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The Technology Newsflash contains articles and timely updates on the latest technology, outsourcing and privacy legal issues and trends affecting businesses today. We encourage you to visit the site often as it is updated regularly. We welcome any questions about the topics covered here and those relating to our global capabilities.
Table of Contents
Everything your business should know about the impending GDPR
Businesses need to take a risk-based approach, focusing compliance efforts on their biggest vulnerabilities.
Sign and Submit by February 15, 2018: NYDFS Cybersecurity Certification Due Date Nears as Additional Compliance Requirements Close In
An overview of upcoming certification and compliance requirements under NYDFS Cybersecurity Regulation.
Videos: Why you need cybersecurity risk management
Best practices for incident preparedness and response.
European Fintech M&A: Key Issues for Strategic Investors
We examine key considerations for strategic investors involved in Fintech M&A.
Vendor Risk Management as Applied to Fintech Contracts
We examine key considerations for financial institutions engaging in the procurement of services from fintech.
Fintech: Cybersecurity Risk Management for Financial Institutions and Technology Vendors
We examine key cybersecurity issues concerning the development and deployment of financial technologies.
The Role of Regulation in Financial Innovation: Does Fintech Need Regulation to Flourish?
We discuss the important and continuing role that regulation is playing in the development and advancement of financial innovation and the “legitimising” of fintech.
PSD2 – the EU's Regulatory Response to Innovation in the Payments Sector
We examine the European Union’s developing regulatory landscape and PSD2’s impact on fintech businesses.
In re Micron Tech –Waiver and Improper Venue Challenges Post-TC Heartland
In its recent In re Micron Tech opinion, the Court of Appeals for the Federal Circuit answered one of the most hotly contested issues springing from the wake of TC Heartland—does the Supreme Court's TC Heartland opinion qualify as a change-of-law such that an alleged infringer who failed to raise the defense of improper venue pre-TC Heartland will not be adjudged to have waived the defense?
Federal Circuit Weighs In On Limiting Effect of Preambles
Georgetown decision highlights the fine line between limiting and non-limiting preambles, suggesting a need to cast a wide net in discovery.
Draft Fintech Law bill introduced in Mexico
On September 18, 2017, the Ministry of Finance and Public Credit (SHCP) submitted to the Mexican Federal Commission for Regulatory Efficiency (Comisión Federal de Mejora Regulatoria, COFEMER) the draft bill of the Law Regulating the Financial Technology Institutions (also known as, the "FinTech Law"), which was published on the Commission's website.
Employee monitoring – avoiding pitfalls in a changing landscape
Recent developments in case law and regulatory guidance have emphasised the need for employers to be cautious when implementing systems to monitor employees.
eSports coming to the fore for policymakers in Europe
Regulatory considerations to sustain the rapidly growing eSports industry.
Seeking consent under the General Data Protection Regulation
TMT analysis: How should businesses go about obtaining valid consent to the processing of personal data?
Blockchain's Steady March to Legitimacy
Virtual currency and blockchain are steadily becoming part of mainstream financial services. In recent weeks, developments in corporate law, securities regulations, financial crimes enforcement and state legislation have moved these technologies ever closer to full legitimacy.
Compliance Deadline Looms on State Cybersecurity Regulation
The new law requires strong governance. NACD principles can help.
Police Body Worn Cameras: What Prosecutors Need to Know
White & Case and the Prosecutor's Center for Excellence (PCE) release report providing guidance for prosecutors on police body-worn camera technology and related issues for criminal investigations and prosecutions.
Germany Permits Automated Vehicles
Germany's bill legalizing automated vehicles on public roads creates a solid legal framework for highly and fully automated vehicles.
Innovation drives dealmaking: Outlook for M&A in Israel
Investors continue to flock to Israel, as innovation and technological advancements create fertile ground for M&AInvestors continue to flock to Israel, as innovation and technological advancements create fertile ground for M&A.
Car Sharing Act - New Benefits for Car Sharing Offerings in Germany
Germany incentivizes car sharing companies to promote eco-friendly driving solutions.
Supreme Court's Lexmark Decision Exhausts Patents
The U.S. Supreme Court's ruling in Impression Products, Inc. v. Lexmark International, Inc. alters the scope of the patent exhaustion defense.
