SUPREME COURT’S INTERPRETATION OF THE NOTION OF ‘EXISTENCE OF DISPUTE’ UNDER INDIAN INSOLVENCY AND BANKRUPTCY CODE, 2016 : A CRITIQUE

A Single Judge Bench of the Supreme Court of India in the case of Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd[1] , has given, what may be called as a purposive interpretation to the notion of ‘existence of dispute’ under S. 8(2) of the Insolvency and Bankruptcy Code, 2016 (in short ‘the Code’). This has effectively expanded the otherwise limited jurisdiction of the Adjudicating Authority to ascertain the existence of a dispute to a proportion which is totally unintended by the Legislature. Though this judgment is laudable in the light of the specific facts of the case, the long term impact of this judgment on the working of the Code is matter that requires further consideration. Without adverting to the facts of the case, the following two paragraphs gives you a glimpse into the question of law which arose in this case.

 Ss.8 & 9 of the Code deals with Corporate Insolvency Resolution Process (CIRP) at the instance of an operational creditors[2] . Upon sending of a demand notice by the operational creditor to the corporate debtor on occurrence of default, the latter has to bring to the notice of the former the proof either of the existence of dispute or the repayment of the unpaid operational debt within 10 days from the date of delivery of notice, failing which the former can initiate CIRP by filing an application before the Adjudicating Authority[3]. Bringing to the notice of the operational creditor the existence of a dispute is a sure ground to secure the rejection of the said application and thereby, halt the CIRP until either the rejection is reversed by the appellate authority or the dispute is resolved[4]. To proceed any further, it is imperative to bring to your attention the definition of the ‘dispute’ under the Code, which is crafted as follows : “dispute includes a suit or arbitration proceedings relating to (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warrant[5];”. Equally indispensable to this analysis is the wording of S. 8(2)(a)[6] , when understood literally points to the only acceptable and conclusive proof to be adduced to prove the existence of dispute, ie. the record of pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute (hereinafter referred to as ‘record of pendency’).

The interpretative conundrum lies the sense in which the word ‘and’ which appears before the aforementioned phrase and following the words “existence of dispute, if any” in S.8(2)(a) is to be interpreted. Analyzing this provision through the lens of literal interpretation makes two points crystal clear: (1) the legislature intends that the production of record of pendency of suit or arbitration proceedings in relation to the dispute is the only acceptable mode of bringing to the notice of the operational creditor the existence of dispute ; (2) the jurisdiction conferred on the Adjudicating Authority is limited to taking a decision as to whether to commence CIRP contingent on the production of the aforementioned record of pendency. But, the literal approach leads to an obvious anomalous situation where the corporate debtor would be effectively prevented from proving the existence of a dispute where the dispute arises few days prior to triggering of insolvency process in which case there will not be sufficient time to take the matter either to a conciliatory or adjudicatory authority. Same is the case where owing to existence of long limitation periods, the parties would not be keen to take the disputed matter immediately to a Court or Arbitrator. On the other hand, interpreting the word ‘and’ as meaning ‘or’, which is not unprecedented[7], would permit a disjunctive reading of conditions proceeding and following it, which as far this provision is concerned would permit the proving of existence of dispute otherwise (by other evidence) than by production of record of pendency . Even though this is not a case of the aforementioned anomalous situation, the Apex Court adopted what may be called as a purposive approach and interpreted the term ‘and’ as meaning ‘or’, or in other words, in disjunctive sense rather than conjunctive sense, thereby effectively expanding the jurisdiction of the Adjudicating Authority to look into the matter of existence of dispute by scrutiny of evidence other than record of pendency. The purpose of this comment is simply to make a note of caution about the unforeseen ramifications that this decision may hold on the future of CIRP under the Code.

At this juncture, it is imperative that the relevant facts of this case are mentioned as briefly possible. The appellant (Mobilox Innovations Pvt. Ltd.) was engaged by the Star TV for conducting tele-voting for the ‘Nach Baliye’ program. The appellant subcontracted the work to the respondent who provided the requisite services which included the setting up of toll free numbers for viewers to cast their votes, customization of a software for the coordination of results and provision of the same to the appellant. A Non Disclosure Agreement (in short ‘NDA’) was executed between the appellant and respondent whereby the respondent agreed not to disclose or publicize their association either with the appellant or the ‘Nach Baliye’ Program. More than a month after the execution of the NDA ie. on 30th January 2015, the appellant wrote to the respondent that they are withholding payments against invoices raised by the respondent as it had disclosed on their web page that they had worked for the Nach Baliye Program and thus, had breached the NDA. On 30th December 2016, which is almost two years after the said communication, the respondent sent a demand notice under S.8 of the Code against which the appellant replied that there exists serious and bonafide dispute between the parties including the breach of NDA and no amount was due as the NDA has been breached. The respondent filed CIRP application under S.9 before the Adjudicating Authority (NCLT) which dismissed the application on the ground that appellant has served a ‘notice of dispute’. Appeal by respondent before National Company Law Tribunal (NCLAT) led to the holding that demand notice does not raise a dispute under S. 5(6) or S. 8(2) and the defence raised by the respondent was vague, got-up and motivated. Against the NCLAT decision, appellant went in appeal before the Supreme Court which concluded that there exists dispute between the parties under S.8(2) of the Code.

