constitution did not intend to confer
rights and liberties which are meaningless and illusory or which can be distorted by
any person or institution according to its wish. They did not bestow on the people of
India a cold, lifeless, inert mass of malleable clay but created a living organism,
breathed life into it and endowed it with purpose and vigour so that it should grow
healthily and sturdily in the democratic way of life, which is the freeway.
Justice Vivian Bose, in Virendra Singh and Ors. V State of U.P.35said:
33
K.S. Srinivasan v. Union of India, AIR 1958 SC 419.
34
S. Krishna and ors v. State of Madras, AIR 1951 SC 301.
35
Virendra Singh and Ors.V State of U.P., AIR 1954 SC 447.
33
We have upon us the whole armour of the Constitution and walk from henceforth in
its enlightened ways, wearing the breastplate of its protecting provisions and
flashing the flaming sword of its inspiration.
In another judgment giving significance to living originalism he says that, ―some

portions of the constitution cannot be read without its historical origin from which
they arose. It is of utmost importance to words which are not static and mummified,
but living flames intended to give life to a great nation and order its being, tongues of
dynamic fire, potent to mould the future as well as guide the present‖. The
constitution must be left elastic to meet the needs of changing society. He says that
same things will be viewed differently at different times, not because law is
changing, times are changing instead, so flexibility in interpretation is required.36
In, Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others37the
main principle of constitutional construction is to interpret according to intent with
which it was made. If the meaning of the words in the provisions is precise and very
plain then court should give that meaning only without considering consequences of
the same, but if the words of the provisions are imprecise, not clear and contain more
than one meaning, then the principle of strict construction ceases to apply. In such a
case the court should look into historical background and intent to enact the rule,
purpose of the entire legislation, object to be sought and consequences arriving after
all deliberations, if more, then, which are more liberal and suitable for the given
circumstances?
If there are more than two alternatives, then court must adopt that one which is more
compatible with other parts of the statute or the constitution. All these principles of
interpretation must be applied vigorously in case of interpretation of the constitution
because “the Constitution is a living integrated organism, having a soul and
consciousness of its own. The pulse beats emanating from the spinal cord of the basic
framework can be felt all over its body, even in the extremities of its limbs.
Constitutional exposition is not mere literary garniture, nor a mere exercise in
grammar.”38The constitution must be interpreted liberally to give effect to all parts
with equal degree but that interpretation should not be repugnant to intention of
framers as well.39 In Saurabh Chaudri and others v. Union of India and others,40 the
36
State of West Bengal v. Anwar Ali Sarkar, AIR 1952, SC 75.
37
Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others, AIR 1979 SC 193.
38
ibid para 64.
39
R C Cooper v. Union of India, AIR 1970 SC 564.
40
Saurabh Chaudri and others v. Union of India and others,(2003) 11 SCC 146.
34
court observed, “our constitution is organic in nature, being a living organ, it is

ongoing with the passage of time, law must change. Horizons of constitutional are
expanding.”
In Union of India v. Naveen Jindal,41 the court said interpretation of the constitution
is a herculean task, for the interpretation not only internal sources can be relied,
rather courts must look into relevant rules of other countries, and international
treaties for ongoing interpretation.
The constitution of India, therefore, permits that both aspects of Living constitutional
theory: living originalism and living constitutionalism must be invoked in harmony
with comparative jurisprudence to make it livelier document.
5. Liberty, Equality and Dignity as Basis of inherent Rights and Living

Constitution
The concepts of liberty, equality and dignity are incorporated in the preamble of the
constitution are of elusive nature and change with the time. Fundamental rights are
dynamic in nature and timeless rights which cannot be given static meaning, these are
evolving and transformative instead. It is argued that concept containing these rights
do not change with the time but changing time and situations illuminate and illustrate
the concepts. 42 It is confirmed that fundamental rights themselves have no fixed
content, rather these are empty vessels which present generation will fill with their
own experiences. The court must endeavour to expand the ambit of fundamental
rights through judicial activism and the process of interpretation.43 The concept of
liberty for the first time came before the court in A. K Gopalan44 case a Communist
leader was detained just one month after the commencement of the Constitution. The
preventive detention was authorised under the Preventive Detention Act, 1950
through executive order. The detained person was not provided any procedural rights
especially enshrined under article 22 of the Constitution, such as notice of grounds of
detention, prior notification of detention, right to hearing, right to decision by an
impartial body and adduce evidence etc.
The court considered contention between personal liberty under articles 21 and 19 (1)
(a) of the constitution. Personal liberty under art. 21 covers many more rights and
contains different kinds of restrictions under article 19. Article 19, thus endeavours to
41
Union of India v. Naveen Jindal, AIR 2004 SC 1559.
42
Navtez Singh Johjar v Union of India, AIR 2018 SC 4321.
43
Peoples’ Union for Civil Liberties v. Union of India, (2003)4 SCC 399.
44
A K Gopalan v. State of Madras, AIR 1950 SC 27.
35
strike balance between individual freedom and social interests. Complete deprivation
of personal liberty which includes right to food, sleep, work or not to work or sleep
and such other rights are protected under article 21 of the constitution.45 Article 19
provides specific kind of liberty whereas article 21 contains general liberty of a
human being.
In E. P Royappa v. State of Tamil Nadu46, Equality is a dynamic concept having

many aspects and dimensions, “it cannot be cribbed, cabined and confined” into the
traditional doctrinal principles. Considering, the positive point of view, equality
stands against arbitrariness. Rather these are inherently against one another
equality belongs to the principle of rule of law whereas arbitrariness promotes
whimsical decision and absolute monarchy. When an act is arbitrary in nature, that
contains inequality which does not stand by political logic and constitutional law and
therefore violative of equality.”
Courts, initially, started interpreting fundamental rights separately and conflict was
arising in various rights but in Maneka Gandhi v. Union of India47 the court stated
that every article of part III is not an island rather part of a continent, so these must
be interpreted in wholesomeness not differently. “Man is not dissectible into
separate limbs and, likewise, cardinal rights in an organic constitution, which make
man human have a synthesis”. The constitution cannot be interpreted with an eye of
lexicographer, rather it should be interpreted as ―a single complex instrument in
which one part may throw light on the others.‖ Interpretation, therefore, must
maintain balance between all parts of the constitution.48 Rights cannot be interpreted
exclusively, the right to personal liberty is of widest amplitude and covers variety of
liberties and liberty under art. 19(1) is of specific nature. To realize rights in
changing times, the latent meaning to expressions used in the constitution, can be
given in specific arising times. 49 Provisions of the constitution should not be
interpreted in narrow sense, especially fundamental rights because it is most
significant aspect of human existence. The right to life must be interpreted in such
manner to enhance human dignity and realize human worth. Life is not restricted to
mere animal existence, rather it has facets beyond physical existence.50 The right to
life includes to live with human dignity and for human survival other necessities of
life are there such as shelter, education, food and co-mingling with co-fellow beings.
45
ibid.
46
E. P Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
47
Maneka Gandhi v. Union of India, AIR 1978 SC 578.
48
Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others, AIR 1979SC 193.
49
Video Electronics Pvt. Ltd. and another v. State of Punjab and another, AIR 1990 SC 820.
50
Fancis Coralie Mullin v Union Territory of Delhi, AIR 1981 SC 746.
36
Human needs always change with the passage of time.
Since equality is a dynamic concept, and process of equality and protective

discrimination should be broadened to make concept of equality a living reality not
merely a constitutional phrase. It is required to enhance equalization process to
eliminate inequalities ingrained in the society from times immemorial. Equality is not
merely a matter of legal equality, rather there is need to adopt such a process by
providing protective discrimination to socially, economically and other disabled
segments of society, which is visibly discriminatory, but significantly needs to bring
into picture to eliminate de-facto inequality in society and to foster social equality in
society, which will enable them to live with dignity and liberty.51
Socio-economic justice as assured in the Preamble, Articles 39 and 46 would get

practical content and effect so that dignity and equality of status would become
reality. To achieve goals incorporated in the preamble, it is required that
constitutional interpretation must be harmonious to accommodate everything in one
thread.
In Navtez Singh Johar v. Union of India52the court interpreted the constitution very
liberally even exclusively invoked the living Constitutional theory. The court held
that the constitution fosters the spirit of equality and envisions that every member
enjoys all rights equally. Individuality has been recognized throughout the dynamic
document and change is inevitable. It is the duty of the courts to realize constitutional
vision of equal rights in harmony with changing social norms and society. The court
further stated, ―the constitutional ideals constantly needs to be transformed into
reality by advancing respect for human rights, encouraging inclusion of pluralism,
by fostering harmonization, i.e. unity among diversity, shattering the social norms
developing during medieval egos and to establish an egalitarian liberalism based on
reasonable principles that can meet the scrutiny tests.‖53 The court further said that
the court through its armoury of dynamism should interpret preamble, fundamental
rights and directive principles of state policy in all-inclusive to realize rights of needy
and weaker sections of society, and to protect them from every kind of discrimination
not arising from the state only, but also at the hands of society at large.
InNLSA V. Union of India54 the court held that constitution is of living character and
it must be interpreted dynamically. It must be understood in changing modern reality
51
Ashok Kumar Gupta v. State of U.P., [1997] 5 SCC 201.
52
Navtez Singh Johjar v Union of India, AIR 2018 SC 4321.
53
ibid, para 86.
54
National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
37
and enable society to instil humanely feelings. The court further stated, ―The
judiciary is the guardian of the Constitution and by ensuring to grant legitimate right
that is due to TGs, we are simply protecting the Constitution and the democracy
inasmuch as judicial protection and democracy in general and of human rights in
particular is a characteristic of our vibrant democracy.” The constitution contains
both liberal and substantive democracy with the rule of law as a significant pillar of
democracy. The democracy has its internal morality containing dignity and equality
of all human beings. The rule of law entails protection of human rights of an
individual‖.55
In Naz Foundation v. NCT Delhi56 the Delhi high court, though, not used the words
‗living document‘ or ‗document of organic character‘, but it has applied techniques
and interpreted the constitutional provisions very broadly and liberally to
decriminalize homosexuality. The court said that individual identity is very essential
for realizing and living as a human being. If one vulnerable community is
discriminated by the state without any rational purpose, it is against the principles of
equality, dignity and liberty which are basis of fundamental rights and makes it static
in nature.
The above-mentioned case laws are understandably illuminating how the courts
interpreting the constitution according to changing society, where both living
originalism and living constitutionalism are conspicuous, with the adoption of
comparative jurisprudence. Though, initially in A K Goplan’s case57 the court solely
relied on internal circumstances and resources to interpret procedure established by
law and personal liberty, where foreign sources were denied to be relied upon for
interpretation. But later courts started invoking comparative jurisprudence as in cases
of Naz Foundation58 and Navtej Singh johar59 judgments to interpret the constitution
liberally and what is the status around the globe for LGBT rights, and it was
necessary for giving gist to obligations of India arising under international treaties.
The comparative approach to interpret the constitution significantly enlighten
cosmopolitan nature of constitutional rights under the Constitution of India. In R C
Cooper’s case60 the court stated that interpretation of constitution as living document
should not repugnant to intent of framers, which shows court considered living
originalism to imbibe ideas, and intention of framers and progressively interpret as
55
ibid para 123.
56
Naz Foundation v. NCT Delhi, (2010) Cr.LJ 94.
57
A K Gopalan (n 41).
58
Naz Foundation (n 56).
59
Navtez (n 52).
60
R C Cooper (n 39).
38
living constitution. Both of the approaches of living constitutional theory are present
in the constitutional interpretation by Indian courts.
6. Transformative Constitutionalism as Tool of Living Constitutional

Theory
The constitution not only sets inter-relationship between organs, their powers and
scope but also lays down ideals, aspirations and values to which people have
committed themselves. It depicts the soul of the nation and supreme will of the
people. 61 That is why, it is called living document which helps in shaping and
constructing liberal democracy. For an organic constitution it is not required to have
only written constitution, rather it should imply constitutionalism as well. Prof
UpendraBaxi defines constitutionalism as ―Constitutionalism, most generally
understood, provides for structures, forms, and apparatuses of governance and
modes of legitimation of power. But constitutionalism is not all about governance; it
also provides contested sites for ideas and practices concerning justice, rights,
development, and individual associational autonomy. Constitutionalism provides
narratives of both rule and resistance.”62
To understand the constitutional democracy, it is required to grapple with knowledge

why we have adopted the constitution, especially to understand the notion of
transformative constitutionalism with some degree of certainty. The preamble of the
constitution contains goals and ideals which need to be sought and transformed into
reality through liberal interpretation of constitution especially without defeating the
intention of framers. Karl Klare define transformative constitutionalism as follows:
a long-term project of constitutional enactment, interpretation, and enforcement
committed to transforming a country's political and social institutions and power
relationships in a democratic, participatory, and egalitarian direction. 63
The transformative constitution requires to bridge between historic injustice,

sufferings and discrimination, and for future generations recognition of human rights
and flourishing on equal standing. The major object of the transformative
constitutionalism is to foster social equality. The constitution requires all decisions to
be capable of being substantively justified in terms of ideals and rights it
61
Sanskriti Prakash and Akash Deep Pandey,‗Transformative Constitutionalism and the Judicial Role:
Balancing Religious Freedom with Social Reform‘ (2018) 4(1) Indian Journal of Law and Public
Policy 108.
62
Henry Schwarz and Sangeeta Ray (Eds), A Comparative to Post-Colonial Studies (Blackwell
Publishing2005) 540.
63
Karl, E Klare, ‗Legal Culture and Transformative Constitutionalism (1998) 14 South African
Journal of Human Rights 146.
39
incorporates.64 The Constitution of India a great social document, revolutionary in

nature and aiming at transforming medieval historical society into modern egalitarian
democracy. It can be interpreted and comprehended applying social sciences
approach not confining it to pedantic, traditional legalism.65 Transformative ability of
the constitution makes it living and organic. The constitutions incessantly shape lives
of peoples particularly and society generally. For this, it requires dynamic and
pragmatic interpretation and constitutional courts are striving to fulfil their
obligations to act as the sentinel on qui vivefor guarding the rights of all individuals
irrespective of their sex, choice and sexual orientation. 66 The purpose of
transformative constitution is to realize socio-economic rights especially focusing on
disadvantaged, socially and economically backward people more, so that they can
enjoy a life of dignity, freedom and equality that lies at the heart of our constitutional
democracy. 67 To realize inherent rights, equality not only implies recognition of
human dignity but also ensures equal opportunity to develop their human potential
and social, economic, legal interests of every individual, and the process of
transformative constitutionalism is dedicated to this purpose. 68 Equality can be
achieved, if only the constitutional courts are able to identify and dismantle
systematic discrimination constructed through class, gender, caste etc. Article 1769 of
the constitution is a clear example of social transformation which provides;
Untouchability” is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of “Untouchability” shall be an offence
punishable in accordance with law.
Article 17 abolishes ―any form of‖ untouchability which endeavours to transform

