Uniform civil code – prospects and challenges

Dr. H. Abdul Azeez[1]

Abstract

In the light of recent Supreme Court judgment holding triple talaq as unconstitutional, serious deliberations are coming up from various corners for a uniform civil code for India. The framers of the Constitution thoughtfully placed the burden on the future Governments to implement the Uniform Civil Code as they conceived the wounds of partition would heal with the passage of time. However, due to the unethical political situations, the Governments could not promote confidence of minority religious segments of the country for its implementation. This Article analyses about the causes for not implementing the Uniform Civil Code and attempts put forward some measures for the implementation of it. The most vulnerable persons affected by the non-implementation are the women in any religious groups.  Hence, the rights upholding women’s rights equalising with that of men should be made as part of Uniform Civil Code, where as rituals, culture, etc., shall be left open for religious groups follow in their own way without affecting women’s rights. Further, as first step for implementation of the Uniform Civil Code, instead of going for compulsorily implementing in one go, it can be made as an optional in initial stage, i.e., whoever intends to follow it  may choose to follow it.

Introduction

The debate on the Uniform Civil Code is getting momentum in India nowadays. The Uniform Civil Code can be considered as a common code which is applicable to all the communities irrespective of their religion, race, caste, creed, etc. The framers of our constitution included Uniform Civil Code in the directive principles of state policy under the conception that it would be implemented when the wounds created by the partition are healed by the passage on time. Article 44 of the Indian Constitution provides that State shall endeavor to secure for its citizens a Uniform Civil Code throughout the territory of India. For a convenient understanding this article is divided into following heads.

Position in Pre-independence Era

The study of Hindu legal history shows that during Hindu period[2] there was no interference of the State with Hindu law. They enjoyed complete immunity and the whole affairs were regulated by their personal laws. The state was like a welfare organization dealing with social interest and related matters. The social, political and economic life of the society was controlled by the rules and regulations of the sages who dominated the entire Hindu period.[3] During this period there were no other religious communities and so the conflict between personal laws was not material and the uniformity of law was a general rule than an exception.[4] The Muslim period which was based on the divine origin of laws and no individual could alter the law or question the authority of Caliph.[5] When Muslim law also became the law of land, Hindu law was allowed to be reserved for the Hindus and the Mohammedan rulers did not interfere with the system. The result was that the Muslim followed their Muslim law and the Hindus were allowed to stick to their own system of law. Thus, the two separate systems of personal laws on parallel lines remained to be in existence in India. It was when the British controlled India that a complete change in criminal law and a new system to deal with the various matters of civil law came into existence.

Uniform Civil Code and Modern India

The idea of Uniform Civil Code was deliberated in the Constituent Assembly but separate personal laws were retained for separate communities because the makers of constitution were convinced that some more preparation is required in the minds of people before a Uniform Civil Code is introduced. Thus, what resulted was not a secular state in the western sense of the word, rather a ‘secular’ state with religious laws for its religious groups. The problem that aroused as a consequence of the above was the retention of separate personal laws leading to contradictions in rituals and practices in personal matters. The separate personal laws of India are inherently unequal as they are founded on the rules and traditions of completely different religions, and the constitution of India recognized and the continued existence of Personal Laws. There are different personal laws like the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardian ship Act, the Hindu Adoption and Maintenance Act, etc, governing the personal matters of Hindus; and the Shariat Act, the Dissolution of Muslim Marriage Act, the Muslim Women (Protection of Rights on Divorce) Act, etc., which are based on the tenets of Holy Quran, govern the personal matters of Muslims. The Indian Christians were governed by the Indian Christian Marriage Act, the Indian Divorce Act and the Cochin Christian Succession Act, etc. Parsi’s are also having a different set of laws of their own. It is a fact that uniformity does not exist in all these personal laws, obviously, as these personal laws bases their origin in religious backings or tenets. It is submitted that the issue not of the uniformity but of the fact that they confer unequal rights depending on the religion and the gender.

Uniform Civil Code and Indian Constitution

Among the other countries in the world, our nation is unique with its composite culture. It is one of the great laboratories of multitudes of religions. To hold the different segments of Indian society accepting, understanding and acknowledging their beliefs and religious practices is a must. For this purpose, the framers of Indian constitution have accepted secularism as one of its basic ideals. Unlike the western secularism, Indian constitution upholds the concept of Sarvamadha samabhavana in its secularism as provided in the preamble. Indian constitution allows persons of different beliefs to follow their personal laws for their personal matters.  Under the Indian Constitution, all aspects of family law are in the concurrent list.[6] But apart some legislative measures, many states have not exercised their power to an appealable extent and family laws are not even codified. At the same time, it cannot be forgotten that the influence of Anglo-Saxon jurisprudence during codification had added much confusion to the indigenous practices.

The Indian Constitution, in its Part IV, Article 44 directs the State to provide a Uniform Civil Code throughout the territory of India.  However, it is only a directive principle of state policy and, therefore, it cannot be enforced in a court of law. It is the prerogative of the state to introduce Uniform Civil Code. The Constituent Assembly debates clearly shows that there was a wide spread opposition to the incorporation of Article 44 (Article 35 in the Draft Constitution), particularly from the Muslim members of the Assembly. Naziruddin Ahamed, Mohd. Ismile Sahib, Pocker Sahib Bahadur and Hussain Sahib, etc., were against the idea of having a Uniform Civil Code in India on the grounds that the right to follow personal law is part of the way of life of the people which is a part of their religion and part of their culture. Its adoption will lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country and that in a country so diverse it is not possible to have uniformity of civil law. However, K.M. Munshi strongly felt that if the personal laws of inheritance, succession, etc., are considered as part of the religion, the equality of women can never be achieved. The Chairman of the Drafting Committee, Dr. B.R. Ambedkar stated that in our country there is practically a Civil Code, uniform in its content and applicable to the whole of the country like Uniform Criminal Law, Transfer of Property, Negotiable Instruments Act, etc., which are applicable to one and all. However, he conceded that the only province, the civil law has not been able to invade so far is marriage and succession. While rejecting the arguments of certain Muslim members that the Muslim law is immutable and uniform throughout India quoting the examples like the North-West Frontier Province which was not subject to the Shariat law prior to 1935 and until then followed the Hindu Law in the matter of succession, the Marumakkatayam law applied in the North Malabar region of Kerala to all, not only to Hindus but also to Muslims. Until 1937, in the rest of India, the various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu law of Succession. Some of the learned members, however, predicted that a stage would come when the Civil Code would be Uniform and stated that power given to the State to make the Civil Code uniform is in advance of the time. Dr. Ambedkar also opined that it is perfectly possible that the future parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the code may be purely voluntary. This clearly establishes that the framers of the constitution were aware of the gender injustice and sexual inequality of women and they incorporated Article 44 in the constitution hoping that it would be introduced in future at the appropriate time.

Constitutional Provisions

While, Article 15 of the constitution guarantee to every citizen that consists of  ‘no discrimination on any ground only of religion, race, caste, sex, place of birth or any of these, Article 15 (3) ensures that women and children can have special provision made by the state. But, at the same time, Article 44 promotes Uniform Civil Code whereas Article 14-19 guarantees equal rights. Constitution of India incorporates certain policies also which are to be followed by State.[7] There is provision for ensuring just and humane condition of work and maternity relief.[8]

Along with these, Article 44 also provides that ‘the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India’. In India, Uniform Criminal Code exists and so Article 44 expects from the State to secure Uniform Civil Code for all citizens of India like the Criminal law is equally applicable to all citizens irrespective of their religious beliefs as there is no uniformity in matters relating to marriage, divorce, maintenance, guardianship, etc., among Hindus, Muslims and Christians.

Personal Laws and Issues Related To Women

In India, the women have been conferred on inferior status in most of the personal matters compared to the men. It must be submitted that there is almost ‘equality’ in all religions and practices in this regard. Till the codification of Hindu Law in 1955 and 1956 the Hindu women did not enjoy equal rights along with the Hindu men. Before 1955 polygamy was prevalent among the Hindus. The Hindu women could not hold any property as its absolute owner except in the case of Stridhana. She had only limited estate which was passed on to the heirs of the last full-male owner called reversionary on her death. In the matter of adoption, a Hindu woman had no right to adopt a child on her own. She could not be the natural guardian of her children during the life her husband. These examples are only illustrative in nature and not exhaustive. Even though the Hindu law has been codified, certain discriminatory provisions still exist even today. For example, a Hindu woman is not a coparcener in Hindu coparceners except in a few states like Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently she is not entitled to claim a share in the coparcenary. Similarly, she has no right to partition of a dwelling house even though she is a legal heir. Thus, it is obvious that the codification of personal law of Hindus has not succeeded completely in eradicating the gender inequality.

In the Pre-Islamic Arabia, the women enjoyed a secondary status in all respects when compared to men. The advent of Islam has contributed much for the amelioration of Muslim women and alleviation of their problems. The Holy Quran places women in a respectable position. However, there are certain aspects in Islam that render the position of Muslim women especially the wives insecure and inferior. A Muslim male is permitted conditionally to marry as many as four wives at a time. It is important to note that the polygamy among Muslim men is only permission but not a compulsion. The Shia Muslim male can contract muta marriages for an agreed period of time. There is no ceiling on the number of muta marriages that may be contracted by a Muslim male. In the matter of divorce, the position of the Muslim women is the most inferior and insecure compared to others. Particularly, the method of divorcing the wife by the husband by pronouncing triple ‘talaq’ is highly discriminatory in spite of the clear message of Holy Quran to the contrary. Recently, the Supreme Court has held that the practice of the triple ‘talaq’ is unlawful and void.[9] In the matter of succession also a Muslim woman is discriminated. The legal position is that when residuary of opposite sex but of the same degree inherit the property of the deceased, the Muslim male gets twice the share of the female. It means that while brother and sister inherit the property as successors, the brother gets two shares whereas the sister gets only one share. Moreover, in the matter of maintenance also the divorced Muslim wife is not required to be maintained beyond the ‘iddat’ period. At the same time, the Criminal Procedure Code which is a secular legislation imposes an obligation on a husband to maintain his wife including divorced wife until she maintains herself. The controversy regarding the question whether a Muslim husband can be directed to maintain his divorced wife even beyond the ‘iddat’ period under the provisions of Section 125 of Cr. P.C was discussed in Mohd Ahmed Khan v. Shah Bano Begum[10] and it was held that Section 125 Cr. P.C. is applicable to all including Muslims and that a Muslim husband is also liable to maintain his divorced wife beyond the ‘iddat’ period.

Subsequent to this judgment, the parliament has passed the Muslim Women (Protection of Rights on Divorce) Act in 1986 to overrule the judgment in Shah Bano case. The effect of this Act is that a Muslim husband is not liable to maintain his divorced wife beyond the iddat period, unless both the spouses submit to the court at the appropriate time that they would like to be governed by Cr.P.C. However, in the case of Danial Latif v. Union of India[11]  the Constitution Bench of the Supreme Court held: “where the constitutional validity of the Act of 1986 was challenged, and upheld that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well even beyond the iddat period must be made within the iddat period under section 3(1) (a) of the Act”. It was, therefore, categorically, held that the liability of a Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to pay maintenance is not confined to the iddat period. Similarly, among the Christians and Parsi women also, there is disparity in the rights of the women as compared to the men.

Uniform Civil Code and Judiciary

The judiciary in India has taken note of the injustice done to the women in the matters of many personal laws. It has been voicing its concern through a number of judgments indicating the necessity to have uniformity in personal matters of all the citizens. In the case of Shah Bano case[12] pertaining to the liability of a Muslim husband to maintain his divorced wife beyond iddat period, who is not able to maintain herself, the Supreme Court held that Section 125 Cr. P. C which imposes such obligation on all the husbands is secular in character and is applicable to all religions. In Ms. Jordan Deigndeh v. S.S. Chopra, D. Chinappa Reddy, J. speaking for the court referred to the observations of Chandrachud, C.J. in Shah Bano’s case and observed as under: “The present case is yet another event which focuses on the immediate and compulsive need for a Uniform Civil Code. The totally unsatisfactory state of affairs consequent on the lack of Uniform Civil Code is exposed by the facts of the present case”. Again in Sarala Mudgal v. Union of India[13] a division bench of the Supreme Court consisting of Kuldip Singh and R.M. Sahai, JJ, stoutly advocated the introduction of a Uniform Civil Code in India. In this case, the Supreme Court held that conversion of a Hindu male to Islam only for the purpose of contracting bigamous circumvents Section 494 of Indian Penal Code. Such marriages have been declared as bigamous and void by the court. The court after referring to various precedents on the point categorically held that till Uniform Civil Code is achieved for all the Indian citizens, there can be a temptation for a Hindu husband who wishes to enter in to second marriage while the first marriage is subsisting to convert as a Muslim. Here, the Court was pointing out the injustice done to the first wife, legally wedded. It also noted the failure of successive governments till date, to implement the constitutional mandate under Article 44 of the Constitution of India. It was suggested that the personal laws of the minorities should be rationalized to develop religious and cultural amity preferably by entrusting the responsibility to the Law Commission and Minorities Commission. The Bench further directed the Government of India to file an affidavit indicating the steps taken and efforts made to have a fresh look at Article 44 in August, 1996. However, the latter direction was treated as “obiter dicta” by the court subsequently. In a recent judgment, Lily Thomas v. Union of India[14] while dealing with the validity of the second marriage contracted by a Hindu husband after his conversion to Islam, the Supreme Court clarified that the court had not issued any directions for the codification of a common civil code and that the judges constituting the different Benches had only expressed their views in the facts and circumstances under these cases. It appears that the Apex Court in India, which showed great judicial activism initially with regard to Uniform Civil Code, has taken a backward step with this clarification.

In 2003 also the apex court, when it declared S. 118 of the Indian Succession Act as unconstitutional on the ground that it imposed an unreasonable restriction only on Christians in the matter of religious or charitable bequests [15] Justice Khare, observed as under: “it is a matter of great regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a Uniform Civil Code in the country”. At the same time, it must be noted that when a writ petition was filed calling for a direction to mandate the government to introduce a Uniform Civil Code in the country, the same was dismissed on the ground that this was a matter for the legislature and not the judiciary.[16] Court is cautious in bringing Uniform Civil Code which is evident from its observation[17] that although a Uniform Civil Code is highly desirable, it ought not to be enacted in one go, as that would be counter-productive to the unity and integrity of the nation. The stand or the politics of the Supreme Court is seemingly interesting. While it is recommending early legislation for ushering in a Uniform Civil Code on the one hand, it has rejected all attempts to do so through public interest litigation, on the other hand. Although the Uniform Civil Code is not codified yet, it is invisibly embracing Indian society in a gradual and an unconscious way. However, it must be appreciated that the role of judiciary in this development is noteworthy through its cautious interpretation of various personal laws though it is to be admitted that minor changes have been coming into force over a long span of time but it leaves some area as untouched.

The Uniform Civil Code in Goa: A Model

The state of Goa has shown a positive step in this direction which has enacted a set of ‘Family Laws’, which apply to all communities in Goa. Based on the Portuguese Civil Code of 1867, it governs personal matters like marriage, divorce, succession, guardianship, etc., and embraces the concept of gender equality. There is no discrimination in this Code between Hindus or Muslims or Christians or any other community. Every birth, death and marriage is compulsorily to be registered and it provides for an equal division of property between husband and wife (irrespective of gender) and also between children. It enacts the rule of monogamy and the recent debated issue of triple talaq is not even has a place in the Code. The distribution of property at the time of divorce also is designed properly in consonance with gender equality. Each spouse is entitled, in case of divorce, to a half share in the property. As far as succession is concerned, in case of the death of a spouse, it is provided that the ownership of half the property is retained by the surviving spouse, the other half to be equally divided amongst all the children, irrespective of whether they are male or female, or whether they are unmarried or have got married and left the house.

Conclusion

Article 44 was made to promote unity and integrity which is the cherished goal enshrined in the preamble to our constitution. Hindu laws of marriage, succession, etc., have been drastically changed in the first decade of the commencement of the constitution but there has been resistance from Muslim community in this respect and for avoiding any resentment on their part, political parties in power remained reluctant to enforce a Uniform Civil Code. The present situation is open to misuse and is inhuman and unjust for it permits inhuman and undignified treatment to women by providing legal cover to polygamy. Justice Kuldeep Singh, in his leading judgement in Sarala Mudgal v. Union of India[18] rightly observed that Article 44 is based on the concept that there is no necessary connection between religion and personal laws. Marriage, succession and the like matters of a secular character cannot be brought within the guarantee of religious freedom in articles 25-28. Practice of polygamy has been treated as injurious to public morals in USA and many Islamic countries have also abolished polygamy[19]. The Court, therefore, requested the Government of India to secure Uniform Civil Code for all citizens of India. No gender justice could be rendered in its comprehensive sense, unless a Uniform Civil Code containing the best provisions taken from al the religions, with the sole aim of doing gender justice. Unless the women, irrespective of their religious affiliation have been conferred equal rights on par with men in personal matters, the constitutional mandate of right to equality of status and opportunity cannot be implemented. However, adequate care should be taken to see that only the rights are made uniform and not the rituals which are inherent part of the culture and religion as otherwise it would violate the basic structure of the constitution viz., secularism. It is true that Personal laws, regardless of the community, are anti-women and so it is expected that a uniform code provides equal rights to men and women. If the remedy for the subjugation of women in almost all the faiths are available in the Personal laws itself, the proper interpretation of the Personal laws in tune with its source rather than adhering to the varied cultural patterns is also an alternate solution if the implementation of Uniform Civil Code is difficult and leads to social disintegration. This will sound good especially because it is not violating the freedom to adopt and practice any religion in the Constitution also, but at the same time will eradicate unhealthy practices.

Sandwiched between the Supreme Court’s mixed response and the legislature’s wariness, Uniform Civil Code in India stands as a distant dream for a long time to come. Since the implementation of Uniform Civil Code will certainly bring radical changes in existing personal laws, the move for reform would be better if there is sufficient pressure from within the various communities in India. Care must be taken to the fact that due to historical and other reasons, the demand for a Uniform Civil Code has now acquired communal and political overtones which may lead to serious repercussions in India. Another view is that rather going for implementing a compulsory UCC, it can be made as an optional as an initial step. It is suggested here that a model Uniform Civil Code ought to focus on rights, leaving the rituals within the bounds of constitutional propriety. If it is made optional, it will promote free choice and facilitate harmonization of social relationships across the country in keeping with the changing contours of emerging societal realities. Putting together the best elements from various existing personal codes will be better and it will be better to get it framed by independently through bodies which consist of expert and eminent personalities from among various religious groups.

[1] Associate Professor (Subject to placement), Government Law College, Kozhikode

[2]  1900 BCE to 650

[3] U.C Sarkar, Hindu Law: Its character and Evolution’ (1964) 6 Journal of Indian Law Institute at 214.

[4] Dr. Parminder Kaur, Personal Laws of India vis-a-vis Uniform Civil Code: A Retrospective And Prospective Discussion, Law Mantra Think Beyond Others, Vol. 2, Issue 5 (2015).

