Justice Kannan, being non-judgmental

To die with dignity

2010-05-27T06:47:00.000-07:00

Follow this link for the article, "To die with dignity"
http://www.ebc-india.com/practicallawyer/index.php?option=com_contact&task=view&id=16238&id=54

Legal Literacy Articles

2010-03-14T19:18:00.000-07:00

Follow this link for legal articles, sans legalese, that could be relevant to the aam admi: http://hslsa.nic.in/Articles.htm. It is the official site of Haryana Legal Services Authority.

Human Rights and Medical Personnel

2009-10-24T09:57:00.000-07:00

Follow http://www.hcmadras.tn.nic.in/jacademy/articles.html link for my article in the web page of Tamil Nadu Judicial Academy

To Blog; or not to blog!

2009-09-11T09:48:00.001-07:00

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.

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.

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.

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.

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.

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.

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.

Am I glad, it is all over?

Yes.

Am I sad that it is over now?

Yes.

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!'

'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!

Abortion for the mentally retarded – the outer limit of patient autonomy

2009-08-26T18:57:00.001-07:00

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.

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.

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.

The Court assumed jurisdiction as a patria perens 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:

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.

The judgment records the victim's point of view, as proffered by the counsel appointed to assist court in the following words: The learned amicus 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 amicus-curiae also relied upon two Division Bench decisions of Madras and Kerala High Courts in the cases of [i] V. Krishanan vs.G. Rajan @ Madipu Rajan and others, (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) Mrs. Usha Abraham v. Abraham Jacob (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).

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.

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…

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…"

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!

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.

Litigations after death

2009-08-09T00:31:00.000-07:00

Bury the body or cremate it, whatever way you may want, it may be yet a matter of personal preference, but normally, the religion that the person was born to, dictates the choice. The integrity of the body is always desired, as it goes up in flames or allowed to putrefy. Any internal organs that are harvested after death and before delivery to relatives may leave no trace in the external appearance of the human frame. For the same reason, when the eyeballs are removed from the dead person, it is considered ethical that the sockets are stuffed and the eyelids are made to look normal. Even a mutilated body by accident or bomb blast are pieced together and stitched up before it is buried or cremated. When Michael Jackson’s brain was redelivered to the relatives after clinical examination for the criminal case that has been registered and for finding the cause of death, the brain was surgically re-fixed within the skull. Now that the body is fully integrated, the burial, it is expected, may take place soon.

Statutory laws and cases associated with dead bodies and removal of organs, after death, are rather weird. The Anatomy Act, 1949 sets out procedure in India for authority for removal of organs from dead bodies or dead bodies themselves for therapeutic, research or criminal investigations. In the case of a dead body lying in a hospital or prison and not claimed by any of the near relatives of the deceased person within forty-eight hours from the time of the death of the concerned person, the authority for the removal of any human organ from the dead body which so remains unclaimed may be given by the person in charge, for the time being, of the management or control of the hospital or prison, or by an employee of such hospital or prison authorised in this behalf by the person in charge of the management or control thereof. No authority shall be given if the person empowered to give such authority has reason to believe that any near relative of the deceased person is likely to claim the dead body even though such near relative has not come forward to claim the body. Can a person insist that the Hospital shall take his body after his death? In K. Uma Mahesh v The State of Tamil Nadu, rep. by its Secretary to Government, Health and Family Welfare Dept. Fort St. George, Ms. 9 and 2 others (1998), there was a challenge to the provisions of the Anatomy Act itself on the ground that there was no provision for acceptance of the body, except those that were unclaimed. Without testing the validity of the Act itself, the Madras Court said that the desire of the petitioner was commendable and directed the Director, Institute of Anatomy to accept the body if the same was intimated and the body had been brought without losing much time after death.

Does a person have a right to protect any part of the body of his or her spouse before death? In Smt. Sumakiran Mallena v The Secretary, Medical and Health and others (2008), 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 decomposed cirrhosis of liver, - a HCV related incurable 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 pointed out that the case had been filed on two wrong presumptions that (i) her husband’s affection towards his parents should be subservient to the marital relationship between him and the petitioner, and (ii) that he cannot donate his organs with her consent. On both counts, the court found against the petitioner.

In Madhu Vijayan and another v S.G.Ravishankar (2006) the dispute was for custody of the ashes between the wife and son of the deceased O.V.Vijayan ( a renowned author and story teller) on the one hand and the nephew of the deceased on the other who had performed the obsequies. The Court said there was no property in the ashes but resolved the controversy between parties by allowing the legal heirs to offer prayers with the ashes kept in the custody of the nephew and that the ashes could be jointly immersed at Hardwar by both the litigating parties, a ceremony that was completed nearly a year after the death.

The foreign jurisdiction in U.K. and U.S.A.have had their share of interesting cases as well. In so far as there can be property in corpses or parts thereof, presumably it will vest initially in person carrying out the stuffing or embalming process, or taking steps for their preservation, on the basis that he is the first possessor. Re Organ Retention Group Litigation(2004) is authority for the proposition that if autopsy is conducted with consent, the removal of organs for the purpose of lab tests and report is implicit and no action will lie for damages for removal of organs. The U.S courts have always recognized the rights of next of kin of a deceased person a right to possession of the dead body for decent burial or cremation but not a right to the body as if it were property. To provide California non-profit eye banks with an adequate supply of corneal tissue, Cal. Gov't Code § 27491.47(a) authorized the coroner to remove and release or authorize the removal and release of corneal eye tissue from a body within the coroner's custody without any effort to notify and obtain the consent of next of kin if the coroner has no knowledge of objection to the removal. The law also provided that the coroner or any person acting upon his or her request shall not incur civil liability for such removal in an action brought by any person who did not object prior to the removal nor be subject to criminal prosecution, Cal. Gov't Code § 27491.47(b). In Robert Newman, as father and next of kin of Richard A. Newman and Others v L. Sathyavaglswaran, M.D., in his official capacity as Chief Medical Examiner-Coroner Of The County Of Los Angeles(2002) , the parents, whose deceased children's corneas were removed by the Los Angeles County Coroner's office without notice or consent brought a suit challenging the removal. The court of appeals concluded that the longstanding recognition in the law of California, paralleled by national common law, that next of kin have the exclusive right to possess the bodies of their deceased family members created a property interest, the deprivation of which must be accorded due process of law under U.S. Const. amend. XIV. The court ruled that parents have property interests in the corneas of their deceased children protected by the Due Process Clause of U.S.

Litigations just do not last merely a life time. In death as in life, will litigations thrive!

Homosexuality - Relevance of religious or cultural views

2009-07-12T01:05:00.000-07:00

High Court judgment de-criminalises homosexuality

Law is what is legislated; law is also what the courts declare. In the constitutional scheme, the Union and the States have distinct spheres of legislative competence, while some subjects of legislative power of the Union and the States may also overlap. The validity of legislation may be tested on the question of power to legislate on a particular subject or whether it conflicts with any right guaranteed under the constitution. In recent history, no judgment of a Court has generated as much interest ( and therefore controversy as well) as the judgment of the Delhi High Court striking down a portion of the Section 377 IPC that criminalizes consensual sexual practices between adults of the same sex as violating the fundamental tenets of equality, privacy and right to life.

The forensic course in the judgment

The judgment traces the penal provision to owe its origin to Judeo-Christian moral and ethical standards (IPC was drafted by Lord Macaulay and introduced in 1861), and while the English law was reformed by Sexual Offences Act, 1967, de-criminalising homosexuality, the law has stayed in statue book in India. The government of India spoke through two voices: the Ministry of Home Affairs sought to justify the retention of section 377, where as the Ministry of Health Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts. Ideas of personal liberty, right to privacy, social morality and decency are dynamic concepts that change with times and the legal regimes that respect individual liberty have changed their laws either through pro-active legislation or through judgments striking down such discriminatory laws. Lesbian, Gay, Bi-sexual and Tran-sexual (LGBT) propensities are but emotions of a minority and protection of minority rights is the new paradigm to understanding concepts of equality and non-discrimination.

Why the existing law is said to be wrong

The judgment expatiates that even if the penal provisions are not enforced (the CJI is reported to have remarked that he had not come by any instance of a case filed against consenting adults for practices of homosexuality in his long judicial career) they reduce gay men and women as “unapprehended felons”. The judgment records the contention that a law that proscribes homosexuality to be wrong in legal principle because they exceed the proper ambit and function of the criminal law in a modern society; wrong because they oppress a minority in the community and target them for an attribute of their nature that they do not choose and cannot change. In this respect they are like other laws of colonial times that disadvantage people on the ground of their race or sex; wrong because they fly in the face of modern scientific knowledge about the incidence and variety of human sexuality; and wrong because they put a cohort of citizens into a position of stigma and shame that makes it hard to reach them with vital messages about safe sexual conduct, essential in the age of HIV/AIDS.

How it conflicts with constitutional morality

In any way, the judgment states, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private. Section 377 IPC is facially neutral and it apparently targets not identities, but in its operation it does end up unfairly targeting a particular community. Sexual orientation is analogous to sex and discrimination on the basis of sexual orientation is not permitted by the fundamental rights protected under Articles 14 (equality), 15 (discrimination on the ground of sex), 19 (fundamental freedom guaranteeing right to privacy) and 21 ( right to personal life and liberty). The judgment examines the diverse legal regimes across the globe and takes the whiff of opinions that is blowing around to be suffused in Indian Constitutional notions of equality, privacy, personal dignity and morality.

Objections that the judgment does not address

The objections have been on the basis that (i) the judgment is against Indian sense of morality, tradition and cultural values. In other words, west is west; east is east; (ii) It is against our religion: Hinduism, Islam, Christianity, Jainism and Buddhism proscribe such sexual practices as sins; (iii) Homosexuality is a disease. It can be cured. Legitimizing it is allowing an illness to permeate into our society and fester the healthy environment; (iv) Parental objections will see a new genre of runaway gay couples coming to police stations and courts seeking for protection of their lives and liberty. Surprisingly, the judgment that runs into 105 pages written with remarkable lucidity, verve and logical persuasiveness does not examine religious objections or what are perceived as against Indian culture. One may suspect that the omission is deliberate. The court had delivered the judgment on the strength of legal reasoning that is distanced from religion and dogma. The special leave petitions to Supreme Court, as reported through the press, have challenged the judgment only on the grounds that the judgment does not deal with.

Religious texts on homosexuality

Hindu religious texts focus on love and transcendental at that. Gopika’s love for Radha or of the cowherd boys at Vrindavan to Krishna, as depicted in Bhagvatam cannot simply be treated as vulgar. The focus here is entirely on love and there is no claim or suggestion about the degree of same-sex intimacy involved other than what is described. Many of the world’s great religions have pondered as to whether or not there is sex life in the spiritual world, but in Hinduism there is no debate. Swami Prabhupada, the founder of Hare Krishna movement would expound: ‘The pastimes of Krsna with the gopis clearly demonstrate that pure, unadulterated sex enjoyment exists in the transcendental realm.’ At lesser levels of human existence, sexual preferences between members of the same sex were immortalized in 10^th century Khajraho’s friezes. This is not to suggest that they were widely prevalent. They perhaps reflect the view of a powerful, creative minority; and the expression of views of minority was respected. In Jainism, liberation from material existence is achieved through extreme bodily mortifications. Monks forswear all sexual contact; the laity may marry, but must remain faithful to their spouses. Jainism is so unsympathetic to sexual contacts that it is doubtful, if it approved of homosexuality (see Sutrakritangu 1.9.10, 10.13). Buddhism founded a generation later was less rigorous and struck a middle ground, in which liberation is achieved by casting away desires. Monks and nuns were to observe chastity and the religious texts do not seem to favour homosexuality, but as it evolved in their practices in China, Japan and some East Asian countries, homosexuality was tolerated. Both Islam and Christianity through their Books, Koran(7:80-82; 27:165-175; 27:55-58; 29:28-29; 4:15-16) and Bible (there are innumerable references and hence to state a few: Levitcus 18:22, 20:13; Deuteronomy 23:17) treat homosexuality as deadly sins.

Manusmriti refers to a homosexual as kliba. The references in the text are: causing an injury to a priest, smelling wine or things that are not be smelled, crookedness, and sexual union with a man are traditionally said to cause loss of caste (11.68); If a man has shed his semen in women born of the same womb as himself, with the wife of his friend or his son, with virgins or women of the lowest casted, he should carry out the vow for violating the guru’s marriage-bed (11.171); If a man has shed his semen in non-human females, in a man, in a menstruating woman, in something other than a vagina, or in water, he should carry out the ‘Painful Heating’ vow (11.174). Kautalya’s Arthasastra states: Intercourse with a woman other than through the vagina is punishable (4.13.40); male homosexuality is punishable (4.13.40).

The debate will continue

It is irrefutable that religious texts are important sources of law and social practices. To that extent, law will follow religious prescriptions, but it is also true that zeal for reformation has taken the breadth of law to traverse beyond the confines of religion. The Hindu laws of succession, adoption, maintenance, guardianship, etc., have undergone several changes that will have no moorings with the customary Mitakshara or Dayabhaga laws. Again, except that Manusmriti has a historical value, no one is prepared to accept whatever Manu’s text states, as for instance, varnashrama dharma. Kautalya’s Arthasastra holds no more interest than how state craft was practiced in ancient India and it is doubtful if it has any contemporary relevance. Muslim personal laws have generally followed Koranic prescriptions and Hadith but criminal laws are same for all communities and punishments prescribed in Koran offer no guidance to the punishments prescribed under the Indian Penal laws for persons practicing Islam. Indeed, some of the Islamic countries have taken conscious decisions, even on the subject of homosexuality by not terming them as offences. The examples in Turkey, Jordan, Egypt and Mali are cases in point. Notwithstanding the strong biblical views on homosexuality, a host of countries that practice Christianity have changed their laws. The other opinions are, if homosexuality is a disease (many modern medical experts would disagree), why punish a sick person, if you do not punish persons having AIDS or cancer? Some may still ask ,if parental objections arise to same sex marriages, why apply a different yardstick, when law protects runaway couples seeking court’s help through police support to uphold freedom of choice and individual liberty? A judgment always does not change the course of history or annihilate deeply embedded prejudices. It only shows another way; another line of thinking. And, in Delhi High Court judgment, it finds its legitimacy from the Indian Constitution and not from religious texts.

Motor Insurance - New Imperatives for Reforms

2009-06-25T22:39:00.000-07:00

The business of motor insurance

In all countries across the globe, motor insurance constitutes around 60% of business of all insurance companies. The public interest element is still relevant, even as global markets bring private players in the insurance sector. The objective of optimizing benefits for persons who are most vulnerable in motor accidents could never be in doubt. It directs a focus on what ’third parties’ shall secure. Among this category are victims of hit and run cases, where the offending vehicles causing death or personal injuries are not traced or when the driver of the offending vehicle does not possess a valid driving license or when there is no valid policy of insurance at all and the Insurance Company finds a ground to disown liability. The Motor Vehicles Act 1988 (MV Act) does address the claims of victims of hit and run cases and of cases where the drivers do not have effective valid driving licences, but not substantially. The Act gives no relief except against the owner in a case where there is no valid insurance. There is still the problem of even the awards of Tribunals not getting satisfied immediately.

Just as the motor Insurance sector stands poised for a de-tariff regime and there is scope for lowering of tariffs in a competitive market, there is as well a need to look into the imperatives for a better deal to victims of motor victims. Here, the insurance companies who are the stake holders in the business could play a pivotal participatory role in amelioration of the woes of victims or their families. To this end shall be the present exercise of examining the relevant provisions, the judicial precedents and scope for reform: first, by referring to the hit and run cases; second, to cases where drivers do not have effective driving licences; third, to cases where there are no valid insurance policies and four, for delayed satisfaction of awards passed by Tribunals. The article suggests the creation of a body like Motor Insurance Bureau, amendments to Insurance laws and Motor Vehicles Act and the limitations to the proposals.

Hit & Run cases under MV Act

The MV Act contains provisions for redeeming the claims of victims of hit and run cases where the vehicle owner is not identified. Section 161(b) defines “hit and run motor accident” to mean an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts. The Solatium Scheme (the 1989 scheme) introduced by the Central Government by notification in the Official Gazette and administered by the General Insurance Corporation sets out the mechanism for processing and disbursing respectively Rs.12,500 for permanent disability for a victim and Rs.25000 in case of death of a person in a motor accident.

Driver who has no effective driving license under MV Act

As regards the claims involving driver who does not possess an effective driving licence, the Act enables the insurer to state as permissible defence to a claim for damages that there is a condition in the policy of insurance excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. A person holding Light Motor Vehicle (LMV) licence but driving a Heavy Goods Vechicle and causing an accident has been found to have had no effective driving licence and the Insurance Company has been exonerated. Again, the driver who did not renew his licence within the grace period was found to create a situation when the insurer could escape liability.The protection to still proceed against the insurer comes through section 149(4) that enacts a salutary ‘pay and recover’ principle making the insurer primarily liable for the claims for and behalf of a third party even in an eventuality of a breach of condition but however providing for an indemnity from the owner of the vehicle. It was not however till the Supreme Court emphatically laid down in New India Assurance Company Limited v Kamla that courts came to the succor of the claimants for upholding their claims against insurers but surprisingly, the application of this section itself has been defensive in some later judgments of the Supreme Court, either by reference to its prerogative to decline interference under Art 136 of the Constitution by allowing the award to stand as a measure of grace and providing to the insurer a right of recovery or depart with a feeling of despondency that nothing much could be done for the victim and the insurer was entitled to deny liability or direct that decision shall not be cited as a precedent. There is a need to dispel any prevarication in such situations where the right to enforce the claim for a third party victim against the insurer is fully protected by statute.

Insurance policy, its lack or inadequacy under various situations

The provision for compulsory insurance is provided under sections 146 and 147 to the following types of situations resulting in personal injuries or death: a vehicle meant to carry dangerous or hazardous goods that is required to cover risks detailed under the Public Liability Insurance Act, 1991; owner of the goods or his authorized representative carried in the vehicle; passenger in a public service vehicle; workman such as an employee engaged in driving the vehicle or a conductor in a public service vehicle, or a person engaged in examining tickets in the vehicle, employees carried in a goods carriage to the extent of liability provided under Workmen’s Compensation Act. A policy of insurance to cover such cases is called in common parlance as ‘Act only policy’. A personal cover for risk for an owner travelling in his own motor vehicle where he meets with accident due to his own negligence or the driver of the owner, a gratuitous passenger such as a friend or relative being carried in a private vehicle, a pillion rider in a motor cycle that is involved in an accident due to the negligence of the rider and a passenger in a goods carriage (who is not a traveler along with his goods) are cases that fall outside the scheme of compulsory insurance. To such persons, unless there is specific insurance policy coverage (usually by payment of higher premium), the insurer will not be liable.

Delay in satisfying awards

It is common knowledge that cases take a long number of years for disposal and when awards get to be passed, there is scope for appeals and stay of operation of the awards. Although an insurer is barred from disputing the issue of quantum, grant of permission under section 170 to the insurer is a matter of course in proceedings before Tribunals. Filing an appeal through the insured, even when such permission is not granted under section 170 is a familiar practice. Liability to pay subsequent interest at 6% p.a is seldom an incentive to deposit money in court immediately after the award, all of which add to the victim’s woes.

MIB cited in Law Commission Report

Among the most important changes brought in the MV Act viz., the provision that contemplates a scheme for payment out of a fund for victims of hit and run cases came after the 51^st Report of the Law Commission of India. Making reference to Article 41 of the Constitution of India, the Commission exhorted the need to compensate victims as arising under the Directive Principles of State Policy that ‘The State shall within limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want’. Further tracing the justification for this provision to U.K, the Law Commission referred to the agreement of Motor Insurance Bureau (MIB) with the Minister of Transport that provided for enforcement of ‘a judgment in respect of any liability which is required to be covered by a policy of insurance, whether or not such person is in fact covered by a contract of insurance and such judgment is not satisfied in full within 7 days from the day when the judgment was given, then the MIB will satisfy the judgment.’ Initially the agreement did not provide for payment in cases where the offending vehicle could not be traced or when the driver had no valid driving licence. This was strongly criticized by Sachs J., in Adams v Andrews that dealt with a case of negligence of an untraced motor-cyclist, who caused the driver of a car, in which the plaintiff was travelling a passenger, to swerve and overturn. He observed as illogical the MIB’s unwillingness to come to the rescue of the individual who had to go cap-in-hand- for an ex-gratia payment.

Situations when MIB will pay

Over the years, the situation has changed and MIB now operates under two agreements with the Secretary of State for the Environment namely, ’The Uninsured Drivers Agreement’ and ‘The Untraced Drivers Agreement’. The "uninsured driver" will either have no car insurance at all, or by virtue of the policy have no valid car insurance. If the uninsured driver was for example, a tourist driving a friend's car without having any car insurance, the MIB will be involved in the settlement of the Third Party injury and / or property claim. If the uninsured driver has no valid car insurance for example, there is only private use on the policy but whilst using the car for business the driver causes a Third Party to suffer a loss, the insurer will repudiate the claim. The MIB will however insist that the insurer will pay the Third Party. The insurer must then attempt to recover its costs from its own customer. An "untraced driver" is for example, a joy rider or someone who has failed to stop at the scene of an accident and is never found. The MIB will consider claims for losses caused by untraced drivers provided that those losses are otherwise uninsured, and the incident resulted in personal injury or death. This is because it would be too easy to submit a fraudulent claim for property only.

MIB model alone satisfies the present need to apply to all enumerated situations that otherwise exonerate insurance companies

In its present form as applied in UK and other countries of the European Union, MIB addresses the concern of all the four situations what we have mentioned earlier, viz, of hit and run cases, of unlicensed drivers, uninsured vehicles and non-satisfaction of the award for a period beyond 7 days when the award becomes enforceable. The 1989 scheme that provides for a mechanism for payment of compensation and which was inspired by MIB, unfortunately subverts the entitlement to the nature of gratis with a further cap on the quantum of entitlement to a few thousands of rupees. Underwriting motor insurance policies is no loss making proposition, although it is always a familiar refrain trumpeted from roof tops by insurance companies. Look at the statistics: The Tariff Advisory Committee – Data Repository has issued the Summary of reports form Motor Data of 4 PSUs for 2005-06 that against a total premium of Rs6217.78 cr collected for all categories of vehicles, the total number of claims were to the tune of 2,610,930. The total claims paid were to the tune of Rs.5544.92 cr against total incurred liability of Rs.6180.40 cr. Both the figures could be seen to be less than total premiums collected. It is therefore not correct to assume that Insurance companies are running under loss in motor insurance business. Better management by private insurance companies and competitive policies with better collection of revenues by tapping the market effectively ought to allow for sufficient surplus to run the scheme on the lines of MIB, successfully in India. The MIB model has been successfully replicated by nearly 50 countries that include all the countries belonging to European Union. Singapore already has MIB set up as early as in 1975.

Changes in law that may be necessary

In India, insurance is in List A (Union) in Sch VII of the Constitution of India. The primary legislation that deals with insurance business in India is Insurance Act, 1938 and Insurance Regulatory & Development Authority Act, 1999. IRDA has the power to regulate, promote and ensure orderly growth of the insurance business and re-insurance business. The power shall include control and regulation of the rates, terms and conditions that may be offered by insurers in respect of general insurance business not so controlled and regulated by the Tariff Advisory Committee under section 64U of the Insurance Act, 1938 (4 of 1938). It has also power to issue directives under section 34 of the Insurance Act, which could include power to set up a fund and enjoin contributions by all insurance companies engaged in underwriting risks in motor accidents. It has power to set up a body to oversee and operate the fund to address the claims of victims or their legal representatives in motor accidents. There shall be corresponding amendments to the provisions in M V Act. The combined effect shall be:

(i) Victims of ‘hit and run’ cases shall be truly compensated in monetary terms of what the victim or his family would have got as ‘just compensation’ under Section 166 of the Motor Vehicles Act or at any rate, at least the amount that is provided under the structured formula under Section 163A.

(ii) The failure to comply with the terms of compulsory insurance as constituting an offence punishable with imprisonment of 3 months under section 196 of the Motor Vehicles Act shall be made more stringent to include provision for distraint and sale of the vehicle to satisfy the claims of third parties under circumstances mentioned above.

(iii) While an owner of a vehicle cannot be expected to obtain compensation for his own negligence or that of his employee, it would be most unjust to deny a gratuitous passenger such as a relative or friend in a private vehicle or a pillion rider in a motor vehicle a right to compensation for the failure of the owner to take sufficient insurance cover. There ought to be provision for claim against a solvent insurer or a voluntary body of persons a la MIB or General Insurance Company that holds a specific fund to defray the claims by affected persons with a right of indemnity to the Insurer on the lines of pay and recover principle.

(iv) With a body such as MIB in place, the claimant shall have a right to recover the award within a period of one week when the amount becomes recoverable.

Conclusion

The various aspects of how MIB is put to operation in UK and other countries have not been addressed here, nor are the exceptions when the right will not be available. The costs of running the Fund and the extent of contributions from Insurance Companies, State participation and how much of increased costs will have to be absorbed by premiums payable by consumers have also not been discussed. This is but a formal presentation of the road that lies ahead for reforms. Air, water, rail and road are just well mediums of transport. Of them, you hold the key from your doorstep only for motor car. They will inevitably be the most used, abused and misused. Our ability to also solve the problems that we create is the hallmark of worthy human endeavor. Cry for reforms in various fields rent the air. A MIB may not solve all problems but it at least assures a better deal for third party victims of motor accidents for a little additional price through higher premiums. As Washinton Irving said, ‘There is a certain relief in change, even though it be from bad to worse! As I have often found in travelling in a stagecoach, that it is often a comfort to shift one's position, and be bruised in a new place’.

Romanticising Death

2009-05-21T06:26:00.000-07:00

There is a certain thrill about the fantasy that we indulge in refusing to acknowledge the death of certain class of revolutionary leaders and celebrities. It is just not a sense of disbelief but a deliberate act of self deception in assigning to such persons a degree of invincibility and blow up larger than life sizes to their physical frames to convince ourselves that that they cannot be annihilated like other ordinary mortals. What do you make of LTTE supremo V.Prabhakaran’s death or alleged death, as the story goes? It was a bizarre sight of large human frame with the back of the head knocked off and the face puffed up with bulging eyes wide open. The fiery tiger seemed badly mauled. Prabhakaran is dead; long live Prabhakaran!

A senior leader from T.Nadu refused to comment because the death was unconfirmed. Television panelists discussed how the eye brow was thicker than ‘original’ Prabhakaran’s; there was no trace of a facial twitch that he always had; why was an identity card around his neck which was unlikely; this was the body of a double propped up by the Sri Lankan army. All these doubts are a theme repeated over the whole length of history. From Adolf Hitler to Subhas Chandra Bose, the world would just have you believe that they just did not die. Again, if it is not the fact of death itself, the cause of death is impressed with a sense of enigma. From Cleopatra to Marylyn Munroe or from Napoleon Bonaparte to John F.Kennedy, the world would want you believe that there were not just good enough reasons for them to die, when indeed they died.

What actually became of Hitler's body? Several theories were spread throughout 1945, after Germany's surrender, that the Soviets' found Hitler and Eva Braun's body remains after what would be thought of as a suicide and burning. Other theories indicated that Hitler escaped Berlin. Hitler's body was not found since it was semi-cremated, falsely identified and it presented no physical evidence that could be analysed. The Russians were never in a position to display the remains of Hitler's corpse, as they certainly would have done if they had taken it away as they claimed. The fact that Hitler's body had not been found created a series of beliefs that the Fuhrer had actually escaped and fled the ruined city. Stalin had announced to Truman during lunch in Potsdam on July 17, 1945, 78 days after his death, that Hitler had escaped. From this announcement began the phenomenon of Hitler spotting across the world, most notably in South America! If you spot a man with a queer moustache roaming on the mountains of Columbia or Argentina, don’t ask for his name. You know, who he could be. He has concealed his identity this long, he will not give into your curiosity by his answer.

The alleged death of Subhas Chandra Bose, the supreme commander of Azad Hind Fauz and Free India Legion in a plane crash in Taiwan on August 18, 1945, has long been the subject of dispute. Recently an Indian central commission of inquiry confirmed one popular version, that Bose's death was staged to facilitate an escape to the USSR. The then Viceroy of India, Field Marshal Archibald Wavell, is reported to have noted in his diary that "I wonder if the Japanese announcement of Subhash Chandra Bose's death in an air-crash is true. I suspect it In 1999, following a court order, the Government of India formed Mukherjee Commission of Inquiry. It was headed by Justice MK Mukherjee (Retd) of the Supreme Court of India. The commission perused hundreds of files on Bose's death drawn from several countries and also visited Japan, Russia and Taiwan. Overturning the findings of previous panels, this commission's findings were that the news of Bose's death in Taipei was a cover-up for his escape to the USSR. The Commission, however, stated that they could not confirm Bose's presence in the USSR for want of evidence. The Mukherjee Commission submitted its report to Indian Home Minister Shivraj Patil on November 8, 2005. The report was tabled in the Indian Parliament on May 17, 2006. However, the Indian Government rejected the findings of the Commission.

Egypt's final queen Cleopatra lived and died in Alexandria. She was born in 69 B.C. and was a descendant of a long line of Masedonian Greek royalty. At age 18, Cleopatra inherited the throne of Egypt. After her siblings' deaths, she feared that she too would be murdered, so she courted the power of the Roman Empire. She was Julius Caesar's lover and gave birth to his son. After Caesar's sudden death, she seduced his friend Mark Antony. Why did such a powerful person commit suicide by allowing a snake to inject poison on her breast? Marylyn Munroe had the world under her feet. Her death on August 5, 1962, sparked huge controversy and, in the eyes of her fans, was never truly solved. The actress, singer and model was best known for her sex appeal and screen presence. She redefined the role of women in Hollywood and opened the door to future generations of female celebrity hopefuls. To this day, many people refuse to believe that her death was accidental, and there is much speculation over what or who truly killed her. The local coroner, who visited the scene later, said the circumstances of the death of Marilyn Monroe indicated a "possible suicide". Since then, several conspiracy theories have surfaced in the decades after her death, including some involving the Kennedy family, alleging that her death was deliberate.

We ever clamor for the black box in history. We do not need to solve all these eternal mysteries. The excitement rests in continuing to keep them as mysteries unsolved. In some essential ways we want confirmation too that we live on the same planet as did these persons who inspired or caused acute revulsion in tens of thousands of peoples. We thirst for all rumours, sans exactitudes. We want to see and fondle the myth in its entire scintillating splendor. If we truly find them back, we will have no cause to celebrate their rediscovery for it is their disappearance that gives these occurrences an aura of immortality.

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Declaration of assets by judges

2009-04-20T18:44:00.000-07:00

Pompeia was perhaps a terribly wronged woman. In 62 BC she hosted the festival of the Bona Dea ("good goddess"), to which no man was permitted to attend. However a young patrician named Publius Clodius Pulcher managed to gain admittance disguised as a woman, apparently for the purpose of seducing Pompeia. He was caught and prosecuted for sacrilege. Caesar gave no evidence against Clodius at his trial, and he was acquitted. Nevertheless, Caesar divorced Pompeia, saying that "my wife ought not to be even under suspicion." It almost seems judges’ turn now. Judges are under increasing pressure to declare their assets publicly on a lofty allusion to Caesar’s wife having to be beyond suspicion. The CIC verdict directing the Supreme Court judges to declare their assets has found widespread approbation and the attempt of the Supreme Court to reverse the verdict by filing a writ petition before the Delhi High Court has drawn flak from many a quarter.

Former Supreme Court judges, two of them who were themselves previously Chief Justices of India (CJIs) joined issues and said that transparency and probity dictated that the assets be declared voluntarily by judges. The present CJI said that there was no law requiring judges to make a declaration of assets to the public. To this was the response by some jurists: of what use is Right to Information Act, if we must keep adding several subjects which could not be accessed by public? According to them, the already excepted areas in RTI Act under section 8, such as matters involving national sovereignty, parliamentary privileges, etc., ought not to be enlarged.

Nearer home Sri Lanka passed Declaration of Assets and Liability Law (Act 1 of 1975) requiring judges, among others to declare their assets at the time of their appointments. Many of the African countries have passed such legislation in the recent years to quell widespread allegations of corruption in high constitutional offices. In India, although there is no such law, Supreme Court judges have been declaring their assets since 1997 to the CJI at the time of their appointment as an apex court judge and thereafter every year as per a resolution passed by the apex court on May 7, 1997. "The High Court judges may consider adopting a similar resolution in case it does not have a system of judges declaring their assets soon after the assumption of office and regularly updating the declaration made by them," said the CJI in his letter to High Court Chief Justices. The CJI wrote, "It is essential for an independent, strong and respected judiciary and indispensable for impartial administration of justice." He also called upon the High Court judges to adopt what is known as "restatement of values of judicial life" adopted by the apex court in another resolution earlier.