The Legislative Intent

The Code was path breaking legislation brought about by the Parliament in the recent past with a view to overcome the inefficiencies and delays associated with the insolvency resolution of corporates, partnerships and individuals in the pre-existing regime. The avowed object behind the enactment of this code is to bring together the matter of insolvency of corporate persons, partnership firms and individuals under single unified legislation and to ensure the completion of reorganization and insolvency resolution of corporate persons in a time bound manner for maximizing the value of assets of such persons, to promote entrepreneurship, availability of credit whilst balancing the interests of all stake holders including creditors, debtors, employees and the government[8]. The Code has brought about a paradigm shift in the insolvency resolution regime in India. The final report of the Banking Law Reforms Committee, 2015 was the main impetus behind the enactment of the Code. It laconically describes a limited liability company as a contract between equity and debt, where the shareholders can exercise complete control of the company only for as long as the debt obligations are timely discharged and the creditors would have no say in how the business is run. But, when the default takes place, the control is supposed to transfer to the creditors whereupon the equity owners will lose their say. But, the Indian scenario has been one that which permits the promoters to remain in control even after the default. Weak recovery rights and remedies for recovery of debts has drained the confidence of the creditors and has made them averse to lend without security.[9] An observation in the same vein can be found in another decision by the same judge in the case of M/s Innoventive Industries Ltd. v. ICICI Bank[10], which emphasized this revolutionary change in the law of corporate insolvency by strenuously arguing that managements which are unable to pay their debts should not be allowed to stay in control. Though, Innoventive was a case concerning CIRP relating to financial debt, the shift in approach is evident from there. In short, delays and uncertainties in the pre-existing regime and disparity of power of creditors as against the debtors were the main reasons which crippled its working. To minimize this, an insolvency law should be transparent and predictable so as to enable potential lenders and creditors to understand how insolvency proceedings operate and assess the risk associated with their position as creditor in the event of insolvency [11]. Augmentation of the credit flow in this country and promotion of entrepreneurship and economic and infrastructural development ought be given preeminence, if the code is prove itself as a progressive step in the insolvency law of this country.

Changes to the in the definition of dispute during the legislative process

The Bill attached to the Bankruptcy Law Reforms Committee Report ,2015 had the word ‘means’ in place of the word ‘includes’ and the expression ‘suit or arbitration proceedings’ was immediately preceded word ‘bona fide’, which was omitted in the final bill. It is clear that the definition of ‘dispute’ is now an inclusive one. But, the definition of dispute should not be given a meaning which is not permitted by the context in which the word is used in the statute. S.8(2)(a) is clear as to the point that only means of proving the existence of a dispute is by producing a record of pendency in relation to the dispute. In the light of the said fact, the term ‘dispute’ could not be given a meaning so as to encompass disputes which are not yet in the course of being resolved. Hence, the meaning of the term ‘dispute’ should be read subject to the context in which it appears and inclusivity of the definition should be construed only as permitting the inclusion of those disputes of which tangible evidence can be adduced to prove the fact that it is in the process or course of being resolved.

Hitherto, this position was pro-creditor in nature because only means by way of which a debtor can secure the rejection of an insolvency application is by producing the record of the pendency. The form of a suit or arbitration proceeding is the minimum threshold required to stave off an insolvency application and is most beneficial to operational creditors as it offers guarantee to the them that the CIRP will commence most likely resulting in recovery if the debtor fails to bring to the notice of the Adjudicating Authority the existence of a pending dispute before the court or arbitrator. This would have definitely gone a long way towards the achievement of the object of infusing certainty into the insolvency resolution and debt recovery process, thereby promoting the credit flow in the country resulting from increased confidence the creditors would have about recovery of debt even in the absence of security. But, a mechanical approach such as that has its drawbacks as it could be used as a pressure tactic to force payments unreasonably by making threat of triggering CIRP as is alleged in this case. It is important to see to it that the Code is not misused. But, at the same time, it is equally important that the opportunity to dispute the debt is not misused so as either to delay or stall the process for ever. It is also imperative to look into the legislative intent behind the deletion of the word ‘bonafide’ in the final bill. The only plausible theory is that the legislature never intended to Adjudicating Authority to look into the genuineness of a dispute pending before another forum. Hence, the construction which permits the Adjudicating Authority to accept a lower threshold than the record of pendency to take a decision on initiation of insolvency process is inconsistent with apparent intention of the legislature