[5]  M. Rama Jois, Legal and Constitutional History of India, (Muimbai: N.M Tripathi Pvt. Ltd. Vol. II 1990) at 4.

[6]  INDIAN CONST. Entry 5.

[7] INDIAN CONST. Article 39 (a) (d) and (e) which mandates the State to ensure that men and women citizens shall enjoy equal right to an adequate means of livelihood. There shall be equal pay for equal work for both men and women and that the health and strength of worker’s men and women shall not be abused.

[8] INDIAN CONST. Article 42.

[9] Shayara Bano v. Union of India, Judgment of the Supreme Court dated 22-08-2017

[10] AIR 1985 S.C. 945

[11](2001) 7 SCC 740.

[12] Supra n.9.

[13] AIR, 1995 1531.

[14]AIR 2000 SC 1650.

[15] John Vallamatton v. Union of India, AIR 2003 SC 2902.

[16] Maharishi Avadhesh v. Union of India, 1994 SCC Suppl (1) 713.

[17] Pannalal Bansilal v. State of AP, (AIR 1996 SC 1023).

[18](1995) 3SCC 635.

[19] Turkey, Pakistan, Bangladesh.

Need to protect the third gender from discrimination

Sathyanarayana R[1]

Introduction

The gender discrimination towards transgenders (Hijras) is a clear violation of Article 14 of the Indian Constitution which enforces right to equality. The fact that they are treated as third gender itself can be considered as violative of Article 14 of the Indian Constitution. The state should take serious steps to ensure that they are treated alike in regard to employment, education and access to basic necessities of life. On 15th April, 2014 there was a landmark decision by the Supreme Court of India which declared transgender people to be a ‘third gender’ and held that the fundamental rights granted under the Constitution of India will be equally applicable to the transgender people and gave the right to self identification of their gender as male, female or third gender.

Hijras and transgendered persons were recognized as the third gender by the law in India. India, Nepal, Pakistan and Bangladesh have recognized them as the third gender, and provide an option on all official documents right from the education system and even in the workplace.[2] They have their own lifestyle, livelihoods, origins, customs and traditions, and they have craved a space for theme self in society. Hijras could be born with hermaphrodite genitals, male genitals or female genitals[3], and hijras who are born with male variations because of which they undergo ‘nirwana’[4] which means a ceremony when the penis, scrotum and testicles of hijras who are born with male variations are removed. Hijra Farsi is the secret language developed by them.

It is also called as koti. Nobody besides the Hijra community would understand the language they speak. It was created for the purpose of self-preservation during the British Raj. While literature shows that Hijras occupied a privileged position in ancient India, the British criminalised us and put us behind bars. This language was as a survival mechanism for Hijras.[5]

Definition

A layman’s point of view of a transgender means a person who is a combination of both male and female. Any matter of confusion regarding definition or the meaning of a term which is a subject of legal debate can be sorted out with the help of the apex court’s interpretation of the term in question. This is essentially required in the case of understanding the term ‘transgender’ because there exist various definitions to the term and many more interpretations than the number of definitions it has. One of the most noted meaning of ‘transgender’ is that “transgender people are neither completely female nor wholly male; a combination of female or male and neither female nor male.”[6] Transgender people may identify as heterosexual, homosexual, bisexual, pansexual, poly sexual, or asexual.[7]

According to the Supreme Court of India, “transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.”[8] Though at the outset, it was said that any confusion to the term which is a matter of legal debate can be solved by resorting to the Court’s interpretation of the same, it seems like the broader definition of the term ‘transgender’ given by the SC has only resulted in making the term vague and ambiguous.

Synonyms and differences in meaning

The objective of this paper is not to provide with definitions or interpretations of the term ‘transgender’. However, before moving into the details of the legal issues that the third gender face, it is imperative to understand the various groups of persons who come under the broader meaning of transgender. Hijras are group of people in India who constitute a third gender category, considered by themselves and by others to be neither men nor women.[9] It is a South Asian term used for males who have physiological feminine gender identity. Hijras are the males who have physiological feminine gender identity where as in general Hijras are born with male physiology but very few born with inter sex variation.[10] Hijras are neither men nor female by virtue but they are like women with no female reproduction organ and menstruation.

Similarly, Hijras do not have reproductive organs like men or women. Some people are intersex which means they may have both gentilia just like a Hermaphrodite is their sex chromosomes might have an extra chromosome like XXX, XXY, XYX, XYY and numerous other combinations.[11] However the word ‘HIJRA’ in India is used to refer an individual who is transsexual or transgender. Apart from that, they are even called as Aravani, Aruvani,  kinnar, eunuch, kothi, jagappa or chaakka.[12]

Reformative steps

In Karnataka the Government introduced a pension scheme called “mythri” wherein transgenders with annual income less than Rs. 12,000 per annum in rural areas and Rs. 17,000 per annum in urban areas will be eligible for the scheme. They are required to submit relevant documents including a certificate from the Department of Health and Family Welfare to prove their gender. But the applicants are not entitled to any other benefits under the social security scheme.[13]

In Tamil Nadu a pension of RS 1000 is given to the transgender and people who are above 40 years and are living in poverty are eligible for the same. The Government announced yet another scheme for economic empowerment of transgenders wherein bank loans up to 15 lakh with 25% subsidy are provided for income generation activities by transgender self-help groups. Various economic activities such provision stores, rearing of milk animals, canteens, soap production units, napkin, milk products , plying auto rickshaws, and business activities related to cloth, coir, rice have been taken up by these self help groups. Under this scheme, 51 transgender SHGs have benefited with loans for various projects worth 2.20 crore with 25% subsidy of 55 lakh and 1.60 crore as bank loan.[14]

Odisha was the first state to implement and provide food grains, pension, health, education, and housing for transgender community, thus including them in the Below Poverty Line (BPL) category. The step has been taken to empower the transgender community.[15] They will be given a BPL card in which they can access social benefits under various government welfare programs.

Irrespective of the fact that there exist various such schemes as the ones above mentioned, only few transgenders are benefited and these welfare schemes do not address the plight of the rest of them. It is time that the respective governments of every state take up the responsibility to make it a point that these welfare schemes are made applicable to each and every transgender. Few of them are even scared to disclose their identity as a transgender.

Kerala had announced a transgender policy back in 2015, becoming the first state in India to do so. The policy ensures them equal access to social and economic opportunities, resources and services, the right to equal treatment under the law, right to live life without violence and equal right in all decision making bodies.[16] Though there were opportunities given for the transgender people in the Kochi metro, in one week, of the 21 transgenders employed, eight quit their job. This is because of non-availability of adequate lodging and conveyance facilities.[17] Andhra Chief Minister too has announced pension for transgender at an amount of Rs 1000 and a ration card and a house for each member in the community.[18]

NALSA v. Union of India: The reality v. the law

The judgment passed by the Supreme Court ensured that all the transgender people should be considered as a third gender and that they should be provided with all the benefits like the mainstream people. But, irrespective of fact that, they are still facing the same problem as earlier. In reality they are not provided with any jobs and past instances reveal that even though they are offered jobs, they eventually quit the jobs due to social discrimination and lack of social security in various other matters.

Though the welfare schemes are in existence, the reality is that only 4% of the transgender are getting that benefit, that too with the lot of shortcomings. The judgment has not been implemented with full force till date and the objectives behind the ruling of the Supreme Court becomes fulfilled only if transgenders are provided with adequate education facilities and job opportunities. It should be borne in mind that campus bias forces transgenders to drop out[19].

Most of the students who are from the transgenders drop out because they find it difficult and insulting to be amidst the people wherever they go. Not only in educational institutions even in the workplace some are forced to drop out and some they themselves drop out because of the problems they face.

Conclusion: Loopholes that need to be rectified

Right from the education system everything should be provided to them. People who want to undergo SRS (sex reassignment surgeries) should be given free or affordable surgeries and stets should be taken care to ensure that most of the hospitals provide facilities for such surgeries. Being a common law country, India should be at par with recognizing the rights of innocent civilians like the United States. Our country should learn from Oregon’s Transportation Commission which was the first institution to allow residents to identify as “non-binary”, a third gender option behind male or female and the Oregonians can select their gender as M, F or X as their gender on licenses and identification cards.[20]

The future challenges that lie in the case of rights of transgenders are the legal recognition in cases of adoption and marriage. Legal issues  related to transgender becoming surrogates, the legal issues connected with the same, legal recognition of marriages between transgenders etc are the future challenges that our legal system will have to face. As regards legal recognition of marriage between transgenders are concerned, a transgender person may be married to a person of the same sex.

That situation arises, for example, when one of the spouses in a heterosexual marriage comes out as transsexual and transitions within the marriage. If the couple chooses to stay together, as many do, the result is a legal marriage in which both spouses are male or female. Alternatively, in states that do not allow a transgender person to change his or her legal sex, some transgender people have been able to marry a person of the same sex. To all outward appearances and to the couple themselves, the marriage is a same-sex union.

In the eyes of the law, however, it is a different-sex marriage because technically speaking; the law continues to view the transgender spouse as a legal member of his or her birth sex even after sex-reassignment. The only way to overcome these issues is by giving transgenders proper freedom and equal liberties in all fields they deserve and there should be no discrimination between the genders as all of them should be treated equally before the law and the same is with the case of opportunities being provided to them.

[1] 5th semester BBALLB student at School of Legal Studies, REVA University, Bangalore

[2] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 15, 2017, 2:23 P.M.), http://topyaps.com/things-to-know-about-hijras

[3] Sathya Narayana, The Scientific Causes behind the Birth of Hijra or Third Gender, SPEAKINGTREE, Aug 11, 2016, (Dec. 1, 2017, 8:19 P.M.), https://www.speakingtree.in/allslides/the-scientific-causes-behind-the-birth-of-hijra-or-third-gender

[4] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Dec. 1, 2017, 1:11 P.M.), http://topyaps.com/things-to-know-about-hijras

[5] Anahita Mukherji, Hijra Farsi: Secret language knits community, THE TIMES OF INDIA, Oct 7, 2013, (Sep. 16, 2017, 10:36 P.M,), http://timesofindia.indiatimes.com/india/Hijra-Farsi-Secret-language-knits-community/articleshow/23618092.cms

[6] Jayshree Bajoria, Making Transgender Rights a Reality in India, HUMAN RIGHTS WATCH, July 25, 2017, (Sep. 14, 2017, 10:03 P.M.), https://www.hrw.org/news/2017/07/25/making-transgender-rights-reality-india

[7] Fatima Nuyab, What is the difference between Hijra and Transgender, QUORA, April 16, 2017, (Sep. 14, 2017, 9:19 P.M.), https://www.quora.com/What-is-the-difference-between-Hijra-and-Transgender#MoreAnswers

[8] Para 11 of NALSA v. UOI (2014) 5 SCC 438

[9] Serena Nanda, Neither Man Nor Woman: the Hijras of India, PRENTISS RIDDLE, Dec 19, 1991, (Sep. 25, 2017, 9:57 P.M.), http://prentissriddle.com/play/hijras.html

[10] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 23, 2017, 9:30 A.M.), http://topyaps.com/things-to-know-about-hijras

[11] Safiya, What sexual organ does a transgender have, QUORA, Feb 18, 2016, (Sep. 25, 2017, 9:37 P.M.), https://www.quora.com/What-sexual-organ-does-a-transgender-have

[12] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 14, 2017, 9:38 P.M.), http://topyaps.com/things-to-know-about-hijras

[13] Karnataka Government Launches Pension Scheme ‘Mythri’ For Transgender People, GAYLAXY EMPOWERING EXORESSION, Feb 22, 2014, (Sep. 27, 2017, 11:30 A.M.), http://www.gaylaxymag.com/latest-news/karnataka-government-launches-pension-scheme-mythri-for-transgender-people/#gs.ZsPcIdQ

[14] Transgenders to get Rs 1,000 monthly pension, THE TIMES OF INDIA, Aug 2, 2012, (Sep. 27, 2017, 8:39 P.M.), http://timesofindia.indiatimes.com/city/chennai/Transgenders-to-get-Rs-1000-monthly-pension/articleshow/15322613.cms

[15] This state is first in India to provide pension and food benefits to the transgender community, INDIA TODAY, June 6, 2016, (Sep. 26, 2017, 9:28 P.M.), http://indiatoday.intoday.in/education/story/bpl-status-to-transgenders/1/685370.html

[16] Nagpur Today, Kochi Metro hires transgender/ hijras, can Nagpur metro follow the example?, NAGPUR TODAY, May 13, 2017, (Sep. 17, 2017, 10:27 P.M.), http://www.nagpurtoday.in/kochi-metro-hires-transgender-hijras-can-nagpur-metro-follow-the-example/05131505

[17] Ramesh Babu, In one week, eight transgender employees quit working for kochi metro, HINDUSTAN TIMES, June 25, 2017,(September. 13, 2017, 10:30 P.M.), http://www.hindustantimes.com/india-news/in-one-week-eight-transgender-employees-quit-working-for-kochi-metro/story-XDp6xgnA2Y6dhaAYcs8abP.html

[18] Chief Minister promises pension, housing for transgenders, THE HANS INDIA, Sep 22, 2017,(Sep. 27, 2017, 8:27 P.M.), http://www.thehansindia.com/posts/index/Andhra-Pradesh/2017-09-22/Chief-Minister-promises-pension-housing-for-transgenders/328280

[19] Ambika Pandit, Campus bias forces transgenders to drop out, TIMES OF INDIA, June 8, 2017, (September. 13, 2017, 10:11 P.M.), http://timesofindia.indiatimes.com/city/delhi/campus-bias-forces-transgenders-to-drop-out/articleshow/59045435.cms

[20]Laurel Wamsley, Oregon Adds A New Gender Option To Its Driver’s Licenses: X, THE TWO-WAY, June 16, 2017, (October. 4, 2017, 7:48 P.M.), http://www.npr.org/sections/thetwo-way/2017/06/16/533207483/oregon-adds-a-new-gender-option-to-its-driver-s-licenses-x

Compromising Citizens’ Privacy for National Interest: A Fair Trade-Off?

Aryan Vij ((1st Year Student of B.A.LL.B. (Hons.), National Law Institute University (NLIU) Bhopal, M.P.)).

On December 2, 2015, two terrorists of Pakistani descent brutally killed 14 Americans and seriously injured 22 others in a mass shooting attack in San Bernardino, California. In the ensuing investigations, the FBI recovered an iPhone belonging to one of the terrorists.

Citing national interest, the FBI made a formal request to the phone’s manufacturer, Apple, to unlock the device and give it access to the data stored in it for possible clues about the terrorists’ wider network.

Apple refused to accede to the FBI’s request, and vowed to vigorously fight a California court order directing it to cooperate with the FBI. A few weeks later, the FBI voluntarily withdrew its request to Apple and asked Judge Sheri Pym to drop the case.

Leading technology companies, including Google and Facebook, hailed Apple’s stand against the government to compromise the privacy of millions of iPhone owners by handing over the access codes to the FBI.

The Individual is “Sovereign”

In its recent landmark 547-page judgment page judgment, the nine-judge Supreme Court bench in India declared Right to Privacy as a fundamental right. Justice Chandrachud’s order, as part of the judgment, is most remarkable because it traces the historical roots of the right to privacy. The order quotes Aristotle who recognized over 2,300 years ago that every citizen has a “confidential zone” which only belongs to them (Justice KS Puttaswamy v. Union of India, WP(C) No: 494/2012 decided on August 24, 2017).

Justice Chandrachud recalled the “Commentaries on the Laws of England” (1765) where William Blackstone said that certain “absolute rights are vested in the individual by the immutable laws of nature, which include the right to personal security and reputation.” The order cites from the Treatise on the Law of Torts (1888) where Thomas Cooley notes that “the right of one’s person may be said to be a right of complete immunity; the right to be alone.”

Justice Chandrachud, in his order, goes on to quote from an essay “On Liberty” (1859) by John Stuart Mill, which says that, “Over himself, over his own body and mind, the individual is sovereign.”

The Importance of Individual’s Consent

The Canadian Supreme Court, in the case of “Her Majesty, The Queen vs. Brandon Roy Dyment” (1988), highlighted the critical importance of individual consent even in the matters pertaining to the safety and security of the state. The case involved a physician who collected a patient’s blood sample for medical reasons, and handed it over to the police as part of a criminal investigation.

The Supreme Court held in the case that using the blood sample without consent even for the state’s security purposes was a violation of law.  As Justice LaForest famously said, “The use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity ((Bailey, Jane, Missing Privacy Through Individuation: The Treatment of Privacy in the Canadian Case Law on Hate, Obscenity, and Child Pornography (2008). Jane Bailey, “Missing Privacy Through Individuation: The Treatment of Privacy in the Canadian Case Law on Hate, Obscenity and Child Pornography”, 31 Dalhousie Law Journal 55, 2008. Available at SSRN: https://ssrn.com/abstract=2279618)).”

Such protection of an individual’s privacy even brings into question the validity of the Indian government collecting biometric information from the citizens without giving them an option of “consent.” The Supreme Court of India is now setting up a five-judge Constitution bench to hear petitions challenging the government’s decision to make Aadhaar mandatory for availing various welfare benefits ((Aadhaar case: Supreme Court to set up five-judge Constitution bench to hear pleas, The Indian Express (October 31, 2017) and available at http://indianexpress.com/article/india/aadhaar-case-supreme-court-to-set-up-constitution-bench-to-hear-pleas-4913605/)).

A Universally Unfair Trade-Off

Technology has universalized the world, and challenges to citizens’ privacy in the name of national security are not confined to one country alone. On September 26, 2017, Microsoft CEO Satya Nadella launched his book, “Hit Refresh,” where he writes that the consumers’ trust in governments around the world is diminishing because of weak data privacy laws, which allow the governments to act unilaterally, while hiding behind the cover of national security ((Hit Refresh: The Quest to Rediscover Microsoft’s Soul and Imagine a Better Future for Everyone. Satya Nadella, Greg Shaw, Jill Tracie Nichols, Harper Collins (2017).)).

In his book, “Nothing to Hide: The False Trade-off between Privacy and Security” (Yale University Press), author Daniel J. Solove comprehensively demolishes the fallacious pro-security argument that continues to allow governments to breach privacy of the citizens. Solove says that while the law seeks to find the elusive balance between security and privacy, systemic problems disrupt that balance. Judges are typically deferential to policy-makers in the matters of security, and the citizens lose in the process ((Nothing to Hide: The False Trade-off between Privacy and Security. Daniel J. Solove, Yale University Press)).

Privacy IS National Interest

The debate on privacy versus national interest should begin with the question: What exactly is national interest? National interest is not interest of the “nation,” which is a notional entity. It is not even the interest of the political class that rules the nation. National interest is the interest of the people who constitute the fabric of the nation.

It brings us to the second question: What is in the best interest of the people of the nation? Who gets to decide that? In a democratic society, only people must decide what is in their best interest. The political class cannot decide that on behalf of the people. They are the elected representatives of the people. Whatever the people will decide, the representative must represent that as national interest in a democracy.