Officer and director checklist: Complying with the global reach of the New York Department of Financial Services Cybersecurity Regulation
What follows is a useful checklist to help officers and directors adequately monitor and oversee their company's Cybersecurity Regulation compliance efforts.
EU regulators welcome stricter rules on cookies and direct marketing
The European Commission has published a draft Regulation regarding cookies and electronic direct marketing. EU regulators have publicly welcomed the proposal, which has potentially significant consequences for all businesses that engage in online commerce or electronic direct marketing.
Swiss-U.S. Privacy Shield: Key Similarities, Key Distinctions with the EU-U.S. Approach
The U.S. International Trade Administration will begin accepting self-certifications for the Swiss-U.S. Privacy Shield on Wednesday, April 12th. While rooted in the same principles as the EU-U.S. Privacy Shield, the Swiss-U.S. Privacy Shield contains several distinctions and important requirements for organizations seeking to transfer Swiss personal data to the United States.
Privacy Shield: Recent Developments
The Article 29 Working Party has released new procedural documentation regarding Privacy Shield and individuals' complaints about misuse of their personal data. This comes against a backdrop of concern that a recent US Presidential Order may undermine certain protections offered by Privacy Shield.
The dangers of direct marketing: Seeking consent or asking for trouble?
The UK Information Commissioner's Office has issued fines to two businesses for unlawfully sending emails to individuals to ask about their marketing preferences. These cases emphasise the fact that "marketing" in this context is a very broad concept, and is not limited to sales and promotional activities.
Subject Access Requests: "not an obligation to leave no stone unturned"
The English Court of Appeal has ruled in two recent cases that subject access requests are generally valid, and businesses must comply with such requests, even if they are made for collateral purposes, such as collecting information for use in litigation. However, the court also clarified that the subject access regime only requires businesses to conduct a reasonable and proportionate search – not an exhaustive search.
Defamation and data protection claims can be brought in parallel
The English Court of Appeal has confirmed in a recent case that data protection claims may be brought hand-in-hand with defamation claims. The case provides a reminder to businesses that the use of data protection as a weapon in litigation is growing ever more commonplace.
NYDFS Cybersecurity Regulations Compliance Guide: Applicability, Exemptions and Penalties
As discussed in our March 1, 2017 update, the New York Department of Financial Services ("NYDFS") issued final regulations that require New York banks and insurance companies, as well as other financial services companies that are supervised by the NYDFS—including New York state-licensed branches and agencies of non-US banks—to establish and maintain a cybersecurity program designed to protect consumers' private data and ensure the safety and soundness of New York's financial services industry ("Cybersecurity Regulations").
NYS Department of Financial Services Cybersecurity Regulation Goes Live: Now What?
Understand what's required under NY State's first-of-its kind cybersecurity regulation, and why their divergence from a cost-benefit approach to cybersecurity risk assessment is raising questions.
Privileged information is generally safe from Subject Access Requests
Subject Access Requests ("SARs") are an increasingly popular weapon in litigation, because they can be used to provide a cheap and quick form of pre-action disclosure. However, courts have confirmed that information subject to legal professional privilege ("LPP") does not need to be disclosed in response to a SAR, unless the person making the SAR has a "prima facie case" that the party relying on LPP is doing so to hide some form of wrongdoing.
Data Privacy in a Time of Reaction: "Big Data" versus "The People"
This newsflash considers trends and developments in data privacy and cyber security in the wider global macroeconomic, political and social context.
IP addresses and personal data: Did CJEU ask the right questions?
The Court of Justice of the European Union has declared that IP addresses are personal data in many circumstances – but were the right questions asked, and will the GDPR change the outcome?
New EU Guidelines on Data Protection Officers
The EU's Article 29 Working Party has published new Guidelines on the role of Data Protection Officers under the General Data Protection Regulation. Data Protection Officers are seen as a cornerstone of data protection compliance, and many businesses will be subject to a mandatory obligation to appoint a Data Protection Officer.
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Search for financial technology (fintech)
Search for EU GDPR (European Union General Data Protection Regulation)
Search for EU-US Privacy Shield
All Technology Newsflash publications and events
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Investigatory Powers Act 2016 cast into doubt by new EU ruling
Further Challenges to EU-US Privacy Shield and EU Data Exports
Investigatory Powers Act 2016 becomes law
New DMCA Exemption Allows Consumers to Hack Their Own Vehicles
Cybersecurity Guidelines for Vehicles
Businesses can refuse Subject Access Requests made for the dominant purpose of litigation
UK to implement GDPR regardless of Brexit
Disclosing personal data – new protections for regulated sector firms?
