Gender Equality and Recent Approach of the Judiciary on Temple Entry

(By Dr.B. Muthu Kumar, Assistant Professor of Law,
School of Law, Christ Deemed to be University, Hosur Road, Bengaluru )

Introduction:

The Constitution of India is a compendium of human rights documents,¹ influenced and borrowed from the west. It guarantees certain fundamental rights including the rights of women. The framers drafted the constitutional document with a high and impeccable rational approach by giving primacy to human rights principles and ignoring the local discriminatory, unreasonable and biased social customs and practices. The promotion of human rights includes gender equality and it is evident from the fundamental rights chapter of the Constitution, which protects women from discriminatory treatment,² and also guarantees special status to them through an enabling clause, which enables the legislators to make laws for their upliftment^{. 3}  Further, it guarantees right to practice, profess and propagate any religion of one’s choice but subject to public order, morality and health.⁴ A special provision meant only for religious and linguistic minorities to preserve their culture and tradition by establishing educational institutions is guaranteed as a fundamental right.⁵ However, the practices and usages of a particular community either through its conventions or by personal laws are highly discriminatory, particularly against women. After the commencement of the Constitution, these personal laws posed a significant challenge to our legislators. Our first Prime Minister Pandit Jawaharlal Nehru took valiant efforts in bringing transformation in Hindu laws by codifying the marriage, divorce, succession and adoption laws and made applicable throughout India. It is notable that, while doing so; he earned the wrath of then President of India Dr.Rajendra Prasad.⁶ In spite of the legislations, Hindu women were treated as secondary to men in succession and adoption. Nevertheless, certain amendments were passed by the State Governments and later the Central Government, for providing gender equality in Hindu laws, but the same was not followed in abolishing the customarily hardened prejudiced practices. Undoubtedly, the customary practices and conventions in Hindu community deprive the rights of women to a great and unimaginable extent. The grant of dowry to the groom from the bride’s family at the time of marriage is one such example. Undeniably, the legislation⁷ is not a cure for it and still, the practice is in vogue. In this connection, it is pertinent to analyze the recent approach of the judiciary in the cases relating to temple entry both in Hindu and Muslim communities. The age old customary and religious practices deny entry of women into temples leading to discriminatory treatment but the last saviour, the Judiciary, extended its helpful hands in getting rid of the discriminatory practices. The Supreme Court of India made an initiative approach through the case ofIndian Young Lawyer’s Association & Anr. v. State of Kerala & Ors.⁸ [hereinafter Sabarimala case] when it started to hear the customary practice restricting entry of women of a particular age group in Sabarimala temple. The case docket had gathered dust since 2006 and all of a sudden the case was in the limelight in the year 2016 and presently, it has been referred to a Constitution Bench. During the pendency of this case, the Bombay High Court held that it is a women’s fundamental right to enter temples.⁹ Thus, this paper analyses the role of the judiciary in balancing the customary religious practices vis-a-vis gender equality in burgeoning human rights jurisprudence in the light of the subjudice Sabarimala case in the Supreme Court and the decided cases of the Bombay High Court.

Customary Laws in India:

The patriarchal Indian society particularly the Hindu community still allows customary laws to discriminate women in all societal activities. It includes entering into temples and offering prayers. In this connection, there was a challenge to the restriction imposed on women aged between 10 and 50 from offering worship at the Sabarimala shrine by trekking the Sabarimala hills. The Government can very well bring reforms to get rid of the age-old discriminatory and irrational customary practice because India does not follow strict State-religion separation theory like U.S. But, instead of reforming, they supported the ban on entry by stating that the conventional practices are adhered as per the usage and customs prevalent from time immemorial.¹⁰ They also claimed that the ban on entry of women is a ritual or observances, which are an essential or integral part of the right to practice of religion by its devotee. To substantiate it, the judgments of the Supreme Court are relied upon, wherein the Court held that rituals, observances, ceremonies and modes of worship forms an ‘essential or integral part of religion’ and comes within the guarantees of the Constitution under Articles 25 and 26.¹¹ Thus, it is pertinent to analyze the scope and ambit of the right of ‘essential religious practices’ under the Constitution of India.

Judicial Review of Essential Religious Practices:

The difference between the personal law and custom or usage is clear and unambiguous since the law recognizes certain institutions which are not by religious texts or even opposed to them because custom or usage have sanctified them.¹² Thus, the customary laws cannot be equally placed with personal laws. Nevertheless, the Supreme Court has held that personal law including religious customs are exempted from the attack on the grounds of fundamental rights especially Article 14 because they get protection under Articles 25 and 26 of the Constitution. The customary religious practices immunized from the State action through the doctrine of essential religious practices evolved by the Supreme Court in the case of Commissioner of Hindu Religious Endowment, Madras v. Sri Lakshmindra¹³[hereinafter Lakshmindra case] because the term ‘matters of religion’ used in Art. 26(b)¹⁴ is synonymous with the term ‘religion’ in Art.25(1)¹⁵. In the said case, the Supreme Court observed that ‘the Constitution of India does not protects the religious freedom alone but also protects any acts done in pursuance of religion.’ Religious practices are reflective of matters connected to the religion, and if religious rights are to be recognized, then the practices related to, are equally regarded and have to be complied with. In pursuance of the above doctrine, the Supreme Court held that the Statute prohibiting ex­communication based on religious grounds is inconsistent with Arts.25(1) and 26(b). Further, Art.25(2)(b) does not protect it as a matter of social reform. However, prohibiting ex­communication on grounds other than religious may be justifiable under Art.25(2)(b) as a measure of social reform.¹⁶ The Supreme Court in many occasions harmonized articles 25(2)(b) and 26(b). The term ‘religion’ in Article 26(b) embraces religious practices which signify that such questions as who are the persons entided to enter a temple for worship, where they are allowed to stand and pray, how the worship is to be concluded, are all matters of religion coming within the purview of Art.26(b). It implies that a denomination has a right to exclude persons from participating in the worship according to the tenets of the institution concerned.¹⁷ The interpretation of the doctrine of essential religious practices has undergone changes over the years and the Court started to interpret liberally,¹⁸ sometimes in restrictive way. ¹⁹The Judges actually determines ‘what constitutes essential religious practice’ not just for one religion, but for every religion.²⁰ In Seshammal v. State of Tamil Nadu [E.R.J. Swami v. State of TamilNadu²¹], the Supreme Court held that the mode of appointment of archakas in temples is a secular activity and not a religious practice after surveying the Hindu religious tenets. However, it created an exception by holding that the ‘denomination, sect or group’ of the archakas appointed must be the same as that of the temple in question as prescribed by the agams (treatises of ceremonial law) governing the temples. Therefore, a law abolishing the hereditary principle of appointing the archakas, and laying down that only such persons should be appointed archakas as duly qualified, has been held to be valid. It has been reiterated in T.V. Narayana v. Venkata Subbamma.²² Further, in a recent case of Adi Saiva Sivachariyargal Nala Sangam & Ors. v. The Government of Tamil Nadu & Anr.,²³ the Supreme Court held that any selection of archaka (priest) would have to agree with the Agamas but with certain reservations, i.e., the inclusion or exclusion as per the Agama Shastras should not be based on caste, birth or any other constitutionally unacceptable parameter. And, if it so, then it would be open to challenge under Article 14. This judgment left us with a further conundrum, where every time an appointment of an archaka is made, the selection is likely to be challenged. However, the Court reiterated that the fundamental right to freedom of religion is not confined to doctrines and beliefs but extends to ‘religious practices’ carried out in the pursuance of the faith. It is evident from the above analysis that Arts.25(2)(a) and 26(b) are subject to Art.25(2)(b) as both the articles are required to be read harmoniously. It is also well established that law relating to social reforms or regulatory laws under Art.25(2) cannot obliterate ‘essential religious practices’ or their performances and what would constitute the fundamental part of religion should be ascertained from the religion itself. With this background, it is significant to analyze the exclusion of women from entering into the religious places both in the Hindu and-Muslim community.

Women and Customary Religious Exclusion:

The exclusion of fertile women, i.e., between the age group of 10 and 50 from trekking the Sabarimala hills became a hotly debatable topic since the beginning of 2016 when the Supreme Court started to hear this case. The issue raises freedom to manage religious practices vis-a-visfundamental right to worship. It has been widely argued that the Sabarimala case has the similarity with the Haji Ali Dargahcase. The Haji Ali Dargah Trust, which administers the shrine of Saint Haji Ali in Mumbai. In 2012, the Trust barred women from entering the inner sanctum of the Dargah, which houses the tomb of a saint. This decision was challenged by Bharatiya Muslim Mahila Andolan in Nov. 2014 through PIL before the Bombay High Court.²⁴ The Petitioner contended that there was no such ban until 2011-12 and also, 65% of the Dargahs across the city of Mumbai never restrict women’s access to the inner sanctum. The Trust countered that they were not aware of the provisions of Shariat and made a mistake by allowing the women till 2011 and therefore had taken steps to rectify the same. The Trust interpreted the religious texts of Islam and argued that the Quran prohibited proximity of women to the tomb of male saint because the menstruating women are unclean. Besides interpretation of religious texts, the Trust relied on and interpreted Articles 25(1) and 26(b) of the Indian Constitution. They invoked ‘essential religious practices test’ under Art.25(1) and contended that the exclusion of women from the inner sanctum of a shrine is an integral part of Islam and relied on the Shariat for the same. However, on the contrary, the petitioner alleges that the Quran and the Hadith, which contains the core practices and beliefs of Islam, do not mention anywhere to exclude a women from places of worship. However, the two-Judge Bench²⁵ of the Court on 26th Aug. 2016 held that the Trust had failed to show clearly that the entry of women into the inner sanctum was a sin under Islam. The Court relied on Ismail Faruqui v. Union of India,²⁶to hold that a mosque was not an essential and integral part of the practice of Islam. Further, the Court observed that if a religion holds a particular place as unique significance for offering prayers, then access to that place would certainly be protected under Article 25. Finally, the Court in this case, turned down the contentions of the respondent Trust since there is no evidence to confirm what specific aspects of the Shariat have been drawn for this purpose. After tracing the history of the Trust, the Court held that the object of the Trust is to carry out certain secular activities, such as providing medical facilities, lending loans for education, etc., and its operations are not governed by any customary practices or traditions to avail protection under Art.26(b) of the Constitution. Moreover, the Trust is a public charitable trust. Once a public character is attached to a place of worship, then all the rigors of Articles 14,15 and 25 would be attracted. The Trust also contended that inappropriate dressing by certain women and offering prayers in inner sanctum may threaten their safety and security. In order to avoid such problems and as a precautionary measure, the Trust put a total ban on the entry of women in the inner sanctum. The Court swiftly disposed of this argument by holding that Dargah has to take effective measures to guarantee the safety of women, instead of prohibiting them entirely. The Court finally held that women should be permitted to enter sanctum sanctorum at par with men and the exclusion violates rights under Articles 14, 15(1) and 25(1) of the Constitution. At this juncture, it is significant to discuss in detail about the Sabarimala issue and the contention of ‘essential religious practice’ by the Devaswom Board.

Ban on entry of women to Sabarimala Temple:

The high voltage Sabarimala case had many fascinating twists and turns when the Supreme Court seized of this matter between late January 2016 and reference to the Constitution Bench in October 2017. The case was filed in 2006 for enforcing fundamental right to worship for women in Sabarimala Temple by challenging the constitutionality of
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. It provides that women of certain age should not be allowed to enter a place of worship of public character and offer prayers, at such time as prescribed and practiced by custom and usage. Besides, they challenged the decision of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board,²⁷which held by the evidence adduced by Thanthris (priests) ²⁸ that the prohibition of entry of women between the age of 10 and 50 was part of customs and usages of the temple and prevalent from the time immemorial and got the protection under Arts.25 and 26 of the Constitution and allowed undisturbed. This case was filed as a PIL by the members of the Indian Young Lawyers Association and due to the serious question of law touching upon the constitutional provisions, the two-Judge Bench ²⁹ in 2008 referred the matter to the three Judge Bench.³⁰

Initially, the Government of Kerala³¹ led by Left Democratic Front had supported the pleas of the petitioner to let women worship at the temple but the incumbent Congress-led Union Democratic Front Government denied the entry of women between 10 and 50 by filing an additional affidavit in Feb.2016. Moreover, few other parties also became intervenors. Senior Advocates Indira Jaising representing NGO, Happy to Bleed and K.Parasaran on behalf of Nair Society made a brief submission in this case to defend their client’s rights. Further, the Court appointed two Senior advocates, Raju Ramachandran, and K.Ramamurthi as amicus curiae.³² Mr.Raju Ramachandran, senior advocate argued that the Sabarimala shrine is a public temple and used as a place of public worship because it is managed and administered by a statutory body i.e., Travancore Devaswom Board, and moreover, it is being financed by the Government of Kerala and Tamil Nadu under Article 290-A, the consolidated fund of the State concerned. Thus, the temple authorities have no right to curtail this right. Concerning Article 25(2) of the Indian Constitution, it expressly prohibits exclusionary practices, but with certain exceptions on the grounds of health, public order and morality. The learned amicus curiaefurther argued that the word ‘morality’ under Art.25 and 26 is to be interpreted as a constitutional morality, and should be in consonance with other fundamental rights. It should not be individualized or sectionalized perception subject to varying practices and ideals of every religion. On the other hand, the Kerala Government contended that the administration of the temple vests with the Travancore Devaswom Board under the provisions of the Travancore-Cochin Hindu Religious Institutions Act, 1950. A statutory duty cast on the Devaswom Board under S.31 of the said Act to arrange worship in temples by the usage. Therefore, the opinion of priests is final in the matters of religion.

Mr.K.K.Venugopal and Mr.K.Parasaran, senior advocates submitted that the devotees of Swami Ayyappa form a denomination by themselves and they do have every right to manage its religious affairs. Further, the Senior Advocate Mr.Jaideep Gupta, who appeared for the State contended that restriction on women was “not necessarily a custom” and also submitted that Arts.25 and 26 of the Constitution guarantee the right of freedom to profess, practice and propagate religion to every person and community and manage its affairs in the matters of religion. It is settled law that religion not only lays down a code of ethical rules but may also prescribe rituals and observances, ceremonies and modes of worship and gets protection under Articles 25 and 26 of the Constitution when they constitute an ‘essential or integral part of the religion.’ It is also a settled law ‘what constitutes an essential part of the religion?’ The question is primarily ascertained through the religious beliefs. Here the religious belief is that the fertile women should not offer worship since the deity is in the form of a Naisthik Brahmachari because the presence of them will disturb the celibacy and austerity observed by the deity.³³ The petitioner contended that the present practice of denying entry of women to Sabarimala temple is a system of patriarchal society and the gender discrimination practices, which is highly prevalent in Indian society. Further, the rule of the Sabarimala Devaswom is based on age-old taboos, superstitious belief and reasoning primarily on the women biological changes i.e., menstruation. They attacked the menstrual taboos and sexism that women are subjected to. It acknowledges menstruation as a natural activity which does not need curtains to hide behind. Further, they raised a question that ‘whether the women in the modern society should continue to bear with menstrual discrimination in the guise of protecting religious belief under Arts.25 and 26 of the Constitution?’³⁴ The Supreme Court had questioned the logic behind the restriction, even wondering whether there was any proof that women did not enter the sanctum sanctorum 1,500 years ago when the State made a submission to that effect.³⁵ The Court also called for records of the 1991 judgment of the Kerala High Court to consider the statement of the then Sabarimala Thanthri Sri Neelakandaru that the women belonging to the age of 10 and 50 were prohibited from entering the temple even before 1950. Thus, it all depends on the shreds of evidence of the State to show that the practice of prohibiting the women of particular age group from entering into temple is a religious custom, which is also recognized as ‘essential or integral part of the religion.’

On April 11, 2016, the Supreme Court consisting of three Judges³⁶ resumed the arguments of the counsels and questioned ‘how can a tradition bar women’s right to worship?’ and in such instance, it is clearly endangering gender justice and the Court also observed that it is time to consider ‘whether the traditional ban is more than the Constitution or not?’³⁷ Ms.Indira Jaising³⁸ representing an NGO ‘Happy to Bleed’ asked the Court ‘How the healthy biological process of menstruation is used in the name of religion to discriminate against women?’ To support it, Justice Kurian wondered ‘Whether the concept of ‘Nityabrahmachari’ and the tradition of no entry of women have anything to do with menstruation?’ The arguments encircle about the deity’s celibacy and the cause of disturbance to it by women.³⁹ Further, a request has been made to the Bench to refer the case to the Constitution Bench because it involves substantial questions of law as to the interpretation of the Constitution. The Bench⁴⁰ observed that it would do so if necessary, which indicates that it may refer to the Constitution Bench since the matter affects a large section of society and requires a substantial interpretation of rights.⁴¹ In the meantime, the Left Democratic Front had wrested power again in Kerala and re-established their position by informing the Supreme Court on November 7, 2016 that the State would like to rely on the original affidavit filed on Nov. 2007, which favoured the entry of women of all age groups and not the additional affidavit submitted by the United Democratic Front on February 2016, which denied the entry of women between the age 10 and 50.⁴² On February 20, 2017, another three Judge Bench⁴³ reserved its judgment on the question of referring this matter to a Constitution Bench.⁴⁴ Finally, on Oct. 13, 2017,⁴⁵ the same three-judge Bench referred the matter to a five-judge Constitution Bench by framing the questions as under:⁴⁶

1. Whether the exclusion of women based on biological factor amounts to ‘gender discrimination’, which violated Articles 14, 15 and 17 and not protected under Articles 25 and 26 of the Constitution based on ‘morality’?

2. Whether the exclusion of menstruating women by the Devaswom Board constitutes an ‘essential religious practice’ under Article 25 and the claim by the Board will come under the ambit of managing its own affairs in the matters of religion?

3. Whether the Sabarimala Temple belong to a religious denomination. If so, is it proper on the part of State of Kerala to manage it by a statutory board? The temple has been financed by both the States, State of Kerala and Tamil Nadu under Article 290-A of the Constitution. Will the funding by the State out of the Consolidated funds of their respective State violate constitutional principles/morality embedded in Articles 14,15(3), 39(a) and
51-A(e)?

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 and 50 years? And if so, would the rule violate Articles 14 and 15(3) of the Constitution on the ground of sex?

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is in violation with the parent Act ‘Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965’ and, if treated to be intra vires, whether will it contravene any provisions of Part III of the Constitution?