This brings us to the ultimate question: What do the people want? Do people want to be the deciders of their own destiny, or do they want to leave it in the hands of a deeply distrusted political class that has historically worked only with a single-minded goal of perpetuating its seat of power?

A Failed Trade-off

Governments around the world have traditionally held the greatest contempt for citizens’ privacy in the name of national security and national interest. Has this approach led to a decrease in terrorism over the decades? Has this approach led to a decrease in nuclear, chemical, biological and other forms of global threats to the world?

The truth is that citizens’ privacy has the least degree of connection with terrorism, war, climate change and other forms of manmade dangers that have been unleashed on the civilization by those who gain political power and then have a compelling need to perpetuate that power by compromising all the basic human values of integrity and dignity.

Privacy – A Birthright

To borrow the famous phrase from India’s freedom struggle, privacy is not even a fundamental right, it is a birthright. Privacy is the core need of a human being, whom Aristotle called a “social animal.” Human beings, like many other species, by nature live in herds. When you live in a herd or in an evolved social system, your privacy becomes your most intimate possession. In the Bible, even the world’s first citizens, Adam and Eve, had privacy as their first basic need.

Without privacy, you are naked because someone else can peep into your private existence and violate it. What can be a bigger interest of a human being than privacy? To extend this argument, what can be a bigger national interest than the citizens’ privacy? Those who propagate the myth that privacy is dichotomous from national interest, and that there must a balance or a trade-off between the two, either do not understand the deepest human values of personal freedom and dignity, or have a vested interest in compromising the privacy of citizens to perpetuate their own power over them.

Exposing the Propagandist Element of ‘National’ Interest

Any term that begins with the word “national” should first of all be examined with tempered caution and suspicion. This word is the greatest tool of propaganda that has ever been invented since the inception of civilization by men to rule over other men. Hitler used it to great effect by misleading an educated and aware nation like Germany, completely subordinating their will, and making them support the barbarian extermination of millions of Jews, followed by a globally destructive world war – all in the name of ‘national interest’.

Hitler devoted an entire Chapter 6 to propaganda in his autobiography Mein Kampf. He wrote: “All propaganda must be popular and its intellectual level must be adjusted to the most limited intelligence among those it is addressed to. The art of propaganda lies in understanding the emotional ideas of the masses ((Mein Kampf : An Autobiography Of Adolf Hitler 1st Edition. Adolf Hitler, Gbd Books (2010).)).

“The function of propaganda,” Hitler further wrote, “is not to weigh and ponder the rights of different people, but exclusively to emphasize the one right which it has set out to argue for. Its task is not to make an objective study of the truth, and then set it before the masses with academic fairness. On the contrary, its task is to serve our own right, always and unflinchingly.”

Nations have Wronged the Individual

The individual supersedes the nation. Without an individual, there is no nation. However, ‘nationalism’ presents a twisted truth, which suggests that ‘national interest’ supersedes ‘individual interest’ – as if national interest is something different from individual interest.

The advancement of democracy in the world has, ironically, added more strength to the counterfeit concept of nationalism. Democracy, by definition, is a celebration of the individual. Although democracy has brought freedom to the many against the power of an autocrat, but it has also compromised the liberty of the one against the power of the many ((REINHOLD NIEBUHR, The Nation’s Crime Against the Individual, The Atlantic (November 1916 Issue) accessible at https://www.theatlantic.com/magazine/archive/1916/11/the-nations-crime-against-the-individual/306365/)).

Can there be a ‘Fair’ Trade-off of Self-respect?

George Orwell’s Nineteen Eighty-Four described a world marked by a complete absence of citizens’ privacy and an absolute governmental control and surveillance. The citizens in the Orwellian world are told to speak with care because the ‘Big Brother’ is watching. The dark world of Orwell’s 1984 is a world without citizens’ autonomy, dignity and self-respect ((1984, George Orwell and Erich Fromm. Signet Classics (1950))).

Privacy is the foundation of citizens’ freedom, dignity and self-respect. The privacy of Draupadi constituted the self-respect of Pandavas.

Lord Krishna said in the Bhagvad Gita, as the two gigantic armies stood facing each other on the battleground: “Self-respect, O Arjuna, is worth dying for.” Trading self-respect for something as emotionally deceptive and propagandist as ‘national interest’, which has already caused enough bloodshed in history, is truly against the interest of a nation – where ‘I’ am the ‘nation’.

Quadrilateral alliance (Quad) – the next door of opportunity

MV Karthik Narayanaswamy ((MVK Narayanaswamy is an audit and secretarial consultant based at Wayanad District of Kerala State. He is a Company Secretary and possess a Master Degree in Business Administration with specialization in Finance. He also holds Bachelor Degrees in Public Administration as well as Commerce. Author in this article made an attempt to share his thoughts on Quad (the Quadrilateral alliance formed among India, Japan, USA and Australia)).

Government of India demonstrated a very positive approach in building healthy relations with the rest of the world nowadays. Honourable Prime Minister Shri. Narendra Modi’s effort in this regard needs a special mention. It is evident from the policies of the present India Government that, the government is giving an utmost importance in building and maintaining bilateral and multilateral relations with rest of the world. While framing such policies the present government has given due credit those Indians (Pravasi) who are spread across the world. Programs like ‘Pravasi Bharateeya Divas’ are playing a vital role in these context. As a result, Government of India even established relationships with those countries which didn’t have any relationship with India in last 30 – 40 years. Bilateral relationship with Canada is an example. Similarly, India’s participation, membership and recognition in various international organisations, groups and forums indicates the increasing importance of the nation along with other leading countries viz. US, France, Japan etc.

India joining hands with Australia, United States of America & Japan forming Quadrilateral alliance (QUAD) drew global attention. The idea of Quad was initially mooted in the year 2006 by then Japanese Prime Minister Shinzo Abe. Under this alliance the member countries of Quad agreed upon a free, open, prosperous and inclusive Indo-Pacific region serves the long-term interests of all countries in the region and of the world at large.

The coalition held their first formal talk in Manila, Philippines and consultations were held on issues of common interest in the Indo-Pacific region with a focus on cooperation based on converging vision and values for the promotion of peace, stability and prosperity in the area. The Quad gained the global attention mainly because of following reasons;

  • China is trying to become the leader of Asia as first step and later leader of world, a position higher than USA; and
  • Significantly, India may use this alliance as a new strategic tool against China and Pakistan in its external affairs.
  • Similarly, Quad has got the potential to build immense pressure against China in their One Belt and One Road (OBOR) initiative, String of Pearls (Group of Ports), Invasion to South China Sea etc.

Though, demonetization (as per reports of Economic Survey 2016-17, Volume II)and GST implementation, has reduced the growth in GDP, Indian economy’s growth prospect is ever increasing.World Bank’s ‘Ease of doing  business’ report  shows that India’s ranking in ease of doing stands less than 100 for 2017-18 whereas in 2016-17 the rank was 131. World Bank reports also shows that India is World’s fastest growing economy. Thus, it is evident that china view India as its competitor due to its growth in economy.

Being a developing country as well as world’s fastest growing economy, India need co-operation from the rest of world. For that economic and social association with rest of the world is indeed, especially with developed economies. From this sense, Quad can be seen as an important strategic relationship even in addressing common challenges of terrorism and proliferation linkages impacting the region as on enhancing connectivity.

India’s Act east policy (Earlier, Look east policy) is the cornerstone of engagement of this region. Act east policy focuses on increased engagements with the regional blocs. The idea of Quad is to promote free trade and defense cooperation across a stretch of ocean from the South China Sea, Indian Ocean and all the way to Africa. Earlier there was a trilateral arrangement between India, USA and Japan. However later according to Japan’s wish Australia was also added and the Quad Group was born.

When we observe from Pakistan, it is a jealousy move of India. As everyone know that, Pakistan is trying to hinder our development process through terrorism and other anti- national elements. The situation of insurgency in Jammu and Kashmir is a very good example of Pakistan’s intervention in India. To certain extend China is also supporting Pakistan in order to hinder India’s growth. China’s objection against India’s membership in Nuclear Supplier Group (NSG) on a baseless ground (that, if India is given membership, Pakistan should also be given membership since they applied in the same time) could be co-related in these lines.

India is enriched with both natural as well as human resources, and it is the responsibility of the State to create necessary opportunity to explore its resources. When an eye-catching opportunity is created the problem of “Brain drain” can also be solved which will indeed boost the overall development of the society. As mentioned earlier, the co-operation and support from developed countries as well as others are very much needed for India during this transition period.In these context, let’s see Quad as a next door of opportunity which could add fuel to India’s overall growth.

The Law in Action – Judicial Activism in Achieving Gender Justice

Author: Mishika Bajpai, Advocate, Supreme Court of India and High Court of Delhi

Abstract

All women have a Right to Equality, Dignity and Respect. This right to equality is a human right and has been adopted and absorbed by various democratic constitutions across the world. However, when this right is denied to women it results in discrimination against them, which in turn necessitates women empowerment. Gender inequality intersects with insufficient education, inadequate health care, and limited income to the discriminated ones. Such deprivations only thwart their abilities to protect themselves or make empowered choices for themselves and result in social and unequal economic status of women. When the efforts of the legislature in bringing about gender equality among men and women were proved futile, it was the judiciary which struck a balance in the manner the society was dealing with any issue related to gender.

This paper focuses on how the Indian and American judiciary have brought about significant changes towards women empowerment by their exhaustive decision making power.The heart of the paper is on a comparison of the approaches taken by Supreme Courts of both the jurisdictions. The Courts have, with due regard to the power of the legislature, recognised that emancipation of women begins with the decisional making progress, followed by economic development, and consequent improvement in a women’s ability to access the constituents of development towards better health amenities and education.

The author has put forth a careful compilation of judgments delivered over all these years to study the judiciary’s meticulous approach towards women empowerment by sensitizing the issue of equality amongst the two sexes. The landmark judgments delivered by the judiciary has seen a momentous change in the concept of gender equality. These cases shall evidence the fact that the Judiciary has treated women justice seekers with utmost respect and humility while keeping in mind the quandaries of gender discrimination.

Introduction

On January 21, 1648, when a woman stood up in the New World to request the right to vote for claiming her own land, and suing for debts, the Maryland Assembly denied her this request[1]. Margaret Brent became the first woman recorded to have demanded the right to vote. Men and women were allowed to plead their own cases before the courts, however women could only do so if they were unmarried, and Brent’s conscious decision to stay unmarried followed through. She then proceeded to use the courts as necessary to collect and pay debts owed. She even accepted commissions to act for others as attorney-in-fact, most often for her brother Giles Brent and for Lord Baltimore.[2] What was denied in the Assembly was rightly practiced before the Courts.

“The best protection any woman can have … is courage.”

      – Elizabeth Cady Stanton[3]

During the1800’s, when Elizabeth Cady Stanton’s father preferred another son over her, little did anyone envision that the same daughter would become one of the earliest and leading figures in the women’s rights movements in the United States of America, inspiring women across the globe. The 19thcentury suffragist and civil rights activist advocated liberalized divorce laws, reproductive self-determination, and greater sexual freedom for women, and became an increasingly marginalized voice among women reformers of that era.[4]

For centuries, women across the world have been socially and economically deprived of the rights they always deserved. They have been recognized as the submissive, subservient, docile, passive; the class that never confronted but conformed to all the indiscriminate behavior they were put through. In his classical writing “Origin of the Family, Private Property and the State” Friedrich Engels[5] pointed out that the emancipation of women could only be possible if they took part in production on a large, social scale, and their domestic chores could not claim anything but an insignificant amount of their time. Rightly so, because, inherent to the principle of equality between men and women, or gender equality, is the concept that all human beings, regardless of sex, are free to develop their personal abilities, pursue their professional careers and make choices without the confines set by stereotypes, rigid gender roles and prejudices.”[6] The judiciary in this regard has regulated the relationship between the two sexes and has bridged the gap between them to a very large extent.

At this point it necessary to note that it is not the case where women rights have not been protected by the legislature, rather there have been numerous laws enacted by legislators aiming at women development. The United Nations adopted The Universal Declaration of Human Rights in 1948 which proclaimed equal entitlements of women and men to the rights contained in it.[7]  The Constitution of India, 1950 has a set of positive and negative rights enshrined throughout the Constitution and its Preamble towards protection of women.[8] While the United States Constitution, signed on 1787, did not overtly mention women or limit of their rights or privileges to males, the usage of the word “persons” was used as being gender neutral. However, there were many rights such as the ‘right to property’ and the ‘right to vote’, amongst other rights which were not easily granted to women. Despite the above and many other legal provisions and enactments upholding the constitutional mandate to combat this pervasive social discrimination, flagrant violations of international human rights norms and national constitutions followed.

Judicial Activism in India and USA

“So, can a woman get impartial justice from a man? Or conversely, can a man get impartial justice from a woman? The answer is … ‘Yes’ … in both cases. But judges have to learn the language of equality and be impartial and try and place themselves alternately in the shoes of the two disputants and appreciate the problem and give an objective decision. This process of learning the language of equality is slow — but has to be encouraged. Otherwise there will be no equality and no justice. As one learns a new language when one goes to a new country, so must we learn the language of equality as we enter a new century, with hope and with desire to remove injustice.”

  • Late Justice Leila Seth[9]

The law that regulates the relationship between people also gives the power to the courts to understand this relationship and make amends adapting to society’s changing needs. The Courts, as the guardian of our rights, have time and again taken affirmative steps in the realm of women empowerment. The sustenance of gender justice and equality amongst women and men is the cultivated accomplishment of intrinsic human rights. Not only benefits have been extended but age-old legislations with inequalities have been read down by the Courts. While working on enabling the legislature to enact statutes moving towards gender justice, the Courts have also exercised their writ jurisdictions to check any violations of legal and fundamental rights. At every stage, pre-trial, during the trial and post trial, the Courts have exhibited extra precaution in deciding cases involving women.

Ever since the 19th century an upsurge of women empowerment litigation has been witnessed following a forceful dialog.  As women’s rights issues keep coming into national and international spotlight time and again, it is important to identify the significant milestones that led to their voice being heard and subsequently redefined their rights in our patriarchal society. A determined yet sensitized judiciary viewing each and every case in a holistic manner molded the existence and enjoyment of rights for women in USA and India with praiseworthy judicial activism[10]. This made evident that a qualitative justice dispensation had no place for predilections or an obdurate judicial formalism[11].

Right to life

Voluntary Health Assn. of Punjab v. Union of India, (2013) 4 SCC 1

The Parliament vide the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 wanting to prevent the practice of use of pre-natal diagnostic techniques for eliminating female foetus, however, could not effectively implement its functioning due to improper monitoring, the violators repeated this crime without facing any penal action.

The Supreme Court tackled the issue and gave several directions which were, inter alia, constitution of a Central Supervisory Board and the State and Union Territories Supervisory Boards for the supervision of effective implementation of the Act. The violators were to face suspension of registration and cancelation of license to practice. All the authorities had to ensure that all genetic counseling centers, genetic laboratories and genetic clinics, infertility clinics, scan centers, etc. using pre-conception and pre-natal diagnostic techniques and procedures would maintain all records and all forms, required to be maintained under the Act.

Right To Livelihood, Equal Opportunities In Employment And Benefits Thereof

Bradwell v. State of Illinois, 83 US 130 (1872)

The legal right of a woman to practice a professional career significantly changed after this 1872 judgment.

Myra Bradwell, a married woman, claimed to be admitted to practice as an attorney and counsellor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect. The Court proceeded to distinguish between the two sexes and found that Civil Law itself had recognized a wide difference in the respective spheres and destinies of man and woman.

“So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States.[12]

The Supreme Court of United States, thus, concluded that laws of Illinois complained of were not ‘obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States’.[13] It is noteworthy, that the Chief Justice dissented from the judgment of the court, and from all the opinions.[14]

Muller v. Oregon, 208 U.S. 412 (1908)

One of the earliest cases which resulting in igniting the fire in the hearts of women who were said to be “dependent upon man”[15]. The Supreme Court of US upheld the Oregon state law limiting women to working no more than ten hours a day and called it a legislation securing a ‘real equality of right’[16] properly placing them in a separate class. The Court found thus –

 

“Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, may, without conflicting with the provisions and this control in various forms, with diminishing intensity, has continued to the present. As minors, thought not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right.”[17]

The Court rightly or wrongly understood the two sexes differently, by their structure of body, in the functions each performed, in the amount of physical strength, in the capacity for long continued labor, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This case led to a widespread public discussion of women’s equal contractual and personal rights with men.

It is interesting to note, that even though the Fifteenth Amendment[18] to the United States Constitution, adopted on February 3, 1870 gave all male citizens of the USA, regardless of “race, color, or previous condition” of servitude, the right to vote; the women only got this right 50 years later, on August 18, 1920, after strong women’s right movements led by suffragettes resulting in the 19th Amendment: “Universal Suffrage”.[19]

Adkins v. Children’s Hospital, 261 US 525 (1923)

As a positive change in favor of the women laborers, the Supreme Court in the instant case struck down a legislation which regulated the wages of women laborers. The US Court distinguished between the laws, one regulating the hours of work (See Muller v. Oregon) and another regulating wages. Citing and upholding the Muller’s principle[20], the Court viewed the changes that had taken place in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment[21] and observed that these differences had had come to a vanishing point. Muller v. Oregon was not overturned[22], however.

“In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.”[23]

The Muller protective legislation was trumped by Title VII of the Civil Rights Act of 1964[24]with no accompanying legislative history. Another shield against employment discrimination – sex – was added by a last minute floor amendment.[25]

Phillips v. Martin Marietta Corp, 400 US 542 (1971)

Even though the Civil Rights Act of 1964 was in place to prohibit all forms of discrimination for employment, an employer (Martin Marietta Corporation) had refused employment to a woman on the ground that it was not accepting job applications from women with pre-school-age children (while hiring men with children of the same age). Upon challenge to the same the Court of Appeals erred in the reading of Section 703[26] of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex and national origin and upheld the prohibition. Upon challenge to the above the Supreme Court vacated the earlier order and remanded the matter for further consideration.[27]

Justice Marshall while concurring with the above view, further stated, “By adding the prohibition against job discrimination based on sex to the 1964 Civil Rights Act Congress intended to prevent employers from refusing ‘to hire an individual based on stereotyped characterizations of the sexes”.[28]This meant that characterizations of domestic roles of the sexes were not to serve as predicates for restricting employment opportunity. No such ‘bona fide occupational qualification’ could ever swallow the rule that allowed equal opportunity to all.[29]

Frontiero v. Richardson, 411 U.S. 690 (1973)

The Court applied the judicial scrutiny to a federal statute which required female Air Force officers, but not male officers, to prove that their spouses were in fact dependant on them for support – before increased medical benefits would be made available to them.[30] The Court, while holding that this classification was unreasonable, found that the legislation to be premised on the outdated and unsupported presumption of a wife’s dependency for support on her husband.[31]The US Court allowed the spouses of military women to receive the same benefits as did the spouses of men in the military.