FCC Adopts Privacy Regulations for Broadband Internet Service Providers
EU-US Privacy Shield challenged
Court confirms that IP addresses are personal data in some cases
UK ICO recommends personal liability of directors for breaches of data protection law
Electronic Frontier Foundation brings suit over anti-circumvention provisions in the DMCA
New York's New Cybersecurity Rules: What Is Required?
UK ICO issues largest ever fine for a data breach
Accelerating the autonomous vehicle revolution
The European Digital Single Market Strategy and Related Copyright Law Implications: The Status Quo
New York Regulators Propose Stricter Cybersecurity Rules
EU: Injunctions against intermediaries available also in the offline world
EU-US Privacy Shield: How to Certify
Federal Circuit Expanding Interpretation of Step Two of the Test for Patent Eligibility
European Court of Justice Strengthens Rights of Authors, Performers and Phonogram Producers
Unlocking the EU General Data Protection Regulation
EU-US Privacy Shield approved
Japan Patent Act Amendment: How to Compensate Inventors Now?
Federal Circuit Provides Guidance on Patent Eligibility Determination
US Supreme Court affirms Federal Circuit on IPR Claim Construction Standard and that IPR Institution Decisions are Final and Non-appealable
Online Traders: New Obligation in EU for Provision of Link to Online Dispute Resolution (ODR) Platform
New threats to transatlantic data flows as Model Clauses come under fire
New Players – Old Rules? The Current Debate on the Regulation of OTT Services in the EU and Germany
Car Wars: The Car of the Future—Legal Aspects in a Connected World
Strict and far-reaching new EU data protection regime comes into force
FCC Proposes Formal Privacy Regulations for Broadband ISPs
IP addresses may be subject to EU data protection laws
Defend Trade Secrets Act: A New Era in Intellectual Property Protection
GDPR published – Enforcement begins on 25 May 2018
Employers vicariously liable for data breaches caused by rogue employees
English court compels investigators to disclose information on data protection grounds
UK 'regulatory sandbox' to foster fintech innovation
Significant concerns from EU Data Protection Authorities may delay the EU-US Privacy Shield
European Parliament approves new EU data protection law
TC Heartland Challenges the Status Quo on Patent Venue
Timeline for new EU-US data transfer mechanism becomes clearer
NHTSA Reflects Willingness of US Regulatory Authorities to Embrace Autonomous Vehicles
No consensus on Privacy Shield following debate on adequacy
France anticipating the GDPR
FTC Settles with Data Brokers in Sale of Consumer Data Used for Illicit Purposes
New deal for transferring personal data from the EU to the US moves a step closer
Bărbulescu v. Romania clarifies an employers' rights to monitor the contents of their employees' private electronic communications
EU Regulatory Agendas: EDPS Priorities 2016 and Article 29 Working Party Work Programme 2016 – 2018
New restrictions on disclosures of personal data to non-EU courts will not apply in the UK
New WP29 Opinion on the application of EU data protection law to non-EU businesses
Safe Harbor is dead, long live Safe Harbor!
International Data Privacy: How to Navigate the Challenges
Texas Takes a Stance Against Patent Trolls
FTC and Wyndham Settle Suit Regarding Wyndham's Alleged Cybersecurity Failures
New EU Directive on the Protection of Trade Secrets to Come
UK and EU Law Enforcement Investigatory and Data Sharing Powers: Developments and International Impact
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Introduction of new EU General Data Protection Regulation: final stages
EU-wide cybersecurity rules nearing final agreement
The self-driving car – a new legal frontier?
ITC Proposed Amendments to Section 337 Rules
Update 'EU-US Safe Harbor': Statement from the Article 29 Working Party
European Court of Justice invalidates 'EU- US Safe Harbor' pact
Trade Secrets Protection Bill Pending Before the Senate and Judiciary Committee
Transfer of Personal Data Under Japan's Amended Personal Information Protection Act
Court Invalidates Patent Claims After Refusing to Correct Alleged "Typos"
New French Act on Intelligence Services: Impacts on Technical Operators
Telemedicine or just a gadget for fitness addicts? Mobile Health Apps and the law
Europe's Highest Court Recently Delivered a Judgment Imposing Affirmative Duties on SEP Holders
Germany rolls out IT Security Act
Mobile health apps: Are they a regulated medical device?