In this connection, many claim that the Sabarimala and Haji Ali Dargah cases are similar. But, factually and legally they are different although they appear logically similar. The former deny entry of women into the temple but the latter into the inner sanctum of the tomb. Further, both the religions are different, and the practice of excluding the women in each of these religions has to satisfy the doctrine of ‘essential religious practice’ to get the protection of the fundamental right. In N.Adithyan v. Travancore Devaswom Board,⁴⁷ the Supreme Court held that the protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are considered to be an integral parts of religion. And, as to what constitutes an essential part of religion or religious practice has to be decided by the Courts by considering the concerned religion and the religious practices, which constitutes or regarded as parts of that particular religion. Thus, the decision of the Bombay High Court in Haji Ali Dargahcase deserves a major credit in dispensing gender justice in accessing the place of worship by women at par with men. It is pertinent to analyze another judgment of Bombay High Court relating to temple entry. In this case, the Court held that it is a woman’s fundamental right to enter temples, and it is the State’s duty to protect that right. The verdict in Shani Shingnapurand aftermath development has created significant ramification in the society relating to the right of women in temple entry.

Shani Shingnapur temple entry:

A Division Bench⁴⁸ of the Bombay High Court heard a PIL challenging the age-old tradition, which denied the entry of women inside the sanctum sanctorum of Maharashtra’s Shani Shingnapur temple. The debate over the entry of women in the temple had espoused after 2015 following a breach of customs by the entry of few women and consequent to that performance of purification ceremony by the local people. The Court interpreted the provisions of the Maharashtra Hindu Place of Worship (Entry Authorization) Act, 1956. In one of the provisions of the Act, it is prescribed that a six-month imprisonment will be imposed if any person is found guilty of the offence of prohibiting a person from entering a temple.⁴⁹ Mr. Rohit Deo, the Advocate General, argued that the provisions of the Act cannot be invoked if a temple in the State does not allow any person regardless of their gender. To this, the Court observed that it cannot delve into individual cases and said ‘women should be allowed if men are allowed in’. The Court held that it cannot tolerate gender discrimination in this regard and it is the paramount duty of the Government to defend the basic rights of a woman.⁵⁰ The Court further ordered that the Government should ensure due compliance and enforcement of the provisions of the Act by giving extensive publicity to the Act and issue circulars enlightening the general public about the significance of the Act and its regulations. However, the next day of the verdict, women activists made a bid to storm the inner sanctum of Shani Shinganapur Temple to break the ban, but scores of villagers stopped them. The villagers restricted even males from entering into sanctum to claim a total ban on the entry of devotees including women thereby avoiding the application of the provision of the Act of 1956 and alleged to prefer an appeal to the Supreme Court against the Judgment of the Bombay High Court.⁵¹

On April 8, 2016, the day of ‘Gudi Padwa’, which marks New Year across Maharashtra marked a great victory for the women activists when the temple trust announced a decision to facilitate unrestricted entry to all devotees to the core area of the shrine. Thus, the 400-year-old customary practice vanished after the judicial intervention.⁵² The women organizations owe that after the successful entry into the Shani temple, they will try to enter the sanctum sanctorum of the Mahalakshmi temple in Kolhapur and the Trimbakeshwar temple in Nashik.⁵³ However, on April 03, 2016, men were also restricted along with women from entering into the sanctum sanctorum of Lord Shiva Shrine in the Trimbakeshwar temple. The temple authorities imposed this restriction with an aim to provide ‘equal treatment on both the genders.’In fact, the temple authorities in the guise of providing equal treatment made an effort to continue the age old tradition of denying women to perform poojas by entering into ‘garbhagriha’.⁵⁴ The above-stated temple entry issues in Maharashtra are different from the Sabarimala issue factually as well as legally. In Maharashtra, the law penalises those who prohibit any person entering into the temple, whereas the Kerala legislation bars women of particular age group from trekking the hills of Sabarimala temple. Moreover, the issue of entering the temple is different from entering into sanctum sanctorum and performing poojas on their own. Thus, the issue of Sabarimala temple has to be determined by the doctrine of essential religious practices vis-a-vis right to equality and not by the judgment rendered by the Bombay High Court.

Conclusion:

The Constitution of India categorically provides that the combined reading of Articles 14, 15 and 21 protects women from discriminatory treatment irrespective of any religion. It is evident from the above analysis that under the guise of customary religious laws, many undesirable practices are followed through superstitious beliefs. Unfortunately, they get protection under the banner of ‘sacred’ or ‘essential religious practices’ under Articles 25 and 26 of the Constitution. In the Sabarimala case, the judiciary has to decide whether the belief in question is ‘religious or superstition?’ All temple entry cases cannot be placed on similar footing. Each case has unique features. The Bombay High Court interpreted ‘essential religious practice’ jurisprudence in Haji Ali Dargahcase. However, the verdict in Shani templecase did not cover the ‘essential religious practice’ rather ordered the State to implement the existing law and curb the gender discrimination in temple entry. Although, a handful of women offered prayers at the Shani temple, many local women from nearby villages did not enter the sanctum sanctorum since they follow the religious traditions and respect it wholly. Undeniably, every religion treats all people equally, and there should not be any discrimination on whatsoever grounds. All are equal not only before Law but also God regardless of gender. Further, human beings may be susceptible to all worldly pleasures but not God. So, the issue of celibacy and abstinence from fertile women does not apply to God. Even though the practice is customary since time immemorial, it has to change according to the standards of the modern society. On the other hand, few criticize the recent activist approach of judiciary in reviewing the religious laws as ‘judiciopapism’, which means the Judges can completely overrule religious authority, and insist that the Court has to consider the traditional beliefs of local people concerning religious practices. Nevertheless, one should not forget that a society like ours, pluralistic in many forms finds it difficult in reforming themselves and the State also lacks a strong political will to take over the task of social reform to curb all menace, including gender discrimination in varied forms. In such circumstances, the role of our judiciary in facilitating the change is inevitable and the recent approach of the judiciary is highly commendable and should be welcomed by every section of the society.

Foot Note:

¹    The documents asserting civil, political, economic and social Rights, such as Magna Carta (1215), Bill of Rights in England (1689), The French Declaration on the Rights of Man and Citizen (1789), Bill of Rights in the First Amendment of the U.S.Constitution (1791), The Universal Declaration of Human Rights (1945).

²    INDIA CONST, Articles 14, 15 and 16.

³    INDIA CONST, Article 15 Clause 1.

⁴    INDIA CONST, Article 25 Clause 1.

⁵.   INDIA CONST, Articles 29 & 30.

⁶    Prabhu Chawla, Nehru, and Prasad: Asserting Supremacy, INDIA TODAY, Feb.28, 1987, http://indiatoday.indiatoday.in/story/clash-between-president-dr-prasad-and-pm-nehru-over-hindu-code-bill-most-serious/l/336738.html.

⁷    The Dowry Prohibition Act (No.28 of 1961).

⁸    Writ Petition (C) No. 373 of 2006.

⁹    See Special Correspondent, No Law prevents women from entering temples: HC, THE HINDU, March 31, 2016, http://www.thehindu.com/news/national/other-states/no-law-prevents-women-
from-entering-temples-hc/article8414551.ece.

¹⁰   See Krishnadas Rajagopal, Ban on women to protect deity’s celibacy vow: Kerala Govt., THE HINDU, Feb.06, 2016, http://www.thehindu.com/news/national/ban-on-women-to-protect-
deitys-celibacy-vow-kerala-govt/ article8199676.ece?ref = related News.

¹¹   Additional Affidavit on behalf of State of Kerala inIndian Young Lawyers’ Association & Ors. v. The State of Kerala & Ors.W.P. (C) 372 of 2006, at p.5, para 12 (on file with author).

¹²      State of Bombay v. Narasu Appa Mali (AIR 1952 Bom.84, at 86).

¹³  AIR 1954 SC 282.

¹⁴  INDIA CONST, Art.26 § b: Subject to public order, morality, and health, every religious
denomination or any section thereof shall have the right to manage its own affairs in matters of religion.

¹⁵  INDIA CONST, Art. 25.

¹⁶  Taher Saifuddin Saheb v. State of Bombay (AIR 1962 SC 853).

¹⁷  M.P.JAIN, INDIAN CONSTITUTIONAL LAW 1257 (2014).

¹⁸  InRaju Prasad Sharma v. State of Assam (2015) 9 SCC 461), the Supreme Court held that Article 13(1) does not apply to such religious customs and personal laws which are protected by Articles 25 and 26, and cannot be treated as void.

¹⁹  In Nikhil Soni v. Union of India (2016 (1) KLT SN 48 (C.No.50) (Raj.-Jaipur Bench), the Rajasthan High Court held that the practice of ‘Santhara’ or ‘Sullekhana,’ a Jain ritual of voluntary and systematic fasting to death as illegal, and directed the State to treat it as an offence. The Court hold that the practice is neither followed by the Jain ascetics, nor is necessarily required for the pursuit of immortality or moksha. There is no such preaching in the Jain holy scriptures or in the texts written by revered Jain Munis that the Santhara is the only method to attain moksha. Thus, it cannot be treated as protected religious practice under Articles 25 and 26 of the Constitution of India’. However, the judgment of the Rajasthan High Court has been stayed by the Hon’ble Supreme Court of India.

²⁰  Nitin Pai, Reform, only left to judiciary?, THE HINDU, Jan. 18, 2016, http://www.thehindu.com/opinion/lead/ reform-only-left-to-the-judiciary/article8116859.ece?ref=relatedNews.