So what is the objection, if the statements made by judges to their respective Chief Justices are made public? Normally, it may not even sound civil to ask your own brother, sister or even a close friend about his or her financial details without offending his or her sensibilities and evoking a sense of embarrassment. Let us assume that that the attitude is never like a peeping Tom’s voyeuristic proclivities- in this case, however, not in a prurient form, to purvey what is in a judge’s wallet but rationalize it on the ground that the person who is entrusted with the task of judging other’s conduct is beyond reproach. Ask this question, what do you do after getting the details? Should a judge be answering everyone how he has got the wealth that he has declared? Imagine a judge enquiring into allegations of disproportionate wealth case of a bureaucrat. In the course of the proceedings, what if the litigant asks the judge, ‘how did you obtain your wealth, before asking me to explain my riches?’ It may not be a daily occurrence, but consider the mischief that the right to demand the assets statement of a judge could entail. Again, judges are not in the same league as politicians. It is precisely for this reason that the judge, who granted an order of stay of the CIC order, said that judges could not be treated like politicians and ordinary government servants. Politicians are elected by people; they have a right to know the financial antecedents. A corrupt politician may not be re-elected again, if the voter believes that the politician has been corrupt. Can anyone doubt the wisdom of the judgments of the Supreme Court in Union v Association for Democratic Reforms (2002) and PUCL v Union of India (2003), when they said that declaration of assets at the time of standing for election has become the necessity of the day because of statutory provisions of controlling widespread corrupt practices have become insufficient? Judges are not elected as are done in U.S.A. They cannot be removed by people.

What do you do with corrupt judges, do you ask? Without addressing the issues of the appointment and the removal procedures as they exist now, you cannot do anything. Shall we put the nominations for appointments of Supreme Court judges and of the High Court through discussions in the parliamentary select committees and of the respective State assemblies before they are taken on board, so that a full- fledged roving enquiry is made about the antecedents of a judge before he is appointed? A judge that is corrupt cannot be tried by his own brother judge or an ordinary magistrate, as any other public servant is tried, can he be? Judiciary ought to be institutions where normal litigations are fought, where a judge plays the role of an impartial arbiter. Can you parade a judge for dismissal from service before another judge? Let us evolve mechanisms within the judiciary itself to regulate its conduct. If the existing mechanism is perceived as not being successful in preventing corruption in the judiciary, let us evolve better procedures for their recruitment and removal. That will give us answer to who shall access the records of assets of judges.

The venerable footwear

2009-04-08T19:34:00.000-07:00

On 14th December 2008, an Iraqi TV journalist, Muntadhar al-Zeidi hurled his shoe at President George Bush at Bagram Air Base, Afghanistan, saying that “this is from the widows, the orphans and those who were killed in Iraq. A few months later on March 12, 2009, he was awarded with a sentence of 3 years imprisonment. On March 20, 2009 a music teacher of Mumbai’s Boss School of Music at Vasai a northern suburb of Mumbai, facing an action for contempt for libelous publication against the judges of Bombay High Court and the Supreme Court further aggravated the contempt by hurling slipper against a judge hearing the case in the Supreme Court. The contempt case which was being heard was immediately disposed with punishment of 3 months’ jail term but the slipper throwing act has become now a fresh subject of contempt and the case is still pending. On 7th April 2009, Jarnail Singh, a Sikh journalist working for Dainik Jagran hurled his shoe at the Home Minister at a press conference, in expression of anger against CBI giving a clean chit to Jagdish Tytler for his suspected role of genocidal mayhem against Sikhs following Indira Gandhi’s assassination.

It was stated that in Iraqi culture, throwing shoes was a sign of contempt. Before the Supreme Court, the chappal throwing was itself done during the conduct of contempt proceedings. Is there again a doubt that the Sikh journalist had nothing except contempt when he found that CBI’s exoneration of the former minister for the unjustified violence against his community betrayed the untenability of its claim as a premier investigating agency?

Curiously, India, since the time of old, had different conception of foot, dust smeared on foot, footwear and touching the feet. Padma Padam, that is, Lotus feet, they were, when the allusion was to gods and saints. Padukas that they wore were themselves objects of worship. Falling at one’s foot or sitting by one’s foot or touching the feet of elders were respectful acts and occasions to receiving blessings from the persons whose feet were touched. V.Krishnamurthi has vividly brought out this theme in his extensively researched article on Gems from the Ocean of Hindu Thought www.geocities.com/prohitip

According to him, the Vasishnav tradition had a special significance in divine feet and sandals. Nammalvar, who glorified the Divine Feet of Narayana by the words, turarvaru chuddar adi (the flowing feet of the Lord which blast off all gloom and grief), was himself perceived as incarnated as Lord’s feet. The vertical line or lines worn by the orthodox devotees of Vishnu on their forehead was the symbol of Divine Foot. The Vishnu-Sahasranama has eka-pAd as one of His names and this glorifies the divine feet even more, for it means that the entire universe is part of his one foot. This resonates again with the statement in the Purushha-sUkta (which occurs both in the Rig Veda and the Yajur Veda): pado’sya vishvA bhUtAni, meaning, ‘All these beings emanated from His divine foot’. Vedanta Desika’s Paduka Sahasram was an inspired torrent of poetry in 1000 verses believed to have been composed on one night in praise of the sacred sandals on which the Lord’s lotus feet rest. He says in verse no. 108, ‘ Oh sandals, You are even more glorious than Rama whose glory pervades all the three worlds. For, if not, how did Bharata, who wanted only Rama, accept you as security for Rama’s return? He asks, ‘Is it not common knowledge that a thing accepted as security for money promised to be returned, must have a value greater than the money lent?’ In the Shri Vaishnava tradition, to purify oneself with the dust of the feet of the devotees by washing their feet with water and sprinkling that holy water on one’s head is considered such a sacred act that one of the 12 Alwars got his name toNDar-aDip-poDi-Alwar from the act of his which became a habit and routine with him once he changed his earlier sinning life to one of supreme devotion to the Lord and His devotees.

The Saivaites and Advaitins held similar notions on feet and sandals of holy persons. Divine Mother’s feet are glorified in the Lalita Sahasranama, nakha-dIdhiti-samchinna-namaj-jana-tamo-guNA -- ‘the bright rays emanating from Her toe nails dispel the darkness of Her worshippers’. In other words meditation on Her feet dispels ignorance – the ignorance that causes our bondage to the transmigratory cycle of births and deaths. Again, in a similar vein, Adi Sankara in verse no.4 of his Soundarya Lahari , praises the Divine Feet in superlative terms: ‘Oh Mother of the Universe. Deities other than You reveal their divine form by showing the abhaya-mudrA (Sign proclaiming ‘Have no Fear’) by their right hand and the vara-mudrA (Sign granting the desired boons) by their left hand. But You are holding four different objects in your hands and thus the hands do not show the mudras. Does it not mean that not only these but more will all be granted by your divine feet themselves? Earlier in second verse, Sankara glorifies the dust of the Mother’s Divine Feet. ‘Oh Mother of the Cosmos! I don’t need even Your Feet. Just a speck of dust from Your divine Feet is enough. Even the Creator BrahmA creates the fourteen worlds only with the strength of the divine dust collected by Him from under your feet. Mahavishnu sustains the whole world only because of the strength of the Dust of your divine feet. Lord Shiva wears it on His forehead as sacred vibhUti.’

Sankara himself is only a manifestation of Lord Shiva. The great cosmic dance of Shiva in the holy place of Chidambaram, includes in its esoteric interpretations, distinct meanings for the ‘raised foot of the divine’ --tUkkiya tiruvaDi, in Tamil – and ‘held foot of the divine’ --UnRiya tiruvaDi . The former grants the ultimate boon, namely, Mokshha and the latter performs what is called obliteration (tirodhAna -- disappearance, vanishing.), one of the five divine functions – creation, sustenance, dissolution, grace, and obliteration. Without this fifth function, obliteration, our sins can never be exhausted.

The Vedas themselves prostrate at the feet of the Divine Mother of the Universe. Lallitha Saasranama has a name which describes this in a poetically enjoyable way. The word ‘Shruti’ which stands for the Vedas, is feminine. When Shruti falls at the feet of the Mother, her head touches the divine feet. The dust of the divine feet is crimson in colour since the feet of the Mother is always painted that way – also to remind us of the fact millions of devotees have all the time been doing archanA to Her feet with Kunkum. The crimson dust sticks to the head of Lady Shruti exactly at the parting of the hair. Thus arises the name: Shruti-sImanta-sindhUrI-kRta-pAdAbja-dhUlikA meaning, the dust of whose lotus feet has crimson-coloured the parting of the hair on the head of Shruti. The dust of the divine feet on the head of Shruti is also an indication that even though Shruti may be of vast content and knowledge, Her knowledge of the Divine Mother is only a speck! The great work DurgA-sapta-shati eulogises the worshipping of young girls as manifestations of the Divine Mother and the wearing of the dust under their feet after the worship.

Great are the Divine Feet, greater is the dust under the Divine Feet but greatest is the pair of sandals of the divine feet – known as PAdukA. That is why in the Ramayana Bharata asks for the divine sandals from Rama after he fails to convince him to return to Ayodhya and resume his kingship. The sandals take the place of the Lord for fourteen years as the symbolic King under whose banner Bharata serves and discharges the kingly duties. While he reluctantly takes leave of Rama in the forest where he has gone to plead for his return, and finally gets only the sandals of the Divine instead of the Divine Himself, he puts them on his head and carries them back to the capital with all reverence. The joining together of the two extremities – the Feet of the Divine with the head of the devotee – is what is symbolised in the joining of the palms when one worships or bows in reverence. The right palm denotes the feet of the Divine and the left palm denotes the head of the devotee. This is the esoteric principle behind the joining of the palms.

Touching the feet of Elders or Saints is a unification of point of shraddha and karuna. Hear the Holiness of Kanchi Mutt, Sri Chandrasekara Saraswati speak: Will economic wealth give fullness to life? Certainly not. We have to seek spiritual wealth and with the help of that, regulate the pursuit for economic wealth. Vinaya is the only route to spiritual wealth. How do you get vinaya? Impelled with the basic desire to seek vinaya, seeking the saints and doing namaskara to them is the only way. This kriya will help rise, from what is already "basic"(latent, dormant, underlying) in us, a visible edifice. The timeless and enduring living tradition of this country has the power to convert and soften the most stubborn conceit and self-arrogation. If a little effort is forthcoming, in course of time, desirable changes in mentality will be felt.

Maybe, in all meetings where dignitaries attend and give speeches, there will be a rule to remove the footwear and enter inside. There is no guarantee still that the celebrity will be spared. Next, it could be a pen; a pencil, a sock or paper rolled as ball and if you can proscribe every object that could be used as an object to hurl, what will you do if someone spits? If dissent is the hallmark of democracy, how will visible expressions of anger that are uncivil wane? Banish all modern day weaponry; still wars would be fought with primitive weapons, with stones and sticks. Objects do not cause hostilities. It is all in the mind! Get back the mindset of our earlier times. Venerate the footwear!

Consumer Protection through Class action

2009-02-27T05:00:00.000-08:00

Exsiting legal framework
All legal regimes across the globe provide for legal actions by redressal of grievances addressing commonality of rights affecting a large body of persons. The homogeneity of the class may consist of the nature of injuries similarly suffered or exposed to risks in the same accident or the wrong perpetrated by the same tort-feasor. The collective actions, also called class actions, have immense value in consumer actions claiming damages against a manufacturer and/or a retailer selling goods or against an individual or organization or corporate entity providing some service. In the case of a purchaser of goods, the damage may have resulted by defect in goods placed for consumption; in the case of a person availing of service, the complaint may be of deficiency of the service provided. The Consumer Protection Act defines the term “consumer” as a person that buys goods or a hirer of service for consideration and a “complainant”to include any registered voluntary consumer association. The “complaint”could relate to unfair or restrictive trade practice or defective goods supplied or deficient service.

Public law remedy unavailable against private manufacturer or service provider
The provision that enables a voluntary consumer association to espouse the cause of an individual consumer or the body of consumers cuts short, as if by sleight of hand, the not too easy resort to joinder of causes of action by plaintiffs, contemplated under the provisions of Order 8 Rule 1 of the Code of Civil Procedure. Just as infrequent as this provision of the Code has been resorted to in India for ordinary civil actions through suits in Courts, which are perceived to be time consuming and expensive, so are the voluntary organizations making complaints on behalf of consumers infrequent before consumer forums, although perceived to assure faster reliefs, less expensively. If there is one area where class- actions have become popular in India, it is in the area of public interest litigations (PILs) resorted through writ petitions before High Courts and Supreme Court. By the very nature of a writ being possible only against State and its functionaries (subject to extracting exceptions) and not against individuals or companies, the use of PILs are not efficacious to address consumer related problems of defective products and deficient services.

Res ipsa loquitur, best instances for class action
It is not as if there have never been adequate instances that offer scope for resort to class actions under the Consumer Protection Act. This is so, even if we must resort to this genre of litigations only for cases which could be disposed of in a summary procedure, without having to go through tortuous procedures of examination of witnesses which could involve considerable time, discovery and inspection which could again mean exchange of documents and expensive forensic skills to track the wrong-doing. There are countless occasions, where a large body of persons is affected. Consider res ipsa loquitur instances, where as the saying goes, the act of negligence speaks for itself. Cases of medical camps, where due to poor medical care and facilities, cataract operations result in blindness to patients undergoing the medical procedures; Of harmful drugs that maim or kill which are dispensed recklessly without proper medical trials; vaccinations due to contaminations in large batches of bottles and vials that result in deaths of babies; hooch tragedies, where consumers of illicit arrack, mostly poor people die tragic deaths at the hands of illicit bootleggers; corporate frauds admitted by the CEOs as such, resulting in prodigious financial loss to investors in shares in companies; noxious fumes emanating from factories that flout brazenly pollution control laws or industrial effluents that pollute water table and affect health to persons living around the area of the factory. All are cases just waiting to be easily identified and pursued through complaints before consumer forums.

Lessons for the Indian milieu from global regimes
Class litigation has enormous advantages in the Indian situation. Several suits or claims in various courts could be encapsulated in a single collective action, saving court’s collective time spent through several litigations in several courts. It helps to cut costs by engaging services of less number of lawyers. Even a poor litigant could have the benefit of engaging the services of the most competent and even expensive legal counsel. A homogenous decision is not merely more efficacious but most just that similar claims are addressed across the board to obtain the same result. The likelihood of misuse could be effectively controlled by the experience gained through some of the practices in other countries.

U.S.A
In U.S, in the context of Private Securities Litigation Act, 1995 codified into Title of United States Code, the Court would appoint a lead plaintiff ( usually a large institutional investor with greater sophistication to devote to the action than an individual plaintiff) to oversee the conduct of every securities fraud class action. The appointment is designed to ensure that the action is adequately monitored and that any settlement is in the interest of the investors rather than the lawyers. The practice of contingency fee in US that gives rise to fantastic claims could be controlled by strictly enforcing the law against such practice.

Australia
In Australia, in a recent case alleging corporate fraud against the Centro Group, for indulging in inadequate and misleading information about its financial condition of the company, Justice Finkelstein, the judge dealing with the case constituted a litigation committee to decide which lawyers and litigation funders should take over the conduct of the class actions. Interestingly, here the court retained the power to decide who the attorneys shall be to conduct the litigation. In India, the respective Bar Councils operating in the States could be given the responsibility of creating an approved panel of attorneys or advocates that would hold the license to institute class actions.

Spain
In Spain, the 1/2000 Civil Procedure Act sets forth a class action regime, by virtue of which Consumers Associations are entitled to file a lawsuit on behalf of an undetermined number of consumers for those damages allegedly caused to them. Any favorable decision issued by the court will benefit all the undetermined consumers that are represented by the Consumers Association, regardless of whether or not those consumers are affiliated to the plaintiff Association. The undetermined consumers will afterwards be entitled to execute the decision on their own behalf. Such like provision is not new to India. The Land Acquisition Act provides under section 28A the right to a landholder who has lost the property in land acquisition to claim the benefits of enhancement of compensation on a fast track, by applying to the Collector, even if he had missed the bus initially by not filing a claim for enhancement and seeking for reference to civil court, subject only to proof that his acquired land was comprised in the same notification.

Canada
It is possible that the tort feasor may force a litigant not to resort to class actions by introducing arbitral clauses in the contract. In 2003 Dell Computer Corporation posted incorrect prices on its web order pages for two products. Dell corrected the error three days later, but not before hundreds of consumers had placed online orders at the posted prices. Dell declined to process the orders. This resulted in an attempt by the Union des Consommateurs (a non-profit organization) to initiate a class action against Dell in the Superior Court of Québec. Dell resisted the proposed class action by invoking the arbitration agreement contained in the terms and conditions page hyperlinked to its website order pages. Dell applied to have the claim referred to arbitration and to have the application to institute a class action dismissed. The individual arbitral referrals are expensive and a disincentive to litigate. Dell failed at first instance and again on appeal, but prevailed on further appeal to the Supreme Court of Canada in Union des consommateurs v. Dell Computer Corp. ("Dell")(2007), when the court ruled that the arbitration clause for each individual offeree ousted the scope for collective action. After the events that gave rise to this dispute took place, Ontario and Québec enacted legislation prohibiting consumer agreements from requiring that disputes arising out of them be submitted to arbitration (s. 7(2) of Ontario’s Consumer Protection Act, 2002, and s. 11.1 of Québec’s Consumer Protection Act). In India we could make do with specific provisions in the Arbitration and Conciliation Act and the Consumer Protection Act that would not bar prosecution of class litigations through arbitral clauses.

U.K. & Italy
In England and Wales, under Part 19 of the Civil Procedure Rules, the court has the power to make a Group Litigation Order (GLO) to manage cases on an “opt in” basis, where there are a number of claims giving rise to common or related issues of fact or law. On December 21, 2007, the Italian Parliament passed the Budget Law 2008, which finally introduced into the Consumer Code a specific statutory provision (Article 140-bis) giving certain associations the capacity to sue collectively for tort liability, unfair trade practice, and anti-competitive behavior. The new law became effective on July 1, 2008.Under the new class-action law, bodies acting on behalf of consumers or investors will be able to obtain a declaratory judgment of the right to obtain compensation and the refund of sums due.

Conclusion
Any consumer movement obtains impetus only through collective actions. It is the unity of purpose secured through funneling of independent initiatives that could sharpen the edge of attack against errant manufacturers and retailers of consumer products and negligent service providers and make them responsive to consumer needs. Welcome class actions in consumer forums; enter an era of quicker and cheaper remedies for larger sections of people.

Euthanasia, the death-shot

2008-12-13T23:23:00.000-08:00

Life and death are no longer in the realm of only god’s activity. Or, at least, so it seems. Medical science, through In virto fertilization (IVF procedures) brings to reality certain aspects of human procreation hitherto not known to be possible. Again, when a person shall die may even be decided by a suave physician; he may deliver a death shot at a chosen time, without being charged with the offence of murder. Euthanasia is its name. But euthanasia is not legal yet in India. It may soon be, if global trends are any indication. Indian Medical Council (Professional Conduct, and Ethics) Regulations with regard to professional conduct, etiquette and ethics notified in 2002 also declares expressly euthanasia to be unethical conduct. However, the Regulation allows withdrawing life-supporting devices to a patient which shall be decided only by a team of doctors and not merely by the treating physician. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer / Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.

Assisted suicide in its diverse forms - General
Suicide is an act of criminal self-destruction. While it is not possible to punish a dead person for what he did, if he survived the attempt, he could be proceeded with legally under regimes that make an attempt at suicide an offence. The Indian Penal Code contains detailed provisions about when attempt to suicide is punishable, when abetment to suicide constitutes culpable homicide (a lesser form than murder) and when even the husband or certain classes of relatives could be said to committed acts of cruelty, when a woman after marriage commits suicide. We are however concerned to issues of assisted suicide in the context of medical intervention. Euthanasia is assisted suicide and something more. The mild variations are treated along the following lines:
(i) Passive Assistance, occurs when a health care provider does nothing to prevent a patient's choice not to seek medical intervention during terminally ill state.
(ii) Facilitation of Suicide is a second circumstance in the health care context, which occurs when the health care provider renders peripheral aid to the victim. Facilitation of suicide can be distinguished from other types of assistance, in that the health care provider's aid only amounts to minimal supportive behavior. Encouraging an individual to commit suicide, for example, is illegal.
(iii) Another type of assisted suicide occurs when the health care provider supplies the means for committing suicide. Most cases do not involve malicious acts but involve ailing victims who have determined that their existence is meaningless and intolerable. Some physicians assist patients who request [suicide assistance], either by prescribing sleeping pills with knowledge of their intended use or by discussing the required doses and methods of administration with the patient.
(iv) The last type of assisted suicide occurs when the health care provider actively participates in the act of suicide.

Euthanasia, active and passive
Assisting patients with suicide comes close to performing an act of euthanasia. Active euthanasia generally involves the administration of some agent or procedure which the physician believes is warranted to end the patient's life.
Passive euthanasia consists of permitting a patient to die by withholding life-sustaining treatment. Passive euthanasia may take many forms. McKay v. Bergsted (1990) was a case in Nevada, U.S.A, where the patient, who had been dependent on a respirator for twenty-one years but who could read, watch television and occasionally enjoy wheel chair ambulation, despaired at the prospect of his father’s natural death due to old age (His father was nursing the ailing son all along). The court allowed him to discontinue treatment. The court distinguished the plaintiff's case from that of a suicidal adult by stating, "Unlike a person bent on suicide, the plaintiff sought no affirmative measures to terminate his life; he desired only to eliminate the artificial barriers standing between him and the natural processes of life and death that would otherwise ensue with someone in his physical condition."
In the Netherlands, nearly 10,000 people die by euthanasia every year at the hands of cooperative physicians. The Netherlands has developed criteria that must be met for an act of euthanasia to be considered medically and ethically acceptable. First, the patient's medical situation must be intolerable, with no prospect for improvement. Second, the patient must be rational and must voluntarily and repeatedly request euthanasia of the physician. Third, the patient must be fully informed of the procedures and consequences. Lastly, there must be no other means of relieving the suffering, and two physicians must concur with the request. Although most physicians do not openly embrace the Dutch position, the silent practice of passive and active euthanasia will continue in the health care delivery system. Whatever attitudes society may develop toward assisted suicide or euthanasia, individual physicians will decide for themselves whether to provide suicide assistance or practice euthanasia.

The old justifications
There are again no universally accepted norms to justify it. On the contrary, the opinion that euthanasia is morally permissible is traceable to Socrates, Plato, and the Stoics. It is rejected in traditional Christian belief, chiefly because it is thought to contravene the prohibition of murder in the Ten Commandments. The organized movement for legalization of euthanasia commenced in England in 1935, when C. Killick Millard founded the Voluntary Euthanasia Legalisation Society (later called the Euthanasia Society). The society's bill was defeated in the House of Lords in 1936, as was a motion on the same subject in the House of Lords in 1950. In the United States the Euthanasia Society of America was founded in 1938. The first countries to legalize euthanasia were the Netherlands in 2001 and Belgium in 2002. In 1997 Oregon became the first state in the United States to decriminalize physician-assisted suicide through the Death with Dignity Act. Opponents of the controversial law had it overturned by court process. State of Washington's ban on assisted suicide(1994), was challenged as violative of the U.S. Constitution Amendment XIV on assisted suicide. The US Supreme Court however held in Washington v Harold Glucksberg (1997) that the Act was prima facie rationally related to a legitimate government interest and did not violate the Due Process Clause of the Fourteenth Amendment. The court reasoned that State legislation sought to preserve human life and also uphold the integrity and ethics of the medical profession. Additionally, Washington's statute sought to protect vulnerable groups, such as the poor, elderly, and disabled from abuse, neglect, and mistakes. Finally, the Court held that Washington's ban on assisted-suicide effectively prevented a broader license to voluntary or involuntary euthanasia.

Limitation to the sanctity of life principle
A competent patient cannot be compelled to undergo life saving treatment. In Airedale NHS Trust v Bland [1993], a case decided in U.K, Tony Bland's awful predicament had been widely reported. He was a young supporter of Liverpool Football Club who was caught in the Hillsborough crush which reduced him to a persistent vegetative state. The hospital applied for a declaration that it might lawfully discontinue all life-sustaining treatment and medical support measures designed to keep him alive in that state, including the termination of ventilation, nutrition and hydration by artificial means. That declaration was granted. Under the double effect principle, medical treatment may be administered to a terminally ill person to alleviate pain although it may hasten death. This principle entails a distinction between foreseeing an outcome and intending it. The case of Bland involved a further step of the House of Lords holding that under judicial control it was permissible to cease to take active steps to keep a person in a permanent vegetative state alive. It involved the notion of a distinction between doctors killing a patient and letting him die. These are at present the only inroads on the sanctity of life principle in English law. The Dutch courts, relying on the principle of "noodtoestand" (necessity), relaxed the prohibition on euthanasia and assisted suicide. The perceived necessity was the conflict between a doctor's respect for life and his duty to assist a patient suffering unbearably. The Dutch courts reasoned that it is necessary to be guided by responsible medical opinion. It is important to note that this line of decisions is not based on the European Convention. The Parliament of the Netherlands has enacted a statute, viz the Termination of Life for Request and Assisted Suicide (Review Procedures) Act 2001, which formalises a relaxation of the law prohibiting euthanasia and assisted suicide previously by judicial decision. Both the case law and the 2001 statute only permit euthanasia and doctor assisted suicide under a regime of ascertaining the wishes of the patient and with considerable medical supervision. However, the UN Human Rights Committee in a report dated 27 August 2001 expressed serious concerns about the operation of the system.

The unending, inconclusive debate
The subject of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal Declaration of Human Rights in 1948, which was followed two years later by the European Convention on Human Rights and Freedoms (1950). The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The opposing views within the disability community on the issue of assisted suicide share a common ground—a recognition of the danger of discrimination to the interests and fair treatment of people with disabilities. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless.
We are prepared to wink at medical interventions such as that which assists birth to take place to a woman in Haryana well past her 70, after menopause (TOI, 8th Dec 2008). A transsexual, Beatie at Los Angeles who underwent a sex change surgery from female to male retained his/her ovaries, lived like a man outwardly and begot a child (TOI, 5th Jul 208). If you say that in birth lies happiness and hence such medical interventions against nature is possible, there are some who suggest that in death dies freedom from suffering. Hear Donne say: Death be not proud, though some have called thee/ Mighty and dreadful, for, thou art not so/…/One short sleepe past, wee wake eternally/ And death shall be no more; death, thou shalt die.

Magic remedies and Indian law

2008-12-02T17:16:00.000-08:00

A public interest litigation in Punjab & Haryana High Court is reported to have been filed ‘to curb the menace of tantriks promising magical cures within minutes’ through advertisements in newspapers, television channels and even web sites (The Tribune dated 19th Nov ’08). Are there laws that regulate or prohibit such advertisements? Do such types of objectionable advertisements abound elsewhere outside India?

The Indian Medical Council Act, 1956 establishes the Medical Council of India (MCI). The Council has notified Indian Medical Council (Professional Conduct, and Ethics) Regulations in 2002 which mandates observance of the code of conduct on the pain of suspension or removal of the licence to practice for the breach of its regulations. They include the practice against promising magic remedies and advertisements. To the extent to which the Regulations are directed against practitioners of only the allopaths, it is obvious that we have to look elsewhere for the practitioners of other systems of medicine. The Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) established by the Ministry of Health & Family Welfare in March, 1995 gives no similar guidelines.

It is not merely unethical to prescribe a magic remedy; it is illegal under the Drugs and Magic Remedies (Objectionable Advertisements) Act passed as early as in 1954. The Act proclaims its avowed object to be to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. Magic remedy includes ‘a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals’. Even machines of science or of electric treatment whose magically curative properties are advertised by a person as capable of increasing the sexual virility of a patient is prohibited under the Act. They will be treated as articles intended to influence the organic function of the human body which is prohibited under the Act. A person made an advertisement under the following terms:

New Life, New vigour, New Spirit, New Wave. If you want a cure, see to-day well known world-famous experienced registered Physician. Special diseases such as oldness in youth, all sorts of defects in nerves, or weakness, laziness are treated with full responsibility, with new methods, new machines of science and electric treatment and are cured permanently.

Supreme court held in Zaffar Mohammad alias Z.M. Sarkar v The State of West Bengal (1976) that the advertiser was liable for conviction. No person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for (a) the procurement of miscarriage in women or prevention of conception in women; or (b) the maintenance or improvements of the capacity of human beings for sexual pleasure; or (c) the correction of menstrual disorder in women; or (d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition in a wide classes of diseases that include cancer, sterility in women, leukoderma and leprosy. A person guilty of the act prohibited shall be punishable after a trial by a Magistrate of First Class (a) in the case of a first conviction, with imprisonment which may extend to six months, or with fine, or with both; (b) in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both.

The most popular advertisements for cosmetic surgery are posted in popular websites through internet. They offer privacy of one’s own reading room from where the access to medical information may be picked up through a personal computer. Internet auction sites abound with revolting, weird advertisement for sale of human organs that range between testicles to nude autopsy photos of murdered children (Business Week E.Biz, Nov. 20, 2000). Shocking medical items that have been sold or at least offered for bidding on eBay include organs available for transplanting, drug-free urine, and a male testicle. In one instance, a seller offered a "fully functional kidney for sale" on eBay. (The Top Ten Bizarre Online Auctions .) Bidding on the kidney went as high as $ 5.7 million before officials at eBay shut down the auction. Another website auctioned off the ova and sperm of fashion models available for in vitro fertilization, boasted the auction as "Darwin's Natural Selection at its very best," started the bidding at $ 15,000 and received a twenty percent service fee for the sale of the reproductive cells (Telegraph Herald, Oct. 24, 1999, discussing the website www.ronsangels.com).

Though much less widespread than medical information or medical advice websites, several websites have auctioned different types of surgeries. For example, the largest private hospital group in South Africa, Netcare, has auctioned off surgeries such as breast reductions, skin resurfacing and liposuctions, where the "winner" received a recovery stay at a plush Johannesburg hotel (The auction was conducted on www.bidorbuy.co.za). Wellesley College even auctioned off a vasectomy as part of a fundraiser (The Washington Times, Aug. 4, 2000).
The Supreme Court of the United States has held that any governmental attempts to regulate or prohibit information posted on websites that is not defamatory may violate constitutional free speech protections (Reno v. ACLU, 117 S. Ct. 2329 (1997)), and the Communications Decency Act immunizes from liability websites that merely host or sponsor information provided by others. But in India, with The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 in place, it shall be possible to proscribe and take penal action against objectionable advertisements that guarantee magic remedies. But how many know that such an enactment exists?

Surrogacy, the new Indian scene

2008-12-02T17:08:00.000-08:00

Times of India, dated 18th November 2008 reports that an Israeli gay couple Yonatan and Omer Gher had a child, which they named as Evyatar meaning ‘more fathers’ in Hebrew, through a surrogate mother at a fertility clinic at Bandra, Mumbai. Thankfully, the child found itself soon after its arrival the felicity of being cradled in the hands of two fathers but Baby Manji Yamada delivered at Anand, Gujarat few months earlier was not as lucky initially. The surrogate mother had abandoned the child at the hospital, the Japanese couple that hired the surrogate mother divorced and the grandmother flew in to India to take the child for her son after a delay of few months when the Supreme Court cleared the decks for its transportation to Japan, however on an Indian passport.

Surrogacy is normally referred in the context of a married couple (i) who have had multiple miscarriages; or (ii) who have failed repeated IVF attempts for unexplained reasons, seeking the help of a willing woman to bear the child. It is never an issue of convenience of woman unwilling to bear the burden of pregnancy and looking for a proxy. It is a painful decision, however willingly undertaken to take the responsibility of proud parenthood. With same sex marriages gaining social and legal approbation in many countries, gay couples seeking for surrogate mother to bear the child has become another distinct possibility. The media reports would have us believe that India is the preferred destination for surrogate mode of procreation; not because the laws afford a favorable climate but there exists no law to regulate this procedure.

The procedure
The essence of surrogacy is that eggs are recovered from the ovaries of the 'commissioning mother' after in vitro fertilisation (IVF) stimulation. They are inseminated and fertilised in a laboratory and then a number of embryos are placed in the uterus of a 'surrogate mother' who has agreed to carry the child until birth and then surrender it to those with whom she had entered into an agreement. Traditionally a surrogate mother is inseminated with the male client’s sperms so that the child would share some genetic relationship with the couple. Now it is possible to use both donated egg and sperm or an embryo from persons outside the bond of marriage for the couple seeking a child.
The childless couple may have to enter into surrogacy agreement where all the terms requiring consent of the surrogate mother to bear the child, the medical procedures of artificial insemination, the right to be reimbursed in the reasonable expenses for carrying the child to full term and willingness to hand over in adoption the child that is born to the contracting couple, presumption relating to the parentage of the child. The inadequacies of law are glaring at every stage.

Dilemma of entering birth particulars
If a child is born to a surrogate mother by artificial insemination using the semen of a person not her husband, the issue of paternity may be a source of social predicament as to whose name shall be entered in the Birth Certificates. The Indian Evidence Act makes a conclusive presumption that a child that is born to a woman and a man during the subsistence of marriage as the child of the man. In a surrogacy arrangement, the mother is not the mother that bears and gives birth to the child and the father is not the man that is married to the woman that gives birth to the child. This statutory presumption will have to undergo a change to register the actual paternity. Adoption is resorted only if the biological (natural) parent and the adoptive parent are different persons. In surrogate parenthood, a biological parent may be the hiring parent and the person actual giving birth to the child may not be the biological parent. If the couples seeking a surrogate mother are foreigners, there is further problem of taking an Indian passport for the child and after taking the child out of the country with the permission of the Court and changing the nationality of the child later at the country of the commissioning parent(s), if Baby Manji Yamada’s case is any legal precedent.

Australian law
In Australia, S. 6 of the Artificial Conception Act 1984 provides that a woman who becomes pregnant by means of (a) artificial insemination; or (b) the procedure of implanting in her womb an ovum (whether or not produced by her) fertilised outside her body, any man (not being, in the case of a married woman, her husband) who produced semen used for the artificial insemination or the procedure shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy. (2) The presumption of law that arises by virtue of subs(1) is irrebuttable.