society and eliminate hierarchal social practices of untouchability due to caste. Art.
17 enumerated in the constitution to bring underprivileged and disadvantaged
sections of society into the mainstream and bring equality of status. This article is not
only enforceable against state but also against individuals, groups, corporations and
organized religion.70
The constitution does not define term ―untouchability‖ and it has left open for
interpretation by the drafters deliberately because ―untouchability‖ cannot be
64
Pius Langa, ‗Transformative Constitutionalism‘ (2006) 17 Stellenbosch Law Review 351.
65
State of Kerala v. N M Thomas, AIR 1976 SC 490.
66
Navtez(n 52) para 98.
67
Road Accident Fund and another v. Mdeyid, 2008 (1) SA 535 (CC).
68
Albertyn and Goldblatt, ‗Facing the Challenge of Transformation: Difficulties in the Development
of an Indigenous Jurisprudence of Equality‘(1998) 14 South African Journal of Human Rights 248.
69
The Constitution of India, 1950, art. 17.
70
Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1.
40
confined only to caste system, but it includes other forms of untouchability or

disability which makes the people or groups vulnerable. Prof. K T Shah during the
drafting of the constitution said that there are number of religions which render
women as untouchable. 71 Although, the constitution under articles 14, 15, 19
provide freedom of expression but due to religious practices women in some of the
religious places are prohibited to enter into temples such as Sabrimala temple
where the women aging between 10 to 50 years are prohibited to enter into the
temple, which is violation of articles 14, 19 and 25 of the Constitution to enjoy the
right to freedom of religion. Article 17 is a revolt against the social norms, which
subjugate individuals into stigmatized hierarchies. 72Article 17 must be interpreted
as a powerful guarantee against stigmatization and social exclusion of an
individual. Fundamental rights must be interpreted to accommodate arc of social
justice.
Dignity, liberty and equality are basis of human existence and these can be realized if
only the rule of law is able to protect substantive equality as well and bring social
equality and equal status in the society. the apex court in, Justice K S Puttuswamy v
union of India73 said:
Historically transformation has been taking place into the idea of dignity by
transforming the combination of theological approach (man as God’s creature
deserves dignity) and philosophical approach considering morality its base and
upholding human dignity as constitutional value. It has been transformed from
“respect” to “right” by making it enforceable right.
The court said the living constitution has significantly made an inextricable
relationship between rights enumerated in the constitution. Further the court said
―Life and liberty are inalienable rights, these cannot be disentangled from a dignified
human existence. The constitution of India has entailed individual dignity, equality
and quest for liberty as foundational pillars of the society.‖74
Transformative constitutionalism is a tool for interpretation of constitution and keep

it living and organic document. For the purpose of constitutionalism and protection
of rights, the courts always adopt comparative jurisprudence so that constitutional
goals can be realized keeping in mind obligations arising under international human
rights treaties and fulfil its duties sacred towards the society.
71
Constituent Assembly Debates (29 November 1948).
72
Navtez(n 52) para 75.
73
Justice K S Puttuswamy v union of India, (2017) 10 SCC 1.
74
ibid Para 318.
41
7. Conclusion
Pragmatic interpretation of the constitution, by the constitutional courts is very

significant for a vibrant society. The judiciary is striving to eliminate inequalities
prevalent in the society through interpretation, as a living and organic document. The
judiciary is interpreting the constitution according to modern emerging needs, and
accommodating new minorities and upholding the principles enshrined in the
constitution, without defeating the intention of drafters of the constitution. The
constitutional courts are not only taking reference of historical development and
intention behind the constitution, rather referring relevant laws, rules of other
countries and especially international human rights jurisprudence to foster social
equality, dignity and liberty of a human being. Comparative jurisprudence is playing
very pivotal role to make constitution more enliven and translating ends into reality.
Transformative constitutionalism has been invoked as a tool for realization of
inherent rights. The Constitutional courts not only emphasise fundamental rights,
rather equally promote the fulfilment of directive principles because these enumerate
social justice as an obligation of the state. The rule of law is cardinal principle of
constitutionalism specifically to foster equal social status and make disadvantaged
societies privileged and eliminate disparities among the society.
42
COMPULSORY LICENSING OF COVID-19 VACCINES AND
MEDICINES:A NEED OF AN HOUR IN INDIA
Dipa Gautalair*
1. Introduction
Under the Constitution of India, India as a welfare State is obliged to regulate and
promote public health, safety and the welfare of its people1 and provide timely health
care facilities to its citizens2. Moreover, the International Covenant on Economic,
Social and Cultural Rights, 1966 requires Member States to guarantee right to health
to its citizens3 and simultaneously medical care is a human right of every individual
guaranteed under United Nations Universal Declaration of Human Rights, 1947.4 The
citizens in India have right to health as fundamental right enumerated under Article
21 of the constitution5 and violation of which would be infringement of right to life
guaranteed under Article 21.
India, at the outbreak of the pandemic in the month of April 2020, dived in to take
appropriate measures to deal with the panic situation. Under the Epidemic Diseases
Act, 1897 the Central Government swiftly announced full lookdown and partial
lockdown in some places and simultaneously took initiative to invent vaccines for
Corona Virus Disease- 2019 (COVID-19). Unfortunately, within one year of Covid-
19 first wave, India is hit by the second wave and the third wave is yet on its way as
predicted by the experts6. In the second wave India has witnessed reported cases of
ten thousand infections per day and the situation further worsened in the month of
April 2021 with no sign of slowing down as India‘s health care system faced the
shortage of beds, oxygen, medicines and vaccines7 leading to the huge number of
* Dr.Dipa Gautalair, Guest Faculty, Karnataka State Law University‘s Law School Hubballi-
Karnataka.
1
The Constitution of India 1950, Art. 47
2
C.E.S.C. Ltd. Etc v. Subhash Chandra Bose And Ors 1992 AIR 573
3
The International Covenant on Economic, Social and Cultural Rights 1966, Art. 12
4
The United Nations Universal Declaration of Human Rights 1947, Art. 25 cl.1
5
State of Punjab v. Mohinder Singh Chawla1997 SC 1225
6
Sneha Mordani, ‗Covid Second Wave to End in July, Third Wave After 6 Months: Govt Panel‘
(India Today, 19 May 2021),<https://www.indiatoday.in/coronavirus-outbreak/story/covid-second-
wave-end-july-third-wave-six-months-govt-panel-1804512-2021-05-19> accessed 20 May 2021.
7
Saheli Roy Choudary, ‗India Accounts For 1 in 3 New Covid Cases Being Recorded. Here is its
Second Wave in 5 Charts‘(CNBC, 30 March 2021) <https://www.cnbc.com/2021/05/03/india-covid-
crisis-charts-show-the-severity-of-the-second-wave.html>accessed 20 May 2021.
death tolls8. It is now predicted that by the end of May 2021 India may witness 1.5
lakh cases per day and by end of June 20,000 cases per day cases.9
The present aggravating situation in India leads to the clear violation of the
fundamental right to health of the citizens and calls the State to take prompt and the
quick action for the protection of the lives of the people. In order to cope with the
death tolls and increasing number of COVID-19 cases India is seriously in need of
life saving drugs such as Remdesivir, Tocilizumab and Favipiravrand at the same
time to prevent new COVID-19 there is dire need of Vaccines. These medicines and
vaccines have to be manufactured within the shortest possible time period which is
not possible as the patented drug manufacturing companies enjoy the monopoly right
over the drugs conferred by the Indian Patent Act, 1975. Under such given situations
the State can avail the gift of ―compulsory licences‖ given by the TRIPS which has
been incorporated in the Indian Patents Act, 1970. Hence, it is pertinent to analyse as
to what is compulsory licence, circumstances under which compulsory license can be
issued in respect drugs and medicines and whether the given situation fulfils the
criteria for compulsory licenses of COVID-19 vaccines and medicines.
2. Compulsory Licensing of Drugs and Pharmaceuticals in India: An

Analysis of Legal Framework
The Trade Related aspects of Intellectual Property Rights Agreement refer the
Compulsory license as ―other use without the authorization of the right holder‖10. It is
also referred as ―non-voluntary license‖. Compulsory license is defined as
―authorization permitting a third part party to make, use, or sell a patented invention
without the patent owner‘s consent‖. Patent is one of the Intellectual Property
Rights, a monopoly right conferred by the State on an invention of a novelty,
involving inventive steps and having a commercial use. The patentee is conferred is
monopoly right over the patented invention by excluding others from manufacturing,
selling and using invention. This intellectual property in the case of drugs and
pharmaceuticals creates problems such as fixing high price leaving it unaffordable to
poor and also leads to very slow rate of production difficult to deal with pandemic
situation presently witnessed in India wherein the drugs are required at large scale.
Therefore, to cope with situations like Covid-19 pandemic, TRIPS Agreement
8
India Today Web Desk, ‗India's Daily Covid Death Toll Dips; 2.76 Lakh New Cases Reported in
Last 24 Hrs‘ (India Today, 20 May 2021 ), <https://www.indiatoday.in/coronavirus-outbreak/
story/india-coronavirus-death-toll-cases-recoveries-1804658-2021-05-20>accessed20 May 2021.
9
ibid 7.
10
Trade Related Aspects of Intellectual Property Rights Agreement 1995, s 31.
44
COMPULSORY LICENSING OF COVID-19 VACCINES AND MEDICINES:
A NEED OF AN HOUR IN INDIA
incorporated the principle of compulsory license in the Agreement. This was later
supported by the Doha Declaration. Accordingly India being the signatory to the
Agreement amended the Indian Patents Act, 1970 to accommodate the changes
adopted in the TRIPS Agreement.
However, compulsory licence is not new to India. The provision for compulsory
license was incorporated in the Indian Patens and Designs Act, 1911 11 (now
repealed). Under this legislation the Governor General in Council (now controller
under the Indian Patents Act, 1970) was given wide powers in granting compulsory
license under certain circumstances. The Chapter on ‗Compulsory License‘ was
introduced into the Patents Act on the recommendations made by Ayyangar
Committee of September 195912. This recommendation found to be the precursor for
the provisions on compulsory licensing and subsequently became a part of the TRIPS
Agreement13. The compulsory licence provision which was already present in the
Indian Patents Act, 1970 was continued to have effect even after the formation of
TRIPS Agreement and in furtherance of the TRIPS Agreement on compulsory
licence India came up with Patent Amendment Bill 2005 on 23rd March 2005 to
insert provisions relating to product patent and compulsory license for the export of
patented pharmaceutical products in the exceptional circumstances as stipulated in
the TRIPS Agreement. In this way India further strengthened the provisions relating
to compulsory licence to curtail monopoly over the patented drugs and
pharmaceuticals 14 during the time of pandemic and protect health and life of its
citizens.
Since the discussion revolves around the ‗compulsory licence‘ it is significant to note
as to what happens in compulsory licenses of drugs and pharmaceutical products.
The subject matter of patent i.e. invention, invention of drugs involves procedure
which is expensive, time consuming and further ads on the overall Research and
Development expenditure15. Thus to enjoy the fruits of the invention the inventor
obtains patent to exploit the invention to the fullest extent. This right in intangible
creations provides exclusive right to the companies which made huge investment
during development of the drug by monopolising the manufacturing of the said
11
The Indian Patents Act 1971, s 22 &23.
12
Dr. Feroz Ali, ‗Nexavar: The First Marketinitiated Compulsory License‘, (2016) NUJS Law
Review, 232, 241.
13
ibid.
14
K. D. Raju, ‗Compulsory v Voluntary Licensing: A Legitimate way to Enhance Access to Essential
Medicines in Developing Countries‘, (2017) JIPR, 22, 25.
15
Dr.Shuchi Midha and Aditi Midha, ‗Compulsory License: Its Impact on Innovation In
Pharmaceutical Sector‘, (2013) 2 JFAIEM 2319, 2310.
45
invented drug for the fixed period of time 16 and preventing other pharmaceutical
companies from manufacturing the same patented drugs17.This leads fixing of high
price on the drugs as the inventor or the licensed manufacturer intends to recover the
investment made by way of royalty or investment made in invention of drugs or the
process. This leaves life saving drugs in scarcity and unaffordable to the general
public in times of pandemic. By issuing compulsory license the State allows to
manufacture the patented drugs to some other drug manufacturing companies by
using ‗patented processes‘ involved therein in order to facilitate public at large the
benefit of the life saving drugs during pandemic at reasonable and affordable price
and time. Thus, it is pertinent to analyse the provisions relating to compulsory license
dealt in the Patents Act, 1970 in the context of protecting fundamental right to health
of the citizens.
The Patents Act, 1970 in its Chapter XIV lays elaborate provisions relating to
procedure for compulsory license, circumstances for the grant compulsory license
and conditions to be followed after granting the compulsory license. The Act deals
with three types of situations for the grant of compulsory license firstly, on the
fulfilment of requirements under section 84 of the Act; secondly, on the occurrence
of incidences stipulated under section 92 of the Act; and thirdly, the inherent power
of the State to make use of the patented invention under section 100 and section 102.
The State can grant compulsory license under first situation i.e. under section 84 of
the Act, only on the existence of three conditions, they are:
 In respect of duration, there should be Completion of three years from the

