tag:blogger.com,1999:blog-216294802024-03-08T10:54:26.056-08:00Justice Kannan's Legal speakK.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.comBlogger81125tag:blogger.com,1999:blog-21629480.post-1496212428549011722021-11-28T20:54:00.005-08:002021-11-28T20:54:53.038-08:00RIGHT TO PRIVACY<p> <b><span lang="EN-IN">First use of the expression</span></b></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">Warren and Brandeis wrote more than a century back
that privacy is the "right to be let alone", and focused on
protecting individuals. This approach was a response to then technological
developments of the time, such as photography, and sensationalist journalism,
also known as<span style="mso-spacerun: yes;"> </span>yellow journalism. <o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="background: white; color: #222222; font-size: 10.5pt; mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">A
right to privacy is also explicitly stated under Article 12 of the 1948
Universal Declaration of Human Rights. </span><span lang="EN-IN" style="color: #222222; font-size: 10.5pt; mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;"><o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm; margin-left: 36.0pt; margin-right: 0cm; margin-top: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">"</span><span lang="EN-IN" style="background: white; color: #222222; font-size: 10.5pt; mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">No
one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honor and reputation. Everyone has
the right to the protection of the law against such interference or
attacks."<span style="mso-tab-count: 1;"> </span></span><b><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;"><o:p></o:p></span></b></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><b><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">Was privacy right known to ancient Bharat?</span></b><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;"><o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">When <i>Puttaswamy </i>traces most of the issues
identified as protecting right to privacy to the West, there is also an attempt
to indigenise the concept, which in the same judgment Justice Chandrachud
incidentally refers to an article published in the blog of M/s </span><span lang="EN-IN" style="font-family: "Droid Sans",serif; font-size: 12.0pt; mso-ansi-language: EN-IN; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman";">Ashna Ashesh and Bhairav Acharya titled </span><i><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">Locating Constructs of Privacy within Classical
Hindu Law</span></i><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;"> and
another article by the same author Bhairav Acharya with Vidushi Mardha
suggesting that it was known to Islamic jurisprudence as well. While almost all
judges were describing the privacy law as rooted in western life style, Justice
<i>Bobde</i> obviously thought on the same lines when he wrote:<o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm; margin-left: 27.0pt; margin-right: 0cm; margin-top: 0cm;"><span lang="EN-IN" style="color: black; font-family: "Droid Sans",serif; font-size: 12.0pt; mso-ansi-language: EN-IN; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman";">“<i>Even in the ancient and religious texts of India, a well-developed
sense of privacy is evident. A woman ought not to be seen by a male stranger
seems to be a well-established rule in the Ramayana. Grihya Sutras prescribe
the manner in which one ought to build one's house in order to protect the
privacy of its inmates and preserve its sanctity during the performance of
religious rites, or when studying the Vedas or taking meals. The Arthashastra
prohibits entry into another's house, without the owner's consent…. Similarly,
in Islam, peeping into others' houses is strictly prohibited. Just as the
United States Fourth Amendment guarantees privacy in one's papers and personal
effects, the Hadith makes it reprehensible to read correspondence between
others. In Christianity, we find the aspiration to live without interfering in
the affairs of others in the text of the Bible. Confession of one's sins is a
private act. Religious and social customs affirming privacy also find
acknowledgement in our laws, for example, in the Civil Procedure Code's
exemption of a pardanashin lady's appearance in Court</i>.” <o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">The right to privacy, as we are discussing, goes
far beyond issues of mere civil or decent behaviour or property rights
protecting a person against encroachment. To that extent, we must say that the
articles referred in the judgment and the passage quoted do not establish that
there was any significant jurisprudence on right of privacy or treating it as
something of core value to living or a primordial right akin to a <i>fundamental
right, </i>which we are familiar with as students of Constitution law<i>. </i><o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;"> </span><b><span lang="EN-IN">From the property centric to person centric concept</span></b></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">Two law students from Chandigarh have observed in
an article (<i><span style="background: white; color: black; mso-color-alt: windowtext;">'Universalis' Rights and 'Particularistic' Restrictions: Note on Justice
K.S. Puttaswamy (Retd.) Case</span></i><span style="background: white; color: black; mso-color-alt: windowtext;">, 4.1 CALQ (2018) 20)</span></span><b><span lang="EN-IN" style="background: white; color: black; font-family: "Verdana",sans-serif; font-size: 10.0pt; mso-ansi-language: EN-IN; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";"> </span></b><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">that the most direct impact of US jurisprudence
on <i>Justice Puttaswamy</i> as recorded by Chandrachud J. has been
the transformation of the doctrinal position from that of ‘<i>trespass</i>’
property-centric spatial privacy to the person-centric informational
self-determination. [ See <i>Katz</i> v. <i>United States</i>,
389 US 347 (1967)<i>per</i> Harlan J.] This would mean that the right to
privacy no more means to sit calmly between closed doors, but implies that the
person wields his or her privacy even in the public sphere in his or her
relationship with the State. This ultimately finds expression in his
articulation of the three-pronged privacy as recognized by the Constitution of
India laid down by Chandrachud J. when he observes the distinct elements of the
concept of privacy as “spatial control”, “decisional autonomy” and
“informational control.” [<i>K.S. Puttaswamy</i> v. <i>Union of India</i>,
AIR 2017 SC 201.]<o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><b><span lang="EN-IN">Impact of modern technology</span></b></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">We surely must recognise the advancements in
technology and the interest in social media to 'announce' oneself in different
garbs and projecting larger than life images that give privacy a new meaning
and relevance. But, <b>social media pose a privacy paradox</b>: Most users
indicate that they are concerned about their privacy, yet they share personal
information widely on social media platforms. The affordances of social media
(connectivity, visibility, social feedback, persistence, and accessibility) and
their ability to enhance social communication and interpersonal relationships
help to explain their attraction for users. At the same time, the risks to
privacy are real and serious. We review privacy issues in a variety of domains
of social media use including friendships, romantic relationships, parental,
workplace/professional, and therapist/client. Resolving the privacy paradox and
fully protecting privacy will likely require changes in laws, technology, and
individual and social practices. These changes are worth pursuing so that
people can reap the benefits of social media use without losing the many
benefits of privacy.<o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;"> </span><b><span lang="EN-IN">As a cultural experience</span></b></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">Privacy is a cultural thing. Even in common
parlance, the way we speak, the way we dress and the way we conduct ourselves,
which are manner of social interactions and the way we project ourselves get to
be assessed as cultured or uncultured on how it is socially accepted. This
varies from community to community, from country to country. When I talk about
right of privacy, I am talking about what is so intensely personal to me, of my
illnesses, my biometric details which are a segue to understanding what I am.
Our resistance to let anyone breaches our privacy because, i let the person
know about some aspect about me which is not the way i project myself in
public. My health details, my sexual preference, my education, my family
relationships, my marriage to my wife are all matters where i would choose how
the public will know me or know them through me. If that aperture of public
view is enlarged without my concurrence, the law will protect me. That is not
perhaps the way our elders conducted themselves. They were open to public at
all times. Before the advent of nuclear families, our living was always joint.
Decisions were by karta<span style="mso-spacerun: yes;"> </span>and personal
preference meant family preference. Our saints lived an open life, making
themselves available to the public 24X 7, the outstanding examples of which
were the ways that i have heard of Bhagwan Ramana and what I have seen of the
Senior Holiness of Kanchi.<o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><b><span lang="EN-IN">Predominant concern of State surveillance</span></b></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">When we are discussing right to privacy as a
fundamental right, we are literally talking about our right against the State
which we can enforce and claim reparation if it is violated. We are worried
about the police State, about the <b><i>Big brother watching</i></b> in
dystopian times, where my profile in all my personal dimensions is captured,
stored, analysed and manipulated. If that access is given to some other
non-state actor, i feel threatened that he monitors all my movements and
virtually stripped and paraded naked, as it were. Forget about the biometric
details of what the State parts with. What about the way we leak personal
information by surfing the internet? My travels are monitored, the place where
i stay is purveyed, the person with whom i am staying is also likely to be
known. Employing cookies by your book store, your library, your e-retailer,
your travel agent give away a lot of information about what you read, what you
eat, where you dine and who you meet. In a digital world, there is a kind of
permanence. Can any of the laws that exist to day protect me against these
invasions? The day i have made the small gadget that i hold in my hands as an
absolute necessity, that day, i have surrendered my privacy. Will someone
challenge the idea that a cell phone is no longer a luxury but an absolute
necessity? You cannot open a bank account, you cannot reserve a train ticket on
line without disclosing your cell phone number. The modern technology has
brought to a head where nothing could be truly personal; nothing truly private
and no law could protect privacy absolutely. <o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><b><span lang="EN-IN">The poor and illiterate milieu just do not care</span></b></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">Tracing even movements of persons is easy because
we leave digital foot prints. Every time we turn on the personal computer and
surf the internet; every time we use our cell phones; every time you book
flights and taxis. The registration that the agencies seek is a manner of
creating a dossier for you to map your travel preferences, the fares you are
willing to pay, the resistance that you give to a particular fare and
particular airline and the way you deflect your preference. Whose privacy are
we trying to protect? Does the poor person care? Most of her life is under
public gaze. Even her intimate moments with her partner in the road pavement is
under dimmed street light and not in darkness. For a villager, for a person who
does not use cell phone or computer, what is there to lose? What is privacy to
her? An Aadhar to her is a matter of personal achievement that fills her with
glee. It is a State recognition that she exists; that she inhabits the same
world that a person who zips past in his Mercedes. <o:p></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;"> </span><b><span lang="EN-IN">Withering away of the concept</span></b></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0cm;"><span lang="EN-IN" style="mso-ansi-language: EN-IN; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: TA; mso-fareast-font-family: "Times New Roman"; mso-hansi-font-family: Calibri;">We will clamour for protection of privacy so long
as we believe that we should project ourselves in ways different from how we
are, or, we want people to see us only the way we want them to see us. We are
at cross-roads of times when technology still falls short of making minute
invasions and there is still some scope to screen ourselves from being fully
surveyed. When that capability obtains full control, talk of privacy will
become obsolete. At that time, the proponents of right to privacy cannot even
escape to another planet, for if they do so, the gadgets that transport them
will have capabilities to beep back to earth in pellucid language everything of
what goes inside the mind of the person.<o:p></o:p></span></p>
<p class="MsoNormal"><o:p> </o:p></p>K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-54515360826496369252020-04-11T09:46:00.000-07:002020-04-11T09:46:29.589-07:00In hot pursuit of truth<div dir="ltr" style="text-align: left;" trbidi="on">
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<h3>
<span lang="EN-GB">Introduction<o:p></o:p></span></h3>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Look at a world where the assumptions are: All lawyers lie; auditors fudge
accounts; civil contractors use substandard materials; corporate hospitals
loot; doctors are negligent; politicians plunder; shopkeepers cheat. The boast
however is, ’Only I am different. I do not do any wrong but others do.’ If we
must limit our analysis to what pervades our courts in our search for truth and
justice, we will come by a shocking revelation that very few believe truth is
attainable. The judicial system is not engineered to securing truth at all
times. The provisions for reviews before the same court and appeals and
revisions in higher forums are attempts to substitute what the first court
found as true or just to something of what you believe to be true or just. If
the appellate court reverses the judgment on a question of fact, it, in effect,
finds error in what the lower court found as true. If a further appeal restores
the first court's finding, it means that the 1st appellate court has not
properly appreciated the facts. What makes these quick reversals possible and
how do we minimise them? What are the courts tasked with, is it to find truth and
nothing but truth or truth by preponderance of probabilities or true beyond
reasonable doubt? Even a person not legally trained will know that these
expressions are not synonymous. Policy makers have set different goals for
different types of proceedings through systems of law and evidence. We will
examine now why there are different standards of proof and how do we acquire
skills to get only at the truth and nothing but truth.<o:p></o:p></span></div>
<h3>
<span lang="EN-GB" style="mso-font-kerning: 18.0pt;">Truth is absolute;
standards of proof are not</span><span lang="EN-GB" style="color: #222222; font-size: 24.0pt; mso-font-kerning: 18.0pt;"><o:p></o:p></span></h3>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Truth is absolute. Honesty and integrity which are but its by-products are
also absolute. If there is a component of untruth even to the minutest degree,
it ceases to be true. We cannot measure the concept in relative terms. The
human behaviour that brings conflicts are on account of disparate underlying
interests and varying positions that we take and they are not necessarily
on account of dialectics of what is true and untrue. What comes to a head in
litigations are the assumed positions of what are right and wrong as perceived
by the respective parties. The tussle between rights and wrongs in all their
permutations, (such as right v right, right v wrong, wrong v right and wrong v
wrong,) play themselves out in every litigation. The process of proving a right
or wrong may however surely involve proving what is true. The standards of
proof are set by law as a matter of policy or what the society accepts as just.
While there cannot be different scales of truth, there could be assessment of
how close to truth the incident sought to be proved is. You keep pushing the
notch up towards absolute truth depending on the predetermined scale of what is
feasible to obtain. At the lowest rung, where a civil liability for the effect
of what is perceived as wrong is strict, the standard proof is minimal. Where
there is liability for an act which is perceived as heinous, and the punishment
ought, according to moral standards of society, stringent, there shall be
exacting standards of proof.<o:p></o:p></span></div>
<h3>
<span lang="EN-GB" style="mso-font-kerning: 18.0pt;">Nature of liability
determines standard of proof, three broad approaches</span><span lang="EN-GB" style="color: #222222; font-size: 24.0pt; mso-font-kerning: 18.0pt;"><o:p></o:p></span></h3>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Strict liability situations</span><span lang="EN-GB" style="color: windowtext; font-size: 18.0pt; font-weight: normal; line-height: 115%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></h4>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In all matters where liability is strict and where the person suffers a
harm is more vulnerable or the person whose operations involve inherent risks
that expose a large body of persons to physical or mental harm, the requirement
of proof of events is minimal. Welfare legislation intended to relieve persons
of economic deprivation cast strict liability on the person for whose benefit
the victim was engaged in the action in the first place or whose operations caused
the injury. The defendant may not be a wrong doer at all but made liable all
the same. A passenger in a railway train who suffers an injury or meets with
death in an 'untoward incident', a workman who suffers an injury in the work
place during or in the course of employment, a person who is harmed by a
chemical manufactured by a person whose trade is regulated by law by
requirements of licensing are all compensated without raising a question of
whether there was any negligence or wrong committed by the person. The Railways
Act 1989 that compensates the injured victim or the deceased passenger
expressly states through S 124 and 124A of the Railways Act that in any action
for relief against the railway administration, it shall not be necessary
to prove the negligence of the railways for the act that resulted in personal
harm. Under the Employees' Compensation Act 1923, a workman who suffers a fatal
injury in the course of or out of employment, notwithstanding that the employee
did not observe the standards of safety laid down by the employer make the latter
liable in term of section 3 of the Act. Here, it is the relationship of
employee-employer that is fulcral to imposition of liability. Public Liability
Insurance Act 1991 also makes the liability norm strict for victims of injury
by the operations of the owner whose industry is notified under the Act. In all
these cases, there are minimal requirements of proof of factual situations,
such as bringing a nexus between the accident and injury. If there is any
doubt, in a given set of circumstances, there shall be invariably presumption
drawn in favour of the victim. The enquiry into the fact of the matter is under
played.<o:p></o:p></span></div>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Therefore, if in a railway incident of a fall from train results in injury
or death, it is immaterial that the death arose by a fall while boarding a
train or while de-boarding it. Again, if there is a dispute whether he was a
passenger with a ticket or not and if there is a minimal prospect of a loss of
ticket in the manner of how the accident took place, possession of a
ticket and lawful authority for travel will be presumed. Under the Employees'
Compensation Act 1923, if an employee was in the course of duty as a driver of
vehicle suffered a heart attack, the presumption will be that the death was on
account of pressures of work and in the course of employment. If a member of
public suffers skin irritation by the chemical substance manufactured by an
industry, even the causation will be presumed unless proof is adduced that the
infection cannot be caused by such a chemical. In all these above examples, the
fact that is required to be proved is presumed, the liability to prove
negligence of the defendant is dispensed with and the truth is taken as self
evident. A situation that speaks for itself may arise in any situation of
strict liability that is referred to above or by the given set of
circumstances, even if there is a higher standard of proof necessary such as
when the negligence of the defendant has to be established, For example, the
vehicle which had caused the accident had admittedly a brake failure or when
the driver of a vehicle drove against a pedestrian was walking on the kerb or
the vehicle involved was driven by a person that did not have a licence
to drive. In all these situations, the fact that is required to be established
shall be taken as <i>res ipsa loquitur.</i><o:p></o:p></span></div>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Proof by preponderance of probability</span><span lang="EN-GB" style="color: windowtext; font-size: 18.0pt; font-weight: normal; line-height: 115%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></h4>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Push the notch a little higher from situations where there are no
presumptions drawn and the plaintiff who seeks for a relief in a civil court
shall have to bring evidence regarding circumstances and conduct of parties
that comport with the inference probablising the existence of the fact. For
instance, In a dispute relating to property where there are rival claims under
two wills of the same person by two parties pitted as plaintiff and defendant,
the court that finds both wills to be true may find nothing false about the
case of the plaintiff or the defendant but if the will of the defendant is
later in point of time to the plaintiff's, the defendant's will shall prevail.
However, if the court finds that one of the contesting parties knows that the
will propounded by him was later modified or cancelled by a later will but
still propounds the will as the last will, he has adduced false evidence. The
same shall be the conclusion if the court finds that one of the wills was not
executed by the person whose property is the subject of bequest. The normal
disposition of the court is decree or dismissal depending on which of the wills
propounded by the parties is accepted or rejected. The court sifts evidence and
the opinions swing from one to another, when it weighs the probabilities of
whose version among the two carries more weight for coming to a particular
conclusion. The court may have its moments of prevarication but it picks the
side that seems more plausible. Truth is not discarded but even if not self
evident, the court <i>believes </i>something to be true on preponderance of
probabilities. <o:p></o:p></span></div>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Proof beyond reasonable doubt</span><span lang="EN-GB" style="color: windowtext; font-size: 18.0pt; font-weight: normal; line-height: 115%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></h4>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In criminal cases, the standard of proof is high because, if the offence
which a person charged with is proved, it will, in most cases, result in loss
of personal liberty by confinement in prison which is perceived as more
stringent than a liability that a person suffers by payment of damages or fine.
The presumption of innocence is to ensure that the prosecuting agency shall
always prove the guilt of the accused with no doubt lurking in the mind of the
court that the accused alone had committed the offence. The focus suddenly is
not proving a set of facts by positive evidence but creating doubts about the
facts proved. The defence need not disclose its own defence, though in some
cases, they are attempted to be done. It is sufficient that the case as presented
by the prosecution is doubtful in some key aspects, such as say, the presence
of witnesses produced at the place of occurrence to be eligible to be cited as
a witness in the first place, the time of occurrence, the prior enmity of the
witnesses to the accused, etc. The existence of doubts themselves shall lead to
the benefit of doubt to the given to the accused. Here the truth is not
unravelled. Doubts dominate to cloud the perception and the court gives up
truth as not possible to be elicited with certainty.<o:p></o:p></span></div>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Court's responses to the situations</span><span lang="EN-GB" style="color: windowtext; font-size: 18.0pt; font-weight: normal; line-height: 115%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></h4>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">If the court finds the witnesses on the one side have not spoken the truth,
it says so on appreciation of the quality of the witness’ version and records a
finding that it does not believe the version of the witness. This belief is not
at all times on objective factors, when there are no documents to contradict a
version. If the witness says that he saw a particular incident and it turns out
that there is documentary proof against such version where he was proved
through photographs that he was in some other place, there was hotel booking in
his name, there was airline booking showing the time of arrival in that city,
then the preponderance of probability is against the version that he saw the
event. In the same set of circumstances brought before court, each one of the
documentary pieces of evidence could be proved to be false and fabricated. Or
if there were no documents but a merely a version by another that he had seen
him in another place, we have one version against another; oath vs oath, as it
is said. It is anybody's guess how the judge will decide. Documentary evidence
is invariably stronger only because, manufacturing a false document is more
difficult than uttering a lie. Spoken word has less value than the written
instrument. The assumption always is that a person could be lying under oath
but there are less chances that he manufactures a false document and puts it
across as genuine evidence. The standards of proof in civil and criminal cases
vary because, the outcome in both the types of cases are also different; the
way that the cases are presented are different. The nature of reliefs are
different. The tools of investigation are however the same. The Evidence Act
allows the same procedure for letting in evidence. Witnesses are brought to
state on oath truth and nothing but truth. The effect of untruth as far as the
witness is concerned is the same in that perjury knows no distinction between
civil or criminal cases. <o:p></o:p></span></div>
<h3>
<span lang="EN-GB" style="mso-font-kerning: 18.0pt;">Tools for arriving at
truth</span><span lang="EN-GB" style="color: #222222; font-size: 24.0pt; mso-font-kerning: 18.0pt;"><o:p></o:p></span></h3>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Casting the burden of proof</span><span lang="EN-GB" style="color: windowtext; font-size: 18.0pt; font-weight: normal; line-height: 115%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></h4>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In all civil matters, the manner of how the trial process pans out is well
structured by the Code of Civil Procedure which will declare how the issues are
required to be framed. Summoning witnesses follows soon after the issues are
settled depending on how the burden of proof is cast. In the criminal cases,
framing of charge brings a focus at the trial on what is required to be proved
and nature of burden of proof shall depend on some statutory presumptions. <o:p></o:p></span></div>
<div class="MsoNormal" style="background: white; line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;">
<br /></div>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The Evidence Act places the burden on the person who wants a judgment on
the existence of certain fact or on proof of certain right of plaintiff or
certain liability of defendant (s 101). Unlike the onus, the burden never
shifts. Its relevance in its judicial context is that it lets you know how to
pilot the trial; It helps determine issues of rebuttal; lays down rules as to
how the issue shall be framed as regards civil case; how charge sheet has to be
framed in a criminal case; helps in appreciation of evidence; prescribes tests
for identifying on whom the burden rests by raising the right questions; lets
you decide the necessity of proving the existence of certain facts; makes
inferences from certain relationships and raises certain presumptions in law
that guide the test, where but for such presumptions, the burden would be
differently cast.<o:p></o:p></span></div>
<div class="MsoNormal" style="background: white; line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;">
<br /></div>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In the manner of raising presumptions, sections 79 to 85 B of the Evidence
Act lay down certain rules: In matters of proof of certain documents, the
expression used is '<i>shall</i> presume'. Certified copy of a document issued
by Registering officer, for instance, shall be presumed to be true to the
original. Gazette copy shall be presumed to be correct. A person accused of
certain offences under Ss 121 A,122 & 123 IPC, where the presence of the
accused in disturbed area is proved, court shall presume the commission of
offence. Dowry death under s 113B shall be presumed, if the death has
occurred </span><span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-font-size: 11.0pt; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">within 7 years</span><span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> of marriage.