No guidelines for lawful expenses for bearing the child
There is again no law or guideline to suggest what shall be the lawful expenses that could be paid to a surrogate mother. For the usually uneducated Indian females who are involved in surrogacy business, it is a respectable way to earn a living and support themselves and their family. But a lot of surrogate mothers in India prefer to live incognito during this phase because of non-acceptance by the society in general. Also most surrogate mothers in India are reported to belong from the rural background where the lure of money is stronger than the wealthy metros. In the US, surrogate mothers are typically paid $15,000, and agencies claim another $30,000.According to Christian Science Monitory (issue, April 3, 2006)in India, the entire costs range from US $2,500 to $6,500. The industry is estimated to be valued at $449 million, and the number of cases of surrogacy is believed to have doubled in the recent years based on newspaper classifieds and inquiries at clinics. There are also no official figures on the number of surrogate births in India, but it estimated that about 100 to 150 occur annually in India, with the number of failed surrogacy attempts estimated to be much higher. The hard numbers remain elusive, partly because the practice is defused among small towns like Anand, Gujarat. What constitutes lawful expenses for bearing the child and what amounts to financial allurement or financial recompense for bearing the child are difficult to gauge.

UK law
In UK, under section 30(7) of Human Fertilisation and Embryology Act 1990 (the 1990 Act), no money or other benefit, other than for expenses reasonably incurred, could be given or received in relation to surrogacy, unless such payment had been authorised by the court. The Family Division of the English Court said in a 2002 case that the amount paid towards loss of earnings (when the surrogate mother was on state income support, which fact was not disclosed) to be apart from expenses for carrying the child, would be against law. Costs of surrogacy pursuant to a surrogacy agreement which an English woman had entered into with a Californian, who was to bear the child, was held to be not legitimate and opposed to public policy in another case before by the Queen’s Bench (2000), where the former complained that her ability to bear children had been negated by a medical practitioner treating her negligently and hence the compensation against the medical practitioner for medical malpractice should include ‘commercial surrogacy costs’.

Psychological issues
The child born through the surrogate mother is normally expected to hand over to the couples on whose behalf the child is conceived. A characteristic which distinguishes surrogate parentage from situations in which conventional adoption takes place, and bears directly on what is to be perceived as the welfare and interests of the child, is that the child's existence is the result of an intended chain of events in which adoption is a contemplated step even at the stage of its conception. In an Australian case of Re A and B (2000) before the Supreme Court of New South Wales, an arrangement had been made with the sister of the wife of the donor of the sperm for surrogacy. After the child was born and when an application had been moved by the couple for taking the child in adoption from the birth mother through an application in Court, it was opposed by the NSW Department of Community Services. The department raised a number of arguments: the public policy of discouraging surrogacy arrangements; the potentially adverse emotional impacts of the child's conception and birth; the inability of the child to be consulted at this stage; the possibility of the commissioning parents deciding to observe secrecy about the child's origins; and the disturbance of ordinary family relationships if the birth mother became the child's aunt. The department suggested various alternative regimes of guardianship and parenting orders, which would still leave open the possibility of an adoption order at a later stage. The Supreme Court of New South Wales took notice of the following circumstances: The applicants took part in pre-natal appointments and pre-natal classes. They took a parental role towards the child from the time of her birth onwards. They were both present throughout the birth mother's labour, shared the same room at the hospital and participated in all decisions by paediatric staff. All remained at the hospital for 5 days and were discharged together. The child then went home with the proposed adopting parents and had been in their continuous care since then. The applicants did not plan to extend their family further. The birth mother's conduct had been appropriate for an aunt, well known to the child while having a relationship and a family of her own, and living in a distant place. There was also happy communication between the child and her half-sister. Overall relationships were happy and appropriate for two families where the wives are sisters and their daughters were cousins, and the sisters lived independent lives. It accordingly, rejected the objection and while granting the adoption order.

Existing legal framework, fragile
Surrogacy in India for parents living in foreign countries but desiring children through Indian mothers is outsourcing practice at its worst. It is not always gratuitous altruism that is at work for a woman in India to make the choice of surrogate motherhood. There is a greater need to prepare a sound legal framework, by amending existing laws relating to birth registration, evidence, embryo transplantation, adoption and guardianship. The already over-burdened courts will have to devise new ways of educating and sensitizing judges to handle legal and psychological issues of prevention of exploitation of surrogate mothers on account of indigency , deciding on suitability of adoption and guardianship of intending parents. All this is not to say that by providing for suitable laws, all the issues are fully addressed. The failure of the Organ Transplantation Act to check racketeering in trading of organs, especially in kidney donations ought to make us extra circumspect in dealing with the present requirements as merely a legislative exercise waiting to be solved through laws. Doctors, psychologists and social workers will have to be actively involved to provide unction to keep this cogwheel moving to secure informed public opinion and arrest scope for exploitation and unethical practices.

Human Rights in Madras High Court

2008-10-16T12:25:00.000-07:00

1. Human rights, as being fundamental to life and civil liberties, as guaranteed through Constitution and other laws, when put through the prism of Court machinery obtain a refraction of diverse hues of reliefs for different categories of persons. The scenario unfolds poignantly more in the context of denial of rights and liberties than their positive assertions. The courts, they are, who invariably play the vital link between rights and their enforcement. If we have come by a situation in Tamil Nadu where human rights transgressions are not alarmingly high but minimal, if we may say modestly, we need to deduce that it is in no small measure due to the role of our courts, more particularly the Madras High Court.
2. The triad of fundamental freedoms of expression, movement and association found the first affirmation in A.K.Gopalan[1] and V.G.Row, the names that are etched into constitutional history via the Madras High Court. His challenge to preventive detention law only partially succeeded when the Supreme Court[2] ruled that detention law was part of law established under the constitution and hence the reasonable restriction to freedom of movement under Art 19 was satisfied so long as there was a law to deny the freedom. The unanimous opinion was however that the provisions of section 14 of the impugned Act in so far as it prohibited the disclosure of the grounds contravened the requirements of Art 22(5) and hence invalid. A.K.Gopalan was not to rest with order of detention when he challenged the detention on the ground that the period of detention had not been indicated and consequently was ordered to be released on 19.5.50. Just a few days earlier, the Supreme Court had handed down the judgment upholding the Preventive Detention Law and A.K.Gopalan was arrested when he barely came out of the Court to go to meet with his lawyer. This was again challenged by yet another petition for Habeas Corpus. A Division bench held that the order of arrest was being made only to flout the earlier order of release made by the Court. The decision reported In re A.K.Gopalan[3] was a telling reminder to the establishment that mala fides in action in administering the order of detention would be subject to judicial review, when it held the order of detention to be vitiated. In the first order was Gopalan's plea for his freedom of expression and the second order was his right to freedom of movement which was sought to be curtailed by an order of detention. The third ruling relating to freedom of association came too soon through the Full Bench decision of the Court in V.G.Row v State of Madras[4]. The declaration of People’s Education Society as an unlawful association under the provisions of the Criminal Law Amendment Act was challenged by the General Secretary who was also a Barrister at Law. The court inter alia held that the inadequacy of publication of the notification, the omission to fix a time limit for the government to send the papers to the Advisory Board or for Board to make its report, the denial to the aggrieved person of the right to appear in person or through counsel before the Board were features which rendered the Amendment Act unconstitutional. This view was approved by the Supreme Court in the State of Madras v V.G. Row[5].
3. Temple entry of Harijans was an important landmark in the human rights dossier. Social activists like Vaidyanatha Iyer and E.V.Ramasamy had distinct roles to play in breaking the scourge of untouchability and recognise the right of Harijans to enter into temples. A denomination of temple at the shrine of Sri Krishna in Udipi administered by His Holiness Sri Viswothama Thirtha Swamiar of Sode Mutt, Udipi pleaded that the constitutional guarantees as religious denomination[6] gave it the power to administer and manage its own affairs, which out-rode the provisions of Madras Temple Entry Authorisation Act 5 of 1947 and hence would not fetter its right to prevent anyone community of persons from entering upon the temple. The Division Bench rejected the plea in its decision reported in 1956 1 MLJ 125 when it said,
“By reading Articles 25 and 26 of the Constitution together a question of temple entry is not involved in Article 25(b), but it is considered only in Article 25(2)(b) which was an exception to Article 25(1) which guarantees the right to any citizen freely to profess, practise and propagate his religion. This freedom of practising religion can be restricted by the Legislature when it infringes the rights of all classes of Hindus to worship freely in a Hindu Religious Institutions of a public character. The power of the State to make a law for throwing open Hindu religious institutions of a public character as contemplated in Article 25(2) (b) of the Constitution is not in any way circumscribed, restricted or whittled down by the provisions of Article 26(b) giving a religious denomination the right to manage its own affairs in matters of religion. The prohibition of untouchables from entering into a denominational temples is not a right of that denomination to manage its own affairs in matters of religion.”
A recent decision of the Division Bench in Thol Thirumavalavan v Commissioner HR & CE[7] quashed the direction of the Executive Magistrate ordering of closure of a Mariamman temple near Salem town purporting to maintain law and order when the entry of SC/ST was sought to be prevented by the management of the temple and the Court referring to the provision of Tamil Nadu Entry Abolition Act 1947 directed the authorities to open the temple and give protection to worship particularly persons belonging to SC/ST,.
4. The Protection to Scheduled Castes/Scheduled Tribes by enacting S.C. & S.T. (Prevention of Atrocities) Act was tested for its potency by the High Court, not through its prerogative writs, but under an expansive interpretation of Section 482 Cr.P.C. In a string of decisions starting with Mariammal v State of Tamil Nadu and others [8] that awarded compensation of Rs.1.5 lacs to the victims family for death in custody to C.Vijaya v State of Tamil Nadu and others[9] and In Alagarsamy v State of Tamil Nadu[10], the Court had in each case directed further investigations to be made and fresh charge sheets to be laid apart from registering the cases merely under the provisions of the Indian Penal Code by reminding the Magistrates that after perusal of the police report, if they find that there are sufficient materials available on record for the offence committed under the SC & ST Act, they shall commit the same to Special Courts to have trial for the offences under the IPC and for offences under the SC & ST Act.
5. It is not merely a dignity of a person in life that would call for protection of human rights, but there shall be a dignity also in death. So holding, the Division bench held that there can be no declaration before the Civil Court that anyone community was exclusively entitled to use any particular piece of property for burial and cremation and for permanent injunction restraining the persons belonging to Schedule Castes from using the property for that purpose. The Bench ruled in Souriar and others v N.Shanmugasundaram Pillai and another[11] that “Section 4(iv) of the Untouchability (Offences) Act read with Sections 13 and 16 thereof leaves no room for doubt that no injunction could be given in such matters.” This decision paved way for a summary rejection of a plaint in a ruling under Article 227 of the Constitution, when the suit was merely at the stage of issuance of summons when the High Court in Rajendran v [12] , where the Court held that institution of suit to prohibit Harijans from taking their dead bodies in a particular way amounted to practicing untouchability banished under Article 17 of the Constitution and threw out the plaint, even before calling upon the defendant to file a written statement.
The claim of a poor person to secure the body of his son who was a labourer in a rubber plantation in Malaysia was upheld by a direction of the Madurai Bench of Madras High Court in S.Sethu Raja v Chief Secretary, Government of Tamil Nadu and others[13]. The High Court had directed the Indian Embassy at Malaysia to intercede to secure the body from the mortuary and arrange for dispatch to India at the cost of the government. The Court said that the provisions of International conventions which elucidate and effectuate fundamental rights could be relied upon by the Courts in all their facets and could be enforced as such. It went on to observe that the right to life guaranteed under Article 21 of the Constitution includes the right to live with human dignity and the same should also be extended to a person who is dead and the right to accord a decent burial or cremation to the dead body of a person, should be taken to be part of the right to such humanity.
6. On an occasion of an en mass detention of thousands of political activists, right to liberty cannot be whittled on issues of procedure and the latter shall be subsumed in the norms of substantive justice. In G.K.Moopanar v State of Tamil Nadu[14] a Division Bench of the Court said that it would not be necessary to file individual bail applications for thousands of persons belonging to a political party when they were taken into custody alleging unlawful assembly. The Court set them at liberty on a writ petition filed under Article 226 of the Constitution as Public interest litigation. It said that the existence of an alternative remedy by means of bail applications did not take away the jurisdiction of the Court in an extraordinary situation where thousands of persons had been kept in confinement and adverting to Section 57, 167(1) and 167(2) of the Criminal procedure Code, the Bench reminded that it was the duty of a Magistrate while remanding persons to custody or extending remand to be satisfied that there are sufficient materials before him for exercising such a power. The court found that there was no justification for keeping the other accused in custody after having released the leaders of the agitation and it really amounted to hostile discrimination under Article 14 of the Constitution. Holding that courts should not mechanically pass orders of remand without verifying the entries in the diaries and satisfying themselves about the real necessity for such remand or extension of remand, the court while entertaining writ petitions for habeas corpus had laid down the safeguards to be followed in Elumalai v State of Tamil Nadu[15].
7. Can a person accused of an offence under the provisions of Prevention of Terrorism Act be released on bail within one year of detention? This question that fell for consideration in the case of P. Nedumaran v State[16] was that subsections (6) and (7) of Section 49 are a departure from the normal rule of presumption of innocence in favour of the accused and that bail applications could be entertained even before expiry of one year and in such cases the accused will have to prove that there is a prima facie case for acquittal instead of showing that there is no prima facie against him for conviction.
8. Prisoners’ rights have obtained systematic consideration by the High Court in various dimensions. M.Karunanidhi and others v State of Tamil Nadu[17] had struck down the proviso to Rule 541(1) that in respect of an accused and under-trial prisoners under T.A.D.A. Act, only legal adviser and close relatives shall be allowed to interview them. It excluded a person claiming to be a friend or other relative who was not a spouse or a sibling or a son or daughter of the detenu from interviewing the person. This provision was sought to be resurrected by fresh amendment to the prison rules during the rule under the stewardship of the very same person as a Chef Minister of the State who was instrumental for the decision and it was again struck down in Nedumaran v State[18].
9. The provisions relating to termination of pregnancy under the Medical Termination of Pregnancy Act obtained a rare show of touching concern for pro life and primacy to patient autonomy, when a girl aged 15 years opted to retain the foetus in spite of the father who was a guardian sought for medical termination of pregnancy in V.Krishnan v V.Rajan[19] . The Division Bench has discussed the abortion issue from the view point of Christianity, Islam and Hinduism. Incidentally, but more importantly, considered this right as upholding the woman’s autonomy over her body even during her minority. In this case, the fundamental right of a sixteen year old girl to keep the child in her womb until safe delivery was seen in the context of a request of the guardian father (mother having died in the infancy of the girl) to secure medical termination of the pregnancy on the ground that teenage pregnancy will lead to complications. The court found that the girl was fully aware of the consequences of pregnancy and child birth and she was categorical that the pregnancy should not be disturbed. The court on an analysis of the medical termination of Pregnancy Act held:
“The entire scheme of the Act shows that the provisions thereof can be invoked only by the pregnant woman. If she happens to be a minor, the registered medical practitioner, who is approached for terminating the pregnancy, must take care to get the consent of the guardian of the minor in writing. Sub.s.(4) (a) can never be understood as dispensing with the consent of the pregnant woman if she is below 18 years of age. The provision is only intended to help the registered medical practitioner to take into account all the relevant facts and circumstances as set out in S.3 so as to decide whether the continuance of the pregnancy will involve any of the risks mentioned in the Section”.
10. But, see how the pendulum swung back to give the primacy of decision making for the guardian of a ward. A child’s right to be imparted education in a language of its choice could not be taken away by the State, said the High Court, by compelling the person to be educated only in the mother tongue for, that meant interfering with a guardian’s right to decide what was appropriate for his child. The Full Bench of the Court was striking down G.O.Ms.No.324 issued by the Government in Tamil Nadu Tamil and English Schools Association, Madras v State of Tamil Nadu[20] prescribing that Tamil or mother tongue shall alone be the compulsory medium of instruction and termed the G.O. as irrational and arbitrary and thus violative of Article 14 of the Constitution of India.
11. The decision in Ramachandran v The Inspector of Police[21] ruled that a juvenile cannot be a ‘Goonda’ to be taken in preventive detention. This proposition was taken to its logical extension in Minor Prabhakaran represented by maternal aunt Nagammal v State of Tamil Nadu[22] when the court said that the non-obtante clause under TADA could not operate to eclipse the applicability of Juvenile Justice Act for a person who was aged 15 and to be visited with notice of detention under the former Act. The court said that provisions of the Juvenile Justice Act over-rode TADA, and it was a functional imperative to make way for such an interpretation, whenever the issue concerned the case of a juvenile , ‘to avoid absurdity and injustice by judicial servitude to interpretative literality’.
12. The court responded to the anguished cry of a woman who had been deprived of her liberty by an illegal arrest and detention and was subsequently dispossessed from the house in which she had been residing. In Meera Nireshwalia v State of Tamil Nadu & others[23], the court held :
“A writ court’s jurisdiction in these matters is more ex debito justitiae than as a rule of law as courts as sentinels of the peoples’ rights, cannot close their eyes to matters which strictly do not fall within the realm of law, or in cases where law is thrown to winds and those who are expected to obey, observe and follow law, decide to violate it’.
The court directed an inquiry to be instituted into the conduct of the police officers and also directed the estranged husband to provide alternative accommodation to the petitioner. Again, the Court sounded with unique passion a stiff warning against the establishment of law enforcers for the cause of the so called mentally ill persons, when it was dealing with a haebes corpus petition in Nethalie Vanderbyranghe v State of Tamil Nadu[24], a French tourist in India who had been rounded up by the police along with 100 and odd other persons as ‘mentally ill’, certificates were obtained from doctors on perfunctory or nil medical examination, and after securing reception orders from judicial magistrate who passed such orders mechanically, lodged them all in a mental hospital. After directing the detenu to be set at liberty, the court asked:
“Mentally ill persons are not criminals; they have not committed any offence. Thus, is it necessary for their protection that action should commence with a first information report? The law makers should seriously consider an alternative procedure by which reception orders can be issued without a police complaint”.
13. The ambit of Section 17 of the Protection of Women from Domestic Violence Act, 2005 was examined by the court in Vandana v T. Srikanth[25]. The Act being relatively new, a narrow interpretation of the provisions would defeat the object of the Act. By a proactive interpretation, the Court held that it is not necessary for a woman to establish her physical act of living in the shared household either at the time of institution of the proceedings or in the past. As long as there is a domestic relationship, there is a deemed right to live in that house and such a household becomes a shared household and a relief of injunction not to disturb her right of entry.
A right to maintenance claimed under section 20 of the Act was maintainable, said the decision in M.Palani v Meenakshi[26] on the basis of a “domestic relationship” established through consensual sex. It said, referring to the definition 2(f),
“The above referred provision makes it clear that any woman who is or has been in a domestic relationship with the respondent can make a complaint under the provisions of the said Act. Further the "domestic relationship" thus defined as a relationship between two persons, who live or have, at any point of time, lived together. The provision does not say that they should have lived together for a particular period.”
It said that the Family Court’s power to award maintenance existed independently of any report or intervention of Protection Officer.
14. The law against disability discrimination obtained a liberal interpretation through the decision in Muthu v Tamil Nadu State Transport Corporation[27] where the Court said that the term ‘disability’ used in Section 47 could draw support not only in respect of the definition ‘disablities’ as contained in Section 2(i) of the Act, but will encompass such other disabilities which disable a person from performing the work which he held immediately, prior to acquisition of such disability and thereby entitled him to avail the benefits conferred under the said provision for having acquired such a disability. Responding to a prayer against the government and HR & CE Department to make facilities for persons with loco-motor disabilities to access places of worship, viz., temples in Tamil Nadu by appropriate infrastructure in Meenakshi and another v State of Tamil Nadu and another[28], the Commissioner of the department issued circulars to all the subordinates to provide wheel chairs to physically disabled devotees with an attender and give priority for darshan.
15. The increasing tendency to convert civil disputes in to criminal cases to harass and embarrass debtors in difficulties and particularly of financial institutions’ and banks’ attempts to arm-twist debtors to obtain unfair bargain came for severe flak from the High Court In P.Ashok Kumar v Inspector of Police (Crimes)[29] . The Court adversely commented on bank's role as modernised version of Shylock by resorting to complaints through police resulting in direction for further investigation through Magistrates and causing their arrest in the course of such investigation. The Court said,
"Even before talking about the approach of the police, judicial propriety demands that this Court should initiate suitable action against those judicial officers, but (who) knowingly collude with the complainant/banks to grant such orders. “
The Court did not leave the matter without directing the Registrar, Vigilance to collect statistics regarding private complaints regarding credit cards, personal loans, housing loans, higher purchase loans, default in payment of installments, complaints under Section 138 NI Act etc., which involved disputes purely of civil nature, where arrests and investigation by police were ordered under Section 156 (iii) Cr.P.C. by judicial magistrates all over Tamil Nadu.
16. The right to claim compensation against the state for custodial violence and for victims in criminal cases is firmly established now. Not limiting it to State’s vicarious liability for actions of its subordinates but also for failure to protect law and order, the new approach marks the paradigm shift, as reflected in the judgment in K. Venkataraman and another v State of Tamil Nadu & others[30]. The court was dealing with a writ petition for compensation filed by two advocates whose property had been destroyed by a riotous mob. The mob that was protesting against the inaction of the police in failing to arrest the accused in a murder case attacked the house of the petitioners as the first petitioner had appeared in other cases as counsel for the suspects. Holding that compensation could be claimed under Article 226 even for loss of property, the court held that where the damage caused was not on account of any positive action taken by the State while maintaining law and order but on account of culpable inaction on the part of the police in not taking adequate safety measures, the doctrine of exercise of sovereign power was not applicable and the State was liable to pay compensation to the victim. The court observed that the deletion of the article relating to fundamental right to property made no difference as the right to property was constitutional right under Article 300A. The Division Bench in this case was reiterating the law set out by another Judge of the court in R. Gandhi and others v Union of India & another[31] where compensation was directed to be paid for damage to property of Sikh community in the violence that rocked Coimbatore after the assassination of Smt. Indira Gandhi.
Do not assume that in a criminal case only the person found guilty could be directed to give compensation. A bid to quell communal frenzy in a southern district of Tamil Nadu by Police failed when the mob out-numbered the police. In the orgy of violence and mayhem, a police constable on duty was killed. The criminal case against the village leaders who took active part in the mob violence were acquitted in appeal by the Madurai bench of the Madras High Court in Vijayan and others v State of Tamil Nadu[32], but the court in novel but admirable gesture in its judgment pleaded for payment of compensation of Rs.1,00,000 to be paid to the victim’s family by the village community as a whole through their village leader.
17. The bar members have also played significant role in protecting the human rights causes. A large group of lawyers had sought for cancellation of bail that had been granted in an appeal against conviction for murder of dalits in caste rivalry but the High Court had originally rejected the right of lawyer to approach the Court for cancellation of bail in public interest. The Supreme Court intervened to hold in P.Ratnam v State[33] that the High Court had suo motu power to cancel bail and cause arrest that had earlier been released on bail and such a power should have been exercised when the lawyers had sought for cancellation of bail. Chandru v State of Tamil Nadu[34] came close on heels to Olga Tellis dispensation of the Supreme Court providing for alternative accommodation for pavement dwellers but the former went a step more in quoting the Slum clearance’ own motto, God revealeth in the smile of the poor and exhorting the Slum Clearance Board to implement the scheme of providing housing to the displaced pavement dwellers.
18. There is nothing to be alarmed about the fact that human rights issues are talked about mostly by political dissenters, extremists’ groups, social non-conformists, weaklings, goondas and the most disadvantaged. Democracy is strong when dissent is not merely tolerated but respected. Equality is better ensured when the less endowed is not slighted but allowed to grow. Quality of life is more meaningful when the worst criminal is recognised as a worthy son of god waiting to be reformed. Human rights protected through court process by the administration of rule of law are the surest gift to universal brotherhood and prosperity.

[1] The irrepressible communist leader met with conviction for denouncing the police as "good for nothing persons and idiots" under the Police (Incitement to Disaffection) Act 1922, (1947)2 MLJ 376. On 23rd April 1948 he was detained by an Order of the District Magistrate, Malabar, purporting to be under 8. 2 (l) (a), Madras Maintenance of Public Order Act, 1947 (Madras Act I ] of 1947) in the Vellore Central Jail. The Order under Section 3 (l) (a) of Madras Act I [1] of 1947 had been passed by the District Magistrate on his alleged satisfaction that the detention of A. K. Gopalan was necessary for the maintenance of law and Order and Publics safety. At that time, he was already serving a sentence for the criminal case referred to above and hence the Madras High Court said in its decision dated 18.11.1948 (1949 Crl LJ 843) that the detention was illegal. He had brought another complaint that while he was under detention, the police was standing close to his lawyer, when he was giving him instructions. The High court said that Gopalan’s privacy was breached and ruled that a police officer could not be in the vicinity (AIR 1950 Mad 259).
[2] AIR1950SC27, 1950CriLJ1383, (1950)IIMLJ42(SC), [1950]1SCR88
[3] 1952 II MLJ 690
[4] AIR 1951 Madras 147
[5] AIR 1952 SC 196
[6] Commissioner, Hindu Religious Endowments vs. Shri Lakshmindra Thirtha Swamiar of Shirur Mutt AIR 1954 SC 282 guaranteed the denominational status to the temple. This decision affirmed the decision of the Madras High Court in Lakshmindra Theertha Swamiar vs. Commissioner, H.R. & C.E AIR 1952 Madras 613
[7] 2008 (3) TNLJ 545
[8] 1998 1 LW Crl.285)
[9] 1999 2 LW Crl.719
[10] 1999 3 CTC 464
[11] 1972 (2) MLJ 62
[12]
[13] 2007 (5) MLJ 404
[14] 1990 1 MLJ Criminal.228
[15] 1983 Law Weekly ( Crl) 121
[16] (2003) I MLJ (Crl) 332.
[17] 1995 MLJ Crl. 1
[18] 2001 4 CTC 549
[19] 1994 1 MLJ Cri.731
[20] 2000(2) MLJ 575
[21] 1994 Crl.L.J.3722
[22] WP 4511/2003 Manu TN/0347/2003
[23] 1990 WLR 313
[24] HCP 1041/2008 decided on 19.9.2008
[25] (2007) 6 MLJ 205
[26] AIR 2008 Mad 162
[27] 2006 (5) CTC 413
[28] W.P.7027 of 2006 decided on 7.7.2006
[29] 2008 2 TNLJ 235
[30] (2007) 2 MLJ 804
[31] AIR 1989 Mad 205
[32] (2008) 3 MLJ (CRL) 98
[33] 2000 (2) SCC 391
[34] (1985) 3 SCC 253

The abortion debate

2008-08-17T03:02:00.000-07:00

The recent reported dilemma
Haresh and Niketa Mehta had a reason to grieve. Scientific (medical) tests on Niketa showed that the child in her womb had serious congenital deformities. They did not want to bring to world a child that could have on its birth a congenital heart blockage and mal-positioned arteries. Mehtas’ doctor advised that the pregnancy could be terminated. The JJ Hospital panel which had said that the child could be born with severe incapacity made a volte face a week later to predict that the incapacitation could be a matter of ‘least chance’ (sic). The Bombay High Court said that it would not approve of the abortion. The couple was distraught and a couple of days later, a more composed Ms.Niketa was reported to have braced herself to be ready to fight the illness for the child. The Union Health Minister said that the matter required a serious debate. One more week passed. Nikita had a miscarriage. The child arrived dead and unfortunately now, the whole episode has come a full circle. The first task lies in identifying the underlying issues without getting judgmental.

When termination of pregnancy is permissible
Dr. Chandrasekar, a renowned demographer was also a clever Health Minister. He hoped to tackle the problem of population explosion through the medico-legal route. Unwanted pregnancy could be terminated legally he said, when the extant Penal law made it an offence. He piloted in the parliament the safe passage of the bill into an Act on 10th August 1971that was, the Medical Termination of Pregnancy Act 34 of 1971 ( called the MTP Act). The Act was intended to provide for the termination of certain pregnancies by registered Medical Practitioners (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is of the opinion, formed in good faith that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped(emphasis supplied). Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks (emphasis supplied), the opinion shall be of not less than two registered medical practitioners. The limitation of the period of gestation does not apply in a case where the termination of pregnancy is, in the opinion of a medical practitioner, who may not even have experience or training in gynaecology and obstetrics, immediately necessary to save the life of the pregnant woman. The Act lists two circumstances when there arise presumptions of anguish resulting in grave injury to the mental health to a woman on account of such unwanted pregnancy: (1) Where any pregnancy is alleged by the pregnant woman to have been caused by rape; (2) Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children.

Medical termination of pregnancy – the ethical angle
The MTP Act does not address any ethical issues, but in legal regimes that proscribe abortions, they stem from a moral stand point that medical termination of pregnancy results in causing death of a living- being. The fundamental question is what makes killing a human being wrong and then to consider whether these characteristics, whatever they might be, apply to the earliest stages of human life in the womb. Explanation that has roots in religion expounds the traditional Christian doctrines such as that all humans are made in the image of God or that all humans have an immortal soul. In India the objections to termination of medical pregnancies do not have strong religious overtones. Termination of pregnancy itself has not been a major obsession for the populous India. What we are witnessing today is the urban response to how a whole new generation of people perceives the problem.
Roe v Wade (1973) is the celebrated case that rocked the United States when the Supreme Court of USA decided, by a 7-2 majority, that an implied constitutional right to privacy, whether based on the Fourteenth Amendment's concept of personal liberty or in the Ninth Amendment's reservation of rights to the people, was sufficiently broad to encompass a woman's right to terminate her pregnancy. The court summarized its decision as follows:
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
In so doing, it delved into the history of abortion in Anglo-American criminal law and Justice Blackmun concluded that a right to abortion was consistent with that history. As early as the mid-thirteenth century the common law punished abortion after foetal formation as homicide. Foetal formation, the point at which the fetus assumed a recognizably human shape and was believed to be ensouled, was thought to occur some 40 days after conception. By the mid-seventeenth century abortion was prohibited as a "great misprision" or serious misdemeanor. By the early nineteenth-century at the latest the common law appears to have prohibited abortion only after "quickening." Quickening, which occurs between the 12th and the 20th week of pregnancy, is the point at which the mother first perceives fetal movement. The later common law may have chosen this point because it was the point at which unborn life was believed to begin or because it was the point at which it could be legally proved to have begun. It is this period that the Indian law recognizes. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the majority of the Supreme Court, led by Justices Souter, Kennedy and O'Connor, retained and reaffirmed the central holding in Roe but said that the Pennsylvania law that required notification of abortion to the husband to be invalid.

Legitimacy of abortion, elsewhere
The problem is not confined to the United States and extends to other Anglo-American jurisdictions where there is a legal right to an abortion. Canada is a prime example. In 1988, the Supreme Court of Canada affirmed a woman's right to abortion and struck down, as unconstitutional, provisions in the Criminal Code that regulated abortion. British law makes no distinction between abortions performed at any stage up to 24 weeks. Current German laws permit abortion after mandatory counseling and a three day waiting period. This scheme was a political compromise necessitated by the re-unification of Germany. Rather than criminalizing abortion, German law focuses on counseling, employment security, social welfare and financial support to persuade pregnant women to give birth to their children. In this way, German law successfully achieves some degree of protection for the unborn by obtaining voluntary recognition of personal responsibility and respect for the personhood of the unborn.

Medical termination of pregnancy of children in womb with defects
The most critical decisions are the ones when the child in the womb is diagnosed to have some mental or physical deformities when the mother decides to terminate the pregnancy. Not only can we then ask ourselves: Do we want a child? But with genetic information we can ask ourselves: Do we want this particular child? This reframes the nature of the parenting relationship, making our parenting conditional upon the child meeting certain criteria. The issue now swings from health concerns to avoiding disability. Within this understanding of disability, genetic technology then becomes a tool not for promoting community health but a mechanism of social control for avoiding the appearance of difference. Even apart from the point of view of health and avoidance of disability, modern notions of individual liberty of pregnant woman who believe that apart from them, no one else will have a right to decide about what she wishes to do with the foetus. In today's society, some pregnant women deny the biological fact that they are mothers until their baby is born. Late term abortion is justified as a form of self-defense to get rid of involuntary servitude and a form of slavery caused by pregnancy. Look at also the other end of the spectrum of a point of view that regards instances of partial-birth abortion performed on fetuses with chromosomal abnormalities under the guise of reducing suffering as threatening the best interests of the mother and infant. It suggests that an alternative for parents faced with the decision to terminate their pregnancy is perinatal hospice. Perinatal hospice recognizes the value of bringing these infants to term by treating them as beings conceived with a tangible future. This alternative is preferred because of post-termination psychological distress and because biblical teachings emphasize the dignity and worth of each foetus.