date of grant of patent18; and
 In respect of invention, the patented invention has been failed to satisfy the
reasonable requirement of the public or the patented invention is not
available to the public at affordable price or the patented invention failed to
work in the territory of India19.
The State can grant compulsory licence under this section only on application made
by the person interested in manufacturing the patent drugs for the purpose of
making it workable and to satisfy the requirements of public. Such application is
followed by a lengthy procedure wherein the Controller examines the application to
see whether the above requirements exist to entertain the application from the
16
The Indian Patents Act, 1971, s 53.
17
The Indian Patents Act, 1971, s 48.
18
The Indian Patents Act 1971, s 84
19
Ibid
46
application. If the Controller is satisfied that the prima facie case has been made
out, compulsory licence application proceeds by giving opportunity of hearing to
the patentee:
 The applicant has to serve copies of application for the compulsory license
upon the patentee and to any other person interested in the patented
invention20. The application further required to be published in the Official
Journal21;
 Opportunity of serving notice of opposition given to the patentee or any
other person interested as an opposition for issue of compulsory license to
the patent controller22;
 The controller has to notify the applicant about any such notice of
opposition23;
 The controller can decide as to grant of compulsory license only after
hearing the applicant and opponent24; and
 The compulsory license granted by the controller can be challenged by an
appeal before the Appellate Board25.
If the Controller is of the opinion that there is no prima facie case exists for the
grant of compulsory license, the applicant will be notified accordingly. While
issuing compulsory license to the applicant the Controller has to made order for the
payment of royalty or remuneration to the patentee in terms of section 90 of the
Act.
The second situation in which the State can grant compulsory license on existence
of the situations as stipulated under section 92 of the Act. Section 92 speaks of
extreme circumstances for the grant of compulsory license namely ―national
emergency or in circumstances of extreme urgency or in case of public non-
commercial use‖. Extreme urgency includes public health crises such as Human
Immuno Deficiency Virus, Acquired Immuno Deficiency Syndrome, malaria or
tuberculosis and other epidemics. Under such circumstances the Central
Government is empowered to make declaration by way of notification in the
Official Gazette regarding occurrence of emergency situation and call upon
20
21
22
The Indian Patents Act 1971, s 87sub-s 2
23
The Indian Patents Act 1971, s 87 sub-s 4
24
The Indian Patents Act 1971, s 87sub-s 4.
25
The Indian Patents Act 1971, s 117A.
47
interested person to make an application for the grant of compulsory license. The
Controller after receiving application from the person interested issue compulsory
license on the condition that the drugs manufactured on issuing of compulsory
license are made available at lowest price to the public and simultaneously
protecting the right of the patentee by paying compensation for making use of the
patented invention in drugs26. While granting compulsory license under section 92
the right to be heard is waved off by the Controller as there is no scope for waste of
time in the emergency situation in following lengthy process of notices, hearing
and objections.
The third and the last situation in which the State can issue compulsory license is
by way using the invention for its own purpose. The section 100 of the Patents Act,
1970 confers the inherent power to make use of the invention for its own purpose.
The Central Government on making of patented invention for its own use has to
pay the adequate remuneration in accordance with the economic value to the
patented invention27. Further, the Central Government has been conferred with the
power to acquire the patented invention or an application for a patent. If Central
Government is satisfied that the patent or application of patent is necessary for
public purpose can acquire the same by an notification in the official Gazette and
giving amount of compensation as agreed between the applicant and the Central
Government. Thereupon all rights of the patentee or the applicant will be
transferred and vested in the Central Government and can make use of the
invention for public purpose. 28
3. Compulsory licensed Patented Drugs and Medicines in India
Nearly a decade after the Doha declaration on 9 th March 2012, India created a
landmark in compulsory licensing in drugs and Pharmaceuticals 29 . The grant of
compulsory license on 9 th March, 2012 to Natco Pharma to manufacture patented
medicine ‗Sorafenib Tosyalte‘ has significant role to play as it brought into effect
the Doha Declaration and ensured human right to health. For the than Controller
Mr. P.H. Kurian, 9th of March was the last day of holding of the Controller of the
Patents and he marked this day with landmark judgment of granting the first ever
compulsory license in medicines in India 30.
26
The Indian Patents Act 1971, s 92.
27
28
29
Harish Chander and others, ‗Current Scenario of Patent Act: Compulsory Licensing‘, (2013) 47
IJPE R 26, 27.
30
Aditi Jha and others,’First Compulsory License Likely to impact the Pharmaceutical industry in
India‘,(2013) PFA20, 20.
48
An application was the made by the Nacto Pharma Ltd. for the grant of compulsory
license to manufacture patented medicine ‗Sorafenib Tosyalte‘ which was sold
under trademark ‗Nexavar‘. This Drug was invented by the Bayer Corporation
based at Germany. This medicine was for treating Renal Cell Carcinoma-RCC i.e.
Kidney cancer and also for treating Hepotacellular Carcinoma (HCC) i.e. liver
cancer. It a life saving drug and also was useful in extending the life of the patients
for 4 to 6 years in case of Kidney cancer and 6 to 8 years in case of liver cancer
patients31. The medicine costed US $ 5,608 (approximately Rs. 2.80 Lakh) 32for a
month‘s dosage.
On realising the importance and the scarcity of the drugs, in 2010 Nacto Pharma
Ltd. approached Bayer for a voluntary license but Bayer denied. Later Nacto
applied for a compulsory license to the controller of Patents to manufacture and sell
a generic version of Nexavar. Controller granted first compulsory licence in March
201233. Bayer appealed against the controller decision to the Intellectual Property
Appellate Board (IPAB) and was subsequently dismissed and upheld the order of
the controller. Bayer further challenged it before the Bombay High Court through a
Writ Petition34. However, the Bombay High Court dismissing the Writ Petition and
held that the Court finds no reason to interfere with the order of the Controller 35.
The Bayer did not stop here it preferred a special Leave Petition in Bayer
Corporation v. Union of India and Ors 36 before the Supreme Court against the
Bombay High Court‘s decision. However, in December 2014, the Supreme Court
dismissed Bayer‘s Special Leave Petition and upheld the order of the Controller.37
In this case of compulsory license controller‘s stand for granting compulsory

license was Bayer had supplied only 593 Nexavar boxes which satisfied only 200
patients all over India and in fact around 88842 patients were in need of it. Since
Bayer was enjoying monopoly over the medicine it was selling the drug for Rs.
2,80,000/- per patient for a month‘s treatment and in contrast Nacto offered to
31
Jasmine Kaur, ‗Game Changer in the Generic Industry‘ (Moving the Law, 3 April 2012),
<http://mowingthelaw.blogspot.com/2012/04/game-changer-in-generic-industry.html> accessed 21
May 2021.
32
Ibid.
33
ibid.
34
Bayer Corporation v. Union of India & Others (Writ Petition no 1323 of 2013), (India Kanoon, 8
March 2018) <https://indiankanoon.org/doc/20213113/> accessed 28 May 2021.
35
ibid.
36
Special Leave to Appeal (C) NO(S).30145/2014.
37
Apoorva Mandhani, ‗Apex Court dismisses Bayer‘s SLP against Compulsory License for anti
cancer drug‘, (Live Law, 12 December 2014) <https://www.livelaw.in/apex-court-dismisses-bayers-
slp-compulsory-license-anti-cancer-drug/> accessed 29 May 2021.
49
make it available at Rs. 8,800/- which was just 3 per cent of what Bayer charged
for the same medicine38.
4. Compulsory Licensing of COVID-19 Medicines and Vaccines in India
Ever since the grant of compulsory license on ‗Sorafenib Tosyalte‘ a life saving
drug for patients suffering from kidney and liver cancer in the year 2012 the State
has not made any attempt to make use of the gem of compulsory license in the
Indian Patents Act, 1970. The outbreak of COVID-19 pandemic in India is the
situation far more serious and critical than that of kidney and liver cancer cases as
the present pandemic is leading to huge number of death tolls and increasing
positive cases of COVID-19 with terrible symptoms and side effects such as black
fungus infection or Mucormycosis. This is caused due to the suppression of the
immune system response of the patient by intake of dexamethasone drug in treating
COVID-19. Due to weak immune system these patients are at risk of
mucormycetes organism commonly known as black fungus. Now States like
Gujarat, Rajasthan, Punjab, Bihar, Haryana, Karnataka, Talangana, Odisha and
Tamil Nadu have declared this infection as ‗notifiable‘ disease under the Epidemic
Diseases Act, 189739.
Now it is high time for India, as a welfare State and as a guardian of fundamental
rights of the citizens, is required to act upon to mitigate the situation of pandemic
by making available COVID-19 vaccines and COVID-19 medicines at large scale
and at reasonable affordable price to guarantee right to health of the people. At this
moment to cop up with the tough time though India does not have genie to at once
normal the situation but it can make use of the gift that TRIPS Agreement and law
of Intellectual Properties has given to India that is of issuing ‗compulsory license‘
of drugs and medicines.
As discussed above the Government of India can make use section 92 and section
100 to issue compulsory license for the manufacture of COVID-19 vaccines and
medicines. According to section 92 ‗extreme urgency‘ includes public health crises
such as Human Immuno Deficiency Virus, Acquired Immuno Deficiency
Syndrome, malaria or tuberculosis and other epidemics. The prevailing pandemic
qualifies the state of extreme emergency and public health crises in India.
38
Beatrice Stirner and Harry Thangaraj, ‗Learning from Practice: Compulsory Licensing Cases and
Access to Medicines‘ (2013) 2 PPA 195, 206.
39
The Times of India, ‗Black fungus declared as epidemic in Four States‘, (Times of India, 21 May
2021)<https://timesofindia.indiatimes.com/india/black-fungus-declared-an-epidemic-in-4-states-
1ut/article show/82804720.cms>accessed 29 May 2021.
50
Therefore, the present pandemic directly creates the situation of public health crises
where in the Government of India has to exercise its power under Section 92 of the
Indian Patents Act, 1970.
Further, India can exercise its power under section 100 and 102 of the Indian
Patents Act, 1970 by acquiring the patented medicines namely Remdesivir,
Tocilizumab and Favipiravr which are core medicines in COVID-19 treatment and
vaccines namely Covaxin and Covishield essential to prevent COVID-19 infections
among the public. The Government of India can acquire the patented drugs and
give to the drug manufacturing companies to manufacture after negotiating
royalties with the patentee. Alternatively, the Government can also take over the
patented drug for the public purpose and negotiate compensation by an agreement
with the patentee and in case of default off course the matter may be referred to the
High Court under Section 103.40
5. Conclusion
It has been several months that India is hit by second wave of COVID-19 pandemic
and deaths and positive COVID-19 has never stopped since beginning of the year
2020. In this process India has worked hard to come up with vaccines and tried to
maintain ‗Standards of Practices‘ with few negligence of conducting rallies and
yatras here and there and it could not avoid the second wave. The second wave has
shocked India with huge death tolls and positive cases. By seeing inaction on part
of the State judiciary had to interfere by taking suo motto actions in the matter of
oxygen and hospital beds and comment upon the manner of administration of the
Central Government.
Further, the Supreme Court In Re: Distribution of Essential Supplies and Services
during Pandemic,41 has taken Suo Motu action to remind executive to exercise its
power of compulsory licensing of drugs and medicines under Indian Patents Act,
1970. The judiciary has pointed out that countries like Canada and Germany have
relaxed the legal regimes governing the grant of compulsory licenses. The judiciary
also pointed out that according to the 2001 Doha Declaration, TRIPS should be
interpreted in a manner supportive of the right of members to protect public health
and to promote access to medicines. The Court has ordered Central Government to
revisit the initiative and protocols on the availability of medicines, vaccines and
oxygen at affordable prices and respond on these matters on 10 th of May 2021, the
40
41
Writ Petition (Civil) No.3 of 2021.
51
next date of hearing. This period of sever epidemic calls upon the State to take
immediate action towards issuing compulsory license of COVID-19 vaccines and
medicines without waiting for the direction from the Supreme Court in this matter.
52
HUMAN RIGHTS OF TRANSGENDERS IN INDIA
Monika Negi*&
Ms. Prachi Sharma**
1. Introduction
I respect culture, tradition and religion, but they can never justify the denial of
basic rights. My promise to the lesbian, homosexual, bisexual and transgender
members of the human family is this: I’m with you.
-Former UN Secretary General Ban Ki-moon
A significant moment in the annals of gender justice within the international legal
framework was the declaration stated by the then-United Nations Secretary General
in the year 2013. It acknowledged, among other things, that transgender people had
human rights. In the absence of a specific treaty for the rights of the LGBT
Community1, the endeavors of the charter- and treaty-based bodies, as shown by
several reports and commentaries, demonstrated the desire of the United Nations to
respect, protect, preserve, and uphold the dignity of Transgender Persons.
Regardless of the fact that there are many transgender people in the world today
and that the community has a rich history in culture, religion, and society, the truth
is that they are one of the most excluded groups in society and struggle mightily to
fit into the broad category of gender. The prevalence of transphobia and
homophobia around the world has led to legislation and practices that are harmful
to the society. It is unusual to see that 69 states, to be exact, are far from complying
with this recommendation, which frequently results in state-sponsored conflict
against them. This is despite the United Nations repeatedly urging the state parties
to rescind or restructure their national prejudiced criminal statutes through its
enforcement and surveillance pathways.
* Dr. Monika Negi, Assistant Professor of Law, University Institute of Legal Studies, Panjab
University Regional Centre, Hoshiarpur, Email Id- [email protected].
** Ms. Prachi Sharma, Research Scholar, Department of Laws, Panjab University, Chandigarh.
1
―In fact, the term gender was seldom used even in the basic principle provision of non-
discrimination. The term used was Sex, thereby negating any scope for the non-binary. For example,
the Universal Declaration of Human Rights (UDHR) under Article 2 provides for non-
discrimination on the basis of‖―race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.‖ ―Similar is the case under the International
Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic Social
and Cultural Rights (ICESCR). The term gender does not find place in these core human rights
treaties.
Realizing that the community faces discrimination in all aspects, among which is a
lack of identity, India took a giant step toward protecting the rights of transgender
people in 2014 by acknowledging them as ‗third gender.‘ The NALSA decision 2
had a revolutionary effect, for sure. Until recently, the Indian Constitution and
other foundational ―human rights legal instruments like the Universal Declaration
of Human Rights (hereinafter, UDHR), International Covenant on Civil and
Political Rights (hereinafter, ICCPR),‖ International Covenant on Economic,
Social, and Cultural Rights (hereinafter, ICESCR), and so on were the primary
sources from which community rights in India were derived.
The prompt introduction of a bill on transgender rights, which after much delay
became law in 2019 as the ―Transgender Persons (Protection of Rights) Act,‖ was
one of the numerous benefits of the NALSA judgment. Although it is an enabling
and empowering law, there are some issues with it. A private member‘s bill was
presented in the Indian Parliament in the same year and passed by the upper
chamber of the Parliament, which is unprecedented considering the historically
poor success record of private member‘s legislation. However, the Indian
government prepared and submitted its own version of the legislation to the
Parliament while the private member‘s bill was still waiting in 2016.A
Parliamentary Standing Committee was then asked for their thoughts on this
revised bill. In 2018, a revised version of the bill was submitted in response to the
Committee‘s suggestions.However, once the Parliament was dissolved in 2018 and
a new central administration was established in 2019, the bill was once again
brought in the Parliament, where it was eventually passed. The transgender
community itself has been critical of the right ever since it was established. This
paper aims to examine their human rights by also examining and grasping the
community‘s fragility and current legal safeguards in addition to the laws.
2. Transgenders: Definition
Those who call themselves transgender are individuals whose gender expression
does not conform to the strict gender binary of male and female. Physical violence,
social exclusion, and intolerance have been inflicted upon certain people because of
their gender identity being rejected by mainstream society.Individuals who identify
as transgender but do not relate to one of the socio-cultural groups known as Hijras,
Jogappas, Sakhi, Aradhis, etc. are nonetheless referred to as transgender people
individually.
2
National Legal Services Authority v Union of India and others, [2014] SC 1863.
54
As stated by the United Nations Free and Equal campaign, which was established
by the Office of the High Commissioner for Human Rights (hence, OHCHR) in
2013 to advocate for LGBTQ people‘s equal respect and rights:
Transsexual people, cross-dressers (sometimes referred to as transvestites), and
people who identify as third gender. Transwomen identify as womenbut were
classified as males when they were born, transmen identify as men but were
classified female when they were born, while other trans people don‘t identify
with the gender-binary at all. Some transgender people seek surgery or take
hormones to bring their body into alignment with their gender identity; others do
not.3
The National Centre for Transgender Equality of the United States of America
defines the phrase as follows in its most basic form:
A girl or woman who identifies as feminine but whose gender at birth was
assigned as male is said to be transgender. A boy or man who believes himself to
be male despite having been assigned a female sex at birth is known as a
transgender person. Some transgender individuals identify as neither male nor
female, or as a mixture of or among a spectrum of male and female. People who do
not identify as male or female use a variety of terminology to define their gender
identification, such as androgynous, non-binary, or genderqueer. Cisgender is the
reverse of transgender, and it refers to people whose gender identity corresponds
to the sex they were assigned at birth. 4
Two terms, gender and sexuality, should be mentioned before returning to the topic
at hand. In contrast to gender, which can be a means of self-identification and is
frequently thought of as a social construct, sex is tied to the reproductive system of
the individual. According to the 2003 UNESCO Gender Mainstreaming
Implementation Framework, gender is:
Gender refers to the duties and obligations that are established for men and women
in our families, societies, and cultures. The notion of gender also include
preconceived notions about the traits, abilities, and likely behaviors of both men
and women (femininity and masculinity). We learn about gender roles and
expectations. They fluctuate both within and between cultures, and they can alter
over time. Gender roles are modified by social differentiation systems such as
political standing, class, ethnicity, physical and mental handicap, age, and others.
Gender is important because, when used in social analysis, it shows how men‘s
dominance (or women‘s subordination) is socially produced. Therefore, the
subordination may be altered or terminated. It is neither genetically predetermined
3
―Definitions‖ (UN Free & Equal October 11, 2017) <https://www.unfe.org/ definitions/> accessed
August 24, 2022.
4
―Transgender‖ (Legal Information Institute) <https://www.law.cornell.edu/wex/ transgender>
accessed August 24, 2022.
55
nor permanently fixed.5
In India, the label transgender covers