Disparaging Trademarks and the Constitutionality of Refusing Registration Under the Lanham Act
Rejection of Oracle's claims for copyright infringement against one of its users and condemnation of the practice of aggressive audits
After Sales-Service: Don't Be Misled! — European Court of Justice Rules: Erroneous Information Provided by an Undertaking to a Consumer in the Context of After-Sales Service Is a Misleading Commercial Practice
A significant milestone in the path towards the adoption of the General Data Protection Regulation
House Committee Advances Patent Reforms Aimed to Curb Patent Litigation Abuses
Good-Faith Belief of Invalidity No Longer a Shield for Induced Infringement Claims
Free Wi-Fi: German Court Seeks Clarification in Luxembourg
Copyright levies on memory cards for mobile phones: another landmark decision from the CJEU (Case C-463/12)
House Passes Cyber Sharing Bills and Congress is Focusing on Data Protection
Council of Europe: Recommendation on the Processing of Personal Data in the Context of Employment
IBM sentenced to pay 6.5 million as contractual damages
Update: Germany's Draft Bill on IT Security
White House Re-Introduces Consumer Privacy Bill of Rights Act
The Supreme Court's New Standard of Appellate Review for Claim Construction
The case law of the German courts of lower instance for patent law and utility model law since the year 2013
President Obama Issues Executive Order on Cybersecurity Information Sharing
UPDATE: German Government Proposes New Law Entitling Consumer Protection Organizations to Enforce Data Protection Law
Developments in Privacy and Cybersecurity Legislation
EU Data Protection – Proposal on Co-Operation Procedure to Harmonize Common Opinions on Contractual Clauses
SDNY Clarifies Scope of Contractual Exclusions of Consequential Damages Under New York Law
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The Use of First and Last Names as Meta Tags is not Subject to the French Data Protection Act
Are Dynamic IP Addresses "Personal Data"? German Federal Court of Justice seeks advice from the European Court of Justice
California Passes New Data Protection Laws, Effective January 1, 2015
AIPPI's resolution on "IP Licensing and Insolvency": Will this re-ignite legislative initiatives in Germany?
Align by Design: Global Privacy Authorities Weigh in on the Internet of Things
California Passes Student Data Privacy Law
Federal Court Rules Business Method Patent Invalid Post-Alice
Recent Amendments to the Procedure of Personal Data Processing in Russia
Adoption of a new European legal framework applicable to cross-border electronic identification and e-signatures
Massive Online Security Breach – Are You Reactive or Proactive?
The revised PSI Directive – European Commission publishes guidelines on re-use of public sector information
Germany's Draft Bill on IT Security
UPDATE: Germany to Tighten Data Protection Laws: Consumer Protection Associations and Trade Associations shall be Granted Right to take Businesses to Court
Supreme Court Rules Abstract Ideas Implemented on Computer Not Patent-Eligible
New York AG Reports that Data Breaches Cost New York Businesses over $1B Last Year
European Commission's Actions to Better Protect and Enforce Intellectual Property Rights
Supreme Court Issues Ruling on Aereo and the Public Performance Right
German Federal Court of Justice Decides on Deletion of Unused Domains and Typosquatting
Fees for Recording IP Security Agreements with the USPTO and USCO
How does French case law deal with bundled software?