“By according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.”[32]

The Supreme Court has stood for striking down classifications that discriminate against females, yet been vigilant to preserve laws that favor them.[33]

Right to privacy and decision making

Roe v. Wade, 410 US 113 (1973)

The relevant Texas law prohibited abortions except with respect to those procured or admitted by medical advice for the purpose of saving the life of the mother. This case concerned the right of an unmarried pregnant woman to terminate her pregnancy by abortion.[34] The constitutionality of the said law was questioned on the ground that the said law improperly invaded the right and the choice of a pregnant woman to terminate her pregnancy and therefore violative of ‘liberty’ guaranteed under Fourteenth Amendment[35] and the right to privacy recognised in Griswold’s case[36].

Even when considering the detriments that a state legislation might impose upon the pregnant woman by denying this choice was considered by the US Court while finally concluding that the right of privacy is broad enough to cover the abortion decision.[37] The right, the Court stated, was nonetheless, not absolute and was subject to limitations wherein that the state may put regarding protection of health, medical standards, and prenatal life.[38]

Expressly affirming the Roe v. Wade principle, the Court held that a woman had a fundamental right to make the choice to have an abortion prior to the time that the fetus became viable while permitting only such regulation of the abortion procedure that it did not impose an “undue burden” on the woman’s right to choose to have an abortion.[39]

Right to property and inheritance

V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99

Even when the Legislature had enacted The Hindu Succession Act, 1956 which under Section 14(1)[40] provided that property of a female Hindu was to be her absolute property, a widow was denied of alienation of her husband’s property in her possession, by giving the above provision of law a limited reading.

The Supreme Court of India granted relief to the widow by laying down that Section 14(1) and the Explanation thereto had been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation.[41] The Court further addressed the issue of ownership as a right against the world and not one restricted to familial ties.

“The right of the widow to be maintained is of course not a jus in rem since it does not give her any interest in the joint family property but it is certainly jus ad rem i.e. a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property.”[42]

Mrs. Mary Roy v. State of Kerala, (1986) 2 SCC 209

This path breaking judgment decided against the constitutionality of the provisions of Travancore Christian Succession Act, 1092, wherein Christian women in Kerala could only inherit one-fourth (1/4th) of the share of the sons in her father’s property. These provisions were declared to be unconstitutional and void as being violative of Article 14[43] of the Constitution of India.[44] The Court also declared that intestate succession to the property of Indian Christians in the territories of the former State of Travancore was governed by the provisions contained in Chapter II of Part V of the Indian Succession Act, 1925, thus giving Christian women an equal share in their father’s property.[45]

Right to Education

United States v. Virginia, 518 U.S. 515 (1996)

In this case, the US Supreme Court noted that the state must demonstrate “exceedingly persuasive justification’[46] on the ground of which they intend to discriminate between two genders. The State of Virginia failed to do so when it excluded women from the educational opportunities provided by Virginia Military Institute thereby denying the equal protection of the laws. It is extremely important that colleges and universities deal with faculty, staff, and students without regard to sex, race, or ethnic origin.[47]

The U.S. Supreme Court in another decision found unconstitutional the exclusion of men from an all-female nursing school.[48]

The heightened assessment standards applicable to gender-based classifications do not make gender a proscribed classification, but this categorization by gender could be used to create or perpetuate the legal, social, and economic inferiority of women.[49]

Right to maintenance

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556

The Supreme Court of India in this case ruled in favor of the divorced wife (Shah Bano) and directed maintenance from her ex-husband under Section 125 of the Criminal Procedure Code, 1973[50] (with an upper limit of Rs. 500 a month) putting Shah Banu, a muslim wife, under the same ambit as any other Indian woman.

“Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife?” The Court not only questioned its inequality but also clarified that the provisions of the Criminal Procedure Code were secular and it was irrelevant whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens. The Court explained that such provisions essentially of a prophylactic nature cut across the barriers of religion. They do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes.

The Supreme Court assumed the role of a reformer and surmised it on the legislative intention of having a uniform civil code throughout India under Article 44 of the Constitution of India.

Danial Latifi v. Union of India, (2001) 7 SCC 740

The 5 judge bench of the Supreme Court upon interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986 observed that deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India could not be stated to have been effected by a reasonable, right, just and fair law.

The aforementioned Act allowed maintenance to a divorced woman only during the period of iddat, or till ninety (90) days after the divorce in accordance with the provisions of Islamic law. This was however, in stark contrast to Section 125 of the Criminal Procedure Code, 1973 which provided for general maintenance for wives, children and parents, irrespective of religion. The Act was also seen as diluting the effect of the Shah Bano case.

The Court stated that the provisions of the Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board did not appear to be reasonable and fair substitute of the provisions of Section 125, Criminal Procedure Code.

“In Shah Bano case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245] this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman.”

The Act in question was only given appropriate reading upholding its validity in as much as fair and reasonable provisions were made for the divorced wife including her maintenance. Overcoming the limitation of the iddat period, the Court held that such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of the Act. Again, reading the provisions of the Act in favor of the divorced women the Court noted that “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.”

Protection from sexual harassment at workplace

Meritor Savings Bank v. Vinson, 477 US 57 (1986)

The Supreme Court held that sexual harassment that creates a hostile work environment is a form of sex discrimination prohibited by Title VII[51] of the Civil Rights Act of 1964 (which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion).[52]The Court laid that there was no raison d’être to not apply the principle of hostile environment discrimination to sexual harassment cases, provided that the plaintiff establish a violation of Title VII by showing that discrimination based on sex created a hostile or offensive work environment.[53]

In defining “sexual harassment,” the Court noted that the Equal Employment Opportunity Commission’s Guidelines on Discrimination Because Of Sex[54] included “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” The Guidelines also provided that such sexual misconduct constitutes prohibited “sexual harassment”, whether or not it is directly linked to the grant or denial of an economic quid pro quo, where “such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”[55]

Vishaka v. State of Rajasthan, (1997) 6 SCC 241

A three-judge bench in 1997 in the absence of domestic law formulating any effective measures to check the evil of sexual harassment of working women at all workplaces, sought to examine the international conventions and norms for the purpose of guaranteeing of gender equality and right to work with human dignity. The Court deliberated over these international conventions in line with Articles 14[56], 15[57], 19(1)(g)[58] and 21[59] of the Constitution of India.

 

The Court not only found that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse; it also stated that gender equality included protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right.

 

Reaching its pinnacle in judicial activism the Court laid down guidelines and norms making it necessary and expedient for employers in workplaces as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women. These guidelines not only defined sexual harassment behaviors, but also provided for Preventive Steps, Criminal Proceedings against perpetrators and third party harassers, Disciplinary Action, Complaint Mechanism with a Committee, Worker’s Initiative and Awareness against the evil sought to be remedied.

 

The above verdict was superseded by the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Gender neutral laws

Orr v. Orr, 440 US 268 (1979)

Though alimony was also a woman centric issue and has historically been awarded only to women, the convention now permits an award of alimony to either spouse.

The Supreme Court invalidated on equal protection grounds statutes providing that husbands, but not wives, may be required to pay alimony upon divorce and thus casted off the assumption that wives are dependent upon their husbands for financial support but husbands are never dependent on wives.[60]

“To withstand scrutiny’ under the equal protection clause, ‘classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.”[61]

It is noteworthy that the above decision did not only recognize the right of husbands to financial sustenance, but it also considered women to be as capable and competent as men so as to financially support them. This was a crucial detachment from the age old theory (See Muller v. Oregon) that a woman has always been dependent upon man.

Sessions v. Morales-Santana, 582 U. S. ____ (2017)[62]

The Immigration and Nationality Act provides the framework for acquisition of U. S. citizenship from birth by a child born abroad, when one parent is a US citizen and the other a citizen of another nation. The main rule applicable to the present case was the requirement of the US-citizen parent to have ten years’ physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14. The rule is made applicable to unwed US -citizen fathers, but by another provision, it created an exception for an unwed US-citizen mother, whose citizenship can be transmitted to a child born abroad if she has lived continuously in the United States for just one year prior to the child’s birth.

The Court held that the gender line drawn by the Legislature was incompatible with the Fifth Amendment’s requirement[63] that the Government accord to all persons “the equal protection of the laws. The Government must show, at least, that its gender-based that the classification serves “important governmental objectives and that the discriminatory means employed” are “substantially related to achieving those objectives.”[64]  The Court noted that the provisions under challenge dated from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women were.[65] At present, however, laws granting or denying benefits “on the basis of the sex of the qualifying parent,” differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee.

Way forward – Institutionalization

This gender-justice-sensitization brought by the judiciary needs to be institutionalized invariably. Today a record 47 women were elected to the House of Representatives, 24 for the first time, in what became known as “The Year of the Woman”[66]. India, too, has set a record which we are all more than proud of. According to US-based ‘fact tank’ Pew Research Center, India is leading when it comes to countries where women have been at the helm for many years.[67]

Indeed, institutionalization is being witnessed in the very judiciary only with a rise in women judgeship. In a first, women judges were heading all the major High Courts in India, the same historical High Courts, which were among the first few created in colonial India.[68] The Delhi High Court bid adieu to its first lady Chief Justice, G. Rohini, who retired from her post on 13th April 2017. Delhi High Court is now being headed by Acting Chief Justice Gita Mittal. Justice Indira Banerjee was elevated as Chief Justice of Madras High Court on 5th April, 2017. Justice Manjula Chellur, who first assumed the office of Chief Justice of Calcutta High Court in August 2014, became the first ever woman Chief Justice of Calcutta High Court. She then proceeded to assume the office of Chief Justice of the Bombay High Court in August 2016.In the Calcutta High Court, Justice Nishita Mhatre, had been appointed as the Acting Chief Justice on December 1, 2016. It is noteworthy, upon Justice Nishita Mhatre’s retirement with effect from 20.09.2017; Justice Rakesh Tiwari was appointed Acting Chief Justice of Calcutta High Court.[69] However, it is pertinent to note that there is only one woman judge, Justice R. Banumathi, in the Supreme Court as against 24 male judges..

While women have been raising the bar in every walk of life, conversely, there are still prevalent cases of discrimination and sexism against their success. It is rather surprising that nowadays, where the general public is looking past any gender bias and is choosing lawyers based on competence not gender, women practitioners have been subjected to subtle sexism at the bar numerous times[70]. Most leading companies encourage women labor-force participation and ensure that women hold senior positions in companies to make strong business sense.[71] Yet, there are gender pay gaps existing between male and female engineers and there are eight times as many men as women in the industry.[72] There is also a huge chance that a female doctor might get bogged down by her gender. A doctor’s gender can still be a huge block to their career – especially when it comes to family commitments.[73]

“Of   all   the   evils   for   which   man   has   made   himself responsible, none is so degrading,  so shocking or so brutal as his abuse of the better half of humanity; the female sex.” ­

  • Mahatma Gandhi

As long as the society is wary of such detestable conduct, it will not be an uphill task for the law enforcers to curb these insensitivities. However, looking at the majority of odds against women in today’s sexist world, there is a need for continuous supervision of any gender bias or discrimination against women. Since judiciary is the guardian of our rights, any gender bias shall be carefully guarded against in or outside the realm of the courtroom and this protection should be extended to all female justice seekers or attorneys or even judges. Not women, but any unbecoming behavior against their very dignity shall be ostracized.

Conclusion

The landmark judgments delivered by the Indian and US judiciary, bear testimony to the fact, that judges have shown more gender sensitivity than any other institution. Much against the straightjacket philosophy of the 16th century jurist Francis Bacon in his Essay of Judicature who said “Judges ought to remember that their office is jus dicere, and not jus dare—to interpret law, and not to make law, or give law[74], Judiciary has not limitedly focused on judicial formalism. It has consciously influenced social philosophy and balanced its judicial function, and yet been wary of trespassing into the sphere demarcated for the legislature, nonetheless bringing justice to and strengthening the scope of women’s rights each time.

“It is now acknowledged by leading jurists all over the world that judges are not descusitized and passionless instruments which weigh on inanimate and impartial scales of legal judgment, the evidence and the arguments presented on each side of the case. They are not political and moral eunuchs able and willing to avoid impregnating the law with their own ideas and judgment. The judicial exercise in constitutional adjudication is bound to be influenced, consciously or subconsciously, by the social philosophy and scale of values of those who sit in judgment”

                                                                                                – Late Justice P.N. Bhagwati

Whilst it is abundantly clear, the purpose of achieving “social justice” as enshrined in the Preamble to our Constitution is to secure the rule of law for all its citizens, justice, liberty, equality and fraternity. Therefore, when the Preamble itself highlights achieving their social justice, it becomes the bounden duty of the honorable courts to advance the cause of the social justice. It would proper to state that worthy normative goals of social justice (herein gender equality),can be and are served at least as well by observing foundational principles of impartiality, responsiveness, and sensitivity, as equally by allegiance to judicial activism. Thus, till the Courts, as the interpreters of law, continue to bridge the much widened gaps between the two genders, correct uncertainties in legislations, and harmonize results with justice through a method of free decision, the undying faith in the judiciary shall continue.

[1] Assembly Proceedings, January to March, 1647, available at  http://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000001/pdf/am1–215.pdf

[2]Carpenter, Stephanie, “Margaret BrentIn American National Biography. New York: Oxford University Press, 1999 at pp. 57, 58;Hymowitz, Carol and Weissman, Michaele, A History of Women in America: From Founding Mothers to Feminists-How Women Shaped the Life and Culture of America, Random House Publishing Group (2011) at pp. 6, 7.

[3]Mattern,Joanne, (2003) Elizabeth Cady Stanton and Susan B. Anthony: Fighting Together for Women’s Rights, Rosen Publishing Group, p.12

[4] Elizabeth Cady Stanton,  The Solitude of Self, Speech delivered to the Committee of the Judiciary of the United States Congress (1892), available at http://www.womenspeecharchive.org/files/The_Solitude_of_Self_1192139082217.pdf ; Elizabeth Cady Stanton,  Address on Woman’s Rights, (1848), available at http://www.womenspeecharchive.org/files/Stanton_1848_Address_on_Womans_Righ_AFA7F90141C50.pdf

[5]Engels, Friedrich, (1942) Origin of the Family, Private Property and the State, New York, International Publishers.

[6] Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of the Convention, para. 22.

[7]  Equal rights as to marriage, during marriage and at its dissolution (Article 16), right to equal pay for equal work (Article 23), education (Article 26), full equality to a fair and public hearing by an independent and impartial tribunal (Article 10), equal suffrage and access to public service (Article 21) and that all human beings are born free and equal in dignity and rights, endowed with reason and conscience to act towards one another in a spirit of brotherhood (Article 1), and equal entitlements of women and men (Article 2, Article 7).

[8]‘Equality before law’ and ‘Equal protection of laws’ (Article 14), securing just and humane conditions of work and for maternity relief (Article 42), power to the State to make special provisions favoring women (Article 15(3)), to promote harmony and to renounce practices derogatory to the dignity of women (Article 51A(e)), reservation of seats for women belonging Scheduled Castes and the Scheduled Tribes in every Panchayat (Article 243D(3)), reservation of seats for women belonging Scheduled Castes and the Scheduled Tribes in every municipality (Article 243 T (3) and Article 243T (4)). Non-discrimination on the basis of sex (Article 15), equal pay for equal work (Article 39), non-discrimination on the basis of sex regarding employment (Article 16).

[9] Justice Leila Seth was appointed as the first woman judge of Delhi High Court in 1978 and the first woman Chief Justice of the Himachal Pradesh High Court in 1991.

[10] See, Justice        Bhagwati, P.N., Judicial Activism and Public Interest Litigation 23 Colum. J. Transnat’l L. 561 (1984-1985); S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol’y 029 (2001); Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?, The American Journal of Comparative LawVol. 37, No. 3 (Summer, 1989), pp. 495-519

[11] See, e.g., H.L.A. Hart, The Concept of Law 124-30 (1961) (formalism as refusal to acknowledge necessity of choice in penumbral area of rules); M. Horwitz, The Transformation of American Law 254 (1977) (formalism as refusal to recognize instrumental functions of law); Strauss, Formal and Functional Approaches to Separation-of-Powers Questions?A Foolish Inconsistency?, 72 Cornell L. Rev.488, 489 (1987) (formalism as refusal to acknowledge practical consequences of judicial decisions); Tushnet, Anti-Formalism in Recent Constitutional Theory, 83 Mich. L. Rev. 1502, 1506-07 (1985) (formalism as artificial narrowing of range of interpretive choices)

[12]83 US 130, 141 (1872)

[13]Id. at 142

[14]Id.

[15]Pauli Murray, The Rights of Women, in The Rights Of Americans: What They Are—What They Should Be, Norman Dorsen (1971) 521, 525; See AlsoBrief of American Civil Liberties Union as Amicus Curiae at 37 n.46, 37–39, Frontiero v. Laird, 411 U.S. 677 (1973) (quoted Murray and criticized Muller, noting that Muller “has become a major roadblock to women seeking equal opportunities for remuneration and promotions in blue-collar employment”).

[16]208 U.S. 412, 422 (1908)

[17]Id. at 421

[18]Fifteenth Amendment, US Constitution – Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation. Available at https://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-16.pdf

[19]Nineteenth Amendment, US Constitution – The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Available at https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2016-10-20.pdf

[20] 261 US 525, 563, 567 (1923)

[21]Supra,note 17

[22] 261 US 525, 569 (1923

[23] 261 US 525, 553 (1923)

[24]The Title VII of the Civil Rights Act of 1964 provided that the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. Available at  https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/Title_VII_Statute.pdf

[25]See generally Jo Freeman, How “Sex” Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 LAW & INEQUALITY 163 (1991)

[26]Section 703, Civil Rights Act of 1964 – Discrimination Because Of Race, Color, Religion, Sex, Or National Origin

[27] 400 US 542, 544 (1971)

[28]Id. at 545

[29]Id. at 545; The prohibition against job discrimination based on sex to the 1964 Civil Rights Act Congress intended to prevent employers from refusing “to hire an individual based on stereotyped characterizations of the sexes.”Equal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex, 29 CFR §1604.1(a)(1)(ii).See Bowe v. Colgate-Palmolve Co., 416 F.2d 711 (CA7 1969); Weeks v. Southern Bell Tel. &Tel. Co., 408 F.2d 228 (CA5 1969). Even characterizations of the proper domestic roles of the sexes were not to serve as predicates for restricting employment opportunity.

[30] Frontiero v. Richardson 411 U.S. 677 (1973)

[31]Id. at 681

[32]Id. at 684

[33] Ginsberg, SomeThoughts on Benign Classification in the Context of Sex, 10 CONN. L. REV. 813. 818 (1978)

[34]See Abortion: Roe v. Wade, 410 U.S. 113 (1973), Doe v. Bolton, 410 U.S. 179 (1973), 64 J. Crim. L. & Criminology 393 (1973)

[35]Fourteenth Amendment, US Constitution (ratified in 1868) – Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection – Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[36] Rejecting a state law that makes it illegal to disseminate information about contraception to married couples, the U.S. Supreme Court rules in Griswold v. Connecticut (381 U.S. 479) that people enjoy a fundamental zone of privacy.