Absence of consent in cases of charge against sexual offence shall be presumed.
In the category of cases where the presumption <i>may be </i>presumed,
a 30 year old document under s 90 may be presumed to be duly executed and
attested; Electronic records more than 5 years old may be presumed to be
genuine. Abetment to suicide under s 113A may be presumed if the attempt
was </span><span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-font-size: 11.0pt; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">within 7 years</span><span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> of
marriage. All of s 114 presumptions come within category of ‘may presume’. For
instance, presumption as to official acts to have been duly done;
presumption of certified copy (s 79); record of evidence in judicial proceeding
(s 80); gazette notification; maps; legal decisions and reports; POA duly
notarised or attested by Magistrate or consul are other situations when presumption
<i>may</i> be raised. The presumptions are not universal. It may change from
country to country and from time to time. A situation that carried no
presumption may change to a case when there shall be a presumption that is dictated
by peculiar circumstances, to secure certain results, such as the recurrent instances
of sexual violence that set a presumption of lack of consent of woman for sex
whenever there is a complaint of sexual violence by a woman by a change in law.
Here, the truth of situations are to be trashed to what the statute
presumes. It is the predominance of what the statute wants to achieve by
putting an end to sexual violence by making the fact as established that is
important. If the complaint is of a woman in custody, evidence regarding the
woman willingly having sex with a person in authority as impermissible, even if
true.<o:p></o:p></span></div>
<div class="MsoNormal" style="background: white; line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm;">
<br /></div>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Even apart from presumptions as an issue for matters of evidence under the
Evidence Act, there are some special enactments that set different rules of
presumptions and intervene in the normal understanding of burden of
proof. TADA s 5 (possession of arms in notified area that it is for
terrorist activity); IT Act, s 278E (presumption of criminal intent); NDPS Act
(s 35); PC Act Ss 4, 20; Customs Act 138A; NI Act s139; IPC s 80 proviso
(general exception); CrPC 200 (a) (bona fides of complaint of govt servant); Specific
Relief Act s 10 expln (i) (sp performance of contract to sell immovable ppty);
HAMA s 16 ( validity of adoption registered); TP Act s 3 expln II (effect
of person in possession); General Clauses Act s 27 (presumption regarding
postal service); NI Act s 118 (presumption regarding consideration);
State enactments providing for presumption regarding transport from controlled
area/ market/ mandi (UP Krishi Utpadan Mandi Adhiniym, AP (Agri produce
& livestock) Markets Act, 1966; Manipur Food grains Dealers Licensing Order
s 3 (presumption regarding storage of more than 100 maunds of food grains as
intended for sale). All these have relevance for the quality of evidence that
has to be brought to court, when statutory prescriptions overrule any inference
to the contrary.<o:p></o:p></span></div>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Cross examination by on or on behalf of party as witness</span><span lang="EN-GB" style="color: windowtext; font-size: 18.0pt; font-weight: normal; line-height: 115%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></h4>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The art of cross-examination is the most effective weapon for the discovery
of truth, provided the objective is not to confound a truthful witness but to
extract truth from an unwilling witness. While the predominant purpose shall be
to secure the truth and call the bluff of the witness of what he asserts, sometimes,
even if truth of the version is not successfully tested to the contrary, cross
examination may fetch something favourable in answer by way of admission. There
could be some statement that could weaken the opponent's case. The outstanding
example of how truth was brought to light by the sheer brilliance of cross
examination is the defamation case initiated by Oscar Wilde when he caused the
prosecution to be launched against Lord Queenberry and how the revelations in
the effective cross examination by Carson became the basis for successful
prosecution against Oscar Wilde that drove him to incarceration, penury and
death. The excerpts are available (</span><span lang="EN-GB" style="color: black; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-font-size: 11.0pt; mso-bidi-language: HI; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">http://www.famous-trials.com/wilde/330-libel</span><span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">) and they are truly a lesson of the kind of
preparation that is necessary to get at the truth. Such skill that could be
acquired only by closely following trials by eminent persons, by arduous study
and contemplation. In India, it is a dying art not because there is lack of
talent but because continuous examination of witnesses has become a rarity.
Conclusion of trials takes a long time and when cases are adjourned as part heard,
there is a long gap before the next date is fixed for continuation. The
continuity is lost and with it also the spontaneity that is so essential for
effective cross examination. The proliferation of writ jurisdictions in the
High Courts, where cases are decided only the basis of documents leave no scope
for cross examination and if the courts find that the factual details would
require a trial court approach, they may also relegate them to civil courts for
full fledged adjudication. However, this process is seldom resorted to and the
cases meander to further forums upwards with half baked truths and poorly drawn
affidavits. Gradually the most potent tool of bringing out truth in courts is
slowly losing ground. <o:p></o:p></span></div>
<div class="MsoNormal" style="background: white; line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm; mso-outline-level: 2;">
<b><span lang="EN-GB" style="color: #2e75b5; font-size: 14.0pt; mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB; mso-hansi-font-family: Calibri;"> </span></b><span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> <o:p></o:p></span></div>
<h3>
<span lang="EN-GB" style="mso-font-kerning: 18.0pt;">Further factors that
dilute the prospect to secure truth</span><span lang="EN-GB" style="color: #222222; font-size: 24.0pt; mso-font-kerning: 18.0pt;"><o:p></o:p></span></h3>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Fundamental right against self incrimination<o:p></o:p></span></h4>
<div class="MsoNormal" style="line-height: 150%; text-align: justify;">
<span lang="EN-GB" style="font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-language: EN-GB;">It is a constitutional
guarantee as a fundamental right under Art 20(3) that </span><span lang="EN-GB" style="background: white; color: black; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-color-alt: windowtext;">“No person accused of
any offence shall be compelled to be a witness against himself.” This principle
is espoused on the maxim <em><span style="font-family: "Arial",sans-serif;">“nemo
teneteur prodre accussare seipsum”</span></em>, which essentially means “No man
is bound to accuse himself</span><span lang="EN-GB" style="background: white; color: #666666; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%;">”.
</span><span lang="EN-GB" style="background: white; color: black; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-color-alt: windowtext;">It
makes possible an accused to remain silent without fear of inviting adverse
inference. The law has changed in USA, Australia, Canada, UK and China.
Apprehending that India may be tempted to go the same way, the Law Commission
took suo motu notice and presented its 180<sup>th</sup> Report pleading for its
retention on the ground that the right is otherwise also guaranteed under Art
21 of the Constitution and under sections 161(2) 312(3) and 315 of the Code of
Criminal Procedure. It is a brazen reality that we live in a country where the
custodial violence is rampant and the police machinery has still not come of
age with technical expertise to interrogate without adopting third degree
methods. A day when the police is itself not seen as an oppressive authority
but a friendly person in uniform to assure safety to citizens, a confession to
the police may obtain probative value but however compulsive the retention of
this right is, it cannot be denied that if even a truthful statement has no
value, it diminishes the effect of voluntary disclosure of a truthful statement
and robs the chance for atonement. Even a confession to the magistrate could be
retracted and in any event, when the accused comes into contact with legal
counsel, chances of persisting with truth become remote.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></span><span lang="EN-GB" style="background: white; color: #666666; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%;"><span style="mso-spacerun: yes;"> </span></span><span lang="EN-GB" style="mso-bidi-language: HI; mso-fareast-language: EN-GB;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Privileged communications cannot be used as evidence</span><span lang="EN-GB" style="color: windowtext; font-size: 18.0pt; font-weight: normal; line-height: 115%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></h4>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; mso-outline-level: 2; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The Evidence Act gives several situations that
prevent certain persons from being cited as witnesses, even if they might know
the truth. They could not be administered oath and compelled to stand testimony
to reveal truth. Communication during coverture of one spouse to another is
barred under s 122. Similar privilege is also extended to professional like a legal
practitioner to disclose any communication made to him in the course and for
the purpose of his engagement as counsel. Only a communication made in
furtherance of illegal purpose or commission of offence in the course of his
retention as a counsel which was directly observed by him do not enjoy
immunity. If you see the attorney as the alter ego of the accused, this
protection shall be seen as the necessary corollary for the right against self
incrimination that is constitutionally protected.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<h4>
<span lang="EN-GB" style="color: windowtext; font-weight: normal; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Professional ethics</span><span lang="EN-GB" style="color: windowtext; font-size: 18.0pt; font-weight: normal; line-height: 115%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></h4>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Even apart from situations where a professional cannot be compelled to be a
witness against his client in respect of communications, the legal fraternity
feels itself not obliged to deny a brief on ethical ground that it shall not be
party to falsehood. The justification at all times is ‘I only act as an agent
for a client; sounding his surrogate voice and if he tells a lie, it is not my
fault'. The ground could also be ‘I am bound to do what will secure to my
client the best results, that is why I am engaged. I do not need to preach
morals to him. Nobody prevents the judge from finding what is true. If the
civil court judge finds the case false, he dismisses the case. If the criminal
court judge finds the case to be false, he acquits the accused. My role ends
where the judgement is pronounced'. They cite the Bar Council of India Rules of
Conduct and Etiquette, where under Section II it states: “</span><span lang="EN-GB" style="color: black; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">An advocate is bound to accept any brief in the
Courts or Tribunals or before any other authorities in or before which he
proposes to practise at a fee consistent with his standing at the Bar and the
nature of the case. Special circumstances may justify his refusal to accept a
particular brief.” No lawyer refers to the latter part of the Rule that allows
a lawyer to deny the brief if there are special circumstances. There is no
reason to suppose that a false case of the party and assessed as such by the
lawyer himself should still claim that there is at all times a moral duty to
represent his client even if he knew that the case is false. Why is it
difficult to deny oneself the engagement by characterising the falsity of the
case of his party to be a special circumstance to refuse to represent him, or
his vow to preserve the purity of his practice shall not be sullied by a false
version in court? What worth is the practice if the lawyer will wear blinkers
and suffer a handicap that he places himself to elicit the truth or otherwise
of the person who seeks his counsel?</span><span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></div>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<br /></div>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Richard Dawkins, one of the most influential contemporary scientists
observes, “A barrister who uses eloquence to make the best case he can, even if
he doesn’t believe it, even if he selects favourable facts and slants the
evidence, would be admired and rewarded for his success.” (<i>Science in the
soul</i>',(Bentham Press) (2017). He recalls the incident when he was once
talking to a barrister, a young woman of high ideals specialising in criminal
law defence. She expressed satisfaction that a private investigator whom she
had employed had found evidence exonerating her client, who was accused of
murder. Dawkins congratulated her and asked the obvious question, what would
she have done if he had found evidence proving unequivocally that her client
was guilty. Without hesitation she said that she would have quietly suppressed
the evidence. She said, “Let the prosecution find their own evidence.” If they
failed, it was not her fault. <o:p></o:p></span></div>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<br /></div>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: black; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In all this, across the globe, </span><span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">we have reduced courts to be institutions where anything could be stated
with impunity that has little semblance to truth. There is no incentive for any
party to speak the truth. The very tools of extracting truth are not sharp
enough to dig deep to unravel it. We need different tools, different
formulations. By litigation, let us understand that it shall be through truth;
it shall be for upholding justice. There is enough work for all the lawyers even
if they stick to these ethical principles. It is wrong to assume that in order
to be prosperous we need to generate false cases. The resolve must begin at the
formative years even while readying oneself to be a lawyer. </span><span lang="EN-GB" style="color: black; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></div>
<h3>
<span lang="EN-GB">Duty of lawyers<o:p></o:p></span></h3>
<div class="MsoNormal" style="background: white; line-height: 150%; margin-bottom: .0001pt; margin-bottom: 0cm; text-align: justify;">
<span lang="EN-GB" style="color: #222222; font-family: "Arial",sans-serif; font-size: 9.5pt; line-height: 150%; mso-bidi-language: HI; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">If our commitment to truth in human interactions is genuine, we need to believe
that courts shall not be the places where any falsity is stated with impunity.
A person who says for false prestige that he will fight up to Supreme Court
knows that he has scumbag lawyers who will fight for him even worthless cases
with no merit. He has no fear that a counsel will refuse his brief even if the
case is brazenly false. He has no fear that the court will proceed against him
for perjury even if the court finds his evidence to be false. He is confident
that costs will not be imposed on him even if the case were to be dismissed,
for dismissal with both parties to bear their own costs at appellate courts is
the norm. Endless appeals and revisions up to Supreme Court for all matters are
a bane and a clear invitation to try all the judicial tiers and abuse the
judicial process. Unless the lawyers see themselves as torchbearers of justice
and ethically vow to uphold only truth and not file false cases, the misuse by
litigants cannot abate. It is impossible to make the whole population virtuous
and practitioners of truth, but is it too much to ask of the practitioners of
law, who are a small percentage of the entire population that they must abjure
false and frivolous cases? <o:p></o:p></span></div>
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<br /></div>
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K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-40708423447018064962020-04-01T05:59:00.000-07:002020-04-01T06:05:46.415-07:00Basic structure of the constitution, is it sufficient guarantee to preserve its ideals<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div class="MsoTitle">
Basic structure of the Constitution, is it sufficient
guarantee to preserve its ideals?<o:p></o:p></div>
<h2>
Positioning judiciary<o:p></o:p></h2>
<div class="MsoNormal">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">Fewer institutions in the world are as strong as Indian Courts.
Both in terms of performance and non-performance, Indian courts occupy the highest
positions. To-day there are a 4.64 million cases pending all across India in
all the High Courts. We have disposed of 124,960 in just one month in February
2010. There are 31.86 million cases pending in all district and taluk level
courts and we have disposed of 1.51 million cases just last month. The Supreme
Court has 60,469 cases pending on 1.3.2020. Courts vie with politicians in
hogging the headlines in both print and electronic media. The basic structure
doctrine of what the Supreme Court as articulated puts the judiciary at a high
pedestal to look up to know what the desideratum is, the irreducible minimum as
it were, on what the constitutional architecture rests on.<span style="mso-spacerun: yes;"> </span>It is a manner of understanding how the
legislature and the executive are beset with limitations in their assigned
roles of performance. There can be no rule, no law, why no amendment of the
constitution itself that can conflict with the basic structure. <o:p></o:p></span></div>
<h2>
Property rights as trigger <o:p></o:p></h2>
<div class="MsoNormal">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">It is only natural that you quickly will expect to know what the
basic structure is. It is like God!. You kind of know that He exists or does
not, or, as per your belief or non-belief, with form or without form and hence
ubiquitous. When the Court brought up this doctrine in <i>Kesavananda Bharati </i>(1973)<i>,
</i>the court identified several attributes of the basic structure but said
that they cannot spell out all. They left the basic structure as the foundation
where there remains hidden several gems, but you cannot unearth them all. Law
could be constantly evolving as per the requirements of the society’s needs,
but can basic structure be also constantly evolving? Will it not be a dangerous
quicksand if basic structure is also constantly changing? <o:p></o:p></span></div>
<div class="MsoNormal">
<span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">The court’s initial assertion was in response to government
policies ushering land reforms and other economic legislation where they examined
the laws’ validity on the touchstone of the sanctity of fundamental rights. A
strong legal brain from Tamil Nadu VKT Chari advised Nehru how to keep the
courts in check against challenge in court and make them impermeable against
judicial review. It took shape through the 1<sup>st</sup> constitutional amendment
to set up IX Schedule and the law that wore the cloak of the schedule or that
which was dropped in that iron chest could not be opened to examine.<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="color: black; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">In a series of decisions in 1954, the Court ruled that
even economic regulations that caused restrictions on property rights
constituted an abridgment of the property right, and thus triggered the
compensation requirement. In <i>Bela Banerjee</i> (1954), the Court interpreted
the term “compensation” in Article 31 as requiring fair and adequate
compensation.<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>In response, the government passed the Fourth Amendment,
which sought to limit compensation only to those cases where the state actually
acquired property, and stipulated that it was the state—the government —not the
courts, who would have the final say in determining the amount of compensation required.
The battle between the judiciary and the government over property rights
culminated in two landmark decisions— <i>Golak Nath v. State of Punjab</i><sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>in
1967, and <i>Kesavananda Bharati v. State of Kerala </i>in 1973. Amendment was
law under Art 13, said <i>Golaknath. </i>The Court invoked the doctrine of
“prospective overruling,” which meant that the ruling would only apply to
future amendments, and that the First, Fourth, and Seventeenth Amendment though
deemed to be unconstitutional, would remain in effect. In <i>RC Cooper, </i>the
Supreme Court did what Golaknath did not. It said that inadequacy of
compensation that was illusory was surely justiciable to invalidate Bank
Nationalisation. In another challenge to the Indira Gandhi government, the
Court in <i>Madhav Rao Scindia v. India</i> invalidated the Gandhi government’s
efforts to abolish the titles, privileges, and privy purses of the former
rulers of the princely states.<o:p></o:p></span></div>
<h2>
24, 26 and 29<sup>th</sup> amendments, symbols of open confrontation with
judiciary<o:p></o:p></h2>
<div class="MsoNormal">
<span style="color: black; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;">In response to these rulings, Indira Gandhi dissolved
the Lok Sabha early (for the first time in India’s political history), and
openly campaigned against the Court, promising to make basic changes in the
Constitution to provide for social equality and poverty alleviation. The
Twenty-Fourth Amendment, which sought to overrule <i>Golak Nath </i>by
affirming and reasserting Parliament’s unlimited power to amend the
Constitution under Article 368, including the fundamental rights provisions,
and declared that such amendments were not ordinary “laws” under Article 13,
and thus could not be subjected to judicial review by the Court.<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>The
government also sought to override the <i>R.C. Cooper </i>decision by enacting
the Twenty-Fifth Amendment, which sought to make compensation associated with
land acquisition laws non-justiciable, sought to give primacy to the Directive
Principles in Article 39 over the Fundamental Rights provisions in Article 14,
Article 19, and Article 31, and stipulated that laws enacted by the Central and
state governments to give effect to the Directive Principles could not be
challenged in Court. Finally, the Twenty-Ninth Amendment was enacted to add two
Kerala land reform laws to the Ninth Schedule.<o:p></o:p></span></div>
<h2>
Basic structure, where it remains hidden<o:p></o:p></h2>
<div class="CM17" style="text-align: justify;">
<span style="color: black; font-family: "calibri" , sans-serif; font-size: 11.0pt;">In <i>Kesavananda,</i><sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>a
thirteen-judge bench of the Court heard a series of challenges to the
Twenty-Fourth, Twenty-Fifth, and Twenty-Ninth Amendments. In a 1,002 page
decision consisting of eleven separate opinions, the Court overruled its
earlier decision in <i>Golak Nath </i>in holding that Parliament could amend
the fundamental rights provisions,<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>but also held that under Article
368, Parliament could not enact constitutional amendments that altered the
“basic structure” of the Indian Constitution. At the time of the decision,
there was a great deal of confusion regarding the actual “ratio” or rationale
underlying the majority decision in <i>Kesavananda</i>, as only six justices
held that the power of constitutional amendment was not unlimited, given that
there were implied limitations on it, while six other justices held that the
power of amendment was unlimited. The end of the opinion, however, contained a
summary of the “view of the majority” that was signed by nine of the twelve
justices that asserted that Parliament could not alter the basic structure
through the amending power under Article 368. (citing <i>Kesavananda Bharati, </i>A.I.R.