California AG Provides Important Guidance on Do-Not-Track Legislation and Disclosures
Copyright Holders Cannot Prevent Links to Freely-Available Content from Being Posted Online
Second Circuit Adopts Plaintiff-Friendly "Discovery Rule" for Copyright Infringement Claims
EU Data Protection – Draft Ad hoc contractual clauses "EU data processor to non-EU sub-processor"
New Bill Would Create a Private Right of Action for Targets of Trade Secret Misappropriation under Federal Law
FCC Warns ISPs May be Regulated as Utilities
Biotronik A.G. v. Conor Medsystems: Be Sure to Expressly Exclude Lost Profits in Drafting New York Law Contracts
Supreme Court Issues Two "High-Octane" Decisions to Address Abusive Patent Litigation Practices
3D Printing—implications on Intellectual Property Rights ("IP rights")
In for a Penny, in for a Pound
Germany's Draft Bill on Combating Late Payment in Commercial Transactions: Potential Consequences for Businesses on Both the Legal and Operational Level
EU High Court Strikes Down Data Retention Law
Cloud Services and Export Control: What You Don't Know Can Hurt You
Anti-Patent Troll Legislation: What is Proposed and What it Could Mean
CNIL Expanded Investigative Powers
Intent-to-Use Trademark Applications and Security Agreements
The Garcia v. Google Controversy and What It Means for Content Owners and Users
Germany to Tighten Data Protection Laws: Consumer Protection Associations shall be Granted Right to take Businesses to Court
Intellectual Property Infringement on the Internet: What Court to Call?
California's Shine the Light Law: A Heightened Pleading Requirement
NIST Issues Cybersecurity Framework
How to Secure Information Systems: The Growing Complexity of the Legal Landscape
Do Not Forget to Lock the Backdoor: Adopting a Holistic Approach to Cybersecurity
Study of the European Parliament on the Protection of Creator's Rights in a Changing Environment
Old Law, New Fit: Evergreen Notice Requirements for IP Service Agreements
Know Your Subcontractors: Recent FTC Settlement Highlights the Importance of Validating Subcontractor Data Protection Practices
US Supreme Court to Review Indefiniteness Standard under Section 112 of the Patent Act
FTC Settles U.S.-E.U. Safe Harbor Complaints Against Twelve Companies
EU Copyright Rules – Changes on the horizon?
Trademark Infringement by Use of AdWords? Legal Risks by Using AdWords Despite European Court of Justice (ECJ) Rulings
Distributing Earnings Call Information to the Public Is Fair Use
The Proposed Directive on Trade Secrets in the EU
The Case Law of the German Courts of Instance (Instanzgerichte) for Patent Law and Utility Patent Law Since the Year 2011
Addition of "No-Charge" Limitation During Prosecution Costs Inventor His Patent
French Courts Ordered to Block and Delist 16 Streaming Websites
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Federal Judge Rules NSA Data Collection Program Is Likely Unconstitutional
Major Changes to Defamation Law in the UK to Take Effect 1 January 2014
"Perfecting" Security Interests in United States Patents, Trademarks and Copyrights
Hacking Back: For Now, Be Vigilant Rather Than a Vigilante
Prospects on Germany's Digital Landscape in the Next Four Years: What Does the Coalition Agreement Say on Technology?
Big Data: The Big Picture
Changes in Consumer Law for Distance Contracts in the EU
E-Commerce: Consider the Enhanced Consumer Protection Clauses
Software License Audits – How to prepare, how to react
FTC Denies Application for Proposed Social Network-Based COPPA Consent Verification
In Sourcing and Licensing Agreements Governed by New York Law, Think Twice About a Gross Negligence Carve-out to a Limitation on Liability
The Landgericht Düsseldorf’s (Düsseldorf District Court) decision to refer "LTE standard"
Securing Patent Value for Israeli Medical Technology Companies
CLS Bank v. Alice Corp. Further Muddies §101 Patent Eligibility
Federal Legislation Introduced Regarding Mobile Application Privacy
State court ruling creates new uncertainty for DMCA safe harbors
ECJ dismisses Spanish and Italian challenge to EU-wide unitary patent system, but obstacles remain
The Trademark Clearinghouse: What You Need to Know
Federal Circuit Announces Review of Appellate Standard for Claim Construction
Supreme Court Interprets Copyright "First Sale" Doctrine
Congress Takes Action to Allow Unlocking of Mobile Phones
FTC Announces Settlement with Social Networking App and Issues Staff Report Regarding Mobile Device Privacy Disclosures
President Obama Issues New Executive Order on Improving Cybersecurity
New HIPAA Rule Imposes Data Security and Privacy Obligations Directly Upon Vendors and Contractors of Covered Entities
U.S. Department of Health and Human Services Announces First HIPAA Breach Settlement Involving Fewer than 500 Patients
Amendments to the Economic Espionage Act Broaden Trade Secret Protection
FTC Amends COPPA Rule and Previews Future Enforcement Policies
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This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2017 White & Case LLP
Both Articles 29 and 30 come under Part III of the Indian constitution under a heading called “Cultural and Educational rights”. Article 29 is titled “Protection of Interest of Minorities” and Article 30 “Right of minorities to establish and administer educational institutions”. Till date the court does not seem to have addressed one question. Why is it that we have such a provision ? A coherent rationale for differentiating the minority and Hindu institutions is yet to emerge. In this post, I argue it makes little sense to differentiate on the basis of religion when faced with matters of preservation of culture. We look at three important cases where the political class launched an assault on Sanskrit and it needed judicial intervention to survive.