²¹   AIR 1972 SC 1586.

²²   (1996) 4 SCC 457.

²³   (2016) 2 SCC 725.

²⁴      Noorjehan Safia Niaz & Anr. v. State of Maharashtra & Ors., Public Interest Litigation (C)
 No.106 of 2014 dated 26th August 2016 before the High Court of Judicature at Bombay [hereinafter Haji Ali Dargah case]. ²⁵ Hon’ble Justices V.M. Kanade and Revati Mohite Dere.

²⁶ (1994) 6 SCC 360.

²⁷ AIR 1993 Ker. 42.

²⁸The Thantri of the temple as well as some other witnesses have stated that the diety at Sabarimala is in the form of a Naisthik Brahmachari. ‘Brahmachari’ means a student who has to live in the house of his preceptor and study the Vedas living the life of utmost austerity and discipline. A Brahmachari should control his senses. The deity in Sabarimala temple is in the form of a Yogi or a Brahmachari, and that is why young women are not permitted to offer prayers in the temple.

²⁹      Hon’ble Justices S.B. Sinha, and V.S. Sirpurkar.

³⁰   Hon’ble Justices Dipak Misra, Pinaki Chandra Ghose, and N.V. Ramana.

³¹   Previous Left Front Government affidavit dated 13.11.2007.

³²Live Law News Network, Supreme Court comes to grips with the plea for lifting the bar on Entry of Women to Sabarimala Temple, LIVELAW.IN, Feb. 13, 2016, http://www.livelaw.in/supreme-court-comes-to-grips-with-the-plea-for-lifting-the-bar-on-entry-of-women-to-sabarimala-temple/.

³³   Krishnadas Rajagopal, Ban on women to protect deity’s celibacy vow: Kerala govt., THE HINDU, Feb. 6, 2016, http://www.thehindu.com/news/national/ban-on-women-to-protect-deitys-celibacy-vow-kerala-govt/article8199676.ece.

³⁴      Live Law News Network, ‘Happy to Bleed’ campaigners move SC asking how menstruation can be a ground for Temple Entry Ban, LIVELAW.IN, Feb. 16, 2016, http://www.livelaw.in/happy-to-bleed-campaigners-move-sc-asking-how-menstruation-can-be-a-ground-for-temple-entry-ban/.

³⁵   Krishnadas Rajagopal, Call for 1991 Sabarimala case records: Kerala, THE HINDU, January 19,
2016,http://www.thehindu.com/news/national/ban-on-womens-entry-call-for-1991-
 sabarimala- case-records-says-kerala/article8121647.ece.

³⁶   Hon’ble Justices Dipak Misra, V.Gopala Gowda and Kurian Joseph.

³⁷   Krishnadas Rajagopal, How can tradition impede woman’s right to worship?, THE HINDU (Chennai), April 12,2016, at 9.

³⁸   Senior Advocate of the Supreme Court of India.

³⁹   Krishnadas Rajagopal, Can menstruation be a factor in temple entry: SC, THE HINDU (Chennai), April 14, 2016, at 12.

⁴⁰   Hon’ble Justices Dipak Misra, C.Nagappan and R.Banumathi.

⁴¹   Krishnadas Rajagopal, Sabarimala: SC to hear arguments on reference plea, THE HINDU (Chennai), July 11,2016, at 10.

⁴²      PTI, Kerala Government Supports the Entry of Women into Sabarimala Temple, THE WIRE, Nov. 7, 2016, https://thewire.in/78450/sabrimala-women-entry-government-support/.

⁴³      Hon’ble Justices Dipak Misra, R. Banumathi and Ashok Bhushan.

⁴⁴      PTI, SC reserves order on referring Sabarimala temple entry row to constitution bench, THE TIMES OF INDIA, Feb. 21, 2017, https://timesofindia.indiatimes.com/india/sc-reserves
-order-on-referring-sabarimala-temple-entry-row-to-constitution-bench/articleshow/ 57252169.cms.

⁴⁵      TNN, 5-Judge Apex Court Bench to test validity of Sabarimala temple ban on women, THE TIMES OF INDIA (Chennai), Oct. 14, 2017, at 16.

⁴⁶      Writ Petition (C) No. 373 of 2006, decided on Oct. 13, 2017, 2017 SCC OnLine SC 1236.

⁴⁷      (2002 (3) KLT 615 (SC) = (2002) 8 SCC 106.

⁴⁸      Chief Justice D.H.Waghela and Justice M.S.Sonak.

⁴⁹   Section 4(1) of the Maharashtra Hindu Place of Worship (Entry Authorization) Act [1956: Bom. XXXI].

⁵⁰   Apoorva Mandhani, It is a woman’s Fundamental Right to enter temples and State’s’Duty to protect that right, LIVELAW.IN, April 2, 2016,http://www.livelaw.in/womans-fundamental-right-enter-temples-states-duty-protect-right-bombay-hc/

⁵¹   PTI, Women’s group attempt to enter Maharashtra Shani temple foiled, yet again,THE HINDU, April 2, 2016, http://www.thehindu.com/news/national/other-states/women-entering-shani-temple-trupti-desai-heads-to-shingnapur/article8426252.ece? ref=relatedNews.

⁵²   PTI, 400-year-old ban goes, THE HINDU (Chennai), April 9, 2016, at 16.

⁵³   Special Correspondent, Shani temple: Women’s group takes on Trupti, THE HINDU (Chennai), April 9, 2016, at 9.

⁵⁴    PTI, No entry for men too in temple core area, THE HINDU (Chennai), April 4, 2016, at 9.

Remembering Anna Chandy, J. –The Iron Lady Of Kerala Judiciary

(By Aparna Sanjay, III Year B.A., LLB. (Hons.),
National Law School of India University, Bangalore)

By the late 19^th and early 20^th century, the British had established control over large parts of the Indian Subcontinent. In the south, the Kingdom of Thiruvithamkoor (Travancore) became a princely State under the British Empire and continued to be ruled by the members of the Travancore Royal Family. Women outnumbered men in every taluk (in every religion) of the State as per the 1891 census of India¹.However, the society was entrenched with patriarchy and women were restricted to the domestic sphere and expected to live as slaves to the men of their households. It was unacceptable for a woman to enter the public sphere let alone pursue higher education and obtain employment. It was under such circumstances that Ms. Anna Chandy, a Syrian Christian woman, not only became the first woman lawyer of the region, but also an advocate of women’s rights challenging societal norms. She was the first woman Judge (at any court in India) and subsequently the first woman High Court Judge in India. She was also one of the earliest women representatives in any form of legislature – the Sree Mulam Popular Assembly. A champion of women’s rights, she strongly believed in educating women from all class, caste and religious backgrounds to empower them to lead an independent life devoid of male patronage. She faced massive opposition right from her college days, being the first woman law graduate from Travancore, and moreover being a mother while pursuing her degree. The same continued throughout her participation in the movement for women’s rights, the election to the Assembly, her elevation to the judiciary and subsequent membership of the Law Commission of India. However, she openly challenged some of the gender norms of the period and demanded equality of opportunity to bring women at par with men. The familial and social background of Mrs. Chandy had its impact on her views and actions as one of the earliest feminists from the region, a legislator, as a Judge of the High Court of Kerala and subsequently as a member of the Fifth Law Commission of India.

2. Anna Chandy was born on April 5, 1905² in a Syrian Christian family in Aleppey, in the princely State of Travancore. Her father Dr.M.J.Jacob was a well-known local allopathic doctor and her mother Sarah Jacob³, a primary school teacher. She also has a younger sister, Sarah Varkey. The family was very religious and had close ties to the church. Having lost her father at the age of five, the family sold off their property in their hometown and moved to Thiruvananthapuram, which according to her mother, would be a better place to enable the children to have a bright future. Her mother bought a piece of land (with a building on it) and built a small house next to it – the family lived in the house and survived by renting out the building and from her mother’s salary. According to Mrs. Anna Chandy, her mother’s disciplinarian nature and fierce independence influenced her greatly and shaped the kind of individual she went on to become⁴. Anna Chandy did her primary education at Maha Raja’s Girls High School and subsequently in Holy Angels Convent, Thiruvananthapuram⁵ and was trained in Carnatic music from a very young age⁶. She subsequently completed her intermediate classes at Maharaja’s Women’s College and secured a scholarship to study at Queen Mary’s College, Madras⁷. However, owing to her mother’s insistence, she gave up the same and joined Maharaja’s Arts College, Thiruvananthapuram for the History (Hons.)⁸ course instead. While pursuing her degree, in 1925, she married Mr.P. C.Chandy⁹, a Prosecuting Inspector in the Kerala Police, who at the time was a widower with a 7 year old daughter, Baby. Her friends, family and teachers discouraged her from marrying him. However, she decided to go ahead with the marriage. The following year, she gave birth¹⁰ to their son, Babu. Despite her hesitation, it was at her husband’s instance that she joined the Thiruvananthapuram Law College in 1927¹¹. A man who believed strongly that women must be educated to empower them and improve their standard of living, Mr. Chandy even got a job transfer effected from Kazhakoottam to Thiruvananthapuram to facilitate her studies. He also convinced a friend to permit his daughter to join the law college with Anna. Both women faced a lot of hostility and humiliation from their peers, an all-male community; especially Anna, who at the time was mother to a toddler. It was unheard of, a woman joining a professional course, let alone law which was a man’s domain – women were discouraged from working altogether, and if it all they were involved in employment, it was to be restricted to school teachers, social workers and other jobs that required their “womanly” traits of caring and serving. It was here, she faced her first opposition. Men around her were uncomfortable with her achievements and claimed that she did well owing to professor’s liking towards the female student and not because of her hard work and intelligence – a criticism that followed through even during her career as an advocate. Despite completing her law degree with flying colours as the first female law graduate from what constitutes present-day Kerala¹², entry into the legal profession was a very rough journey. Men all around the world were barring women’s entry and even courts (male Judges) placed obstacles before women by proclaiming that “women are generally unfit for the duties of the legal profession”¹³. Indian courts also interpreted the Legal Practitioner’s Act, 1879 to mean that women shall not be permitted to practice (as there are no traces in Hindu, Buddhist or Islamic law of women lawyers¹⁴). However, with the enactment of the Sex Disabilities Removal Act, 1919 and the Legal Practitioners (Women’s) Act, 1923, women’s entry into the legal sphere was achieved. She practiced before the Kottayam District Court for a year before shifting her practice to the High Court in 1930¹⁵.