1973 S.C. at 1461–62). The “tie-breaking” opinion was Justice Khanna’s, though
this was on very narrow grounds. Khanna, while also holding that there “were no
implied limitations on the amending power” also held that “the words ‘amendment
of the Constitution’” in Article 368 “cannot have the effect of destroying or
abrogating the basic structure of framework of the Constitution.” <i>Kesavananda
Bharati, </i>A.I.R. 1973 S.C. at 1463. However, the six other justices that
held that there were implied limitations on the amendment power did not base
their rationale on interpretation of the term “amendment” in Article 368. It
would seem that it was grammar or semantics that became the guiding force to
understand the parliament’s amending power! Consequently, several leading
scholars noted that there was no real majority rationale supporting the basic
structure doctrine, and because the Court never sought to consider all of the
judgments to derive a ratio.<o:p></o:p></span></div>
<div class="CM17" style="text-align: justify;">
<br /></div>
<div class="CM17" style="text-align: justify;">
<span style="color: black; font-family: "calibri" , sans-serif; font-size: 11.0pt;">Each judge had his own
concept of basic structure: (i) Supremacy of the Constitution, (ii) Republican
and democratic form of government, (iii) Secular character of the Constitution,
(iv) Separation of powers between the legislature, the executive and the
judiciary, (v) Federal character of the Constitution. The above structure is
built on the basic foundation, i.e. the dignity and freedom of the individual.
This is of supreme importance. This cannot by any form of amendment be
destroyed. Justice Shelat believed “the unity and integrity of the nation” and
“the mandate given to the state in the directive principles of state policy”
were also basic features of the Constitution. What was particularly striking
about the <i>Kesavananda </i>decision was that it represented a direct
political challenge by the Court to the electoral mandate of Gandhi’s Congress
regime, which had won 350 out of 545 seats in the 1971 elections. In its
manifesto, Gandhi’s Congress party sought a mandate “for the reassertion of
Parliamentary Supremacy in the matter of amendment of fundamental rights,” a
direct reference to the Court’s decision in <i>Golak Nath</i>.<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>In
fact, in its decision, the Court went so far as to question the electoral
mandate of the Congress party, noting that “[t]wo-thirds of the members of the
two Houses of Parliament need not represent even the majority of the people in
this country. Our electoral system is such that even a minority of voters can
elect more than two-thirds of the members of either House of Parliament.” <o:p></o:p></span></div>
<h2>
Basic structure test applied to important decisions applying different
meanings<o:p></o:p></h2>
<div class="CM17" style="text-align: justify;">
<span style="color: black; font-family: "calibri" , sans-serif; font-size: 11.0pt;">The doctrine was put
to test immediately in several important rulings. <i>Indira Gandhi v Raj Narain
</i>was the major judgment that struck down the amendment to the Constitution
insulating challenges to the election of the PM. Justice Khanna held that the
Art 329(A) contravened the “democratic set-up” of the Constitution and the
“rule of law,” given that democracy requires that “elections should be free and
fair. In contrast, Justice Chandrachud invalidated the clause on the grounds
that it violated the basic structure in that it represented “an outright
negation of the right to equality,” and as “arbitrary, and calculated to damage
or destroy the rule of law.”<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>Justices Ray and Matthew held that Article
329A was invalid “because constituent power cannot be employed to exercise
judicial power.” <o:p></o:p></span></div>
<div class="CM17" style="text-align: justify;">
<br /></div>
<div class="CM17" style="text-align: justify;">
<span style="color: black; font-family: "calibri" , sans-serif; font-size: 11.0pt;">With respect to the
development of the basic structure doctrine, the truly pivotal “moment” may
indeed be the Court’s twin decisions in <i>Minerva Mills </i>and <i>Waman Rao</i>,
in which the Court reasserted the basic structure doctrine against Indira
Gandhi’s newly elected government (Gandhi defeated the Janata coalition in
January 1980) by invalidating several Emergency amendments that had limited or
curbed the Court’s jurisdiction and powers of judicial review. In <i>Minerva
Mills v. Union of India</i>,<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>the Court heard a challenge to the Sick
Textiles Nationalization Act of 1974, which had been added to the Ninth
Schedule of the Constitution through the Thirty-Ninth Amendment thus,
immunizing the Act from judicial review. In <i>Waman Rao v. Union of India</i>,
the Court reaffirmed the basic structure doctrine, holding that all amendments
enacted after the <i>Kesavananda </i>decision of April 24, 1973, including laws
added to the Ninth Schedule, were subject to judicial review under the basic
structure doctrine.<o:p></o:p></span></div>
<div class="CM17" style="text-align: justify;">
<br /></div>
<div class="CM17" style="text-align: justify;">
<span style="color: black; font-family: "calibri" , sans-serif; font-size: 11.0pt;">In 1997, the Court in <i>L.
Chandra Kumar v. India </i>overruled its decision in <i>S.P. Sampath Kumar</i>.
The Court in <i>L. Chandra Kumar </i>held that Article 323(A)(2)(d) contravened
the basic structure in that it allowed Parliament to exclude the jurisdiction
of High Courts under Article 226 over the administrative tribunals, and only
allowing appeals to the Supreme Court.<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>The Court’s decision represented
a reassertion of judicial authority over the administrative tribunal system. In
1992, a coalition of Hindu rights organizations launched a campaign that
ultimately resulted in the demolition of the Babri Masjid (which was alleged to
have been built at the site of a former Rama temple) also resulting in the
acquiescence and support of the BJP government in Uttar Pradesh, which led to
heightened communal violence throughout India. In response, the President
dismissed the BJP governments in Madhya Pradesh, Rajasthan, and Himachal
Pradesh. In <i>Bommai</i>, the Court proceeded to uphold these dismissals under
Article 356 of the Constitution on the grounds that the President’s actions
were necessary to save the basic structure of the Constitution, since the state
governments were not functioning in accordance with secularism, which the Court
ruled to be part of the basic structure of the Constitution. The Court thus
expanded its power to include the review and scrutiny of political decisions
relating to state elections and politics. Through the development and
entrenchment of the basic structure doctrine, the Court helped assume a
“guardian” role in protecting and preserving basic features of the Constitution
from being altered by political majorities. In its decisions adjudicating the
constitutionality of administrative tribunals, the Court asserted the basic
structure in order to safeguard judicial independence. Furthermore, its
decisions in <i>S.R. Bommai </i>and its progeny have enabled the Court to play
an active role in defending secularism and policing federalism in cases
involving the central government’s emergency powers of dissolution.
Additionally, the Court in <i>I.R. Coehlo </i>reasserted the basic structure
doctrine in holding that the Court could review the validity of all amendments
inserted into the Ninth Schedule after the <i>Kesavananda </i>decision in
accordance with the basic structure of the Constitution and the fundamental
rights provisions.<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>The basic structure doctrine thus ultimately proved to be
a powerful bulwark against the excesses of majoritarian politics in India. In
essence, the Court’s assertion of this doctrine enabled the Court to apply the
“brakes” on radical constitutional change, reassert and safeguard judicial
review, and reinforce core structural features of the Indian
constitution—secularism and federalism.<o:p></o:p></span></div>
<div class="CM17" style="text-align: justify;">
<br /></div>
<h2>
Basic structure doctrine used for anti-majoritarian posturing and for
settling competing commitments<o:p></o:p></h2>
<div class="CM17" style="text-align: justify;">
<span style="color: black; font-family: "calibri" , sans-serif; font-size: 11.0pt;">The <i>Golak Nath </i>and
<i>Kesavananda </i>decisions represented a response to the Indira Gandhi government’s
efforts to limit the Court’s ability to review land reform and nationalization
laws related to property rights. The Court’s basic structure decisions in <i>Kesavananada
</i>and later cases illustrate how courts may assert limits on governments to
prevent them from amending the Constitution in a way that violates certain
entrenched constitutional norms or principles. The Indian Court’s basic
structure decisions solidified the Court’s “super” anti-majoritarian function
in imposing limits on the abilities of majorities to do violence to the core
principles underlying the Indian Constitution. <o:p></o:p></span></div>
<div class="CM17" style="text-align: justify;">
<br /></div>
<div class="CM17" style="text-align: justify;">
<span style="color: black; font-family: "calibri" , sans-serif; font-size: 11.0pt;">Like many world
constitutions, the Indian Constitution embodies <i>competing </i>commitments to
different goals and values. The Constituent Assembly, in framing the Indian
Constitution, was thus faced with the daunting task of constructing a
constitution that could lay a foundation for ameliorating systemic caste-based
and economic inequality, while providing basic protections for economic rights
and civil liberties and freedoms. The Indian Constitution sought to balance the
Nehruvian aspirational vision of an egalitarian society contained in the
Directive Principles of Social Policy, against the Fundamental Rights, a set of
negative rights or limits on government power.<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>The former articulated the
“humanitarian socialist precepts” at the heart of “the Indian social
revolution,” though these principles were originally designated as nonjusticiable.<sup><span style="mso-text-raise: 5.0pt; position: relative; top: -5.0pt;"> </span></sup>The
Fundamental Rights, in contrast, set forth explicit, justiciable negative
rights, and was modeled in great part on the American Bill of Rights. But in <i>Bommai</i>,
the Indian Court invoked the basic structure doctrine in holding that the
central government could invoke its emergency powers to suspend state
governments that had failed to safeguard and protect secularism. In essence,
the Court held that federalism could be subordinated to another competing
commitment—secularism. <o:p></o:p></span></div>
<div class="CM17" style="text-align: justify;">
<br /></div>
<h2>
Testing times for the courts<o:p></o:p></h2>
<div class="CM17" style="text-align: justify;">
<span style="color: black; font-family: "calibri" , sans-serif; font-size: 11.0pt;">The question that
remains is: Are Courts that </span><span style="font-family: "calibri" , sans-serif; font-size: 11.0pt;">roughly follow public opinion
capable of performing what is generally understood as their core
counter-majoritarian function— protecting minority rights against majoritarian
excesses?<span style="color: black;"> The recent judicial trends have shown that
i</span>n all cases, and especially in cases involving the most vulnerable
civil liberties and civil rights claims, courts appear to be ill-equipped to
play their most basic constitutional function.<span style="mso-spacerun: yes;">
</span><span style="color: black;">We have now at the Centre a right wing
government, which believes that this a Hindu nation; since it has a straight
majority to rule, it could fashion policies the way it believes will lend power
to assert its majoritarian policies; there is a blurring line between
government and nation and consequently, if you voice your opinion against
government or approve of <span style="mso-spacerun: yes;"> </span>any sagacious
counsel even from UN bodies, you are treated as mouthing sedition. Supreme
Court rules 1992 incident at Ayodhya to be illegal. If the decision had been
anchored to the settlement between parties, no question could have been asked.
It looked for political expediency through a judgment and allowed the illegal
demolition to be condoned by court’s permission to construct. We will hold that
internet access is a fundamental right but we will trash it if government
raises the bogey of national security to clamp down on all fundamental freedoms
and arrest all political dissenters; if the constitutional morality of
non-discrimination on the ground of gender for temple entry was the lynchpin
for its central holding banning a few centuries old practice of keeping away
menstruating women from Sabarimala, through a review petition, the Supreme
Court cleverly reopens the case and posts it to be heard along with cases
dealing with Muslim women’s entry into mosques and female circumcision
practised in some communities. When Delhi was burning, if there a judge who was
not willing to play Nero’s fiddle, he gets transferred. And the Chief of that
court, on resuming the hearing says, let’s play fiddle, case adjourned!<o:p></o:p></span></span></div>
<div class="CM17" style="text-align: justify;">
<br /></div>
<div class="CM17" style="text-align: justify;">
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K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-7865916880663124402019-11-26T00:23:00.000-08:002019-11-26T00:23:00.343-08:00Constitution Day Address at Law College, VIT University<div dir="ltr" style="text-align: left;" trbidi="on">
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<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
Seventy ago on November 26, the Constitution of
India was adopted by the Constituent Assembly. The Preamble to the Constitution
of India bears testimony to the historic occasion. However, the Constitution
was only partially adopted that day. The full adoption came two months later on
January 26, 1950 - the day is celebrated as the Republic Day to mark the
anniversary of occasion. Post Emergency, after the then Janata party also
failed to hold on to the government at the centre, there were strong waves of
introspection of the situation that gave place to emergency. The flagrant
violations of human rights at that time, the <span style="font-style: italic;">ADM
Jabalpur decision</span> during emergency when the Court infamously said that
there was no right to life at all when there was emergency in operation, the
memory of supersession of judges and when A.N.Ray was appointed as CJI because
three other judges who delivered the <span style="font-style: italic;">Kesavanada
</span>verdict were found as not towing the government's policies and the
obvious affront to the independence of judiciary that they meant, all conjured
in the minds of the right-minded intelligentsia and particularly the legal
fraternity. Just as the legal professionals took active participation and gave
leadership in the Freedom Movement, some of the prominent lawyers at Delhi saw
themselves donning the role of torch bearers of the ideals of the constitution
and at a meeting of the SC Bar Association, Shri.LM<span style="mso-spacerun: yes;"> </span>Singhvi who was then President of Supreme
Court<span style="mso-spacerun: yes;"> </span>Bar Association and who had latter
served<span style="mso-spacerun: yes;"> </span>as Indian Ambassador to UK
proposed to select 26<span style="vertical-align: super;">th</span> November, the
day in which the Constituent Assembly<span style="mso-spacerun: yes;">
</span>adopted the draft constitution, as the Law Day. The National Law Day was
celebrated thereafter till 2015. <span style="background: white;">The Government
of India declared 26 November as Constitution Day on 19 November 2015 by a
gazette notification. The Prime Minister of India Narendra Modi made
the declaration on 11 October 2015 while laying the foundation stone of
the B. R. Ambedkar memorial in Mumbai. The year of 2015 was
the 125th birth anniversary of Ambedkar, who had chaired the drafting committee
of the Constituent Assembly and played a pivotal role in the drafting of the
constitution.</span></div>
<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
The several objectives that were detailed at
the first meeting dovetail to secure a cohesive democracy built on the <span style="font-weight: bold;">rule of law</span>. The constitutional vision is
contained in the preamble and the ideals expressed were contained in Part III
containing the Fundamental Rights Chapter. The way the State will proceed to
secure the vision by policies are set out in Part IV of the Constitution. The
role of the student community in preserving and realising constitutional goals
cannot be under-estimated. During the British occupation of India, Gandhiji
involved the youth in the freedom movement in large measure. He had no qualms
about even asking the students to abandon studies to join the bandwagon of
freedom fighters. Writing in Young India Mahatma Gandhi said, “<span style="font-weight: bold;">the world produced brilliant students before schools
and colleges came into being. There is nothing so ennobling or lasting as
self-study. Schools and colleges make most of us mere receptacles for holding
the superfluities of knowledge. Wheat is left out and mere husk is taken in. I
do not wish to decry schools and colleges as such.<span style="mso-spacerun: yes;"> </span>They have their use. But we are making
altogether too much of them. They are but one of the many means of gaining
knowledge.</span>” He expected the students to be brave and courageous. He
said, “<span style="font-weight: bold;">Let them realise that learning without
courage is like a waxen statue beautiful to look at but bound to melt at the
least touch of a hot substance</span>.”</div>
<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
Why am I speaking about courage to students?
What is the message that I have for the young students on a Constitution day?
Of the several provisions, the preamble contains the most pregnant expressions
for it truly is a declaration of what we the people of India set for ourselves.
True to the oft quoted expression of the Constitution as a dynamic document
that gives itself to changing aspirations of the people, the preamble underwent
an amendment to include the word “secular” when it said, “<span style="font-weight: bold;">We the People of India, having solemnly resolved to
constitute India into a sovereign socialist secular democratic Republic</span>
and to secure to all its citizens, Justice, Liberty, Equality, Fraternity, etc.
There are clouds overhanging our heads that threaten the cherished
constitutional goals and exalted institutions that exist to protect and enforce
these rights. There is an eternal vigil necessary whenever there is an
infraction of these high ideals set forth in this document; or when the
institutions constituted under them are denigrated or when the Constitution is
subverted. It is essential for us to recognise the recent happenings that have
immense constitutional importance. I will cite three instances: (i) dilution of
Article 370; (2) Inability of the State to enforce the judgment of the Supreme
Court or the Court making a judgment has worries about its enforceability and
therefore spares even the executive not to do what it is bound to do and (3)
the way students’ unrest in campuses and the youth power are snuffed out in one
place and protected in another. I am not going to give you answers that I have
secured for myself or the endeavour that I am undertaking but I am flagging
some important signposts that beg for minute attention and informed discussion.</div>
<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
It is essential to know that Article 370 wrote
itself into the Constitution after extensive discussion for more than 5 months
between Jawaharlal Nehru and his colleagues with Sheikh Abdullah and his
colleagues. The State of Jammu and Kashmir is the <span style="font-style: italic;">only
</span>State in the Union of India which <span style="font-style: italic;">negotiated
</span>the terms of its membership with the Union. The Constituent Assembly
merely approved the draft and the Article recorded the fact of a solemn pact.
