Legal Matters

Legal Matters



 A close look at ‘The Transplantation of Human Organs and Tissues Act, 1994’ (THOTA-1994)

‘Organ Transplantation Technology’ offers a gift of life to patients suffering from terminal stage of organ failure diseases.  Every person who dies naturally or in an accident is a potential donor.  Given the statistics of accidents in present days, there are enough human organs available to transplant.  Yet, innumerable patients cannot find a generous donor.  The shortage of organs for transplantation is virtually a universal phenomenon, including India.  Many do not come forward for organ donation because of the lack of awareness, coupled with prevalent myths and fears.  Creating awareness among the people on the importance of organ donation and motivating them is possible by providing accurate information on the issue.  Here is a humble attempt to impart information on the provisions of the primary legislation, namely, “The Transplantation of Human Organs and Tissues Act, 1994” (hereafter THOTA-1994).

What is Organ Donation?

“Organ Donation” is a voluntary gift of one’s organ (includes organs and tissues) wherein the donor authorizes it to be removed legally while donor is alive or after death for the purpose of transplantation.  “Transplantation” means the grafting of any human organ from any living or deceased person to some other living person for therapeutic purposes.  A healthy transplantable organ may be donated to be implanted into the body of another person in order to save or greatly enhance the life of the recipient.  Some human organs can be donated by living donors, such as, a kidney or part of the liver, part of the pancreas, part of the lungs or part of the intestines…


Ravi Sagar SJ*

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Legal Matters



Do priests and religious have a right to their ancestral property?

Religious Renunciation: Is it voluntary or mandatory?

Through the sacrament of ordination, a Catholic priest shares in the ministerial priesthood of Christ.  Similarly, a Religious is called to live the life of Christ and His mission more radically through the vows of chastity, poverty and obedience.  Both the priests and the religious make voluntary renunciation of their possessions for the sake of the Kingdom.  Nowadays, this voluntary renunciation has become a tool to deny their constitutional and civil rights, especially property rights.  In several cases, they are forced to fight their families because they are denied their rightful share of property for the fact that they are priests or religious.  In other cases, when they divide their ancestral property, either parents or siblings leave out their son/daughter who is a priest or a religious.  Many of the priests and religious struggle to make both ends meet when they choose to leave the dioceses or congregations.  The following case will shed some light on this issue.

A case

Raphael and his wife Mary had three children—George, Xavier and Eleeswa. George, the eldest son, passed away before his parents. Eleeswa, his sister, died leaving behind six children on 4 April 1961.  Xavier entered a religious congregation and was ordained a priest in 1943.  After his ordination, his parents made a will by which they bequeathed their property to him.  Xavier sold a portion of the “Willed Property” to his relations by executing two sale-deeds. The rest of the property, not liable to be divided, remained with him.

Does he suffer “Civil Death” on becoming a priest?

Three children of the deceased George approached the Trial Court seeking partition of the property excluding Xavier and also for a declaration that the two sale-deeds executed by him were not binding on the property.  They contended that no rights derived from the Will” to Xavier, since he had already become a priest and taken the vow of poverty before the “Will” was made.  They also asserted that Xavier was at best a manager only who had suffered a ”Civil Death” on becoming a priest and that the disputed property was to be divided without giving him a share.

The Trial Court held that Xavier cannot claim right to ancestral property as he was ordained prior to execution of the “will.”  Applying the principles of the Code of Canon Law, the Trial Court declared that priests or nuns cannot hold property once they enter into the Holy Order.  The Trial Court, further, directed the property to be divided among the legal heirs excluding Xavier who had suffered a “Civil Death” on becoming a priest.

Right to Ancestral Property

Xavier, along with others, came up in appeal before the Kerala High Court, pointing out that applying the principles of Canon Law, the Trial Court ignored the statutory provisions of the Indian Succession Act, 1925 (ISA) which are applicable to all ‘Indian Christians.’ Disposing the case, on 7 June 2017, the division bench of the Kerala High Court declared that the Priests and the Religious have right to their ancestral property and denial of such right would amount to violation of their constitutional right to property.

“To hold that one would suffer a ‘civil death’ and be deprived of his property on entering into the Holy Order would be a naked infringement of Article 300-A of the Constitution of India”, the High Court said.  Referring to a case decided by the Supreme Court “If a priest can hold a job, he can have right to ancestral property too,” the High Court said, “We wonder how a priest or nun would suffer a ‘civil death’ for the purpose of succession alone when he/she is very much alive and competent to accept a job on salary or practice as a lawyer receiving fees.”