The Indian reality in the debate
Abortion in India does not always take the legal route. Native medicines and quacks control this practice to a large extent. Unwanted pregnancy is silently endured till the denouement is registered in the shape of dumping the child in the garbage bins or at the place of birth itself. If this scenario is perceived as a crude generalization, we need to be concerned about even a miniscule population that wants the legal route. We have to gradually pull the rest of the population into the vortex of such frame of thinking by placing confidence in the opinion of medical experts, with courts acting as ultimate arbiters. Does making possible the period of termination of pregnancy from 20 weeks to 24 weeks solve the problem? The traditional Hindu law has always recognized the child in the womb as a legal entity and even assigns to it a right to impeach a sale of ancestral property as invalid on its birth, on sufficient legal grounds. Abandon any religious view, if you like. Do we still have a homogenous answer? The answers depend on where you place the primacy for decision making. Should the mother decide because, she bears the child and the ‘patient autonomy’ is paramount? Should the doctor decide because she knows best about is safe for the pregnant woman? Does the science (that includes curative medicines) and technology (that includes all diagnostic tools) decide what is appropriate, because it gives you evidence of whether the foetus is ‘normal’ and if born, could be cured of deformity? Does religious calling lead you to belief that in His act of creation, the status of child with or without disability and the choice of person to parent such a child, there are certain divine dispensations that a human mind cannot fathom and hence one must accept any child as gift from God? Should the Court have the last word, as it is always the final arbiter of all matters that are contentious? Is there anything like a correct view point? Proving the merit of your point of view constitutes the debate.

Civil Disputes and Police interventions

2008-07-22T08:05:00.000-07:00

What is the face of Police that is familiar to you? Do you see it as the protector against wrong and a punctilious enforcer of law and order? Or, you have been exposed to only an ugly corrupt countenance of the police force and hence would want none of it for resolving your pressing problems with a brazen transgressor of law? The Hindu mythology assigns to Vishnu the role of a cosmic protector, who constantly participates in worldly affairs, ensuring that all is well. Outside the ring of Agamic pantheon of Hinduism, lies the rural tradition of worshipping grama devadai, which is called kaval deivam. Along with Karuppasamy or Muniswaran or Sudalai or the formless Nadukkal, you will find a stony police man also, with a long moustache but having a kind face. Worship is offered to the statue of police in so many villages. From a protector, police has unfortunately become a symbol of oppression and protector of the bully and the villainy rich. The more fearsome he looks the closer to reality he is.

Look at the scene of crimes in India. Most of them have property disputes as the genesis and to a lesser degree, are matrimonial disputes including infidelity or promiscuity. If the police are involved at the earliest stages of property disputes or matrimonial discord, there is a chance of abatement of factious differences and defusing fulminating volcano of conflicts. Police know their worth and the significant role that they could play. A trident could be a protective weapon, if it is wielded to protect but a veritable killer when it is brandished to offend. If the police receive a complaint of land dispute or matrimonial woes of demand of dowry or other forms of cruelty and act with responsibility, we would have half as fewer crimes, given the natural propensity of our folk to assign a kavalkaran (protector) status to the police. Pathetically, we have systematically degraded every institution that ought to protect us. It is now the proverbial fence eating up the crops.

You will find a petition to the police regarding property dispute will be referred to civil court without the police undertaking the investigation, when the aggressor is a bully who has taken good care of the police for his show of apathy. The complaint would go without being registered. When should the police intervene in property disputes and when should he refer the parties to seek for adjudication before civil courts? What type of complaints should be registered as FIR and when could the police receive the petitions with advice to resort to some other agency? When could the police resort to arrest after receiving the complaint and what circumstances would be just, not to indulge in arrest even though a complaint of commission of cognizable offence is made? Recently all these questions came to be raised before the Madras High Court when an application for anticipatory bail was presented by an accused apprehending arrest in a land dispute involving crores of rupees. The Court pulled up the city crime branch police for making pretenses of receiving complaints under the guise of inquiry but not registering cases. The Court noted that enquiry has a predictable course, when the police would initiate a conciliatory poser that would soon degrade to coercive katta panchayat.

What has brought us to this unseemly pass? Many of the decisions of the Supreme Court and the High Courts on the status of complaints and duty of registration of complaints go unnoticed. Dealing with section 154(1) of Cr.P.C. the Supreme Court said in Mohd Yousuff (2006) that registration of FIR involves only the process of entering the substance of information and in Ramesh Kumari (2006) it pointed out that genuineness or credibility of the information is not a condition precedent for registration of a case. In Lallan Choudhary (2006), the Court again said that when a complaint of cognizable offence is made, the police has not option but to register the case. In Upkar Singh(2004), the Court had earlier clarified that while registration of two complaints from the same party on the same occurrence could be bad as making possible improvements and deviation from truths, registration of complaint and counter complaint from rival parties relating to the same incident is not barred, it they would lead to unraveling the truth. In All India Institute of Medical Sciences Employees Union case (1996) and in Aleque Padamsee (2007) the Court has explained the modalities to be adopted as set out in Section 190 read with Section 200 of the Code of Criminal Procedure when the police officials fail to register FIR.

Alongside these pronouncements, see how the courts are approaching the position of a trespasser and what relief he could get in civil courts. As early as 1961, Justice Veerasamy (as he then was) said in Alagi Alamelu Achi that a trespasser in possession cannot be protected by an order of injunction. In 1991, Justice P.S.Mishra (as he then was) said, in the context of a government initative to remove the hutments that had come up along the seashore that even a trespasser is entitled to protection under Article 226 of the Constitution. In 2004, a 3 member Bench of the Supreme Court said that a trespasser in “settled possession” is entitled to protection until evicted by due process of law. You will notice that different branches of law, the police understanding and public perception of what the law is, are pulling in different directions. Perspicuity, an essential attribute of law, is lacking in the present scenario. The High Court has in a recent case, appointed a committee consisting of high ranking police officials to go into these problems of coping with civil disputes through the instrument of police machinery. The report and the court’s decision on the issues would be most significant. Who is a trespasser? What is settled possession? What are Court’s powers? When can police intervene and what is the scope of investigation? Circulate your own views on this subject and sharpen your ears to listen. It is wise not to be distracted by side stories that have germinated from this case.

Share your thought for a new legislation

2008-07-17T09:44:00.000-07:00

A popular English daily lists out several strange laws legislated in efforts to maintain law and order in diverse legal regimes across the world. They range from legislation that makes illegal for chicken to lay eggs on Sundays to legislation that require the permission of a husband by a wife to wear dentures. The constant refrain has always been that there are a lot more laws than necessary. A country that is regulated by rule of law is not necessarily a country that has enormous laws. The efficacy of enforcement mechanism alone makes the difference. We have laws to prevent crimes; we have laws to punish practitioners of untouchability; there are laws that protect women and children. All of them have not guaranteed a crime free society. They have not effaced the scourge of untouchability. Our women cannot still walk on the roads in hours of darkness without fear. Our children do not lead lives of frolic. Many of them slave under hard labour and are the breadwinners for their families even if they get but just a slice of bread to bite into.

In a country where there is a population of more than a billion, you may think that it is a country that abounds in fertile couples. The truth is that the problems of infertility are confined not to anyone particular race, religion or country. It is prevalent all across the globe. The WHO estimates that 8-10% of the population has problems of infertility. The science of medicine has alleviated the malady by Assisted Reproduction Techniques (ART). In Vitro Fertilization (IVF) is a procedure that helps couples that are unable to conceive a child in a regular manner by fusing the sperm from the male to the egg of the female to fertilize in the laboratory through what is called in vitro (literally, “in glass”) procedure and implant the fertilized egg in the womb of the female. In cultures that recognize the institution of the marriage itself as necessitous to procreation and perpetuation of the clan, infertility could be a ground for break down of marriages. It is commonplace that the slur has a gender bias, so that a woman that does not become pregnant becomes the target of harassment, even apart from the insistent dowry demands that might mar the harmony of the wedlock. Times when the small family norm was not yet a national population policy, it was possible to adopt children from within the immediate family circle, when the couple was infertile and find fulfillment of their wants. Now with small families becoming a reality among the population living in small towns and villages also, the practice of adoption is not resorted from within family members. With the advancement of medical techniques for assisting infertile couples for increasing chances of pregnancy, the advantages are too obvious to be missed. The right to have a child is not merely a nature of personal preference but an issue of social good, for the society benefits by fulfilled families.

Fertility clinics are around in every corner in major cities and the persons that run them have booming lucrative practice. Surprising, there are no laws in India to regulate this practice. In UK the passing of Human Fertilization and Embryology Act in 1990 saw the establishment of the Voluntary Licensing Authority and later the Interim Licensing Authority whose main role was to monitor the developments in Assisted Reproduction. The Act aims to regulate research on embryos, to protect the integrity of reproductive medicine and to protect scientists and clinicians from legal action and sanction. The UK Legislation has stood as a benchmark piece of legislation and used as template for legislation in other jurisdictions. Science and technology move faster than laws and even the British enactment is found to be insufficient in several areas such as cloning and several biomedical research that raise important ethical considerations in the realm of manipulation of genes to create ‘designer babies’. The legalization of same sex marriages import the idea of perpetuation of family only through techniques of surrogate parenthood either from a donor sperm outside the realm of marriage or from a person within the boundary of marriage to a surrogate parent outside the marriage. What should be the money to be paid for the attendant medical care for bearing the child may be a crucial question to be addressed.

In India, the regulation of fertility clinics is sought through stringent legislation which is reported to be in the post -draft stage and the government is also considering notification of strict guidelines and their mode of enforcement to regulate the functioning of fertility clinics till the law is enacted. Instances are reported when couples who have gone to fertility clinics, have realized to their shock that the sperm or egg of one or the other was not from one of the couples themselves and abortions are resorted due to complications arising from DNA mismatch. The new legislation or guidelines, it is reported, would enable even a single woman who wishes to have a child without marriage to be impregnated by IVF techniques. The child that may be born will have an entry of the mother in the Birth and Death Registration Act but the father’s name may not be disclosed, without stigmatizing the child as illegitimate. The legislation may even favour childless widows or widowers to help them secure a child through a donor sperm or through a surrogate mother. It will make possible gays and lesbians to beget children. Along with this legislation, enactments relating to marriages, adoption, registration of births and deaths, abortion, crimes, etc, will have to be drastically amended. All these changes cannot come about through a legislative exercise unaided by a healthy debate from the knowledgeable sections of the society.

Lawyers have played significant roles in the past in fashioning legislation by their legal skills and their knowledge of the needs of the society. Here is a chance for the legal community to address all these issues from legal, social, psychological and ethical perspectives. The round table is being readied now. Do you have views to express?

Oh Men! Don't compete with women for motherhood!

2008-07-08T04:42:00.000-07:00

The world is not any the less equal only because men and women are made differently, - the ways their biological differences make them think, look and behave. These differences themselves have assigned to them dissimilar roles to play in the society. So long as the physical prowess helped men dictate the primacy of their actions, they could claim superiority. But men are challenged in every field, in studies, in professional skills, in the study of science, in expressions through arts and what have you. However, men have always held their own in the arena of sports; women in the pride of bearing children. They never contested each other in these fields alongside but see now, a man has challenged womanhood even in the act of creation. Not just novelty this, but scary!

Thomas Beatie was born female, underwent surgery and took hormone treatment to become a male; kept her reproductive organs, got artificially inseminated by a donor sperm, became pregnant and has delivered of a baby on 29th July at Los Angeles. The baby is a girl, we are told, but wait till a decision is made if the child will remain as a girl or whether there will be a sex change. In reality, no one undergoes sex change for the fun of it. Cases of infants born with ambiguous genitalia are not common but nor are they rare. Ambiguous genitalia are physical anomalies in which the genitalia are not clearly identifiable as male or female. They are often detected at birth and are a sign of intersex. Of the 3 to 4 million children born annually in the United States, approximately 1 in 2000 are reportedly born with ambiguous external genitalia (thus approximately 1,500 to 2,000 such children yearly). Estimated 100-200 pediatric surgical sex reassignments are performed in the United States annually, mostly during infanthood. Official statistics are not available for India but it is believed, there are at least 10 lakh people in this category.

The case presents strange ethical questions. It just does not stop with what a man/woman wants to do with his/her body. (S)he lets his/her decision impinge on the psychological upbringing of the child, who has no scope for any form of participation in the decisional process. The child will have to grapple with the enigma whether the person who gave birth to her is her mother by the fact that she was delivered through her loins or a father because, he looks and carries his identity in the society only as a male. There is no clear cut medical opinion whether physicians should perform sex re-assignment surgery (SRS) on Infants with ambiguous genitalia. The American Academy of Pediatrics published guidelines supporting the view that such a child could be raised either as a male or a female depending on the nature of surgery to be performed in infanthood. This has also been strongly challenged by many academicians and even the consent obtained from parents for performing surgeries on children are contested on the grounds that practitioners obtain consent on 1) the false aura of urgency; 2) the failure to impart complete and accurate information; 3) the oppressive secrecy in which parents are advised to not discuss the situation with others and to particularly withhold all information from the child; 4)the failure of physicians to reveal the uncertainty of the outcome; and 5)the failure to account for the child's "right to an open future" in the decisional calculation.

Beatie made a conscious choice to live like a man, underwent a surgery and married a woman. He asked the surgeon to retain the ovaries and uterus. The doctor obliged. There are no laws to regulate this practice. Patient autonomy in India is never predominant and medical paternalism, leaving the doctor to decide what is best, gains normative acceptance. Perhaps, what Beatie did in USA will not be replicated among the Indian male or female, at least not in the near future and doctors in India would not have done what an American doctor chose to do or not to do. But follow the winds of change. There have been odd instances of transgender persons occupying positions of political power – Shabnam Mausi became Member of Parliament from Sohagpur in Madhya Pradesh in 2000 and Kamla Jaan was elected Mayor of Katni in Madhya Pradesh in 2000. In fact, in the case of Kamla Jaan, in August 2002 the Madhya Pradesh High Court invalidated her election on the grounds that a eunuch is “essentially male” and therefore cannot contest from a seat reserved for women. The court, in effect, did not recognise a person’s right to choose his or her gender identity. But traditional Hindu law and Muslim law accorded to them status to inherit the property and be a propositus to form a fresh stock of descent. The MP High Court might have committed an egregious error. The case is pending before the Supreme Court. In 2005, the Central government introduced a category ‘E’ in passport application forms where ‘E’ stands for eunuch. But transgender people are not satisfied with this. The better option would have been a ‘T’. They are sensitive to the stigma that words such as eunuch bear and do not want to be addressed thus.

In the past 10 years concern about the transgender community has become widespread owing to the fear of the spread of HIV/AIDS. Since the hijra/kothi community has been found to engage in sex work, numerous NGOs have mapped them as “vulnerable population” for HIV/AIDS intervention projects. In its 172nd report, the Law Commission, chaired by retired Justice Jeevan Reddy, recommended that Section 377 of the IPC be repealed. The recommendation, however, was made in the context of a redefined law on sexual assault to replace the old law on rape. The Department of Social Welfare in Tamil Nadu has passed a G.O. in December 2006 with recommendations to improve the living conditions of aravanis. The G.O. strongly favours counselling as a means to deter families from disowning a transgender child. It also recommends counselling for children with behaviour changes in schools, for which teachers need to be specially trained. The G.O. clarifies that there is no ban in admitting transgender persons in schools and colleges and that no discrimination should be shown against such persons on account of their sexual identity. The G.O., however, is yet to be implemented but the welfare board set up by the State promises an opportunity to put these steps into practice. An important recommendation made by the jury following the December 17 public hearing was that cases against transgender women must be handled by women police alone to avoid sexual harassment in police custody. The jury also recommended that transgender women be protected under the Tamil Nadu Prohibition of Eve-Teasing Act, 1998. It is also suggested that the Board of Film Certification should curb derogatory portrayal of the transgender community in movies and television serials.

All these initiatives, important as they are, shall not take the Indian community to tread the adventurism of their US counter-parts and doctors that spells disaster to off-springs’ psychological upbringing. Gillette blade tempts a man in an ad with ogling bevy of girls to signify what a smooth shave could help achieve. Don’t give in yet! Children will least doubt in whose laps they would want to be cradled. A man is just no competition to a woman for motherhood.

The several Avatars

2008-07-06T08:58:00.000-07:00

Somehow we allow ourselves to be driven in our fancies about what we shall be doing by following the lead actors in the tinsel world of cinema. They have media and money at their command to capture the public eye. Even in a world that has mechanical lifestyles, with acquisition of wealth being the prime motivation, entertainment has been a healthy distraction. The philosophical theories that viewed human beings only as instruments of production and the history of mankind as a history of class struggles take a beating with the growth of entertainment industry that offers a striking proof that beyond hard labor and exploitative traits, the society creates temporary illusions that all is well around us. The hero’s girl is our girl; his wealth is our wealth; his songs are our songs; his happiness is our happiness – all at least for those 3 hours.

A popular movie captures the man in 10 avatars. He beat the earlier showing of another man in 9 different roles. There have been double roles, three’s and four’s also. Imagination has caught up with others to better this man. Suddenly a TV channel proclaims that their lead lady will appear in 14 different roles exhibiting 14 different traits. Yet another film proclaims that in one song sequence, the hero will adopt 20 different styles. The histrionics of individual performances get their sheen only by the aid of technology that fools the eye. Without technology, without fooling, several persons perform several things at the same time, don several roles all their lives and make the lives rich for themselves and for others.

An Ashtavadhani performs eight different acts at the same time. Have you witnessed these shows anywhere? Some body will be reciting a poem and asking a question which stanza of the Kural it was. A person in the audience will ask a question on science. Yet another will strike a bell in periodical intervals. Some person will be scratching his nose. One will be singing a song. The performer will himself be giving a speech on some topic and engaging in making knotty designs with a rope. At the end of it all, the performer will keep trail of every happening in the room. Recall what everyone was doing. He will not walk away with a boast that only he could do. He will assure you that human mind and body have immense capabilities and with training, it will be possible to replicate his fetes by everyoneelse also.

There is a good reason to believe in our own abilities to do extraordinary things. See how some judges (only some!) hear hundred cases a day, suffer long and short arguments, deliver judgments, advise lawyers to keep cool when they fight, attend evening functions and make speeches, read up case papers at home burning the midnight oil and still turn up cheerful in courts. Many lawyers turn out remarkable work. They play a caring head of the family; at the office, they counsel clients, make the pleadings, type them without the help of any typist, pin and stitch dockets, bank the money, do the driving, argue, fight and do umpteen skilled activities through out the day, each of which activity will be full time avocation for many an individual. Our own ladies have learnt the art of multitasking. From minding the children at school, to investment decisions, to taking care of the households, their task is stupendous. We take several avatars all the time. Only that we don’t apply grease and paint; we don’t have arc lights to capture our histrionics.

All this multitasking abilities shall not be for all times. There are those who claim that they are less efficient, due to the need to switch gears for each new task, and the switch back again. They are more complicated and thus prone to stress and errors. They are crazy and in this already chaotic world, we need to reign in the terror and find a little oasis of sanity and calm. Lawyers and judges take on problems of others all the time and they call for qualities of emotional distancing from their problems without being indifferent. Here are a few tips that Leo Babauta, a Zen philosopher, suggests without claiming copyrights for its reproduction:
First set up to-do lists for different contexts (i.e. calls, computer, errands, home, waiting-for, etc.) depending on your situation.
Have a capture tool (such as a notebook) for instant notes on what needs to be done, things to be remembered. (Have you wondered at some lawyers, who will pop out a small note book from their shirt pockets to give you the case law that you want?)
Have a physical and email inbox (as few inboxes as possible) so that all incoming stuff is gathered together in one place (one for paper stuff, one for digital).
Plan your day in blocks, with open blocks in between for urgent stuff that comes up. You might try one-hour blocks, or half-hour blocks, depending on what works for you. Or try this: 40 minute blocks, with 20 minutes in between them for miscellaneous tasks.
First thing in the morning, work on your Most Important Task. Don’t do anything else until this is done. Give yourself a short break, and then start on your next Most Important Task. If you can get 2-3 of these done in the morning, the rest of the day is gravy.
When you are working on a task in a time block, turn off all other distractions. Shut off email, and the Internet if possible. Shut off your cell phone. Try not to answer your phone if possible. Focus on that one task, and try to get it done without worrying about other stuff.
If you feel the urge to check your email or switch to another task, stop yourself. Breathe deeply. Re-focus yourself. Get back to the task at hand.
If other things come in while you’re working, put them in the inbox, or take a note of them in your capture system. Get back to the task at hand.
There are times when an interruption is so urgent that you cannot put it off until you’re done with the task at hand. In that case, try to make a note of where you are (writing down notes if you have time) with the task at hand, and put all the documents or notes for that task together and aside (perhaps in an “action” folder or project folder). Then, when you come back to that task, you can pull out your folder and look at your notes to see where you left off.
Take deep breaths, stretch, and take breaks now and then. Enjoy life. Go outside, and appreciate nature. Keep yourself sane!

Truth at what price?

2008-06-18T09:02:00.000-07:00

Between life and death, it is the latter that hogs more news. The qualities of even a person unknown are epitomized in a hyperbole more after a person departs than while living. The cause of death itself is of no value except when the process adopted for snuffing out life is so crafty that the perpetrator of the heinous crime leaves no trail. The name of Aarushi, a 15 year old girl, evokes a great deal of sympathy since the prime suspect for her murder is her own father, a dentist and at the same time bewilderment about how there has emerged no tangible clue to nail down by a plausible story of who could be the real culprit. After the CBI has taken over, it has assumed importance for another reason. Like never before, are questions asked whether narco-analysis and brain mapping employed against prime suspects and witnesses legitimate tools of getting at truth in the investigative process. Should a scientific process be immune from critical attack only because it is scientific? Of what value is science if it demeans the value of human autonomy and rides roughshod over an individual preference not to be put through these tests? Is torture objectionable only if it is physical and obtains a different meaning if the exercise against resistance operates only at a mental level?

The Constitution guarantees as fundamental right that ‘no person accused of any offence shall be compelled to be a witness against himself’. A precept recognized as a guarantee against self incrimination has been consistently given an artificial construct by courts at various stages. Perhaps, the most thorough examination on this subject belongs to Bombay and Gujarat High Courts, who while dealing with objections against narco analysis, brain mapping and lie detector tests have held that courts will not interfere with investigative process of police; statements recorded as such cannot be used as evidence, which is what guaranteed under the Constitution and information secured in a state of stupor induced through drugs is akin to statement leading to discovery admissible under section 27 of the Evidence Act; these tests have scientific basis and aimed at securing the truth and hence cannot be objected to; the question of consent is not required to be considered at the stage of investigation process and it would be relevant only at the trial. Each one of the lines of reasoning is open to serious contest, if you know how these tests are performed on individuals.

The Bombay decision in Ramachandra Reddy (2004) explains the technical details of these tests and why it finds nothing objectionable about the tests. It further explicates that brain mapping is a process of data collection that gives inferential knowledge whether a suspect has or has not information about an occurrence which he wants to conceal. Narco analysis does not involve any physical pain by the injection of Pentothal. Lie detectors do no more than reading blood pressure, intestinal movement, heart rate, perspiration, etc and deviations read from the graph from the baseline are taken as straying from truth. The court would say that there is no direct invasion of the body of the person interrogated and hence not objectionable. We have strange logic permeating the entire discussion of what amounts to testimonial compulsion.
Why do you think, we tend to wink at these questionable practices of subjecting a person to tests irrespective of consent, a component so fundamental to concerns for human rights? How are they different from military practices, where from the Nazi atrocities to Iraq war crimes, ‘ends justify the means’ theory is always proffered as providing the complete answer. What is the opposition to death penalty about? Is it infliction of pain to cause the death that is the central theme to objection or the annihilation of life by State agency as a measure of retribution itself that is challenged? If the latter is accepted as the tenable premise, can the issue whether death results from hanging or electric chair or pain-free injection of Pentothal in lethal dose be relevant? Same way, if medical intervention without consent is objectionable at a very fundamental level that it breaches patient autonomy, carrying out medical tests that may not be physically painful cannot be left without challenge only because it may lead to detection of crime. Involving medical science and giving the doctors the edge to get at the truth from the accused himself subverts every idea of justice.

Do not forget the convoluted understanding scientific processes ushered with the help of doctors by Hitler’s Nazi regime and what it resulted. A history of German politics in the 1920’s, 30’s, and 40’s set the stage for the government-sponsored eugenics (so-called “racial hygiene”) movement. Early racial hygiene proponents had little association with anti-Semitism, but this changed when racial hygiene extremists merged with National Socialism. Biology became prominent in Nazi ideals, with Nazi leaders referring to National Socialism as “applied biology,” reflecting its social Darwinist racial hygiene origins. This “scientific” basis attracted many physicians to Nazism. The National Socialist Physicians’ League was formed in 1929 “to coordinate Nazi medical policy, and purify the German medical community of Jewish Bolshevism.”’ By 1942 about half of all physicians in Germany (more than 38,000) were members of the Nazi party. Hitler was even referred to as the “great doctor of the German people”. Nazi racial hygiene goals were carried out through medical programmes. All this is not to compare Nazi practices to these tests but only to bring home the point of utter degradation of administering drugs without consent.

Maybe, the Supreme Court verdict in its reserved verdict will address all the issues and give a comprehensive decision one way or the other all too soon. The debate shall not still rest there, for as the saying goes, the judgment will be final not because it is infallible but infallible because it is final. And lawyers have not yet reconciled that any decision could be final!

Price for donation of human organ, why not?

2008-06-14T23:59:00.000-07:00

Ever since transplantation of human organs from live donors became possible, every living person is a potential property. The most important component of property is its transferability. In a country like India where poverty is prevalent it is not surprising that an individual thinks of trading on his own organs to tide over his financial difficulties. The scope for exploitation of the poor and the reports of commercialization in the trade of human organs were weighty reasons enough for enacting Transplantation of Human Organs Act 1994. The Act authorizes donation only from amongst specified classes of relatives and if the donor is a non-relative, the consent of such a donor shall be evaluated by an Authorization Committee that the donation is ‘for affection or attachments towards the recipient or other special reasons’. The Act prohibits receipt of consideration for donation of any human organ. Pernicious, as the effect of commercialization of human organs could be, one cannot doubt that in its inception when the possibility of organ transplantation was made scientifically feasible, it could have been never thought of as objectionable. Organ transplant is indeed a significant sign-post that registers the advancement of medical care and reflects the symptom of a constant endeavour in medical research to prolong life and improve its quality.

The control mechanism to end commercialization and trafficking in human organs has operated between two extremes: the Authorization Committee invariably views every offer of donation of a non-relative with suspicion, while courts which have been called upon to examine the decisions of the committees have always seen the travails of the patient to be so overwhelming as to adopt a liberal approach with a view to save the life of a patient in the need of an organ. Perhaps the majority of cases knocking at the portals of court for reviewing the decisions of the authorization committees have come only in kidney transplant cases. Take a survey of all cases reported from various High Courts[1]. You will notice that courts have invariably come to the rescue of the patients and have rejected every instance of suspicion by Authorization Committees as not really relevant. The donor and recipient of non- relatives as servant and master, as poor and rich, as unrealistically charitably disposed and critically ill, respectively, have been found by courts as not sufficiently worthy reasons to doubt that the donor was consenting for donation only out of affection or attachment. It is conceded on all counts that despite the Act, there is a large scale illegal trade in donation of human organs for consideration. The concern seems to be more on the pitiable condition of a patient requiring donation but if an equal measure of concern about possibility of exploitation of donor exists, they have seldom been voiced through judicial pronouncements.

If we expect a non-relative donor to donate his organ without consideration, are we not expecting an unduly unjustified gratuitous altruism from a person who is prepared to undergo a suffering for donation? A patient who receives donation of an organ has a chance of improving his quality of life. He will probably lead a normal life. He will also begin to earn. If the recipient can be benefited, why should not the donor be benefited in some way? If the recipient is benefited materially why should not the donor also receive some material benefit?

There are so many other categories of donation which exist outside the regulation of the Act. Human hair is for a price. Human blood is also taken for a price. All legal regimes accept legitimate costs of carrying a fetus by a surrogate mother as tenable. Perhaps at the farthest end of the tether lies an offer of the human body for pleasure for a price by a sex worker. The person other than a spouse who gifts semen in IVF procedures is usually rewarded and so is a woman who gifts ‘productive eggs’.

The Human Transplantation of Organ Act is significant in that it does not prohibit donation of an organ by a live individual. It regulates it. In the manner of regulation it is admitted that the Act has not been able to do away with commercial exploitation, the presence of middlemen and the existence of a large black market. If all this must go, the first step should be to recognize that there is nothing illegal about fixing a price for an organ and expect the motive of a donor not merely to be gratuitous altruism but compensatory beneficence.

To expect a personal sacrifice only from a donor, while at the same time having profusion of sympathy for an ailing patient does not put the donor and the patient on an even balance. The approach is skewed in favour of the patient to the disadvantage of the donor. If kidney transplants are covertly done by skirting the provisions of the Act, it is time to bust the practice, not by prohibitions or incorporating more difficult parameters to assess the genuine willingness of a gratuitous donor but by bringing these activities out of the closet by introducing governmental supervision and funding to provide equity for the poor , who will get equal access to such transplants. A noted surgeon Amy L Friedmen[2] states that ‘it is appropriate that living donors, indigent or wealthy share in the tangible benefits of their ethical concern for others. Not doing so, effectively restricting the disadvantaged, is unreasonably disingenuous’.
[1] The most recent one is from Madras High Court by Justice V.Dhanapalan in Simon v Authorisation Committee dated 29.4.2008
[2] BMJ 2006, 7th October, Vol 333.

No more trials for martyrdom!

2008-06-10T09:28:00.000-07:00

World over, bomb blast trials seem to have one thing in common – long gestation between events and trials. The serial bomb blasts at Mumbai took place on 21st April 1993 and the cases in the Special Court saw their denouement through judgments after a protracted trial in May 2007. The RSS office bomb blast took place on 8th August 1993 and the judgment against the accused was pronounced on 21st June 2007. The Coimbatore bomb blasts that shook the city on 13th February 1998 led to large scale arrests and the judgment in the case was delivered on 6th August 2007. Several hundreds lost their lives in Mumbai. A handful of 12 bright youngsters were consumed in Chennai blast. The Coimbatore devastation took a tally of nearly 60 lives. Perhaps, the worst case of catastrophe through terrorists’ plans were unleashed at the World Trade Center in New York and at Washington on September 11, 2001. If you thought trials in foreign regimes invariably got under way with god speed, you may not be correct. The trial against the principal accused has begun just now at Guantanamo Bay, near one of the US army detention camps.

Probably, we have seen or heard about the course of trials in the bomb blast cases rather dispassionately. There was utmost civility in the conduct of prosecutors and the defence lawyers. The judges treated the suspects with utmost courtesy in courts. The newspaper reports were by and large unbiased and objective. When the ultimate decisions came, the public truly believed that the judiciary had done their best. No one attributed motives against judges. No one called the prosecution agencies of being inept. No one carried hatred against the worst criminals. The philosophical distancing of the event to the persons involved had already taken place. The protracted trials had numbed our sensitivities and it mattered least who were convicted and who were let off. All the same, there was always a strong feeling that justice had been done. All the cases are now before the Supreme Court and when judgments are delivered, there may be a reversal of fortunes for some, there may be confirmation of convictions for some. Honestly, do you care?

The way the case has opened in US amid suffocating military security has not surprised many. The principal accused (where is Osama, by the way?) brought to trial, Khalid Sheikh Mohammed (KSM) is reported to have mocked at a co-accused al-Hawsawi, if he was in the American army for, at first, agreeing to be represented by a US soldier. KSM had been earlier picked up, after the event, from Rawalpindi, Pakistan in 2003. He speaks impeccable English and chants in Arabic and translates to the court the purport of his hymns in English. He has announced that he has decided to defend himself and does not want lawyer’s assistance. When the judge, a marine colonel, asked if he understood the significance of that decision - as he was facing the death penalty – KSM has made clear that he has understood very well. He has said, he had been looking to become a martyr for a very long time. KSM seemed happy at the attention he was getting from the media and the way he handled the judge. BBC reporter claims that at times, it was difficult to tell who was running the proceedings. Another accused Ali Abd al-Aziz Ali sounded off, with equal defiance, any offer of assistance through any lawyer. Yet another accused Ramzi Binalshibh has no problems about assistance through lawyers but says he also wants martyrdom. Now in India, the convict Mohammed Afzal in Parliament Terrorist Attack case, defies the government just to hang him as per the Court judgment but the government is scared to make him a martyr!

The ideological convictions of the accused in some criminal trials could unnerve many a judge. There were times when some districts in Tamil Nadu were in the grips of different kind of terrorism that believed in blowing up bridges and buildings (mostly government property) to get the attention of the public to sell their ideologies against what they believed to be anti-people establishment. When the suspects were brought for trial, they enjoyed themselves. They would deliver long speeches, sang ideological songs, distributed pamphlets to all persons in courts, denounced the establishment and all done, they would sit quietly in the bench in the ‘accused box’. If the judgment was delivered convicting them, they gave further speeches and walked behind the escort police without remorse to the van waiting to transport them to prison. If they were acquitted, they would not rejoice; they would announce that the fight was not over and walked away to resume their work!

A martyr, in Greek martys meant ‘witness’. A secular meaning gained religious overtone gradually, when a person that bore witness to truth by religious convictions was tortured and done to death. Christianity, Islam, Judaism and Sikhism have it in their religious texts that extol martyrdom. In the secular context, the term was applied to those who used violence, such as those who died for a nation’s glory during wartime. It also applied to non-violent individuals whose lives are sacrificed in their struggle for independence, civil rights, etc. A world under one religion, or with or without religion cannot end terror. Court judgments, by taking away the lives of terrorists cannot also end terrorism and cannot assure the guilty, martyrdom. The people like us that stand witness to the end of terrorism alone are the martyrs. Trials, convictions and sentence have meanings only to persons who are afraid of suffering, confinement, injustice or death. If a person sees suffering as a reward for plans adroitly executed, what is there to worry? If confinement is seen as liberation to end worldly pleasures, where is the agony? If the sense of justice is blinded to the sufferings of innocent people why would the killings be averted? If death is the final redemption to reach the Ultimate, what is there to fear?