[37] 410 U.S. 113, 152-153

[38]Id. at 153-155

[39] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 872-876 (1992); See generallyMichael Hill, Why Overturning Roe v. Wade Could Cost Republicans VotesCloseUp, SEATTLE TIMES, July 27, 2005, at A3; Siegel, Reva B., Before (and After) Roe v. Wade: New Questions About Backlash (2011). Faculty Scholarship Series. Paper 4135.

[40]Section 14(1), Hindu Succession Act, 1956 – Property of a female Hindu to be her absolute property (1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

[41] (1977) 3 SCC 99, 122

[42]Id.  at 144

[43]Article 14, Constitution of India, 1950 – Equality before Law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[44] (1986) 2 SCC 209, 211

[45]Id. at 214

[46]  See Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982)

[47] 518 U. S. 515, 525 (1996)

[48]Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)

[49] Weinberger v. Wiesenfeld, 420 U. S. 636, 643, 648;  United States v. Virginia, 518 U.S. 515, 531-534; See also Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that classified men more adversely than women deemed rational because it had the effect of compensating for prior discrimination against women)

[50]Section 125, Code of Criminal Procedure, 1973 – Order for maintenance of wives, children and parents – (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

[51] The Title VII of the Civil Rights Act of 1964 provided that the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. Available at  https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/Title_VII_Statute.pdf

[52]See Suzanne Egan, Meritor Savings Bank v. Vinson: Title VII Liability for Sexual Harassment, 17 Golden Gate U. L. Rev. (1987). http://digitalcommons.law.ggu.edu/ggulrev/vol17/iss3/3

[53] 477 US 57, 66, 71 (1986)

[54] EEOC Guidelines on Discrimination Because of Sex, available at http://lor.gvtc.org/uploads/SEC622/EEOCGuidelines.pdf , accessed on 10th June, 2017

[55]See generally, McDonnell Douglass Corp. v. Green, 411 U.S. 792,801 (1973) (“In the implementation of [employment decisions], it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.”); Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1971) (“In forbidding employer’s to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sexual stereotypes. [Title VII] subjects to scrutiny and eliminates such irrational impediments to job opportunities and enjoyment which have plagued women in the past.”)

[56]Ibid

[57]Article 15, Constitution of India, 1950 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth – The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

[58]Article 19(1)(g) , Constitution of India, 1950 – Protection of certain rights regarding freedom of speech, etc. – All citizens shall have the right – to practise any profession, or to carry on any occupation, trade or business.

[59]Article 21, Constitution of India, 1950 – Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.

[60] 440 U.S. 268, 281-82 (1979)

[61] 440 U.S. 268, 279 (1979).

[62]  Available at https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf

[63]Fifth Amendment, US Constitution – No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Available at https://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-6.pdf

[64] Virginia, 518 U. S., at 533

[65] See, e.g., Hoyt v. Florida, 368 U. S. 57, 62 (1961) (women are the “center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary, 335 U. S. 464, 466 (1948) (States may draw “a sharp line between the sexes”)

[66] See https://www.nytimes.com/interactive/2017/04/02/us/02timeline-listy.html?rref=collection%2Fissuecollection%2Fwomen-today-20170402&_r=0

[67] Abigail Geiger, Lauren Kent, Number of women leaders around the world has grown, but they’re still a small group, (8th March, 2017) available at http://www.pewresearch.org/fact-tank/2017/03/08/women-leaders-around-the-world/ ; accessed on 10th June, 2017

[68]Dhananjay Mahapatra, In a first, women judges head all major High Courts in India, (8th April, 2017) available at http://timesofindia.indiatimes.com/india/in-a-first-women-judges-head-all-major-high-courts-in-india/articleshow/58073977.cms

[69]Saba, Justice Rakesh Tiwari appointed Acting Chief Justice of Calcutta High Court, (19th September, 2017) available at http://blog.scconline.com/post/2017/09/19/justice-rakesh-tiwari-appointed-acting-chief-justice-of-calcutta-high-court/

[70] Poulomi Banererjee, When the bar has a male tilt: Gender imbalance in the judiciary, Hindustan Times, (23rd October, 2016) available at http://www.hindustantimes.com/india-news/when-the-bar-has-a-male-tilt-gender-imbalance-in-the-judi/ciary-and-its-impact-on-verdicts/story-VuSxHvVDfClbi3ycmZyJgO.html, accessed on 3rd June, 2017.

[71] Roshika Singh, MoreWomen Employees And Leaders, A Crying Need In Indian Companies (1st June, 2017) http://www.huffingtonpost.in/roshika-singh/more-women-employees-and-leaders-a-crying-need-in-indian-compan_a_22092709/

[72]Radhika Sanghani, Male-dominated engineering has an 87 per cent gender gap – but it pays pretty well; (23rdJune, 2015) available at http://www.telegraph.co.uk/women/womens-business/11692996/Women-In-Engineering-Day-Gender-gap-in-male-dominated-industry-falls.html ; accessed on 10th June, 2017.

[73] Gráinne Ní Aodha, Don’t keep it a secret’: One in five female doctors has been sexually harassed at work, (2nd June, 2017) available at http://www.thejournal.ie/sexism-in-the-healthcare-sector-3421687-Jun2017/, accessed on 10th June, 2017

[74] See The Works of Francis Bacon available at https://www.stmarys-ca.edu/sites/default/files/attachments/files/Essays.pdf

Juvenile delinquency in India: A critical analysis

Rupaly Middha & Shashwat Tomar ((V Semester students of B.A. L.LB (Hons.), Hidayatullah National Law University, Raipur)).

ABSTRACT

“Treat the Cause and Not the Symptom. Government of India needs to wake up to this idea when it comes to dealing with juvenile delinquents”.

Juvenile delinquency problem has been in existence since time immemorial. It is an important feature of all societies, be it simple or complex. To solve this problem The Juvenile Justice (Care and Protection of Children) Act, 2015 came into force on 15th January 2016 which defines new boundaries with regard to penalizing juveniles and providing children from impoverished backgrounds with the basic needs and facilities that they require to live.

This paper will mainly focus on the juvenile delinquency, causes of juvenile trajectories, evolution of juvenile justice system in India, need of the Juvenile Justice Act, 2015. Further an attempt would also be made to answer certain core questions viz; What is the difference between a minor and a juvenile, What is Juvenile Delinquency, legislation in Indian in this regard and the juvenile justice system, Why the act was needed when there was already a law for juveniles and also a comparative analysis between Juvenile Justice Act, 2000 and amended act.

Introduction

“The juvenile delinquent does not feel his disturbed personality. The intelligent man does not feel his intelligence or the introvert his introversion[1]”.

F. Skinner

Children are the foundation on which the dynamic and vibrant future of a nation shall be built. They are a nation’s greatest asset. The delicate mind of a child can easily be molded and subjected to an inclination towards criminal activities. This has now turned out to be the most debatable issue for the society. Delinquency and Juvenile both these terms constitute to form the most important subject matter of criminology. A perception of child’s mind is going through the most transitional phase with the development of society. By the beginning of the 17th century the second idea of childhood emerged when the child was perceived as a miniature adult with all the inclinations towards evils and potential for a fallen human nature[2]. Juvenile Justice has now turned out to be one of the most diverse fields not only in Indian law but also in the world.

Equal opportunities should be given to all children during their growth period for reducing inequality and ensuring social justice which would serve as an efficacious tool to curb delinquency in juveniles. Juvenile delinquency is a big breading centre of criminals. The word delinquency is derived from the Latin word “delinquere” which means to abandon. Juvenile and minor are used in different context in legal terms. A young criminal offender is referred as a juvenile and minor is related to legal capacity or majority[3].Results of self-report studies indicate that an overwhelming majority of those who participate in violence against the young people are same in age and gender as their victims and in most of the cases offenders are males acting in groups[4].

Who is a Juvenile?

Juvenile means anyone who has not yet reached the age of adults in terms of childishness or immaturity. In the Legal sense, a juvenile can be defined as a child who has not attained a certain age at which he can be held liable for his criminal acts like an adult person under the law of the country.  “Juvenile” or Child[5] is a person who has not completed eighteen years of age[6].

Difference between a Juvenile and a Minor

A minor refers to a person who is not yet an adult in the eyes of the law. In this context minor is the opposite of an adult. The term often refers to something that is less significant; e.g., minor inconveniences or minor disruptions.

Juvenile, on the other hand indicates legality. In technical terms, it does mean young but has a negative connotation to it. It tends to imply immaturity and childishness and in legal terms, it refers to a young person who has been accused of a crime. In this context, juvenile is sort of the opposite of a minor as minor indicates an innocent child whereas juvenile tends to imply a young criminal[7].

Juvenile Delinquency

William Coxton in the year 1484 used the word delinquent to refer a person who was found guilty. Juvenile delinquency means the involvement by the teenagers in an unlawful behaviour who is basically under the age of 18 and commits an act which is considered as a crime. A child is known as a delinquent when he/she perpetrate a mistake which is against the law and is not accepted by the society. A child is known as a delinquent when he/she commits a mistake which is against the law and which is not accepted by the society.

A child is born innocent, but due to the unhealthy environment, negligence of the basic necessities and wrong company, a child may turn into a delinquent. Usually, somebody has to have intent to break the law in order to commit a crime, but that is not always the case. A person can be charged with a crime if that person is not aware of the law.

No conduct constitutes a crime unless it is declared as criminal in the laws of the country. Delinquent and criminal behaviour may brim among young people as they negotiate the transition from childhood to adulthood in an increasingly complex and confusing world[8].Young people who are at the risk of becoming delinquent usually lives in difficult circumstances[9].

Causes of Delinquent Trajectories

Understanding the causes of juvenile delinquency is an integral part of preventing a young person from involvement in inappropriate, harmful and illegal conduct. Four primary risk factors can identify young people inclined to delinquent activities: individual, family, mental health and substance abuse. Often, a juvenile is exposed to risk factors in more than one of these classifications.

Individual Risk Factors

Factors in this sphere are identified as any characteristics directly related to or within a specific person that affects the likelihood of that individual engaging in violent and delinquent behavior[10].Several risk factors are associated with juvenile delinquency. A minor whose intelligence level is low and is devoid of proper education is more prone to become involved in delinquent conduct. Other risk factors include impulsive behavior, uncontrolled aggression and an inability to delay gratification. In many cases, multiple individual risk factors can be identified as contributing to a juvenile’s involvement in harmful, destructive and illegal activities.

Family Risk Factors

Family traits such as poor parenting skills, family size, home discord, child maltreatment, and antisocial parents are risk factors linked to juvenile delinquency[11].A constant pattern of family risk factors are associated with the development of delinquent behavior in young people. These family risk factors include a lack of proper parental supervision, ongoing parental conflict, neglect, and abuse (emotional, psychological or physical).

Parents who demonstrate a lack of respect for the law and social norms are likely to have children who think similarly. Finally, those children that display the weakest attachment to their parents and families are precisely the same juveniles who engage in inappropriate activities, including delinquent conduct.

Mental Health Risk Factors

Various mental health factors are also contributing to juvenile delinquency. It is important to keep in mind, that a diagnosis of certain types of mental health conditions- primarily personality disorders cannot be made in regard to a child. However, there are precursors of these conditions that can be exhibited in childhood that tend to end up being displayed through delinquent behavior. A common one is conduct disorder. Conduct disorder is defined as “a lack of empathy and disregard for societal norms”.

Substance Abuse Risk Factors

Substance abuse is found in many numbers of cases of juvenile delinquency. Two trends are identified in regard to substance abuse and minors. First, juveniles are using more powerful drugs today than was the case as recently as 10 years ago. Second, the age at which some juveniles begin using drugs is younger. Children in elementary schools are found to be using powerful illegal drugs. The consumption of these illegal substances or the use of legal substances illegally encourages young people to commit crimes to obtain money for drugs. Additionally, juveniles are far more likely to engage in destructive, harmful and illegal activities when using drugs and alcohol.[12]

Historical Development of Juvenile Justice System in India

Earlier the concept of juvenile justice was based on a belief that the problems of juvenile delinquency in aberrant situations are not amenable to the resolution within the edifice of traditional process of criminal law[13]. The term ‘Juvenile’ justice emerged from the word ‘juvenis’ which means young so it implies that it is a justice system for the young. During the course of time, it was felt that juvenile justice system beside catering the needs of young offenders, it also deliver specialized and preventive treatment services like community support, harmonizing impersonal state intervention with the family, community and institutional interventions for the children and as a means of prevention, rehabilitation and socialization through schools and religious bodies.

Juvenile Legislations

The Apprentices Act, 1850 was the first legislation dealing with children in conflict with the law in India. The Indian Jail Committee established in 1919 urged for demonstrating separate institutions and to have separate trials for the juveniles. Reformation and Rehabilitation of juveniles should be the motive of the law.[14]

The Code of Criminal Procedure, 1898 contained the provisions of juvenile justice along with many other things regarding an adjective or procedural law. Many States enacted their own State enactments in adjudication of matters involving the child or the juveniles which were in force in the respective States such as: Bombay Children Act, 1924 Bombay Children Act, 1948 U.P. Children Act, 1951 West Bengal Children Act, 1959 Rajasthan Children Act, 1970 Bihar Children Act, 1982, etc. The Children Act, 1960 applied only to Union Territories. There were many such enactments in many states of India which prevailed for administration of juvenile justice.[15]

Supreme Court in its judgment in Sheela Barse’s case played a vital role in passing the constant and uniform law on juvenile justice where it acknowledged that the children in the jails are subject to special treatment and recommended that parliament should make the uniform law applicable throughout the country[16]. As an outcome of the case, for the first time, the law mandated care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for adjudication and disposition of juvenile delinquency matters in India[17].

Normative Structure of Juvenile Justice System

The National Policy for the Welfare of Children, 1974 was formulated that declared the children of the nation to be the supremely important asset. [18] So there should be a prominent part in the national plans for children’s programs for development of human resources, so that they grow up to become robust citizens.[19] The main aim would be equal opportunities for development to all children during the period of growth which would ultimately serve the large purpose of reducing inequality and ensuring social justice.[20]

So after the proper review of the existing Children’s Act, the Juvenile Justice Act, 1986 was enacted to implement some objectives.

Juvenile Justice Act, 1986

The indigenous thinking on Juvenile Justice has been keeping up with the global trends in this field. With the adoption of the United Nations Standard Minimum Rules for the administration of the Juvenile Justice, India has become the first country to grow its system in the light of the principles enunciated therein. The main reason behind enacting the Juvenile Justice Bill of 1986 was to bring the operation of the Juvenile Justice System in the country in conformity with these Rules. And the other objectives were to lay down a uniform legal framework for Juvenile Justice, to provide a specialized approach towards the prevention and control of juvenile delinquency, to come up with the machinery and infrastructure for Juvenile Justice operations, to establish the norms and standards for the administration of Juvenile Justice, to develop the proper linkages and coordination between the formal system and voluntary agencies and to constitute special offences in relation to juveniles and to prescribe punishment thereof.[21] With its enforcement, the Juvenile Justice Act of 1986 has replaced the earlier mechanism of the Children Act enacted by the Central and State Governments for dealing with children coming in conflict with Jaw. This Act does not only aim at restructuring the system in the line of internationally proclaimed set of principles but also intends to evolve a new concept of juvenile justice within the true meaning of social justice as enshrined in the Constitution of India.[22] It surely represents an enlightened response to the socio-cultural and economic transition that affects juveniles more than any other segment of society.[23] It attempts to bring them back within the mainstream of social life. It calls for a diversified approach towards the recovery, re-education and rehabilitation of various categories of socially maladjusted juveniles, through an active participation of the public.[24]  In order to achieve this goal, the Act imbibes the essential elements of all the due processes, parens patriae and participatmy models. The definition of juvenile, as per this act, included boys who had not completed the age of 16 and girls who had not completed the age of 18 years. The law undoubtedly places a crucial duty on the state to appropriately utilize the resources from various sectors of socio-economic development in ensuring the well-being and welfare of juveniles and a chance to recover if they happen to falter.[25]

Juvenile Justice (Care and Protection of Children) Act, 2000

Diagnosing the current developments, the juvenile justice administration in India was found to have several flaws or gaps in legal provisions and shortcomings by the way of linkages between the governmental and non-governmental efforts in the care, treatment and rehabilitation of such children. The JJ Act 1986 required that the pre-existing system built around the implementation of the then available Children’s Acts be restructured. However, due to the absence of a national consensus on the time frame for such a restructuring, the steps taken by most of the State Governments were still heavily short of the proclaimed goals.[26] The inadequacy of the juvenile justice personnel, in terms of both quantity and quality continues to be the weakest part of the operational strategy. In order to rationalize and standardize the approach towards juvenile justice in keeping with the relevant provisions of the Constitution of India and International obligations in this regard, the Juvenile Justice (Care and Protection of the Children) Act, 2000 was (re)enacted by the government of India.[27] The Interim Report of the Working Group of Ministry of Social Justice and Empowerment (2001-· 02) has drawn attention to some additional inputs incorporated under the Juvenile Justice (Care and Protection of Children) Act, 2000. The Act with all additional inputs has been enforced since April 1, 2001, to deal with the children within its purview. The upper age limit of the children within the purview of the law has been raised. The upper age limit of the boys has been increased from 16 to 18 years, which would increase the actual coverage by seven times. It was then mandatory to constitute a ‘National Level Advisory Board’ on juvenile justice, to advice the Central and State Governments as well as the Voluntary Organizations associated with this work.[28]

Juvenile Justice (Care and Protection of Children) Act, 2015

But then again the Juvenile Justice Act, 2015 was enacted to replace the existing Indian Juvenile Delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, so that juveniles in conflict with law in the age group of 16-18 years, involved in heinous offences can be tried as adults.