Impact of the Decision

This decision has expanded the otherwise limited jurisdiction of the adjudicating authority to look into the question of existence of dispute beyond the mechanical ascertainment of existence of dispute from the record of pendency. As per this judgment, all that the debtor has to do is to raise before the adjudicating authority a ‘plausible contention’ which requires further investigation and the adjudicating authority has to ascertain that it is not a patently feeble legal argument or a mere assertion unsupported by evidence. The extent to which the court can go into the merits of the dispute is limited to determining whether dispute truly exists in fact and is not spurious, hypothetical or illusory. It does not even require that dispute be one that is likely to succeed. It is is notably a watered down version of the test laid down in the Interim Report of the Bankruptcy Law Reforms Committee, 2015[12] , for determining whether a debt in question is bonafide disputed and found applied in the case of Madhusudhan Gordhandas & Co. v. Madhu Woolen Industries[13]. This yardstick is three pronged - (i) the defence of the company should be in good faith and one of substance; (ii) the defence is likely to succeed in point of law; and (iii) the company adduces prima facie proof of the facts on which the defence depends[14]. On the face of it, these two tests are different in terms of the extent to which the Adjudicating Authority is permitted to go into the merits of the matter. While the former is strictly limited to the extent of ascertaining the mere existence of dispute in fact, the latter permits the inquiry to go to the extent of ascertaining that dispute is one that is likely to succeed in point of law and is in is in good faith and one of substance. The former test affords no guidance as to the nature of evidence that is admissible and the possible conclusions that may be arrived therefrom. This has resulted in the formation of a cloud of uncertainty from the point of view of the operational creditors and has made this remedy one of questionable effectiveness in so far recovery of operational debts are concerned.

Conclusions and Suggestions

1.    The Code of 2016 is in the economic sphere. In very recent decision of the Calcutta High Court [15] rendered in February 2018, questioning the constitutional validity of the undue preference given to the financial creditors as against operational creditors under the scheme of the Code, the Court quoted with approval the observations of the Apex Court in two of its Division Bench Judgments[16] to buttress the point that decisions in the economic and social spheres are essentially adhoc, experimental, extremely complicated and therefore, warranting special treatment. The State must therefore be left with wide latitude in devising ways and means of fiscal or regulatory measures, and the court should not, unless compelled by statute or by the Constitution, encroach into this field, or invalidate such a law. The legislative intent in giving limited jurisdiction to Adjudicating Authority was obviously experimental in nature and the apparent purpose was to minimize the uncertainty in the process. The Hon’ble Apex Court should not have shown such undue haste in overturning the ostensible intention of the legislature on sole ground that there exists a possibility of abuse or anomaly.

2.    If the Code is to achieve its objectives, there are certain changes that has to take place in the conventional business practices and attitudes as such. A debtor who is availing operational debt should be aware of the law that if he fails to make timely and prompt payments, the operational creditor has in his hand an effective remedy under the Code to initiate the insolvency process to recover the defaulted amount. This knowledge would prompt debtor to take the dispute immediately after it has occurred to a resolution mechanism or at least take step towards its settlement or adjudication which can be proven beyond doubt on the basis of incontrovertible evidence. The position adopted by the Court in this Judgment coupled with the long limitation periods has done nothing short of giving confidence to the debtors that the they can still stall the insolvency process for as long as they could manage to keep the dispute unresolved and this is something that should not and will not happen from the part of a vigilant debtor.

3.    S.8(2)(a) of the Code ought to have been understood literally, meaning that the Court ought to have read the word ‘and’ in its cumulative sense requiring the fulfillment of all the conditions that it joins together. But, an interpretation such as that would lead to an anomalous situation in cases where there is insufficient time to make the matter assume the form of suit or arbitration proceeding. The Adjudicating Authority ought not have been vested with such elaborate and unguided discretion in taking a decision on the commencement of insolvency process. But, with a view to avoid injustice being caused to those who are effectively denied their right to take steps such as those would be required to prove the existence of dispute, the tribunal may enter into this inquiry only in such cases and that too, guided by the three prong test[17] laid down in the Interim Bankruptcy Law Reforms Committee Report and in the Madhusudhan case (supra). In short, the expanded jurisdiction of the Adjudicating Authority should have been limited and remained one which could only be used sparingly in exceptional circumstances such as those mentioned above. The right balance could only be struck where the Code can balance the interests of all participants without compromising on its effectiveness.

4.    As regarding the definition of the term ‘dispute’ under S.5(6) , the interpretation given by the NCLAT in the appeal by the respondent seems most appropriate [18]. The NCLAT held that the definition being an inclusive one cannot be limited to a pending proceeding or “lis”, within the limited ambit of suit or arbitration proceedings , the word ‘includes’ ought to be read as “means and includes” including proceedings initiated or pending before consumer court, tribunal, labour court or mediation, conciliation etc. If any action is taken by the Corporate Debtor under any act or law including while replying to a notice under S.80 of CPC, 1908 or to a notice issued under S.433 of the Companies Act or S.59 of the Sales of Good Act or regarding the quality of goods or service provided by the ‘operational creditor’ will come within the ambit of dispute, raise and pending within the meaning of S.5(6) read with S.8(2) of the Code.