Is there any link between 29(1) and 30(1) ?
A recap 29(1) says
29. Protection of interests of minorities.—(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
The spirit behind the whole regime of positive rights bestowed upon minorities in 30(1) is so that it can give life to the clause in 29(1). In plain words, the right to run convent schools allow the Christian minority to exercise the right in 29(1) which leads to conservation of their culture. There is an unmistakable trend today spearheaded by liberal activists and college owners that seeks to divorce the two. They put forth the idea that Art 30(1) and Art 29(1) are unrelated. The only thing that matters is 1) minority individuals control the institutions. There is some room for compromise with the state but in effect what they want is an unconditional positive right based only on their religious identity. I don’t think that stands up to scrutiny nor does the court in several cases. After all, the constitution does not bestow a positive right to minorities to establish other types of industry such as fast food franchises. Both minorities and Hindus can and do open Dominos outlets for example. For the rest of this post we are going to assume a linkage between 29(1) and 30(1).
Do Hindus (non-minority) have the right to preserve Sanskrit ?
The original argument in favour of Articles 29/30 was that in a Hindu majority India it was inconceivable that ancient cultures and literature needed any positive protection. No legislature would dare undermine the majority culture because that would lead to certain electoral defeat. Hindus could rely on political checks but the minorities did not have this protection. This necessitated a judicial check in the form of a statement of positive rights only for minorities. To be sure there are minority institutions like CMC Vellore and St Johns Bangalore that can be said to be truly serving their community in a very Christian environment. The framers could have envisioned a majoritarian or socialist state. One that could in theory outlaw their modes of teaching , altered their character, or simply nationalized them. So the minorities were given a judicial check and the majority relied on relatively weaker equality based provisions in the hope that the political system would favour them anyway.
The problem is of course that subsequent interventions resulted in fragmentation of Hindus so that the political check no longer worked. Factions sprang up overnight, riding on adhoc benefits, they were ready to toss the ancient scripts in exchange for temporal benefits.
Lets take a look at the incredible travails Sanskrit has gone through in three cases.
1994 – Santosh Kumar and Ors vs Ministry of Human Resources Development [Link]
In 1994 the Congress government under Narasimha Rao and the HRD Minister Arjun Singh removed Sanskrit as an optional subject in CBSE Class XII. The principal reason cited was that the CBSE Board did not have enough resources to teach Persian and Arabic. According to them that could only mean one thing. Offering Sanskrit as an elective and not offering Persian and Arabic was against secularism. The decision was therefore remove Sanskrit even as an elective. This was challenged and it made it to the Supreme Court which reinstated it. Read the judgment linked to note how far the government went to persuade the court. KTS Tulsi then additional Solicitor General representing the Govt said if they had to teach Sanskrit they also had to teach French, German, and Lepcha.
The desire to keep Sanskrit out does not stop here, as the submission also is that if Sanskrit comes, the Board shall have to bring in language like French and German. This is not all, as it is contended by the Addl. Solicitor General that the Board feels that arrangement may have then to be made for imparting education even in Lepcha, a language whose name many of the Indians might not have even heard.
AIR 1995 SC 293 Hansaria J P 4
The court came down really hard on the government and restored Sanskrit. It was a narrow escape for the most important linguistic key to unlocking the ancient texts of this land. The upside of this case was the court seemed to coverge to a position taken in an earlier judgment in State of Bombay vs Bombay Educational Society 1954. In that case, Barnes High School an Anglo Indian Christian school refused admission even to Indian Christians on account of their not having English as their mother tongue and due to their Asiatic descent. The court held that Art 29 protections applied to all sections including the majority community. I think this view has come to the fore now.