From 1950, we have fought 3 wars with Pakistan in 1947, 1965 and 1971 and later
the Kargil conflict, all fought on Kashmir. The ordinary person could say that
the festering<span style="mso-spacerun: yes;"> </span>problem has now been put
an end with the dilution of Art 370. It could be on account of fatigue of what
we have gone through. But for students of law, they must engage in searching
questions that will include, the<span style="mso-spacerun: yes;"> </span>history
of the Kashmir tangle, the circumstances that lead to incorporation of Art 370
and the transient nature of the provision to be subject to the decision of the <span style="font-style: italic;">Constituent Assembly</span> of Jammu and Kashmir,
remember not the <span style="font-style: italic;">legislative assembly</span> of
the States, constitutionality of the legislative action, the lock down of
normal life in Kashmir, the arrest and detention of all representatives of the
people. A lady who came to the Supreme Court seeking for permission for seeing
her mother was advised by the court to see her mother and return but added
sarcastically, 'do not go around the <span style="font-weight: bold;">city in the
cold.' </span></div>
<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
The decision of the Supreme Court in <span style="font-style: italic;">Sabarimala Case </span>was brought at the instance of
the Indian Young Lawyers Association is important not merely for understanding
the concept of freedom of religion but also whether certain of the practices
form the bedrock of essential religious practices protected under Art 25. What
is equally important also is when there is a judgment approving of women of all
ages to enter the temple, the State was not able protect all persons seeking
entry and when the review was disposed of with a reference to a larger Bench,
the State Home Minister said that the government cannot grant any protection,
for, although there was no <span style="font-style: italic;">de jure</span> stay
of the earlier order, there was a <span style="font-style: italic;">de facto</span>
stay!<span style="mso-spacerun: yes;"> </span>Justice Rohinton lamented, <span style="background: white;"> </span></div>
<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .75in; margin-top: 0pt;">
<span style="font-size: 12pt; font-weight: bold;">Bona fide
criticism of a judgment, albeit of the highest court of the land, is certainly
permissible, but thwarting, or encouraging persons to thwart, the directions or
orders of the highest court cannot be countenanced in our Constitutional scheme
of things. After all, in India’s tryst with destiny, we have chosen to be
wedded to the rule of law as laid down by the Constitution of India. Let every
person remember that the “holy book” is the Constitution of India, and it is
with this book in hand that the citizens of India march together as a nation,
so that they may move forward in all spheres of human endeavour to achieve the
great goals set out by this “Magna Carta” or Great Charter of India.</span></div>
<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
The third issue is how the students’ unrest at
JNU is seen and commented by the press and people alike and how the hooliganism
of students of Benares Hindu University students who will not learn Sanskrit
from a Muslim teacher goes without comment from the digital media or the
university administration. The former has an intimate Constitutional law angle
from the context of right to education, support for the poor and the bright
students and students belonging to socially disadvantaged sections that the State
is bound to give assistance but would mindlessly increase hostel fees and other
charges several times the existing fees and when resisted, beat them up and
arrest them and at the same time when a brazen attempt to stifle a
constitutional guarantee under Art 16 against discrimination on the ground of
religion is practised, there is no whisper of admonition from the government or
the university administration against the protesting students.</div>
<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
Do not think that democracy is assured by the
fact that elections are held once in five years. In a book by Steven Levitsky
and Daniel Ziblatt titled <span style="font-style: italic;">How Democracies Die, </span>the
authors identity four markers which indicate how democracies degenerate to
authoritarian regimes:</div>
<ol style="direction: ltr; font-family: Calibri; font-size: 11.0pt; font-style: normal; font-weight: normal; margin-bottom: 0in; margin-left: .375in; margin-top: 0in; unicode-bidi: embed;" type="1">
<li style="color: #0070c0; margin-bottom: 0; margin-top: 0; vertical-align: middle;" value="1"><span style="font-family: Garamond; font-family: Garamond; font-size: 12.0pt; font-size: 12.0pt; font-style: normal; font-weight: normal;">Rejection
of or weak commitment to democratic rules of the game. This would be
manifest through rejecting the constitution or express willingness to
violate it. They may consist of restricting basic civil or political
rights.</span></li>
<li style="color: #0070c0; margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="font-family: Garamond; font-size: 12.0pt;">Denial of legitimacy of
political opponent. It may manifest by a claim that the rivals constitute
an existential threat either to national security or prevailing way of
life.</span></li>
<li style="color: #0070c0; margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="font-family: Garamond; font-size: 12.0pt;">Toleration or encouragement
of violence. </span></li>
<li style="color: #0070c0; margin-bottom: 0; margin-bottom: 8pt; margin-top: 0; margin-top: 0pt; vertical-align: middle;"><span style="font-family: Garamond; font-size: 12.0pt;">Readiness to curtail civil liberties of opponents
including the media.</span></li>
</ol>
<div style="color: #0070c0; font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
They write about Trump’s USA and worry
themselves that Trump answers all the four markers. Raise these questions to
Indian situations periodically, see if we are assured of a working democracy
where human rights of all individuals are respected; whether the press reports
fairly against actions that imperil the safety of the socially, economically
and religiously disadvantaged sections; whether dissent is tolerated or leaders
of opposition are branded as anti-nationals and cases are foisted against them and
whether the perpetrators of violence have state patronage or quick action taken
to apprehend them. Introspect, ideate and engage in active conversations. In
your vigilance lies the sanctity of the solemn Constitution; in your
engagements to question<span style="mso-spacerun: yes;"> </span>constitutionally
unacceptable practices lie the vibrancy of the rights guaranteed in the
constitution; in demand for adherence to the rule of law by every organ of the
State lies the safety of the institution of democracy. </div>
<div style="font-family: Garamond; font-size: 12.0pt; margin-bottom: 8pt; margin-left: .375in; margin-top: 0pt;">
Address at the VIT University, Law Department on 26th Nov
2019</div>
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K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-21017204178442016472019-10-28T22:18:00.002-07:002019-10-28T22:18:56.126-07:00Ayodhya settlement once and for all<div dir="ltr" style="text-align: left;" trbidi="on">
<h1 style="background-color: white; box-sizing: border-box; color: #404040; font-family: "Fira Sans", sans-serif; font-size: 35px; line-height: 1.1; margin: 10px 0px; position: relative;">
<span style="box-sizing: border-box;">Settling the Ayodhya case once and for all<span style="box-sizing: border-box;"></span></span></h1>
<h3 style="background-color: white; box-sizing: border-box; color: #595959; font-family: "Fira Sans", sans-serif; font-size: 28px; font-weight: 500; line-height: 1.1; margin: 10px 0px; position: relative;">
<span style="box-sizing: border-box;">There must be an understanding that in the outcome, there is neither victor nor vanquished<span style="box-sizing: border-box;"></span></span></h3>
<div id="articleimg" style="background-color: white; box-sizing: border-box; color: #202020; font-family: "Fira Sans", sans-serif; font-size: 14px;">
<img src="https://d39gegkjaqduz9.cloudfront.net/TH/2019/10/29/CNI/Chennai/TH/5_08/dde7b3b6_3286541_2_mr.jpg" style="border: 0px; box-sizing: border-box; max-width: 100%; vertical-align: middle; width: auto;" /><h6 style="box-sizing: border-box; color: #595959; font-family: inherit; font-size: 12px; font-style: italic; font-weight: 500; line-height: 1.1; margin: 10px 0px; position: relative;">
<span style="box-sizing: border-box;">Sushil Kumar VermaSushil Kumar Verma<span style="box-sizing: border-box;"></span></span></h6>
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<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
The Ayodhya issue is tantalisingly poised and there are only guesses about how the case could pan out — the Supreme Court of India had allowed arguments before the court and mediation talks to proceed simultaneously. It has been an unusual step. The dichotomy of this approach could perhaps be explained by the fact that the Court had marked August 15 as the deadline for turning in the settlement. Then, in July the pace of mediation was stepped up and the court wanted a report by August 1. Since there was no settlement by then, it commenced hearing. Down the line some parties made requests for a resumption of talks. It looked as if the court was unwilling to stop the hearing but also reluctant to let go of the possibility of a compromise.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
<span style="box-sizing: border-box; font-weight: 700;">Parties to appeals, settlement</span></div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
The appeals pending before the court — as many as 14 — arose out of five original suits filed in Allahabad. Out of the said five suits, four were filed between January 1950 and 1962. The first two were filed by individuals in their capacity as worshippers. The second suit was allowed to be withdrawn on September 18, 1990. The third suit was filed by the Nirmohi Akhara of the Ramanandi Sect through its Mahant in 1959. The fourth was filed in 1961 by the Uttar Pradesh Sunni Central Waqf Board and eight Muslim residents of Ayodhya and the general secretary (by name) of the Jamiat Ulema Hind, U.P. branch. In this suit many Hindu parties were arrayed as defendants. Representative status was given by the court to the plaintiffs and defendants in this suit to represent their two communities respectively. The fifth suit was filed in 1989 by Bhagwan Sri Rama Virajman (the deity is regarded by law as a perpetual minor requiring representation through human agency) and Asthan Sri Rama Janma Bhumi Ayodhya (the place of birth) through Sri Deoki Nandan Agrawal, who incidentally was a former High Court judge and resident of Allahabad and sought to be treated as the friend of the deity.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
Going by media reports, it appears that some of the significant parties in the case, but not all, are parties to the settlement. It is believed the Vishwa Hindu Parishad in the form of the Ram Janambhumi Nyas and its supporter T.N. Pandey as the current friend of deity on the extreme side, and the Jamiat Ulema Hind on the other extreme side are opposed to the settlement. If that be so, it means there is a broad spectrum in between, of the Sankaracharyas backed Punaruddhar Samiti, the Nirvani and Nirmohi Akhara bodies and the Hindu Mahasabha which are pro-settlement.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
And most important of all, the Uttar Pradesh Sunni Central Waqf Board, the statutory custodian of the disputed site under the Waqf Act, is reported to be a signatory. If these reports are anything to go by, the board is willing to acquiesce in the acquisition of the disputed site and give up its claim to it if other places of worship are protected and the Muslim community gets a fair number of additional mosques, in Ayodhya and elsewhere, where prayers can be held. So, what does a court do under these circumstances where a number of parties come forth with a settlement which they can subscribe to and which could cease the conflict, but which other parties oppose?</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
The Code of Civil Procedure allows one or more of community of persons, with the permission of the court, to sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested. The court shall, in every case where permission or direction is given, at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
Independent of the power to represent the general body, any person on whose behalf, or for whose benefit a suit is instituted or defended may apply to the court to be made a party to such suit. The only restriction for a settlement so brought about to bind all persons is that no suit could be withdrawn, or compromise made, without the leave of court. The Sunni Waqf Board having been given representative character and which claimed ownership to the site and the mosque literally excludes any scope for any other person among the Muslim community to lay claim to the property contrary to the concessions and agreement which it is prepared to enter into. The Hindu parties that have not come on board will have to tell the court why they are resisting a settlement in which they are getting the land for which they have been fighting for so long and raised such large funds, when the site is being effectively given up by the Muslim parties, and where the Ram temple can now be a reality. A lack of bona fides may result in some strict action from the court. Where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, as per the diktat in the Code of Civil Procedure, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
<span style="box-sizing: border-box; font-weight: 700;">Width of court jurisdiction</span></div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
There is another larger aspect here and that is the overarching power given only to the Supreme Court under Article 142 of the Constitution, the power to do complete justice in cases before it. This rare and almost awesome power permits the court to work through legalistic objections and climb above procedural difficulties to bring about the best possible result for the parties — and in this case, the country. In the words of the Supreme Court itself in State of Punjab v Rafiq Masih (2014), “Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
It is a power that gives preference to equity over law. It is a justice-oriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law.” Given the fact that “justice” itself is susceptible to a plurality of meanings, the court could mesh the wisdom of parties’ efforts in putting together an agreed formulation, aided by suave handling by the mediators and the counsel’s lucubration that played out in court for 40 days of marathon hearings. It can come out with a humble offering on a platter of how the collective wisdom of all parties yielded to a denouement that douses mutual bickering among the communities and cement a lasting peace that will do India proud.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
<span style="box-sizing: border-box; font-weight: 700;">Need for a strong message</span></div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
The majority community owes to its Muslim brethren an assurance that the ugly incidents of December 6, 1992 shall never be repeated in any other place, neither in Kashi nor in Mathura. And that in the outcome, there is neither victor nor vanquished. Restoration of dented prestige, enhancement of social standing and durability are the motivations for the nature of final outcome.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
On August 15, 1947, Gandhi marked the day with a 24-hour fast, prayer and spinning yarn. When C. Rajagopalachari visited and congratulated Gandhi for restoring peace in the city of Calcutta, Gandhi said he will not be satisfied “until Hindus and Muslims felt safe in one another’s company and returned to their own homes to life as before”. His hope remained but a dream. On the day when the judgment of the Supreme Court is given, let the Prime Minister and the Chief Minister of Uttar Pradesh appear along with other parties to the litigation to hear the judgment of the Supreme Court as it is read in open court. This act will instil confidence that even if they had failed in the past, they shall begin yet again an era of goodwill and trust among all sections of the community.</div>
<div style="box-sizing: border-box; color: #595959; font-size: 18px; line-height: 1.5; margin-bottom: 10px;">
<i>Published in the Hindu on 29th Oct 2019</i></div>
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K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-88615440967996547262019-03-06T18:20:00.001-08:002019-10-28T22:25:11.464-07:00Ayodhya imbroglio, is mediation viable?<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<span style="color: blue;">The suggestion of the Supreme Court for considering mediation for resolving the Ayodhya Mandir-Mosque dispute shall be seen as sagacious counsel to seize the opportunity to bury the hatchet between the warring parties and usher an era of understanding and camaraderie. Court’s exhortation is not an abdication of its duty to adjudicate. It is a propitious reminder to seek answers that are not binary options; if multiple, they cannot be ticked as right or wrong; or just or unjust: Is not the Ayodhya dispute outside court and not inside? Can the lawyers be trusted to argue the cases with dignity? Will the opinion of the court represent a dispensation of justice to all parties? Will all the people rest in quiet after the verdict and go about peacefully? Do we not have answers that could bring victory to all of us Indians as siblings in arms and not sepoys with arms? </span><br />
<span style="color: blue;"><br /></span>
<b><span style="color: blue;">Standards of proof in court are different</span></b><br />
<span style="color: blue;">It is difficult to say when the ‘Ayodhya dispute’ itself started. There was no unanimity in the 3 member judgment of the Allahabad High Court delivered on 30.9.2010 that there was a temple at the place where Babur had ordered the construction of a mosque or when the mosque was constructed. However, Justice Sibghat Ullah Khan wrote that there was evidence that much before 1855, Ram Chabutra and Seeta Rasoi had come into existence in the same place where the mosque had been constructed. He observed: “It was very, very unique and absolutely unprecedented situation that inside the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.” Can we understand that there was unusual camaraderie between two communities, both offering worship according to their own tenets? Justice Khan did find not proof that the Babri mosque was constructed at the same place where there existed a Ram temple. However, there was archaeological evidence of existence of ruins of once existing temple under the Babri mosque. He said, “Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque” (sic). This was central to the final dispensation that Hindus and Muslims jointly owned the place. Justice Sudhir Agarwal said that there was not even proof that the mosque was constructed in 1528 but “this much is clear that the same was constructed before the visit of Joseph Tieffenthaler in Oudh area between 1766 to 1771.” Do you realise that even commonly accepted ‘historical facts’ may be found to be not established, if you subject various incidents to pass through the prism of judicially acceptable evidence?</span><br />
<span style="color: blue;"><br /></span>
<b><span style="color: blue;">Where Courts cannot be effective</span></b><br />
<span style="color: blue;">Judgments of courts do not always resolve disputes. Issues of language, region, religion, and sharing of natural resources are wholesome recipes for making political capital to create divisions amongst people. River water disputes between States have been stoked for cheap political gains, even when facts and law were clear and judicial pronouncements were rendered after long deliberations. If the courts in India carry the odium of poor performance, it is largely due to the kind of cases that are brought to the portals of courts are not typically fit to be brought to courts but resolved through negotiations. There are too many cases that are not just fit for hearing before courts; that require no forensic skills of reasoning to write lengthy judgments; that are ill-suited because they adopt adversarial posturing; And Ayodhya imbroglio is precisely one such. </span><br />
<span style="color: blue;"><br /></span>
<b><span style="color: blue;">Identifying the nature of Ayodhya dispute </span></b><br />
<span style="color: blue;">It is no less an enigma if Sri Ram is a mythological character or a historical hero. Mythologies cannot all be wished away as distortions of facts and hence meaningless. They help consolidate a common belief system through continual storytelling and foster a sense of belonging to a shared experience of history. In that way, Ram’s birth place as Ayodhya evokes the same sense of reverence as Jerusalem does to countless persons that owe allegiance to Judaism, Christianity and Islam. There is a wide spectrum of options in all types of cases, with negotiation at one end and trial as the other. The former means that the parties retain control over the process and outcome while at the trial, a third-party judge or arbitrator has a power to render a binding decision on a pre-designated process of adjudication. Within these extremes exist at the middle mediation, where the third-party neutral does not have a power to impose a binding decision but the parties themselves examine and decide on the outcome. The Ayodhya dispute is not a case that is built on rights where a third-party judge could deliver a judgment that is satisfactory to all of them. This is an interest-based litigation where one party desires the retention of status quo as a mosque, while the other is interested in establishing as place of worship not based on any established right but what one believes as place of birth of venerable Sri Ram based on his religious and cultural moorings. Costs and time are not issues at hand. Restoration of dented prestige, enhancement of social standing and durability are the motivations for the nature of final outcomes that are better assured in a formulation where parties control the outcome. A public posturing through arguments of counsel will offer little scope for concessions but a concession on a point in a confidential in-house process will not obtain public gaze to be viewed as a sign of weakness. In creating a system for dispute resolution, it is best to identify as many persons as possible as stakeholders in order to satisfy a large body of persons with diverse interests and garner better support to the outcomes.</span><br />
<span style="color: blue;"> </span><br />
<b><span style="color: blue;">Identifying the stakeholders</span></b><br />
<span style="color: blue;">There was an attempt by Sri Sri Ravishankar to mediate the dispute. He oversimplified the effort. His gesture was good but the process that he adopted was not adequate. Identifying the stakeholders to the dispute and convening them are key elements to design a system to resolve the dispute and formulate an agreed process of carrying the negotiation. The parties named in the 13 appeals pending before the Supreme Court are naturally the persons who shall be called to participate. Out of the 5 suits, 4 suits were filed between January 1950 and 1962. The first 2 suits were filed by individuals in their capacity as worshippers. The second suit was allowed to be withdrawn on 18.9.1990. The 3rd suit was filed by Nirmohi Akhara of Ramamnand Sect through its Mahant in 1961, the 4th suit was filed by Sunni Central Board of Waqfs Uttar Pradesh and 9 Muslim residents of Ayodhya in 1962. The State of UP and some named individuals were also parties. The 5th suit was filed in 1989 by Bhagwan Sri Ramlal Virajman and Asthan Sri Rama Janma Bhumi Ayodhya through Shri Deoki Nandan Agrawal, who incidentally was a former High Court judge and resident of Allahabad. The worshippers’ suits are representative actions (O.8.R.1 under Civil Procedure Code) and the Court always has power to order general notice to all the worshippers and implead parties whose presence the court thinks as necessary.</span><br />
<span style="color: blue;"><br /></span>
<span style="color: blue;">Identifying the representative body on the side of Muslims is not difficult, for they are already before court. The Hindu Samaj has no such representative body. The persons who brought the structure down and delivered the denouement were a nameless crowd; hooligans to some; if even heroes to the eyes of some. They cannot be surely called to the table. The stakeholders are persons who are the chosen representatives of the dispute who want a solution. Hindu outfits that have evinced no political ambition and who have no clout in the corridors of power shall also be the stake holders to design the system. Representatives of Ramakrishna Mutt and Aurobindo Ashram that owe their institutional origins to Swami Vivekanand and Sri Aurobindo, the very names that ought to instil down the order a swing away from narrow sectarian approaches could be invited to participate. The Supreme Court which is seized of the matter itself could identify the stakeholders and help them design the process. </span><br />
<b><span style="color: blue;"><br /></span></b>
<b><span style="color: blue;">Systems design to indicate process involved for carrying dialogue</span></b><br />
<span style="color: blue;">If adjudication through courts or arbitration is not ideal, a third party neutral or body of neutrals that the stakeholders agree will start the process. Normally, the parties themselves decide on the mediator. It is expected that all the information given at the session is confidential. No part of the statement in the process of dialogues shall be used as evidence in any court of law. Given the complexity and enormity of the dispute, the person or a body of person shall be such whose neutrality is impeccable and stature, colossal. The person that heads the panel shall be just not a religious head belonging to any denomination but a global spiritual leader, whose respects our culture in all its beautiful diversity. The Dalai Lama could be a great name to reckon. The dialogue will not be merely on facts pleaded and documentary evidence adduced but will also be on issues of law. Convening the parties to the dispute and setting a time frame will be the task of the panel of neutrals. The respective parties will have the benefit of legal advice at the negotiating table and the statement of law aired freely, will help the parties refine their options. The systems design will include suggestions if the panel could claim neutral opinion on points of law based on the points of disputes Or, the Supreme Court may itself volunteer to give written opinion on the points of law jointly formulated by counsel to the panel for helping the parties to carry forward the dialogues. The brainstorming will be in every bit of options available. The process will match the categories as: what ought to be considered; what may be considered; even what parties are not sure if they should be discussed or not and what both parties are unanimous that they shall not be discussed. They will result in a consideration from the ‘surely must have’ ones to ‘issues of doubt’ to ‘seemingly impossible’ ones.</span><br />
<span style="color: blue;"><b><br /></b></span>
<span style="color: blue;"><b>Historical revisionist exercise is dangerous</b></span><br />
<span style="color: blue;">We cannot engage in historical revisionist exercise in re-building temples and demolishing places of worship of other religions. It is a fact of history that the Moghul Rulers practised Islam and East India Company and later the English’ direct rule allowed Christian missionaries to proselytise and propagate their religion. The French’ and the Portuguese’ rule in different pockets of India also secured converts from the local populace to Christianity and their modified forms of worship. What if there are persistent demands for demolition of churches and mosques on actual or assumed stand that in any existing Hindu place of worship, there was a church or mosque? Take, for example, the demands that already exist for relocation of mosques and ‘restoration of temples’ at Mathura and Varanasi. A perfectly documented history is the private diary of Ananda Ranga Pillai (Volume 2, 1746 AD), Chief Dubash (translator) to Governor Dupleix of Pondicherry, where he records to the minutest detail of how a Shiva temple was demolished and a Church consecrated in the very same place. The Church is situate is Mission Street at Pondicherry where ardent Christian worship and Sunday Mass are conducted regularly. Imagine, the upheaval it could cause if there is a demand for restoration of the temple at the place, citing the Ayodhya example. The whole exercise must commence from the accepted premise built on factors that (i) Ayodhya uniquely presented an ever ranging dispute running to several generations about the ownership and its nature of user; (ii) at the time of India’s freedom when the will of the people of India prevailed and we gave to ourselves a written Constitution agreeing to be governed by rule of law through parliamentary democracy, there existed no dispute for restoration of temple in any court other than at Ayodhya and (iii) what happened on 6th December 1991 by the demolition of the disputed structure was an act of vandalism, never to be repeated with demand for construction of any other place of worship in the place of any other form of worship. If the Centre gives assurance that it shall protect all ancient places of worship against vandalism and against conversion of any place of worship from one religion to another, there is simply no reason why the idea of negotiated settlement through a non-adversarial, non-adjudicatory conciliatory process will not be acceptable to all parties</span>. <br />
<br />
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K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-90527969186957698272018-10-21T01:41:00.000-07:002018-10-21T01:41:46.037-07:00Dharma and the Rule of Law<div dir="ltr" style="text-align: left;" trbidi="on">
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We use conjunctions
between words and/or phrases to denote opposites or of things belonging to the
same<span style="mso-spacerun: yes;"> </span>genre. Day and Night ,hot and cold,
Good and bad are examples of<span style="mso-spacerun: yes;"> </span>expressions
when an antonym follows the fist word. Fair and lovely, pith and substance,
accord and satisfaction are some of the expressions where the first word and
the word that follows it mean the same but it is still used that way to lay
emphasis on the quality of the first word. Dharma and the Rule of law do not
conform to either of the two examples only because the first word 'dharma'
literally subsumes the adjunctive 'rule of law'. In such a situation, we
normally do not use the conjunction 'and'. Summer is hot; winter is cold;
Summer is so much else apart from being hot, the same way that winter is so
much else apart from denoting cold. We are going to see how Dharma transcends
the rule of law and if our striving for dharma is earnest, if we must make dharma
a way of life, the rule of law which is but a smaller concept is already taken
care of. We have gathered for a two day conference on "Human Values and
the legal world" and the occasion is most propitious to examine the lofty
concept of dharma and how we integrate it in our lives, in private and in
public; that rule of law is the way we live; that which we endorse and that is
assimilated. If it conflicts with dharma, to defy it! By engaging in this
conversation, we will have laid the path for a better world to live; a world
that lives by the universal mantras. through Satya, Prema,
Shanti, Ahimsa and above all, Dharma! </div>
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<span style="background: white; font-weight: bold;">SC cases where the concept of dharma
was discussed</span></div>
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<span style="background: white;">The Supreme Court of India has attempted to grapple
with the concept of dharma in quite a few cases: in some cases to expound the
law, in some cases to apply the law that is dharma; in some cases to say how
law, that is legislation, has veered away from dharma. In </span><span style="background: white; font-style: italic;">Aruna Roy v Union </span><span style="background: white;">(2002) the challenge to the National Curriculum
Framework for School Education, was principally on the ground that the
education policy framework sought to encourage vedic mathematics, sought to
promote sanskrit as an optional language, encouraged the understanding of
religious studies and the like.<span style="mso-spacerun: yes;"> </span>The
Supreme Court liberally used how each one of the objections served the cause of
dharma and dismissed the PIL. In </span><span style="background: white; font-style: italic;">Lal Nagji v Jayantilal </span><span style="background: white;">(1960),
the Supreme Court was considering whether the sale of joint family property by
the father for discharge of antecedent debt could bind<span style="mso-spacerun: yes;"> </span>only if the debt was not tainted<span style="mso-spacerun: yes;"> </span>with immorality and whether the knowledge of
such immoral use of the debt was essential to be known to the purchaser. In
essence, the court was considering the latitude of the principle of pious
obligation of the son to be bound by the debt of the father. Gajendragadkar,
who was himself a scholar in ancient Sanskrit texts used ancient wisdom through
smritis in good measure but he said that the texts themselves have yielded to
flexible assimilation through diverse practices and hence there was a need to take
notice of the developments in law that have quietly and dextrously chiselled
the texts for contemporaneous application. Today, we have a Hindu Succession
Act amendment in 2005 which says that the theory of pious obligation is
abolished and consequently, there could be no application of pious obligation
to bind a progeny for his/her father's debts. In 1975, during the heydays of
communism in Kerala, there was Abolition of Joint Family Act, a perverted idea
at that a law could abolish the jointness of the family! In</span><span style="background: white; font-style: italic;"> CIT v Bijli Cotton </span><span style="background: white;">Mills (1979), the Supreme Court examined the case of a
trader who was realising compulsory payments from customers for payment of '</span><span style="background: white; font-style: italic;">dharmada</span><span style="background: white;">' (charity). The contention of the assessee<span style="mso-spacerun: yes;"> </span>that these receipts did not form part of
trade price and purchase of goods only was an occasion and not a consideration
for payment of </span><span style="background: white; font-style: italic;">dharmada.