5.    In the light of point 3, the following amendment is proposed which is to insert a proviso to s.8(2)(a) of the Code which goes like this : “Provided that the Adjudicating Authority may determine the existence of bonafide dispute in exceptional cases from other evidence as may be prescribed, where a corporate debtor is effectively deprived of his right to establish the existence of dispute due to no fault or ignorance on his part and in doing so, the court shall take into account three factors : (i) that the defence of the company (debtor) is in good faith and one of substance; (ii) the defence is likely to succeed in point of law; and (iii) the company adduces prima facie proof of the facts on which the defence depends.

Foot Note:

1. Civil Appeal No. 9405 of 2017 of the Supreme Court ( Decided on 21 September, 2017)
2. S. 5 (20) defines an ‘operational creditor’ to mean a person to whom an operational debt is owed and S. 5(21) defines an ‘operational creditor’ to mean a  claim in respect of the provision of goods or services including employment or a debt in respect of repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.
3. The Insolvency and Bankruptcy Code, 2016, Ss. 8(1) & (2).
4. The Insolvency and Bankruptcy Code, 2016, S. 9(5)(ii)(d).
5. The Insolvency and Bankruptcy Code, 2016, S. 5(6).
6. For convenience S.8(2)(a) is reproduced here : S.8(2) :“The corporate debtor shall within a period of  ten days….bring to the notice of the operational creditor- (a)existence of a dispute, if any and the record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute”
7. The Court referred to three decisions namely, Samee Khan v. Bindhu Khan, (1998) 7 SCC 59,  Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2008) 4 SCC 755, Maharishi Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P., (2013) 15 SCC 677  to buttress the point that it is a settled law that ‘and’ may be read as ‘or’ in order to further the object of the statute and/or to avoid an anomalous situation. 
8. The Preamble to the Code
9. Dr. T.K. Viswanathan, The report of the Bankruptcy Law Reforms Committee, November 2015, p.10, available at http://ibbi.gov.in/BLRCReportVol1_04112015.pdf (accessed on 1/2/2017)
10. Civil Appeals No. 8337-8338 of 2017 of the Supreme Court (decided on 31st August 2017)
11. “Legislative Guide on Insolvency Law of the United Nations Commission on International Trade Law”, available at https://www.uncitral.org/pdf/english/texts/insolven/05-80722_Ebook.pdf (accessed on 1/2/2018)
12. Dr.T.K. Viswanathan, Interim Report of The Bankruptcy Law Reform Committee, February 2015, available at http:// www.finmin.nic.in/sites/default/files/Interim_Report_BLRC_0.pdf (accessed on 1/2/2018)
13. AIR 1971 SC 2600;This was a case relating to an application filed for winding up of a company, inter alia, on the ground that the company was unable to pay its debts due to the appellants wherein the court observed that “the rules for winding up on a creditor’s petition are if there is a bonafide dispute about a debt and the defence is a substantial one, the Court would not order winding up. The defense of the  company should be in good faith and one of substance, if the defence is likely to succeed in point of law and the company adduced prima facie proof of the fcats on which the defence depends, no order of winding up would be made by the courts”
14. Supra note. 12 at p.25
15. W.P. No. 672 of 2017 of the Calcutta High Court (decided on 2nd February 2018)
16. Bhavesh D. Parish & Ors. v. Union of India, 2000 (5) S.C.C. 471 and  Government of Andhra Pradesh & Ors. v. P. Laxmi Devi, 2008 (4) S.C.C. 720
17. Supra Note.12
18. Kirusa Software Pvt. Ltd. v. Mobilox Innovations Pvt. Ltd., Company Appeal (AT) (Insolvency) 6 of 2017 (decided on 24th May 2017)
19. Ibid at Para. 35

Suit for Framing Scheme: Which Type of Interlocutory Application

can be Entertained after Passing the Decree?

(BY P. Krishna Kumar, Additional District Judge- I, Thiruvananthapuram)

When a civil court passes a decree, ordinarily it becomes functus officio. A decree conclusively determines the rights and liabilities of the parties in respect of matters in controversy. However, a practice is in vogue in many courts in Kerala that, persons interested in the subject matter of suit for framing a scheme for a public charity are being permitted to raise various types of disputes in such suits, wherein a decree framing a scheme has been passed. Such disputes are usually raised by filing interlocutory applications in the suit which might have been disposed of several years back. A suit under Section 92 of the Code of Civil Procedure (for short the ‘Code’) cannot be instituted to vindicate private rights of parties. Suits cannot be instituted without the leave of the court, if the relief sought for is one of the types mentioned in S.92(1)(a) to (h). But the dichotomy here is that, when such questions are raised in an interlocutory application, the said limitations are crossed over.