intersex, gender queer and person bearing such socio cultural identities as kinner,
hijra, aravani and jogta6 for the purposes of enforcing the law 7
Thus, transgender people differ from cisgender people who identify with the gender
they were given at birth, either male or female.
3. Historical Background:
3.1. Ancient Period
Transgender people have traditionally played a significant role in the Indian

community. This community has a long history dating back to our early
beginnings. They play a major role in Hindu religious and mythical literature.
These people are an integral part of the Vedic and Puranic canons, where they are
referred to as tritiyapakriti, or third gender. Somewhere between 400 BCE and 200
CE, the Hindu classic on human sexual behavior known as the Kama Sutra was
created, and in it, men with a third nature for men is described. The inability to
have children is sometimes described as napunsaka, which is a common term in the
Philippines.
According to the society they are a part of, transgender people in India have been
recognized by various titles 8 for a very long time. Ancient epics including the
Ramayana 9 , Mahabharata, Jain scriptures, and others have accounts of Hijras.
According to legend, Lord Rama in the epic Ramayana asks all the men and
women to return to the city as he turns around and heads for the forest after being
banished from the kingdom for 14 years. The Hijra community elected to live with
him under his leadership since they did not feel obligated to go back. The energy to
5
Koïchiro Matsuura, ―UNESCO‘S Gender Mainstreaming Implementation Framework (GMIF) for
2002-2007‖ (PDF.js viewerSeptember 2003) <https: // tinyurl .com /yck7 bbwf> accessed August
24, 2022.
6
ibid. S.2 (k) ―Transgender person means ―a person whose gender does not match with the gender
assigned to that person at birth and includes trans-man or trans-woman (whether or not such person
has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other
therapy), person with intersex variations, genderqueer and person having such socio- cultural
identities as kinner, hijra, aravani and jogta.‖
7
―The Transgender Persons (Protection of Rights) Act, 2019, No. 24, Acts of Parliament, 1949
(India).
8
shiv-shaktis, Aravani, Jogappa, hijra, Aruvani, kinnar or kinner etc.
9
The story of the Hijras not returning to the city and the decision to stay with Lord Rama while they
were leaving for Banwasis a famous incident upon which Ram sanctioned them with power to
confer blessings on childbirth, marriage etc.‖
56
bless people on special ceremonies like childbirth and marriage, as well as at

inaugural functions, is believed to have been granted to them by Lord Rama after
being moved by their devotion. This custom of badhai, in which hijras sing, dance,
and bestow blessings, is thought to have originated at these occasions.
The other Mahabharata epic also makes mention of these group of people. Arjun,
the protagonist of the Mahabharata, was banished in one of its events. There, he
adopted the identity of a hijra and carried out customs that transgender people now
execute at marriage and childbirth. There is yet another transgender-related tale in
the Mahabharata epic. In the Mahabharata, Arjuna and Nagakanya‘s son was
named Ravan. The only stipulation he put on his promise to be sacrificed to
Goddess Kali to ensure the Pandavas‘ victory in the battle of Kurukshetra was that
he spend his final night married.
One of the numerous incarnations of Lord Shiva in Hindu mythology involves his
combining with his wife Parvati to become the androgynous Ardhanari, who is
especially significant to the Hijra people.
Despite the fact that the group is discriminated against in modern times, an
examination of ancient India reveals a more tolerant and courteous attitude toward
the society‘s members.
The Apex Court reaffirmed the community‘s status and superior position in earlier
times in the NALSA verdict10 as well. It was noted that throughout the Mughal era,
the community held significant positions in Islamic religious organizations as well
as in the Ottoman empire‘s commanding judicatures, which were common in the
Islamic world. They also had respectable jobs like those of administrators and
political advisors. 11 In particular during religious events, they were asked for
blessings as they were thought to possess supernatural power.
The situation for transgender people got worse during the British era. They were
classified as a criminal caste 12 and denied civil rights, which are two common
situations from the time that contributed to this judgment. During this time, Section
377 of the Indian Penal Code, 1860, which addresses unnatural offenses, was also
enacted. Even after India gained its independence, transgender people were still
subjected to discrimination.
10
11
M. Michelraj, Historical Evolution of Transgender Community in India, 4(1) ARSS. 17- 19.
12
Criminalized by passing the Criminal Tribes Act, 1871, Act No. XXVII of 1871 (India) (later
repealed) under which certain acts of the members of the community were criminalized.
57
3.2. Modern Period
Compared to British Rule, transgender communities today have a better status

in society. They are recipients of numerous government welfare programs.
This community has the right to vote, participate in the census, and receive
a citizenship ID card. A key program of the 11th Five Year Plan,
MGNREGA provided transgender persons with career prospects. In National
Legal Service Authority v. UOI 13 , the country‘s highest court also proclaimed
transgender people to be a third gender and accorded them all legal and constitutional
rights.
3.3. A Look at Their Vulnerabilities
In India, the transgender group is the most at risk and marginalized, despite the
country‘s illustrious history and several government measures to better the situation
of trans people. They experience victimization in many spheres, including
embarrassment, prejudice, abuses, and intimidation. It is significant to remember that
the 2011 Census officially includes ‗other‘ for the first time while gathering
information on a person‘s sex. This indicated that there are approximately 4.88
million14 transgender people living in the nation as a whole.
The marginalization, prejudice, and violence experienced by the community in

society have been acknowledged by numerous charter- and treaty-based
organisations.
The prevalence of discriminatory criminal laws, which are prevalent in many nations,
is one way in which the rights of the community are violated. 15 Many nations
continue to criminalize the community or specific acts within the community, despite
repeated recommendations from the Human Rights Committee and Human Rights
Council on this matter. This kind of discriminatory law might be seen as state-
sanctioned prejudice towards a certain group. Residents in the area will be subjected
to their bullying and punishment while they are on the job. There are laws that violate
the community‘s right to privacy and freedom, as well as laws that penalize complicit
same-sex relationships.
They still experience prejudice in a variety of work prospects. In reality, National
13
14
B Census 2022, ―Transgender in India‖ (Trans Gender/Others - Census 2011 India January 2022)
<https://tinyurl.com/5bwwdmav> accessed August 24, 2022.
15
Reality Check, ―Homosexuality: The Countries Where It Is Illegal to Be Gay‖ (BBC News May 12,
2021) <https://www.bbc.com/news/world-43822234> accessed August 26, 2022.
58
Human Rights Commission research on the human rights of transgender people in

201816 found that 92% of transgender people lack the ability to work and engage in
any type of economic activity, while having the necessary skills and credentials.
Additionally, psychological bullying is a typical occurrence in the educational
setting. The atmosphere at the school is not respectful of the community‘s rights and
identity. According to the same NHRC research
52% of transgender students reported being bullied by peers, and 15%

reported being harassed by teachers, which is one reason why they stop
studying.17
3.4. Social Isolation and Prejudice
―For a very long time, transgender persons have faced discrimination in the areas of
housing, health, education, and employment. They experience prejudice as a result of
being socially stigmatized and being left out of resources that were available to
transgender persons. The Transgender Person (Protection of Rights) Act, 2019,
prohibits discrimination in vital fields like work, education, and health care, which is
crucial for defending the rights of transgender persons and protecting them from it.‖
3.5. Education
The Indian Constitution guarantees the right to an education to all children up to the
age of 14, as well as to transgender persons. Transgender students rarely get accepted
into schools where they regularly experience bullying and harassment and are either
forced to leave the building or decide to drop out on their own. The lack of awareness
among school administrators, teachers, and classmates is to blame for the low
prevalence of transgender literacy.
3.6. Employment
―The transgender community has experienced prejudice in the workplace and in

questions of employment. They experience discrimination primarily in the form of
harassment, refusal to hire, and invasion of privacy, which results in unemployment
and poverty. The Transgender Person Protection Act prohibits government or private
organizations from discriminating against transgender people in matters of
employment, including recruitment and promotions. It also mandates that each
establishment appoint a person to serve as a complaint officer to handle complaints
16
Neeraj Chauhan, ―Left Alone: Just 2% of Trans People Stay with Parents: India News - Times of
India‖ (The Times of India August 2013) <https://timesofindia.indiatimes.com /india/left-alone-just-
2-of-trans-people-stay-with-parents/articleshow/65380226.cms> accessed August 26, 2022.
17
ibid.
59
related to the Act.
In the matter of Nangaiv. the Superintendent of Police18, the petitioner in the current
case had sought for the position of a female police constable. The application tests
were administered by Tamil Nadu Uniformed Services Recruitment Board in
Chennai. Following the Superintendent of Police of the Karur district‘s approval of
her application,‖ the petitioner was given an order of appointment. She had a medical
exam when she was receiving training at the Vellore Police Recruit School. Her
chromosomal makeup and genitalia led to the diagnosis of transgender according to
the examination. Her birth certificate, medical records, and academic transcripts all
conflicted with the medical examination‘s findings. Later, she was removed from her
position as a lady constable by the Superintendent. ―The Hon‘ble High Court upheld
the petitioner‘s freedom to select a different gender identity as a third gender in the
future based on the medical declaration, and the Hon‘ble court overturned the
Superintendent of Police‘s contested order terminating the petitioner‘s employment
in order to uphold her legal rights as a transgender person.‖
3.7. Other Areas
Numerous other social, cultural, and political rights that this community‘s citizens
are entitled to under the Indian Constitution are also denied to them. They only have
limited access to health care, are not allowed to work in defense-related fields, cannot
obtain licenses, and cannot exercise their right to vote. They are considered
untouchable and outcasts.
4. Statutory Framework For The Transgender Community In India
Although there is no explicit statute guaranteeing the rights of transgender people in