3. Anna Chandy was appointed as a Munsif in Travancore from 1937¹⁶ (the first woman in India to achieve the feat)by the then Dewan Sir. C.P.Ramaswami Iyer and subsequently, in 1949, she was appointed as District and Sessions Judge of Mavelikkara¹⁷. After spending 22 years in the lower judiciary, she was elevated to the High Court of Kerala on February 9, 1959¹⁸. She held the post for a period of 8 years till April 5, 1967¹⁹. Owing to her prowess in criminal law, most matters heard and judgements delivered by her pertain to this area of law. The Division Bench consisting of her and Sri.Govinda Menon have often been appreciated for their in-tune and well-reasoned judgments²⁰.

4. Although after she was elevated to the judiciary, she was not as actively involved in women’s rights movements as she had been earlier, her ideology continues to be reflected in the judgments passed by her during her judgeship. She did not shy away from expressing dissent from her male counterparts who continued to bring their patronizing attitude towards women to the table. An example for the same is the matter of Pallasanna Haneefa v. State of Kerala²¹. Her brother Judge in the Bench that heard this matter was of the opinion that a woman who had been beaten up by her husband and also having a small child, would not, within two days of the incident get intimate with another man as she is not in such frame of mind. He was of the opinion that if at all such an event had occurred, the neighbour might have forced himself upon the poor, naïve woman who didn’t know any better. In my opinion, by doing so, the Judge has taken away the agency of the woman and has reduced her to merely an object that can be manipulated to the whims and fancies of the men around her. In fact, Justice Anna Chandy takes a similar view in this case. She writes that it cannot be said conclusively that the woman wouldn’t get involved with another man, or that she had no choice but to submit to him if he forced himself upon her and expresses disdain towards the portrayal of the woman as powerless. And as has been pointed out by Linda Gordon, just because women are less powerful as compared to their male counterparts that does not render them powerless²². By taking such a stand, Justice Anna Chandy in fact reads in agency of the woman in question. A point to be noted here is that she has delivered very few judgments during her tenure as a High Court judge. These instances have been the rare occasions wherein it was a Single Bench or when she had a dissenting opinion. In all other circumstances, wherein she has been accompanied by male members on the Bench, the judgments have been delivered by them – despite her prowess in both English and Malayalam languages.

5. Subsequent to her retiring from the Bench, she was a member of the Fifth Law Commission of India²³ under the Chairmanship of Retd. Chief Election Commissioner Sri. K.V.K Sundaram. The Commission functioned between 1968 and 1971 and presented six reports²⁴, all in matters relating to criminal law, particularly amendments to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1898. Some of the recommendations of the committee included raising the age of culpability from 7 years to 10 years and also decriminalizing attempt to commit suicide²⁵. However, it was with regards to the recommendations on abortion that she expressed dissent from the rest of her committee. While her earlier actions such as demanding equal opportunities for women and her emphasis on equality are reminiscent of liberal feminism, the stand taken by her on this regard is in stark contrast with the same (as the liberal feminists believe in the individual’s right to his/her body and therefore the right to choose an abortion). The entire committee, barring her, sought to amend Section 312 of the Indian Penal Code that criminalized causing miscarriage, in order to permit abortion of a foetus, less than 3 months old, by a registered medical practitioner with the consent of the mother²⁶. She did not agree to the same and was of the opinion that this would leave the provision open to a very loose interpretation making abortion a matter of convenience. She was in agreement with the report submitted in 1964 by the committee under the Chairmanship of Sri. Shantilal Shah²⁷, the then Minister of Health, Government of Maharashtra. The report sought to permit such abortion in the event that

a) Continuance of such pregnancy involves serious risk to life or health of the woman.

b) There is a substantial risk that such child may be born with physical or mental abnormalities.

c) The pregnancy is a result of rape, intercourse with girl under 16 years of age, or a mentally unstable woman.

She opined that these conditions were the maximum limit up to which norms on abortion could be liberalized within the framework of social and cultural values²⁸(which she does admit, changes with time). Abortion according to her could only be permitted if the above conditions were satisfied and the amendment suggested by the rest of the members on the Commission was unacceptable in the current societal set up²⁹. However, this takes away the woman’s agency and her right to choose. The reasons behind a woman wanting to carry out an abortion may be other social or economic reasons outside of what is listed above, and by restricting her so, the State would in fact be making the choice for her. Such a stance may be considered to be a result of her beliefs in (Syrian)Christianity and strong affiliation with the patriarchal Church that considered abortion a moral evil and co-operation in aborting a foetus, a grave offence³⁰.

6. Much has been written about the status of women in Travancore during the late 19^th and early 20^th century. Kalikutty Assatty, a woman activist who was instrumental in the setting up of the Vanitha Samajam wrote, “Women were slaves. They had no education, they could not walk on the roads, they were not supposed to look at their men’s faces nor speak with others. They were mere child-bearing machines.”³¹However, during Justice Anna Chandy’s formative years, the State had begun interfering in women’s education specifically. Between 1984-1900, the State abolished fees for girls in schools at all levels and a number of vernacular girls school were opened³². Fr.Kuriakose Elias Chavara, a well-known Syrian Catholic priest of the time, is also said to have encouraged a system of setting up schools along with every church so as to make education accessible to people of all classes³³ (the concept of ‘pallikkoodam’). Also, women in the Travancore State had begun to mobilise themselves. The structural changes in society and economy brought about by colonization and the rise of an educated middle class led to tensions within the existing social structures. This in turn led to the growth of a political consciousness, especially among women which was the result of the varied impact of colonization on various castes which determined the form of social reform movements that arose within them³⁴. Within the movements against the caste system, women began organizing themselves in attempts to establish their autonomy within the social and economic structures that have brought about their subordination. Conducting of inter-caste dining programmes by women activists in Alleppey was an example of one such attempt³⁵.

7. Simultaneously, questions about the rights of women and their autonomy and identity were discussed in the literature of time, including novels and poems by the well-known male intelligentsia in what constitutes the State of Kerala today. The novel ‘Indulekha’ by Chandu Menon (1889) portrayed the titular character as being an ‘enlightened’ woman whose education enabled her to exercise her agency and right to choice in marriage and sexuality³⁶. Notable author Kumaran Asan in his work Chintavishtayaya Sita (1919) embodied Sita as a symbol of women’s rights and not an epitome of passivity and living under the protection of her husband as she is usually portrayed³⁷.

8. By the 1930s, these movements had gained momentum. Various conferences were held across the State presided over and attended by women but it must be noted that the demands put forth in these conferences and the issues raised were well within the limits of patriarchy. Patriarchal norms and male authority were not challenged and women more or less did conform to the gender roles assigned to them. These women activists aimed to blur the public-private divide and justifying women’s participation in institutions such as schools and hospitals wherein their “womanly” qualities³⁸ could be put to use, thereby furthering the gender constructs of the feminine and the masculine. The justification given to promote employment for women was a rise in income in the family leading to a rise in standard of living. Further, her experience in worldly matters and development of individuality (which would be controlled by the man later), according to some, would make her a more desirable companion³⁹ which was again reinforcing her role of serving her husband and his needs. They argued that education was necessary to “improve the character and happiness of their domestic life”⁴⁰.Anna Chandy’s beliefs were in stark contrast to this. While presiding over the All Communities Conference, 1931 held at Aleppey, her call was for women to play a greater role in social activities and also a critique of the purdah system. She pleaded for education for all women so that they may take up employment and lead independent lives⁴¹. She also believed that women be given the same freedom and opportunities in all spheres just as men were⁴². An excellent example of her views is the speech rendered by her at a public meeting to discuss the Government’s decision to employ few women. She barged into the meeting while T.K Velu Pillai, a well-known intellectual in Travancore, and incidentally her professor at the law college, was speaking in support of the Government’s stand and delivered what later became her most well-known address. Her speech not only refuted the arguments posed by but is also testimony of the feminist ideals she stood for. She argued that a woman’s role is not restricted to the confines of her domestic life. She also questioned the bringing in of “Western” lady teachers – referring to white women being brought in – thereby taking away employment opportunities of the indigenous population while there existed a large number of women graduates in the region⁴³ who were restricted to the confines of the home following marriage. Unlike other women activists of the time, her concerns were not limited to any one religion, class or caste. This is evident from the following, an excerpt from her speech referred to above:

“Antarjanams, who are confined to the inner quarters...; Muslim sisters who suffer eternal hell in purdah...; brahmin girls trapped in wedlock at an age when one plays at mud-pie making; Christian women forever cursed by the harshness of dowry - all these are slaves who live in Keralam.”⁴⁴

She sought for the politicization of “women” as a category that has faced oppression (without disregarding the differences in experiences owing to context) and demanded greater representation of women in the legislature and other institutions as well as reservation in government employment⁴⁵.