In our country, it was the high time to bring some reform in the Juvenile laws as there has been a steep rise in serious crimes involving youth of 16 – 18 years of age and they very well know that below 18 years is the ‘getaway pass’ for them from the criminal prosecution. The punishment has to be made a bit deterrent in order to inject the feelings of fear in the mind of the criminal. The recent Nirbhaya rape case has caused utter dismay, concern and outrage amongst the people. The gruesome act of brutalizing her with an iron rod was done by none other but a juvenile and he has been sentenced for a period of 3 years as per Section 15 of JJ Act, 2000 as per our law for juveniles. The principal ought to have been followed for trying juvenile offenders is that Juvenility should be decided as per the state of mind and not just the state of body.[29] In the recent Nirbhaya rape case all the other co- accused are awarded death sentence but the person who committed the most brutal part of the case has been awarded a mere 3 years of remand as per JJ Act, 2000.[30]

In the light of above incident, the bill was introduced in the parliament by Maneka Gandhi on 12th August 2014. The bill adopts several new features which were missing in the earlier act like it adopts the concept of Hague convention and cooperation in respect of Inter-country Adoption, 1993. The bill also seeks to make adoption process of orphaned, abandoned and surrendered children more streamlined. One of the most criticized step in the new juvenile justice bill 2015 is introduction of judicial waiver system which will allow treatment of juveniles in certain conditions, in the adult criminal justice system and to punish them as adults. Juvenile Justice Boards (JJB) and Child will be constituted in each district.  The role of JJB would be to conduct a preliminary in each district.  The role of JJB would be to conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for rehabilitation or be tried as an adult.  The CWC will determine institutional care for children in need of care and protection. It is for the first time in India that such provisions have been applied.
This act totally deals with punishing children involved in crimes which are sort of well planned crimes, which creates a sense that the person committing the crime clearly know about what he is doing and still committing it, the crimes which are heinous in nature like rape and murder, dacoity or kidnapping.[31]

This new act is considered as the biggest legal reform by the Indian judiciary and should be welcomed and implemented fairly and considered as a move towards stopping crimes by the teenagers of country by creating a sense of fear of punishment in the minds of teenagers by introduction of such type of laws.[32]

Role of Judiciary

Supreme Court and various High Courts in India play a very important role in the development of Juvenile Justice System in India. In the initial stage, the cases related with juvenile delinquent are dealt by the lower courts but the trends of the judicial approach towards a juvenile in conflict with the law, reflected by the judgments of Hon’ble Supreme Court and various high courts. The courts/ juvenile justice board are under the statutory and Constitutional duty to deal with the juveniles in conflict with the law. The competent authority is required to make due inquiry and give full opportunity to the juveniles to put his case before the court or board concerned. Child delinquency is accepted as a major problem faced by both developing and developed countries. To overcome this obstacle, the governments have established many courts for implementation of various law enacted and in this way contributed a lot in the fields of juvenile justice for the benefit of juvenile offenders. Judiciary on various occasions has expressed great concern relating to the proper implementation of beneficial provisions of law relating to children[33].

In Sheela Barse v Union of India[34], the Supreme Court issued directions to the state government to set up necessary observation homes where children accused of an offense could lodge, pending investigation and trial will be expedited by juvenile courts. In Sheela Barse v. Secretary, Children Aid Society[35], the Supreme Court commented upon setting up dedicated juvenile courts and special juvenile court officials and the proper provision of care and protection of children in observation Homes.

In M.C. Mehta v State of Tamil Nadu[36], the Supreme Court pronounced upon the constitutional perspective of the abolition of Child labor and issued appropriate guidelines to the Government of India with respect to compulsory education, health, nutrition, etc of the child laborers. In Sakshi v Union of India[37], the Supreme Court directed the government/ Law commission to conduct a study and submit a report on the means of curbing child abuse.

Role of Police

It is basically the police who arrests the juvenile and produces him before the Juvenile Justice Board. A juvenile’s first contact with the juvenile justice system is through the police.In any circumstances, a juvenile can be kept within the police lock-up or jail[38]. A juvenile’s case is investigated by the police and the charge-sheet is submitted before the competent authority for the same and also after the completion of inquiry, accompany the juvenile to the special home or his place of residence when below 18 years of age[39].The police also have the authority to immediately on apprehension release a juvenile on bail[40].

The principle on which all juvenile systems are based[41] is Welfare of the juvenile.Special juvenile police unit including the law enforcement officials are primarily engaged in the prevention of juvenile crime under this Act to perform their functions more effectively.In every police headquarters, a minimum of one officer with the full ability and appropriate training and orientation is also designated as the juvenile welfare officer[42].

Prevention & Early Intervention

In light of the growing body of research, we now know that the better and more cost-effective place to stop the “cradle to prison pipeline” is as close to the beginning of that pipeline as possible. Early intervention prevents the onset of delinquent behaviour and supports the development of a youth’s assets and resilience.[43] While many past approaches have focused on remediating visible and/or longstanding disruptive behaviour, research has proved that prevention and early intervention are way more effective.[44]

The Interagency Working Group for Youth Programs has defined positive youth development as “an intentional, pro-social approach that engages youth within their communities, schools, organizations, peer groups, and families in a manner that is productive and constructive; recognizes, utilizes, and enhances youths’ strengths; and promotes positive outcomes for young people by providing opportunities, fostering positive relationships, and furnishing the support needed to build on their leadership strengths.[45]

Positive Youth Development

Several researchers have promoted a positive youth development model to address the needs of youth who might be at risk of entering the juvenile justice system.

One positive youth development model addresses the six life domains of work, education, relationships, community, health, and creativity. The two key assets needed by all youth are (1) learning/doing and (2) attaching/belonging. When the necessary supports and services are provided to assist youth in the six life domains, it is expected that positive outcomes will result.[46]

What are Effective Programs?

Under this prevention and early intervention framework, huge research is being conducted to determine which of the many existing programs are truly effective. Current studies indicates that effective programs are those that aim to work as early as possible and focus on known risk factors and the behavioural development of juveniles.[47] In general, the Office of Juvenile Justice and Delinquency Prevention recommend that the following types of school and community prevention programs be employed:

  • Classroom and behavior management programs
  • Multi-component classroom-based programs
  • Social competence promotion curriculums
  • Conflict resolution and violence prevention curriculums
  • Bullying prevention programs
  • Afterschool recreation programs
  • Mentoring programs
  • School organization programs
  • Comprehensive community interventions

The Indian Government has done a lot for preventing Juvenile delinquency in the country but there is still a long way to go before the government. Some special provisions have been implemented in India for the Juvenile Delinquents; Observational homes have been established etc. And this intervention and the preventive programs are very vital in getting the juveniles back to streamline.

Suggestions and Recommendations

In order to make full use of the legal provisions available for juvenile, the State may initiate the following steps:

  • Through a program of education, promotion, and organization, form groups of local citizens and assist these groups in conducting activities aimed at the prevention and control of juvenile delinquency, making use of local people and resources for the following purposes.
  • Combating local conditions known to contribute to juvenile delinquency.
  • Advise local, state, and federal officials, public and private agencies, and lay groups on the needs for and possible methods of the reduction and prevention of juvenile delinquency and the treatment of delinquent children.[48]
  • Consultation with the schools and courts of this state on the development of programs for the reducing and preventing delinquency and the treatment of delinquents.
  • Assisting any community within the state by conducting a comprehensive survey of the community’s available public and private resources, and recommend methods of establishing a community program for combating juvenile delinquency and crime, but no survey of that type shall be conducted unless local individuals and groups request it through their local authorities, and no request of that type shall be interpreted as binding the community to following the recommendations made as a result of the request.
  • Evaluating the rehabilitation of children committed to the department and prepare and submit periodic reports to the committing court for the following purposes[49]:
  • Administering within the state any juvenile justice acts and programs that the governor requires the department to administer.
  • Visiting and inspecting jails, detention facilities, correctional facilities, facilities that may hold juveniles involuntarily, or any other facility that may temporarily house juveniles on a voluntary or involuntary basis.
  • Applying for, allocating, disbursing, and accounting for grants that are made available pursuant to juvenile justice acts, or made available from other state, or private sources, to improve the criminal and juvenile justice systems in the state. All money from juvenile justice act grants shall, if the terms under which the money is received require that the money be deposited into an interest bearing fund or account, is deposited in the state treasury to the credit of the juvenile justice program purposes fund, which is hereby created. All investment earnings shall be credited to the fund.[50]
  • Assisting, advising, and making any reports that are required by the governor, attorney general, or general assembly.

Although drug testing is an additional expense for juvenile justice agencies, it often can save money over time by helping staff manage cases more appropriately, thereby preventing further substance abuse and delinquency that return youth to detention or confinement and probation or other juvenile justice agencies. However, the most important reason for implementing drug testing is its benefits for individual youth, their families, and communities. When lives can be reclaimed from patterns of substance abuse and delinquency, the personal and social advantages are immense.

CONCLUSION

India is perhaps the only country in the world which has the dubious distinction of having maximum number of laws to regulate the conduct of society. It is the only country where almost all aspects of human behavior are sought to be governed by laws rather than through education or innate enlightenment which is the preserve of every egalitarian society. In this fast changing world where development of science and technology keeps us on the run with rapidly occurring incredible changes that affect our life styles, we can’t remain contented/being confined in a straitjacketed idealist frame of laws which have no bearing on the present day situation. We have to be pragmatic and realistic rather than bigoted with a kind of idealism that hardly works now.

We may conclude that we have to take a serious view of the changing trends of behavior among our children which has virtually made age as too superfluous and irrelevant factor determining who actually is a Juvenile in real sense and who is not and tailor out a socio-legal plan to govern their conduct in such a way that they get full opportunity to develop their faculties without losing the bliss of their childhood such as innocence, naughtiness, playfulness, which are the basic attributes of childhood and ultimately turnout to be good human beings. The aim of juvenile justice should be that any reaction to juvenile offenders should always be in proportion to the circumstances of both the offender and offence. Then only we could proudly say our children are assets of our nation on whom we can stake our bright future otherwise they would become a liability to not only the parents but to the whole society.

[1] B. F. Skinner, an American psychologist, behaviorist, author, inventor, and social philosopher.

[2] B.B. Pande, The Indian Juvenile Justice Jurisprudence and the Convention on the Rights of the Child (Aug. 1, 2017, 7:59 p.m.), http://www.workingchild.org/htm//jj.html.

[3] Bryan A. Garner, Black’s Law Dictionary (9th Edition, 2009).

[4] “First periodical report on crime and crime control in Germany”, Federal Ministry of the Interior and Federal Ministry of Justice, (Berlin, July 2001).

[5] S. 2 (k), The Juvenile Justice (Care and Protection of Children) Act, 2000.

[6]Who is a Juvenile, Special Police unit for women and children (July 21, 2017, 6:29 P.M.) http://www.dpjju.com/index.php?option=com_content&view=article&id=52&Itemid=164.

[7]Difference between minor and juvenile, DESCRIPTIVE ANALYSIS AND COMPARISONS (July 24, 2017, 3:21 A.M.), http://www.differencebetween.info/difference-between-minor-and-juvenile.

[8] Barton W. and Butts J., Building on Strength: Positive Youth Development in Juvenile Justice   Programs, Chapin Hall Center for Children at the University of Chicago (2008).

[9] United Nations, “Report of the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Vienna, 10-17 April 2000” (Aug. 15, 2017, 7:00 P.M.).

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/68/2, last seen on 19/03/2017.

[10] Development Services Group, Inc. 2015. “Risk Factors for Delinquency” Literature review. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention. http://www.ojjdp.gov/mpg/litreviews/Risk%20Factors.pdf Last Update: December 2015.

[11] Crockett, L.J., Eggebeen, D.J., and Hawkins, A.J., 14 Father’s presence and young children’s behavioral and cognitive adjustment, SAGE JOURNALS 355–377, 361 (1993).

[12] P. Haveripet, Causes and consequences of juvenile delinquency in India, RECENT RESEARCH IN SCIENCE AND TECHNOLOGY (Aug. 18, 2017, 12:21 A.M.),  http://recent-science.com/.

[13]V. Kumari, the Juvenile Justice in India: from welfare to rights, 1 OXFORD U.P (1st ed., 2004).

[14] K.P Mukundan, Study of the status of the justice delivery system for juveniles in conflict with law in Maharashtra , Mumbai (2003).

[15] P. Ghosh, Evolution of Juvenile Justice System in India, SHARE YOUR ESSAY (Aug. 16, 2017, 4:30 P.M.), http://www.shareyouressays.com/119420/essay-on-the-evolution-of-juvenile-justice-system-in-india.

[16] Sheela Barse & Anr. v. Union of India & Ors., 1986 AIR 1773 ORS.

[17] The Juvenile Justice Act, 1986.

[18] S.S. Thilakarathna, Children: Future Pillars of the Nation, FEATURES (Aug. 20, 2017 8:18 P.M.), http://www.news.lk/fetures/item/7661-children-are-the-future-pillars-of-our-nation-it-s-our-responsibility-to-protect-them.

[19] Laxmikant Pandey v. Union of India, 1984(2) SC 244.

[20] Gaurav Jain v. Union of India, 1997 (8) SCC 114.

[21] Yogesh Snehi, State and Child Justice: Stories of Delinquent Juveniles, 39 ECONOMIC AND POLITICAL WEEKLY 4512-4515, 4512 (2004).

[22] V. Kumari, The Juvenile Justice System In India: From Welfare To Rights, OXFORD U.P.  (2nd Ed., 2010).

[23] Bandhua Mukti Morcha v. Union of India, (1997) 10 SC 551.

[24] Alice Jacob & Kusum Kumar, Child Welfare, 7 CHILD AND THE LAW 35-49, 41 (1979).

[25] Supra 22.

[26] M. N. Kulkarni, Justice for ‘Delinquents’, 29 ECONOMIC AND POLITICAL WEEKLY, 1570-1607, 1575 (1994).

[27]R. Pandey, India: Juvenile Justice Act Amendment “Need Of Hour”, SINGH & ASSOCIATES (Aug. 19, 2017, 8:22 P.M.), http://www.mondaq.com/india/x/273428/Crime/JUVENILE+JUSTICE+ACT+AMENDMENT+NEED+OF+HOUR.

[28] The Juvenile Justice Act, 2000.

[29] Supra 27.

[30] Ibid.

[31] T. Pankaj, the Juvenile Justice Act, 2015, LEGAL SERVICES INDIA (July 29, 2017, 8:31 P.M.), http://www.legalservicesindia.com/article/article/juvenile-justice-act-2015-2147-1.html.

[32] Kiran Bedi, Amended Juvenile Justice Act is a message for society, THE HINDUSTAN TIMES, Dec. 24, 2015, at 5.

[33] Juvenile Justice System and its delinquency in India, LEGAL SERVICES INDIA (Aug. 20, 2017, 3:41 P.M.), http://www.legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-.1.html.

[34] AIR 1986 SC 1733.

[35] AIR1987 SC 656.

[36] (1999) 6 SCC 591.

[37] AIR 199 SC 1412.

[38] S. 9 (Proviso), Juvenile Justice (Care and Protection), Act 2000.

[39]Juvenile offenders and Victims (2006), National Report (Aug. 14, 2017, 11:25 A.M.), http://ojjdp.ncjrs.gov/ojstatbb/ nr2006/downloads/NR2006.pdf.

[40] S. 12 (2), Juvenile Justice (Care and Protection), Act 2000.

[41] Law Commission of India Report (Aug., 1997).

[42] S. 63(2), Juvenile Justice (Care and Protection), Act 2000.

[43] Supra 39.

[44] B. Savita, Children in India and their rights, VALLEY INTERNATIONAL JOURNALS (Aug. 4, 2017, 2:40 P.M.), https://valleyinternational.net/thijsshi/v3-i2/11%20theijsshi.pdf, last seen on 14/03/2017.

[45] S. CHANDANA, JUVENILE DELINQUENCY IN INDIA: AN ETIOLOGICAL ANALYSIS, (1st Ed., 1987).

[46] Butts, Bazemore, & Meroe, 2010.

[47] Loeber, Farrington, & Petechuk, 2003.

[48] Dr. R. Tripathi, Juvenile Delinquency: Overview, Prevention and Laws In India, 3 the International Journal of Social Sciences and Humanities Invention 1899-1903, 1901 (2016).

[49] Ibid.

[50] Supra 22, at 132.

 

Mediation: Restoring the imbalance of power in cases of Domestic Violence

Preethi Kavilikatta, Final Year Student of  Year LL.B, Symbiosis Law School, Pune

Abstract

In every case of domestic violence there are two over riding interests which should be guarded carefully- protecting the victim from further abuse and empowering the victim to take back control over her life[1]. Those opposed to Mediation, where domestic violence is present, argue that mediation legitimizes violence rather than punishing abusers, places the victim at risk for further abuse and results in unfair agreement; since the imbalance of power between the male and the female spouse is palpable in such cases.

However, commentators who support Mediation in cases involving domestic violence argue that mediation can be used in responding to domestic violence, where the traditional court system has failed in responding to domestic violence; mediation empowers participants to end violence within their relationship by serving as a model of conflict resolution; and allows them to create guidelines to govern future interaction[2].

To elaborate further on the supporting view, this commentary is an attempt to examine how Mediation in cases of domestic violence restores the imbalance of power present in such disputes. It strongly supports the idea that Mediation is a tool that empowers the female spouse in such a situation.

Introduction

It is a fact well known that in cases of matrimonial disputes; women are often the victims of humiliation, false allegations and isolation. The social stigma around such cases still persists in the Indian society- compelling the woman to believe that any rift/disagreement is a consequence of her inability to safeguard her marriage. Since matrimonial disputes are perceived as war, the parties are under pressure to prove to the Court that the other party is responsible for such breakdown and it cannot be attributed to them in the slightest of manner. Unfortunately, in most cases, the effect of such an approach is a tormenting experience for the female spouse- making her feel powerless.

 

It is said that there is always some ‘power disparity’ in the resolution of matrimonial disputes. That is to say, in most cases, the male spouse is said to have an upper hand over the female spouse. A well-known mediator once defined power as “control of, or access to emotional, economic and physical resources desired by the other person.” Such control has a lot to do with the family set-up in India, where the male spouse is regarded the head of the house and the female spouse a homemaker. The male spouse has the highest decision-making power, with control over money, assets and other household matters. Such polarised positions place the female spouse at the receiving end, giving the male spouse more power.

Furthermore, this divide widens when the matter reaches the courts, since the parties are placed in opposing positions. Our adversarial court system perpetuates rivalry which in turn proves to be of disadvantage to the female spouse at the receiving end. Other factors that that influence power-balance are: education, professional status, self-esteem, sense of guilt, victimization, attitudes of entitlement and obligation.

Many feminists believe that the female spouse in a traditional couple has less power than the male spouse. However, the question that needs to be examined is whether the power remains unchanged in a mediation process.

Mediation and imbalance of power:

Most commonly accepted definition of Mediation by Folberg and Taylor (1984) stressed that mediation is a ‘self- empowering process.’Mediation is a voluntary process, in which the neutral third party assists the parties in dispute to resolve their matters creatively[3]. The Mediator uses specialised communication skills and negotiation techniques to facilitate disputing parties, bridge their differences and find their own mutually acceptable solution.