India, the country‘s top court and the Indian Constitution have consistently sided
with this vulnerable population.
4.1. Constitutional Provisions
The constitution‘s preamble demands that each individual Justice is social, economic,
and political status equality. Everyone is equal before the law, according to the
Constitution. The constitutional rights of transsexual people have, however, always
been denied. The explanation for this is that the older policies of the Indian State only
recognized two genders, namely male and female. ―They were denied many rights,
including the right to vote, the right to marry, the right to own property, the right to
18
W.P.No.587 [2014]
60
claim a formal identity through a passport, etc., as well as many other rights,
including the right to education, employment, health, and other things.‖
ARTICLE 14: ―Every person living in India is granted equality before the law and
equal protection under the law under this article. As a result, transgender individuals
fall under its purview and are entitled to equal protection in all areas of state activity‖
ARTICLE 15: ―This article talks about prohibition of discrimination on the ground
of religion, race, caste and sex and includes the third gender also under its domain as
being the citizens they have the right to not to be discriminated on this ground.‖
ARTICLE 16: ―Article 16 deals with equality of opportunity in the matters of public
employment. The transgender community being the citizen of the country should not
be discriminated on the basis of their sexual orientation.‖
ARTICLE 21: “No one may be deprived of their life or personal liberty, unless in
accordance with legal procedure, according to Article 21. But it is a sad fact that
transgender people have been denied life and personal freedom since the dawn of
civilization‖
ARTICLE 326: ―It grants each Indian citizen the ability to vote. It stipulates that
adult suffrage shall govern elections to the House of the People and to the Legislative
Assemblies of States. Every Indian citizen who is not less than twenty-one years old
on the date that may be fixed in this regard by or under any law made by the
appropriate legislature, and who is not otherwise disqualified under this constitution
or any law made by the appropriate Legislature on the ground of non-residence,
unsoundness of motive, or any other ground, shall be eligible to vote in the elections
for the House of the People and the Legislative Assembly of every State‖
4.2. Indian Penal Code
Recently, the constitutional legitimacy of section 377 of the IPC was contested in the
case of Navtej Singh Johar v. the Union of India. 19 According to this clause,
―voluntarily engaging in sexual activity with any man, woman, or animal contrary to
the laws of nature shall be punished with imprisonment for life, or with imprisonment
which may extend to ten years with a fine.‖ ―In a writ petition, the petitioner argued
that Article 21 of the Indian Constitution should be amended to include protections
for the right to sexuality, sexual autonomy, and the freedom to choose a sexual
partner. The Hon‘ble Supreme Court decided that discrimination based on sexual
19
Writ Petition (Criminal)No76 of [2016]
61
orientation is incompatible with the right to equality and the right to privacy,‖ and
thus decriminalized Sec. 377 since sexual orientation is an inherent component of
self-identification.20
4.3. Immoral Traffic Prevention Act’1956
In 1986, this Act underwent a change. The newly modified Act removes the gender
restriction. Along with sex workers who are male or female, this Act also covers
people whose identities are unknown. This Act now makes male and hijra sex
workers criminal subjects as well, providing police with a legal justification for
arresting and intimidating trans people in the workplace.
4.4. Right of Transgender Bill 2014
On December 12, 2014, the bill was introduced in the Rajya Sabha. On April 24, it
was passed unanimously with backing from the opposition parties. Following the
Rajya Sabha‘s approval of the Bill, this day (April 24) is now also recognized as
Transgender Day. 2015 Tiruchi Siva, a Tamil Nadu MP, was the one who introduced
the bill. If the Bill is put into effect, transgender people will experience less hardship.
There are several chapters in the bill that each deal with a particular issue that this
vulnerable group is facing.
The government is obligated to offer transgender pupils with access to a safe and
supportive learning environment, as well as continuing education opportunities,
according the education chapter. The employment part includes two sections: one on
government assistance for transgender entrepreneurs, and another on the
development of programs for vocational training. The government is obligated to
provide social security and health care facilities in the form of HIV clinics and free
SRS as outlined in the chapter on social security and health. Protection against
discrimination in all settings for transgender persons, whether public or private.
Culture, entertainment, and free time are protected as well. They should also be
guaranteed basic liberties like using sanitary facilities.
The bill also mandates the creation of a variety of groups and agencies, such as
transgender-specific federal and state commissions. The primary function of these
commissions will be to investigate and make recommendations on violations of
transgender rights or cases of uneven legislative implementation. It is possible that
Lok Sabha will pass the bill before it expires. After waiting for two years, the
Transgender Persons (Protection of Rights) Bill, 2016, was finally tabled in Lok
20
ibid.
62
Sabha. NALSA found substantial changes between the 2014 Bill and the 2016 Bill.
In its 43rd Report, the Parliamentary Standing Committee on Social Justice also
highlighted many areas where the 2016 Bill diverged from NALSA‘s
recommendations. The Lok Sabha passed the Bill, resulting in the Transgender
Persons (Protection of Rights) Act, 2019, without considering the recommendations
of the Standing Committee. The legislation was challenged by several transgender
persons who claimed it was unconstitutional in parts. Petitioners seek a declaration
that subsections 4, 5, 6, 7, 12(3), 18(a), and 18(d) of the Act are unconstitutional. In
addition, they request that the Court issue a Writ of Mandamus requiring the Central
and State Governments to provide transgender individuals with affirmative action in
public sector jobs and educational opportunities, as the Court declared in its NALSA
decision.
5. Role of Judiciary
The judiciary‘s function in defending transgender people‘s human rights in India:

The acknowledgment and acceptance of transgender people‘s rights in India have
seen a remarkable transformation in the 21st century. Many laws and policies were
created throughout this period, and some laws were changed or repealed. The way we
think about gender identity and sexual orientation has changed as a result of this new
reality. In India, the judiciary significantly contributed to the transgender population
receiving its human rights.
A split bench of the Delhi High Court ruled in Naz Foundation v. Govt. of NCT of
Delhi 21 that prosecuting consenting homosexual sex between adults as a felony
violated fundamental freedoms guaranteed by the Constitution. However, the
Supreme Court reversed this in the Suresh Kumar Koushal case22, and all forward-
thinking efforts in this area were futile.
The Indian Supreme Court established the third gender category for transgender
people in its National Legal Services Authority (NALSA)23 ruling, designating them
as a socioeconomically backward class. The government was directed by this choice
to ensure that they receive job quotas, entry to educational institutions, and health
benefits. The Supreme Court established numerous anti-discriminatory measures in
favour of transgender individuals after taking into account the discrimination and
abuse they had experienced.
21
160 Delhi Law Times 277
22
[2013] Civil Appeal No. 10972 (Supreme Court of India)
23
63
Since it was decided in this case that the right to privacy is an integral part of the
right to privacy, K S Puttaswamy v. Union of India24 is also known as an integral
judgment. Every person, regardless of gender or sex, was likewise given the right to
privacy. Recognizing the right to privacy for transgender people as an unalienable
right will give them autonomy and shield them from government interference while
they exercise their freedom to choose their relations. The Court held:
Privacy includes at its core the preservation of personal intimacies, the sanctity of
family life, marriage, procreation, the home and sexual orientation. Privacy also
connotes a right to be left alone. Privacy safeguards individual autonomy and
recognizes the ability of the individual to control vital aspects of his or her life.
Personal choices governing a way of life are intrinsic to privacy. Privacy protects
heterogeneity and recognizes the plurality and diversity of our culture. While the
legitimate expectation of privacy may vary from the intimate zone to the private
zone and from the private to the public arenas, it is important to underscore that
privacy is not lost or surrendered merely because the individual is in a public place.
Privacy attaches to the person since it is an essential facet of the dignity of the
human being.25
―In the cases of M.P. Sharma v. Satish Chandra, District Magistrate of Delhi (1954),
and Kharak Singh v. State of Uttar Pradesh,‖ this decision nullified its earlier rulings
(1962). Additionally, it was noted that the right to privacy is a natural, unalienable
right that incorporates both the right to gender recognition and the right to sensual
inclination.
Finally, the constitutionality of Sec. 377 was once more called into doubt through the
Navtej Singh Johar v. Union of India26 case. It was alleged that the Section violates
Articles 14, Article 15(1), Article 19(1)(a), and Article 21 of the Indian Constitution.
The petitioners emphasized that the LGBT Community makes up between 7 and 8%
of the Indian population and that, in view of the discrimination the community faces,
their rights must be protected and upheld. The Puttaswamy case court ruling was
followed by the five-judge constitutional bench. The Section was ruled to be illegal
since it criminalizes even adults engaging in consenting sexual activity in private.
Additionally, it was noted that community members should be treated with respect
for their basic human rights like other individuals. Thoughtless lovemaking against
children and other flagitious behaviour will still be governed by this Section, which
will also continue to apply to other types of behaviour.
25
ibid.
26
Writ Petition (Criminal)No76 [2016].
64
Despite the government having legalized consensual sexual relations, there is still a
long way to go before we can be certain of their status and legal rights under other
laws. There is a lack of clarity regarding their legal standing because there is no
specific statute for the group other than the transgenders. Currently, there are a
variety of opinions on whether there is a need for special legislation relating to sexual
orientation for the other minority communities or whether the current legal protection
is sufficient, or with minor modifications, capable of including those who identify
themselves as members of such a community.
5.1. The State’s and The Judiciary’s Progressive Advancements
Despite the numerous victories the transgender community has seen in India thanks
to landmark judgments, systemic oppression and queerphobia, which are pervasive
at various levels of society, occasionally rear their ugly heads. Through ad hoc
progressive decrees and decisions, courts all over India have attempted to address
incidents of oppression and prejudice against the trans community.
The Madras High Court has mandated that the government of Tamil Nadu create a
lexicon with suggestions for 24 words and expressions that promote a respectful
portrayal of the LGBTQIA+ community.
It was noted in a recent lawsuit before the Madras High Court that LGBTQ+
prejudice and queerphobia are amplified at Indian medical schools. It was
discovered that a number of therapies given to transgender people by medical
professionals fall under the category of conversion therapy even though they are
intended to assist their physical and mental wellbeing.
Going deeper into the issue, it was discovered that this apathy was caused by the
medical curriculum that doctors learn throughout their formal training, which
classifies cross-dressing as a sexual aberration and sodomy, lesbianism, and oral
sex as sexual offenses. This eventually filters down to the procedure used when
people who identify as LGBTQ+ visit clinicians.
A variety of state agencies received recommendations for comprehensive steps,

including changing the curriculum to help pupils learn about the concerns of the
LGBTQ+ population. If any professional is discovered engaging in the practice of
changing someone‘s sexual orientation, the Bench threatened to take stern action.
5.2. The Transgender Persons (Protection of Rights) Act, 2019
The Act seeks to safeguard the fundamental rights of the transgender community.
65
The marginalization and issues the community faces in society are projected in the
law‘s statement of objects and reasons, as was already mentioned. Despite the
community being protected by Articles 14, 15, 16, and 19 of the Indian
Constitution, this is what is happening. As a result, it works to find solutions to
every problem that community members encounter.
Important words like inclusive education, people with intersex variants,

transgender people, etc. are defined 27 by the Act. It addresses the prohibition of
discrimination28, which covers discrimination by individuals or organizations, the
justifications for which are also included in the clause. According to the Act, each
person has a right to their own gender identity. 29
However, for certificate of identity, the transgender person is to apply to the

District Magistrate30 for issuing of such a certificate.31
The Act lays forth in full how to modify the gender on a certificate. 32 Section 8 of
the Act imposes obligations on the relevant authorities. The obligations of
establishments are covered in Section 9-12 33 . The topics of education, social
security, and health for transgender people are covered in Section 13–15. In
accordance with Section 16 of the Act, the National Council of Transgender
Persons is established as a monitoring and enforcement body. The Act‘s
requirement that the council include five members from the transgender community
is a step in the right direction. To carry out the mandate and duties specified in
Section 17 of the Act, specialists on the transgender issue are also included.
If you look at the Act closely, you will see that it recognizes the same rights that
are universally given by the Indian Constitution to all citizens. including the right
to travel wherever one pleases, the right to seek and hold public or private office,
the right to enjoy goods, facilities, and other prospects, the right to reside, the right
to be free from denial of service, the right to be free from unjust treatment, the right
27
The Transgender Persons (Protection of Rights) Act, 2019, s.2, No. 24, Acts of Parliament, 1949
(India)
28
(India)
29
(India)
30
(India)
31
(India)
32
The Transgender Persons (Protection of Rights) Act, 2019, §7, No. 24, Acts of Parliament, 1949
(India).
33
9 Such as non-discrimination in employment, grievance redressal mechanism, right of residence etc.
66
to an education, the right to be free from discrimination in the workplace, the right
to medical and healthcare services, and the right to own, rent, or lease any property
one wishes.
6. Areas to look upon
6.1. Government’s Adequate Welfare Initiatives
―While Section 8 outlines the various responsibilities of the government in terms

of rehabilitation, rescue, protection, participation in cultural and recreational
activities, etc. for the improvement of the status of the transgender community, it is
silent on accommodations for the community in terms of employment or
education.‖Given that community members have been marginalized and
discriminated against for a very long time as a result of society prejudices and
beliefs, this is a required action.
6.2. Criminalizing Specific Behaviors and Punishments
The Act adds Section 18 to the list of offenses that are punishable by law. Forcible
or bonded labour, denial of access to public spaces and the right to use them, being
ejected forcibly from one‘s home or town, and other forms of abuse—physical,
sexual, verbal, hectoring, mental, etc.—are a few instances of offenses. According
to the law, these offenses are punishable by between six months and two years in
prison as well as a fine. Comparatively, sexual offenses against women are
punishable under the IPC with far heavier penalties than similar offenses against
members of the LGBT community, which may now result in the death penalty or
even life in prison.
6.3. The Central Government’s initiatives for the transgender community
The Central Government is taking the following actions for the transgender
community‘s benefit:
 Funding towards the construction of shelter dwellings as part of the

Garima Greh project
 The creation of the Support for Marginalized Individuals for Livelihood
and Employment program by the Union Ministry of Social Justice and
Employment (SMILE).
 Online training courses that allow district magistrates or collectors to issue
identity cards to transgender people on a nationwide portal.
67
 Organizing educational events for members of child welfare committees,

juvenile justice boards, jail staff, government authorities in charge of
healthcare, and journalists.
 On August 24, 2022, in New Delhi, the Ministry of Social Justice and
Empowerment (MoSJE) and the National Health Authority (NHA) signed
a memorandum of understanding (MoU) to provide transgender people
with a comprehensive medical package under the Ayushman Bharat-
PMJAY program. A news release states that the MoU between the NHA
and MoSJE will give healthcare benefits to transgender people nationwide
who possess a transgender certificate from the national portal for
transgender people. The The MoSJE would provide a Rs. 5 lakh insurance
policy every beneficiary who is transgender each year.
 The Hindu Adoptions and Maintenance Act and the Juvenile Justice Act
should be harmonized, according to the parliamentary standing committee
on law and personnel, in order to create a uniform and comprehensive
adoption law that should protect all major religions as well as the LGBTQ
(lesbian, gay, bisexual, transgender, and queer) community. According to
the Juvenile Justice Act of 2015, an LGBTQ person can currently apply to
CARA to adopt as a single parent and enter into an adoption agreement
under the Hindu Adoption and Maintenance Act.
7. New Educational Reforms
Guidelines were set forth in a Madras High Court judgment issued in June 2021 to
create an environment that is welcoming to LGBTQ+ people in schools. Many of
them included:
 Make sure the student who identifies as gender non-conforming has access
to gender-neutral toilets.
 Change of name and gender on a transgender person‘s academic records
and adding the word transgender to admissions forms, applications for
competitive examinations, etc.
 Appointing LGBTQ+-inclusive counsellors to listen to complaints and
offer solutions to staff and students.
 Implement the policies established for transgender people‘s health,
education, and social security.
68
The Kerala High Court declared in March 2021 that transgender people should not
be barred from joining the National Cadet Corps (NCC) on the basis of their gender
identification alone.
The right of the transgender community to live as trans people is covered by the
freedom of speech and expression granted by Article 19(1)(a), according to a 2018
ruling from the Kerala High Court.
Ankani Biswas, a transgender person, was appointed by then-Calcutta High Court