9. By the 1930s, with a rise in the number of women attending colleges, there was notion that the educated middle class woman would be a threat to the existing social order. Further, educated women began to seek space in the public sphere and the same was looked down upon - periodicals such as Rasikan, Navarasan etc. played a huge role in propogating the same⁴⁶. If at all women were permitted in public, it was for social work (owing to its disciplinary nature). Gandhi’s emphasis on the power of the female owing to her virtues of selflessness and sacrifice had a great impact on the women in the Travancore and many of them, especially those involved in politics (such as Akkamma Cheriyan), began to move into Gandhian social work⁴⁷. It was in this period that Anna Chandy contested the elections for the Sree Mulam Popular Assembly in 1931. She faced a lot of backlash including a number of indecent posters being put up all over Travancore⁴⁸. The editorial of the Nazrani Deepika dated June 16, 1931 strongly criticized this move of hers and she drew vituperative reactions from the upper and middle class men⁴⁹. She lost the election but was however, made a nominated member of the Assembly from 1932-34⁵⁰. Her subsequent editorial in Shrimati, a magazine founded and edited by her⁵¹, pointing out the unfair practices during the same evoked an extremely misogynistic response from the popular Malayalarajyam daily⁵². A major reason for the unpopularity of the Shrimati magazine was that women writers were only lauded for the heightened emotional nature of their work which was not the case with her writing⁵³.

10. Anna Chandy is credited with creating the term “adukkalavadam” which translates as “kitchenism” to refer to how women were restricted to the private sphere⁵⁴. She was also dismissive of the popular argument of the time that women were “Empresses of the home” and the public sphere, particularly politics, was not their space⁵⁵ (Women in the political sphere were seen as lacking morals). This may be seen as a manner of cultural compensation⁵⁶, as suggested by Janaki Nair, for the oppression meted out to them and the term “Empress” suggests that the women held a large amount of power which was far from the truth.

11. Its heartening to note that India features on the global map as one of the earliest countries to have women in judicial services and this State to have the first woman Judge in the country. This article is a tribute to the first woman judge of this nation - a liberal feminist- the iron lady of Kerala Judiciary at this time when the Kerala High Court celebrates its Diamond Jubilee.

Foot note:

1 Census of India (1891) available at

https://web.archive.org/web/20060907163041/http://www.chaf.lib.latrobe.edu.au/dcd/pagephp?title=&action=previous& record=1037 (Last visited on May 8, 2017).

2Anna Chandy, Anna Chandyude Aathmakatha, 3 (1973).

3Anna Chandy, supra note 1, at 4.

4Anna Chandy, supra note 1, at 21.

5Anna Chandy, supra note 1, at 7.

6Anna Chandy, supra note 1, at 7.

7Anna Chandy, supra note 1, at 31.

8Anna Chandy, supra note 1, at 33.

9Anna Chandy, supra note 1, at 39.

10Anna Chandy, supra note 1, at 42.

11Anna Chandy, supra note 1, at 50.

12Anna Chandy, supra note 1, at 57.

13Bradwell v. State of Illinois, 83 US 130 (1873) (Supreme Court of the United States).

14Anna Chandy, supra note 1, at 61.

15 Anna Chandy, supra note 1, at 72.

16Anna Chandy, supra note 1, at 121.

17Anna Chandy, supra note 1, at 123.

18Anna Chandy, supra note 1, at 154.

19Anna Chandy, supra note 1, at 180.

20Anna Chandy, supra note 1, at 173.

21 Pallasanna Haneefa v. State of Kerala (High Court of Kerala).In the instant case, a woman had been stabbed to death by her husband as she had moved out of his house (owing to domestic violence) and shifted to a neighbour’s house. The defence however contended that the man was provoked because he saw his wife in a compromising position with the neighbour. Although the evidence was looked into in detail, a large part of the discussion focused on whether or not the woman in question would get physically intimate with another man given her circumstances.

22 Linda Gordon, What’s New in Women’s History?,A Reader in Feminist Knowledge 73, 76 (SnejaGunew ed., 1991).

23 Anna Chandy, supra note 1, at 180 (d).

24 http://www.lawcommissionofindia.nic.in/main.htm#a7 (Last visited on May 9, 2017).

25 42nd Report of the Law Commission of India, Indian Penal Code, 1860 (1971).

26 Id.

27 Law Commission of India, supranote 25.

28 Law Commission of India, supranote 25.

29 Anna Chandy, supra note 1, at 180(n).

30 http://www.vatican.va/archive/ENG0015/__P7Z.HTM#-2C6 (Last visited on May 10, 2017).

31 KalikuttyAsatty, MahilaSangam: Innu, Innale, Nale, Travancore Coir Factory Workers Union Golden Jubilee Souvenir 127, 129 (1972).

32 P.K  Michael   Tharakan,   Socio-Economic  Factors  in  Educational  Development: Case of   Nineteenth   Century Travancore,19(45) Economic and Political Weekly 1913, 1921 (November 10, 1984).

33 Id., at 1924.

34 MeeraVelayudhan, Caste, Class and Political Organisation of Women in Travancore, 19 (5/6) Social Scientist 61, 62 (1991).

35  Id., at 64.

36  MeeraVelayudhan, supra note 34.

37  MeeraVelayudhan, supra note 34.

38  J.Devika& Mini Sukumar, Making Space for Feminist Social Critique in Contemporary Kerala, 41(42) Economic and Political Weekly 4469, 4470 (October 21-27, 2006).

39  J.Devika & Binitha V. Thampi, Mobility Towards Work and Politics for Women in Kerala State, India: A View from the Histories of Gender and Space, 45(5) Modern Asian Studies 1147, 1154 (September, 2011).

40  MeeraVelayudhan, supra note 34, at 66.

41 Anna Chandy, On Women’s Liberation, Herself: Gender and Early Writings of Malayalee Women 113, 114(J. Devika ed., 2005).

42 Anna Chandy, supra note 1 at 101.

43 Anna Chandy, supra note 41, at114.

44 Anna Chandy, supra note 41, at 115.

45 Anna Chandy, supra note 41, at 123.

46 J.Devika&PraveenaKondoth, Sexual Violence and Predicament of Feminist Politics in Kerala, 36(33) Economic and Political Weekly 3170, 3177 (August 18, 2001).

47 J.Devika, supra note 39, at 1156.

48 Mini Sukumar, supra note 37, at 4471.

49 Mini Sukumar, supra note 37, at 4471.

50 Anna Chandy, supra note 1, at 109.

51 Anna Chandy, supra note 1, at 109.

52 Mini Sukumar, supra note 38, at 4475.

53 Mini Sukumar, supra note 38, at 4472.

54 Mini Sukumar, supra note 38, at 4473.

55 Mini Sukumar, supra note 38, at 4471. In 1951, the President of the Travancore-Cochin Congress Committee, KumbalathuSankuPillai, stated the same publicly, in response to questions about the huge gender gap in the Congress candidates’ list.

56 Janki Nair, On the Question of Agency in Indian Feminist Historiography, 6(1) Gender and History82,88 (1994).

Section 56 of N.I.Act 1881 (Indorsement) – Bane To Many ?

(By P.Rajan, Advocate, Thalassery)

Section 56 of the Negotiable Instruments Act speaks of indorsement (endorsement) to be made on negotiable instruments evidencing part payment relating to any debt created on the basis of an instrument as defined under the Act. The law prevalent in regard to Negotiable Instruments Act is more than a century old and the same is also promulgated during the British era and provisions stipulated in the Act are reproduced then as followed by several other nations. The section relevant i.e., S.56 doesn’t speak of, by whom the endorsement is to be made on the instrument. This anomaly remains unresolved despite the amendments made to the statute in 1989 also, by adding up Section 138 to 142, specifically meant for initiating prosecutions on returned cheques. By this amendment the intention of the law makers was to promote, acceptability of cheques for settlement of liabilities by making drawer liable for punishments in the event of return of cheques by the Banks for varying reasons – mainly due to insufficiency of Funds, some more amendments came in to effect to those provisions later on meant for prosecutions – delay condonation besides terms of punishments.

Our High Court in two judgements considered the scope and mode of indorsement and held that admission of part payment by the drawer of the cheque, should bear the indorsement as shown in the provision (2008 (4) KLT 509 - 2016 (1) KLT 390). After parting with a cheque by the debtor who makes payment of a portion of the cheque amount and the unwary payee who is compelled, rather tempted to receive the same, for the balance amount if prosecutes the other, due to his failure to discharge the liability, the prosecution under Section 138 of N.I. Act cannot be held maintainable as the twin judgements remain. It is not prudent to think that a person who is a creditor desirous of getting balance amount will undertake any endorsement to prove payments on request subsequently, even part payment without any proof may be a probable defence to scuttle the complaint before Court, even by advice basing on the current case law. Dormant are the provisions many, deserve radical changes.