</span><span style="background: white;">These receipts, the Supreme Court
reasoned were property held in trust or legal obligation for charitable
purposes. The argument advanced by the State in this case was rather strange.
They pointed out to some decisions which said that the term dharma was vague
and uncertain and the payment of a portion of price for a commodity as
including for charitable purpose must be treated as void. This bizarre argument
was repulsed by the Supreme Court but it still examined the origin of this
theory to a decision of the Privy Council in </span><span style="background: white; font-style: italic;">Runchordas Vandrawandas v Parvatibhai (1899</span><span style="background: white;">), which had ruled</span><span style="background: white; font-style: italic;">: </span></div>
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<span style="background: white; font-style: italic;">In Wilson's
Dictionary 'dharam' is defined to be law, virtue, legal or moral duty.. The
objects which can be considered to be meant by that word are too vague or
uncertain for the administration of them to be under any control.</span></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin-bottom: 0pt; margin-top: 2pt;">
However, in a later <span style="font-style: italic;">Bombay
case</span>, namely, the <span style="font-style: italic;">Advocate-General
of Bombay</span> v. <span style="font-style: italic;">Jimbabai</span> [ILR
41 Bom 181 : 17 Bom LR 799] Beaman, J., felt that in this country “Dharma” did
mean roughly and almost invariably in the cases which had come up for legal
decisions just “charity” and nothing else and observed:</div>
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“It is true that an Oriental's idea of charity
might be a little wider and looser than that of the Lord Eldon, particularly
amongst the lower and more illiterate classes of Hindus and Mahomedans; but a
liberal use of the convenient doctrine of cy-pres, which is surely elastic
enough to reach almost anything which Judges wish to reach, might have
validated the technical defects and cured the infirmity”.</div>
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<span style="background: white; font-style: italic;">In A.S. Narayana Deekshitulu v State
of A.P</span><span style="background: white;">. (1966), the SC utilised the
occasion while upholding the law abolishing the office of hereditary
archakaship in Hindu temples, to dwell deep on the concept of Dharma.<span style="mso-spacerun: yes;"> </span>It recounts a query that Yudhistra asks of
Bhishma of what is the meaning and scope of dharma to which Bhishma replies: </span></div>
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<span style="background: white;">It is
most difficult to define Dharma. Dharma has been explained to be that which
helps the upliftment of living beings. Therefore that which ensures welfare (of
living beings) is surely Dharma. The learned rishis have declared that which
sustains is Dharma.</span></div>
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<span style="background: white;">Taitriya Samhita's
definition of the term will admit of a universal application: </span></div>
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<span style="background: white;">Dharmoh
Vishwasya Jagatah Pratistha</span></div>
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<span style="background: white;">Loke
Dharmistham Praja upsarpanti</span></div>
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<span style="background: white;">Dharmen
Papamadnudati</span></div>
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<span style="background: white;">Dharme
sarvam Pratisthitam</span></div>
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<span style="background: white;">Tasmad
Dharmam param vadanti.</span></div>
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<span lang="en-US">Dharma constitutes the foundation of all affairs in the world.
People respect one who adheres to Dharma. Dharma insulates (</span><span lang="en-US" style="font-style: italic;">man</span><span lang="en-US">) against
sinful thoughts and actions. Everything in this world is founded on Dharma.
Dharma, therefore, is considered supreme</span><span lang="en-IN">.</span></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span lang="en-IN">Of a similar refrain was by </span><span lang="en-US">Madhavacharya,
the Minister to Hakka and Bukka, founder kings of Vijayanagar Empire, </span><span lang="en-IN">who, </span><span lang="en-US"><span style="mso-spacerun: yes;"> </span>in his commentary on Parashara Smriti, has
briefly and precisely explained the meaning of Dharma as follows</span><span lang="en-IN">: </span><span lang="en-US">Dharma is that which sustains and ensures
progress and welfare of all in this world and eternal bliss in the other world.
The Dharma is promulgated in the form of commands</span><span lang="en-IN">.</span></div>
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<span lang="en-IN">The Supreme Court summed up: </span><span lang="en-US">Though dharma
is a word of wide meaning as to cover the rules concerning all matters such as
spiritual, moral and personal as also civil, criminal and constitutional law,
it gives the precise meaning depending upon the context in which it is used.
When dharma is used in the context of duties of the individual and powers of
the King (the State), it means constitutional law (Rajadharma). Likewise when
it is said that Dharmarajya is necessary for the peace and prosperity of the
people and for establishing an egalitarian society, the word dharma in the
context of the word Rajya only means law, and Dharmarajya means rule of law and
not rule of religion or a theocratic State. Dharma in the context of legal and
constitutional history only means Vyavaharadharma and Rajadharma evolved by the
society through the ages which is binding both on the King (the ruler) and the
people (the ruled).</span></div>
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<span style="background: white; font-weight: bold;">Meaning and implication of Rule of
law</span></div>
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<span style="background: white; color: #252525; font-size: 10.5pt;">The concept of Rule of law is believed to have
its origin in Chief Justice Sir Edward Coke's articulation during the James I
rule. Sir Coke said that the King is under God and the Law and that the Law is
supreme over executive. The term 'Rule of Law' was derived from the French
phrase </span><a href="https://www.lawnotes.in/La_principe_de_legalite"><span style="background: white; color: black; font-size: 10.5pt; font-style: italic;">la
principe de legalite</span></a><span style="background: white; color: #252525; font-size: 10.5pt;"> (the principle of legality). The concept was later
developed by Dicey and written in his book </span><span style="background: white; color: #252525; font-size: 10.5pt; font-style: italic;">Law and the
Constitution</span><span style="background: white; color: #252525; font-size: 10.5pt;"> (1885)
as following </span><span style="font-size: 11.0pt;">1. Supremacy of Law 2.
Equality before Law 3. Predominance of legal spirit articulated through primacy
of rights of individual. The Rule of law largely impacts the administrative law
in the sense that law is seen as fulcrum of all activities of the government
which will leave nothing to arbitrariness. The equality principle (epitomised
through Arts 14 to 16 in the constitution of which we are familiar) ensures
that there must be equality before law and equal protection of all laws. The
prominence of the legal spirit is what we witness today when there is an
increased reliance on courts as protectors of individual rights and liberties.
We have now courts tasked to decide what serves individuality and privacy
better. We want court to decide if I could be forced to reveal my biometric
details to be collected by the State. Inherent is the lurking doubt that State
will purvey on all my activities and my personal data could be stolen by all
and sundry. We want the court to decide who I shall partner in my bed; is that
a male or a female? We want the court to outlaw adultery because we assume the
woman to a husband's chattel and trigger the process of law for complaint only
if the husband has not consented to her amorous relationship. And above all, we
want matters of religion and tradition to be decided by Courts. We want
religious beliefs<span style="mso-spacerun: yes;"> </span>tested under
constitutional precepts of equality and reasonableness.</span></div>
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<span style="font-weight: bold;">Dictatorial regimes have always resorted to excess
powers only through rule of law</span></div>
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It will be wrong to
assume that punctilious observance to rule of law will be a guarantee against
arbitrariness. Hitler wrought to himself all the powers that pushed the world
to the brink through constitutional process only. The declaration of emergency<span style="mso-spacerun: yes;"> </span>and annihilation of all fundamental freedoms
and unleashing of terror against political dissidents were through legal
processes. The<span style="mso-spacerun: yes;"> </span>decision of the Supreme
Court <span style="font-style: italic;">in ADM Jabalpur </span>case holding that
in a state of emergency nobody had a right to life, as though the source of
life was the constitutional document itself. The way we understand
constitutionalism and bring our understanding to equality in such a fashion
that even domestic decisions within the four walls of your house will be sought
to be established on the basis of equality and based on voting rights. Our
excessive reliance on rights have only corresponding obligations from the state
and start complaining about what the State is not doing always. We extract no
good conduct from the individual himself. It is a life of licentiousness; life
of irresponsibility; life of indulgences and life of incessant frolic and life
of self centred living; life of no care for the society; no care for the
people; no care for the family, all of which are sure prescriptions of
individual decay and national degeneration. </div>
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<span style="font-weight: bold;">Excessive resort to courts will not help dharma</span></div>
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Our complaints that
courts have failed to deliver spring from two facts: One, there is no guarantee
that a case brought to court is decided once and for all within the life time
of the person who takes the case to courts. There are innumerable tiers of judicial
adjudication and there are various stages in the litigation, each of which
could be stifled by inviting adjudication and taking up that matter to further
levels so that the case is not decided at all. Two, there are too many things
going to courts which ought to be sorted out even without resort to court
process. Matters of beliefs and petty differences cannot be taken to courts. A
judge of the Madras High Court has examined his own court records in a period
of 3 months and reveals how one case gets multiplied<span style="mso-spacerun: yes;"> </span>to 8 cases. Some of my colleagues in office
want my permission to spend their holidays with their family to be done at
government expense by seeking for my permission to create work for them at
places where they want to go. Two young law graduates who have not yet
registered for practice size up the quality of work by the time that they have
to spend for preparation of a case, by the network that they must cultivate to
feed that work and seek my blessings for them to begin their practice. They say
that they have decided to practise in RCT because, they have found that it is
possible to make lot of money with minimal effort!<span style="mso-spacerun: yes;"> </span></div>
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<br /></div>
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<span style="font-weight: bold;">Acquiring knowledge of Dharma</span></div>
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How we will lead a
dharmic life will also ensure that we commit no breach of rule of law. Impart
the right values at home, since home is the first school. Family life is an
important social control and sans family, instances like what rocked Delhi in
Nirbhaya case are waiting to happen. It is said that there are simple tips for this
himalayan task: (i) You must receive training under wise people (vidwans) who
are also imbued with <span style="font-style: italic;">dharma; </span>Keep a role
model; (ii) You must aspire to attain self purification (<span style="font-style: italic;">atmashuddhi</span>). Spend time for contemplation
every day and (iii) you must realise the value of knowledge of the Vedas (<span style="font-style: italic;">veda vidya), </span>voice of god. Direct attention to
good conduct and what our scriptures and religious texts teach us. Mind your
duties more than you may clamour for rights; find a connection to everything
that you do to the society; of what you breathe is what the trees give out; of
what we drink and eat are what the earth spews from her belly; of what we speak
is what is heard by another and what we hear is what somebody speaks. See
yourself as a spec in the continuum of cosmic life. Realise your worth by what
you need to<span style="mso-spacerun: yes;"> </span>do the society for all the
enormity of<span style="mso-spacerun: yes;"> </span>what you receive from
others. That is your dharma that subsumes the rule of law. If you are a lawyer,
promote truth to clients and help them settle. If you are a judge, strive for
unearthing truth on all occasions and help warring litigants to better
conversations that will resolve disputes. Hear Satya Sai Baba : “Dharma illumines
the entire world. The word Dharma means, “that which upholds.” It is Dharma
that teaches the right relationship between man and man, man and society,
society and society. Dharma reveals to man through his heart what is right and
what is wrong, what is true and what is false. It is Dharma , which promotes
the welfare of society. Dharma protects its protector. The world cannot exist
without Dharma”.<span style="mso-spacerun: yes;"> </span></div>
</div>
</div>
</div>
<br /></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-4743477003839928292018-10-12T00:54:00.001-07:002018-10-12T00:54:19.229-07:00Minority rights, their constitutional underpinnings<div dir="ltr" style="text-align: left;" trbidi="on">
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<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Concept of minorities relatively new</span></div>
<div style="margin: 0in;">
<span style="font-family: Calibri; font-size: 11.0pt;">In a
country that believed in the precept of the whole world as a family, there was
no place for differential treatment of the peoples that populated the world to
be distinguished on the basis of race or religion. It is also the<span style="mso-spacerun: yes;"> </span>country that offered refuge to countless
persecuted communities, including the Jews and Zoroastrians as also the
religious groups who came to India on the avowed objective of proselytisation
but met with no resistance and instead given lands and other financial grants
to build places of worship having distinct rituals and gods; indeed, even if
the new churches and mosques were constructed after demolishing their own
temples, beyond a few murmurs, there was no organised resistance or
retaliations. Of course, we are no unique but there are other examples also,
such as, the fascinating account of a communication at the turn of the century</span><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;"> to the UN Sub
Commission<span style="mso-spacerun: yes;"> </span>on the prevention of
discrimination and protection of minorities,<span style="mso-spacerun: yes;">
</span>the Government of Thailand had stated that the concept of minorities
was unknown in that country. In Bhutan and Sikkim,<span style="mso-spacerun: yes;"> </span>the equivalent expression is an 'outsider' </span><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt; font-style: italic;">(Gyagar),</span><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;"> but is a derisive
or contemptuous expression, that is used to denote even an Indian!</span><span style="color: black; font-family: "Bookman Old Style"; font-size: 12.0pt;"><span style="mso-spacerun: yes;"> </span></span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Emergence of minority rights through Human rights
jurisprudence</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
Minorities were
largely identified on the basis of language and religion because what gave
legitimacy to<span style="mso-spacerun: yes;"> </span>their difference from the
rest, viz., the majority, is the emotional content or perhaps, the deeply
personal quotient for identification of distinctness came only through these
two factors. Not even Hitler's fascist Nazi party saw Jews as minorities for
the atrocities committed on them. He did not mind the numerical strength or
otherwise of Jews; he just believed in the pure Aryan race and anti-Semitism
as justification enough for extermination of the Jews and Romani gypsies.
Democratisation process in governance and universal suffrage encouraged
practices of securing bulk votes and here minority groups were more easily
susceptible to manipulation than the majority.<span style="mso-spacerun: yes;">
</span>The League of Nations' concerns of displaced immigrants and later UN
documents were largely responses to human rights violations of immigrants of
various nationalities. Large masses of people could not easily be lured to a
collective homogeneous conduct or support but exhibited paradoxically
sub-group mentalities and fissiparous proclivities. Indeed, the United Nations
did not have an exclusive document for minorities till as late as 2012. It was
only in 18th December 1992 that the UN Member States adopted unanimously the
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, an acknowledgment that a gap existed in
minority rights protection. <span style="background: white;">The Minority Rights
Declaration established that States have an obligation to acknowledge and
promote the rights of minorities to enjoy their own cultures and identities,
to profess and practice their own religions and use their own languages. </span>The
Declaration ushered in a new era for minority rights. It sets essential
standards for protection and offers guidance to States as they seek to realise
the human rights of minorities. At the international level, the minorities
also had to be associated and identified with National and ethnic differences.