In some schemes framed by the court, there would be provisions enabling the court to entertain such applications. In many applications, the relief sought for are permanent in nature and having the effect of independent decrees, when granted. Several reliefs covered by S.92(1)(a) to (h) of the Code are sought for in such applications and courts are frequently passing orders thereunder. In some occasions, reliefs may not relate to any of the matters specified in S.92 and which are in the nature of subject matter of ordinary civil disputes. Usual justification for raising such application is that, once the court framed a scheme for a public trust, the court is its guardian and it has got exclusive jurisdiction to resolve any matter in controversy in respect of the trust. The resultant effect is that, merely because the court has framed a scheme, the charitable or religious trust, loses its insulation provided u/S.92 of the Code, from being subjected to harassment through ordinary civil litigations. Thus, election/appointment/removal of trustees, vesting of property in them, direction for accounts etc., (matters covered by S.92(1)(a),(b),(c) and (d) of the Code) are frequently being raised before the District Court or Subordinate Judge’s Court which passed a decree for framing a scheme. In effect, framing a scheme by the court makes it much easier to sue the public trust, as mere filing of an interlocutory application alone is necessary thereafter, to vex the trust. One may take assistance of O.39 R. 2 of the Code for filing post-decree applications in a disposed suit. But the said provision only enables the court to pass interim injunctions even when the Judgment is already pronounced.

A significant decision in this regard has come in Ray Sudhan v. Sajeendran   (2017 (1) KLT 371) wherein the Division Bench of the Hon’ble High Court of Kerala held that such subsequent applications are barred, if the relief sought for is any one of the types provided in Section 92(1)(a) to (h). His Lordship Anil K.Narendran J. declared the law in the said manner by a separate concurrent judgment. Unfortunately, the law reporters omitted to include this vital legal proposition in the head note. As a result, it seems that many members of the legal fraternity did not take notice of this important declaration of law. In this backdrop, certain historical aspects and legality of such practice can be considered in detail.

Making Provisions in the Scheme for its Modification – Permissibility

Is it permissible to incorporate a provision in the scheme framed by the court so as to enable the parties to approach the very same court by filing an interlocutory application for its subsequent modifications? This question was considered by the Full Bench of Madras High Court in Veeraraghavachariar v. Advocate General of Madras (AIR 1927 Mad.1073) and the court held that:

The first is “Where liberty to apply is reserved...to ask for directions as to carrying out the scheme . So far as this is concerned this may well be intra vires unless it contravenes the provisions of Section 92, Civil Procedure Code, for the assistance of the Court is asked merely to carry out what it has already ordered, and if such assistance can be given without contravening the provisions of Section 92, there can be no objection to such a rule being framed, but when permission is given to apply to the Court for alteration or modification of the scheme it appears to me that this at once offends against Section 92. The scheme having been framed, any modification or alteration of it is in effect a new scheme and the power to frame a scheme is given only subject to the conditions specified in Section 92. I will therefore answer the question put to us by one joint answer, namely, that the reservation by the Court to a person or persons to apply for a relief which will come within Section 92 of the Civil Procedure Code is ultra vires but that if such reservation does not offend in this way or against any other provision of law it may be useful or advisable for carrying out the provisions of the scheme already framed.

However, in Chandraprasad Ramaprasad v. Jinabharathi Narayan (AIR 1931 Bom.391), the Bombay High Court held that provision in the scheme which gives power to the court to alter or modify it is not ultra vires. This decision was followed by the Alahabad High Court in Swamirangacharya v. Gangaram (AIR 1936 All.1997) and the Calcutta High Court in Srijib Nyayatirtha v. Dandy Swami Jayannat Ashram (AIR 1941 Cal.618).

At last, the above said question was raised before the Hon’ble Supreme Court in Raje Anandarao v. Shamrao (AIR 1961 SC 1206). Overruling the finding of Madras High Court, the Hon’ble Supreme Court held that:

“So far as the scheme is concerned, S.92(1) provides for setting a scheme and if a suit is brought for this purpose it has to comply with the requirements of S.92(1); but where such a suit has been brought and a scheme has been settled, we see nothing in S.92(2) which would make it illegal for the court to provide a clause in the scheme itself for its future modification. All that that sub-section provides is that no suit claiming any of the reliefs specified in sub-s.(1) shall be instituted in respect of a trust as is therein referred to except in conformity with the provisions of that sub-section. This sub-section therefore does not bar an application for modification of a scheme in accordance with the provisions thereof, provided such a provision can be made in the scheme itself. Under sub-s.(1) the Court has the power to settle a scheme. That power to our mind appears to be comprehensive enough to permit the inclusion of a provision in the scheme itself which would make it alterable by the Court if and when found necessary in future to do so. A suit under S.92 certainly comes to an end when a decree is passed therein, including the settlement of a scheme for the administration of the trust. But there is nothing in the fact that the Court can settle a scheme under S.92(1) to prevent it from making the scheme elastic and provide for its modification in the scheme itself. That does not affect the finality of the decree; all that it provides is that where necessity arises a change may be made in the manner of administration by the modification of the scheme. We cannot agree that if the scheme is amended in pursuance of such a clause in the scheme it will amount to amending the decree.”             (emphasis added)

The logic in such a finding is that if a provision is included in the scheme permitting the court to make it elastic for providing modifications, it would not offend any of the provisions in S.92(1) of the Code as the modifications made in the scheme would not amount to amending the decree passed by the court. The Court observed that even when the scheme is altered the decree by which the court decides to frame scheme stands as it was, and all that happens is causing some changes in the scheme settled by the court.