The 2006 single Judges’ ruling just followed the earlier Division Bench judgement as precedent compels. The ambiguity could have been cleared if a larger bench considered the issue to achieve finality. The archaic law is being interpreted without uniformity even now by different High Courts. It is distressing to note that in the later ruling (2016 (1) KLT 390) the complainant honestly admitted at the earliest, acceptance of portion of the amount and the complaint was lodged only for the balance amount. Despite this plea the learned judge expressed the opinion of legal implediment following the Division Bench ruling and mandate of the age old provision. The Negotiable Instruments Act in its original characteristics was not meant for application of any provision regard to Criminal prosecution. For realizing money, only recourse was civil action basing on documents coming within the purview of the said act, but civil suits for realization of money when became futile exercise and some decrees after prolonged trial obtained became dead decrees on the plea of the debtor at  least rarely. To circumvent such instances, to award jail sentence also besides fine amount to the defaulter criminal cases can also be filed for early relief-evidently the changes to the Act. Our High Court has not considered the purport of the present law based on vital changes and a pragamatic approach should have been made while deciding the legal question, cardinal in nature. Even now High Court can answer and explain the legal implication of endorsement as several criminal appeals and revisions relating to cases under Section 138 of N.I.Act are pending before the Hon’ble High Court. Statute may remain static but case law deserves requisite changes as everything changes, everybody too- only the word change may remain changeless.

Litigation Management -Tools & Techniques -
Need for Implementation in Organisations...

(By Dr. P.Syamjith, Ph.D. in Law from Ambedkar Law University, Chennai)

In terms of Indian traditional ‘Vastu’, a sound building with structural integrity shall have a solid base and foundation. What is true in traditional vastu also rings true in managing litigation. In todays complex litigation environment, organisations face many challenges in litigation management. While functioning in todays competitive environment, organisations have vast legal needs: defending and pursuing claims, resolving contract disputes, representation at judicial forums. It is true that at times, organisations may feel tired and frustrated while dealing with litigation, but it is possible to manage the litigation to save time, money and energy.

Litigation Law is most closely identified with civil law or tort law and the bringing of lawsuits. Historically, litigation has been the more common method used for corporate entities and individuals to resolve legal disputes. This is more relevant in case of organisations where they have to resolve their legal disputes with the customers/associates and third parties through litigation. Now litigation law encompasses variety of suits under various subjects. The organisations in todays world handle variety of litigation issues ranging from consumer cases to Writ Petitions before the High Courts or Supreme Courts. As the society progress, more and more social legaislations are born with the hierarchy of various judifical forums and it is the bounden duty of the organisations to comply with such social security legaislations in toto.

Litigation Law - Definition

Litigation Law covers the process of bringing and pursuing a suit, and encompasses the entire procedures, which culmiates in passing of decrees or enforcement of decrees. A lawsuit is a case or controversy authorized by law, to be decided in a court of justice or judicial forum, brought by one person or entity against another person or entity for the purpose of enforcing a right guaranteed by law or redressing a grievance or an injustice.¹

Litigation Management

Management in all business and organizational activities is the act of getting people together to accomplish desired goals and objectives using available resources efficiently and effectively. Litigation Management means the application of management principles in litigation process to deliver better results by reducing the cost and delay involved in litigation. Litigation Management needs to be adopted in response to strong and persistent demand for reform of the litigation process to reduce cost and delay and also to enhance the efficiency. Now days, organizations like Private/Public Sector Organisations/Banks/FIs are involved in various types of litigations, to resolve their legal issues. Considering the volume of the litigation and the complicities involved in litigation, these organisations are engaging the attorneys/advocates to represent their cases and argue on their behalf. So in litigation management, the Management of particular organisation and its officials who are dealing with the litigation and the legal firms/solicitors/advocates who are holding their brief
are the main stakeholders. In nutshell, the concept and processes of litigation management in Organisations revolves around the Management and its officials and the legal counsels.

An effective litigation management is not only important for organizations but also become necessity for effective and efficient resolution of legal issues. Putting into perspective, the needs and requirements of organisations, now there is a growing need for a comprehensive litigation management policy. In order to facilitate the formation of concrete litigation management policy by organisations, some of the random thought on the subject is shared in this thought paper.

In fact, we can pen down the objectives of litigation management as follows:-

(a) Early resolution of disputes2

(b) Reduction of litigation time

(c) More effective use of available resources for managing litigation issues

(d) Establishment of uniform standards in litigation

(e) Monitoring of progress of litigation

(f) Development of information technology support

(g) Facilitating planning for the future needs of litigation

An effective litigation management and cost-and–delay-reduction programme should also incorporate the following inter-related principles including:-

(a) The differential treatment of cases according to their needs, complexity, duration and probable litigation process.

(b) Early involvement of officials in planning the progress of the case, controlling and scheduling of hearings, trials and other litigation events.

(c) Regular communication between the officials and legal fraternity during the litigation process.

Litigation management is a comprehensive system of management of time and events in a legal process as it proceeds through the justice system, from litigation to resolution. The two essential components of litigation management system are the setting of a time table for pre-determined events and monitoring of the progress of the litigation through its time-table. This involves taking interest in cases from a much earlier stage in the process and manage them through a series of milestones to check-posts. Most organizations have now acted upon this philosophy and introduced a variety of schemes, the common denominator of which is substantially increased supervision of litigation and in some instances, effective control over litigation. The essence of this is the adoption by organisations of a systematic, managerial approach to deal with litigation.

The cases dealt by a organization must have a differential treatment and resolution according to their needs, complexity, duration and probable litigation consequences. Accordingly, litigation issues pertaining to an organization can be generally classified into Human Resource Management, Contracts, Non Performing Accounts Recovery and Miscellaneous matters.

In order to achieve the early resolution of disputes and reduction of litigation time, the officials who are in charge of litigation affairs need to periodically monitor the progress of the litigation and ensure that schedules are being followed. In the meetings between the officials and the legal counsels, necessary modifications in the litigation plan may be discussed and got approved. The officials may call for interim reports between scheduled hearings of the case. Once having established a schedule of litigation plan, the officials and advocates may expect that schedules are being met and cases are not being dragged due to the dereliction and dilatory tactics of the opposite side or for any other reasons.

The regular communication between advocates and officials during the litigation process is very important for effective management of litigation issues. In order to have a smooth flow of communication between the officials and advocates, regular meeting session can be held and all pending issues can be discussed in detail in such meetings.

WHY LITIGATION MANAGEMENT IS IMPORTANT TO ORGANISATIONS ?

As regards Public Sector Organisations, major chunk of time and energy is spend in dealing with litigation related issues. A proper and planned litigation policy can save the most valuable resources of the organisations. The issues relating to Human Resources, Contract and Non Performing Assets (NPA) can be settled at alternative disputes resolution forums.

The resolution of the long pending cases through effective litigation management assumes much importance. In order to achieve effective litigation management, it is important to put in place comprehensive policies and procedures which will enable the organisations to manage their litigation issues in a more systematic and scientific manner. In order to effectively manage the litigation related issues, the organisations need to adopt multipronged strategy. The litigation management strategy of a organisation must consist of different tools. On a micro level, while dealing with the litigation management, the following tools which are discussed below may be adopted in an organisation.

(1) DATA BANK OF CASES

In order to control and supervise court cases, it is highly important to create a robust data bank of all court cases. It is important that all the details pertaining to the court cases must be incorporated in the data bank so that the same can be used effectively for follow up & better recovery. In order to build up the data bank, apart from collecting details of the cases from the case dealing officers at different verticals of the organisation, it is also advisable to source the details from the dealing advocates. In order to collect the details from the advocates, a monthly status report in the following format can be prepared and data may be collected:-

In order to effectively build up the data bank of court cases, latest techniques of information technology shall be used. The collection of the court details in the form of monthly status report is very effective & useful on the following two grounds:-

(a) The Business Units/Branch offices are able to understand the status of the court cases and take pro-active steps to defend the interest of the organisations.

(b) This will make the attorneys/advocates more alert and vigilant in dealing with the cases.

(c) It will remain as good record for the officials of Business Unit/Branches for close follow up and reporting to the higher authorities.

(2) EARLY IDENTIFICATION OF LEGAL ISSUES

The early identification of legal issues helps the organisations to plan the course of litigation well in advance and obtain favourable orders within reasonable period of time. The delay in taking legal action in eligible cases dilutes the prospects of getting favourable orders within reasonable period of time. As far the Bank’s are concerned, in today’s banking scenario, one of the challenges which the Banks are facing is non-availability of the borrowers/guarantors and non-traceability of the property details of the borrowers/guarantors which is happening mainly due to the delay in taking legal action. Further, a critical analysis of the pattern of recovery in secured advances also shows that delay in taking legal action results in alienation/disposal of the secured assets.

(3) WISE SELECTION OF ATTORNEY/ADVOCATE

The wise selection of attorney/advocate who suit to the needs and requirements of the organisation is an important aspect in litigation management. The attorney/advocate selection need to be approached systematically. It is advisable to to develop own panel of approved counsels. Introduction of new faces into the existing list of advocates will rejuvenate the litigation management system in an organisation. These steps will help in delivering a sound conlcusion by partnering with the right outside counsel.

(4) EFFECTIVE COST CONTROL

To help manage costs, it is advisable to have consensus with the attorney/advocate regarding the payment of fees and reduce the terms and conditions into the form of Memorandum of Understanding (MOU). Written guidelines will avoid misunderstanding. At the beginning of any case assignment, communicate in writing with the advocates regarding the cost-control aims of the organisation.