</div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Constituent assembly’s concerns - political rights
and preservation of culture </span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin-bottom: 10pt; margin-top: 0pt;">
<span lang="en-US" style="color: black;">For first time, Indian's lowest
caste known as "Untouchables" or "Depressed Classes" had
been identified as Scheduled Castes introduced by Colonial Government of India
in 1935. In the following year Colonial Government of India (Scheduled Castes)
Order 1935 specified, "No Indian Christian shall be deemed to be a member
of a Scheduled Caste."<span style="mso-spacerun: yes;"> </span>After India
got Independent from Colonial power, while framing Indian Constitution the
Presidential Order of Scheduled Castes and Scheduled Tribes Order 1950, the
Scheduled Caste Origins converted to any other faiths or religions different
from Hinduism has been left out in Para 3 of Article 341 </span><span lang="en-IN" style="color: black;">. Partition in 1947 did play a crucial role in
shaping the discourse on the minority- majority question through religion. (As
per the National Minority Commission: Muslims, Christians, Buddhist, Sikhs and
Parsis have been notified as religious minority communities under section 2(c)
of National Minority Act, 1992). Minorities in the country are about 18.4% of
the total population of the country. During the divide and rule policy of the
British, the linguistic and religious differences were played up to the fore
to keep the society as a smouldering boiling pot. The price for freedom from
British hegemony was the vivisection of the country on the basis of religion
and creation of Pakistan. Soon after partition, the linguistic differences
became the basis for State re-organisation. Article 30, as it took shape guaranteeing, </span><span lang="en-IN" style="font-style: italic;">whether based on religion or language</span><span lang="en-IN">, right to establish and administer educational institutions of
their choice is but a myopic way of ameliorating the multifaceted problems confronting them. The restricted approach in the Constituent Assembly debates was because of several factors: The constituent assembly debates were led by, among other
persons, Ambedkar, Nehru and Patel. Each had a varying perception about how
the minority rights were to be dealt with because, each had a different world
view of what these differences meant. The objectives resolution moved by Nehru
on 22nd January exhorted that "adequate safeguards would be provided for
minorities, backward and tribal areas, and depressed and other backward
classes." An advisory committee under the chairmanship of Patel was
constituted and moving the resolution for constituting it, Govind Ballabh Pant
said, " Unless the minorities are fully satisfied, we cannot make
progress; we cannot even make peace in an undisturbed manner." </span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Ambedkar, Nehru and Patel</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span lang="en-IN">To
Ambedkar, the principal problem arose because within the Hindu community,
there was no equality. The Dalits were subjected to caste prejudices and
tyranny. The salvation existed in conversion of Dalits to other minority
religions. He wrote, " If you want freedom, you must change your
religion.”(BAWS, Vol 17, Part 3, pp 127-129).)<span style="mso-spacerun: yes;">
</span>The caste system existed among Muslims and Christians also but
according to him, while caste system for Hindus has a religious sanction,
there is no such sanction in the essential tenets of religious faiths among
Muslims and Christians. Since he talked of the way of emancipation was only
through conversion, he did not direct his attention for making provision for
SCs who had converted to Christianity but who suffered from social exclusion
and economic deprivation. </span><span lang="en-US">After India got Independent
from Colonial power, while framing Indian Constitution the Presidential Order
of Scheduled Castes and Scheduled Tribes Order 1950, the Scheduled Caste
Origins converted to any other faiths or religions different from Hinduism has
been left out in Para 3 of Article 341. </span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
Nehru was a left
liberal to whom religion was wholly unimportant. His secular credentials won
the hearts of large sections of Hindus including the Dalits and almost all of
the minorities. Describing a moment on the eve of his death, Grenville Austin,
who was then a Research scholar and who had turned up at Teen Murti Bhavan,
where the body had been kept in state, when he saw Dr Syed Mahmud, a veteran
freedom fighter being accosted inside by Babu Jagjivan Ram, "This was
truly a scene symbolic of Nehru's India: a Muslim aided by an Untouchable
coming to the home of caste Hindu.” </div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
Patel was the
Chairman of the<span style="mso-spacerun: yes;"> </span>Advisory Committee and
had a part in drafting of Article 29 and 30. <span style="color: #3e3e3e;">Patel
resorted to bring equality to all and eradicate the concept of minorities. He
believed that such classification was brought about by the imperial rulers to
maintain balance between communities but the same had given birth to communal
differences. He said: </span></div>
<div style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt; margin-left: .375in; margin: 0in;">
<span style="font-style: italic;">“It is not our intention to
commit the minorities to a particular position in a hurry. It is in the
interest of all to lay down real and genuine foundations of a secular state,
then nothing is better for the minorities than to trust the good-sense and sense
of fairness of the majority, and to place confidence in them. So also it is
for us who happen to be in a majority to think about what the minorities feel,
and how we in their position would feel if we were treated in the manner in
which they are treated. But in the long run, it would be in the interest of
all to forget that there is anything like majority or minority in this
country, and that in India there is only one community.”</span></div>
<div style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Constitution limiting minority rights to
administration of Educational institutions</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="color: #3e3e3e;">The </span><span style="color: black;">Drafting Committee
which met on February 5 and 6 1948 formulated the various provisions relating
to minorities into ten Articles(292-301) and placed them in Part XIV under the
title ―Special Provisions Relating to Minorities. Reservation of seats in parliament
and the assemblies as well as in public appointments, which were originally
provided for, were<span style="mso-spacerun: yes;"> </span>however, dropped in
the aftermath of violence after the partition of the country and during the
debates of the Assembly. Sardar Patel, in his letter dated 11th May 1949 to
the President of CA mentioned of the ‘changed circumstances‘ for reviewing the
original recommendations of the Advisory Committee relating to minorities. He
found it inappropriate to have reservation of seats for religious minorities
which according to him led to a certain degree of separatism and to that
extent contrary to the conception of a secular democratic state. Originally,
Art 29(2) opened with the expression, " No minority whether based on
religion, community or language, shall be discriminated against in regard to
the admission of any person belonging to such minority into any educational
institution maintained by the state." When the draft was finalised, it
became " No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them."
Ultimately the Constitution of India used the word ‘minority‘ or its plural
form in articles 29, 30, 350 A and 350 B but does not define it anywhere. The
practice and propagation of religion guaranteed under Art 25 was not
specifically addressed to minorities only but to all religious groups and
denominations, but the minorities used the provisions substantially to their
own benefit for conversion of SCs and STs. Discussions on personal law reforms
for minorities were broached but the subject was tucked away under Directive
Principles consigning it as requiring deliberation for bringing<span style="mso-spacerun: yes;"> </span>a Common Civil Code in 15 years.</span></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Supreme Court’s approach in initial years</span></div>
<div style="margin: 0in;">
<span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;">The courts and especially the Supreme Court believed that it
was the sentinel on the qui vive, literally upholding every challenge brought
to the courts that were perceived as State intervention against the minority
rights. Commenting on the judicial pronouncements, particularly of the Supreme
Court, on the topic ‘Minorities at Cross Roads’, Fali Nariman said at a
meeting in 2014 (when the Modi government took over the reins) at Delhi
detailing the down trend in judicial interpretations-from the high point<span style="mso-spacerun: yes;"> </span>of favouring the protection of minorities
and insulating them against any form of State intervention to gradually
sharing the public perception and State assessment that the autonomy enjoyed
by minority run institutions were engaging in profiteering and converting them
as business propositions.<span style="mso-spacerun: yes;"> </span>This, he
would say was not how the Supreme Court functioned for the first 50 years..
The support to Anglo-Indian Community in the manner of teaching only in
English medium even, if they admitted non-Anglo Indians in 1952 to striking
down in 1959 several provisions of the<span style="mso-spacerun: yes;">
</span>controversial Kerala Education Bill in its advisory jurisdiction of
attempted take over by the Communist party led government of Christian schools
run in that State showed the acute concerns of the SC for the rights of
minorities under the danger of being trampled by the State. Justice S.R.Das
would conclude the judgment, </span><span style="color: black; font-family: Verdana; font-size: 13.0pt;">“</span><span style="color: black; font-family: Calibri; font-size: 11.0pt;">The genius of India has been able to find unity
in diversity by assimilating the best of all creeds and cultures.<span style="mso-spacerun: yes;"> </span>Our Constitution accordingly recognises our </span><span style="color: black; font-family: Calibri; font-size: 11.0pt; text-decoration: underline;">sacred obligation to the minorities</span><span style="color: black; font-family: Calibri; font-size: 11.0pt;">.” In 1974, </span><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span>provisions of Gujarat University Act 1949,
that provided that teachers of all colleges including minority run
institutions shall be recruited by the University were challenged by the
Management of</span><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt; font-style: italic;"> St.Xavier's </span><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;">college as constituting a serious
infraction of the right to administer educational institution of their
choice.<span style="mso-spacerun: yes;"> </span>The 9 member Bench affirmed the
conclusions in </span><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt; font-style: italic;">Kerala Education Bill </span><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span>and of particular interest was
H.R.Khanna's<span style="mso-spacerun: yes;"> </span>judgment, who said, </span><span style="color: black; font-family: Verdana; font-size: 13.0pt;">“</span><span style="color: black; font-family: Calibri; font-size: 11.0pt;">The safeguards of the
interest of the minorities amongst sections of the population is as important
as the protection of the interest amongst individuals or persons who are below
the age of majority or are otherwise suffering from some kind of infirmity.<span style="mso-spacerun: yes;"> </span>The Constitution and the laws made by
civilized nations, therefore, generally contain provisions for the protection
of those interests.<span style="mso-spacerun: yes;"> </span></span><span style="color: black; font-family: Calibri; font-size: 11.0pt; text-decoration: underline;">It can, indeed, be said to be an index of the level of
civilization and catholicity of a nation as to how far their minorities feel
secure and are not subject to any discrimination or suppression.”</span></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">The slide begins</span></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
The
slide occurred, according to Fali Nariman, when in TMA Pai (2002), the SC
adopted an interpretation less favourable to minorities, while relaxing the
rigours against<span style="mso-spacerun: yes;"> </span>State control over
State- aided Minority Educational Institutions (MEIs) of higher learning.
Holding that the educational institutions cannot be profiteering businesses,
their fundamental right to establish ought to be seen as residing under
Article 19(g) as occupation and and the State had power to impose reasonable
restrictions under 19(6). <span style="font-style: italic;">PA Inamdar</span>
(2007) reiterated the law to allow for State regulation of what shall be fee
for state aided minority institutions. <span style="font-style: italic;">Pramati</span>
(2014) tightened the norms against the State, even while upholding Art 21A
making right to education as a fundamental right but finding that State’s
attempt<span style="mso-spacerun: yes;"> </span>to fix quota against minority
institutions upto 25% admission of socially disadvantaged sections could not
be constitutionally supported. A shot in the arm and restoration of pre-TMA
Pai era were but short lived. <span style="font-style: italic;">In Modern Dental
College, </span>a Constitution Bench resolved the different views of various
High courts to hold that the State could provide for uniform single entrance
test for prescribing minimum standards for admission into professional courses
. This trend, though the judgment <span style="font-style: italic;">in Modern
Dental </span>itself was after his comment, according to Fali Nariman,
signalled an unmitigated disaster for minorities in the sense, "The
Fundamental Right of MEIs have got devalued, because approximating the
provisions in Article 30 to the provisions contained in Article 19(1)(g) mean,
that as a matter of perception, the ‘reasonable restrictions’ imposed by
ordinary law on this Fundamental Right – permissible under Article 19(6) – has
also got subsumed in what was an otherwise unrestricted Fundamental Right guaranteed
under Article 30".</div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Status of converts of SCs from Hinduism to other
religions</span></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span lang="en-IN">All the while, the efforts of Converted Christians to get SC status
has not succeeded. The battle has waged on since 1950 itself. Sikhs and
Neo-budhist had their way but the Christians did not. </span><span lang="en-US">In
2004, Centre for Public Interest Litigation through its General Secretary and
T. Franklin Caesar of Tamil Nadu filed a Writ Petition dated March 22, 2004
under Article 32 of the Constitution of India challenging the Para 3 of
Article 341 of Constitution (Scheduled Caste Order) 1950. More than dozen of
individual and advocates have filed the writ petition challenging the same
Para of same Article. The case is still pending. </span><span lang="en-IN">The
Mishra Commission appointed to consider the identification of socially and
economically backward sections among religious and linguistic minorities and
suggest recommendations for constitutional amendments and for considering
issues in WP 180/20014 and 94/2005 gave a report suggesting: </span></div>
<ul style="direction: ltr; margin-bottom: 0in; margin-left: .375in; margin-top: 0in; unicode-bidi: embed;" type="disc">
<li style="color: #222222; margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="background: white; color: #222222; font-family: Calibri; font-size: 10.5pt;">10% quotas for Muslims and 5% for other minorities in government
jobs and seats in educational institutions</span><a href="http://www.telegraphindia.com/1110827/jsp/nation/story_14431414.jsp"><span style="background: white; font-family: Calibri; font-size: 10.5pt;">]</span></a></li>
<li style="color: #222222; margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="background: white; font-family: Calibri; font-size: 10.5pt;">Reservation
up to 8.4% out of existing OBC quota of 27% for minorities</span></li>
<li style="color: #222222; margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="background: white; font-family: Calibri; font-size: 10.5pt;">SC
reservation to Dalit converts.</span></li>
</ul>
<div style="color: #222222; font-family: Calibri; font-size: 10.5pt; margin: 0in;">
<span style="background: white;">None of the recommendations has been given effect.</span></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Unanswered questions</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="color: black;">Minority protection in the context of establishing
institutions to preserve language and culture leaves out of preview several
major issues that affect large sections of minorities in a big way. Or, is
everything all right with them and we are guilty of creating a bogey of a
perverted public perception for narrow political gains as though there is
growing insecurity among the minorities? Are the following questions relevant
for examining the real status of minorities in c</span><span style="color: #3e3e3e;">ontemporary India?</span></div>
<ul style="direction: ltr; margin-bottom: 0in; margin-left: 0in; margin-top: 0in; unicode-bidi: embed;" type="square">
<li style="margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;">Will it be
appropriate to examine the conditions of minorities only through the
minimum aperture set through the dwindling efficacy of Art 29 & 30
without examining the social realities of the perceived insecurities of
minorities?</span></li>
<li style="margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;">Is minority
protection available only through so called appeasement policies of
political parties and considering them as vote banks?</span></li>
<li style="margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;">Did the
Constitution not provide adequate safeguards in restricting the SC status
to Hindus and relegating Dalit converts to OBC status?</span></li>
<li style="margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;">Cow
vigilantism, love jihads - are they disturbing trends or exaggerated
accounts by the media?</span></li>
<li style="margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="color: #3e3e3e; font-family: Calibri; font-size: 11.0pt;">Sachar
Committee report notes that </span><span style="color: black; font-family: Calibri; font-size: 11.0pt;">Muslims have the largest percentage share
of children in the age group of less than 10 years with 27 percent
falling in this range as compared to the 23 per cent for the country as a
whole. However, the current enrolment and continuation rates at elementary
level (though picking up in recent years) are the lowest for the Muslims.
</span></li>
</ul>
<div style="font-family: Calibri; font-size: 11.0pt; margin-left: .375in; margin: 0in;">
Is
the change in demographic pattern of higher rate of population growth among
Muslims an index of increased happiness and/ or a calculated design to extract
new privileges or mere symptoms of illiteracy and fear of applying family
planning devices?</div>
<ul style="direction: ltr; margin-bottom: 0in; margin-left: 0in; margin-top: 0in; unicode-bidi: embed;" type="square">
<li style="margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="color: black; font-family: Calibri; font-size: 11.0pt;">Majority
People's attitude vis a vis minorities in choosing neighbourhoods
and<span style="mso-spacerun: yes;"> </span>in the manner of choice of
tenants to be confined to their ‘own community’ or reluctance to invite
them in social gatherings - Are they imaginary?(</span><span style="color: black; font-family: Calibri; font-size: 11.0pt; font-style: italic;">Mothering
a Muslim child-Nazia Erum)</span></li>
<li style="margin-bottom: 0; margin-top: 0; vertical-align: middle;"><span style="color: black; font-family: Calibri; font-size: 11.0pt;">Law
criminalising Triple Talaq after </span><span style="color: black; font-family: Calibri; font-size: 11.0pt; font-style: italic;">Shayara Bano v Union of
India </span><span style="color: black; font-family: Calibri; font-size: 11.0pt;">(2017) 9 SCC 1 - Should it be seen only as personal law
reform?</span></li>
</ul>
<div style="color: black; font-family: Calibri; font-size: 11.0pt; margin: 0in;">
We will
search for answers in the posts in future.</div>
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K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-26006192782686743882018-05-30T20:20:00.000-07:002018-05-30T20:20:08.999-07:00Where the law needs to change track: on the Railways Act<div dir="ltr" style="text-align: left;" trbidi="on">
http://www.thehindu.com/opinion/lead/where-the-law-needs-to-change-track/article23805541.ece<br />
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Where the law needs to change track: on the Railways Act</h1>
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UPDATED: <span style="-webkit-font-smoothing: antialiased; box-sizing: border-box; outline: 0px !important;"><none style="-webkit-font-smoothing: antialiased; box-sizing: border-box; outline: 0px !important;">MAY 07, 2018 23:37 IST</none></span></div>
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The recent deaths of schoolchildren at an unmanned rail crossing highlight why the Railways Act must be amended</h2>
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In late April, a <a href="http://www.thehindu.com/news/national/other-states/school-children-killed-as-train-hits-school-van-in-uttar-pradesh/article23678714.ece" style="-webkit-font-smoothing: antialiased; background-color: transparent; box-sizing: border-box; color: #3b5999; cursor: pointer; outline: 0px; text-decoration-line: none; transition: color 450ms ease-in-out 0s, background-color 450ms ease-in-out 0s;" target="_blank" title="bus with schoolchildren collided with a train">bus with schoolchildren collided with a train</a> at an unmanned railway level crossing, near Kushinagar in Uttar Pradesh. Thirteen of them died. This is not the first time that an incident of this nature has occurred, so some questions need to be asked. Is there any mandate for manning all level crossings? In an incident such as this, where the bus driver was reportedly negligent, is the railway administration liable even if the train engine driver cannot be faulted?</div>
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Legal issues</div>
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We can look for some answers in a 1997 Supreme Court judgment (<em style="-webkit-font-smoothing: antialiased; box-sizing: border-box; outline: 0px !important;">Union of India v. United India Insurance</em>). In May 1979, at Akaparampa in Kerala, 40 passengers and the driver of a passenger bus that had been hired were killed when the vehicle was hit by a train at an unmanned level crossing. Cases were filed before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation against the owner and insurance company of the bus as well as the Indian Railways. The Tribunal awarded compensation against the owner. The liability of the insurance company was restricted to a measly ₹500 per victim on the basis of restriction of liability contained in the terms of the policy. In appeals taken to the High Court, the Railways too was made liable for negligence in not making provisions for a gate and personnel to mind the gate. Aggrieved, the Railways went to the Supreme Court. The legal issues addressed by the Supreme Court are instructive for what the Railways was required to do.</div>
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A claim for damages for negligence of the defendant falls in the arena of a civil wrong called a tort action. In relation to claims for railway accidents, the Railways Act provides for fixed compensation on predetermined scales. It also provides a forum for passengers to make claims in the form of Railway Claims Tribunals situated in different parts of India. But there is a limitation. Only a passenger on a train can make a claim before the <a href="http://www.thehindu.com/tag/649-600/tribunal/?utm=bodytag" style="-webkit-font-smoothing: antialiased; background-color: transparent; box-sizing: border-box; color: #3b5999; cursor: pointer; outline: 0px; text-decoration-line: none; transition: color 450ms ease-in-out 0s, background-color 450ms ease-in-out 0s;"><span style="-webkit-font-smoothing: antialiased; box-sizing: border-box; font-family: TundraWeb-Bold; outline: 0px !important;">Tribunal. </span></a>Passengers of a bus or motor vehicle who may have been harmed after a collision with a train can only approach the Motor Accidents Claims Tribunal. However, this tribunal can entertain the claim against the Railways also as a joint tortfeasor if the negligence of the Railways is established.</div>
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<span style="box-sizing: border-box; color: white; font-family: , sans-serif; font-size: 10px; letter-spacing: 0.9px; line-height: 18px; margin: 0px; outline: 0px; padding: 0px; text-transform: uppercase;">ALSO READ</span><span style="background-color: whitesmoke;"> </span></div>
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In the course of the judgment, the Supreme Court borrowed the neighbourhood principle articulated in <em style="-webkit-font-smoothing: antialiased; box-sizing: border-box; outline: 0px !important;">Donoghue v. Stevenson</em> (1932). It said that the duty of care for the Railways extends not only to those who use the Railways’ services but also to people who are “neighbours” — namely, users of vehicles on roads that intersect with tracks. Consequently, there is a common law liability for the railway administration for an accident at an unmanned crossing, even in the absence of specific provisions in the Railways Act, where the Central government can direct the administration to lay manned crossings. An action at common law can be filed for nonfeasance because the Railways was involved in what are recognised as dangerous operations and hence is bound to take care of road users.</div>
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It took up the issue of whether there could be any breach or a common law duty on the part of the Railways if it does not take notice of the increase in the volume of rail and motor traffic at the unmanned crossing, and if it does not take adequate steps such as putting up gates with a watchman to prevent accidents at such a point. It said that there existed a precedent from England that was examined by the House of Lords — that the Railways should take all precautions that will reduce danger to the minimum. It approved the estimate made in <em style="-webkit-font-smoothing: antialiased; box-sizing: border-box; outline: 0px !important;">Lloyds Bank Ltd. v. Railway Executive </em>(1952) that if 75 to 100 vehicles crossed the level crossing per day, the Railways owed a duty of care at common law to provide for a gate with a watchman. If such a duty can be seen from factual circumstance, the corollary shall be that non-exercise of the power of the government to direct the Railways to lay gates shall be construed as irrational. Alternatively, if the plaintiff had no idea of particularly relying upon the exercise of power by the authority in his favour but is a matter of general reliance, society could by previous experience expect the exercise of such a power and if such an expectation stood belied, then too a conclusion could be drawn that the non-exercise of power by the authority was irrational. The running of trains by the Railways, as pointed out in <em style="-webkit-font-smoothing: antialiased; box-sizing: border-box; outline: 0px !important;">Commissioner for Railways v. Mc Dermott</em> (1966), has been recognised as inherently perilous and creates a general expectation that safety measures have been taken by the railway administration.</div>
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Need for continuous audit</div>
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The decision by the Railways to equip all level crossings in India with gates by 2020 does not mean that unmanned gates will be relegated to history. After all, these gates have not come about because the Railways laid tracks across roads and kept these places unguarded. On the other hand, because of the operations of the Railways, where tracks are laid across large tracts of land, there is greater human movement in these areas; in turn, roads are laid across tracks on both sides. The <a href="http://www.thehindu.com/tag/920-918-684/railway/?utm=bodytag" style="-webkit-font-smoothing: antialiased; background-color: transparent; box-sizing: border-box; color: #3b5999; cursor: pointer; outline: 0px; text-decoration-line: none; transition: color 450ms ease-in-out 0s, background-color 450ms ease-in-out 0s;"><span style="-webkit-font-smoothing: antialiased; box-sizing: border-box; font-family: TundraWeb-Bold; outline: 0px !important;">railway </span></a>administration should have continuous audit of tracks; when new roads come on either side, traffic must be calibrated, adequate infrastructure built, and safety measures put in place. The Railways Act 1989 (through Section 124) provides compensation on strict liability basis. This means that “when an accident occurs in the course of working a railway” (a collision between trains, or when one is a train carrying passengers, or derailment, or any other accident with a train or any part of a train carrying passengers), then whether or not there has been any wrongful act, neglect or default on the part of the railway administration, an injured passenger or one who has suffered a loss can lawfully maintain an action and recover damages.</div>
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Have an amended law</div>
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On instructions from the principal Bench in Delhi, in every one of the major accidents in India between 2016 and 2017, the families of victims were contacted by the Tribunals where the families resided, and applications for compensation filed. There was quick adjudication for payments. In the incident of a stampede on a foot overbridge at Elphinstone Road station, in Mumbai in 2017, the Bombay Bench of the Railway Claims Tribunal awarded compensation amounts without any contest from the Railways. Hitherto, responses to claims for compensation arising out of accidents have been on an ad hoc basis but it is time the government amends the Railways Act to provide for compensation on a proactive basis without driving victims or their families to file applications in Tribunals. The ex gratia payments will then be substituted by rights-based compensation regimes that will sensitise the Railways to administer their operations with greater focus on public safety. It is also essential to include within Section 124 of the Railways Act a provision for a claim from a “neighbour to a passenger” in the manner that the <a href="http://www.thehindu.com/tag/Supreme_Court/supreme-court/?utm=bodytag" style="-webkit-font-smoothing: antialiased; background-color: transparent; box-sizing: border-box; color: #3b5999; cursor: pointer; outline: 0px; text-decoration-line: none; transition: color 450ms ease-in-out 0s, background-color 450ms ease-in-out 0s;"><span style="-webkit-font-smoothing: antialiased; box-sizing: border-box; font-family: TundraWeb-Bold; outline: 0px !important;">Supreme Court </span></a>recognises, namely, a road user of a motor vehicle.</div>
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K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-43528637068580395912018-04-16T20:17:00.002-07:002018-04-16T20:17:45.330-07:00Innocent before guilty<div dir="ltr" style="text-align: left;" trbidi="on">
<span style="background-color: white; color: #006621; font-family: arial, sans-serif; font-size: 14px; white-space: nowrap;">https://blogs.economictimes.indiatimes.com </span></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-25593601726901794562018-04-16T20:15:00.000-07:002018-04-16T20:15:09.843-07:00SC/ST Atrocities judgment, a different perspective<div dir="ltr" style="text-align: left;" trbidi="on">
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It is not unusual
that the decisions of the Supreme Court are counter-majoritarian in that they
hold views against what are popular or what could pander to mass sentiments.