Being a Priest or Religious is not a “Civil Death”

The Code of Canon Law is a body of principles, standards, rules and norms internal to the Catholic Church, distinct from the civil law.  Being a norm internal to the Catholic Church, it has ceased to be a customary law after its codification in 1917.  Civil rights, especially inheritance and succession of parties, cannot be decided on the basis of Canon Law.  In its pristine sense, when priests and religious severed their natural family ties on entering dioceses or religious congregations, they may be said to have suffered a “civil death” making them ineligible to inherit property either by intestate succession or testamentary succession.  “Civil Death” is inflicted by the courts on persons convicted for the crimes especially against the state, or any adult determined to be legally incompetent because of their mental disability; as a result a citizen loses all civil rights.  By becoming a priest or a religious, does one undergo a “Civil Death”?

Dealing with the obligations and rights of clerics, the Code of Canon Law restricts the management of goods belonging to lay persons, including giving sureties and signing promissory notes (Can 285§4).  Further, the professed religious, by virtue of the vow of poverty, renounces the capacity of acquiring and possessing in favour of the religious institute (Can 668§5).  As a consequence of their voluntary renunciation, they neither own nor administer any property movable or immovable as their own, but administer the same for the achievement of the aims and objectives of their institute in accordance with its rules and regulations set forth.  They bequeath all their property, assets, credits, both movable as well as immovable, in whatever character or wherever situated.

Legislation has Primacy over Personal Laws

The statute passed by the Legislature has primacy over the personal law, and the provisions of the statute shall prevail and override personal law, usage or custom prevailing before legislation.  Governing all ‘Indian Christians’ as regards their inheritance and succession, ISA does not make any departure in the matter of inheritance or succession to Christian priests or religious, whether or not they have taken the vows of poverty, chastity and obedience.  There is no statutory prohibition for them to claim their legitimate share out of the estate of their father or mother. Hence, there cannot be any automatic deprivation of property acquired by way of intestate or testamentary succession by the mere fact that one has entered into the priesthood or religious order and renounced his/her worldly pleasures.  Priests or religious are individuals with all civil rights, who can also voluntarily and freely relinquish the share of their property as per the manner of life they have chosen.

Fr. Ravi Sagar SJ is a law graduate and holds PG diplomas in labour laws as well as in human rights.  He founded the Legal Cell for Human Rights Guwahati (LCHR) and served as its director till July 2017.  He has been a practising advocate at Gauhati High Court, Guwahati, for over 15 years.

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Legal Matters


March 11

Rampant Child Sexual Abuse

In the last issue of MAGNET, Fr. (Dr) Jose Parappully SDB unfolded shocking facts and figures of Child abuse in India and this issue provides the pathways to healing and recovery.  There is a sharp increase in the incidences of sexual abuse as well as in reporting them.  Even a survey held in 2007 revealed 53% of children in India face some form of sexual abuse.  Therefore, the need for stringent law has been felt many times.

The Legislation on Child Sexual Abuse

The increasing incidences of sexual abuse against children had to be addressed through a separate legislation.  The Indian Penal Code (IPC) and other criminal laws did not specifically provide legal safeguards against child sexual abuse particularly boys.  Hence, The Protection of Children from Sexual Offences Act, 2012 (POCSO) was legislated to strengthen the legal provisions for the protection of children from sexual abuse and exploitation.  The government formulated rules in accordance with the law and notified them on 14 November 2012.  Thus, the law became ready for implementation.

Child Sexual Abuse is Punishable

Defining a child as a person below the age of 18 years, the POCSO provides protection from sexual abuse to all children under 18 who constitute about 40% of the population.  The POCSO enumerates offences under which an accused can be punished.  As per the gravity of the offence, the punishments range from simple to rigorous imprisonment of varying periods.  The court may also impose fine at its discretion.

Sexual Offences against Children

The gender-neutral POCSO defines sexual offences against children for the first time in law which include Sexual Assault, Penetrative Sexual Assault, Sexual Harassment and using children for pornographic purpose including abetment of and attempt to commit sexual offences.

First, a person is said to commit ‘Sexual Assault’ when with a sexual intent touches the genitals or the erogenous parts of the child or makes the child to touch the person or any other person or does any act which involves physical contact without penetration.

Second, a person is said to commit ‘Penetrative Sexual Assault’ when a person inserts his/her genitals or any part of the body or any other objects or manipulates to cause penetration or applies mouth to the genitals of the child or makes the child to do the above mentioned acts with the person or with any other person.