(5) SETTING STANDARDS OF SERVICE

Litigation management is more than just cost management. Litigation guidelines should cover not just billing issues, but also service standards such as the following:-

I. Frequency of status reports

II. Expected turnaround on specific requests

II. Turnaround time expected on returned phone calls, e-mail replies, etc.

IV. Accessibility at “odd” hours.

(6) ONE TO ONE MEETING WITH ATTORNEY/ADVOCATE

The advocates who have been empanelled or work with the organisations are playing a vital role in better litigation management. The attorneys/advocates can act as a catalyst for improving the litigation management techniques. In order to have effective follow up of the cases, constant inter-action with the advocates are very important. In all cases, where substantial question of law is involved, constant or regular meetings with the attorneys/advocates are very useful and effective. So as to accommodate meeting with senior advocates who are handling all high stake cases, a flexible schedule can be prepared and as per the convenience of the officials of Branch/Business Units, date and time can be finalized. In such meeting, the dealing advocate, dealing officer, Branch Head and Controlling Office officials shall attend. A large number of such one to one meeting can be conducted which will provide a platform to review the progress of the cases. Any other issues pending in between the officials of the Branch/Business Units and dealing advocates may also be discussed and resolved in such meeting. Minuets of such meeting must be drawn and recorded in the advocate meeting register.

(7) JOINT MEETING OF ADVOCATES AND OFFICIALS OF BUSINESS UNIT/BRANCH

A comprehensive meeting of the advocates and officials of Branch/Business Units on frequent intervals is also very important for smooth management of the litigation issues. In such meeting, all the pending issues relating to the payment of advocates fee,
co-ordination between the advocates and officials of Branch/Business Units can be discussed and resolved. It is advisable that such joint meeting between the advocates and branch officials can be conducted on quarterly basis. Minuets of such meeting must be drawn and recorded in the advocate meeting register.

(8) ALTERNATIVE DISPUTES RESOLUTION (ADR)

Alternative dispute resolution (ADR) was introduced to bring litigation to a conclusion through mediation or arbitration, thus avoiding lengthy and costly litigation. The organisation can make better use of alternative disputes resolution platform for resolving their legal issues. The forums like Lok Adalat shall play vital role in settling the issues amicably without incurring any expense or waster of time.

(9) LIMITATION

The doctrine of limitation is based on two legal maxims. The first legal maxim is
“vigilantibus non dormentibus jura subvenient”³ which means laws come to the assistance of the vigilant and not of the sleepy”. The second legal maxim is “interest reipublicae ut sit finis litum” ⁴ which means the interest of the State requires that there should be end to litigation. So, it is very important that suits/original applications need to be filed on behalf of the organisations within the period of limitation. If the suits/original applications are not filed within the period of limitation as prescribed under the provisions of the Limitation Act, organisations shall not be able to enforce its rights by filing case against the default persons/entities. So, it is of paramount importance that in all eligible cases, suits/original applications must be filed when the documents are in live. The non-filing of the case in eligible accounts will jeopardize the position of the organisations.

(10) EXECUTION OF DECREES OBTAINED IN FAVOUR OF ORGANISATIONS

As regards the Banking institutions are concerned, an area which requires much attention is the enforcement of decrees in favour of the Bank. In cases, wherever the Debt Recovery Certificate is issued in favour of the Bank, immediate action is required to be initiated for enforcement of such Debt Recovery Certificate by filing execution petition before the concerned Court/DRT’s or by filing affidavit, valuation report and encumbrance certificate before the Recovery Officer for initiating recovery proceedings.

CONCLUSION

In fact, the Litigation Management system has got many tools and can be innovated by every official who is dealing with the litigation issues of organisations. An endeavour has been made here to bring out and discuss some effective tools of litigation management. If litigation management is introduced by appropriate processes & procedures, it can surely become a very efficient tool for the proper and timely disposal of court cases filed for and against the organisations. In order to effectively and efficiently implement the tools of Litigation Management, there is a need for extensive training for the concerned officials. In several cases, the legal issues can be identified at an early stage and officials can act pro-actively in consultation with the attorneys/advocates and this in turn will minimize the time and expense. The effective use of Litigation Management will also enable the organizations to reap better results with the available resources.

Foot Note:

1. Manual for Litigation Management and Cost and Delay Reduction, Federal Judicial Centre, 1992,
   Wahington DC
2. Case Management and its advantages by Justice M.Jagannadha Rao.
3. Black’s Law Dictionary, 3^rd Edition by Bryan A. Garner.
4. Merriam-Webster’s Dictionary of Law 4by Merriam – Webster Inc.

Section 27 of the Arms Act, 1959 — A Critical Analysis in the Wake of
Jinu v. State of Kerala(2017 (4) KLT 895)

(By D. Pappachan, Former District Judge, Emakulam)

The knowledgeable article written bySri.Abdul Khader Kunju S.(2018 (1) KLT Journal page 21) made me to write these few lines. As elucidated in that article, the latest pronouncement of the Hon’ble High Court in Jinu’scase (2017 (4) KLT 895) holding that possession and brandishing of lethal weapon like sword in public is no offence under the Arms Act, 1959 is illogic and incomprehensible, besides being opposed to an earlier decision of the Hon’ble Court inAzzi v. State of Kerala(2013 (4) KLT 439).

In fact, in the background of the concurrent finding of the Trial Court and appellate court on facts leading to the alleged offence, the only legal question that came up for consideration of the Hon’ble High Court in Jinu’s case was whether possession and brandishing of sword in a public place, which is a non-notified area u/S.4 of the Arms Act 1959, will attract the offence u/S.27(1) of the said Act. After analysing the relevant provisions of the Arms Act 1959 and the Rules thereunder, the Hon’ble High Court held that so long as the place at which the miscreant was found using the lethal weapon is an area in respect of which a notification u/S.4 of the Arms Act regulating the use of such arms is not issued, brandishing of that weapon in public does not attract the offence u/S.27(1) of the Arms Act 1959. The relevant portion of the decision of the Hon’ble High Court in Jinu’scase (2017 (4) KLT 895) reads as follows:

Thus, on reading S.5 along with S.4 of the Arms Act it can be seen that S.5 will not be applicable in cases of arms coming under the purview of S.4 of the Arms Act for which licence is not required. As long as the area wherein the sword used is not a notified area, an offence under S.27 will not lie.

Here it is to be remembered that exactly on the same facts and circumstances the Hon’ble High Court in Azzi’scase (2013 (4) KLT 439) held that possession or use of a sword in a public place without licence attracts the offence u/S.27(1) of the Arms Act, 1959. Unfortunately, that decision is not seen to have been brought to the notice of the Hon’ble High Court while deciding Jinu’scase. Of course, in Azzi’scase there was no contention that sword is not a weapon coming u/S.2(1)(c) of the Arms Act. And going by the definition of arms in S. 2(l)(c) of the Arms Act vis-a-visRule 3 of the Arms Rules 1962, it was not at all possible to take a contention that swords or weapons with blades longer than 9” or wider than 2” do not require licence even in the absence of notification u/S. 4 of the Arms Act.

In this context referring to the definition of the word “prescribed” in S.2(g) of the Arms Act 1959, as pointed out by the learned author in the article referred to above, use of weapons of “prescribed” category in any area without a licence is an offence. Rule 3 of Arms Rules 1962 r/w Item V of Schedule 1 of the said Rules makes clear that swords with blades longer than 9” and wider than 2” are weapons of “prescribed” category. Use or possession of “prescribed” category of weapons as described in Schedule 1 of the Arms Rules 1962 in any area without holding a licence issued u/S.5(1) of the Arms Act 1959 is obviously in violation of said provision and is hence punishable u/S.27(1) of the Arms Act 1959.

Right now, I may refer to yet another decision of the Hon’ble High Court in Jithu v. State of Kerala(2014 (3) KLT 243), wherein it was held that acquisition or possession of arms is not an offence under the Arms Act 1959 in the absence of notification issued u/S.4 of the Arms Act. But it is to be remembered that in Jithu’s case the offence u/S.27(1) of the Arms Act did not come up for consideration. The only question which was considered in that case was whether acquisition or possession of weapon as defined u/S.2(1)(c) of the Arms Act attracts the offence u/S.25(1)(a) of the Arms Act or it is only an offence u/S. 25(1B)(b) of the Act. In that case the Hon’ble Court had no occasion to consider whether use or brandishing of a lethal weapon in public is in violation of S.5 of the Arms Act, thereby to attract the offence u/S.27(1) of the Act. Anyway, as the facts are clearly distinguishable, the decision in Jithu’s case (2014 (3) KLT 243) was not of much assistance in Jinu’scase (2017 (4) KLT 895).

As already stated, the decision in Jinu’s case (2017 (4) KLT 895) does not appear to lay down the correct legal position, apart from that the decision runs counter to the earlier decision of the very same Court in Azzi’s case (2013 (4) KLT 439). Above all, the decision in Jinu’s case (2017 (4) KLT 895) is likely to bring about a very anomalous situation that the law enforcing machinery in our State will be confused as to whether any action is possible against anti-social elements, who are out to hold people at ransom wielding lethal weapons like the swords in public. Therefore, agreeing with the learned author of the article referred to above I am of the considered view that the ratio of the decision of Hon’ble High Court in Jinu’s case (2017 (4) KLT 895) requires to be unsettled at the earliest in the interest of justice.