Acting Chief Justice Rajesh Bindal to be empanelled as a lawyer in the West
Bengal State Legal Services Authority in July 2021 as a result of the Karnataka
High Court order providing 1% reservation in government employment. First
transgender person to hold the job is Biswas.
The State government was given instructions by the Guwahati High Court to take
suitable action to advance the health and wellbeing of the transgender community
in November 2021.
7.1. Voting Rights
When combined with the Representation of the People Act of 1951, the
Transgender Persons (Protection of Rights) Act of 2019 grants transgender people
the ability to vote and run for office.
7.2. Measures Taken to Lessen the Challenges Transgender People

Encountered During COVID-19
The difficulties the transgender community experienced were only made worse by
the introduction of the COVID-19. Mumbai-based transwoman and transsexual
rights advocate Vicky Shinde discussed the difficulties encountered during the
pandemic.
It has been a really challenging time for us, especially because the majority of our
revenue came from playing at weddings and other events and begging for charity,
but now that has all ceased. All of them have lost their employment, including
those who used to prepare tiffins or work in families. I‘ve worked directly with
cancer patients and sex workers, so I‘ve witnessed some of the challenges the trans
community has faced. For instance, during the lockdown, children of sex workers
were forced to stay at home and observe their mothers being called out.
Furthermore, the transgender community was consistently given the lowest
priority when there was a shortage of pharmaceuticals and healthcare for the
general public, and it is challenging to be the last in a never-ending line of
individuals waiting to be treated.
69
He further added:
Community members themselves attempted to establish organisations and worked
to distribute food for transgender people, particularly those who have been ejected
from their families. Although I was fortunate to be able to return home, my
identification still causes issues with my family. When applying for an Aadhar
card or voter ID card, some of my acquaintances find it quite challenging because
their families have abandoned them since they were young and they have no way
of proving their identity.
A plea was filed with the Kerala High Court claiming that transgender individuals
were going hungry because they did not have ration cards to get food from the
Public Distribution Shops (PDS). The topic of equal access to medical treatment is
also brought up in this petition. The Kerala High Court has ruled that the state must
give free access to necessary medical care for transgender people who provide a
prescription. The Court has declared that transgender individuals have the right to
get government-issued identification and food stamps as soon as they apply for
them.
The Supreme Court criticized the State administrations and Union Territories (UTs)
in December 2021 for disobeying its directives from ten years prior to give ration
and identity cards to sex workers.
The government has a legal obligation to provide the people of this nation with the
most basic comforts. The Court instructed the State Governments, Union
Territories, and other authorities to start the process of issuing ration cards and
voter identification cards to sex workers from the list that is kept by NACO
immediately.
7.3. Initiatives by The Community Itself
Kalki Subramaniam, a prominent advocate for transgender identity in India,

believes that change takes time and that family acceptance is crucial since
protection starts at home. In order to further the transgender cause, Subramaniam
established the Sahodari Foundation in Tamil Nadu in 2008 and the Trans hearts
Art Project in 2017. Over 200 transgender people have received training through
the Trans hearts project to produce expressive artwork that will support their
livelihood through workshops.
8. Conclusion and Suggestions
According to the aforementioned study, it can be said that the Indian judiciary has
consistently led the way in the increasing realization of the fundamental human
rights of the weaker members of society, much like many other human rights
70
concerns. When compared to the Act of 2019, the Supreme Court‘s NALSA
Judgment Guidelines are likewise generally viewed favourably. This new law is
unquestionably commendable, although being too fresh to be examined in terms of
application and enforcement. However, this does not imply that we should lose
sight of the fact that the law has holes and inconsistencies that must be filled right
away.
If the society is to enjoy its basic liberties, the law must be harmonized with other
areas of personal law, social welfare legislation (such as maternity benefits), the
surrogacy law, and criminal law. By doing this, it will be ensured that the legal
loopholes in the protection of civil and political rights are addressed. The
community needs to be made aware of the legal rights that are guaranteed to them
as well as the social welfare programs that the relevant government is required to
implement in accordance with the Act.
 We must recognize that being transgender is not a mental illness. The

WHO also acknowledged the fact that transgender people are mentally
healthy and have the capacity to make reasoned judgments in 2018. All
medical services should be available to transgender people, and those who
want to have gender affirming surgery should have the required facilities.
 The District Magistrate, who has been granted the crucial and dubious
authority of issuing certificates defining the gender of transgender people,
also needs to be sensitively educated and training.
 It is necessary to explore the possibilities of ensuring that the community
has adequate representation in decisions that will have a direct impact on
their life in the future.
 To create a future that is welcoming to queers, seminars must be
scheduled.
 A 24-hour hotline should be set up to assist transgender persons in crisis
and protect their constitutional rights via the provision of counseling and
legal representation.
 We require adequate health insurance. The government should be able to
set aside a certain amount of money for healthcare for economically
disadvantaged trans individuals since they already collect so much tax
revenue.
 In a manner similar to that mandated by the POSH Act (The Sexual
Harassment of Women at the Workplace (Prevention, Prohibition, and
71
Redressal) Act, 2013), businesses must establish effective grievance

redressal mechanisms for transgender people to address harassment claims
without disclosing the identities of those making them.
 Their ability to regain their dignity and sense of self depends on social
acceptability. While courts can only do so much to ensure this acceptance,
organizations and activists from the civil society can step up their efforts.
72
RIGHT TO HEALTH IN PRISONS: ANALYSING PRISONS’
HEALTH STANDARDS AMIDST COVID-19 CRISIS
Akansha Ghose*&
Sunaina Mishra**
1. Introduction and Statement of Problem
Health has become an important aspect of study of human rights. It is

internationally established that every person enjoys the right to life that shall be
protected by law 1 . A necessary component of dignified life is adequate health
which is guaranteed to each person under the Universal Declaration of Human
Rights 2 . In India, Article 21- one of the most expansive fundamental rights
promised under the Constitution has been interpreted by the courts to include the
right to health 3 . The Supreme Court of India has extended Article 21 of the
Constitution which is the umbrella norm protecting persons‘ life and personal
liberty to incarcerated persons4. Ostensibly the enforcement of the right to health
is unqualified by the social status of a person and shall be applicable to all
including prisoners.
The issue of prisoners‘ human rights and well-being however, is not understood
holistically and is fraught with conflicting ideas. Nonetheless the fact that
prisoners are inured to exponentially higher instances of physical and mental
illnesses as compared to other sections of the society 5 shall not be overlooked.
During earlier times, incarceration of offenders was deemed to be a humane
alternative to death penalty and physical punishment but unfortunately at present it
has regressed into one of the gravest human rights crisis 6. Prisons are quick to
become hotspots of contagious diseases due to overcrowding and difficulty in
maintaining social distancing norms. Congestion within prisons, common
* Akansha Ghose, Research Scholar, University of Antwerp, Bellgium (Assistant Professor, Faculty
of Law, Manav Rachna University, Faridabad).
** Sunaina Mishra, Research Scholar, Christ University, Ghaziabad (Assistant Professor, Jemtec
Greater Noida (Affiliated to GGSIPU).
1
Universal Declaration of Human Rights 1948, Article 3.
2
Universal Declaration of Human Rights 1948, Article 25.
3
Parmananda Katara v Union of India, AIR1989 SC 2039.
4
Kishore Singh v State of Rajasthan AIR 1981 SC 625.
5
John v Jacob, ‗Prison Health, Public Health: Obligations and Opportunities‘, [2005]31 (4) AJLM
449.
6
ibid 459.
sanitation facilities available to inmates, prisoners‘ existing co-morbidities at the

time of confinement and the usual insalubrious conditions of jails contributes to
the spread of pathogens amongst its populace. 7 Rapid outbreak of contagious
diseases in prisons may be linked to the dismal overcrowding and lackadaisical
infrastructure placing incarcerated persons at a heightened risk of air borne and
blood borne infections that the rest of the population 8 . Studies show that life
threatening diseases like tuberculosis 9 and Hepatitis C 10 affects detainees
exponentially more than the general community. During the COVID-19 outbreak
in Brazil which has one of the highest prison populations in the world, prison
welfare measures were restricted to blanket bans on visitations even though many
of the inmates were living with co-morbidities and would have required intensive
care in the event of infection.11 In Russia and Myanmar people flouting 'COVID-
19 appropriate behavior rules‘ were detained in already congested jails reversing
the objective sought to be achieved by said rules.12
Ensuring safe and healthy prisons is not merely a concern of prisoners‘ human
rights but of public health. In a study based in the USA, it was found that few
inmates already infected with HIV, after contracting tuberculosis (―TB‖) became
resistant to TB treatment (this may have happened due to mutation of TB pathogen
with the HIV virus preset in the inmates‘ system). Consequently, a highly
contagious form of drug resistant TB spread through prison quarters. The disease
also spread to general population due to direct or indirect mingling of infected
inmates with the public13. The foregoing incident is one of the various instances
7
Talha Burki, ‗Prisons are ―in no way equipped‖ to deal with COVID-19‘ (Lancet, 2-8 May 2020)
<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7252088/#:~:text=Talha%20Burki%20reports.,in
mates%20are%20rarely%20a%20priority.> accessed 25 February 2021.
8
Paul L. Simpson, ‗Prison cell spatial density and infectious and communicable diseases: a
systematic review‘ (BMJ Open 9 April 2019) <https://bmjopen.bmj.com/content/bmjopen/
9/7/e026806.full.pdf> accessed on 05 February 2022.
9
Velen K and Charalambous S, ―Tuberculosis in Prisons: An Unintended Sentence?‖ (The Lancet
Public Health March 22, 2021) <https://www.thelancet.com/journals/lanpub/article/PIIS2468-
2667(21)000499/fulltext#seccestitle10>accessed 30 April 2021.
10
Zampino R and others, ―Hepatitis C Virus Infection and Prisoners: Epidemiology, Outcome and
Treatment‖ (World journal of hepatology, September 28, 2015) <https://www.ncbi.nlm.nih.gov/
pmc/articles/PMC4577639/>accessed 30 April 2021.
11
Shadmi E and others, ―Health Equity and Covid-19: Global Perspectives - International Journal for
Equity in Health‖ (Bio Med CentralJune 26, 2020) <https://equityhealthj.biomedcentral.com/
articles/10.1186/s12939-020-01218-z>accessed 30 April 2021.
12
Sekalala S and others, ―Health and Human Rights Are Inextricably Linked in the COVID-19
Response‖ (BMJ Global HealthSeptember 1, 2020) <https://gh.bmj.com/content/5/9/e
003359>accessed 30 April 2021.
13
Robert B. Greifinger, ―Tuberculosis in Prison: Balancing Justice and Public Health‖ (The Journal of
law, medicine & ethics: a journal of the American Society of Law, Medicine & Ethics October 10,
1993) <https://pubmed.ncbi.nlm.nih.gov/8167808/>accessed 30 April 2021.
74
RIGHT TO HEALTH IN PRISONS: ANALYSING PRISONS’ HEALTH
STANDARDS AMIDST COVID-19 CRISIS
that prove that the well-being of prisoners shall be made a necessary component of
the public health policy.
Indian prisons are a complex mix; approximately seventy per cent of its
inhabitants are undertrials and more than eighty five per cent belong to socially
and educationally backward classes and/or religious minorities 14 . Marginalised
sections of the society that include persons under detention are disproportionately
affected by infectious diseases such as tuberculosis; they are in many cases denied
the appropriate care and treatment due to their social standing 15 . A study
conducted to assess the institutional initiatives curbing spread of tuberculosis in
Indian prisons where the disease is prevalent showed that thorough diagnosis and
administration of tuberculosis treatment to infected inmates could be observed
only in central jails and were almost absent in district level prisons 16. From 1st
March, 2021 to 23rd May, 2021 over forty three hundred cases of COVID-19
infections were reported from various prisons, with Punjab accounting for
maximum such infections 17 . Spread of contagious diseases in prisons not only
threatens the life and health of inmates but also that of prison staff and through
them the general public. Ignoring incarcerated persons‘ right to health during a
pandemic is counterproductive to the goal of eliminating COVID-19 infection
domestically as well as internationally. Most importantly, the issue of disease
control in prisons shall not be studied solely from the point of view of
epidemiology. “Epidemics have been particularly harsh on the economically
vulnerable” 18. The blind enforcement of containment rules in prisons during an
outbreak not only denies the basic right to health to persons under detention but
also encourages arbitrary confinements under the garb of infection control19.
The objective of the article is to understand the relevance of safe prisons in the
14
Vijay Raghavan, ‗Prisons and the COVID-19 Pandemic‘ Economic and Political Weekly (Delhi,
May 22, 2021) <https://www.epw.in/journal/2021/20/comment/prisons-and-covid-19
pandemic.html?0=ip_login_no_cache%3 Dfdf30847b2746205362f3eab179f6cf5>accessed 30 April
2021.
15
Brian Citro,‗Developing Human Rights-Based Approach to Tuberculosis‘ (2016) 18(1) Health Hum
Rights 1.
16
B.M. Prasad, ‗Status of tuberculosis services in Indian prisons‘ (2017) 56 International Journal of
Infectious Diseases 117.
17
Commonwealth Human Rights Initiative, ―Chri‘s Analysis of Changes in Prison Population between
December
2019...‖<https://www.humanrightsinitiative.org/download/1639672606CHRI%20Analysis%20Priso
n.pdf>acessed June 7, 2021.
18
EfratShadmi, ‗Health equity and COVID-19: global perspectives‘ (2020) 19 Int. J Equity Health
104.
19
Jorg Pont,‗COVID-19- The Case for Rethinking Health and Human Rights in Prisons‘ (2021) 111
AJPH 1081.
75
national public health policy especially in the occurrences of epidemics. The