1997 – Bal Sewa Educational vs Tamil Nadu [Link]
Shanmugha College of Engineering is a famous college in Tamilnadu located near Thanjavur. In 1997, the trust that runs the college applied to be considered as a Linguistic Minority College on the basis that all the founders were well versed in Sanskrit and that development of Sanskrit was one of their goals. I think this is the only time an institution has asserted Art 30 rights on the basis of Sanskrit. An exceedingly interesting case if only to observe how the then DMK Karunanidhi government reacted. At first glance, the claim appears to be flaky. What can be the connection between Sanskrit and Instrumentation Engineering ? Look harder, there are dozens of Telugu linguistic minority colleges like Venkateswara College. What is the link between Telugu and Electrical Engineering ? So the entire regime is lacking an internal consistency. The Shanmugha administrators can surely be pardoned because as Tamil Hindus the advantages of minority status was too alluring. Worth a shot. The state government would of course have none of it and responded that – Sanskrit was a dead language and denied the status. The Madras HC observed.
Tamil Nadu, the antipathy towards Sanskrit was confined to a section trying to make political capital out of it, and that it was strongly organised and effectively expressed. Several Sanskrit lecturers and teachers represented to us that, when Sanskrit versus were sung in prayer or any Sanskrit feature was presented in public functions in the colleges and the schools, a section of the student population started jeering and booing. Such things, along with certain ad-ministrative measures coming one after another, have been slowly pushing Sanskrit to the wall in this part of the country. It is, indeed, an irony of fate that this should be the situation in a region to which the rest of India used to look up as a vertical asylum of Indian culture and traditional learning. The anxiety which the people here felt about the future of Sanskrit was clearly borne out by the fact that Madras sent the largest number of replies to our questionnaire.
Madras High Court Judgment MLJ 1998 (596) SS Subramani J pp 96
The court quashed the order and asked the government to reconsider. I dont know what happened after that to the college. I do know that Dr Murli Manohar Joshi’s initiatives as well as the court judgments in TMA Pai followed by clarifications in Islamic Academy and PA Inamdar removed a lot of shackles from private unaided institutions of even the non-minority communities. In light to the RTE act, I suppose you can expect quite a few claims of this sort to be made.
Once again, being a culture of the majority religion proved to be of zero help. The political check not only failed but even went to the extent of declaring the language as dead unworthy of anyone laying claim to it. This once again shows that the Art 29 protections are essential to the Hindus as well. In any case, the next year the BJP lead NDA government was voted into power and it was expected to provide some breathing room for Sanskrit. Time to move to the next case.
2002 – Aruna Roy and Ors vs Union of India [Link]
The NDA government under the HRD Minister Dr Murli Manohar Joshi gave much needed respect to the native cultural traditions of this land. The NCERT syllabus sought to include values embodied in ancient India such as Dharma, vedic mathematics and vedic astronomy. It is of utmost importance to note that none of these required the compulsory study of any religious rituals or religious scriptures. However, Aruna Roy, BG Verghese and other activists would have none of it. They went to court and were initially successful in obtaining a stay pending a hearing. Their objections were two fold, the first one was that CABE was not consulted. This was set aside as this was only an advisory body which had no statutory status (not set up by law or by any rules).
Their second and substantial criticism was that the impugned syllabus was anti-secular and that Sanskrit was being imposed along with a laundry list of objections.Everything with the word “Vedic” in it was challenged.
- Dont want vedic astrology : Wrong. The syllabus had vedic astronomy – which is a well recognized science.
- Dont want vedic maths : Wrong. Adverse reaction to word Vedic. Vedic maths is just techniques.
- Dont want Sanskrit : Wrong. It wasnt being imposed but optional. Refered to Santosh Kumar (see above case)
- Other items in list such as opposition to Hindu festival celebrations were disposed too.
The court which had stayed the syllabus found out that upon scrutiny the Aruna Roy group had no substance. It vacated the stay and allowed the syllabus to continue. There was gloom in the activist world that their latest attack on Hindu and Indian culture failed once again in the court. The thing to remember once again is this. The fact that Hindus as majority offered zero guarantees against raiders. Time and again they had to resort to judicial protection to ward to active political and activist pressure to bury it. This only makes the Bombay Society stance that even Hindus need positive rights under Art 29 even stronger.
To be continued..
1. Various SC Judgments
2. Fundamental rights and their enforcement. Udai Raj Rai, Prentice Hall India 2011 Edition