Work after a long holiday

2008-06-02T11:36:00.000-07:00

An enigma as old as the world is, what came first, the chicken or the egg? There have been many more unresolved questions, like for instance ,what poet Kannadasan would pose through his lyrics:
Kodi assainthathum, katru vandada?
Katru vandadum kodi assaindada?
(Did the tendril sway to the wind or
The wind blew, by the swaying of the tendril?)
Nilavu vandadum, malar malarndada?
Malar malarndadal nilavu vandada?
(Did the flowers bloom after the moon appeared or
The moon appeared to behold the flowers bloom?)

An immediate conundrum at a time when the courts in Tamil Nadu are going to reopen after a month old holiday is, did we deserve this long rest because of our hard work; or, do we owe the society strenuous work, because we have had a long spell of rest? It all depends on how you have spent your holidays and how you are looking forward to your resumption of work in courts.
To many of us, holidays are a welcome relief from the tedium of routine. We would have spruced up our office/chamber, cleared many a dead wood, thrown out unhelpful juniors, chucked the office of selfish seniors, sent reminders for un-cleared bills, dispatched spouse and children to native village and enjoyed the freedom of solitude or if you have been an ideal family person, you would have spent quality time with your family, taken them out to salubrious places and come back home, raring to go back to work. If you have been a cricket enthusiast, there were not better times. A 59 -match fixture was played with remarkable competitive spirit, when men attired in different hues rubbed shoulder to shoulder, black and white men rolled and rollicked proving that through their veins ran the same red blood, men of Pakistan and India played on the same side encouraging each other, a Punjabi, an African, an Australian, a New Zealander, a Sri Lankan, a sprinkling of Madrasis, led by a Bihari breathed a homogeneous Chennai spirit, cheered by huge crowds transcending parochial sentiments . All the initial objections to the commercialization of sports (echoed in these columns, as well) seemed to get dissolved and showed remarkable prospects of great entertainment for future. All that SAARC could not do to bring together the countries of this region, cricket promises to do!

See what we always expect of our sports persons,- absolute dedication, keen competitiveness, camaraderie and above all, team loyalty. The cricket game proved one more thing. The teams that made to the finals had the best, inspirational captains for the respective sides. A man, who had hung up his shoes, powdered them white and got back under the arc lights to guide a whole bunch of tyros to perform like world champions; Another captain, a cool guy who breathes icy air through his nostrils at + 40 C, led from the front, seeing the players on level and never adopting a patronizing air to his colleagues. These games seem to be great eye-openers for many a failing that afflicts our profession. We get paid well but our own loyalty to your clients is suspect, when we opt to boycott courts. We turn up at courts ill prepared with shoddy home work. We make possible an easy walk- over, by conceding too meekly to bullying tactics of our adversaries. Our leadership ought to belong to the learned and the well- mannered. When we have good men to lead, we do not cede to them the authority to take responsible decisions and follow them. Our own dedication to our calling requires professionalism.

Nani Palkhiwala said, “in the legal profession, we have not lost the way, but also seem to have lost the map, to quote the words of G.K.Chesterton. What we need are lawyers who are prepared to stand as sentinels of democracy, as standard-bearers of the public cause they believe in. I am reminded of the words of Arethur Koestler, ‘If the creator had a purpose in equipping us with a neck, He surely meant us to stick it out’. The lawyer has to act as a catalyst. The responsibilities which to-day lie on the shoulders of the lawyers are far greater than at any earlier time in world history.” We hear in many of the speeches that our profession is a noble one and get pounded with recurrent advices that we shall strive to help the poor litigants. There is a gross hypocrisy about how we want to project our calling to be and how we fashion our own lives as lawyers and judges. Who does not want a situation when the entire legal fraternity is held in high esteem and we ride on the high crest of public adulation? Between thought and action, between ideal and reality, there will be always a hiatus, but how broad the wedge of difference shall be, is the area of concern.

We may have the experience of constantly breaching our New Year resolutions, but that does not mean, we shall not have the resolutions themselves. Here is again the occasion to start with new resolutions. Some of them could be: keep the quest for legal knowledge high and make a constant commitment to learning through books and journals; be available to clients’ just causes for legal assistance and turn in adequate work for the remuneration that we demand and secure; encourage settlements and minimize litigations; take interest in some community work, be it social, religious, cultural or political, outside the court campus. The first love for persons in legal fraternity shall be courts; his learning, of law; his dedication, the litigants. Shall we then have a check list of what we shall commit ourselves to do when we resume work?

Understaning judgments from first sentence

2008-05-25T22:04:00.000-07:00

Where do you begin to read when you want to know the result of the judgment? The last few lines are normally the surest bet because the expressions, ‘in the result’ or ‘in fine’ or ‘in sum’ are invariably a part of a stereotyped template for the conclusion in a judgment. There are also some judges, who begin with devastating candor, such as, ‘the suit/appeal/petition deserves to be dismissed for the following reasons’. If the story begins with expression of sentiment like, ‘this is a pitiable case of the plaintiff’, you know already that the suit is heading for a decree in the final lines. Or, if the case begins in an opening paragraph, ‘the accused stands trial for commission of a heinous crime’, you know that the accused is being shown the prison gates for confinement. The best artistes of writing among judges will use expressions when no two judgments would read alike. The feeling that they would evoke would however be the same as a take- off of an airplane at the beginning and a perfect landing at the end. Just as much as the contents, look also for individual styles. If you cultivate the trait, it is like going to a book store and heading for your own favorite authors. Open the law journals and go to the beginning lines and the ending of judgments of your favorites!
A recent judgment of the Supreme Court begins with a statement in the first sentence that the petitioner is a ‘renowned and internationally famed’ person. Do you have any doubt that the judgment was entered in his favour, for, with such a beginning, can you afford to throw out his petition? The judgment is interesting, for it is out of ordinary. You will come across bias in administrative decisions as vitiating an order, or arbitrariness in executive fiat as cause for annulling it but how often would you have come across a one- man- legislation; a law that is brought for one individual, a law reminiscent of emergency days namely, of change of Representation of Peoples Act to perpetuate the continuation of office of one person? Quite interestingly, the judgment in P.Venugopal v UOI refers to three other instances when the Supreme Court has frowned upon one-man-legislation.
Firstly in the year 1953, in Ameerunissa Begum and others, a Constitution Bench of the Supreme Court affirmed the judgment of High Court of Hyderabad, and declared as unconstitutional a law passed to annul the claims to succession of certain persons as lawful wife and children to the estate of deceased Nawab Waliuddowla against the claims of another woman, who claimed to be the sole inheritor to the estate. Patanjali Sastri J said that ‘legislation such as we have now before us is calculated the draw the vitality from the Rules of Law which our Constitution so unmistakably proclaims, and it is hoped that the democratic process in the country will not function along these lines.’ Yet another judgment delivered by the same Bench in Ram Prasad Naryan Sahi was in the same year and the Supreme Court struck down a Bihar legislation brought to take possession of some settlement lands from a particular individual. Patanjali Sastri J again quoted his own dissenting view in Chiranjit lal where he had said, ‘Legislation based upon mismanagement or other misconduct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think receive judicial encouragement." In our State, TN Municipal Laws (Amendment) Act 2002 sought to strip the legislator of his right to continue in office as mayor by introducing a provision of a bar of ‘dual occupancy’. The amendment survived in the decision S.Udayakumar v State and others (2002) since the challenge was deflected to the State’s power to lay down qualifications for a Chairman by virtue of the provisions of Art 243 V(b)(1) of the Constitution.
One-man-legislation has not been uncommon in England and almost all of them have been to manipulate succession to the Monarchy. Act of Settlement of 1701 was passed to ensure that the line of succession would continue in the Protestant line and exclude any possible claims by the deposed James II or his son and daughter. The law made clear that only the descendants of Sophia who were Protestant, and had not married a Roman Catholic, could succeed to the throne. Roman Catholics and those who married Roman Catholics were barred from ascending the throne "for ever". His Majesty’s Abdication Act 1936 was the Act of the British Parliament that allowed King Edward VIII to abdicate the throne, and passed succession to Prince Albert, Duke of York. Edward VIII abdicated in order to marry his lover, Wallis Simpson, after facing opposition from the government of the United Kingdom and the British dominions. Although Edward VIII had signed a declaration of abdication the previous day, he was still King until he gave royal assent to this Act. The Act was passed through the Houses of Parliament in one day, with no amendments.
The All India Institute of Medical Sciences (Amendment) Act 2007 was perhaps passed on one day, without much of opposition but when it is now struck down, there is no scope for a discussion of the supremacy of one constitutional institution over another. The judgment has a predictable beginning to what the last sentence states. The judgment takes off without a jolt announcing how it is going to fly, cruises through the best pronouncements of our courts and lands to a just conclusion. No individual has won or lost; it is the majesty of sweep of Article 14 that triumphs in situations like this!

Living on the fringes

2008-05-19T01:11:00.000-07:00

The California Supreme Court ruled on May 15th that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory. The California ruling is considered monumental by virtue of the state's size — 38 million out of a U.S. population of 302 million — and its historic role in the vanguard of the many social and cultural changes that have swept the country since World War II. In San Francisco, the reaction was reported to be jubilant. On 18th May, a popular newspaper daily reports that two women in Tiruvottiyur, Chennai who were very ‘intimate’ had set themselves ablaze, clasped to each other, unable to cope with their relatives’ opposition to their intimacy. There is still a sense of revulsion among the Indian community about accepting several ‘other’ types of human relationships which are gaining legitimacy across the globe. The California judgment was not a one-off dispensation but a culmination of widely held public debates, Supreme Court judgments of various States and of USA and legislative interventions.

The Congress at first took a conservative role. In 1996 it enacted the Defense of Marriage Act ("DOMA") to empower the States to deny the legitimacy of same sex marriages. But the constitutionality of measures denying recognition of same-sex marriage was suspect, especially in light of the U.S. Supreme Court's apparent shift in its consideration of gay and lesbian rights. The Court had earlier found that a state sodomy statute enforced only against homosexuals violated no constitutionally protected rights (Bowers v. Hardwick, 478 U.S. 186, 191 (1986). In contrast, in 1996 in Romer v. Evans, 517 U.S. 620, 623 (1996), the Court found that a state constitutional amendment that barred anti-discrimination measures that protected lesbians and gay men violated the U.S. Constitution's Equal Protection Clause by subjecting one group to a disadvantage that no other group had to suffer. In so doing, the Court took the remarkable step of invoking the landmark dissent in Plessy v. Ferguson (163 U.S. 537, 559 (1896) (Harlan, J., dissenting), in the opening paragraph of its decision: The Constitution "neither knows nor tolerates classes among its citizens." Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Court made clear that it would not countenance a legal distinction that raised the "inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."

These laws have immediate relevance to maintenance rights, claims to custody of children born through donors and surrogates outside the bonds of marriage, rights to succession and all property rights connected with them. We have not had any public debate of any serious nature in this area. Not merely this, another boundary untouched by legislation or public concern has been the rights of transsexuals. A NGO having close links to the ruling establishment appears to have prevailed on the state government to undertake a census of the numbers and needs of the transgender community in Tamil Nadu, The government is also reported to have started work through the Welfare Board for the Transgender community to address the problems of AIDS prevalence among the community and the problems caused by Section 377 (the antisodomy law), IPC. Another problem intimately connected is recognizing their gender status for employment.

There has been no legislative initiative and NGOs have done little to espouse their cause. It is surprising that the affected persons have not complained about the discriminatory practices in the job market through litigation route. The problem lies just here. They have not worked for their rights within the legal system but look for avenues to indulge in humiliating practices. The gender stereotypes are almost accepted as the only communities that deserve social concern, and by our apathy we are derailing large sections of ‘other people’ to take to degrading life styles. There are discriminatory practices employed against so many other people living along the fringes. A private airline company advertising for jobs in India bars entry to persons who have tattoos on any visible part of the body. Any number of advertisements could be shown to make explicit statements of preferences to physical appearances for prospective employees. Perhaps, we need legislation like the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or expand the definition of disability to include persons who belong to the above categories as well.

In Part 6 of the ‘Voice Divine’ (Deivathin Kural), Kanchi Paramaacharya, while explaining the subtle meanings of Adi Sankara’s Soundarya Lahari extols the beauty of the Divine Mother, who has profusion of love for all Her children. He recalls at the same breath the example of Ashtavakrar who was ugly but even the Gnanis looked only to him for spiritual guidance for the depth of his learning and felt attracted to him by his beauty of erudition. The ability to love fellow beings brings an intense quality of beauty to the person who can practice it in all forms of interactions. What is love in the context of human relationships is societal concern through legislation in the legal context. The Law Commission of India is recommending a change of law for deleting attempt to suicide as an offence. Will the Law Commission also look into the human rights angle and the need for assimilating people in the fringes into the vortex of legislative concern through non-discriminatory laws?

The Moist Eye

2008-05-12T21:50:00.000-07:00

Life’s pendulum swings between two extremes of emotions – of joy and sorrow. You may be able to pack every other emotion with a trace of either one of them but never without it. It is like the VIBGYOR; between the two extremes of colours, lie the whole infinite variety; a combination of every alternating hue that produces the middle one. For instance, the violet and blue produce indigo; the indigo and green produce the blue and so on. A painful labour is indeed the liberating moment for the child. It is the ultimate emotion of pain and joy in the wonder of creation. The final departure is not all sorrow. That there could be a life beyond death is the sobering thought. The loftier prayer is that the departed soul rests in peace without further hovering; that it rests in the cosmic soul from where all life began.

The epics of Ramayana and Mahabharata are forever a fascination, when stories are told and repeated. You laugh and cry with the characters; you experience the warmth of friendship and pangs of separation as the persons in the stories go through with others, share the ecstasy of love and suffer agony of hatred along with them, celebrate the victory and grieve over the defeats. It is the ability of the story to evoke the experience all shades of emotions that defines its epic value. It is just not with stories; the same applies to good poetry. Hear Morocco say in Merchant of Venice (Act 2, Scene VII),
“Portia, adieu. I have too grieved a heart
To take a tedious leave: thus losers part. “

Alfred Tennyson captures the shearing of emotion of a person who is gone, in his poem ‘The Window;or, the Song of the Wrens’
“Gone, and the light gone with her, and left me in shadow here!
Gone - flitted away,Taken the stars from the night and the sun
From the day!Gone, and a cloud in my heart”

The word of parting itself is sweet for Lord Byron ( Childe Harold’s Pilgrimage):
Farewell! a word that must be, and hath been -
A sound which makes us linger; - yet - farewell!
Do the words deliberately veil the hidden emotion that throbs for a different meaning? William Shenstone says of what will remind you of a popular Tamil song that lilts ‘Po endra varthayil, vaa engirai!
So sweetly she bade me adieu,
I thought that she bade me return.

The world of prose has never been any poorer for portraying the emotions of separation. Henry David Thoreau says, ‘Nothing makes the earth seem so spacious as to have friends at a distance; they make the latitudes and longitudes’. See here, Thoreau does not have to sound maudlin at a parting. He sees the worth of bridging gaps from a distance, instead of being struck with sadness. Just as cheerful is Seuss Geisel George Elliot when he says, ‘Don't cry because it's over. Smile because it happened’.

On occasions when you experience the higher emotions of living, it is the face that carries to the outside world what you experience. There need not be any attempt at hampering the flow of emotion by boulders. Your hair stands on end; your eyes glisten. The lips quiver. Make no attempt to hide the tear. It is not un-manly. It is the same thing as when you stand at the height of a mountain and revel at the spectacle of the world beneath your feet or the stillness of what lies above your head.

Pardon, si'l vous plait!

2008-05-04T11:36:00.000-07:00

There was a time, when you did not hear another person properly, you would prompt him with a question, ‘pardon?’ The response that is current is, a soft ‘sorry?’ or a request to him to ‘come again?’ or a scowl ‘what?’ The word ‘pardon’ has simply gone out of daily use in words and in action. The French still use the captioned phrase in their daily conversational dialogues. In constitutional parlance, the executive’s power of pardon is associated with signaling a reprieve for a person convicted of a criminal offence. The assumption is, the crime is against not any one individual but against the society and the highest authority in the executive alone could show mercy. Indian law does not recognize the victim to have a power to condone or compound heinous and cognizable offences. The Islamic law is different. Section 403 C of the Criminal Procedure Code in Pakistan, for example, enables the victim’s legal heir the power to let a person go off the noose, when the guilty faces death punishment.
May 21, 1991. A dark spectacled woman garlands the leader and seems to lower herself to touch his feet offering obeisance to him. The modesty in the man stops the woman by holding her at the shoulder by his firm, but kind hands. The woman pulls the contrivance strapped around her waist. She blows herself to smithereens and the blast tosses up the leader to land on his now decimated face. 16 others in the immediate vicinity are felled simultaneously with the assassin and the slain leader. A lanky woman at a distance watches the gory spectacle, first hand. The crowd is confused; she is not. She was perhaps the only one alive out there who knew what really had happened and who was the prime target of attack.

The death of the leader changed the course of nation’s history. But the nation is big; its history is long and the resources of the country prodigious to throw up successive leaders who have given direction to the country’s destiny. A lot of things have also happened to that woman. She married the co-conspirator. She had a child while still in prison. She lost the child’s custody to her sister to be brought up outside the prison walls. The mother bore the separation from her daughter. Perhaps, the child has grown up without feeling the warmth of a parental hug or a protected home, when she could come back from her school and dine with her parents. There is infinite sadness in the homes of both the victim and the person in the killer team. The leader’s daughter still cannot believe that there could be a person in the world who could have had hated her adorable father. She meets with the convict to sit by her side to ask her why she did it. The newspapers report that both them wept silently.

The responses to this meeting have been diverse. Some say that the daughter of the victim is matured and a person who carries only love in her bosom is a noble soul; her brother says that he understands her feelings but he could not have done that act himself like his sister; some say that she is paving way for the safety of her family from the terrorist outfit by holding out the olive branch. The surviving victims and the next kin of other persons who died in the same incident have no residual sympathy for the mercenary group. They are maimed and in too much pain to experience the lofty emotions of mercy. Instead, they ask why she did not meet them and console them; what consolation is required for the person who was part of a team that spilt terror and blood, inflicted suffering and privations to innocent persons? They are too difficult to answer. It is all the more difficult to apply any objective standards. For instance, take the case of another person, another family. Sarabjit Singh was caught in the territory of Pakistan. After his arrest, Singh was accused of carrying out bomb blasts in Lahore, Kasur and Faisalabad and reported to have also "admitted" before the court that he had been "involved" in bomb blasts and terrorist activities in Pakistan. He was provided legal assistance to fight his case in the courts of law. He is now sentenced to death. The noose has been readied, but thank the providence, his head has not been shoved inside the ring. His sister, wife and two daughters have been praying, petitioning, beseeching, weeping, all to get their dear Sarabjit back. Now which side are you? Does not your heart pulsate for Sarabjit? Do you feel for the victims of blasts at Lahore and the other places? When the killings have been of innocent persons, is there any such category as friends or enemies? Do you still not love Sarabjit to come back to India and want the victims, their next of kin and the Pakistan establishment to show mercy?

There is no greater transcendent emotion than a willingness to pardon. Here lies the irony. In India, the victim’s heir may show mercy. It is meaningful to the convict only if the State also shows mercy. In Sarabjit’s case, it would seem that the State might show mercy, but will the victims’ heirs also show mercy?

Deaths Due to Compulsory Vaccination

2008-04-27T06:06:00.000-07:00

The news of death of 4 infants after measles vaccination at a medical camp in Tiruvallur district in Tamil Nadu (TOI, April 24, 2008) is poignant not only for the deep sense of deprivation that the parents of the children must be experiencing but also on account of the fact that episodes of such tragedy do no more than capture the headlines of print and electronic media without matching remedial measures to prevent its recurrence. The nurses have been suspended, notices will be sent to the Institute which has supplied the batch of vaccines and the Chief Minister has announced ex gratia payments to the families of victims. Ad hocism is a cultivated trait of our bureaucracy that no one has any time beyond raising a mild whimper.
The health policies of government and sometimes the directives of International health organizations, like WHO, may dictate the adoption of vaccination against polio, small pox, measles etc. The massive scale of operation may include administration of drugs at school, at Railway Stations and many other public places with a degree of persuasion that the recipient may not be able to repel. In some cases, the drug administration may not require that recipient of the drug any consent that may seem to violate the fundamental precept of autonomy to accept or reject the administration of the vaccine. There have been no reported case laws from Indian Courts regarding legal actions arising out of compulsory vaccinations. Several legal issues relating to vaccination have been examined at various times in USA. The judgments highlight the dilemma faced by patients while balancing the risks of drug administration to perceived health benefits.
In the earliest case before the Supreme Court of USA in Jacobson v Massachusetts (197 U.S. 11 (1905)), the issue was, in response to concerns about smallpox, the Board of Health in Cambridge, Massachusetts adopted a regulation in 1902 that all the inhabitants of the city shall be successfully vaccinated and any adult over twenty-one years of age and not under guardianship [who] refuses or neglects to comply with such requirement shall forfeit five dollars. Jacobson, an adult resident of Cambridge, refused to be vaccinated and pleaded not guilty at his arraignment. The U.S. Supreme Court said that they were unwilling to hold it to be an element in the liberty secured by the Constitution that one person, or a minority of persons should have the power to dominate the majority when supported in their action by the authority of the State.
The US courts have also consistently held that no consent is necessary for administration of compulsory vaccination measures. Mazur v. Merck was a Pennsylvania case involving a 13-year-old girl who suffered irreversible brain damage associated with measles vaccine received during a mass vaccination programme at school. The court, like all U.S. courts, described vaccines as "unavoidably unsafe" and said that vaccine manufacturer Merck & Co. adequately warned of risks in its package insert, although the parents, like most American parents, were not given this insert. Because the manufacturer sold the vaccine to the federal government (Centers for Disease Control and Prevention), who rarely can be sued, the vaccine manufacturer prevailed, leaving the parents solely responsible for the care of their now mentally retarded daughter, even though they withheld permission for her to be vaccinated. In 1944 the U.S. Supreme Court stressed "that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and ... this includes, to some extent, matters of conscience and religious conviction" (Prince v. Massachusetts, 321 U.S. 158, 167 (1944).) The court specifically mentioned vaccination as an area in which the government may override parental consent. Manufacturers of drugs may throw a protective ring of disclaimer from being proceeded against. The product package insert may warn the potential subjects of vaccinations of the uncertainties surrounding the product. Perhaps, the warnings may not themselves insulate the manufacturers against legal claims but they substantially open an avenue for defence that is good for lasting a life time in Indian Courts.
Kristine M. Severyn, a noted medical researcher in USA writes, “Although the road to a disease-free world may be paved with good intentions, the practice of injecting multiple vaccines, with known and unknown risks, into healthy babies appears unethical if proper informed consent is dismissed in the process”. In a recent judgment of the Supreme Court (Sabira Kohli v Prabha Manchanda (2008)), the Supreme Court said that the concept of ‘informed consent’ as was being applied in USA will have no place in India, given the fact that patients are generally illiterate and may not understand all the relative merits and demerits of medical treatment and the choices available. It applied however the principle of ‘standard medical practice’ to test the validity of actions of a medical practitioner and see the treatment in the context of what is usually suggested by medical professionals and what the preponderance of medical opinions pointed at, while judging anyone medical treatment. The standard medical practice and the health policies of the Government definitely approve of compulsory vaccination against small pox, cholera, hepatitis, etc. There shall also be a law that makes possible strict liability regime against the government that administers the health policy and drug manufacturers, in the manner that USA has enacted a National Childhood Vaccine Injury Act as early as in the year 1980. Let the spectacle of wailing parents arising out of such tragedies be tempered with possibility of a recourse that is not dole-based but established on firm legal basis.

Whose property is it anyway?

2008-04-20T20:42:00.000-07:00

Is there a property in a dead body? The question is not in the realm of philosophy but in law. The heritability, transferability, ownership and the value of a thing are the property that we are talking about. The person that is dead cannot be the owner of his own body since the component of enjoyment is absent. The legal heirs do not inherit it as property since the idea of possessing it as a thing of value does not exist. It may be illegal to transact in a dead body and hence to talk about its transfer would be unheard of. There is no title in a corpse to own it. All that the laws, especially the municipal/corporation laws, guarantee is the right of the nearest relative to take possession of a corpse for burial or cremation. Ever since the advancement in science recognizes the possibility of organ transplantation from a dead person, dead body has become a thing of value. Scarlett, a teenager, was found dead in Callangute beach in Goa. A month after the body was flown to UK, her mother has claimed that the autopsy has revealed that her kidneys, stomach and uterus are missing and she will get back to India to pursue her fight for justice.
The Anatomy Act of 1949 was a model legislation that was passed by the Indian Parliament which was adopted with minor modifications in all States. The object of the legislation has been to provide for supply of unclaimed bodies of deceased persons to teaching medical institutions and hospitals for the purpose of anatomical examination and dissection or medical relief or treatment. When there is any doubt regarding the cause of death, the Act also provides that the unclaimed body to be referred to the police officer under section 174 of the Code of Criminal Procedure, 1898. Pending receipt of any claim, the dead body shall be removed to the hospital or the teaching medical institution for preservation from decay. Dead bodies which are received shall be kept temporarily in the cold storage of the Mortuary until they are removed to the Anatomy Department. In the Anatomy Department they shall be washed and preserved by means of formalin or glycerin solution. Those which are not required for immediate use shall be kept in a tank containing preservation solution. Once a body has undergone a process or other application of human skill, such as stuffing or embalming, it can, it seems, be the subject of property in the ordinary way. And the same goes for body parts. Thus in the grisly case of R v Kelly (1999) robbers who abstracted and sold preserved specimens from the Royal College of Surgeons' collection (UK) were held rightly convicted of theft. The right to the organs was recognized in the hospital and not to the relatives.
The Human Transplantation of Organs Act 42 of 1994 was passed by the Indian Parliament to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto. While commercial exploitation is an offence, mere removal of organs inside from a dead body does not appear to be an offence. R v Kelly threw an interesting sidelight when the accused was defending his act of removal of the organs on the ground that he loved dead bodies and he used the organs for making prototypes and sell them as exhibits of artistic value! There have been strange cases associated with dead bodies in various parts of the globe and the issues have come knocking at the portals of courts at various times. In re Organ Retention Group Litigation, [2004] EWHC 644 (QB), [2005] QB 506, the claimants in a group action were all parents of deceased children on whom post mortems had been conducted by doctors to establish the causes of death. The claimants alleged that, although they had consented to the post mortems, the organs of the children had been removed, retained and subsequently disposed of without their knowledge. The Queen’s Bench held that the removal and retention of the organs were lawful and the claimants' right of possession to the organs based on a duty of burial did not arise; and that, accordingly, there could be no action for wrongful interference with a body. However, it ruled that the claimants' case in negligence was held to be sustainable. It only arose in the context of hospital post mortems; that the evidence of doctors and the experts showed that doctors could owe a duty of care to a mother after a death of her baby on a doctor-patient basis; that once the doctor-patient relationship was established, the doctor owed a duty of care when seeking consent for a post mortem examination; that although the duty was to ensure non-objection, some explanation of what the parents were being asked not to object to must have been involved; that the duty of care extended to giving the parents an explanation of the purpose of the post mortem and what it involved including alerting them to the fact that organs might be retained; that the practice of not warning parents that a post mortem might involve the removal and subsequent retention of an organ could not be justified as a practice to be adopted in all cases; and that, in the circumstances, only one of the claims in negligence succeeded.
By Indian tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead. Duties to protect the dignity of the human body after its death are deeply rooted in our nation's history. Recently, the Madras High Court upheld the claim of the father of a rubber plantation worker who died in Malaysia and whose body had been kept in the mortuary for 7 months and directed the Government of India to take steps to transport the body to India free of cost. When Scarlett's mother took the body of her daughter to UK, could it be said that she had a right to take merely the frame of her body sans the organs within it? Maybe, when we learn to treat the human beings with respect, we will have known to treat the dead body also with reverance

No tear for the hoardings

2008-04-13T09:49:00.000-07:00

Take a drive down the road in the early morning during monsoon, when the city sleeps, that is when the buildings are drenched in rain and look washed and clean. Or jog along on a wintry morning over the dew kissed meadow. Or think of an occasion when a beautiful painting remains draped by a curtain and someone pulls the strings that unfold the lovely manifestation of the objet d'art. Just as exhilarating was the experience when, thanks to the Supreme Court judgment vacating the order of stay of removal of hoardings and upholding the validity of Tamil Nadu Urban Local Bodies Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules,2003, the hoardings came tumbling down. It all started with tearing away of the vinyl sheets with large iron frames standing tall. Next came those valiant men of the Chennai Corporation working on huge structures and shearing metal frames with gas cutters. Suddenly the buildings are visible; the trees look greener; the roads seem broader; the pavements are stumble-free.
Sparkling billboards are relatively a new phenomenon. Commercialization and consumerism fueled their growth to gigantic proportions. From drawings on walls, to paintings on large tin sheets to still larger colorful prints on vinyl sheets, they metamorphosed to powerful tools in your decision-making on the products you wished to consume. From roadsides, to arterial roads, to public property, to being mounted on tall private buildings, you could feel their ubiquitous presence at every turn. Again, from the single arc lamps, to colorful blinking lights, they arrested your attention and distracted you. From big to bigger to gigantic sizes, they clothed the buildings to a gaudy spectacle. Thanks to heritage activists and environmental friendly buddies, there were court restrain orders through enforcement of legislations.
Each state had its own problems. Metropolitan cities were the first sufferers. The objections at Mumbai came through a complaint- route targeting the hoardings as violating the Heritage Regulations for Greater Bombay, 1995. In a decision delivered by the Supreme court in 2005 in Mass Holdings Pvt. Ltd. v Municipal Corpn. of Greater Mumbai & Anr, it directed the removal of hoardings from Mahalaxmi precincts. In yet another case, the Bombay High Court ensured that a hoarding put up at the Tower of Silence (Zorastrian Crematorium) was removed on the ground that heritage sites could not be sullied. An Allahabad High Court judgment said that posters, hoardings and statutes on roads were a nuisance and directed in a judgment in 2005 that District Magistrates should make certain their removal, wherever they obstructed free flow of traffic. In the same year the High Court of Rajasthan initiated a suo motu proceeding which was in the nature of a public interest litigation directing the State of Rajasthan and other local bodies as to why hoardings were being permitted in Jaipur which were hazardous to traffic. The Supreme Court affirmed the directions and reiterated that Government was well within its powers to regulate licences regarding hoardings in a decision in 2006 in Jaipur Aloo Aaratiya Sangh and Ors. v State of Rajasthan and Ors. A decision in Punjab and Haryana High court in 2004 and still later a decision of 2007 from Delhi High Court frowned upon the hoardings as public nuisances and liable for removal. The Delhi Court decision was again affirmed by the Supreme Court. Tamil Nadu Rules are just as significant in that they prohibit grant of licences, (i) in front of educational institutions, popular places of worship and hospitals with inpatient treatment facility; (ii) in the corners of road or street junctions, up to a distance of 100 metres on either sides of the junction; and (iii) in front of places of historical or aesthetic importance.
Notwithstanding the consistent string of authorities expressing abhorrence to hoardings in public places and the State’s power to regulate their exhibition in public as well as private places, the particular industry has grown by court orders of stay. The judgment of the Supreme Court has not come a day too soon. The judgment has been delivered after a long gestation from the time when it was reserved for judgment. If you thought that the lackadaisical approach to helmet regulations, or auto meters were any indication to how the state government would enforce the judgment of the Supreme Court, you may be pleasantly surprised. The response from the government to the judgment has been phenomenal. The judgment had been delivered on a Thursday and the same night the hoardings were being removed. Be vigilant and make sure they do not come up.
There are sometimes, when you had rather wished that authorities do not act with such alacrity. The drive-in restaurant near the Gemini at Chennai is sadly closed. If you are a chennaiite, maybe, you had it as a venue for an amorous rendezvous, or for a business decision or held it as just a hangout with friends or as a weekend destination with your family. You may shed a tear or two, but don’t go overboard and break the gates open. If it is restored as a horticultural garden, would it not be good idea as a spot for the yearly parties of the Bar Association, but without speeches, shawls and garlands?