Since it is a voluntary, flexible and party-driven process; it helps the female-spouse to exert control in cases of Matrimonial Disputes in the following manner:

  1. Awareness of power: Mediation as an alternative dispute resolution mechanism makes aware to the female spouse of her power to voluntarily negotiate through a process that gives her an equal opportunity as her male counterpart. She will be placed on an equal footing as the other spouse before an impartial mediator, which will grant her a ‘bargaining position’ to determine what outcomes she desires, and what she doesn’t.
  2. Confidentiality:One of the essential features of the mediation process being confidentiality, the processoperates in an atmosphere of freedom and openness, eliminating fear in the mind of the female spouse. Confidentiality empowers her with fearless communication since nothing can be subsequently disclosed to the Court; disallowing the male spouse to turn the tables against her or take undue advantage of the situation.
  3. Privacy: Typically, the court proceedings in India are public in nature. All communications, pleadings and submissions are done in public. The adversarial nature of our court system brings in a sense of rivalry among the parties in dispute- which encourages the use of malicious tactics to negate the claims sought. This often proves to be of detriment to the female spouse, who is constantly subjected to baseless allegations on her character, ability and credibility. Such a lack of privacy for the fear of humiliation often places the female spouse in a lower pedestal. A situation as this can be avoided through mediation, which is conducted in a private setting.Such a setting could be of advantage to her, since access by a third party is limited in the light of her interests.
  4. Impartial Mediator: Mediation process is assisted by an impartial mediator to whom the parties submit their grievances and creatively resolve their disputes. The mediator is an impartial third party who plays a key role in maintaining the balance of power in matrimonial disputes. The mediator by deciding who may speak at what time, allowing and timing party’s response, presenting an interpretation of what the spouse has to say; keeps things in check as opposed to a Judge in conventional litigation who doesn’t perform such a function. The mediator uses multiple techniques to strike the balance.
  5. Catering to the emotional needs of the female spouse: The ‘human element’ in matrimonial disputes makes it highly emotional and stressful in nature. This is often overlooked in conventional litigation, since the duty of the Court is to only look into the matter of facts and law.Marriage for a female spouse is of much more emotional value than her male counterpart. The opportunity to communicate her emotional needs to mediator is an effective catharsis to the female spouse, making her mentally stronger for the fact that she is given a voice through the process. This fuels power to her position, as it could be used to address behavioural issues and resolve the matter in hand.
  6. Quick and cost-effective:The longevity of a mediation process is quite short as compared to a to a court proceeding, which is tedious and time-consuming. In cases where the female spouse is desperate to disassociate from the marriage, such a quick process can liberate her from the shackles of the same. Since money is one of the criterion to evaluate power, it puts most women at a disadvantaged position. However, the mediation process is to their advantage a less costly procedure as compared to the money invested in the lengthy and tiresome court proceeding.
  7. Flexibility:The Mediation process is flexible and controlled in which the parties determine the course of the entire process. It can be conducted at any stage of a dispute. In a mediation process, convenience of the female spouse is taken into consideration. Friends and family members are allowed to the mediation sessions for support. The mediation session can also be terminated by the female spouse as per her discretion. Since the process is party-driven, it allows the female spouse to be at the helm of the process.
  8. Settlement:One of the unique features of Mediation as a dispute resolution process is the ability to create tailor-made settlements. The parties to this process can through dialogue create their own agreements in conformity with law and resolve the matter at hand. Unlike the dictum of the Court, which is an exercised discretion of a Judge, Mediation provides an opportunity to the female spouse to get the outcome she desires.
  9. Finality: The settlement can begiven finality and made enforceable by acquiring a court mandate. The female spouse doesn’t have to worry about being cheated by the male spouse after they have come to an agreement. If at all such a situation arises, the male spouse will be subject to action by the Court of Law.

How the Courts have encouraged Mediation in cases of Domestic Violence:

In the case of Smt. Padmavathi vs. Sri M. Suresh Ballal[4] it was emphasized that “Matrimonial issues must be considered by Courts with human angle and sensitivity. Delicate issues affecting conjugal rights have to be handled carefully.”

Justice Katju opined that “the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships like family relationships, business relationships are involved[5].”

A formal recognition to ‘mediation’ as an effective method of alternative dispute resolution in matrimonial matters has been given by the Supreme Court in the case of K.Srinivas Rao v. D. A Deepa[6]. The Court mentioned that “In matrimonial disputes there is hardly any case where one spouse is entirely at fault. Before the dispute assumes alarming proportions, someone must make efforts to make parties see reason.”

The Supreme Court, in this matter, touched upon mediation in cases of domestic violence and opined that although it is a criminal offence, where it appears to the criminal court that there existelements of settlement; the parties should be directed to explore the possibility of settlement through mediation. The Court emphasized that this attempt is not to dilute the rigour, efficacy and purport of the Indian Penal Code, but to locate cases where the matrimonial dispute can be nipped in the bud in an equitable manner.

In the case of Jaya Sagade v. State of Maharashtra[7], a circular issued by the State of Maharashtra dated 24th July, 2014 was challenged. The circular prevented parties to a domestic dispute to resort to counselling/mediation before approaching the Court. The Court quashed the circular on the grounds of it being discriminatory, arbitrary and unreasonable.

It was declared that any woman who has suffered any form of domestic violence as defined in Domestic Violence Act, and who accessed the services of any service provider provided thereunder including NGOs, counsellors or the Police may be counselled with regard to the course of action which she can take including joint counselling/mediation with her spouse/husband or her family members/in-laws subject to the following directions:

  • That a violated woman must be informed of her right to choose of a future course of action.
  • That there shall be no pressure upon her to settle her claim or grievance. The joint counselling/mediation shall be commenced only upon voluntary, informed consent of the aggrieved woman.
  • That the service providers, including the Police, NGOs and counsellors shall prominently display in their office the fact that the aggrieved woman who has accessed their service shall have the choice of future course of action and that any joint counselling/ mediation with her spouse/husband or her family-members/in-laws shall only be done with her consent.
  • That no joint session/Mediation shall be undertaken in a case of serious physical domestic.
  • That upon the parties entering into a settlement an “Assurance Paper” or “Terms of Settlement” may be entered into and executed by the Parties.

Conclusion

Ann Yellot, an experienced mediator expressed her opinion that one should not deny these women of an opportunity to participate in a process which can empower them to reclaim what they have lost. She writes, “When women express desire to meet with her abusive partner… it seems disempowering to categorically refuse to afford them that option under the guise of protecting them.[8]

Hence, Mediation, can be considered suitable for cases of domestic abuse for the following reasons[9]:

  1. Mediation focuses on the future than on past behaviour, which could empower couples to take responsibility for their past and rise above it by setting boundaries for future behaviours
  2. The Mediator can customize the process to serve the best interests of the parties.
  3. Mediation can provide for positive interaction among the disputing parties. This in turn, can also serve as a model for effective communication and bring in changes to the behavioural pattern which in turn decreases the risk of future violence.
  4. Mediation can provide a supportive, empowering environment for women who in many cases have been stripped of their identity, dignity and self-esteem.

[1]Commentary on Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial Law. 447 1997

[2] ibid

[3]The Centre for Advanced Mediation Practice, Understanding Mediation: What is Mediation?, Campmediation, (December 30,2016, 9.00 p.m), http://campmediation.in/understanding-mediation

[4] ILR 2012 KAR 3926

[5] B.S Krishnamurthy vs. B.S Nagaraj, AIR 2011 SC 794

[6] (2013) 5 SCC 226

[7]2015 (5) Bom CR 633

[8] Ann W Yellot, Mediation and Domestic Violence: A Call for Collaboration, Q. 39, 45 (1990)

[9]Supra, Commentary on Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial Law. 447 1997

Competition Law – IPR Interface: Impact on Innovation

Author: Vishvendra Tomar ((Law Student, Amity Law School-I, Noida)).

Competition Law and IPR Interface debate is a longstanding one. While they share common goals of promoting efficiency there are sometimes issues in the ways of achieving it. The growing tension between this interface has impacted innovation, as its evident from some recent compulsory licensing cases, which triggered an all-round debate whether the competition agencies should intervene in matters of intellectual property, and if yes, on what “theory of harm”? This article would deal with some of such debates and cases.

Interface between Competition Law & Intellectual Property Rights – The Impact on Innovation

The objectives of intellectual property laws and competition law are common in so far as both the sets of laws are meant to promote innovation, creativity and a better market for consumers. However, on a closer analysis, there appears to be a growing tension between the institutional principles of these laws. The conflict seems to arise from the fact that intellectual property laws focus on individual interest while competition law focuses on promoting collective interest through increasing competition.

Notwithstanding the conflict, there has been a recent shift towards viewing intellectual property rights and competition law as complimentary to each other. The Fair Trade commission in its report noted that patents do no easily confer monopoly power on their holders, and additionally that, even where a patent confers a monopoly power that alone does not create a competition law violation.

The European Courts have taken this apparent conflict into account and various methods of harmonization have been attempted. The European Court of Justice developed the doctrine of ‘Exhaustion of Rights’. Also, the adoption of the ‘Community Trade Mark Regulation’ is a step towards this harmonization process so as to reduce this conflict.

The tussle between the two fields of law is on several fronts. FRAND rules, length of licensing agreement, reverse licensing, patent pooling are some of the issues on which the two laws seem to be pitted against each other. The question is where to draw the line between intellectual right and market fairness. A patent holder is free to license out its patent to a person of its choice, but is that freedom absolute? Can we neglect the antitrust applications of such license? And if we can’t, then to what extent can we examine such exercise of intellectual right? Moreover, there is the perplexing question of duration of a license.

In Hartford-Empire Co. v. United States, ((65 U.S.P.Q. 1 (1945).))the Supreme Court of United States accepted that a patent owner is not obligated to ensure accessibility of the patent to general public but it ought to grant it on ‘uniform reasonable royalties’. The suppression of technology plainly has been a target of the antitrust laws in a variety of contexts and, in certain circumstances, those laws have been used to suggest significant limits on the right of an intellectual property owner unilaterally to refuse to license or to sell to a competitor ((Image Technical Services., Inc. v. Eastman Kodak Co., 125 F.3d 1195 (9th Cir.1997).)). The ECJ ruled that the freedom to refuse to license an Intellectual Property right was the exclusive right of the patent holder and refusal to license, in itself, is not abusive. However, the ECJ further clarified that such refusal has to pass the test of its effect on the competition. Similarly, several other judgements of first instance courts may be found on refusal to license vis-à-vis intellectual property ((Bellsouth Advertising v. Donnelley, 719 F. Supp. 1551 (S.D. Fla. 1988); See also Intergraph Corporation v. Intel, 195 F.3d 1346 (Fed. Cir. 1999).)).

In the Maize Seed Case, ((Nungesser v. Commissioner, [1983] 1 CMLR 278.))the Court of Justice differentiated between an open exclusive license and an exclusive license. The Court opined that such open exclusive judgements did not necessarily infringe Article 101(1) of the TFEU. Again, in Coditel v. Cine Vig Films, ((Coditel v. Cine Vog Films, [1983] 1 CMLR 49.))the Court opined in the same year that in cases of copyright, a licensee may require absolute territorial protection and it will not amount to a violation of copyright laws. Similarly, the Courts all around the world are divided on the opinion of handling FRAND patents ((Huawei Technologies Co Ltd v ZTE Corp., Case C- 170/13.)). All around the world, the question of grant of license has perplexed the competition authorities. The meaning of word ‘essential’ remained a puzzle. Does ‘essential’ mean technically irreplaceable or merely unaffordable; and if the latter, what, if anything, should turn on whether the denied party is a large or small player, or what its chances might be out of surviving in the market even with a license ((IAN EAGLES & LOUISE LONGDIN, REFUSALS TO LICENSE INTELLECTUAL PROPERTY – TESTING OF THE LIMITS OF LAW AND ECONOMICS 105 (2011).))?

Indian competition Law, like other jurisdictions, has provided an exception to agreement pursuant to an intellectual property. Though competition watchdogs across the world have normally refused to entangle with intellectual rights, they have been scrutinising possible anti-competitive behaviour relating to access to technology, which has received little attention until recently and is of crucial importance for developing countries.

So far, the Indian Competition Authorities has not faced significant litigation in the puzzling area. Earlier the courts had set the position that Competition Commission of India has no jurisdiction over Intellectual Property Cases. However, limited jurisdiction was granted pursuant to possible antitrust violations ((Amir Khan Productions Private Limited v. Union of India, W/P(C) no. 358 OF 2010; See also Kingfisher v. Competition Commission of India, W/P(C) no. 1785 of 2009.)), but confusion persisted on the ground as to where to draw the line between Intellectual Property Rights and Antitrust Violation. The case of grant of SEP’s by Ericson ((M/s Best IT World (India) Private Limited (iBall) v. M/s Telefonaktiebolaget L M Ericsson (Publ), Case No. 04 of 2015.)), is a case in point. India is yet to witness a major battle between Intellectual Property Rights and Competition Laws, though Indian position has invited much discussion and debate in developed jurisdictions on enforcement and protection of IP rights in India, including criticism for its policy regarding intellectual property rights, its decisions in the matters of compulsory licensing, ever-greening, and its approach towards saving the interests of patent holder’s vis-à-vis the competition law enforcement. Any step taken by the competition watchdog may be perceived to further dilute the rights of an intellectual property holder, and invite criticism. Thus, we must identify the possibility of carving a middle ground between the two laws which look conflicting but can be complimentary.

Sedition laws in 21st century India

A SHOWPIECE OF COLONIAL HANGOVER?

Jyotsna Gabriel & Kush Agarwal ((Students of 2ndYear B.A, LL.B, School of Law – Christ University)).

‘AUTONOMY IS AS AUTONOMY DOES’

An analysis into the draconian law paving its journey all the way from the colonial era making such act punishable with imprisonment for life. Government today does not recognize the fact that sedition laws today are not feasible in the turbulent politics of the Republic of India, which is a strong, vibrant and participative democracy. What is more, it seeks to negate the very idea of universities, where freedom, inquiry, questions, dissent and debate constitute the essential foundations of learning that make for good citizens in a democracy. An effort is made by the authors to analyze the present law of Sedition in India vis-a -vis its clash with freedom of speech and expression.

Every man has a right to be heard; But no man has the right to strangle democracy with a single set of vocal chords.

– Adlai Stevenson

INTRODUCTION

The only factor that distinguishes a life of a free man or women from that of a slave is FREEDOM – Freedom to speak, to express ((What is the true meaning of freedom according to you? ,Saurabh Jain , available at https://www.quora.com/What-is-the-true-meaning-of-freedom-according-to-you  last seen at 20/10/2016)). Freedom is not just the lack of restrictions but also the ability to stand alone, unsustained by anything else, where the words come out from the depth of truth and fearful authorities do not impediment this flow. But unfortunately India never got over her colonial masters. We continue where British left. Ever since Thomas Babington Macaulay drafted ‘crime’ of ‘sedition’ (Section 124A) as Section 113 in IPC draft of 1837 originally to deal with “increasing Wahabi activities that posed a challenge to the colonial government”, it has continued to be a constant threat to free speech. The Sedition Laws of the country thus speaks of a bitter truth:

“Whoever…brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India, shall be punished with imprisonment for life…or with imprisonment which may extend to 3 years” besides fine.

In the beginning, Section 124A criminalized excitement of “DISAFFECTION” only, but in 1898, “HATERED /CONTEMPT” was added as an amendment. The word ‘Queen’ which was further replaced by ‘Government’  in this law labels a person as criminal if he hates ‘State’ or develops contempt, enmity or any form of ill- will for it. This was initially used during the British regime against the rebels and aftermath used as a weapon against criticism to suppress the expression. Mahatma Gandhi himself was prescient in recognizing the fundamental threat it posed to democracy when he called it ‘the prince among the political sections of the Indian Penal Code’ designed to suppress the liberty of the citizen ((Noorani, A.G. Indian Political Trails. New Delhi: OUP. 2009, p.235)). Not just sedition but blasphemy laws are also becomes an hindrance to free speech to which Pakistan is in forefront by the virtue of being an Islamic state but India shouldn’t have place for such black laws because she is world’s largest democracy with lengthiest written constitution! These laws thereby prevents dissent hence should be subjected to strong amendments.

UNCONSTITUTIONAL CRIME

History of ‘sedition’ states that many of the freedom fighters were victims of this law straight from Bal Gangadhar Tilak, who was tried thrice for Sedition and his further imprisonment to Mandalay jail to nationalists like Annie Besant and Mahatma Gandhi tried at the time of Independence. Britisher’s used sedition laws to quell the Indian freedom struggle and retain its imperial power.

After the establishment of High Courts and the advent of Constitution, many High Courts were in favor of striking down Section 124A as being void. Justice Patanjali Sastry pointed out the deletion of Sedition as being deliberate as laid in Romesh Thapar vs. State of Madras ((AIR 1950 SC 124)).

Some High Courts in the late 1950’s declared Section 124A as being voilative of Article 19(1)(a) . One such decision being In Ram Nandan vs. State ((AIR 1959 SC 101))a full bench in the Allahabad High Court held sedition to be void and unconstitutional restricting freedom of speech declaring it ultra vires. However, the decision of the Hon’ble High Court was overruled by the Hon’ble Supreme Court overruling its decision and validity in the case ofKedar Nath Singh v. State of Biharconsidering the scope of subversive speech and thus holding it intra vires. This decision laid down the law of sedition of what it is interpreted today.

In this decision 5 appeals were clubbed together to discuss the constitutionality. Further the change which was brought in Kedar Nath vs. State of Bihar((AIR 1962 SC 955))was put to test on the touchstone of Article 19 in the case of Tara Singh Gopichand vs. State ((AIR 1951 East Punjab 27))before the Punjab and Haryana High Court where it was struck down as being contrary to freedom of speech and expression. In Balwant Singh vs. State Of Punjab ((1995 (1) SCR 411))the court was of an opinion that mere raising of slogans and absence of valid proof in other persons joining former in raising those slogans will not amount to sedition. It laid down guidelines as to how police should conduct itself in situations like these and use of excessive force can be counter-productive.

The case of Meerut conspiracy in which the accused were charged with conspiracy to wage a war for having formed a union on the lines of trade unions of soviet Russia which led their conviction in sessions court which further the Allahabad court held that unless it’s a conspiracy to overawe the government using means of criminal force, such act will be considered wrong.

Of these instances, it is wrong to say that sedition shouldn’t be a law at all, in fact, in order to prevent the abuse of democracy and its attributes, there should be a license to the same, but this in no way should mean that it curtails the Fundamental Right in itself…after all we are the citizens of the country and not the citizens of the government! Instances of the same can be found when recently in the news an image where instead of  three lions of Ashoka Pillar, Aseem Trivedi drew three wolves oozing out the blood , and altered “Satyameva Jayate” (Truth alone Triumphs) into “Bhrashtameva Jayathe” (Corruption alone Triumphs) ((India Today, Anti Corruption cartoonist Aseem Trivedi arrested on sedition charges, September 9, 2012 available at http://indiatoday.intoday.in/story/anti-corruption-cartoonist-aseem-trivedi-arrested-on-sedition-charges/1/216643.htm last seen at 22/10/2016)).The question here which comes to the mind is – Is it actually seditious? Is it actually an insult to the National symbol?  If it is actually considered seditious every person who is charged with corruption too shall be sent to jail. Drawing of a cartoon or writing an article relating to whatever serious meaning it may communicate shouldn’t be considered ‘seditious’. Trivedi only expressed his mind set of an agitated India considerate about his country, where the politicians and the bureaucrats have turned National symbols into symbols of Danger, nothing more nor less! However his arrest has been heavily criticized in India terming it as ‘stupid move’. Back to the philosophy classes, one can actually relate the issue of free speech and sedition to Roscoe Pound’s Theory of Social Engineering, in a way that Free speech and Sedition have conflicting interests much like Section 499 of IPC and Article 19(1)(a) of the Indian Constitution. Article 19 of the Constitution gives every citizen six fundamental freedoms and one of them happens to be of ‘free speech and expression’. These rights are subjected to reasonable restrictions in public interests under vague and ever inclusive ambits of public order, morality, public health, national security, etc. We believe that Laws should aim at reconciliation of conflicting interests in the society but looking at the flipside to it , sedition laws have been time and again misused for political mileage. Anyone who dares to question the actions of his political masters is instantly labeled as anti-national and is slapped with sedition charges against him.