Both kinds of offences mentioned above are treated as “Aggravated” with severe punishment when they are committed by a person who is in a position of trust and authority over child such as a member of security forces, police officer, public servant, members of management and staff of hospitals, educational institutions, religious institutions, children’s homes, etc.

Third, ‘Sexual Harassment’ includes a wide range of behaviour such as uttering any word, making any sound or gesture, exhibiting body or any part of the body or any object, repeated contacts either directly or through electronic media, threatening to use the body of the child or part of the body in media and enticing the child for pornographic purpose.  Thus the law criminalizes acts of immodesty against children too.

Fourth, ‘Use of child for pornographic purpose’ includes involving a child for sexual gratification through a medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic materials.  The Act criminalizes even watching, collection and storage of pornographic content involving children.

Fifth, ‘abetment of or an attempt to commit these offences’ is also punishable under POCSO in the same way as if the person had committed the offence.  This would cover trafficking of children for sexual purposes.  The attempt for whatever reason to commit an offence under the Act has been made liable for punishment for up to half the punishment prescribed for the commission of the offence.

Reporting of Sexual Offence against Children is Mandatory

The Act obligates mandatory reporting of sexual offences against children to the Special Juvenile Police Unit (SJPU) or to the local police.  An obligation is imposed on institutions and its personnel to report such cases when they come across any material or object which is sexually exploitative of children.  In the case of failing to report or to record the case, not only the person who failed to do so, but also the one in charge of the institution attracts punishment.  At the same time, it also prescribes punishment for a person providing false information with the intention to defame any person, including a child.  In reporting the cases, the media is barred from disclosing the identity of the child without the permission of the court and breaching this provision may attract punishment for from six months to one year.

The Burden of Proof lies on the Accused

The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process.  Unlike other criminal laws, for the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted to the accused from the prosecution.  The Special Court shall also presume the culpable mental state and the onus shall be for the accused to prove the absence of the same in his/her defence.

Child-Friendly Procedures in the Law

Child-friendly procedures for reporting, recording of evidence, investigation and trial of these offences are incorporated in law which include; recording the statement of the child at the residence of the child or at the place of his/her choice, preferably by a woman police officer above the rank of sub-inspector.  No child is to be detained in the police station in the night for any reason and the police officer is mandated not to be in uniform while recording the statement of the child.  Further, the statement of the child is to be recorded as spoken by the child; assistance of an interpreter including special educator in special cases is to be given as per the case and the need of the child.  The trial is to be conducted in camera and not in the open court.

Medical examination of the child is to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.  In case the victim child is a girl, the medical examination shall be conducted by a woman doctor.  Frequent breaks for the child during trial are to be given and the child is not to be called repeatedly to testify.  At the same time care must be taken not to do aggressive questioning or character assassination of the child.

The POCSO casts a duty on the governments to spread awareness on the provisions through media including television, radio and print media at regular intervals to educate the general public, children, as well as their parents and guardians.  The National Commission for the Protection of Child Rights and State Commissions for the Protection of Child Rights have been designated to monitor the implementation of the Act.

Be Shrewd as Serpents and Innocent as Doves

Jesus’ invitation to children ‘let them come to me’ (Mt. 19:14) moves Christians to treat them with love and tenderness removing all stumbling blocks (Mt. 18:6).  The law of the land obligates them to create a safe environment for children under their care.  They are bound to act seriously against any incidences of sexual offences against children with immediate and appropriate response.

While maintaining a zero tolerance policy towards these incidences, Church-Institutions and its personnel must demonstrate an exemplary behaviour in creating a safe environment in their premises for children with all necessary safeguards and precautions.  In this regard appropriate orientation and training of its personnel, putting an end to imprudent obsessive-compulsive practices, will encourage best practices among them.  No doubt it will also guide them a long way in dealing with the inevitable, false-malicious-frivolous accusations which are intended to defame them and their mission.

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In this article, Advocate  Sister Jessy Kurian explains what we need to do when faced with ordinary legal issues. It helps to know what our rights are as consumers, and how to go about securing these rights if they are violated.

Recently a friend complained to me that she purchased three sarees to present to her domestic helps. The shop keeper did not allow her to open the sarees and see whether there was any damage. Back home, she found the sarees were damaged. When she took them back to the shop, the seller refused to take them back, saying: “It is written on the bill: ‘Goods once sold will not be taken back.’”