Fitness matters

2008-03-31T15:13:00.000-07:00

The new mantra is fitness. It is the buzz word amongst the business elite, the filmy people, the celebrities and indeed everyone who is a person of reckoning. As lawyers and judges, we are more the objects of public gaze, as performers of cerebral arts through speaking and writing. We work at home, at the chambers, in the car and in the courts. There is a whole range of people of diverse ages, the young, middle aged and the old; the galloping types, the slithering ones and the slow paced; the persons who traverse the corridors in ones, twos and in a multitude. Whoever you are and whichever category that you belong, ask yourself these questions: Do you scowl at the folks at home when you return after a hard day’s work? Do you refuse to be drawn into any fun game with your young son or daughter? Do you scorch your clients with harsh words, for his query-some concerns about when his case is likely to be disposed of? If your answer is yes to any of the questions, it is time to shift gear.
Our profession calls for indefatigable energy. The successful ones are the persons who carry on their lives with abundance of cheer. You will find more successful lawyers in a club playing bridge or rummy than any other professional. Music sabhas will have a fair sprinkling of our genre as office bearers than persons of any other calling. They are better public speakers than many other persons pursuing different avocations. Successful persons of law are those who carry a brisk life style, with healthy body and mind. Antacid chewing lawyers are getting side-lined! The winsome countenance belongs to the healthier among the men in black. Recreation and regular exercise bring the sheen to this admirable brand of people. Don’t merely rest with what physical activity that the walking in the court corridors compel you to do. Set apart some time for exercise and physical activity outside the court milieu. Some texts describe ‘physical activity as an inclusive term that refers to any expenditure of energy brought about by bodily movement via the skeletal muscles; as such, it includes the complete spectrum of activity from very low resting levels to maximal exertion. Exercise is a component of physical activity. The distinguishing characteristic of exercise is that it is a structured activity specifically planned to develop and maintain physical fitness. Physical conditioning refers to the development of physical fitness through the adaptation of the body and its various systems to an exercise programme’.
The greatest benefit of a regular exercise programme is an improvement in overall fitness. Appropriate exercise improves muscular strength and endurance, body composition, flexibility, and cardio-respiratory endurance. You do not get fatigued fast. You will have learnt the art of walking from court to court without complaining. You will have greater lung power not to be caught short of breath. You will not be on edge when you are asked the most inconvenient question, or when your opponent is delivering the most untenable arguments. All this is not to suggest that you become a saint by being fit but you will have attained to a level of coping with minor aberrations that accompany all our lives. If you do not mind a little technical detail, ‘a middle-aged person who exercises regularly will have a maximal aerobic power 10 to 12 times resting, so a 4 km per hour walk will represent only 25 to 30 percent of maximal capacity. Any sub-maximal task is relatively much easier for the conditioned individual. A person cannot work throughout the day at much more than about 20 percent of maximal capacity without becoming chronically fatigued. The de-conditioned person who has a maximal aerobic power of six times resting can comfortably sustain a work level of only about 1.2 times resting throughout the day (6 x 0.20 = 1.2). This low capability for sustained energy expenditure can support only a very sedentary existence: for example, 20 hours of sleep and rest, two hours of personal care, one hour of housework and shopping, and one hour of activity at three times the resting rate each day’. Different types of fitness may be important not only to different individuals but also to the same individual at different times. When you were young and in college, participating in a completion was what could have been your focus. The typical middle-aged individual is not as likely to be concerned about athletic success, as with general health. Characteristics of health-related physical fitness is only partly determined by genetic factors and inheritance but profoundly influenced by exercise habits.
In court and at your chambers, keep a constant self appraisal about how you sit, how you walk, how you stand and how you speak. Sitting erect is not the correct sitting posture, contrary to the commonly held opinion. This erect sitting posture cannot be maintained for more than one or two minutes and usually results in fatigue, discomfort and poor posture. It is slightly bent-over position, such as when you are lying on your side while sleeping, which is appropriate. A seat that tilts forward encourages this natural posture. Opposing muscle groups are balanced and the lumbar curve is preserved producing balanced seating in which the back is straight, the joint angles are open and the muscles are relaxed. This position provides greater mobility and relieves pressure on the lungs and stomach. While standing for argument, stand on both legs. Don’t stand up straight or slump over the small wooden stool placed on the horse-shoe table. A poised stance is when your legs are positioned about a foot wide and look facing the person whom you are addressing. And about your voice level, keep it to a comfortable pitch that does not strain your vocal cords and make you cough. Adopt a tone that is appropriate for the occasion. Anger, reprimand, jest, seriousness and light banter have all their space and relevance. None of these emotions require raising the voice.
Are you ready now? Get, set, go…

Think differently

2008-03-23T21:02:00.000-07:00

Law and logic seem to be inextricably inter-twined that a serious practitioner of law is tempted to believe that a structured reasoning alone could deliver results. In actuality, a certain kink in a smooth terrain brings unbelievably superb results. This applies to what makes poetry; what explains great economic theories; what makes a comic situation; what secures enduring results in a negotiated settlement and what gets at truth in cross examination of witnesses. Each of these statements would admit of facile examples.

Modern poetry makes no virtue of meter and rhythm. The content has to be fresh, though. It should fill you with wonderment by the time the central idea to the poetry sinks. Haiku adopts one such technique. A Japanese innovation that once was, is universal in its practice. Even Rabindra Nath Tagore wrote Haiku poems in Bengali. The beauty of this form is its brevity and a stunningly surprise element in the last line. The first two lines go along a trajectory and the third one lets you see the whole subject in a new context; in a new direction and in an unexpected dimension that thrills your soul.
Hockey…
Gracefully slither
He sneaks to the net untouched
With one swing he scores.
The game that had taken India to the pinnacles of glory has slipped away from us. Look at how a poet puts the imagery of the game through a successful player. His is a dribbling type. He does not sprint. He does not run fast. He slithers. No one notices him going up to the goal post. He literally sneaks to the net. Everything about his movement seems to be to deceive. See what he achieves. He swings, he scores, and there is attention from every quarter. There is a roar. There is victory. From an unnoticeable action to a resounding thud at the deck!

Freakonomics was an expression coined by Steven D.Levitt and Stephen J.Dubner to explain the method of exploring the hidden side of everything. Why does not capital punishment deter criminals is one of the questions asked. Given the rarity with which executions are carried out in the country and the long delays in doing so, no reasonable criminal should be deterred by the threat of execution, they would answer. Does increasing the number of police reduce crime? If your answer is yes, the authors would remind you that when the crime is rising, people clamour for protection, and invariably more resource allocation is found for cops. So if you look at raw correlations between police and crime, you will find that when there are more police, there tends to be more crime. That does not mean of course, that the police are responsible for more crimes!

A good joke is a narration of an incident that goes along an even keel. Allow the inference of fact or an inner meaning to a given incident as constituting the next dimension. On a triptych, often not on the same wave of logic but a third dimension which is possible to extrapolate from the factual matrix constitutes the comic situation. You may apply this test to any joke from the vulgar and profane to the subtle and esoteric. For instance, in a typical court room setting, the lawyer asks the doctor, “ Did you perform the post mortem on the dead body?”. The doctor replied, “ I always perform postmortem only on dead bodies!” The first query seeks to elicit a simple response. If the answer had been yes or no, it would be most logical. The comic situation, is how the doctor perceives the question to reply in a different context, applying a different logic

De Bono invented two famous theories, ‘lateral thinking’ and ‘parallel thinking’. With the traditional argument or adversarial thinking each side takes a different position and then seeks to attack the other side. Each side seeks to prove that the other side is wrong. This is the type of thinking established by the Greek Gang of Three (Socrates, Plato and Aristotle) two thousand four hundred years ago. Adversarial thinking completely lacks a constructive, creative or design element. It was intended only to discover the 'truth' not to build anything. With 'parallel thinking' both sides (or all parties0 are thinking in parallel in the same direction. There is co-operative and co-ordinated thinking. The direction itself can be changed in order to give a full scan of the situation. But at every moment each thinker is thinking in parallel with all the other thinkers. There does not have to be agreement. Statements or thoughts which are indeed contradictory are not argued out but laid down in parallel. In the final stage the way forward is 'designed' from the parallel thought that has been laid out. Ask any of your friends trained in mediation. He will vouch for the success of this method of resolving disputes which aims at enduring settlements by identifying the underlying interests of the contesting parties that may not always appear on surface by the posturing that the litigants adopt, but given an insight into parallel thinking, you will arrive at the desired result.

Are you a trial lawyer? In criminal and civil practice, so long as your questioning seeks to elicit a fact along a chain of logical events, the answers will be predictable. A resolute no or yes that you get from the witness gets you nowhere near the truth. Take a round about turn and ask him about an event which only the deponent knows but which he wants to assiduously conceal. Presto, in an unguarded moment, he will splutter the truth. That is why cross examination is an art, while chief examination is a procedure.

The central theme to this piece is, there is no logic for every happening. Seemingly unconnected things have a rare design. The beauty of the spectacle resides in the beholder whose ability is to marvel at this design which is divine. You cannot be what you are not destined to be. You cannot do what is not assigned for you. Now read the first sentence again. Get reaffirmed in the faith, there could be law that is not subsumed in logic. Higher laws could transcend logic!

Of Law Reports, authors and legislations

2008-03-17T21:51:00.000-07:00

Shri.V.C. Gopalranam, who edited the commemoration volume of the completion of a century of the High Court had catchy slogans for judges and lawyers alike, for the work turned out by them through his expressions, ‘They sat and decided’ while referring to the Judges and said of the lawyers, ‘They stood and argued’. Even apart from the judges and lawyers, are we justified in trying to gauge the development of law only by the judgments rendered by High Courts and Supreme Court without minding the vast repertoire of statutory enactments and the writings of eminent authors, asked Shri.T.R.Mani, a venerable senior counsel of Madras High Court, when we were trying to trace the development of law by the Madras High Court with reference to landmark judgments of our High Court. Significant developments there no doubt have been, when through judgments, there were new interpretations of statutory law; when the principles of law have been enunciated through lucid judgments and when judgments have signaled the march of law by simplified procedure. But law reports, legislations, authors and eminent lawyers, have each made impressive contributions to the march of law, have they not?

Shri.T.R.Mani shared interesting information about the diverse facets of the development of law. First to innovative law reporting: If our High Court was constituted in 1862 the Madras High Court Reporter (MHCR) rolled out its volume even a year earlier, that is, from 1861! We have had interesting legal history through pioneering system of publication. The Madras Law Journal published Subject Noted Index of Case Laws in three volumes in 1955. The first volume consisted of digest of cases from Privy Council and Calcutta, the second volume of Bombay and Madras and the third volume of Nagpur. The index was the first citator of its kind recording ‘the cases followed’ and ‘cases overruled’. In these days of computerization, you may easily browse through cases followed and over ruled but recognise the arduous task of collecting all the cases and tracking their history through the value of precedents by a record of when each case was followed and when it was overruled. If the Madras Law Journal created history as the First Indian Law Journal in 1891, All India Reporter struck new ground when it compiled in one volume, all the judgments of various high courts in 1919, 28 years before independence. The success of the Indian experience was what gave birth to a similar publication through All England Reporter in the year 1935 in England. Labour Law Journal and Labour Law Notes were both started in our State with exclusive reporting of labour law cases. MLJ brought out the first March of Law in 1960 that captured all the important decisions that expanded the frontiers of law for better understanding. MLJ was contributed by libraries and courts in New York, Chicago and also by the Privy Council.

The Board Standing Orders of 1803 were regulations that held statutory character and now, even though the Board of Revenue has been abolished, several of the Orders still hold the field of Revenue Administration. The Madras provincial legislature had its firsts in several of the legislation that were the model for other states to follow. The Madras City Municipal Corporation Act 1919 and the District Municipalities Act 1920 were the first noteworthy enactments containing provisions for local administration. They were replicated with minor variations for other corporations and municipalities all over India. Hindu Religious Endowment Act 1927 was similarly the earliest piece of legislation governing Hindu religious institutions. Estate Abolition Acts established momentous milestones of land reforms and the first enactment came in the then Madras Presidency after Prakasam Committee report. The Act was drafted by Shri. K. Bashyam when he was the Minister of Law. The Madras City Tenant Protection Act of 1927 was the first enactment of its kind granting a right to the tenant to purchase the vacant site from the landlord, if he had put up a super structure on the demised land. The act was periodically extended to other major cities also. Sales Tax Act and Debt Relief Legislations were innovations from the Madras Province.

There have been great authors also in various fields from Madras. John D. Mayne brought out the first compilation of Hindu Law in 1878. Mayne wrote in his first edition on Hindu Law about his own inadequacy, which he called as painful consciousness of the disadvantage under which he had laboured from his ignorance of Sanskrit. Mr. Colebrooke had been a Sanskrit scholar and translated many important Hindu texts for the understanding of Hindu Family Law but did not have an inclination to write a comprehensive treatise. The first Indians to edit Mayne’s book were Shri. Srinivasa Iyengar and Shri. Raja Iyer. Ramaswamy Iyer on Torts was unique in that when it was published in 1932, it traced the law of torts from Fiji to America, that is, in diverse legal regimes of many of the English speaking countries, including all the now common wealth countries and of USA. Ramaiya’s Company Law in 1956 was truly epochal in the sense that the book became so popular with successive editions that the name Ramaiya has become synonymous with the subject that he wrote. Bashyam and Adiga’s Negotiable instruments in 1909 traced the development of law not merely from the case law cited in Madras High courts and other courts in India but had huge references to cases from England, Canada and even Singapore. Ganapathi Iyer on Trusts and Sundararaja Iyengar on Land Tenure were major contributions to the understanding of the land laws from the days of Manu to the borrowal of Roman law concepts of property holdings. Shri.V.G. Ramachandran began his practice from a mofussil court at Tirukkoilur to be later a member of the Languages Commission and still later in the editorial board of the Supreme Court Cases. His books on Land Acquisition Act, Fundamental Rights and Constitutional Remedies, Law of Writs, Contempt of Court, Declaratory Judgments and Contract Act are excellent contributions of a lawyer from Tamil Nadu to the legal literature in India.

The new auction game

2008-03-09T07:07:00.000-07:00

Would you care to know about what you are worth as a lawyer? Our lawyers offer their services ranging from over 1 million rupees as day fee to a few eggs for personal consumption for bail. The lucky part is that the rates are settled in the confines of a lawyer’s chamber or in the shady region of a tree. It neither attracts media attention nor celebrity participation of attractive men and women attired in see through dresses and flamboyant goggles. If the Indian Premier League’s strategy of promoting the cause of cricket through cash-rich industrial houses should catch universal attention to adaptation in other fields as well, we may see many of our professionals going up in auctions.
The players themselves have sounded buoyant. Some have said that this signals the beginning of new era of popularizing the game. Some have said that the players have never had it better for improving their game for being offered better bids in future. The players have known their relative worth , they say. Did you think that McGrath was one of the world’s best bowlers with silken glide of a run up and smooth delivery? Have you loved to see Chanderpaul’s type of measured aggression? What do you think of another West Indian Ramnaresh Sarwan, who looks so much like your neighbor next door but cracks the ball hard? Poor lot, they were among the unsold ones! Symmonds will realize that we Indians could not be racial after all. There are guys who place a greater price for him than they have done for his own ‘white’ captain Ricky Ponting.
This event, for odious reasons, reminds one of the historically shameful practice that went in the shape of public auction of slaves. Go through the famous encyclopedias that chronicle this trade. Slavery, though abundantly practiced in Africa itself and widespread in the ancient Mediterranean world, had nearly died out in medieval Europe. It was revived by the Portuguese in Prince Henry's time, beginning with the enslavement of Berbers in 1442. New World black slavery began in 1502, when Gov. Nicolás de Ovando of Hispaniola imported a few evidently Spanish-born blacks from Spain. The Portuguese at first practiced Indian slavery in Brazil and continued to employ it partially until 1755. As the English, French, Dutch, and, to a lesser extent, the Danes colonized the smaller West Indian islands, these became plantation settlements, largely cultivated by blacks. When the slave trade was at its height during the 18th century, the export of slaves was averaging 45,000 a year. About half these slaves were unfortunates in their own societies: criminals, the mentally or physically handicapped, debtors or those who had been sold for debt or pledged as security for a debt, those who had offended men of power or influence, or simply those who in some way had become outcasts from the family and tribal systems. Selling such people was usually simply an alternative to keeping them in some kind of servitude in domestic society or, in more extreme situations, condemning them to execution or to serve as human sacrifices in the festivals of ancestral or land cults. The remainders of the slaves exported were strangers to the societies that sold them, sometimes unwary travelers or border villagers who were kidnapped, but for the most part prisoners of war. The blacks from the western African region were the most traded lot in America. All the civil wars and equality doctrines have not effaced the memory of the subjugation of the blacks in USA or the deep scars of anguish of aborigines of Australia. Lawyers had roles to play in all these trades. They drew up indentures the same way as they now do for sale notes of merchandise of common use or sale deeds of immovable properties. See the sample deeds of sale in some popular websites and experience the revulsion.
Slavery has been abolished but trafficking in women and children have been the substituted practice. The hapless victims go to enrich a hateful community of pimps and pedophiles that all the laws have not been able to eradicate. We have now inaugurated an exercise which the law does not even prophibit. Shri.V.R.Krishana Iyer has excoriated through an article in an English daily the pernicious portent of this new initiative that sullies the delightful sport that cricket is. Bal Thackarey and Sharad Yadav have queried Pawar on how he is allowing cricket to slide down to such abysmal depths. If this practice gains public approbation, chances are, bidding for professionals may begin everywhere. Would you mind if someone is prepared to bid for you for $1.5 millions or $1.35 miilons as Dhoni and Symmonds have been bid for? Remember these players are offered these prodigious sums just for a few hours or days, when they have to pledge themselves for playful work. It is not the whole lifetime retainer. If this is done to us, would we not rather abandon practice than succumbing to a rating brought under public gaze by moneyed people?

Begin the legal celebrity count with ...

2008-03-09T07:03:00.000-07:00

Strange is the course of legal history. The most remembered are not the men who wrote long judgments. Brevity has never been a popular trait either with judges or lawyers. You will find as many judges complaining about lawyers’ long winding arguments as you may hear of lawyers grimacing about the prolix ways of some of the judges. Chief Justice Sikri wrote 2263 paragraphs in about 650 pages in print in Kesavananda Bharati’s case. Perhaps, it was the longest judgment by a single judge in our Constitutional history of India since 1950. But whose name resonates with passion in your memory when you think of this case? In the same vein, when someone speaks to you about the ‘darkest hour of Indian judiciary’, who do you think held up the torch in that blinding abyss to which individual liberty was buried in ADM Jabalpur? It is impossible to forget the name of H.R.Khanna. Along with him were 4 men, who held differently and each had well trained writing prowess to give good reasons to support their views. One was a Chief Justice and 3 other men rose to be Chief Justices one after another. H.R.Khanna knew what he sacrificed but he was far too much a colossal figure to be accommodated in that seat. He died recently on 25th February 2008 at a ripe old age of 95.

It is not only poetry that is worthy of impromptu recall; there are great passages of prose. They make the whole body of literature. Legal literature would not be complete without reading and re-reading what Justice Khanna wrote about individual liberty, in A.D.M.Jabalpur. It shall not be placed on a platter conveniently for consumption here! Take that little effort to go to your library, dust the volume that contains the text and read it. A lone dissenter had beautiful expressions not to sulk but to exemplify the virtue of dissent, if only it was to say what your conscience dictated you to utter. He said, "As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed."

Betrand Russel said in his book, ‘Religion and Science’, “Those to whom intellectual freedom is personally important may be a minority in the community, but among them are the men of most importance to the future. We have seen the importance of Copernicus, Galileo, and Darwin in the history of mankind, and it is not to be supposed that the future will produce no more such men. If they are prevented from doing their work and having their due effect, the human race will stagnate, and a new Dark Age will succeed, as the earlier Dark Age succeeded the brilliant period of antiquity. New truth is often uncomfortable, especially to the holders of power; nevertheless, amid the long record of cruelty and bigotry, it is the most important achievement of our intelligent but wayward species.” Know what each one of those three men did: Copernicus began writing his major work De Revolutionibus Orbium Coelestium (On the Revolutions of the Celestial Spheres) in 1517 AD. His theory was that the earth rotates daily on its axis and revolves around the sun yearly. Known as the heliocentric system it challenged the Ptolemaic theory that the earth was the centre of the universe, the geocentric system. His work was put in the Index of Forbidden Books in 1611 and not taken out until around 1835. Like Copernicus, Galileo's books were included in the Index of Forbidden Books in 1616. In 1632 his book Dialogue on the Two Chief World Systems was published. Galileo had cleverly titled his book but there was no doubt as to where his beliefs lay. His work was a clear endorsement of the Copernican system. The Pope was not amused and called him before the Inquisition to stand trial for heresy. Galileo was tried in Rome in February 1633 and on June 16 was sentenced. After years of work Darwin wrote his famous and at the time controversial book On the Origin of Species by Means of Natural Selection which was published in 1859. It basically stated that life evolves by a process of natural selection. As with Galileo the churches and theologians attacked the findings. It conflicted with their views of special creation placing humans along side the other animals.

The 3 men conflicted with established beliefs of the world’s most powerful religious institution. All the persecution and ridicule could not silence them. They cannot just be forgotten. If someone asks you to begin the count of great judges who made all the difference in terms of brevity of content and quality, would you not begin the count with Justice H.R.Khanna?

Debt Relief Legislation & Litigation

2008-03-05T02:31:00.000-08:00

The budget proposal to write off debts to the tune of Rs.60,000 crores due by small and medium farmers to the banking sector and rural co-operative credit has been greeted with hooplas and hurrahs. A renowned scientist of international reckoning has said that these measures are not sufficient. He has pleaded for expanding the categories of farmers eligible for waivers to include persons holding larger extents with no irrigation facilities, persons with land holdings in certain dry parts of the country and also to farmers who have availed of credit from private money lenders. The last suggestion is a topic too familiar to lawyers. It was in the then Madras Presidency that the saga of agriculturists debt relief legislations began. Called by the common folk as Rajaji Act, it was Act 4 of 1938 that contained provisions for reducing the rate of interest of loans for agriculturists, notwithstanding the specifications for higher interest in the contract, provisions for scaling down of debts having due regard to repayments already made at higher rates of interest, wiping out debts if the amount paid towards interest or principal had equaled twice the principal, setting aside sales that had already taken place and reworking the amount payable. The Act also contained special provisions for redemption of usufructuary mortgages that had complicated and technical rules of discharge in instances when the mortgagor continued in possession under a lease back arrangement with the usufructuary mortgagee.

The Agriculturists Debt Relief Act was hammered and chiseled, maimed and amended several times both by legislative exercise and judicial pronouncements. Cases multiplied to such an extent that the Chief Justice Lionel Leach constituted a special bench with Wadsworth and Patanjali Sastri JJ to deal with all the cases exclusively so that there would be consistency in approach and interpretation. The constitutionality of the Act on the ground that the provincial legislation had no power to deal with matters relating to negotiable instruments was rejected by the Full Bench in Nagaratnamma v Seshayya (1939) by adopting the well known principle of pith and substance doctrine in identifying the Act as dealing principally with money-lending which was a provincial subject and indebtedness arising out of contract which was in the concurrent list under the Government of India Act 1935 and the Governor and General having assented to the legislation under section 107 of GI Act, the legislative competence of the provincial legislature could not be doubted. The vires of the Act came for consideration again when Wadsworth J, while dismissing a civil revision petition in terms of the Full Bench to which he was a party, granted leave to appeal to the Federal Court, which again decided that the Act was intra vires the legislative powers in Subramanyan Chettiar v Muthuswami Goundan (1941). The Federal Court, while dealing with Bengal Money Lenders Act, which dealt with scaling down of all debts had held in Bank of Commerce v Kunja Behari Kar that the Act was intra vires only in so far as the debts did not apply to negotiable instruments and ultra vires in so far as it made provisions for promissory notes. This decision was the cause for reference to a Full Bench again, which held in Perumal Reddiar v Suppiah Thevar that the fact that the Federal Court had granted leave in Bank of Commerce to prefer an appeal to Privy Council need not deter them and said earlier Full Bench ruling would stand in view of the Federal Court decision in Subramania Chettiar. There was soon enough an ordinance that the Act would apply also to promissory notes to clear the cloud created by Bank of Commerce decision. The challenge to the Ordinance was rejected again by the Federal Court in Kothapu Subbi Redi v Sanepalli Chenna Reddi (1946).

The 1938 Act and the litigations just refused to fade. It was resurrected through Amending Act 8 of 1973 and similar provisions for ‘indebted persons’ who were not agriculturists under Act 38 of 1972. From 1975 to 1980, there were several avatars of debt relief legislations through Act 15 of 1975, 16 of 1975, their periodical extensions, Act 40 of 79, Act 13 of 1980, Act 50 of 83, each containing novel provisions for scaling down or wiping out debts. Act 13 of 1980 came for adverse criticism when it completely wiped away debts to creditors irrespective of their own economic status and the Act was repealed to save the creditors from ruin. The law reports are surfeit with decisions that speak volumes on the interpretative forensic skills of the legal fraternity. There had been a long respite for debt relief legislations and it had to wait till the State Government, soon after assuming power in the last election made a wipe out of debts due to Cooperative Societies that cost the institutions Rs.600 crores.

Some people say that the proposal to write off debts gives a premium to dishonesty. The Finance Minister’s sops will soon be complemented, it is believed , with State legislation granting debt reliefs from private money lenders. These lenders have now known their game too well. They do not advance moneys on promissory notes. Instead, they enter into agreements for sale which they put into court for enforcement if the moneys are not repaid as promised. Whoever loses, there are more litigations round the corner. There could be reliefs from debts but how could anyone guarantee relief from litigations on debt relief?

My State, My People

2008-02-18T20:27:00.000-08:00

We all have a strange way of asserting our identities. Living within a heterogeneous group of communities, we will see ourselves as belonging to a particular caste or religion; within our country residing outside State, we will feel our State identity emerging to the fore; when we travel in a foreign country, we will constantly realize how different we are as Indians in so many ways; and don’t you remember what Sunita Williams said about how she felt seeing our globe from the Space, - one single world without boundaries?! Only by transcending to a higher plane of living at every turn literally, can you forget your narrow identity and see yourself as a part of larger milieu.

The chauvinistic and inflammatory rant of the Maharashtra Navnirman Sena chief, Raj Thackeray, against North Indians living in Mumbai, targeting in particular the Bollywood icon, Amitabh Bachchan, for establishing a college in a village in U.P. and making a wayside diatribe against Lallu Prasad alleging that Biharis were being favoured in employment in the railways have cast a spell of violence in Mumbai. In Mumbai, they not only stop a railway recruitment exam, they even vandalise a railway office. In Assam , they prevent Biharis from taking a railway recruitment exam. In Bihar , they retaliate by beating up Assamese students in trains. Back in Assam again, they retaliate for this retaliation by killing Biharis. Bal Thackeray went to Goa and urged audiences to keep non-Goans out of Goa by implementing a permit system. If the Cauvery Tribunal passes an award about the sharing of waters between Karnataka and Tamil Nadu, the farmers of Karnataka go on a rampage burning buses from Tamil Nadu. It is a recurrent theme. Here again, lift yourself to a higher plane and see what is happening around the world. We are not alone in our parochial ways.

The politics of the smallest state in the Australian Federation, Tasmania, provides a clear example of parochialism, both at the state level, with the north/south divide while also strongly influencing the interaction of Tasmanian leaders with their mainland counterparts. Canadian foreign policy is said to be constrained by the parochial economic and material interests of the provincial governments. The emergence of regionally based political parties at the federal level, such as the Bloc Québécois and the former Reform Party, has also helped promote parochial regional interests within Parliament. The nature of the electoral system in Ireland and the weak powers of Local government reinforce parochial voting patterns and politics. The US Supreme Court has dealt with issues ranging from justification of applicability of a particular State law to transactions covering inter state commerce (Phillips Petroleum co v Shutts et al (472 U.S. 797; 105 S. Ct. 2965)) to favouring domicile in a particular region for employments within a particular State ( United Building & Construction Trades Council of Amden Country and Vicinity v Mayor and Council of the City of Camden (465 U.S. 208; 104 S. Ct. 1020)) to further issues of differential State taxes for entities established outside State (Metropolitan Life Insurance Co et al v Ward et al; Board of Education of Oklahoma City v. National Gay Task Force; Fugate v New Mexico (470 U.S. 869; 105 S. Ct. 1676)) to still further issues of complaints of conspiracy of not allowing a legal practitioner of one State to pass the bar examination in another State (Hoover et al v Ronwin et al (466 U.S. 558; 104 S. Ct. 1989)). In everyone of the cases, the US Supreme Court has stood over parochial tendencies and reiterated a pan-US identity.

Among nationalist ideologies fascist ideologues taught that national identity was the foundation of individual identity and should not be corrupted by foreign influences, especially if they were left-wing. Nazism condemned Marxist and liberal internationalisms as threats to German national unity. Fascists in general wanted to replace internationalist class solidarity with nationalist class collaboration. The Italian, French, and Spanish notion of integral nationalism was hostile to individualism and political pluralism. Unlike democratic conservatives, fascists accused their political opponents of being less patriotic than they, sometimes even labeling them traitors. Portuguese fascists spoke of ‘internal foreigners’ who were ‘anti-nation’. The point is, if you look for differences, they exist everywhere. In the way we talk; in the way we dress; in the languages that we speak; in the temperaments that we have; in the colour of the skin that we are born with; in the intellectual capabilities that we are endowed with; in the financial resources that we possess and what have you. Uniform laws cannot bring uniformity here. At every stage, we shall pull ourselves above the narrow ring that we are drawing around us. It could come through spiritual practice; it could come through constant training of the mind seeing these differences as going to make such a lovely mosaic of infinite variety, the same way as variegated flowers of different hues and fragrances making the garden a true delight to behold. Beyond Article 14 is what your attitude is!

Uniform Cvil Code

2008-02-13T03:52:00.000-08:00

Constitutional objective of Uniform Civil Code through succession law?

The law commission of India has placed its recent report to the government making suggestions for change in the Hindu Succession Act. All communities, except the Muslims, are governed by statutory laws relating to succession. Joint Family system and the laws governing them may be rooted in customary law but in the matter of succession, the Hindu Succession Act has displaced the efficacy of the customary law. The Hindu Succession Act itself states through a provision that in the matter of properties held by joint family members, the property will go by survivorship recognized under the Mitakashara customary law and not by succession. The provision carves out an important exception of operating succession law in the presence of a female member. This section also underwent a further change when through the 2005 Amending Act, a daughter was a deemed coparcener and therefore if a Hindu male in a joint family died leaving only father, sons and daughters, the Hindu Succession Act would have still applied and rule of survivorship would not apply. A share in the property would not go to the surviving father, even if he was a member of the coparcenary with his children.

The Succession law for Hindus provided for a share to a widow, son, daughter and mother equal shares. The father had no share. The Law Commission now recommends that the father should be treated as a co-heir with the mother and together they would take one share. The change advocated does not reduce the share of either the widow or the children of the deceased. It takes a slice of the share only from the mother. If in the same situation, the parties had been Muslims, the primary heirs would have been father and mother taking for themselves one sixth share each. The sons and daughters would have taken the residuary share in such a way that the sons would have taken twice as much as the daughters. If the family had been Christians, under the Indian Succession Act, one-third share would have been taken by the widow and the remaining two-third would have been equally by the sons and daughters. Neither the father nor the mother would have taken any share.

When our social living is more or less similar and the division of the society through various religions is merely a matter of chance, there could be no fairness for providing such varying chances as regards heritability and the quantum of share depending on which religion the parties belong to. Inter-religious marriages, which could be solemnized under the Special Marriage Act without surrendering the religious identities of the spouses, provide for the adoption of heirship and shares to be worked through the Indian Succession Act. It was thought at that time that it is the first step towards the uniform civil code. Nothing like that happened. You may not be able to afford to touch the Muslim personal law , without offending the sensibilities of Muslims and they will be just apprehensions that if a uniform civil code were to be brought, it might be forcing the Muslims to accept what a majority community of Hindus wanted. Now was a chance of bringing an amendment to law for Hindus which recognize father and mother as primary heirs, the same way as the Muslims law lays down. There is so much to borrow from the Muslim law of succession for Hindus and Christians. Although Muslim law grants a share to the son twice as much to a daughter, it is still fair because the daughter invariably walks out of the family at the time of marriage with a gift from her father and brothers which is even entered in the marriage register (Daphthar). The wife after all goes into a family of the husband and it is only equitable that a daughter’s share is less than the son’s share, given the social reality of marriage gifts and her displacement from her own parental home and a shift to her husband’s home who, as a son in his family, takes a larger share.

The Hindu Succession Act has been a fertile ground of litigations in courts. The understanding of law by inter-play of customary law and the statutory law of succession has only yielded to several confusing results. A limited interest given to a woman in recognition of her right of maintenance and the issue whether such an interest would enlarge or not is debated in ever so many cases relating to the property held by a Hindu female. The disqualification provisions and the special rules for dwelling houses and pre-emption have also contributed to the large sum of case laws. The Muslim law, on the contrary, is so certain in its terms that there is very little litigation on the heritability or the quantum of share in any court. This is particularly significant that the certainty has been achieved in spite of the fact that there is no codified Muslim law on succession and the law derives its inspiration from the Quran and Hadis. It is also a matter of interest that the Muslim granted a share to the female and recognized her as a full owner ever since Islam was founded. The progressive West did not accord to a woman absolute ownership on succession till the beginning of the 20th century. The Hindu Succession Act itself made the important change of recognizing a female as a full owner only through 1956 enactment.

Courts have never been able to push for the agenda for realization of a uniform civil court. In the wake of Shah Banu’s case (1985) providing for a right of maintenance beyond the period of Iddat, the court expressed that there was a need for the state to take the initiative to secure a uniform code. The community took to streets in protest; the Maulvis sirened from the high minarets of mosques. All this gave rise to a change of law giving the primacy of decision to Muslim Personal Law Board and the option to the litigants to contest the case in court or seek for decision of the Board. Some thought it to be restoration of sanity; some doubted it as a measure of appeasement. In Sarala Mudgal(1995), the Supreme Court underscored the need for a uniform civil code in the light of Article 44 of the Constitution. In Pannalal Bansilal (1996), while adverting to regulating the administration of Hindu religious institutions and endowments, the Supreme Court treaded the issue with certain trepidation and said that though the uniform code was desirable, it could go counter-productive to the unity of the nation. In Ahmedabad Women Action Group (1997), in light of challenge to provisions in the Hindu Succession Act providing for full powers of disposition by will his undivided share in the joint family property, it sounded even more hesitant about common civil code, but with Lily Thomas (2000), in the context of Hindu wife complaining against her husband’s conversion to Islam and his prospect of taking another wife, the Supreme Court had come a full circle when it went on to clarify that it had never issued any direction for codification of a uniform personal law. Well then, this is the reality; It will not be possible to realize a common code through a court initiative and it could well be argued that a homogenous set of laws are not even necessary to secure a homogenous Indian identity.