article reviews the present legal corpus on the right to health in prisons, examines
its efficacy during epidiomelogical scenarios and makes a number of
recommendations. Despite numerous medical studies on the vulnerability of
detainees during an infectious boutade, the interface of human rights and infection
control rules has yet to be investigated specially in the light of the COVID-19
scourge in India.
The article starts with an outline of the international covenants and regional
declarations promising prisoners‘ right to health. This is then followed by
prisoners‘ constitutional right to health. The third section of the article is devoted
to the critical analysis of India‘s response to combating the spread of COVID-19
infection in its detention centres and the article ends with concluding remarks and
suggestions on equipping prisons to combat contagious diseases.
2. Internationally Regulating The Right To Health
Prison health forms part of the general health policy of any community. 20
Emergence of health as a social issue led to the foundation of World Health
Organisation (―WHO‖) in the year 1946. Right to health was expressed for the
first time in the Constitution of WHO wherein it was defined as the “state of
complete well-being including physical, social, and mental fitness of a person”.21
Declaration of Alma-Ata, 1978 adopted at the International Conference on
Primary Health Care also confirms that right to health is not only limited to
absence of disease rather is more focused towards the achievement of overall
wellbeing of the individual physically as well as socially. 22 It also reaffirms the
duty of the governments of all countries to develop their domestic health policies
in line with the international commitments. WHO mandates that every person has
the fundamental right to enjoy the highest level of health and such access to health
is unqualified. No person shall be denied enjoyment of this right on grounds of
religion race, political belief and their social condition. The article argues that the
20
‗UNODC Good Governance for Prison Health in the 21 st Century: A policy brief on the
organization of prison health, 2013‘ World Health Organisation
Europe<https://www.euro.who.int/__data/assets/pdf_file/0017/231506/Good-governance-for
prison-health-in-the-21st-century.pdf> accessed June 07, 2021.
21
'Circle of Rights- Economic, Social & Cultural Rights Activism: A Training Resource‘ HRRC
Home<http://hrlibrary.umn.edu/edumat/IHRIP/circle/toc.htm> accessed June 07, 2021.
22
―WHO Called to Return to the Declaration of Alma-Ata International Conference on Primary Health
Care‖ (World Health Organization) <https://www.who.int/teams/social-determinants-of-
health/declaration-of-alma-ata# :~:text= The%20Alma%2Data %20Declaration %20of,
goal%20of%20Health%20for%20All> accessed June 07, 2021.
76
right to health even extends to incarcerated persons. Incarceration of a person is

no bar to holistic fulfilment of right to health and hence, a person in need of
healthcare is to be treated tantamount to a liberated civilian 23. Prisoners have an
equal right to health service which is unqualified by their legal situation. 24
Universal Declaration of Human Rights, 1948 (―UDHR‖) concedes the right to

health as a part of adequate standard of living. UDHR does not limit the scope of
this right merely to being healthy, rather it extends itself to the right to enjoy the
highest achievable standard of health.25Article 12 of the International Covenant on
Economic, Social and Cultural Rights (―ICESCR‖) also encapsulates the right of
all persons to enjoy highest level of physical and mental health. 26 International
Convention on the Elimination of All Forms of Racial Discrimination, 1969
(―ICERD‖)27 provides that every person shall exercise the right to public health
and medical care without being discriminated. The Convention on the Elimination
of All Forms of Discrimination against Women, 1979 (―CEDAW‖), ensures every
woman adequate access to health care facilities. 28
United Nations Committee on Economic, Social and Cultural Rights (―CESCR‖)

defines the right to health as ―enjoyment of variety of facilities, goods, services
and condition necessary for the realisation of the highest attainable standard of
health‖.29 Hence, the right to health includes access to safe drinking and proper
sanitation facilities, amongst others. The unconditional nature of the international
right to health behoves State parties to ensure that medical facilities, hospitals and
intensive care when needed are afforded to persons under detention without
discrimination. Confidentiality and respect also forms part of the broad right to
health of incarcerated persons. Quality of the services provided to the prisoners
must achieve the standards of medical and scientific soundness. 30
23
Stefan Enggist, ‗Prisons and Health’ (First published 2003, World Health Organisation) 20.
24
UNHRC, ‗Basic Principles for the Treatment of Prisoners Rule 9‘ <https://www.ohchr.org/en/
professionalinterest/pages/basicprinciplestreatmentofprisoners.aspx> accessed June 07, 2021.
25
Carol Castleber, ‗A Human Right To Health: Is There One And, If So, What Does It Mean?‘ (2005)
10 Intercultural Hum. L. Rev. 191.
26
International Covenant on Economic, Social and Cultural Rights, 1976 (OHCHR), Art.12
<https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx> accessed June 07, 2021.
27
International Convention on the Elimination of All Forms of Discrimination, 1965, Art 5
<https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx> accessed June 07, 2021.
28
Convention on the Elimination of All Forms of Discrimination Against Women, 1979, Art 12
<https://www.ohchr.org/documents/professionalinterest/cedaw.pdf> accessed June 07, 2021.
29
CESCR General Comment No.14: The Right to the Highest Attainable Standard of Health, 2000,
Art.12 <https://www.refworld.org/pdfid/4538838d0.pdf> accessed June 07, 2021.
30
ibid.
77
Standard Minimum Rules for the treatment of prisoners also known as Nelson
Mandela Rules (―NMR‖) adopted by the United Nations (―UN‖) on 17th
December 2015 vide resolution A/RES/70/175 provides for extensive guidelines
on health of the prisoners. The guidelines mandate the State to ensure spacious
accommodations for inmates with proper air, light and ventilation, maintenance of
hygiene standards in prisons and provision of nutritious and healthy food to the
detainees. 31 NMR casts a duty on the national governments to dispense impartial
health care services to prisoners and, to continually assess the physical and mental
health of inmates and duly act upon such evaluation. 32
Health care personnels especially physicians in charge of treating sick or infirm

inmates are duty bound to protect them physically and mentally without any bias.
Health care professionals shall treat prisoners in need of healthcare as patients and
not as offenders. Treatment provided by them to the detainees shall be tantamount
with that being provided to other citizens diagnosed with similar ailments. 33
Some regional covenants that encapsulate the right to health are European Social
Charter 34 and Inter- American Convention on Human Rights. They embrace the
duty of the domestic governments to provide regular medical care and proper
treatment to all detainees35. African Charter on Human and Peoples‘ Rights also
mandates the State Parties to take all possible measures to protect the health of its
people36.
In its position paper published in 2020the UN suggested that national prison

policies shall be framed or updated along the lines of COVID-19 prevention 37.
While varied policies may be adopted by the national governments in accordance
to the risk prevalent in their countries, prisons shall not be left out of consideration
31
UNDOC, ‗Nelson Mandela Rules, 2015‘ <https://www.unodc.org/documents/justice-and-prison-
reform/Nelson_Mandela_Rules-E-ebook.pdf> accessed June 07, 2021.
32
ibid rule 25.
33
UNHRC, ‗Principles of Medical Ethics relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, principle 1‘ <https://www.ohchr.org/en/
professionalinterest/pages/medicalethics.aspx> accessed June 07, 2021.
34
European Social Charter, para 12 <https://www.coe.int/en/web/european-social-charter> accessed
June 07, 2021.
35
American Convention on Human Rights, Article 5 <https://www.cidh.oas.org /basicos/e nglish /
basic3 .american % 20convention.htm> accessed June 07, 2021.
36
African (Banjul) Charter on Human and Peoples‘ Rights 1982.
37
―Position Paper Covid-19 Preparedness and Responses in Prisons‖ (United Nations Office on Drugs
and Crime (UDOC) March 31, 2020) <https://www.unodc.org/documents/justice-and-prison-
reform/COVID-19/20-02110_Position_paper_EN.pdf> accessed June 29, 2021.
78
as it would amount to inhuman and degrading treatment of prisoners38.
It is apparent from the above discussion that there is no dearth of internationally

recognised health policy. Whether such international commitments were fulfilled
during the COVID-19 crisis specially in the prisons of India shall be answered in the
following sections.
3. Prisoner’s Right to Health Under the Constitution of India
The right to health is acknowledged as an essential component of Article 21 of the

Constitution of India, namely the right to life and personal liberty. The Supreme
Court of India in the case of ―Parmananda Katara v. Union of India”39held that
Article 21 of the Constitution behoves the State to protect a person‘s life. The
decision cast a responsibility on all medical practitioners whether employed in the
public or private sector to offer immediate succour to persons requiring medical
assistance. In the case of ―Consumer Education and Research Centre v. Union of
India”40, it was held that the right to health and medical assistance is an implied
fundamental right that forms part of guarantee under Article 21 of the Constitution.
Employers‘ duty to ensure physical and mental well-being of their workers is also
promised under the guarantee of right to life and personal liberty41.
It is accepted that the right to health- a component of Article 21 of the Constitution

shall extend to all ‗persons'. It is argued that the term ‗person‘ hence includes
prisoners who may be lodged in crammed jails and are equally susceptible to the
perils posed by the COVID-19 pandemic.
A watershed decision in the history prisoners‘ rights was pronounced in the case of
“Sunil Batra v. Delhi Administration and Ors.”42In this matter, the Supreme Court of
India held that a prisoner shall not lose their personhood upon incarceration. Every
person irrespective of whether they are on death row, shall not be indiscriminately
deprived of their fundamental rights. The Supreme Court in the matter of “Shri Rama
Murthy v. State of Karnataka”43 identified key challenges prevalent in Indian prison
systems. They were as follows: overcrowding, delay in trial, torture and ill-treatment,
neglect of health and hygiene, insubstantial food and inadequate clothing, prison
vices, deficiency in communication, streamlining of jail visits and management of
38
ibid.
39
ParmanandaKatara v Union of India, AIR 1989 SC 2039.
40
Consumer Education and Research Centre v Union of India, (1995) 3 SCC 42.
41
Kirloskar Brothers Ltd. v Employee State Insurance Corporation, (1996) 2 SCC 682.
42
Sunil Batra v Delhi Administration and Ors.,1979 SCR (1) 392.
43
Shri Rama Murthy v State of Karnataka, (1997) 2 SC 642.
79
open air prisons. On a perusal of the ―Mulla Committee Report on Jail Reform
(1980-83)‖44, the Court lambasted the deplorable arrangements made in prisons for
upkeep of inmate‘s health. The Court made a prominent observation respecting
society‘s obligation towards health of prisoners. It said that “… society has an
obligation towards prisoners’ health for two reasons. First, the prisoners do not
enjoy the access to medical expertise that free citizens have. Their incarceration
places limitations on access; no physician of choice, no second opinions, and few if
any specialists. Secondly, because of the conditions of their incarceration, inmates
are exposed to more health hazard than free citizens. Prisoners therefore, suffer from
a double handicap”45. In “In Re: Inhuman Conditions in 1382 Prisons”46, the Court
perusing prison statistics as on 31st December, 2014 published by National Crime
Records Bureau observed that despite judicial directions, Indian prisons are infested
with overcrowding. The Court reminded that Article 10 of the International Covenant
on Civil and Political Rights, of which India is a ratifying partner befits the State to
treat incarcerated persons with dignity. Additionally, Universal Declaration of
Human Rights (UDHR) under Article 5 prevents the State from inuring a person to
degrading and inhuman punishment.
Health of incarcerated children was considered by the Court in the matter of “Sheela
Barse v. Union of India” 47 . The Court warranted that spaces to be occupied by
incarcerated children shall be separated from those occupied by adult inmates. It
exhorted the State to consider the health of children at all times while devising any
prison policy.
Right to health of prisoners extend to mental health as was held by the Supreme
Court in the case of “Mrs. Veena Sethi v. State of Bihar”48. In this case, the Court
held that protracted trials adversely affects mental health of inmates thereby violating
their fundamental right to health under Article 21 of the Constitution.
It is clear from the panoply of decisions discussed above that judiciary has extended
the right to health to prisoners and that their basic rights shall not extinguish upon
their conviction.
44
‗Implementation of the Recommendations of All-India Committee on Jail Reform (1980-83)‘
Bureau of Police Research & Development Ministry of Home Affairs (New Delhi, 2003)
<https://www.mha.gov.in/MHA1/PrisonReforms/report.html> accessed June 7, 2021.
45
ibid para 35.
46
In Re: Inhuman Conditions in 1382 Prisons, WP (CIVIL) No. 406 of 2013.
47
Sheela Barse v Union of India, 1986 SCALE (2) 230.
48
Mrs. VeenaSethi v State of Bihar, (1982) 2 SCC 583.
80
4. India’s Commitment to Prisoners’ Health Amidst Covid-19 Pandemic
The Prison Manual of 2016 under Chapter VII provides for medical care
arrangements that shall be mandatorily followed in prisons. It warrants
appointment of a medical officer in every prison. Such officer is cloaked with the
duty of providing adequate treatment to ill inmates and maintaining hygiene of and
sanitisation within prison premises. It also mandates establishment of prison
hospitals where any inmate shall be sent immediately if they complain of a
sickness. Such prison hospitals shall be kept clean and its upkeep shall take place
periodically. In special cases a sick prisoner may be sent to a local district hospital
on the advice of the Chief Medical Officer of the prison. The manual also states
that every prisoner who is infected or is suspected of being infected with a
contagious disease shall be isolated immediately. The space occupied by the
infected detainee and objects used by them shall either be sanitised or destroyed. If
there exist numerous cases of infections, each infected prisoner shall be isolated
from each other in the prison hospital. Every inmate shall be vaccinated
inescapably upon his induction to the prison.
India‘s prisons much like most of the world‘s, are tainted with the challenges of
overcrowding and inadequate hygiene, to name a few. As per a report on prisoner‘s
health and safety amidst the COVID-19 pandemic, published by Amnesty
International, it was observed that at least one-fourth of the total number of
prisoners incarcerated in jails of various States and Union Territories of India were
infected with the novel corona virus, as on September 202049. It is pertinent to note
that the health crisis in Indian prisoners cannot solely be attributed to the COVID-
19 virus. Indian prisons have long been beleaguered by widespread diseases among
its inmates, such as HIV AIDS50, tuberculosis51 and Hepatitis B/C52. Presence of
life threatening diseases within jails overpower the rate of infection observed
amongst civilian population. Unfortunately, the health infrastructure found in
Indian prisons is deplorable. With nearly seventy per cent of incarcerates in jails
awaiting trial, it is lugubrious at the least, to note that the medical personnel in jails
49
―Forgotten behind bars: COVID-19 and prisons‖ (Amnesty International, 2021)
<https://www.amnesty.nl/content/uploads/2021/03/Forgotten-Behind-Bars-REPORT.pdf?x86382>
accessed 05 February 2022.
50
Kate Dolan & Sarah Larney, ‗HIV in Indian prisons: Risk behaviour, prevalence, prevention &
treatment‘ (2010) 132(6) Indian J Med Res 696.
51
B.M. Prasad, ‗Status of Tuberculosis services in Indian Prisons‘ (2017) 56 International Journal of
52
A S Bhadoria, ‗Prevalence of Hepatitis B and C among Prison Inmates in India: A Systematic
Review and Meta Analysis‘ (2021) 13(11) Cureus e19672.
81
are short by over forty per cent 53 . The health crisis in prisons has not merely
exposed the dismal state of medical preparedness and hygiene at such places, but
highlights the plight of under-trials, a challenge that India is facing since a long
time without any remarkable solution in hindsight.
The Supreme Court of India fulfilled its role as guardian of fundamental rights of
citizens by taking suomotu cognisance of the issue of spread of COVID-19 virus in
overcrowded Indian prisons in the matter of ―In Re: Contagion of COVID-19 Virus
in Prisons” 54 . While acknowledging the issue of overcrowding in prisons, the
Court held that inmates are particularly susceptible to contracting the virus in jails
as it is difficult to follow social distancing protocols in confined spaces. Hence, it
adjured the state governments to take appropriate measures to contain the spread of
virus by immediately isolating those inmates who display symptoms of COVID-19
and to offer them proper medical treatment.
On May 2, 2020, the Ministry of Home Affairs issued ―Guidelines on Management