The recent conflagration is a symptom of how we are slowly allowing populism to
judge the quality of judgments and give no heed to the legal underpinnings
justifying the conclusions in the judgment. The recent one in <span style="font-style: italic;">Dr. Subhash Kashinath Mahajan v The State of
Maharashtra </span>in Crl App No 416 of 2018 dt 20th March 2018 that has sent
the country in to a frenzy, even if not popular, is driven through sound legal
principles and not very easy to dislodge. It has examined the protection sought
by a person claiming to be innocent but against whom proceedings were initiated
under the SC/ST (Prevention of Atrocities) Act. The focus was therefore
required to examine within the framework of law the manner of how the
Atrocities Act could be enforced punishing the persons guilty with the vigour
that the Act expounds without at the same time inflicting hardships to innocent
persons against whom the complaints are prima facie mala fide and prevent the
Act from being "converted into a charter for exploitation or oppression by
any unscrupulous person or by police for extraneous reasons".</div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Reiterating established legal precedents</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
The judgment
reiterates sound principles of law already laid down: (i) The earlier decision
of the Supreme Court <span style="font-style: italic;">in State of MP v Balothia</span>
(1995) upholding provisions of SC/St Act, making inapplicable s 438 CrPC that
would enable the accused the benefit of anticipatory bill; (ii) Consequently,
it said that "the exclusion of s 438 CrPC applies when a prima facie case
of the commission of offence under the Atrocities Act is made" (para
60);<span style="mso-spacerun: yes;"> </span>(iii)The law should be so enforced
that it "should not result in caste hatred." The judgement quotes
Dr.B.R.Ambedkar in his famous speech on 25th November 1949, on conclusion of
deliberations of the Constitution Assembly underscoring that "castes are
anti national and they generate jealousy and antipathy between caste and
caste." The judgment therefore exhorts that "the interpretation of
the Atrocities Act should promote constitutional values of fraternity and
integration of the society.<span style="mso-spacerun: yes;"> </span>They may
require check on false implications of innocent citizens on caste lines."
(para 47) In doing so, the Court emphatically stated that "we are not
diluting the efficacy of section 18 in deserving cases where Court finds a case
to be prima facie genuine warranting custodial interrogation and pre-trial
arrest and detention". (para 68)</div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Protecting the innocent as a necessary corollary to
provision denying anticipatory bail</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
After setting out
that the perpetrators of atrocities should not be granted anticipatory bail so
that they many not terrorise the victims, the Court proceeded to state,
"Consistent with this view, it can certainly be said that innocent persons
against whom there was no prima facie case or patently false case cannot be
subjected to the same treatment as the persons who are prima facie perpetrators
of the crime. The facts that gave place to this law itself provides an
outstanding illustration of how an innocent person could be browbeaten and
blackmailed against doing public duty. A storekeeper in a Government College of
Pharmacy was appraised in the Annual Confidential Report to the effect that
"his integrity and character was not good." This was the basis for a
complaint for offence under SC/St Act against his superior officers in 2006.
The Investigating Officer sought for sanction before the Director of Technical
Education (Appointing Authority), in 2010 and the latter refused sanction in
2011. The act of refusal was stated in a complaint in 2016 as an act of
atrocity under the Act. The Director approached the High Court under s 482 CrPC
to quash the complaint and when it was dismissed, he approached the Supreme
Court. The case was an outstanding illustration of a mala fide registration of
a complaint because, by no stretch of imagination, a sanctioning authority, who
is but a gatekeeper, by denying sanction could be stated to have committed an
offence under the Atrocities Act. The complaint and the original complainant
and its registration by police were patently illegal and a flagrant violation
of the Act. Even if the refusal of sanction was wrong or the exercise of such
authority was by a<span style="mso-spacerun: yes;"> </span>person who was not
competent to pass such an order, as contended by the complainant, the remedy
was to challenge the order before an appropriate forum and not make it as a
ground for a fresh complaint under the Act. </div>
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<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Registration of complaint and arrest, when justified</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
The Court therefore
examined the case law on the subject and stated with reference to earlier
decisions that (i) a judicious scrutiny is to be undertaken even before
registration of a complaint if the ingredients of an offence exist even on the
express averments in the complaint; (ii) Even if a complaint is registered, it
is not necessary to order arrest; (iii) If such arrest is undertaken and the
accused is a public servant, permission of the appointing authority shall be
taken and if he is not a public servant, the permission shall be taken from the
SSP, being a check not against registration of a complaint but against arrest
without adequate reasons. The Court was "reiterating a well established
principle of law that protection of innocent against the abuse of law was part
of inherent jurisdiction of the Court being part of access to justice and
protection of liberty against any oppressive action such as mala fide
arrest." It said that constitutional guarantees of fundamental rights to
all its citizens and <span style="font-style: italic;">a fortiori</span>, an
innocent person must be protected against blackmail and wreaking of vengeance. </div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">Salient features of Atrocities law untouched by
judgment</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
It is essential to
know that the most potent provisions of the SC/ST Act are the exhaustive
enumeration of various acts that constitute atrocities under section 3 and the
stringent punishment to the perpetrator of the offence.<span style="mso-spacerun: yes;"> </span>The Supreme Court has not touched upon the
provisions. Equally important are the provisions for causing removal of certain
persons likely to<span style="mso-spacerun: yes;"> </span>commit any offence and
presumption of abetment of the offence if financial trail from<span style="mso-spacerun: yes;"> </span>the accused is sourced to any person or of
commission of offence when there exists any present dispute with any person who
is a part of the group, which remain untouched. Inapplicability of anticipatory
bail provisions is but one of key provisions but it is trite law that even the
absence of the provision for anticipatory bail does not take away the power to
grant interim bail in suitable cases. The SC has enumerated several earlier
decisions of the Supreme Court that recognise this power and particularly in
the context of non-availability of anticipatory bail provision in the State of
UP.</div>
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<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span style="font-weight: bold;">What went wrong?</span></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<span lang="en-IN">The
Supreme Court as the </span><span lang="en-GB">sentinel</span><span lang="en-IN">
of fundamental rights of all its citizens has placed procedural safeguards for
innocent persons only and has not disempowered anyway a valuable right to any
member of SC/ST to use the rigours of the act against the perpetrator of any
atrocity in the matter of registration of complaints and secure conviction.
However, the travails of the Dalit brethren to caste based discrimination and
atrocities have not stopped. There are countless rapes on dalit women. There
are several social practices that assign to the dalits a lowly living. While
the empowerment is pronounced in urban areas thanks to reservations in public
employment, the lot of dalits in villages have not improved significantly.
There are reports of lynching and indignities heaped on dalits every day even
for mere suspicions of involvement in minor offences. In such an environment,
the timing of the judgment was just not all right. Our courts take a long time
to bring culprits<span style="mso-spacerun: yes;"> </span>to book against whom
complaints are made. Acquittal rates are high not because the complaints are
false but because the prosecuting agency is corrupt and inept. Pre-trial arrest
is the only satisfaction to the dalit victim that some instant justice is done.
The decision of the Supreme Court, even if it could be supported in Courts as
legally well founded, will find no takers outside court. </span></div>
</div>
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<br /></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-80037805319602096782018-04-14T21:57:00.000-07:002019-09-19T23:25:36.594-07:00Stampede deaths at the Railway Premises<div dir="ltr" style="text-align: left;" trbidi="on">
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The injured victims
and representatives of the deceased in Mumbai's Wellington bridge stampede in
September 2017 got compensation, subject to a maximum of 8 lacs, as per the
scales provided under the Railway Claims Tribunal Act. The Railway
Administration got a shot on its arm by praises from the press and the public
in its stand not to contest the claims before the Tribunal. The Tribunal at
Mumbai did a quick work at it awarding compensation of 8 lacs to next of kin of
dead victims and lesser sums to persons injured, all in a day’s sitting. The
status of victims as passengers was assumed, particularly in view of the fact
that the bridge was exclusive for train commuters connecting the Parle Central
Railway platform and West Wellington Railway platform to the flower market
nearby. In all this, it was made to appear that the Railways did a charitable
act of leaving the decision- making to the Claims Tribunal without at the same
time admitting liability.<span style="mso-spacerun: yes;"> </span>The assumption
is wrong, for, what the Railways did was a recognition of what is understood as
<span style="font-style: italic;">strict liability </span>and it could have done
nothing less.</div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
The Railways Act
makes its administration liable for any accident or untoward incident whether
or not there is fault or negligence on the part of the Railways for death or
injury suffered by a passenger. The term ‘passenger’ in the Railways Act means
a person who enters or exits the railway premises either with a platform ticket
or a ticket or pass that gives lawful authority to travel. A railway staff is
also included in this term. The ‘accident’ so called arises when a train
collides with another or derails causing injury or death. An ‘untoward
incident’ that makes the railways liable for injury and death when a there is a
violent attack or terrorist act, robbery, rioting, shoot out, arson or a fall
from the train. The exceptions are when the death or injury is suicide or an
attempt, result of self infliction, his own criminal act, insanity or
inebriation or<span style="mso-spacerun: yes;"> </span>due to ill health not
arising out of injury caused in an untoward incident.</div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
The term, untoward
incident, has been interpreted purposively by Courts to aid injured victims or
representatives of the deceased claimants who fall from the train while
boarding and de-boarding and even when the acts are rash or negligent. In <span style="font-style: italic;">Anil Kumar Gupta v Union of India (2016), </span>persons
who<span style="mso-spacerun: yes;"> </span>had arrived in New Delhi for
attending to open recruitment drive by ITBP and returning home arrived at the
railways station and climbed on roof tops of railway coaches but met with
serious injuries and death when they were hit by bottom of over bridge below
which train was speeding through. The Supreme Court<span style="mso-spacerun: yes;"> </span>did not make much of the the fact that the
passengers were getting on roof tops in spite of the Station Master and the
guard warning them against such a dangerous mode of travel and the loco<span style="mso-spacerun: yes;"> </span>pilot showing his initial remonstrations by
not chugging off and refusing to roll out. The train started on the insistence
of the motley crowd atop the train but the SC found the railways ought to have
been aware of inherent danger in allowing train to run with such speed having
large number of persons travelling on roof top and awarded compensation to<span style="mso-spacerun: yes;"> </span>the victims. Terrorist attacks that were
carried out on 26th November 2008 at Mumbai were also at Churchgate railway
station and the silver lining in the otherwise macabre incident was quick
adjudication by the Claims Tribunal that yielded to award of compensation of
amount as prescribed by law which was at that time Rs 4 lacs at the maximum,
apart from ex gratia sums released both by the Central and the State
governments? </div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
Stampedes ought to
be seen as falling within the genre of untoward incidents and have indeed been
held to leave a trail of liability under tort law by several High Courts.
In<span style="mso-spacerun: yes;"> </span><span style="font-style: italic;">Rakhee
Sharma v State of MP (2014) and Sunil Kumar Singh v State of Bihar (2013)</span>
the High Courts were making the State liable for compensation to instances of
stampede and the resultant deaths and injuries occurring in temple festivals.
Even the fire and stampede deaths in<span style="font-style: italic;"> Upahar
film tragedy</span>, all the courts made the licensing authority also liable
for compensation, proportional to the extent of culpability as determined by
them, apart from making the theatre owner liable. <span style="font-style: italic;">In
Dhabwali fire and stampede tragedy</span>, the local authority was made liable
for compensation for its failure to protect the victims even while directing
the school authorities who had organised the meeting to pay a larger slice of
the compensation amounts. In two instances occurring at Delhi, there have been
decisions of the Railways Claims Tribunal (Principal Bench) (<span style="font-style: italic;">Jagat Ray and another v Union of </span>India OA
11/2005 dated 22.2.2008<span style="font-style: italic;">; Rajeswar Prasad and
another v </span>Union OA13/2005 dated 22.8.2006) making the Railways liable,
rejecting the defence of Railway administration of non-liability. The decisions
have held that an inevitable force that one passenger exerts on the other in
stamped situations ought to be taken as "violence" that falls within
the definition of "untoward incident". </div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
<br /></div>
<div style="font-family: Calibri; font-size: 11.0pt; margin: 0in;">
God forbid, If there
were to be another stampede at the platform or foot over bridge at the Railway
Station , it shall not again become a subject of dispute by the Railway
administration and the victims shall be paid compensation as legal obligation
of the Railways and not as a<span style="mso-spacerun: yes;"> </span>gratuitous
response to the supplications from various quarters.<span style="mso-spacerun: yes;"> </span></div>
<br /></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-48438256804227763952017-12-18T23:56:00.000-08:002017-12-18T23:56:02.099-08:00Structural re-engineering of judicial system – a prospect<div dir="ltr" style="text-align: left;" trbidi="on">
<h1 align="center" style="text-align: center;">
<br /></h1>
<h2>
<span lang="EN-IN">A detenu’s plea for
hearing his appeal <o:p></o:p></span></h2>
<div style="margin-bottom: .0001pt; margin: 0in;">
<span lang="EN-IN">Underneath the multi-layered solutions proffered to countless ills
afflicting judicial system, suggestion for setting up a National Court of
appeal with regional benches in Chennai, Mumbai and Kolkatta did some rounds
before the idea was temporarily buried with the Attorney General telling the
then Chief Justice T.S.Thakur’s court on April 26, 2016 that “We will only be
adding to lawyers’ pockets. The Supreme Court should not consider this when its
own dockets are full.” Recently, in <i>Sadaulla @Sadab @Nanka, </i>a detenu
serving a life sentence, after a conviction of Sessions Court in the State of
Jharkand had moved the High Court and Supreme Court successively to obtain bail
without success, pending his appeal and later approached the High Court again
pointing to the fact that he had served 10 ½ years in person and requesting to
set a date for hearing in his appeal. The High Court ordered that it has
no time to hear his appeal and dismissed the application. When the matter
reached the Supreme Court yet again, it ordered notice on 27.10.2017 promising
to consider what the remedies could be to administered to ensure hearing of
criminal appeals within reasonable time. The court noted that the scene of
inability of the High Court to hear the appeal was not limited only to
Jharkhand High Court and similar was the position prevailing in several High
Courts where a large number of criminal appeals were pending. <o:p></o:p></span></div>
<h2>
<span lang="EN-IN">SC Arrears Committee
recommendations<o:p></o:p></span></h2>
<div style="margin-bottom: .0001pt; margin: 0in;">
<span lang="EN-IN">The Supreme Court order makes reference to minutes of the
'stakeholders' meeting called by the Arrears Committee on 8<sup>th</sup> April
2017 and what it reveals is interesting. It records the fact that pendency of
cases which are more than five years old in High Courts is more than 40% and
disposals of criminal appeals are less than the corresponding rate of
institution. In the High Courts, there are 16.29 lakh cases that are more than
5 years old of which 7.43 lakh cases are more than 10 years old. Underlining
the need for re-engineering the structure of administration of justice by which
the Supreme Court and the High Courts may discharge their core constitutional
functions, it suggested that statutory appeals could be dealt with by an
alternative mechanism by courts of appeal, which in the hierarchy will be
higher to the district judges but below the High Court. In other words, an
intermediary tier between the High Court and the District Court is envisaged
that will have a cadre drawn partly by selection from the Higher Judicial
Service and partly from the Bar through Centralised recruitment mechanism. <o:p></o:p></span></div>
<div style="margin-bottom: .0001pt; margin: 0in;">
<br /></div>
<h2>
<span lang="EN-IN">Intermediate appellate
court between District Court and High Court<o:p></o:p></span></h2>
<div style="margin-bottom: .0001pt; margin: 0in;">
<span lang="EN-IN">This suggestion has a distinct advantage. In the Constitutional scheme
of things, High Courts are not subordinate to Supreme Court, in matters of
judicial administration, the way the District courts are to the High Courts.
Setting targets for disposals to High Courts could not be done and increasing
numbers of High Court judges are never easy matters. With the above suggestion,
it may be possible for High Courts to set disposal norms to be achieved for
such intermediate appellate Benches and their functions could be closely
monitored. Based on performance, integrity and suitability, members of the
appellate Benches may be considered for elevation to the High Courts.