However, it is necessary to recognize the strength of the law of any particular community when an amendment is brought for the law of another community. Shall we now state that the Hindu Succession Act undergoes a change recognizing the father as a primary heir, the same way as Muslim law has already done and that we are borrowing the concept of treating the parents as primary heirs from the Muslim personal law? Is the occasion again propitious that we re-examine the provision of Indian Succession Act and provide for a similar amendment applicable to Christians also?

Marriage, the only way to dignified living?

2008-01-29T14:28:00.000-08:00

Being conspicuous by absence is a popular expression. It would have been everyone’s experience that when you attend a social gathering, and if you happen to get there without accompanying your spouse, the host more often asks about the absence of your partner, than greeting your presence by a warm hand shake or a welcome hug. It has not however, probably ever happened that a country’s Premier is making an official visit and the press and people, diplomats and dignitaries have been talking about the absence of visiting dignitary’s girl friend at the Republic Day celebrations at New Delhi than about the significance of his visit. The paparazzi would have it that Nicolas Sarkozi looked melancholic at the Taj Mahal, making an obvious inference to his emotions without his girl friend, Ms.Carla Bruni. “Le Sarko show” reveals that if Sarkozi decides to marry, Ms.Bruni will be his third wife; Ms.Bruni has herself been never married before and about the institution of marriage itself, she is reported to have said, “Monogamy bores me terribly.” The couple’s unmarried status has led to criticism from conservative parties during their trip to Egypt and protocol would dictate that as boyfriend and girlfriend they would be offered separate bedrooms when they visit Windsor Castle in March, 2008.
The institution of marriage did not arrive by any single fiat of any ruling establishment. There have been several theories for the purpose of marriage. The traditional view is that it is to ensure successful procreation and child rearing. (This theory takes a serious beating from American experience and hence a prescience of what is in store for us. The U.S. National Center for Health Statistics reported that in 1992, 30.1 percent of births were to unmarried women and in 2006 that number had risen to 38.5 percent. In contrast, in northern Ghana, for example, payment of bride-wealth signifies a woman's requirement to bear children, and women using birth control face substantial threats of physical abuse and reprisals). Another view recognizes that it must have been a slow progress to this stage, when promiscuity gave place to stability in interpersonal relationship between two persons that was the foundation of a family, with procreation as an incidental by-product. A third perspective holds that marriage is an instrument of societal domination and so is not desirable. A fourth is that relationships between consenting adults should not be regulated by the government. It is not uncommon for two or more viewpoints to coexist within a given society.
Marriage requires religious, social or governmental approbation and each has a method of legitimizing it. Almost all the traditional weddings are celebrated by religious- rites-route. The 1967 State amendment to Hindu Marriage Act was the most important piece of legislation, inspired by Periyar’s teachings that legitimized suyamaryadha form of marriage, when any act that expressed an intention of the spouses to take each other as matrimonial partner was sufficient to solemnize a marriage. The legal imprimatur is best secured by registration of the marriage. Sometimes all the three forms of marriage are performed. Religious ceremonies within family, suyamaryadha form for the consumption of rationalists and for show of progressive mindset and registration for practical purposes. In some countries, such as France, Spain, Germany, Turkey, Argentina, Japan and Russia, it is necessary to be married by the state’s prescribed ceremony separate from (usually before) any religious ceremony, with the former being the legally binding one. Civil marriages are all conducted before the eyes of the public, although Australia permits a wedding to be a wholly private affair, at any location, be it a ranch, yacht or in an idyllic beach setting in an unknown archipelago.
There are endless types of conjugal living. Arranged marriages, love marriages, mutah, live-in relationships, gay marriages, lesbian marriages, POSSLQ (pronounced pɒsəlkju, which is an acronym for "Persons of Opposite Sex Sharing Living Quarters," a term coined in the late 1970s by the United States Census Bureau as part of an effort to more accurately gauge the prevalence of cohabitation in American households) and living apart together (LAT). Another new variant is a person in ‘an intimate relationship’ called the Significant Other, also referred to as, sig ot, sigot, sigoth, SigO, or SO. India has recognized a live-in partner, who could be an offender or a victim under the Domestic Violence Act, 2005. In all respects, it is the legitimacy of marriage that is a guarantee for several of the civil rights in India. Property rights, including alimony and inheritance, depend on legally valid relationships. Tax benefits for a ‘family’ will have immediate relevance only to legally approved union. A shared household belongs only to ‘married’ couple. Relationships in extended family through the spouse with suffix ‘in-law’ could be obtained only for legitimate kinship. Above all, unlike in Sarkozi’s case, you will be enquired with genuine concern only if you are or not accompanied by your legitimate spouse and not any other modern variants.

Legal news in newspapers

2008-01-24T22:27:00.000-08:00

Did you know that it was Julius Caesar who started the first newspaper in 56 BC? It was called Acta Biruna. Despite lingering declines in circulation and advertising revenues in some regions of the world, the newspaper industry continues to be a powerful and expanding force. The World Association of Newspapers (WAN) reported that in 2005 that more than 8,000 newspapers were published worldwide, with an estimated daily readership of one billion. According to WAN, the number of free and paid-for titles was up 9% since 2001, which represented about 550 new dailies. A large percentage (76%) of worldwide newspaper circulation was concentrated in just five countries. China is the world leader, with 23 of the top 100 most-circulated papers, while Japan had 22 titles in the top 100. India, the United Kingdom, and the United States follow the lead, with 17, 7, and 7, respectively.
You should pick up the newspaper first before anyone else at home does; when the papers are neatly folded and seem like nicely ironed shirts. Online reading from computer screens are a bore and do not carry the aroma of fresh newsprint. But this new generation of youngsters at home is essentially a generation of “electronic readers”, as opposed to “paper readers”. These youth read, but they read on computer screens, on electronic games and on their mobile phones. They are already “multimedia people” says a news analyst, where as the other generations are “monomedia”. They read the headlines from Internet sites. They discuss on discussion forums and blogs. They look at the broadcasts on information channels on television.
From staying up-to-date to whiling away time, newspapers serve different purposes. All newspapers have a standardized format in consigning to specific pages the kind of news that you have to look for. Sports and obituary columns usually come in the same page, as if to suggest that you shall be trained to take the news of death in a sporting fashion. The editorials in the centre-spread, big daddies always assumed, are a way of ‘improving the language’ and knowing the value loaded statements of the respective papers of what are correct. They used to be a kind of imposition for every boy or girl blossoming to adulthood to be advised to read them. Even small time papers, having only a few thousands of copies for circulation, will have an advice or two to the UN Secretary General or the US President, as though they take notice of their editorials. Big, colorful advertisements in the last page are some times more entertaining than the news-filled pages. Entertainment columns of cinema, dance, drama and daily engagements in the city or town do not merely carry information of time and venue but also portray the dazzling stars and mesmerizing beauties in colorful revealing attires.
A recent study in USA discovered that as people became more successful and earned more money, the order in which they read a newspaper changed. Total failures in life and extremely successful people, at the diverse ends of the spectrum, share the same passion for sports and they make the most compelling read. Gossip and menswear ads are for the mildly successful. Editorials, social columns and real estate are for the definitely successful. Legal news, unfortunately do not seem to be a preference to any category of people in USA. In India, one likes to believe, it is definitely different.
These days, legal news are the most ubiquitous; they are sprinkled all along the length and breadth of the papers and not confined only to any particular pages. Murders and rape stories, gory photographs of frozen bodies of men or women slain are sheer masochist exercises indulged by the vernacular newspapers. The English newspapers lap up the celebrity murders and police brutalities to even the scales of reporting with their local languages counterpart. Wherever judges go to inaugurate social functions, they go to make good photo features. Judges are invariably nattily clad, well combed and cheerful in photographs, but what functions they participate may not necessarily have anything to do with law. Our clan could justifiably be proud as masters in subjects as varied as esoteric to mundane, from music to cine masala. Judgments of Supreme Court and High Courts on service and labour issues are more regular than they were in the past. Reports on law making on women and children are a way of showing our concern for their empowerment. Some times there is insipid information on a litigant being compulsorily retired or denied compassionate appointment. Maybe, the judges who pronounced the judgments or the lawyer who argued the case wanted them to be reported.You do not need to have gained wisdom between the time you take the newspaper in your hand and leave it back crumpled on the table. It is the best way of not causing any harm to anyone at least for a brief while!

Villageward, ho!

2008-01-24T22:23:00.000-08:00

Striking lawyers and boycott of courts are old news. Striking medicos is the latest thing. Thankfully, they have cried halt to their protests. Doctors of Tamil Nadu and Delhi, from among 262 government and private medical colleges that turn out about 28,000 doctor-graduates every year, seem to be more averse to taking to compulsory service in rural areas than their counterparts studying elsewhere in the country. Kerala government has already enforced compulsory rural service after their minimum 5 ½ year stint in medical colleges for doctors, for the last 3 years. Striking students said that it made no sense to send tyros like them to villages. Why not despatch the well trained, experienced doctors in government service to the villages, they ask? Albert Schweitzer, a German doctor spent most of his life working in remote Africa. The renowned doctor and author, who wrote by the name, A.J. Cronin ( have you read The Citadel?) spent practising among the mining communities and his novel was the basis for establishing the UK’s National Health Service. They are all foreign examples; why remind them, do you say?

Look at the several ways by which people have to be sent to villages. There is no natural lure to the idyllic villages of India. Looks like, the compulsion has to be secured through legislation. Karnataka issued State Civil Services (Regulation of Transfer of Teachers) Ordinance in 2006, which contained, inter alia provision for compulsory teaching service in rural schools and Pre-University classes for a minimum period of 2 years. The Union Government brought a bill in 2005 for Compulsory and Priority Electricity Supply to Rural areas, Agriculture and Cottage Industries that aims to bulk-supply power to boost agricultural production and employment generation. It is a way of holding out an olive branch for the rural folk to stay back without proliferating to towns and cities. Recent years have witnessed unprecedented interest in micro-credit and micro-finance especially because of the facility of collateral-less group lending. In fact NABARD has successfully generated the largest micro-finance networking the world by linking the various Self-Help Groups with the banks, called the SHG-Bank Linkage programme.

We, too, as lawyers, have been shown the way to villages. The 114 Law Commission Report, 1986 envisages the establishment of Gram Nyayalays and states that Article 39A of the Constitution of India provides the foundational basis. The report points out that Article 40 which directs the State to take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government, has to be appreciated afresh in the light of the mandate of the new article 39A. Strengthening the institution of Panchayats and empowering people at the grass-root level to resolve their disputes amicably would, according to Justice S.B.Sinha, solve many of the problems that are faced by conventional justice dispensation machinery in its attempts to percolate to the lowest levels. This would provide a solution to the problems of access to those living in remote regions. Certain states like Bihar, Uttar Pradesh, Uttarakhand, Jammu and Kashmir, Himachal Pradesh, Punjab, Madhya Pradesh and Chattisgarh are reported to have already made provisions for establishing Nyaya Panchayats. In Tamil Nadu, decentralisation of civil and criminal courts have helped established the courts at taluk levels. We have no formal system of disputes resolution in villages, except that Tamil films show the Panchyat President seated under a large shady tree on a high pedestal surrounded by his cohorts handing down rough and ready justice. They will marry the rapist to the victim; parade the thief on a donkey; dot the out-law with black and red spots of paint on the body to humiliate and in fact do everything that is anathema to justice and fair play. The film-like , larger-than-life panchyati needhi often borders on rowdy-justice that goes by the sobriquet katta panchayat. The legislature has even taken note of the existence of this ugly institution and has enacted a law to punish individuals who don this role for enforcing money claims at usurious rates of interest.

Do you fancy the law ministry to suggest to law students or lawyers to do compulsory rural service in villages for 2 years, like they have plans for doctors? It may not be a bad idea, given the tough living conditions in the city and the competitive edge that you may have to encounter, what with the new talents from the National law schools and big-time law firms flaunting their professional prowess in cities!

Losing a case, goat sacrifice or guillotined?

2008-01-24T22:14:00.000-08:00

All religious practices admit of animal sacrifices and they represent the occurrences as modes of expiation of sins that human conduct is susceptible to. Of them, goat is special. There are rituals connected to this blighted quadruped among Romans, Hitttites, Indians, and Tibetians. Our Muslim brethren have recently celebrated Bakrid. On this day a goat or Bakr (Urdu) is offered in sacrifice to commemorate the sacrifice of Prophet Ibrahim, who willingly agreed to kill his son at the behest of God. According to Islamic belief, to test Ibrahim's faith, Allah commanded him to sacrifice his son Ismail. He agreed to do it but found his paternal feelings hard to suppress. So he blind - folded himself before putting Ismail on the altar at the mount of Mina near Mecca. When he removed his bandage after performing the act, he saw his son standing in front of him, alive. On the altar lay a slaughtered lamb. This festival coincides with the Haj pilgrimage in Mecca. The lamb is Halal, meaning approved food. According to the Christian tradition: “And Aaron shall lay both his hands upon the head of the live goat and confess over him all the iniquities of the children of Israel, and all their transgressions in all their sins, putting them upon the head of the goat, and shall send him away by the hand of a fit man into the wilderness: And the goat shall bear upon him all their iniquities unto land not inhabited" (Leviticus 16:21-2).. Kali Matha wears around her neck decapitated heads of demons slain by her to symbolize the fact that she is a protector of virtues and destroyer of evils. Kali Ma denotes the wholeness of life: life and death, beauty and ugliness, motherliness and destructiveness. The devotee attempts to replicate the example set by the goddess by slaughtering the goat bedecked with a garland. Recently, Nepal's troubled national carrier had taken a spiritual approach to maintenance troubles with one of its Boeing 757s by sacrificing two goats in front of the plane to appease Akash Bhairab, the Hindu god of sky protection, whose symbol is printed on all of Nepal’s aircrafts.

If slaying of goat brings revulsion, what would you say of applying guillotine as a measure of capital punishment? Remember, it was designed by Dr Joseph Guillotine, a man described as kindly and who wanted to make execution more humane. Victims were placed on a bench, face down, and their necks positioned between the uprights. The actual beheading was very quick - often to the gathered crowd's disgust - taking less than half a second from blade drop to the victim's head rolling into the waiting basket. However, debate rages over whether the quickness of the execution was humane or not, as many doctors put forward the notion that it could take up to 30 seconds before the victim lost consciousness. It may be spine chilling to imagine that the decapitated head will know for those seconds that it had been cut and killed from the rest of the body. State sponsored killing have earlier taken several gruesome forms, death by crucifixion, by slow slicing, by burning, by hanging, by electric shock, by lethal injection and now read, by guillotine again. It does not sound to be more cruel than the rest.

We are not talking about intentional murders, but state sponsored killing as corporal penalty. Judges have stood by, in the olden days to confirm that the executions were carried out comprehensively and without default. The stigma unfortunately has not worn off for our venerable judges to this day. The allusion is to dismissal of cases by the judges. Adversarial litigation ought to result in one of the parties winning and another losing. The litigant that voluntarily opts for this process has only to blame himself for ending up on the losing side and hence ought not to complain against the judge. A loser invariably talks about the knife in his neck, the arrival of smooth shaves of max III, notwithstanding. If the judge has sweet talked to an adverse judgment, it is talked of as halal, a welcome result to a worthy contest. If the dismissal is instantaneous and brooks no lengthy reasoning, it is talked of as being guillotined. Of judges, who till a short while ago, were themselves lawyers, understand all this exclusive expressions very well. Some of them even ask lawyers in good humor, what type of execution their client would want! We react in different ways. To some, withdrawal is honorable; to some others, an adjournment gets them the chance of trying their lucks with some other (sympathetic?) Bench. A sizeable few opt to take soft, kind hearted dismissals, with no costs. The majority still prefers the guillotine to retain the briefs and take chances at the higher forums.

Every litigation is a war; and all is fair in love and war, eh?

Assassination, forget the hateful word

2008-01-24T22:07:00.000-08:00

What was your feeling when you heard that Benazir Bhutto had been shot on 27th December 2007? Politicians are the only types who are adored and hated in equal proportions, often in gigantic proportions at that. The killings of politicians have this unique expression, ‘assassination’ that does not apply to others. The very word simmers in blood and violence. Shakespeare is believed to have invented the word. He uses the word 'assassination' first in end of Act I of Macbeth, where Lady Macbeth is convincing Macbeth to kill Banquo. The etymology is a mutation of the Arabic "haššāšīn" (حشّاشين). However, there are those who dispute this etymology, arguing that it originates from Marco Polo's account of his visit to Alamut in 1273. , in which he describes a drug whose effects are more like those of alcohol than of hashish. Latin switched the 'sh' sound for the’s’ sound. Whatever be the origin of the word, it leaves a bloody trail consuming one after another in the same family.
Of the times after 1960, John F Kennedy’s death brings the most chilling memory. On Friday, November 22, 1963, he and Jacqueline Kennedy were in an open limousine riding slowly in a motorcade through downtown Dallas. At 12:30 PM the president was struck by two rifle bullets, one at the base of his neck and one in the head. He was declared dead on arrival at the hospital. Almost simultaneously, one would remember his 3 year old son’s poignant salute at his father’s funeral and it was a cruel fate that the kid grew to be a handsome man to get killed in a tragic plane accident. Robert F Kennedy, U.S. attorney general and adviser during the administration of his brother John F. Kennedy was himself assassinated while campaigning for the presidential nomination a few years later. In this part of the world, S.W.R.D. Bandaranaike who became Ceylon’s prime minister in 1956, was assassinated in 1959. His wife Sirimavo soon became the party leader of Sri Lanka Freedom Party (SLFP) and went on to become the prime minister herself. Her daughter Chandrika had been active in the SLFP and married the film actor Vijaya Kumaratunga in 1978. He was assassinated in 1988. At home in India, Indira Gandhi was assassinated on 31st October 1984 and on the same day Rajiv Gandhi was made the Prime Minister. He was decimated, in what followed a global pattern to several such episodes, by a suicide bomber on 21st May 1991. Benazir’s family had a fair share of unnatural deaths due to their life in politics and the enemies that their profession earned for them. Before her, her father and her brother had been eliminated as politically inconvenient by the ruling establishments.
It all proves one thing: politicians are the softest target to be eliminated in cold blood. Is it that power is the most coveted attribute to human attainment and jealousy is the strongest motive for pulling the trigger or sticking the dagger? Maybe so, in the days of monarchy. Not anymore. They need not even be hankering after power. The sheer presence in the arena of politics is sufficient to win as many enemies as followers. If it were not so, how could you explain the Mahatma Gandhi’s killing? The later Gandhis also lost their lives not to political aspirants but to killers who purported to avenge their own hurt caused by the policies pursued by their human targets.
A macabre incident happens at the end of the year that eclipses every other worthy event in the same year. The electronic media capture every detail of killing that you smell blood in your own drawing room. If you have been fortunate not to have watched the video footage, the morning newspapers carry colorful photographs taken by high resolution maxi pixel cameras. What has been your way of beating this morbid feeling of revulsion caused by such mindless killings? Margazhi offers delightful escapades in Chennai and other major towns in Tamil Nadu. Were you a part of the crowd of listeners to music concerts? Did you not go to religious discourses of eminent men of learning of Tiruppavai or Thiruvenbavai?
There is a life beyond law. Denning, the most quoted and quotable person writes delightfully on ‘Leaves from my Library’, where he declares proudly that he managed to write another book, even at the age of eighty-six. The anthology contains the war rhetoric of Winston Churchill, Shakespeare’s Merchant of Venice, fine prose of Somerset Maugham, moving tale of Thomas Hardy, John Bunyan’s Seeking Salvation, Chaucer’s narration of history with a deft touch of humor and 14 more topics. You do not need to pick up the trail by the same choice of reading material. It tells you that men of law were not men merely of law. They had interests beyond law. Cast away law books, newspapers and TV shows for a while and do what you now know what!

Racism, the worst scourge

2008-01-24T21:49:00.000-08:00

Have you heard of a coloured person being accused of racial practice? If the answer is yes, we are confronted with a situation of an oxymoron, the same way as we could be talking about a legal murder or a wise fool. A racial slur could be hurled by only a person that is socially depicted as superior against a person perceived as inferior. A black man cannot indulge in racist remark by calling a white man as white, while a white man would be accused of racial innuendo if he refers to a black man by his colour. To accuse an Indian, such as Harbhajan Singh as having indulged in a racial remark against Symonds, an Australian is ex facie untenable. It is obvious that the Australians have a racial mindset because they do not see Symonds as belonging to their own race and see him only as a descendent of the aborigines of their country. It is an irony that a South African, Mike Proctor, who till yesterday was practicing apartheid in his country delivered the verdict and sentenced Bhajji to a three test ban.
Australians are known to be the worst practitioners of racism. Their country had a declared ‘all whites policy’ for their immigration laws till very recently. Just the other day, Dean Jones called Hashim Amla a terrorist his cricket commentary and later said the he forgot to turn the mike off and it was after all no more than a silly statement. There have been terrible on field misdemeanors by Australians that Gavaskar walked out at Melbourne in 1980; Javed Miandad raised his bat against Dennis Lillee, showing finally that enough was enough. R.G. Griffiths, Associate Professor in History at Flinders University of South Australia and author of Contemporary Australia acknowledges that whereas New Zealand took every opportunity to apologize about the discriminatory and abominable treatments against natives , Australia flew in the face of public opinion. At a specially staged reconciliation meeting with Aboriginals in Melbourne, their Prime Minister, Howard said only that he was sorry for the hurt and trauma many continued to experience as a consequence of past practices and that he himself felt a deep sorrow for those of his fellow Australians who suffered injustice under the practices of past generations toward indigenous people. Howard insisted, however, that "in facing the realities of the past we must not join those who would portray Australia's history since 1788 as little more than a disgraceful record of imperialism, exploitation, and racism."
The courts of Australia have however done remarkably to redeem to the aborigines what was due to them by remarkable judgments. Until 1992 Australia had been regarded by an 18th-century legal concept as an empty continent where the indigenous inhabitants had no rights to ownership. But a ruling of Full Court of 5 judges of the High Court of Australia in Eddie Mabo and ors v The State of Queensland (1992 Aust Highct Lexis 86) overturned two centuries of legal practice by deciding that Eddie Mabo and other residents of the Murray Islands in the Torres Strait, who brought a case against the commonwealth, owned customary title to their land. This sensational and unexpected judgment, known as the Mabo decision, established that Aboriginals had the right to claim title to traditional lands. When Prime Minister Paul Keating's Australian Labor Party passed the act of Parliament in 1993 and turned the High Court ruling into law, however, the government excluded pastoral leases (very large tracts of land leased to farmers and ranchers) from native claims. The legislation led to a crisis of confidence in the mining and resource industries. Uncertain about the ownership of land, investors were inhibited in their prospecting and exploitation of minerals, oil, and gas. The Queensland premier, Rob Borbidge, called for an emergency premiers' conference; the National Farmers Federation asked for action to overrule the decision; and many Australians believed that every backyard in Australia was under threat from an Aboriginal land claim.
R.G. Griffiths further chronicles that Keating's Labor government fell in 1996, and the new conservative administration under Prime Minister John Howard set out to rewrite the statute book as far as Aboriginal land rights were concerned. Howard moved quickly as soon as the High Court had ruled on a second landmark case brought by the Wik people. The High Court ruled in the Wik Peoples v The State of Queensland and ors; the Thayorre People v The State of Queensland and ors (1996 Aust Highct Lexis 76) that pastoral leases and native title could coexist. Howard was aghast to find that potentially 78% of Australia's land was claimable by Aboriginals under the Wik judgment. The National Party (the junior partner in the government) led the chorus of outrage against the High Court judgment. Howard made devised a 10-point plan that eliminated many of the Keating reforms. Claims dealing with water and offshore resources were to be wiped out, as were claims in which government infrastructure was involved. Aboriginals would be able to enter land to hold ceremonies, visit sacred sites, obtain water, and gather food, but they would not be permitted to interfere with crops, livestock, pastures, or fences. The complex new legislation, 400 pages long, contained, according to the jubilant deputy prime minister, Tim Fischer, "bucket loads of extinguishment." Native title was to be abolished on pastoral leases when it would interfere with the rights of the pastoralist. The Aboriginals had nothing left except "bucket loads of litigation". To get back to Bhajji episode:
A sikh in India suffers more ridicules on any other person by reference to his religion, his physical appearances through turban, beard and what lies beneath his turban and manifested through his intellect or lack of it. They are however an admirable lot. You may make reference to the clichéd bara baje joke to a Sardarji, who will laugh with you at the very mention of the particular time and not take any offence. They are great sports persons, excelling in hockey, wrestling and kabbadi. They are singers and dancers. Who will deny the rightful place of bhangra dance as representing the quintessential cultural exposition of the very best of India? They are fun loving, enjoy their evening drinks and revel in every thing that reminds them of the smooth contours of the wine glass! You do not even go to the old history of Guru Tej Bahadur and his martyrdom or the life history of Guru Gobind Singh that gave birth to the Sikhism to recount the great sacrifices made by the community and the sheer grit and valor they exhibited against national enemies. They suffered ineffably during the partition and again suffered heavy casualities, post Indira Gandhi’s assassination, as a measure of reprisal for the stupid acts of some misguided handful of Sikhs.
While it could be said that Bhajji could not have simply indulged in a racial face-off, it is important to recognize that there cannot be any experience more hurtful than racial abuse or what happens more often in the Indian context through casteist slurs. And great men of law have set their poignant times through heart wrenching memoirs. Have you read Clarence Thomas or Ambedkar? More about what they have written later…

Land Acquisition, a sure way to life long litigation

2008-01-24T21:45:00.000-08:00

The deletion of property as a fundamental right by the 44th amendment was made in the context of agrarian reform and prevention of economic concentration of wealth. No one thought at that time that liberalization policies would woo the rich to such an extent that there would soon be reversal of trend when lands would go to the hands of the industrialists on specious grounds of rewarding them as promoters of progress and prosperity. SEZs and infrastructural developmental needs are seen as the new mantra to supplant farmers’ needs to hold their lands. Probably, we have come a way far ahead to resist change. Could there at least be attempts to ensure some statutory changes to placate the righteous indignation against the systematic deprivation of property from farmers for establishing industries and for laying roads? The establishment of SEZ at Ghaziabad by acquisition of fertile agricultural lands has fanned the controversy centre-stage to transport it as public interest litigation before a three member bench of the Supreme Court.
Land Acquisitions have always been source of heart aches. From Chiranjitlal Choudhry to Kesavanda Bharati to Narmada Bachao Andolan, the recurrent theme has been the unwillingness of the owner/ possessor of land to part with property. Again, from individual remonstration to collective ire, the problem of acquisition has snowballed to gigantic proportions. The 17th century empiricist philosopher, John Locke’s idea of personal property and the justification to hold it was based on the predilection of property owner, who added value to what was available in nature and retained it for his livelihood and for sharing with his family. Marx and Engels saw as human perversion the idea of creation of capital through property holdings to subjugate labor. Now Budhadeb, the communist party chief minister confesses that capital is inevitable. Whatever be the philosophical underpinnings for the driving force for holding property, the requirement of ‘public purpose’ has been the touchstone for its acquisition in all land acquisition laws.
The century old Land Acquisition Act has undergone several important amendments. The 1962 amendment required the acquisition of land for a company to be used directly for public purpose. The 1984 amendments were the most significant, when it redefined ‘public purpose’ more expansively, made provision for speeding up the process of acquisition by limiting the period of acquisition from the date of declaration under section 6 to the date of passing award, increased solatium from 15% to 30% , as also the rate of interest for the compensation itself and enabled persons who did not secure enhanced compensation at the first instance to take advantage of the compensation determined in the same award by other owners. The Tamil Nadu amendment Act of 1996 made possible the reversion of ownership to the landowner, if the property was not put to use. It further made null and void sales of property by companies for whose benefit the property was originally acquired.
The problems still linger. Mere enactment of laws for acquisition of property and providing compensation do not guarantee that the process could be peaceful. Sirgur and Nandigram, Meenjur and Meenambakkam have been recent stories of massive public protests. Land acquisitions are mired in the hotbed of politics. Politicians work full time to keep the controversies alive by inciting one group against another. The right of re-purchase has no meaning in the absence of definite time limit within which the property shall be put to use by the requisitioning authority. Otherwise, as the Supreme Court has in a recent judgment held there is no inherent right for a citizen to demand a resale when the government, in its power of eminent domain has not chosen to forsake its claim over the property, after its initial acquisition. There is no statutory basis for rehabilitation and employment for a person whose land is acquired. Alternative sites are more in the nature of executive promises that are susceptible to bureaucratic delays and nepotism than concomitant legislative obligations that are enforceable. Provision for employment by the industry is presently in the nature of charity and not guaranteed. If it is provided, it is for the existing generation of owner who has lost the land and only to one member and not to the whole family which has lost the property. The government orders and circulars against acquisition of fertile lands and acquisition of places of worship have no statutory force and consequently, the government itself often breaches with impunity the restriction against acquisition of valuable lands and exposes the danger of a owner losing the property for less important uses. There is ever an unwillingness on the part of the government to pay adequate compensation and engages the parties in long drawn litigation against the awards.
The moral of the story is, you need not own real property. But surely cultivate a constant relationship with the person that holds property. He will lose it one day and his vicissitudes will keep the lawyer busy for the rest of his life.

The day of judgment

2008-01-24T21:42:00.000-08:00

For us lawyers, the defining moment in a case hard-fought is the occasion when the judgment is pronounced. What do you think breaks or warms the heart for a publisher or an editor of a law journal? How far have we won the approbation could be estimated not merely by the strength of our readership. May be, for newspapers and TV channels the readership quotient will assure to them increased revenue and a justification for hiking the advertisement tariffs. In a law journal, there is no advertisement to boost revenues. The readership runs only in terms of thousands and even apart from minding the number of subscribers, we can judge ourselves only by what we have done. We set the judgment day as 31st December 2008 and here are the results. In 2007, we have published 6 volumes in regular weekly issues and 2 volumes as supplements. The reported Madras HC judgments were 895 and of the Supreme Court, 282 judgments. Volume 7 (Supplement) had a tally of 127 and 52 respectively of Madras HC and SC judgments. The volume 8 (Supplement) that you are soon going to have will have Madras HC judgments numbering 155 and of SC, 35 approximately. Just for the sake of record and in comparison , in the last decade, between 1998 and 2003, there had been 3 volumes per year and 1 supplement each in the years 1999, 2000 and 2001 and between 2004 to 2006, they were 4 volumes per year.
The number of judgments pronounced has registered a gradual increase, a la Malthusian theory of geometrical progression of population. The paper quality, including the wrapper, has improved. The value additions through elaborate head notes and deciphering ratio(nes) decidendi have been made possible by hard work of our knowledgeable reporters/head-noters. The work of our experienced proofreaders had been remarkable as well. The journal section has been made a permanent feature, week after week, with incisive critique of judgments and articles of topical interest contributed alike, by lawyers and students of law schools. We believe, we have been able to put in your hands a wholesome product all the while from January through December. We will hopefully improve the product by bringing in for the readers short notes of English and American decisions in so far as they are relevant in the year 2008.
So, how shall we package our issues from the beginning of 2008? We began the year with a holiday, a sure way of marking revelry for the arrival of a new year. New Year always begins with resolutions and prophecies. The headnotes will track any important judgment that the particular judgment omits to mention and the consequence thereof to measure the strength of the precedent value. At the end of each volume we will give parallel citations of other journals and include in the same judgment cross-references wherever they exist. As regards prophecies, paradoxically, all soothsayers do not say soothing things. The practice of reading panchangam on the Tamil New Year day is a way of reminding ourselves of what would happen in future. If there is a prediction of prosperous times, it will be invariably received with cynicism. If Panchangam said that there would be devastation through rain or sarva nasam by human conduct, it would be received with utmost seriousness, as though it proved beyond doubt that kali was heading us towards doom. As for us, there seems nothing to look for except rose petals, milk and honey! If Tamil gains currency in courts as an official language, we will get bilingual and have the headnotes also in Tamil. Writing judgments in Tamil may still take some time. There has been a persistent demand for increase in numbers of judges. More judges will dispose more cases and there is bound to be an increase in the volume of the pronouncements. We will hopefully report them faster and upload them simultaneously in the web page. The web content in the home page of the journal will improve and advanced search tools will help you track the decisions that you are looking for in a trice. All judgments of MLJ from 1892 will be compressed from the room space of data printed in books and stacked in wooden/steel almyrahs to your palm size through a CD Rom.
Do not believe that justice is possible only through working the court system and books. ADRs have immense relevance and put them to judicious use. Help the parties to resolve their disputes on their own terms. The big-sized law firms and costly lawyers of the west may be models to replicate in some cities and large towns, but our litigants are still poor, by and large. At the risk of sounding platitudinous, let us make the system work for the common man also. The MLJ wishes all readers/subscribers the very best for the whole of 2008 and for the years to follow.