Thus it is beyond the scope of any dispute that making a provision in the scheme to modify the same by the same court itself on a filing an application in the same suit is permissible and it will not offend S.92 of the Code. The Hon’ble High Court of Kerala in Elias v. Elias (1986 KLT 72) held that, even when there is no provision in the scheme which permits the court to modify it, the court has inherent power to modify the scheme settled by it. The said finding is also based on the very same principle that amendment of scheme framed by the court would not tantamount to a separate decree.

Applicability of Similar Rule in Other Matters

Even when a mechanism for altering or modifying a scheme is held to be valid, is it justifiable to make similar provisions for raising any type of questions by preferring an application in an already terminated suit, is the next question to be answered. It is relevant to note that the question considered by the Hon’ble Supreme Court in Raje Anandarao case was that ‘how far it is open to a court to amend a scheme once framed under S.92 of the Code, where a power to amend the scheme is reserved in the scheme itself’ (Paragraph 6). The Court obviously restricted the scope of its enquiry to the aspect of validity of incorporating a clause for amending the scheme by the very same court alone. The Court cautiously abstained from making any comment in respect of a wider question i.e., whether the court can make similar provisions enabling the parties to raise any type of disputes by filing an application in a closed suit. This is evident from the reservation made by the Hon’ble Court in paragraph 11: “We do not therefore propose to consider whether it would be open to appoint or remove trustees etc., on the ground of breach of trust without recourse to a suit under S.92. We shall confine ourselves only to the question whether in a case where there is provision in the scheme for its modification by an application to the Court, it is open to the Court to make modifications therein without the necessity of a suit under S.92.” The Court further observed in no uncertain words that “A suit under S.92 certainly comes to an end when a decree is passed therein, including the settlement of a scheme for the administration of the trust.”.

From the above said observations of the Hon’ble Supreme Court, it is clear that the Court permitted such a practice for the main reason that the decree in such type of suits would contain a direction for settling a scheme or finalising a scheme, but the body of the scheme is not strictly forming part of the decree and so its alteration is only incidental in nature so as to make the bye-laws of the public charity dynamic and suitable to face challenges arising due to the passage of time. Even when the view expressed by the Bombay High Court in Chandraprasad Ramaprasad case was upheld, the Apex Court carefully restricted its words so as to exclude its approval to another part of the decision taken by the Bombay High Court, declaring that there is nothing illegal in making provisions in the scheme so as to file an application for removing trustees etc. If such a provision is made in a scheme framed by the court, it is submitted that, it would defeat the very purpose of S.92 of the Code. When S.92(2) bars institution of suits claiming any of the reliefs specified in sub-section (1) of the said provision except in conformity with the provisions of that sub-section, if the scheme framed by the court provides an easier way to escape the rigour of the statutory provisions, it will be ultra vires of the powers of the court.

True, the bar provided u/S.92(2) is for institution of the suit and not for filing interlocutory applications. But the said provision cannot be interpreted in that fashion, since the intention of the legislature is to interdict the very institution of the suit itself except in conformity with the special procedure. When there is no suit, there is no question of filing interlocutory application, unless it is otherwise permissible. The court is not expected to get over the legislative mandate by making a provision in the scheme framed by it in such a way conferring jurisdiction to courts which is not intended by the statute. If that practice is allowed, it may also frustrate the elementary principle of finality of decrees and the same may negate the statutory right of appeal to the aggrieved person, as he could have otherwise challenged the out come of the application in a different forum and also in a comprehensive manner.

But, in some other decisions (Syed Khaja Gulam Rasool v. K.M.Bijili Sahib (AIR 1965 Mad.404) and Janardhana Mishra v. Janardhana Prasad (1996 (1) MLJ 588)) it was held that if the court appoints a life trustee or a manager for a considerable length of time for the trust, it is permissible for the court to provide a clause in the scheme to remove him in case he has become ineligible or incapacitated to continue. The rationale may be that, it would be extremely prejudicial to the interest of the trust if it is required to file a fresh suit after following the long drawn procedure for leave etc. when the life trustee has subsequently became incapable. In fact such power is just another facet of review jurisdiction of the civil court and the same does not offend the general principles referred above. It is relevant to note that one of the circumstances in which review powers can be exercised is subsequent ‘discovery of new and important matter’, which expression is wider enough to cover the above said requirement also within its fold.

Later, in Chairmman Madappa v. M.N. Mahanthadevaru (AIR 1966 SC 878), the Hon’ble Supreme Court followed the decision in Raje Anandarao case and held that if the scheme contains such a provision, the trusties or managers of public trusts are entitled to seek directions from the court which are deemed necessary for the administration of the trust by filing an application in such a suit. The Court further observed that though such reliefs can be sought for in a separate suit u/S.92 of the Code, there is nothing wrong in providing such a clause in the scheme for enabling the trustees or managers to seek the directions of the court in respect of the administration of the trust. But, here also the court specifically reserved its opinion as to the permissibility of seeking such directions by any third person. Further, the Court gave specific emphasis to the words employed in S.92 that ‘where the direction of the court is deemed necessary for the administration of any such trust”, which is obviously the second limb of S.92. It cannot be ignored that, when the trustees alone are permitted to seek directions of the court by filing applications in a disposed suit, it would not necessarily result in determination of substantial questions or contentious matters. It is also clarified by the Apex Court that there might be situations like divergent opinion between trustees as to the administration of the trust or disposal of trust properties and in such cases, it would be better in the interest of the trust to seek opinion of the court through such applications, without insisting presentation of a fresh suit. It is profitable to quote the relevant text of the Judgment:

“There may be other situations where it may be necessary to alienate trust property which might require Court’s sanction and that is why there is such a provision in Cl.(f) in S.92(1). But that clause in our opinion was not meant to limit in any way the power of trustees or managers to manage the trust property to the best advantage of the trust and in its interest, and if necessary, even to let, sell, mortgage or exchange such property. Further if Cl.(f) cannot be read to limit the powers of trustees or managers to manage the trust property in the interest of the trust and to deal with it in such manner as would be to the best advantage of the trust, there can be no bar to a provision being made in a scheme for directions by the Court in that behalf. If anything, such a provision would be in the interest of the trust, for the Court would not give directions to let, sell, mortgage or exchange the trust property or any part thereof unless it was clearly in the interest of the trust. Such a direction can certainly be sought by the trustees or managers or even by one manager out of two if they cannot agree, and there is nothing in Cl.(f) in our opinion which militates against the provision in the scheme for obtaining such direction. We may add that we say nothing about obtaining of such directions by persons other than managers or trustees, for this is not a case where the direction was sought by a persons other than a co-manager. Whether such a direction can be sought by persons other than trustees or managers or one of two managers as provided in paragraphs (11) and (12) of the scheme is a matter which does not arise for consideration in the present case and we express no opinion thereon. We are dealing with a case where the prayer is made by one trustee and the order passed thereon relates to matters which are incidental to acts of management of the trust property and we have no doubt that Cl.(f) in S.92 (1) cannot be read in such a way as to hamper the ordinary administration of trust properties by trustees or managers thereof; and if that is so, there can be no invalidity in a provision in the scheme which directs the trustees or managers or, even one out of two co-managers when they cannot agree to obtain directions of the Court with respect to the disposal or alienation of the property belonging to the trust. We are, therefore, of opinion that Cl.(f) does not apply to the circumstances of this case and no suit under S.92 was necessary in consequence.”           (emphasis supplied)

Therefore, it is evident from both the decisions of the Apex Court (both decisions are rendered by his Lordship Wanchoo J, for the bench) that the court deviated from the usual concept of finality of decrees only in two specified eventualities and in both the decisions the Supreme Court very cautiously limited the applicability of its decisions to matters raised before it, seemingly for not extending the said rule even to analogous situations.

Inherent Power of Civil Court and Parens Patriae jurisdiction as the protector of charities In English law, Chancery Courts exercised inherent jurisdiction to supervise the administration of charitable trusts, and it was recognised as the duty of the court to intervene in its administration, whenever situation required. Originally this power was vested with the Crown. When the State exercised its judicial function through courts, this power has eventually percolated to law courts, the judicial wing of the State, and thus it has become the guardian of all deities or charities, whether or not legislatively empowered.

After referring to Tudor on Charities (VII Edition) page 294, Snell’s Principles of Equity (XXVIII Edition) pages 210, 211 and 170, Hindu Law of Religious and Charitable Trusts by Justice Mr.B.K. Mukherjea (IV Edition) pages 452, 455 and 456 and 460 and Law of Hindu Religious and Charitable Endowments, V.K. Varadachari (III Edition), Chapter XIII Enforcement of Trustees, pages 471 to 474, the Hon’ble High Court of Kerala has succinctly held as follows:

“We are of the view that apart from the remedy available under S.92 of the Code of Civil Procedure and the initiation of proceedings under Art.226 of the Constitution of India, the Civil Courts have got ‘inherent power’ to initiate action, probe into the matter and set right the abuses by a remedial action in the case of charitable and religious trusts or deities as guardian of such juridical entities. This is a ‘reserve power’ vested in Courts to protect the interests of persons, who, by themselves, cannot initiate proceedings and safeguard their interests. We are inclined to take such a view. But so far as this case is concerned, it is unnecessary to call in aid such power since this Court has already initiated this action under Art.226 of the Constitution of India.”

However, in the said case, the Court was not considering the question posed herein and the above said opinion of the court was made in a different context. But in a given case, the civil court may exercise its inherent power to remedy any abuse or misapplication of charitable fund, even on an application filed in a suit disposed of whether or not there is an enabling provision in the scheme or even if the suit was not for framing scheme. Nevertheless, no one can file such an application as of right, as it is the prerogative of the court alone to invoke its parens patriae powers and that too only in exceptional circumstances. Further, the court may exercise such powers suo motu or in the course of any other suit. In principle, it may be used even where there is no suit or a leave petition. Thus, existence of this power is not a justification for incorporating such a clause in the scheme, ignoring the bar u/S.92(2) of the Code, as inherent powers of the court cannot be exercised inconsistent to the specific provisions of the statute.