of COVID-19 in Indian Prisons‖55. According to the guidelines, suspected COVID-
19 cases in prisons shall be isolated immediately. New inmates shall mandatorily
pass through thermal screening and must disclose their medical as well as travel
history to prison officials designated for such purpose. The prison management
were directed under the guidelines to ensure observation of social distancing rules
and restricted movement both within the prison and in and out of prison. In case
where a COVID-19 patient is due for release, the prison authorities shall release
them only on being assured that the released inmate would immediately isolate
themselves. Apart from the foregoing requisites, all prisons shall be equipped with
necessary tools to fight the virus such as sanitisation products, masks and Personal
Protective Equipment (PPE), amongst others. Despite hasty orders that came only
after the onslaught of pandemic, Indian prisons were besieged by the COVID-19
virus prominently due to unpreparedness at administrative level. In an attempt to
ameliorate the prison infections many States started releasing their prisoners. The
recommendation was offered by the Supreme Court in the early days of pandemic,
to expedite the release of prisoners who were charged or convicted of offences
53
RaghavanV., ‗Prisons and the pandemic: the panopticon plays out‘ (2020) J. Soc. Econ. Dev.
54
In Re: Contagion of COVID-19 Virus in Prisons, SUO MOTU WRIT PETITION (CIVIL) NO.
1/2020.
55
Women Safety Division, New Delhi, ‗Management of COVID-19 in Indian Prisons – Guidelines
and Protocols Which May Be Followed While Dealing with Persons Arrested, Detained and Those
in Prisons and Correctional Homes‘ Government of India, Ministry of Home Affair (May 2, 2020)
<https://www.mha.gov.in/sites/default/fi les/ManagementofCovid_0 70720 20. pdf> accessed June
7, 2021.
82
punishable up to seven years 56 . The issue did not end with ordering release of
prisoners on parole; prison staff were not unscathed by the virus. In prisons of
Delhi, the infection among staff cascaded more rapidly than among prisoners. The
phenomenon may be attributed to the duties of prison staff that exposes them to
outsiders such as new inmates or visitors. The prison officials responded by setting
up isolation wards for prison staff yet by August 2020, the infection spiked by over
seventy five per cent among prison staff as compared to twenty two per cent
increase in infection rate of inmates57.
Lackadaisical steps taken by governmental bodies exacerbated the already inept

prison facilities during the pandemic. Haphazard measures by the authorities after
the assault of pandemic is a classic example of ―too little too late‖. Despite
numerous judicial orders and ample data pointing to the grave living conditions in
prisons, concrete steps weren‘t taken to reform the system, potentially leading to
prisons becoming COVID hotspots and spreaders.
5. Conclusion and Suggestions
The ignominious mis-management of COVID-19 crisis has compounded the

downfall of national healthcare infrastructure. Despite warning from
epidemiologists concerning a looming second wave of COVID-19 pandemic in
India, many prison decongestion efforts were reversed early in 2021. On 1st March
2021, the Supreme Court in one of its orders58 recalled prisoners who were earlier
released on interim bail. Such premature steps by various State bodies has
exacerbated the already dire state of health and hygiene in prisons. The UN High
Commissioner on Human Rights has been calling for release of political prisoners
amidst COVID-19 crisis and such calls were continually ignored by the State.59As
the health care system of the country reached its nadir starting April 2021, steps
aimed at releasing the gargantuan group of prisoners considering the gravity of
offences and evidence available against them, became the need of the hour. While
the wrecking second wave compelled the Supreme Court to order release of
56
National Alliance for People’s Movement &Ors.v State of Maharashtra &Ors. SLP (CRL) No. 4116
of 2020.
57
Preety Acharya, ‗In Delhi‘s prisons, coronavirus hit the staff harder than the inmates‘scroll.in (New
Delhi, 03 Oct 2020) <https://scroll.in/article/974625/in-delhis-prisons-coronavirus-hit-staff-harder-
than-prisoners>accessed June 07, 2021.
58
National Forum on Prison Reforms v Government of NCT of Delhi and Ors. SLP No. 13021 of
2020.
59
‗Political prisoners should be among first released in pandemic response, says UN rights chief‘ UN
News (UN, 03 April 2020) <https://news.un.org/en/story/2020/04/1061002> accessed 30 April
2021.
83
prisoners again, States did not follow any uniform standard of release. Moreover,
the number of releases ordered at the time was not enough to combat the infection
spread in jails60. In some cases, prisoners succumbed to the virus around strangers
and could not have access to their family even during their last breath61.
It is asserted that the nation‘s overcrowded prisons accommodating a substantial

populace of under trial inmates are the proverbial black spoton the efficacy of its
institutional and administrative practices. Issues such as congestion in jail spaces
and protracted incarceration of undertrial detainees in Indian prisons have been
highlighted time and again by the Courts that have already tendered their
suggestions to tackle such matters62.Spread of infectious diseases can be thwarted
only through early diagnostics and periodic testing within jail premises to isolate
infected inmates from the remaining populace at the nascent stage of any
outbreak 63 . While jail authorities in various States followed Supreme Court‘s
directions and released under trial prisoners on grounds of their vulnerability to
COVID-19 and other factors such as the nature of the offence and age, amongst
others, the health of inmates who remained imprisoned was neglected 64 .
Decongestion efforts by authorities should have been complemented by regular
screening, upkeep of health services and maintenance of hygiene standards in
prisons.65 The courts shall also review pending cases and ensure timely disposal of
matters involving under trials as it would significantly decongest prisons66. In cases
of offences committed during outbreaks the State shall abstain from ordering
arrests where possible67. Imprisoning political offenders could have been avoided
during the outbreak. Where imprisonment is necessary, the Supreme Court had also
suggested placing under trials in house arrest to stymie infection spread in
60
Sameer, ‗Prisoners across globe, including in India, forgotten during COVID-19: Amnesty‘
Hindustan Times (New Delhi, 18 March 2021) <https://www.hindustantimes.com/world-
news/prisoners-across-globe-including-in-india-forgotten-during-covid-19-amnesty-
101616041573518.html>accessed 30 April 2021.
61
Yashraj Sharma, ‗India‘s political prisoners in bad health, lose family amid COVID‘ Aljazeera
(India, 14 May 2021) <https://www.aljazeera.com/news/2021/5/14/indias-political-prisoners-
encounter-deaths-as-covid-rages>accessed 30 April 2021.
62
Shri Rama Murthy v State of Karnataka, 1997 (2) SCC 642.
63
B.M. Prasad,‗Status of Tuberculosis services in Indian Prisons‘ (2017) 56 International Journal of
64
Sakshat Bansal & Shruti Sahni, ‗Bail, prisons and COVID-19: An Indian perspective‘ (2021]) 46(4)
Altern. Law J. 326.
65
ibid.
66
‗Supreme Court says overcrowding in jails related to courts‘ performance, to pass orders‘ The Print
(New Delhi, 5 February 2020) <https://theprint.in/judiciary/supreme-court-says-overcrowding-in-
jails-related-to-courts-performance-to-pass-orders/360393/>accessed 30 April 2021.
67
Sharifah Sekalala, ‗Health and human rights ae inextricably linked in the COVID-19 response‘
(2020) 5 BMJ Global Health e003359.
84
detention centres68. The article suggests that in view of the foregoing observations,
the State shall focus its efforts in formulating alternative punishment policies that
may be resourceful during public health emergencies such as the COVID-19
pandemic. The colonial Epidemic Diseases Act, 1897 was imposed in various parts
of the country during the corona outbreak. The Act provides for imprisonment of
persons who are found violating directions imposed by the State to curb the spread
of a disease. Overcrowding and debilitating infrastructure have blighted the prisons
in India. Placing more people inside the prisons in response to non observance of
COVID-19 appropriate behaviour frustrates the very purpose of enforcement of
such behaviour rules. “Remaining merely a policing act with no emphasis on
coordinated and scientific responses to deal with outbreaks, the Epidemic Diseases
Act, 1897, in its current form has the potential to cause more harm than
good.”69There is, therefore, a definite need to formulate punishments other than
imprisonment and imposition of fines to tackle disobedience during
epidemiological outbreak.
These findings have significant implications for the understanding of how

epidemiological studies specifically in relation to marginalised sections such as
prisoners cannot be understood in isolation and warrants a human rights approach.
Various medical studies and judicial decisions have suggested methods for the
betterment of prisons in India. Such judicial acumen and suggestions made by
scientists can be used to develop targeted interventions aimed at attenuating the
spread of diseases in the event of an outbreak in penitentiaries.
In conclusion, the article avers that the national institutions eschewed

implementation of health and hygiene directions in prisons for long and the ticking
bomb exploded with the onslaught of COVID-19 pandemic in India. The
mitigating measures enforced in the absence of standard prison policies during the
two waves of the pandemic were lacklustre. Paltry efforts to rectify the prison
conditions of the country has not only endangered the lives of prison staff and
inmates during the pandemic but has led to the emergence of Indian prisons as
―COVID hotspots‖. Fulcrum of all prison policies is the acknowledgment that
every human shall be entitled to the right to health irrespective of their
incarceration. Offences are committed by persons depend a lot on their milieu.
68
Krishnadas Rajgopal, ‗Why not place convicts under house arrest, asks SC‘ The Hindu (New Delhi,
May 13 2021) <https://www.thehindu.com/news/national/ponder-over-house-arrest-to-avoid-
choking-of-prisons-supreme-court-tells-legislature/article34550660.ece>accessed 30 April 2021.
69
Rakesh PS, ‗Implementing the Epidemic Diseases Act to combat COVID-19 in India: An ethical
analysis‘ (2021) 7(1) Indian J. Med. Ethics 13, 16.
85
Nonetheless, they are to be tried and punished following the due process of law.
Their punishment however, shall not include denial of health services when they
are in such need. Prisoners are equally entitled to the same right to health which is
bestowed upon liberated persons and therefore, it is the sovereign duty of the State
to acknowledge said right and be accountable for any impairment that could have
been avoided through timely State action. Ethically, the standard of health services
offered to prison inmates shall be in consonance with international protocols and
commensurate with the services provided to general public.
86

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THE ROLE OF UNMIK AND EULEX IN THE WAR CRIMINAL

PROSECUTION PROCESS IN KOSOVO

2. Unmik Contributions and Failures

Nevertheless, an extensive report issued by Amnesty International8 reveals that UNMIK

The process of allegations consisted of a complaint-based system, where individuals who

to the Special Representative, or a recommendation if the Panel eventually considered

3. Eulex Contributions and Failures

are addressed. https://media.unmikonline.org/hrap/Eng/Documents/annual_report_2010.pdf

In the second prominent case, there is a positive remarkable determination of EULEX to

4. Connexion with other Pillars of Transitional Justice

Regarding truth commissions, Kosovo President in 2017 HashimThaci initiated the

Although the international community frequently highlights the milestones achieved in

are adhering to their national as well as international legal responsibilities. It gives a

2. Indigenous Tribes In India

3. The Law of Inheritance in Himachal Pradesh

According to District Gazetteer of Punjab; Parmar and Rizvi in Himachal Pradesh‘s

Regarding the recognition of paternity in polyandric unions, customs varied.

Primogeniture 19 , also known as ―Jathong‖ and ―Kanchong,‖ which refers to the

Singh‘s compilation of Tribal Custom: Rewaj-i-Am prevalent in Kullu, Lahaul,

4. Rule of Primogeniture and Inheritance in Spiti

which follows the form of masculinities and patriarchal dominance.

Primogeniture is believed to be a feudal institution, yet there is no evidence that it

Throughout ―Inheritance Laws Across Colonies: Causes and Consequences”25Alston

4.1. Spiti: Succession and inheritance Rights

“The Himalayan Districts of Kooloo, Lahoul, and Spiti” 28 by Harcourt (1871),

In his research ―A Buddhist Land in Western Himalaya‖29 by Verma (1997) addresses

The law of Primogeniture prevails in inheritance and succession rights in strictest

was only one marriage in each of these households‘ foundational generations.

According to Ministry of Tribal Affairs Statistics Division (2013) the number of

Sr. No. Tribes in Himachal Pradesh

Source: Directorate of Census Operations Himachal Pradesh, 2011.

According to Directorate of Census Operations Himachal Pradesh (2011), Swangla

5. Human Rights Concerns

reviewed holistically by the policymakers in the backdrop of Domestic legislation

2. Living Constitutionalism and Living Originalism: Two Complimentary

must be filled out over time through constitutional construction. 10 According to

Both Living Originalism and skyscraper originalism proposes a different account of

Majority of the time the living constitutionalism is considered as just ―interpretation

So, according to Strauss, conventional originalists are considering constitution as a

The living Constitution develops through accumulation and evolution of precedents,

3. Constitutional Comparativism: Nationalism or Cosmopolitanism

To deeply understand the theory of Living Constitutionalism, it is required to look

constitutional nationalism and Constitutional cosmopolitanism. 24 Nationalist

The Nationalist conception of constitution requires that it must respond to particular

On the other hand, Cosmopolitans claim that constitutional guarantees in

By this way, cosmopolitan constitutional interpretation accommodates both rights of

So far as limitations on rights are concerned, these must be justifiable and it is

The living constitutionalism theory, through living originalism and living

4. Role of Courts in Living Constitutional Theory and Inherent Rights in

Justice Vivian Bose, in Virendra Singh and Ors. V State of U.P.35said:

In another judgment giving significance to living originalism he says that, ―some

court observed, “our constitution is organic in nature, being a living organ, it is

5. Liberty, Equality and Dignity as Basis of inherent Rights and Living

In E. P Royappa v. State of Tamil Nadu46, Equality is a dynamic concept having

Human needs always change with the passage of time.

Since equality is a dynamic concept, and process of equality and protective

Socio-economic justice as assured in the Preamble, Articles 39 and 46 would get

6. Transformative Constitutionalism as Tool of Living Constitutional

To understand the constitutional democracy, it is required to grapple with knowledge