Boycotting lawyers

2008-01-24T21:24:00.000-08:00

Bandhs are not legal; there is no fundamental right to strike and boycotts are not ethical. Each of the forms of protest has been discredited by the Supreme Court. To unionists and politicians, they are hateful pronouncements. For the peace-loving citizen, they are distilled expressions of sanity. On which side are you?
Just as a handful of lawyers were busying themselves to expound the illegality of declaring bandhs, which countered the Supreme Court’s specific injunctions, more than a mere motley crowd of our fraternity gave expressions to boycotting courts. No one used the argument that the section of lawyers were indulging in a type of action that was pronounced as unethical and unprofessional. Is there a merit to boycotting courts, regardless of what the Supreme Court has said about it?
Bandh, as a desi form, is gift of Bharath to the world; strike is an innovation of organized labor to force a bargain against capital; boycott was what was practiced against Boycott! Wikipedia traces the etymology to an interesting historical event of social ostracism practiced by Irish peasants in 1880 against Captain Charles Boycott, the estate agent of an absentee landlord, the Earl Erne, in County Mayo, Ireland, who demanded exorbitant rent on the pain of eviction for default. The tenants heeded to the call of Charles Stewart Parnell, in his Ennis Speech that rather than resorting to violence, everyone in the locality should refuse to deal with him. Despite the short-term economic hardship to those undertaking this action, Boycott soon found himself isolated. This action taken against him meant that Boycott was unable to hire anyone to harvest the crops in his charge and he had to hire men from far away country , with police escorts to do the job that left Boycott spending more money on labor than what he gained by harvest. After the harvest, the "boycott" was successfully continued. Within weeks Boycott's name was everywhere.
Wikipedia chronicles further: It was used by The Times in November 1880 as a term of organized isolation. According to an account in the book “The Fall of Feudalism in Ireland” by Michael Davitt, the term was coined by Fr. John O' Malley from County Mayo to "signify ostracism applied to a landlord or agent like Boycott". The Times first reported on November 20, 1880: “The people of New Pallas have resolved to 'boycott' them and refused to supply them with food or drink.” The Daily News wrote on December 13, 1880: “Already the stoutest-hearted are yielding on every side to the dread of being 'Boycotted'.” By January of the following year, the word was being used figuratively: "Dame Nature arose....She 'Boycotted' London from Kew to Mile End" (The Spectator, January 22, 1881).
It is an irony that Mahatma Gandhi, the greatest exponent of non-violence practised the above forms of protests against the British to emasculate the tyrannical British Raj and expound the swedeshi ideal. We are master craftsmen in perverting or perfecting (depending on what your perceptions are) the tools of protest. Boycott today is violent, involuntary (whether you want or not, you are forced to join the bandwagon) and inflicts injury to the harmless litigant, against whom there could be ‘no cause of action’. It is a case of ‘same-side-goal! The litigant seldom knows why his lawyer, who has been paid, does not turn up in courts to present his case. If he knows the reason, he watches in dismay how even the tongue-tied lawyer in courts has found his throat to full oration and lungs to full bellowing power outside courts.
Invariably, it is the ire against the police that lights the first spark for the fulmination. Recently, it was the demand by a hospital male nurse for money at the time of admission of a bleeding lawyer in a motor accident that started the quarrel. The police on prowl reportedly teamed with the hospital staff to beat up a lawyer. Does not the lawyer know that he cannot walk out of the courts with an interim order, without minding the menial that opens the door, for tea or coffee or the term fees for his child in school or hospital expenses for his spouse? Persons that give evidence or sign muchlikas know as well that their signatures cost money. How come we get offended that someone at the hospital asks for money for getting admitted? An erring police shall be suspended; what if the lawyer errs?
Lawyers have different motivations for the boycotts. The lawyer that understands life’s struggle as a dialectic experience will see them as inevitable democratic expressions. The philosophical underpinnings of the practitioner make him accept the boycott without a whimper. The lawyer who has no practice has nothing to lose. The boycott gives him a homogeneous identity with the idealist. The busy among the lawyers has no choice. He does not want the depiction of a black-leg. All in all, it is not difficult to push the agenda for a successful boycott. The beginning and ending of this inert practice is invariably proximate to weekends that assure a long holiday. As Boycott gave his own name to the form of practice against him, a lawyer will one day give this word a new identity and on that day, lawyering would mean boycotting!

With cell phone, in jocund company

2007-08-08T10:30:00.000-07:00

What do you make of red coloured walls in court premises? Some of the walls inside our High Court premises have been painted red recently. Bureaucratic lethargy is also conjured in the mind as preserved through red walls. If you are walking past the musty files strewn about in the corridors, waiting to be re- arranged in the steel shelves, you will realise, the mix of colour and smell give you rather a glum feeling. Courts are rather un-amusing places. Your own perception of what is just and what result that you can obtain for your client put you through an unenviable ordeal, when you enter the court halls. A judge knitting his eye brows to get at the truth through the facts and law enmeshed in a cumbersome snare of arguments is weighed down to hold a tough countenance.

However, cell phones have contributed their own bit to enliven the lives of all persons, notably lawyers in courts. Lawyers with cell phones, who are walking in the corridors or standing under the trees or sitting in the lively benches outside court halls, present themselves in various moods, depending on the persons that are holding the conversations at the other side. The ‘switch off cell phone’ warnings on the court doors, notwithstanding, they ring, tweet, hoot, sing, drum at all times through the court proceedings. Reactions to them vary from among the judges, court staff, lawyers and litigants.

A lawyer speeding out of the court hall is probably choking the instrument with his hands inside the coat pockets, when his fingers are not nimble enough to silence it by pressing the correct button. The judge looks up to the sound of disturbance but he normally lets it pass. Litigants face a rather stiff chase. Chopkidars trot out speedily to catch the culprit and snatches the instrument to hand it over to the court officer. One thing is certain, the ringing cell phone is an object of revulsion, its possessor, a guileless character at that moment. It requires therefore enormous resourcefulness to appreciate a moment of levity in the rather mundane, humourless forays within the court halls.

Recently, when the cell phone rang and not knowing where the sound was coming through, every one in the court hall looked up in embarrassment to spot the offender speeding out. The judge looked up too, leaned on his large table and queried with a twinkle in his eyes, ‘why does that person not have the latest ringing tone’? The lawyers just loved the interlude and broke into laughter. Yet another time, when the cell phone rang, the chopkidar, sitting near the judge facing the lawyers, sprang to his feet to trace the source of sound. He soon realised that it emanated not from the direction opposite to him but came from behind. He turned round and just then the judge slightly lifted himself from seat and pulled out the gadget from his pant pockets to switch it off! Now, the lawyers did not smile back; they exchanged glances with their friends with glistening eyes, by suppressed laughter! Some time ago, when an officer from the registry had been called to receive some stiff warning for some act of indiscretion reflected through some docket entry, he was standing near the judge’s table, when his cell phone rang. He dropped the file that he was clutching at and pulled out the cursed instrument to switch it off. The lawyers froze but the judge just smiled, asked him to leave the hall and see him in his chambers during the lunch recess!

SMSes are less intrusive and still lesser disturbance-prone. SMS jokes are a new genre and they also add spice to relieve the court room dreariness. They transport a whole lot of hilarious material, traversing through distant continents. They are meant to be discarded instantaneously or forwarded only to your most intimate friend! They shall not be, as a rule, allowed to be read from your gadget. Even when the recipient is standing next to you, the practice is to send it to his number for him to read it from his own cell. A joke through SMS is a personal possession!

Spontaneous laughter says Arthur Koestler in his book, ‘The Act of Creation’, is produced by the co-ordinated contraction of fifteen facial muscles in a stereotyped pattern and accompanied by altered breathing. Its manifestation may vary from smile to broad grin to the facial contortions typical of the loud laughter. Civilised laughter is rarely quite spontaneous. Amusement can be feigned or suppressed; to a faint involuntary response, we may add at will a discreet chuckle or a leonine roar; and habit formation soon crystallizes these reflex-plus-pretense amalgams into characteristic properties of a person. Whatever the type of person you are, carry humour with you always. Let the civility of the occasion, time and place dictate the decibels of that expression!

Lofty men in black robes!

2007-08-08T09:52:00.000-07:00

Mr. Iftikhar Muhammad Chaudhry was reinstated as Pakistan Supreme Court Chief Justice by the judgment of the 13 member Bench of the Supreme Court on 20th July 2007. In a second part of the verdict, the Supreme Court, 10-3, threw out the reference against the Chief Justice filed by President Pervez Musharraf, calling it illegal. Earlier, Chief Justice Choudhry was engaged in doing precisely what the administration least wanted. He aired its dirty laundry and issued judgments seeking rectification. In 2006, he blocked a government bid to sell the majority of the state-owned Pakistan Steel Mills to a private consortium, a blow that proved a rare and embarrassing check on the administration. Following public outcry in January 2007, the judge also compelled the government to trace the whereabouts of terrorism suspects, many of whom had been allegedly jailed without evidence and prevented from contacting their families. When results were not produced fast enough, he chastised a government lawyer and expressed disappointment with the administration's efforts, a spat the media seized upon.
On 9th March 2007, General Pervez Musharraf virtually suspended Justice Choudhry from the high office on charges of misconduct. If you would want Musharraf’s side of the story, according to him: (i) CJ forced government officials to unlawfully help his son get admission to medical college and then had him appointed as Grade 18 Police Officer. (ii) CJ was entitled to use a 1700cc car, but he used a 3000cc Mercedes and kept several other vehicles in his use in Lahore, Islamabad and Karachi. (iii) CJ required more protocol than he deserved. (iv) He required senior officials to receive him at airports and was also using helicopters and planes to go to private functions. (v) Use of a BMW Car "RAZIA 1" by his family. (vi) Different Oral and Written Orders in cases worth 55 million PKR. (vii) Asking for more perks than he was eligible for.
Within hours, the public and the lawyers rallied behind the Chief Justice to support him. On 12th March 2007, lawyers across Pakistan began boycotting all courts. There were widespread protests in cities of Lahore, Karachi and Quetta. In Lahore alone, more than twenty lawyers had been injured in clashes with police during demonstrations. What started with lawyers’ protests outside courts, in the streets, ended fortunately through a judicial denouement, was significant victory to the rule of law administered through the system of courts.
Who said that lawyer community has a crab mentality of pulling its fellow beings to doom in times of adversity? Forget small time occasions, when someone amongst them is considered for things slightly higher and petitions go aplenty against the candidate. Put up even an imaginary name as a likely candidate, the complaints box would still be full against a non-existent candidate! But symptoms of mass behavior have been exemplary, when it comes to upholding the independence of judiciary. On 25th April 1973, three eminent judges, Hegde, Shelat and Grover JJ had been superceded and a judge junior to them had been made the Chief Justice. The governing establishment said that they were looking for ‘forward looking’ men who understood the ‘winds of change’. Justice Hidyatullah J represented an emotional concern of the Bar in one word. He said that this was an attempt of not creating 'forward looking judges' but the 'judges looking forward' to the plumes of the office of Chief Justice. On 26th April 1973, the Supreme Court Bar Association passed a resolution strongly condemning the supercession and called upon all Bar Associations in India to observe 3rd May 1973 as Bar Solidarity Day and to abstain from court work. The call was enthusiastically supported by most of the Bar Associations all over India. This was probably the first occasion when the lawyers resorted to boycotting courts, which have become commonplace to express dissent to all types of situations affecting the dignity of the legal fraternity.
Musharraf wanted Choudhry out of way only to clear the decks for an easier extension of the Presidential term when the elections were scheduled around November 2007. With Choudhry firmly in seat and Musharraf’s strength further undermined by the skirmishes at Islamabad’s radical red mosque, it is Advantage Judiciary! Members of the legal fraternity have aspired for high political offices, though seldom have the politicians aspired to enter into the high offices of the judiciary. Subba Rao resigned his judgeship from the Supreme Court to contest for election to the post of President. Justice Jagannath Mishra was elected to the Rajya Sabha on a Congress ticket. Justice Bahar-ul-Islam got a Congress party ticket and then resigned from the Supreme Court to contest a parliament seat from Assam. All this proves that if Hercules could shoulder the globe, the men from legal fraternity could hold aloft at least the moon!

Legal conundrums

2007-08-08T09:46:00.000-07:00

"Words, words, words", says Hamlet, in response to Polonius' question, "What do you read, my lord?" Of course, Polonius wants to know the meaning of the words in the book that Hamlet is reading, but Hamlet's answer suggests that they are meaningless. Polonius then follows up with a clarification, "What is the matter, my lord?" By "matter," Polonius means "subject matter," but Hamlet again deliberately misinterprets. He takes "matter" to mean something wrong (as we do when we say "What's the matter with you?") and answers Polonius' question with a question ("Between who?"), as though someone were quarrelling with someone else.
Shakespeare exposes but a facet of comic situation when every word that we say gets misinterpreted the wrong way and the whole conversation gets to circumlocution. This is not just among ordinary persons’ oral exchanges. What do you think happens in statutory texts, where the desired goal is certainty but words fail? When words convey more than what they are intended?
You have to grapple with a whole lot of rules of statutory interpretations, as when “singular” means the “plural”; “masculine” includes “feminine”; the “present” includes the “future”; “shall” means “may” or vice versa. The expressions may pertain to tense, sex, numerals and what have you!
Recently, the issue before the court was what the expression, “children” meant in a college prospectus; whether it included “grand children” and all the progeny through successive generations. In curtailing the meaning to what the word meant in common parlance, in the context of extending privileges of reservation of seats for admission to educational institutions to children of freedom fighters, the judge showed the absurdity of argument by taking it to the logical end. He wondered if the extended meaning canvassed would not make possible a claim by a descendent of a freedom fighter that participated in the First War of Indian Independence.. He rejected, by the same breath, that even if there might not be any person among the present generation of students who could be children of freedom fighters, it shall not avail to a student to make an artificial construct for a plain meaning of an English expression.
Even under the Indian Succession Act, if the child who is a beneficiary predeceases the testator, the legacy does not lapse but survives to the grandchild. However, a bequest to A and his children or to A and his heirs or to A and his family will be taken as gift to A only. Here the reference to “children” or “heirs” or “family” would be taken as superfluous and discarded. How will you interpret it, if the bequest is to A and his brothers? Discard “his brothers” and give the legacy to A? No, logically, it may be so, but the provision of law would state that the legacy would be taken by A and his brothers. Please also note that the masculine does not include the feminine! The sisters cannot be taken as included, in the absence of specific expression in the bequest.
Again, words which express relationship, such as ‘child’, ‘son’, and ‘daughter’ must be understood as denoting a legitimate relative, says a provision under the Indian Succession Act. How do you reconcile this rule when the traditional Hindu Law accorded to an illegitimate son, subject to some exceptions, a share in the property of the putative father equal to half as much as a legitimate son could get? Later amendment to the marriage law enabled a child born through void or voidable marriages to claim a share to the property of the father as if he were a legitimate child. This change in law did not help, said even a liberal-minded judge, in restricting the bequest only to a legitimate child.
Just not the succession laws, the General Clauses Act have whole lot of expansive definitions. There, the ‘person’ will include any company or association or both, of individuals, whether incorporated or not. The expression ‘sign’ says another definition as including a mark, if it is with reference to a person who is unable to write. A will would include a codicil and a son would include an adopted son.
All this, give us lawyers privileges to be imaginative. Any accidental slip in a document could be explained by supplying words. Poor legislative draftsmanship could be buttressed by expansive interpretation. Expressions in judgments could be given extended meanings or restrictive interpretation, depending on what favors your client. Words, words, words… now, the expression is used not in the sense that Hamlet used but in the sense Polonius wanted to know!

Pain & No suffering

2007-08-08T09:43:00.000-07:00

Pain and suffering are a twosome expression that is believed to follow one another, like dark clouds and rain or, that goes well with each other, like, bread and butter. They constitute an important head of claim in tortious action and for quantification of damages. Pain is a qualitative response to an unpleasant stimulus that could be either physical or mental. Physical injury as resulting in pain is more common than psychiatric injury resulting either to a primary victim to the words expressed or to a secondary victim to the scene beholden of a physical wrong done to another. Both the Indian Penal Code and the laws that allow for compensation for civil wrongs recognize physical and mental injuries as coming within the definition of injuries. If a person inflicts pain voluntarily or accidentally to you in a legal relationship that requires an obligation not to cause harm, the act becomes either an offence or a civil wrong. If it is self inflicted, such a consequence may not follow.
When an injury is caused to you, by whatever means, how do you make any sense to it? The answer to it is not always legal and it is in the realm of religion. Medical dictionaries will list several entries to pain but when we are talking about suffering, it is to theology that we turn to. The scientific attitude is just that -- scientific: a methodical, reasoned approach that intends to understand the subject and so achieve human control. The religious attitude, on the other hand, tends to trail off into the big questions. It asks about the meaning of pain and philosophizes about how one can bear pain.
Suffering, the Hindu tradition tells us, is for the body but not to the soul. They are the result of your past actions, of the unfolding of the law of karma. So long as there is body, there has to be pain in some form. The issue is how to cope with it, without suffering. Rabindranath Tagore expresses the sentiment: “Let me not beg for the stilling of my pain but for the heart to conquer it.” Acquisition of worldly wealth does not always yield pleasure. It is the renunciation that relieves the human suffering, the Buddha expounded. Christianity sees pain and suffering as symptoms of the sin in our world. So the pain and suffering in and around us can become occasions for us to turn to deeper realities. They can invite us to repentance, forgiveness, compassion and ministry. Teachers of Islam say that pain and suffering are the ultimate test to humanity to righteous conduct - To see if we will turn towards Siratul Mustaqeem (the Straight Path), or away from it.
The Saint-Poet Tiruvalluvar devotes a whole title (no.63) to the attitude to be adopted in response to pain caused through sorrow and tells us how not to suffer. There is no better technique than laughing away sorrow. Stifle the suffering by equipoise. Realise that sorrows always target human beings and hence do not suffer. The person that does not crave for happiness will not sulk that sorrows bring suffering. Treat happiness and sorrow alike. Confront suffering with cheer; it is a quality that even your enemy will extol in you!
As lawyers, we unwittingly play a vital role in alleviating or adding suffering to innumerable litigants. The litigation itself is pain. If it secures the relief sought for, the suffering is obviated. If it denies it, there is a greater suffering. The one thing that we need to resist is to stop undermining the judicial system by malicious comments. We have the tools to stem the rot. Say ‘no’ to vexatious litigations; have a penchant for research and hone the skills of pleadings and advocacy; have passion for law and strive for justice. In pain and injury, learn to laugh. Lawyers pick up several techniques to let the news of the client’s defeat to unfold: One, by telling the client that the judge has advised the client to go to the higher forum! Two, money has changed hands; three, the courts cannot enforce the decree in the near future; four, a fresh suit is possible to stifle the decree. A lot of us are not given to such crafty ways. We also suffer with the client. It is vicarious. Even if we have personal calamities unrelated to a case we have handled, we attribute our sufferings to some wrong done on behalf of our client to the other side. The best prescription seems to be to suggest settlement. What is your take?

2007-06-18T07:54:00.000-07:00

RASHTRAPATH(N)I
Why look for differences, instead of similarities between sexes? Are you complaining, ‘if men and women are equal, why clamor for privileges or look for special treatment?’ Melvin Konner, a renowned anthropologist poses the question, ‘Why raise gender differences?’ and answers in his book, The Tangled Wing that ‘insistence upon the nonexistence of significant biological basis for the different behaviors (that) we observe in the two genders, can only obscure the path to understanding, amelioration, and justice. The truth may not be helpful, but the concealment of it cannot be (helpful either).’ Ignoring differences may lead to temporary harmony but it does not make them go away. Differences that you wish to tuck away from view remain as differences. As one thinker would say, ignoring the aggressive nature of males or the female inclination toward mothering does not eliminate the differences; it only drives them underground, with predictable eruptions later, often involving conflict.
More women are engaged primarily in domestic tasks and child care at home, while the men go out to work. It may be possible to cite examples spanning the entire gamut of history by references to women in every facet of human endeavor, from the Vedic times to the contemporary India, from being a goddess personified to philosophers; to poets; to scientists. They will continue to remain as exceptions and cannot prove that women have obtained the status of equal competitors in all walks of life. Women were first engaged for cheaper labor. Women became nurses, teachers and telephone operators. The strict segregation of women into certain occupations began to lessen somewhat as new opportunities arose for female workers in traditionally male occupations. New technology has meant that many tasks that once required heavy physical exertion, and hence were restricted to men, can now be performed simply by pressing buttons, sitting in push-back chairs in air-conditioned offices. There have also known how to wield power.
Power, Dr.Bevans says, is can-do-ness, the capacity to make-things-happen, the ability to accomplish results in the world. At first glance and in most conscious thinking, men are more powerful than women. It appears, if we don't look below the surface that men are in charge of things, including women. Men do act and talk big; we "show off" and stand out. We like to think we are the more powerful of the genders, and women, for pragmatic reasons, often let us, even support, outwardly, such illusions: "You're so big and strong; I'll let you make the camp (and money)."
Hear Dr.Bevans further say: ‘The male mode of dominance and aggression easily looks more powerful than the female mode of submission, where powers are most often hidden. Men seem to be more powerful than women. Peer more carefully, however, below the thin veneer of appearances and muscles; look longer, past present tense; listen for more than what is spoken; watch for long range results rather than short term displays; and you may see that things are not what they seem. With obvious exceptions, as in all our other gender differences, femininity, by and large, is more powerful than masculinity.’
How would you rate these women - Indira Gandhi, Benezir Bhutto, Khaleda Zia, Sheikh Hasina, Srimavo Bhandaranaike, Chandrika Kumaratunge, to take examples only from the sub-continent? True, they have all had either their fathers or spouses or both, as active politicians, who consciously cultivated the way for their ascension to seats of power. A woman, with no such support but making it to higher echelons, in spite of several handicaps, biological and societal, by sheer industry and iron will commends respect. She shall progress the same way, meriting every step in the ladder. Such a person shall not stop somewhere in the middle and demand that she shall be given way, because she is a woman.
Every democratic expression in India, including the election process, is a new lesson itself. The issues involved in the choice of President and the gender preferences are matters of topical interest. Laws, too, have a gender bias. Be it in the Indian Constitution or Penal or Labor laws, women, like children, are considered a class by themselves that deserve to be treated differently, equality clauses notwithstanding. The crutches are only for pulling one to get up. Once raised, she ambles across, tossing the props to the wayside. A Indira or Khaleda or Chandrika at the helm of a nation’s ship does not give the impression of all round women empowerment. The esteem that Dr.Radhakrishnan earned or how Dr.Kalam is reckoned, is sui generis. They are men of their own merit. Does the first citizen of a country, be he or she, get the respect for what the nation earns for the person or does the nation get the respect for the esteem that he or she commands?
K.Kannan

Big brother, love personified!

2007-06-09T20:26:00.000-07:00

Big brother, the love personified!
George Orwell’s all-seeing leader of the dystopian Oceania, Big Brother, symbolizes the eyes and voice of the state machinery that has ubiquitous presence: around the street corner, up the billboard, in your bed room and literally purveys all your activities. This character gave birth to a kind of real life soap, invented by the Dutchman John de Mol and developed by his production company, Endemol. It is reported to be a prime time hit as a TV program in over 70 countries. The weekly tasks for the participants are set by an invisible big brother.

G 8 is some kind of a big brother in the global political arena. Here it is not just one person, but an assemblage of self styled mighty eight that condescends to set the agenda for governance for the rest of the world. Together, these countries represent only 14% of the world population, but they account for nearly two thirds of the world's economic output measured by gross domestic product. China and India are two fast emerging leaders in world economic development and it is not possible to drop them in the wayside. It is therefore not surprising that there have been later formulations to accommodate them in some way. It is done through a separate set of meetings known as the "G8+5, attended by representatives from all eight member countries in addition to the People Republic of China, Mexico, India, Brazil and South Africa; created at Gleneagles, Scotland in 2005, primarily to reach a consensus statement on a post 2012 Climate Change settlement. Representatives from the European Commission are present at all G8 meetings.

As the annual summits are extremely high profile, they are subject to extensive lobbying by advocacy groups, street demonstrations by activists and, on rare occasion, terrorist attacks. The most well-known criticisms center on the assertion that members of G8 are responsible for global issues such as poverty in Africa and developing countries due to debt crisis and unfair trading policy, global warming due to carbon dioxide emission, the AIDS problem due to strict medicine patent policy and other problems that are related to globalization. G8 leaders are therefore pressured to take responsibility to combat problems they are accused of creating.

Maybe, Asia and Africa will join some day to float a new organization and call it A2. Each of the participating countries will identify what it is strong in and leave a trail of rich legacies for the rest of the world to benefit from. India has vast repertoire of literature, philosophy and music. They will perhaps shift emphasis only from preoccupations with economic issues to ethical and cultural considerations. The values of strong family ties will re-emphasized and a spirit of camaraderie that lays the foundation for vasudeiva kutumbam will emerge. A2 will not be a big brother but a benign patria potestas.
Incidentally, a big brother, in the Indian understanding, is not one that bosses around. He takes the mantle of a father, when the latter quits. A brother protects the honor of the family and plays a decisive role for finding a suitor for his little sister. In both Ramayana and Mahabharata, the filial bonding between brothers exemplifies the best traditions of Indianness. Look out for the equivalent expression for brother in every Indian language. From Anna, to Chetan, to bhaiya, they spell out an immediate affectionate relation who oozes love to the younger ones. Brothers seldom fight, the Ambanis and Singhanias, notwithstanding. Or, if they do, the big brother knows how to quell it and bring harmony. If the family branches from the first degree of brothers to the second degree through the children to cousins, they become pangalis. Fissures appear; partition actions emerge. From the days of Pandavas and Kauravas to the present day, pangali fights are commonplace. The big brother knows when to partition to keep amity. But, have you not played a lawyer to fighting brothers? Or, a mediator to querulous siblings? Or, a Judge to litigious family? Identify the big brother amongst them who can put an end to the litigation. We just cannot afford certain kinds of litigation in courts. No other country has, perhaps, partition actions amongst members of the same family, as we are now having. We shall use the courts for settling scores with the government oppression, wherever it exists; to make the government officials work; to smoothen industrial relations; to bring honesty in commercial transactions; to bring the culprits to book; to eradicate the scourge of untouchability. So, what do you propose to do, when you have a partition suit between brothers? Go to the big brother!

Get young by the day

2007-06-07T09:36:00.000-07:00

Are you frequently talking about the ‘good old days’? It is probably a symptom that you are getting old! How do you bring back the youth in you? To many of us, the constant refrain is that the present is choking us and the worthwhile distraction is a fanciful flight down the memory lane about the things of the past. As Thomas Carlyle would say, ‘The past is all holy to us; the dead are all holy; even they that were wicked when alive!’ That is why it is said that the past is the only dead thing that smells sweet. Decrying the present is an eternal malady. The great old days that your father talked about were actually days of slavery under the foreign rule and how Bharati fulminated with emotion about ‘the heart that is seared when you think about those cowards’, in his words, ‘Nenju porukkudillaye…’

We reminisce in the past with pleasure, whenever the talk hinges about the lawyers’ practice in courts; of the doyens of the bar that strode the courts’ corridors; about the great judges that presided over the courts; of their judgments; In contrast, of the conduct of lawyers today, especially, of the juniors. Comparisons will be made point by point between the lawyers and judges of the yester-years and present insolent disposition amongst the youthful lawyers and the slothful ways of some of the judges.

The quality of the lawyer would be recalled as stupendous, if he was fluent in the language, with a quick recall of case laws from memory. The repartees and the wit that he was capable of generating would be topics for discussion at parties. If he had a sharp tongue and could set off a breeze in court halls, it would be an additional resource to gloat over. Objectively, all these qualities are not unique to any one particular generation. Will you not honestly concede that your son or daughter in school or college reads more and has a greater fund of knowledge than you did or had in your school or college days? He or she is perhaps more articulate than you were capable of at his or her age.

Look at the books, the number of enactments and the rich store of precedents that the present generation acquaints itself with, by the time they join the profession. Computer savvy that they are, they have enough skills to pull out in a trice in a sheet of paper all the important cases that are relevant for your cases, the cases that were followed and cases that were overruled. Many psychometricians agree that IQ levels are increasing generation after generation. Among the various causes outlined are: better nutrition, more educational toys, computers and TV programmes. Talking and writing skills are no less on the decline among the younger generation. Long winding arguments are the old lawyers’ bane. Slick presentation belongs to the emerging younger milieu. The law students of the present generation hone their skills in the art of advocacy and preparation of memorials in their moot court circuits across the globe, rubbing shoulders with the brightest in the East and the West.

One must always maintain one's connection to the past and yet ceaselessly pull away from it. Nostalgia is a seductive liar! You are prone to exaggerations, while recalling events of the past. A famous writer once said, “Many are always praising the by-gone time, for it is natural that the old should extol the days of their youth; the weak, the time of their strength; the sick, the season of their vigor; and the disappointed, the spring-tide of their hopes." Not just the better days, it is certainly romantic to talk about even poverty, so long as it is in past tense; of your travel by foot or by a rickety bicycle, if you have now a car to drive by!

To look back into antiquity is one thing; to go back to it is another. Talk about stalwarts to bring home to the new generation the continuum of the great traditions that they have inherited in a way that Fali Nariman talked about, at the august occasion of unveiling the portrait of Govind Swaminathan, a towering personality that wrote himself among the greats of the Madras Bar. He recalled, “Govind never mumbled; he always completed the sentences.” Our wealth is the present generation of young lawyers and judges. Invest in them all the confidence; Help them to flower to their fullest potential; prepare them adequately to a smoother transition. As old belongs to the past, youth belongs to the future. Even the old is young if (s)he plans and strives for a bright future ahead.

As bad as you may portray to day, tomorrow ere long, will be your own good old day!

What's your vote on father-in-law?

2007-06-07T09:30:00.000-07:00

What is your personal rating of your father-in-law? Every relationship through (lawful) marriage up to the second degree gets a suffix ‘in-law’. Among other relatives for a man, the father-in-law occupies a unique position. He is for ever visualized as a person to whom all and sundry demands could be placed! He treats you as ‘mapillai’, by which expression you enjoy several privileges; It is even a bye-word for being fashionable (‘dress like mapillai’); enables you to play tantrums ( ‘mapllai murukku’) and even complain freely about his daughter, what you can’t do directly to your wife!
In the pre-independence days, when English judges presided over High courts and subtle principles of Hindu law were expounded through judicial pronouncements by reference to original Sanskrit texts, lawyers had to strain every sinew to help judges lay down the correct law. A story attributed to Rajah Iyer, a doyen among lawyers, was: He was explaining the position of various legal heirs and their respective entitlements to a Hindu father’s estate before an English Judge. The judge, who was ill at ease in following the trail of arguments, asked in a matter-of –fact tone, ‘Tell us, Mr.Rajah Iyer, what is the share of the son-in-law in the father (in-law)’s estate? Taken aback by the naïve interjection, Mr.Rajah Iyer regained his composure in a trice and told the judge of what the law did not actually accord to the son-in-law but what he was accustomed to, in practice, ‘My lord, a son-in-law gets all the property that he could lay his hands on; not merely after death, but even during the life of the father-in-law!’
The customary Hindu law, while it placed fetters on the right of a Karta to make gifts of joint family property, makes an exception to reasonable settlement of properties to his daughter at the time of marriage. Going by the virtual possibility of husband’s control over his wife’s property, it places the resources of the father-in-law in the hands of the son-in-law soon after marriage. It is not merely the right exercised over the father-in-law’s bounties by a male through his wife that is real, but even a pre-nuptial arrangement by way of gift by the father-in-law to the prospective bride before marriage has been upheld by judicial innovation by terming it not as a gift but a transaction supported by consideration of marriage. While a father-in-law may reward both the son-in-law and daughter-in-law, it is the female’s property that makes possible for a father-in-law to figure as one of the heirs, as ‘heir to the husband’ under section 15 of the Hindu Succession Act. To a male Hindu dying intestate, pitifully, a father-in-law has no scope whatever to figure as a heir. A widow of the pre-deceased son is however a heir to the father-in-law.
The wealth of jokes on every type of individual and for every occasion does not make fun of the father-in-law. English jokes on mother-in-law depict her as a person that plants herself in the house of the son-in-law, drains his resources, but never returns to her husband’s house. Mother-in-law and daughter-in-law tussles are proverbial but you have never heard of any slur through any joke or adage about a father-in-law, have you? Yahoo, which hosts a website soliciting answers to difficult questions, raises the question, why there are no jokes on father- in- law, on a same degree of concern as coping with enigmatic issues like, why you press a TV remote control button hard, when you know the battery is weak or why banks collect extra charges, when they know there are ‘no sufficiency of funds’!
The status of father-in-law, as a heir, vis- a- vis the property of a female, though a distinct possibility, in terms of inter- personal relationships, he does not enjoy always the exalted position through the eyes of a daughter-in-law in all types of situations. A father-in-law is also normally paraded along with the mother- in- law and the husband, in dowry prohibition cases. Matrimonial misdemeanour cases also sully the image of the father-in-law, who otherwise deserves a high pedestal of respect. Imrana’s travails and the alleged fatwa issued by Darul Ulooma Deoband for the violence committed on her by directing her marriage to the perpetrator of the wrong, are best forgotten as rare aberrations of human conduct that are not repeated ever. The common perception is, however, still a high degree of veneration for the daughter-in-law to the father-in-law.
All things considered, a father-in-law is a wonderful human being in the extended family. The vacation has not ended. Have you not visited your father-in-law yet; or, if you are a father-in-law, have you not pampered your son-in-law?
K.Kannan