            A consumer is the one who buys any goods for a consideration which he/she paid or promised to pay or partly paid and partly promised or under any system of deferred payment. The person who buys goods for re-sale or for commercial purpose is not a consumer under the ‘Consumer Protection Act 1986’.

Every consumer has the right to safety, right to be informed, right to representation, right to choose, right to be heard, right to seek redressal and the right to consumer education

Right to safety: It means a consumer has the right to safety against such goods and services as are hazardous to his/her health and life and property. For example, spurious and substandard drugs, appliances made of low quality raw material, such as electric press, pressure cooker, etc. and low quality food products like bread, milk, jam, butter, etc. The consumer has the right to safety against the loss caused by such products.

Right to be informed: A consumer has the right to be provided with all the information on the basis of which he/she decides to buy goods or services. Such information relates to quality, purity, potency, standard, date of manufacture, method of use, etc of the commodity. Thus a producer is required to provide all such information in a proper manner, so the consumer is not cheated.

Right to Choose: A consumer has the absolute right to buy any goods or services of his/her choice from among the different goods or services available in the market. In other words, no seller can influence his/her choice in an unfair manner. If any seller does so, it will be deemed as interference in his/her right to choice

Right to be heard: A consumer has the right that his/her complaint be heard. Under this right the consumer can file a complaint against all those things which are prejudicial to his/her interest. These days several large organizations have set up Consumer Service Cells with a view to providing the consumer the right to be heard. The function of the cell is to hear the complaints of the consumers and to take adequate measures to redress them. Many daily newspapers have also special columns to entertain the complaints for the consumers.

Right to Seek redressal: This right provides compensation to the consumers against unfair trade practice of the seller. For instance, if the quantity and quality of the product do not conform to those promised by the seller, the buyer has the right to claim compensation.

Right to consumer Education: This right refers to educating the consumer constantly with regard to their rights. In other words, consumers must be aware of the rights they enjoy against the loss they suffer on account of goods and services purchased by them.

Consumer Protection Act, 1986

The law that is enacted to protect and promote the interest of consumers in India is called ‘The Consumer Protection Act, 1986’. Its main objective is to provide speedy and simple redressal to consumer disputes. It is a quasi-judicial machinery set up at the district, State and Central levels. These quasi-judicial bodies have to observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers.

The main Consumer Disputes Redressal Agencies are: (1) A Consumer Disputes Redressal Forum, which is known as “District Forum,” established by the State Government in every District; (2) a Consumer Disputes Redressal Commission, which is known as the “State Commission,” established by the State Government in every State; (3) A National Consumer Disputes Redressal Commission established by the Central Government.

The District Forum shall entertain complaints where the value of the goods or services and the compensation, if any claimed, does not exceed rupees twenty lakh.

The State Commission can entertain complaints where the value of the goods or services and compensation, if any claimed, exceeds rupees twenty lakh but does not exceed rupees one crore.

The National Commission shall entertain complaints where the value of the goods or services and compensation claimed exceeds rupees one crore and appeals against the orders of any State Commission and to do all proceedings in the interest of justice.

            Every complaint filed should be accompanied with required amount of fee. On receipt of a complaint the District Forum may by order allow the complaint to be proceeded with or rejected. But the Form should give an opportunity to the Complainant to be heard before rejecting the complaint if do so.

Appeal lies from all these bodies within thirty days, such as from District Forum to State Commission, from State Commission to National Commission and from National Commission to Supreme Court.

            The law punishes “Unfair trade Practice”. It is a trade practice which, for the purpose of promoting the sale, uses or supplies any goods or any service, adopts any unfair method or unfair or deceptive practice including any service: (1) Falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or mode;  (2) Falsely represents that the services are of a particular standard, quality or grade; (3) Falsely represents any re-built, second-hand, renovated, re-conditioned or old goods as new goods;  (4) Represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have; (5) Represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have; (6) Makes a false or misleading representation concerning the need for, or the usefulness of , any goods or services; (7)Gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test, etc.

Bases on the above law, the consumer has the right to open and see the commodity to know whether there is any damage before paying. “Goods once sold will not be taken back” has no serious legal stand, because we find it on the bill only after paying the amount or purchasing the commodity.

However, the consumer has to exercise and claim his/her right.

Advocate-Sister Jessy Kurien SAP practices in the Supreme Court, Delhi. She belongs to the Congregation of the Sisters of St. Anne of Providence.

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