Hitherto, 1/3 of judges of the High Court are drawn from the cadre of District
judges; now, they will be from the members of the appellate Bench. Dealing with
a possible objection that creating another Appellate Forum might not
necessarily result in reducing the docket load of the High Courts, the
Committee noted that scope of interference in constitutional jurisdiction of
the High Courts under Article 226 and 227 is circumscribed and will not be the
same as deciding on facts and law. Consequently, the decisions of these
appellate Benches cannot be appealed as a matter of course against to the High
Courts.<o:p></o:p></span></div>
<h2>
<span lang="EN-IN">The aborted initiative<o:p></o:p></span></h2>
<div style="margin-bottom: .0001pt; margin: 0in;">
<span lang="EN-IN">The attempt of the Supreme Court to look into its own recommendation on
its judicial side has been unfortunately aborted when the Chief Justice
withdrew the case before himself and 2 Companion judges and 'recalled'
the order on 8.11.2017 by a placid observation that High Courts shall
expeditiously hear appeals where accused persons have already spent 10 years,
as though it was exercising a review or intra court appellate jurisdiction. If
the Supreme Court will not address the problems of persons in jails whose
appeals are not being heard for more than a decade, will the reform come from
some quarters who will deal with how to improve the quality of jails so that
persons inside have no need to complain, after all? If that happens,
Mallya will have lost one line of argument from his armoury before the
Magistrate to thwart his extradition! <o:p></o:p></span></div>
<br />
<div class="MsoNormal">
<br /></div>
</div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-51126831594920752752017-03-18T19:20:00.005-07:002017-03-18T19:21:18.764-07:00Judging as a spiritual journey Q & A 1<div dir="ltr" style="text-align: left;" trbidi="on">
https://www.youtube.com/watch?v=vxo4wq7HHyY<a href="https://www.youtube.com/watch?v=vxo4wq7HHyY&ab_channel=NALSARUniversityofLaw" target="_blank">https://www.youtube.com/watch?v=vxo4wq7HHyY&ab_channel=NALSARUniversityofLaw</a>&ab_channel=NALSARUniversityofLaw</div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-72532605953850592017-03-18T19:18:00.003-07:002017-03-18T19:18:58.690-07:00Judging as a spiritual journey Q & A 2 <div dir="ltr" style="text-align: left;" trbidi="on">
https://www.youtube.com/watch?v=AkiGBNy4RII&t=1405s&spfreload=10&ab_channel=NALSARUniversityofLaw<a href="https://www.youtube.com/watch?v=AkiGBNy4RII&t=1405s&spfreload=10&ab_channel=NALSARUniversityofLaw" target="_blank">https://www.youtube.com/watch?v=AkiGBNy4RII&t=1405s&spfreload=10&ab_channel=NALSARUniversityofLaw</a></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-68626086542230282892017-03-18T19:12:00.002-07:002017-03-18T19:15:33.533-07:00Judging as a spiritual journey<div dir="ltr" style="text-align: left;" trbidi="on">
<a href="https://www.youtube.com/watch?v=bgTSJcECqQo&t=226s&ab_channel=NALSARUniversityofLaw" target="_blank">Judging as a spiritual journey</a><br />
<a href="https://www.youtube.com/watch?v=bgTSJcECqQo&t=226s&ab_channel=NALSARUniversityofLaw" target="_blank">https://www.youtube.com/watch?v=bgTSJcECqQo&t=226s&ab_channel=NALSARUniversityofLaw</a></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-4659801325192120312016-10-20T19:58:00.001-07:002016-10-20T19:58:30.334-07:00Frames of reference..<a href="http://www.thehindu.com/opinion/lead/k-kannan-on-triple-talaq-laws-in-india-and-in-several-muslimmajority-countries-frames-of-reference/article9246389.ece#.WAmEJF1dsnI.blogger">K. Kannan on triple talaq laws in India and in several Muslim-majority countries: Frames of reference</a>: The thicket of legal dialogues on the validity of triple talaq conceals the result of churnings that have already taken place in our courts on this subject. The renewed debate has come through a questK.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-37608389794567688512016-10-13T00:55:00.006-07:002017-03-18T19:14:34.084-07:00Indian Surrogacy bill, 2016, a perspective<div dir="ltr" style="text-align: left;" trbidi="on">
http://www.dtnext.in/News/City<wbr></wbr>/2016/10/13094416/1019186/Surr<wbr></wbr>ogacy-the-proposed-law-a-persp<wbr></wbr>ective.vpf<a href="http://www.dtnext.in/News/City/2016/10/13094416/1019186/Surrogacy-the-proposed-law-a-perspective.vpf">http://www.dtnext.in/News/City/2016/10/13094416/1019186/Surrogacy-the-proposed-law-a-perspective.vpf</a></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-58110205724345298112016-10-13T00:55:00.005-07:002016-10-13T00:57:57.421-07:00Indian Surrogacy bill, 2016, a perspective<div dir="ltr" style="text-align: left;" trbidi="on">
http://www.dtnext.in/News/City<wbr></wbr>/2016/10/13094416/1019186/Surr<wbr></wbr>ogacy-the-proposed-law-a-persp<wbr></wbr>ective.vpf<a href="http://www.dtnext.in/News/City/2016/10/13094416/1019186/Surrogacy-the-proposed-law-a-perspective.vpf">http://www.dtnext.in/News/City/2016/10/13094416/1019186/Surrogacy-the-proposed-law-a-perspective.vpf</a></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-71311152230184541422016-08-27T05:09:00.001-07:002016-08-27T05:09:19.837-07:00Organ Donation - Imperatives for preparing the whole family<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="color: blue;">Organ Donation - Two unusual cases</span></h3>
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<span style="color: blue;">Organ donations come with different types of problems, We have two examples here: one, where the spouse was objecting to donation of a portion of liver by her husband to his father and two, a person wanting to donate his body immediately for research, when the hospital declined on the ground that a living person cannot donate his own body. The results in these judicial decisions have been reasonably predictable. </span></div>
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<span style="color: blue;"> The Andhra
Pradesh High Court confronted a curious situation in <i>Suma Kiran Malena v Secretary Medical and Health and others </i>(2007)<i>,</i>where the wife of the donor filed a
writ petition challenging the decision of her husband to donate a portion of
the liver to his father, who was reportedly suffering from decompensated
cirrhosis of liver, an incurable HCV-related liver function. The Court rejected
the petition as not maintainable, holding that no legal right existed for the
wife to prevent her husband’s decision! The court ruled that case had been
filed on two wrong assumptions: that her husband’s affection towards his parent
should be subservient to the marital relationship between him and the
petitioner, and that he could not donate his organs without her consent. Though
the case was lost, it signals an important aspect that has to be factored at
all times that consent for transplant is desirable of all members of the
family, by counselling and if need be, by persuasion, if the individual donor
has already signified his consent. </span></div>
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<span style="color: blue;">By no stretch of imagination can the Act that makes possible organ donation be taken as allowing someone else’s life to be taken to save one’s own. In <i>C.A. Thomas Master v. Union of India (UOI ) and Ors</i> (2000) the petitioner claimed that he had approached some of the medical institutions under the control of the state government, including the District Hospital, Thirssur, seeking help to facilitate his voluntary death and for donation of his organs, including the heart, kidneys, and eyes. His request was not taken seriously and he was told that none of the hospitals under the state government had such facilities to enable the petitioner to voluntarily cause his death, which would not be suicide. The petitioner therefore approached the high court of Kerala for the issuance of a writ of mandamus commanding the respondents to start ‘Mahaprasthana Kendra’ or voluntary death clinics in each district Hospital so as to facilitate voluntary death and donation of bodily organs as well as their transplantation. There was a further prayer for a direction to the respondents to appoint a commission to study the practice of voluntary death in ancient India and to suggest methods for its practice in the context of environmental changes and technological advancement. The petitioner also prayed for a direction to the respondents to set apart funds and set up infrastructure for assisting voluntary organizations that are willing to facilitate voluntary deaths and the donation of bodily organs. The court said that in the absence of any legislation, and in view of the decision of the Supreme Court in Gian Kaur’s case upholding the provision in the IPC making the attempt to suicide as an offence, no distinction could be made between suicide as ordinarily understood and the right to voluntarily end one’s life as distinguished by the petitioner. </span><span style="color: blue;">Now even an attempt to suicide has been de-criminalised by repealing s 309 IPC, but the effect would be the same. The doctor cannot be commanded to take away the life of a healthy person only in order to facilitate organ donation.</span></div>
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K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-65269197319080256232016-08-02T17:14:00.000-07:002016-08-02T17:14:02.771-07:00A tricky debate on abortion<div dir="ltr" style="text-align: left;" trbidi="on">
http://www.thehindu.com/opinion/lead/a-tricky-debate-on-abortion/article8934071.ece</div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-75263491716805634472016-07-12T19:12:00.003-07:002017-12-10T02:57:04.454-08:00Now is not the moment<div dir="ltr" style="text-align: left;" trbidi="on">
<a href="http://www.thehindu.com/opinion/lead/k-kannan-on-uniform-civil-code-now-is-not-the-moment/article8840401.ece#comments">http://www.thehindu.com/opinion/lead/k-kannan-on-uniform-civil-code-now-is-not-the-moment/article8840401.ece#comments</a></div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-69029047327649827242016-07-03T09:11:00.001-07:002016-07-03T09:11:38.687-07:00Hello, do you hear me?<div dir="ltr" style="text-align: left;" trbidi="on">
This is no Adele's music! A promise is being redeemed. Watch this space for resumption of posts!<br />
Certain things are changed. The contents of this blog are not going to be non-judgmental. It is time for critical appraisals and taking positions on several vital legal issues. The title of the blog page is therefore changed.<br />
Get set.</div>
K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com0tag:blogger.com,1999:blog-21629480.post-2024955896127337892009-09-11T09:48:00.001-07:002009-09-11T10:02:50.621-07:00To Blog; or not to blog!<span xmlns=""><p><span style="color:#7030a0;">The captioned question is in some way in the same league as Hamlet's existential dilemma of 'To be, or not to be; that is the question';…To suffer in the mind, 'the slings and arrows of outrageous fortune', answers the 'to be' query; or 'take arms against a sea of troubles by opposing them, to die; to sleep' would resolve the 'not to be' choice.<br /></span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">A sitting judge does not speak otherwise through his judgments. He shall not take positions in the public domain on any issue that is likely to come before him in court that may ultimately compromise on his impartiality. </span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">Do not judges make public speeches or attend seminars, express their views and enter into debates? Do they not write articles in print media on legal issues? Public speeches pale into thin air. If they are captured in human ears, they shall be but stored in forgetful memory. If they get into print, they shall be trashed by passage of time. If they are recorded in magnetic tapes or digitized, they shall likewise be consumed to oblivion in due course. In any event, they shall not cause ripples beyond the immediate vicinity of persons who happen to hear the judges speak or read and forget what they read. </span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">Posting a material in the web carries a certain aura of invincibility, a powerful permanence and an inevitable global presence. So long as this blog was read only in a few homes by the compulsive surfers who may have chanced to land on this web page, all seemed well. Suddenly things have changed for the better or the worse. </span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">There is a person who asks me whether any mother would feel comfortable about bringing a case seeking for custody, if anyone knew my alleged 'gender bias'? There is another person who wants a legal advice. There is another person who wants to post his comment that contains a personal innuendo against a celebrity. I may keep the debate open ended and not take positions; not get judgmental, but even if one person doubts my impartiality, I would have done the institution of judiciary incalculable harm. I have sworn to upholding the constitutional values and I shall not be seen to swerve an inch from my oath of office. </span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">Not on one occasion have I used first person singular in all my posts. I meant to be impersonal about the contents expressed, but I realize, some may even suspect that there is a deceit in the tenor. Sentences could be constructed in passive voice, but still I may have unwittingly employed my personal predilections. Time has come to wind up. What I had written as a last piece bidding good bye to my weekly edits in the law journal that I was editing when I was still a lawyer, seems relevant here, with some minor modifications. </span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">Gilda Radner, an Emmy Award winner and an American Comedienne, who died at 42 with ovarian cancer said, "I wanted a perfect ending. Now I've learned, the hard way, that some poems don't rhyme, and some stories don't have a clear beginning, middle, and end. Life is about not knowing, having to change, taking the moment and making the best of it, without knowing what's going to happen next." I do not know where I have arrived; where I have led you or if I have led you anywhere at all. My tryst with my blogs is over. Some readers have asked me, if there is any other judge in the whole world who blogs. There is also incidentally a reminder that somewhere, the propriety is breached. I began all this when I was an editor of a law journal, continued with it, as a shy bride would walk to the marriage pandal. Now I hang up my boots. I went through with it, with good intentions to constantly kindle your interest to stay put with what is happening in the legal world.</span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">Am I glad, it is all over?</span></p><p><span style="color:#7030a0;">Yes.<br /></span></p><p><span style="color:#7030a0;">Am I sad that it is over now?<br /></span></p><p><span style="color:#7030a0;">Yes.<br /></span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">What is good in a goodbye, if it is not a first-rate experience? As Carol Sobieski and Thomas Meehan say in Annie, a Hollywood Musical, 'How lucky I am to have something that makes saying goodbye so hard!'</span></p><p><span class="Apple-style-span" style="color: rgb(112, 48, 160); ">'A goodbye isn't painful unless you're never going to say hello again'. I will move over to other tasks and come back again someday to say, Hello! </span></p><p> </p></span>K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com28tag:blogger.com,1999:blog-21629480.post-62910967279462207192009-08-26T18:57:00.001-07:002009-08-27T07:01:13.145-07:00Abortion for the mentally retarded – the outer limit of patient autonomy<span xmlns=""><p><span style="color:#002060;">On 17.7.2009, a Division Bench of the Punjab & Haryana High Court, comprising of Justice Surya Kant and Augustine George Masih decided a case ordering the termination of the pregnancy of a rape victim, who was mentally retarded person and an orphan at that, staying in a Government Care Home. The judgment is like it has never come in any part of the world. A poignant tale of a girl discarded on road, picked up to be brought up in government run homes. Her mental retardation and inability to protect herself adequately, heightened her vulnerability to be repeatedly raped allegedly by male guards employed at the Home, aided as they were, by an Ayah for money to be ravished in the bathrooms.<br /></span></p><p><span style="color:#002060;">The law distinguishes between mentally ill people from a mentally retarded person. The guardian procedures are consequently different: in the former, it would be the Mental Health Act and in the latter, it is the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. The National Trust Act establishes a Central Committee at Delhi and Local Committees in every district. The Committees shall have the power to appoint guardians for a mentally retarded person.<br /></span></p><p><span style="color:#002060;">The Medical Termination of Pregnancy Act empowers a medical practitioner to terminate pregnancy of a woman whose length of pregnancy is not more than 12 weeks. If the pregnancy is more than 12 weeks and less than 20 weeks, the decision shall be at least by two medical practitioners. In both situations, the MTP could be undertaken, only (i) if the continuance of pregnancy would involve to the life of the pregnant woman or of grave injury to her physical or mental health. Where the pregnancy occurs by rape or a failure of any device or method used by a married woman or her husband for the purpose of limiting the number of children, it may be presumed that there is a grave injury to the mental health, or (ii) there is substantial risk that the child, if allowed to be born, may suffer from physical or mental abnormalities as to be seriously handicapped. No MTP carried out without the consent of the woman and if she is less than 18 years of age or a mentally ill person, without the consent of the guardian. In this case, since the woman was a mentally retarded person (and not mentally ill) and there was no local committee constituted under the National Trust Act, the Chandigarh Administration that was running the Institution where the woman was residing applied to the Court for the termination of pregnancy.<br /></span></p><p><span style="color:#002060;">The Court assumed jurisdiction as a <em>patria perens </em>for deciding the question of desirability of MTP. It passed an interim order on 9.6.2009, containing inter alia, direction for constitution of an expert body of doctors for examining the pregnant woman (the Court used only the term 'victim' for the pregnant woman) and report on 13 points that included, the issue of consent of the mentally retarded person, any risk or complications relating to pregnancy and child birth and the most prudent course to be followed in the best interest of the victim. The report was a heart-wrenching record of what the mental condition of the victim, her desire to retain the fetus and deliver the child, the changes occurring to her over a period of time of constant crying, denial of entertainment such as TV viewing, which she was previously accustomed to and her inability to comprehend issues of parenting. Read what the doctor/ psychologist had to say about her:<br /></span></p><p><span style="color:#002060;"><em>She could identify the place but could not convey what is meant by a hostel, hotel or a hospital. She could name doctor but had no conceptual understanding of the roles and functions of a doctor. She acknowledged that she had a child inside her but had no idea of how conception takes place, the development of pregnancy or even the duration of pregnancy, age of child inside her, how will it come into the real world, chances of any harm to or abnormality to her unborn child, what is expected of her in child rearing, how to provide succor and sustenance to child. To the extent that in her unborn child she saw the possibility of having a brother to her. She even had no clear idea of female and male, sexual act and its attendant emotions, concept of marriage, her role as a wife except that she would cook for the "bhaiya") (refers to matrimonial partner as a bhaiya or possible to every man as a bhaiya). She had poor idea of her sexual role and expectations in marriage. Her simple mental operations are reflected by her anguish at a preferred suit (salwar and kameez) being torn during what she narrates attempt to undress her rather than an unwilling sexual encounter and its consequences thereof.<br /></em></span></p><p><span class="Apple-style-span" style="color: rgb(0, 32, 96); ">The judgment records the victim's point of view, as proffered by the counsel appointed to assist court in the following words: The learned <em>amicus </em>took us through a fine literary odyssey to impress upon us that in her lost world, the victim has now got a ray of hope of having someone as her own and it would be exhibiting gruesome cruelty to deprive her of what she now cherishes to come out of her and make her life meaningful. Besides asserting the right of self-determination for persons with intellectual disabilities, the learned <em>amicus-curiae </em>also relied upon two Division Bench decisions of Madras and Kerala High Courts in the cases of [i] <em>V. Krishanan vs.G. Rajan @ Madipu Rajan and others</em>, (a case where a minor girl alleged to be 16 had been married without the consent of her parents and when the parents of the girl wanted to terminate the pregnancy, the girl and her 'husband' wanted the continuation of the pregnancy and the Court denied permission to abort and upheld the desire of the girl to carry her pregnancy to full term and deliver the child) and (ii) <em>Mrs. Usha Abraham v. Abraham Jacob</em> (a case where a husband sought for divorce on the ground that the wife was mentally ill, but the court refused reasoning that the woman was only slightly mentally retarded and hence she could perform her marital ob ligations). </span></p><p><span style="color:#002060;">The Division Bench posed to themselves the question 'Should we not permit the petitioner - Administration to medically terminate the victim's pregnancy solely on the ground that the victim wants to keep the child as she likes children or should we adopt a holistic approach after taking into consideration several other factors which have a direct bearing on the future of the victim as well as of the foetus in her womb ?' The court examined the physical conditions of the mother ( she had abnormalities of gait and spinal deformity), the mental capacity of the mother ( she had a mental growth of 7 - 8 year old child, with little communication skills of social behaviour) , the report of the social worker who opined that the victim believed a child to a toy that one can play with, the social conditions and surrounding environment, where the girl had been abandoned by her own parents and brought up in shelter homes her 100% financial dependence with no employable skills than carrying out simple orders like clearing a table, dusting under supervision, pealing vegetables and above all, nil family support. <br /></span></p><p><span style="color:#002060;">The Bench concluded, 'we find that except her physical ability, the victim is neither intellectually nor on social, personal, financial or family fronts, is able to bear and raise a child. We are satisfied with the reports of the Experts that the victim is incapable of understanding the concept of motherhood or of pregnancy or pre and post delivery implications. The victim, notwithstanding her innocent emotional expressions, is not mentally in a position to bear and raise the child. Asking her to continue with the pregnancy and thereafter raise the child would be a travesty of justice and a permanent addition to her miseries. The "toy" with which she wants to play, would want her to invest hugely which she is incapable of… <br /></span></p><p><span style="color:#002060;">We also cannot over-look the fact that if allowed to be born, the child's own life, grooming and future prospects may itself be highly disappointing. There would be no choice but to keep the child in Ashreya (the government home) where the victim is living, in the company of other mentally ill inmates. There shall, thus, be a consistent risk to the innocent life. His mother's own mental age being 7-8 years, the learning process of the child would be highly inadequate. The grooming and education of the child would again be at the mercy of the Government run/aided institutions whose dismal performance or the severely negligent behavioural attitude towards the inmates has already prompted us to issue various reformatory directions and to monitor their implementation in future. If born, the child would not only be deprived of the care and protection of a father, but, on account of the mental handicap of the victim, the mother also…"<br /></span></p><p><span style="color:#002060;">Was there a doubt that with such persuasive reasoning, the conclusion could not have been to retain the fetus, but a direction to medically terminate the pregnancy? Like we said at the beginning, there has been no reported case of such complex situation, a woman made pregnant by rape, by an act, she did not understand as a sexual compulsion except that in the process, her best clothes were torn, a woman that is mentally retarded with a mental maturity of a 7 year old girl, a woman that does not have her own family, having been discarded on road and picked up to be brought in a government run welfare home that paradoxically subverted her welfare. Now, the interesting twist is that the Supreme Court reversed this decision and the victim continues to have the child growing in her womb. It is a significant victory for pro-life campaigners. The case for pro-life has powerful arguments, which we will discuss, after the Supreme Court gives its reasoned decision. Even by a reversal of the decision of this case by the Supreme Court, the strength of the logic expounded in the judgment of P & H High Court is not a wee-bit dimmed. It shows a beautiful course of judicial opinions: there is always the other side of the coin and a better wisdom of a higher court!<br /></span></p><p><span style="color:#002060;">Now the woman will hopefully (& prayerfully from our part) deliver the child and get her own 'toy' that she bears in rueful pain and expectant ecstasy.<br /></span></p><p><span style=" ;font-family:Arial;font-size:14pt;color:#002060;"><br /> </span> </p></span>K.Kannanhttp://www.blogger.com/profile/10874445048029632110noreply@blogger.com9