Free speech is the backbone of any democracy and such reckless and impulsive behavior by authorities is not only uncalled for but hinders free thinking and exchange of ideas. Sedition has been a lethal tool of right wingers to suppress left wing dialogs and how can one expect winds of change if the vocal cords are strangled with wires of sedition?  This is not just miscarriage of justice but death of democracy by grossly violating human rights…! On one hand ,  we claim to be the most tolerant and diversified nation and on the other  we declare our own citizen as anti-nationals when he talks about his wife pondering to leave the country in a press conference negating and neglecting his endeavors towards bringing national awareness through his sitcom. A government which cannot be tolerant to ideas and opinions of its own people is a stigma on the face of ‘effective governance’ and puts democracy in a vegetative state or on ventilation or life support. It’s like polity playing “Big Brother” from Orwell’s much celebrated “1984” where every idea, opinion, action or emotion against the villainous Big Brother was condemned and punished much like modern North Korea. There, thus, goes a cycle which facilitates change in any state and the cycle is of thesis, anti-thesis and synthesis. Cycle kicks off with an idea which is thesis and opposition to that idea is its anti thesis leading to violence. The tussle between both gives one suo motu synthesis which is a new idea all together and that becomes instrument of change ….but unfortunately every anti-thesis is adjudged in the light of sedition or “Deshdroh”. Hobbes in his book “Leviathan” talked about an imaginary sea monster that was responsible to protect the rights of its citizen in exchange of consensus from citizenry. In this case the polity plays the role sea monster using sedition laws to oppress dissenters.

It is the fundamental duty of every government irrespective of its form to respect the rights of life, liberty and property of its citizens and it would a cardinal sin on its part failing to do so. Law of sedition is a blunt sword and can be used in multiple ways but it is rather unfortunate to witness execution of opinions on the blade point of this sword. One cannot do much about sedition as a law because it derives its authority from the Constitution which in turn derives authority from us, the People of India. We the people of India are ‘Grundnorm’ for every law that is operative in Indian domain including sedition. This law in question which should be largely apolitical has become a subject of vote bank politics. Advocates who referred to Bruhan Whani’s killing as Army Excessive were also called names like anti-nationals and pseudo liberals and the very act of filing a petition in the Apex court of the land was termed seditious which is a constitutional right.

Instances like: Amnesty International being charged with sedition for organizing a debate on Kashmir issues. A folk singer in Tamil Nadu being charged with sedition for singing songs mocking laws in Tamil Nadu relating to Liquor. 3000 people collectively being charged for sedition for protesting against a power plant. In UP Seema Azad and her husband and two people from the Union of Civil Liberties being arrested and being slammed with sedition. Separatist elements in Jammu and Kashmir and media houses giving platform to them have often been accused of sedition. A  PIL was filed by Common Cause, an NGO to repeal sedition laws where Supreme Court in response to the petition stated that criticizing or defaming Government or state’s instrumentality will not fall within the ambit of Section 124-A of the Indian Penal Code. The most trusted test to ascertain if the act was seditious or not is by judging if it was capable enough of inciting violence which in itself is vague because it depends on the sentiments and fundamentalism of people which is very objective in nature.

Discussion on the lines of any public policy is not termed as sedition but words like ‘ disaffection’, ‘ enmity’, ‘ disloyalty’, in the bare provision has been time and again criticized by legal scholars and is in dire need for explanation to provide clarity. Charge of sedition is a cognizable offence and police might not have proper training to label an act of being seditious or not.

Crimes Record National Bureau has no separate head of sedition which would inform one about the number of sedition cases filed in each state each year. Anti-sedition advocates believe that the state is not misusing sedition law but using the way it is meant to be used that is to suppress any form of dissent or neutralize any threat in the myth of national security. Reading banned literature has also lead to sedition charges. Should sedition be removed from Indian Jurisprudence? Still remains a topic for hot debate. Law in itself is still Victorian – A still showpiece of Colonial Hangover where the parent Nation has already repealed it. Pro-sedition  activists believe that sedition laws act as sword of Hercules hanging on the necks of persons conspiring evil designs against the state and fourth generation warfare is much more lethal and dangerous than an invading army because enemy is invisible and is one amongst the people. Naxalism is an offshoot or evil child of sedition.

SECTION 124A BEING AN OBSOLETE CRIME INTERNATIONALLY

Various countries have repealed laws of Sedition:

1.The United States repealed sedition act of 1918 thereby reducing the Smith Act 1940 into a dead letter followed by the directions given by the Supreme Court,  bringing forth the First amendment of Constitution of United States of America which is on freedom to speech is strong enough to give legal immunity to Presidential candidates against communal hate speeches. Canada is a representative democracy and no sedition case had been reported in the last five to six decades.

These countries only charge individuals on the lines of sedition in the ‘Rarest of the rare’ cases thereby supporting free speech and think tanks.

  1. Ever since England decriminalized Sedition in 2009, debates arise weather India in 21st Century especially after Kedar Nath case is rarely applied in spirit. Human Rights activists have called this as a BLOT on Indian Democracy ((Journey of Sedition, Karan Shah)). Recently UK abolished offences of sedition and seditious libel. No doubt the Sections in IPC that deal with ‘conspiracy to wage a war against government and sedition are draconian. It is most unfortunate that sedition was not removed as a crime from the IPC but was just deleted as a ground for restriction on the free speech.
  2. The whole law pertaining to sedition was repealed in New Zealand under the Crimes (Repeal of Seditious Offences) Amendment Act 2007 thereby removing the crime of Sedition altogether from the statue book of New Zealand.
  3. Sedition has been declared ‘unconstitutional’ in Indonesia, following in the footsteps of their Dutch Colonial Masters.
  4. The Republic of South Korea did away with its Sedition laws during democratic and legal reforms in the year 1988.

CONCLUSION

Today nationalism is decided by whether one can say “Bharat Mata Ki Jai” or not. Our Constitution gives people the right to say it as well as not to say it. People should have the right to choose whatever they believe is correct or not and that’s democracy. India needs a ‘Kaniya’ as much as it needs a ‘Krishna’. Until the time sedition remains, the Indian Penal Code will never be an Indian Code but will continue to be British Penal code. If inspiration is drawn from England in every aspect, why not make the law obsolete as done by England itself? There was a time when being charged under sedition in pre independent India was considered to be an honor because accused joined the ranks of Bhagat Singh and MK Gandhi but today Humanitarians like Binayak Sen with national and International support and Arundati Roy who is known to have controversial views against the state are being framed for sedition.  Hence as Law Commission Chairman Justice BS Chauhan rightly says there is a need to revise sedition laws as it was drafted more than 150 years ago to the changing needs of society. Time has come where we take appropriate measures and try to amend this tool which hinders the successive ‘democratic’ political government. International Covenants like Article 19 of United Nations Declaration of Human Rights (UDHR), 1948 and the International Covenant on Civil and Political Rights (ICCPR , 1966 talk about upholding freedom of speech and expression. Sedition has become a weapon to neutralize all opinions against the ruling party and tremendous rise in the number of cases filed in the name of sedition bears a testimony to the fact. Article 19 clause a of the Constitution Of India is a fundamental right and threshold of restricting it under Article 19 clause a sub-clause 2 is rather high. Sedition is the gravest offence one can commit when it comes to the violation of Article 19. Media which is the ‘Fourth pillar of democracy’ have time and again branded persons accused of sedition as seditious and anti-national when the matter has been pending in the court of law and such labelling has a strong bearing in the minds of the masses and the judge. All said and done one cannot undermine and underestimate the importance of sedition as a law because India has had social movements which were seditious in character and took an ugly turn later. Modern Indian state which had transformed from a military or police state to a welfare state is exactly doing what her British predecessors did and that is manipulating legal machinery to crush dissenters and thus law of sedition should be amended at once. Nationalism shouldn’t be used as an excuse to facilitate litigation on the grounds of sedition. Its time Section 124A is sent to where it belongs- to the scrapheap of repealed laws. It is on the readers to decide how far the current law is just and as natural law school advocates believe and so does the author that: Lex ininusta non est lex.

“Your freedom ends where my nose begins but one should not have a Pinocchio’s nose.”

 

Disclaimer: The views expressed this article are that of the author alone and do not represent the views of the Lex-Warrier: Online Law Journal, OR its editors OR its managers.

Triple Talaq: From Prescriptive Functionalism to Transformative Constitutionalism

   Author: Dr Nafees Ahmad*

India is confronted with a situation that has acquired, unfortunately, political primacy in a gender equality discourse. The religion of Islam bestowed upon equal rights for men and women devoid of any distinction including right to divorce. The utopian union of the husband and wife is a perennial pre-requisite for conjugal covertures in all civilized societies. Invariably, all religions advocate a normative framework for procreating a society based on gender equality and Islam is also one of them. Islam, therefore, insists upon the synovial subsistence of a bridal brolly where under husband and wife are basking.  Primarily, no marriage is contract in Islam to be dissolved in future.  But in rare-avis situations this celestial celebration may come to an end owing to the mawkish megrims of the spouses, particularly of men, though a divorce may be either by an act of husband or by an act of wife.

In pre-Islamic Arab World pertinent power of divorce (Talaq) possessed by the husband was recklessly unlimited.  Pronouncements and revocations of Talaq were devoid of any recondite reasons and judicative justifications whatsoever. In post-Islamic Arab World, when Holy Prophet hood was bestowed upon the Prophet of Islam (PBUH) who looked upon these concupiscent customs of divorce with dissentient disdain and disapproval.  Prophet of Islam (PBUH) regarded pervert practice as callously calculated to hamstring the foundation of society.  Prophet (PBUH) had to immaculately inculcate Islamic injunctions and teachings in the macabre minds of Arabs who were acquiesced in brutalisation, dehumanisation and subjugation of women from cradle to cremation. They revelled in polygamy and polyandry, and misogyny and polygyny without any submission to the supremacy of the Supreme Being; The Almighty Allah. Prior to Islam a husband could desert his wife at a moment’s notice. His repudiation (Talaq) of his wife operated as an instant and final denouement of the conjugal contract.  This right of repudiation exercised by the husband stemmed from his exalted position as a purchaser of wife since the institution of slavery and manumission was rampant.

The Holy Quran, of course, virtually suspended the effects of sufferance of severance of matrimony until the expiry of the “waiting period” (Idda) which was to last until the wife had completed three menstrual cycles or in case of her being pregnant, until delivery of the child. This period is, primarily, designed and emplaced to provide an opportunity for reconciliation between the spouses as per the Quranic injunctions, meanwhile wife is entitled to maintenance from the husband.  But it should be remembered that the Prophet (PBUH) pronounced “Talaq to be the most detestable before God of all permitted things“.  Thus, divorce being an evil; it must be eschewed as far as possible.

There are Quranic forms of Talaq, which are most compatible with gender justice, medical morality, human honour, and personal parity.  Talaq is an Arabic word its literal meaning is “to release” or “taking off any tie or restraint” or “removal of the restrictions of Nikah” and in Islamic jurisprudence it signifies the repudiation of marriage or dissolution of marriage i.e. divorce.  There are different modes of Talaq ordained in the Holy Quran.  There are two kinds of Talaq sanctified in the Holy Quran and approved by the Holy Prophet (PBUH) One Talaq-ul-Sunnat (revocable divorce) having two forms  Talaq-i-Ahsan (Most Proper Divorce) and Talaq-i-Hasan (Proper Divorce).  Two is Talaq-ul-Biddat (Innovative Divorce) which is irrevocable and pronounced thrice in one sitting and operates with immediate effect and better known as Triple Talaq.

Triple Talaq is a recognised form of divorce in the contemporary legal regime in India or Muslim Law as administered in India. Muslim jurists have perceived it as a novel innovation in Sharia Law.  It was not there in the initial two years of the lifetime of the first Caliph Abu Bakr and second Caliph Umar, the great.  But, subsequently, Triple Talaq was allowed exclusively in some special circumstances.  For example, when Arabs had conquered Egypt, Iraq and Syria etc, they found that women of these countries were more beautiful than those of their own wives.  Consequently, they decided to marry with them.

Consequently, this form of Triple Talaq is continued to enjoy spiritual and temporal legitimacy at one hand and judicial recognition on the other hand in India.  The jalopy of justice in any democratic dispensation is put on by the highest judicial establishment of the country and it was made possible in India when Supreme Court held scales even on ecclesiastical law in the case of Shamim Ara V. State of U.P (2002) that Holy Quran stipulates Talaq must be pronounced on cogent, plausible and reasonable grounds and prior to thereof spouses must appoint two arbitrators and they should make all efforts for reconciliation and resolution.  Having failed all efforts, Talaq shall come into effect. Therefore it can be rightly inferred therefrom that the apex court of the land has duly rejected the prescriptive functionalism of Triple Talaq and moved ahead to achieve the majesty of transformative constitutionalism.

The Islamic raison d’etre has never been to confer an absolute authority of Talaq upon a husband to be misused by him by uttering few words, which signify his intention of divorce.  But there should be a subjective element in the intention of husband with regard to divorce thought it is generally not there.  Therefore, Talaq-ul-Sunnat is regarded to be the divinely approved form of Talaq. It is called as Talaq-ul-Sunnat because it is based upon the tradition (Sunna) of Prophet Muhammad (PBUH).  Prophet always considered Talaq as an evil.  If at all this was to happen, the best formula was one in which there was possibility of reconsideration and revocation of the consequences of this evil.  Having cogitated upon, the Prophet recommended only revocable Talaq, whereby the evil repercussion and ramifications of Talaq do not become final at once as Talaq-ul-Sunnat is founded upon the bejewelled principles of natural law as it do contemplate the possibility of compromise and reconciliation between conjugal candidates.  Only this form of Talaq was in practice during the life of the Prophet.  This mode of Talaq is recognised beyond the Shia and Sunna dichotomy.

However, Talaq-ul-Hasan is also regarded proper and approved form of Talaq and has provision of revocation.  But the words of Talaq are to be pronounced three times in the successive periods of purity.  It is immensely important to note that the husband may revoke the first and second pronouncements either expressly or by resuming conjugal canopy of cohabitation and consummation and same tantamount to as if no Talaq was made at all.  But if third pronouncement in the third period of Tuhr (purity) is made, Talaq becomes irrevocable and marriage is repudiated and the wife observes Idda.

It is well-established fact that Talaq-ul-Sunnat is the most appropriate, cogent, meaningful, plausible and reasonable mode of repudiation of bridal bond sanctified and warranted by the Holy Quran.  Thus, law is the revealed will of Almighty Allah in classical Islamic theory and a divinely ordained system rather than a science of the positive law emanating from judicial tribunals.  However, the standards of religious law and the demands of political expediency do not go together and perhaps the arbitrary authority of the political pontiffs influenced the Muslims Ulema to adopt a discretionary divagation of ignoring rather than denying, though Islamic jurisprudence is functional jurisprudence resulting in the Islamic social engineering which has tantalised and galvanised the Sharia law in Egypt, Iraq, Morocco and Pakistan etc. wherein rigid dictates of traditional law and the demands of modern society have been reconciled through Islamic legislation and codification founded upon the Holy Quran and Hadith or Sunnah (Tradition), Ijma (consensus of juristic opinions), customs and usages and juristic deductions like Qiyas (analogy), Istihsan (preference), Istidlal (deductions by logic and reason), Ijtihad (interpretation) and Taqlid (The principle of strict adherence to the law as expounded in the authoritative legal manuals). And on this basis it would appear that Islamic jurisprudence could implement and preserve its fundamental and unique ideal of a way of life based on the command of God (Almighty Allah) in most practical and modernist terms.

But, unfortunately, the recent conglomerate of All-India Muslim Personal Law Board (AIMPLB) has stultified the entire agenda of reforms contrary to the expectations of the people of India.  But this turned out to be a damp squib.  It was expected of AIMPLB would take the most important decision of abolition of Triple Talaq and adopt a model “Nikahnama” (marriage contract)  based on equity, justice and gender parity as ordained in the Holy Quran.  But it has adopted a policy of procrastination and entire Muslim community put on tenterhooks.  This regressive and ridiculous practice of Triple Talaq is nothing but an exercise to sustaining primordial and parochial practices in the name of Islam to subjugate Muslim women that might generate revulsion among the Muslim masses beyond human control in times to come.  Therefore, massy reality must be attended at the earliest with dexterity and maturity by the AIMPLB.  Moreover, AIMPLB has lost an opportune opportunity of proving its own acceptability and credibility in a democracy because democracy demands decision with accountability and AIMPLB is accountable to the Muslims of India.  Although, AIMPLB is an organisation without any legal status but it has been recognised as the body to attend on religious affairs of Muslims who have pinned down their hopes in the collective wisdom of this body. At the same time, AIMPLB is faced with primordial perceptions and parochial pursuits of its members.  But it wields considerable weight among the Muslims and has been playing a role since its inception, which is being appreciated by all and sundry.

Therefore, it would be in the fitness of things that AIMPLB must address the issue of Triple Talaq, model Nikahnama, family planning, Codification of Muslim personal law and socio-economic backwardness of Muslims and issues and problems identified by the Sachchar Committee. The codification of Muslim Personal Law must be done as directed by the Holy Quran and Hadith to establish the unity, unanimity and ubiquity in legislative, executive and judicial actions in a secular state like India as enshrined under Articles 14, 15, 21, 25 and 26 of the Constitution of India. The issue of Triple Talaq must be resolved in conformity with the Islamic jurisprudence wherein ample scope of reform of Muslim law on this mode of divorce has been provided through ijma and taqlid.  Moreover, it should not be forgotten that Triple Talaq does not find any sanction whatsoever anywhere in the Holy Quran.

* Ph.D. (International Refugee Law & Human Rights), LL.M. (International Law & Human Rights), LL.B. (H) B.A. [(H)-Anglo-American English Literature], Assistant Professor of International Law, Faculty of Legal Studies, South Asian University-New Delhi-110021 I am immensely thankful to Prof. James C. Hathaway, University of Michigan-USA, for his highly valuable inputs and comments on the draft of this Article. I have introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, IHL and International Refugee Law.  Presently, I am pre-occupied with developing a course module Comparative Islamic Law in South Asia. I have been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall& Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA.

Disclaimer: The views expressed this article are that of the author alone and do not represent the views of the Lex-Warrier: Online Law Journal, OR its editors OR its managers.