Principles Emerging from Madras View and Bombay View - and the Consequences

Even though the decision of the Full Bench of Madras High Court is overruled by the Apex Court so far as the finding on modification of scheme through court, the resounding words of his Lordship Wallace J. in Abdul Hakim Baig v. Burramiddin (ILR (1925) Mad.580), which was followed in the Full Bench decision, do not completely lose its significance:

“The principle underlying Section 92, I take it, is that no trustee shall be removed or new trustees appointed, or any other reliefs of the nature specified therein granted except by way of a suit filed under the sanction of the Advocate-General, so that trustees may be afforded some protection against frivolous and vexatious attempts to remove them, I do not think the legislature intended this principle to be any the less applicable when a scheme for the administration of a public trust has once been framed, or intended to countenance any procedure by which, when once a scheme has been framed, Section 92 will no longer have any application to the trust and that in future if a scheme has been framed the interesting game of attacking, harassing and removing trustees may go on merely on an application under the scheme without any guarantee, such as the necessity of obtaining the sanction of the Advocate-General affords, that the proceedings are either in the interests of the public or in the interests of the institution.…. The difficulty of holding any other view is enhanced when I consider what remedy a trustee removed under such a removal clause in such a scheme has. If he had been removed by a suit under Section 92 he has the right of appeal but if he is removed under a clause in the scheme it is very doubtful if he has any right of appeal, even though the scheme confers it.”

One of the main reasons which led the Hon’ble High Court of Bombay to dissent from the view expressed by the Full Bench of the Madras High Court is that the Privy Council had approved similar schemes earlier. Even when it was agreed by the bench that the question of the validity of those clauses was not raised before the Privy Council, the court placed much reliance on that view. The said approach, it is submitted, is against the doctrine of sub silentio. Another reason for disagreement was expressed in the following words:

“Where a scheme is once settled it precludes a suit to establish a private right to manage the property which if established would interfere with the scheme settled by the Court, and the proper remedy in such cases would be by an application under the leave to apply reserved under the scheme. ….Unless liberty is reserved, a second suit may probably be barred by the principle of res judicata under Section 11, Explanations IV and VI.”

This reason also does not appear to be sound and is not at all sufficient to include a clause in the scheme for enabling the court to remove or select a new trustee, since such a question need not and cannot be the matter directly or substantially in issue in the suit for framing scheme. Whatever it may be, if such a decision is hit by res judicata, the court cannot bypass its operation by making some provisions in the scheme. If the legislature actually intended to place the decree for framing scheme in a different stratum, it would have provided so expressly. The definition of ‘decree’ takes in both ordinary decree and decree passed in a suit u/S.92 of the Code and hence the court which passed such decree must also generally become functus officio, after ‘conclusively determining the rights of the parties’. The argument which proposes that, unless it is permissible to incorporate such wider provisions in the scheme, it would be very difficult to raise matters relating to public charities through the cumbersome procedure of suits, presupposes judicial primacy over the legislative dictate.

Ray Sudhan v. Sajeendran (2017 (1) KLT 371) - the Insulation to Public Charities Reaffirmed

In the separate concurring Judgment (Paragraph 40), after discussing the ratio of Raje Anandrao case (supra), Madappa case (supra) and most of the above said issues, his Lordship Anil K.Narendran J. held that, if the nature of relief sought for in a post decree application is one set out in clauses (a) to (h) of sub-section (1) of Section 92 of the Code on the allegation of breach of trust, mal-administration etc., it is barred by sub-section (2) of Section 92 and such relief can be sought for only in a separate suit filed under Section 92.

But the court reiterated that Section 92(2) of the Code does not bar an application for modification of the scheme framed by the court, and that there would be no invalidity in making a provision in the scheme for permitting the trustees to obtain directions from the court as to administration of trust properties. When the law is declared so explicitly, the practice of raising all the subsequent disputes in a suit which has already been disposed of cannot be entertained any more.

Conclusions

a)  As held by his Lordship Anil K. Narendran J. in Ray Sudhan (supra), when a suit for framing a scheme has been disposed of no subsequent application seeking a relief of the nature set out in clauses (a) to (h) of sub-section (1) of Section 92 of the Code can be entertained by the court.

b) But in view of the decision of the Hon’ble Supreme Court in Raje Anandarao, making a provision in the scheme for its modification through an application in the same suit on supervening considerations, is valid. Order in such application may not amount to modification of the decree and even otherwise, it comes within the scope of review powers. If the court appoints trustees by its decree, then also it is permissible to invoke its jurisdiction again by filing applications. Making provisions to undo the vice, if any, of the order passed by the court is well with in the limit of its review powers. In both cases, the powers of the court may be exercised, whether or not such provisions are in the scheme. Application for merely carrying into effect the provisions of the scheme can also be entertained, as it is of the nature of enforcement of the directions of the court.

c)  Provisions can also be incorporated in the scheme for permitting trustees to seek directions of the court for the administration of the trust in view of the findings in Chairman Madappa, but such right cannot be conferred to third parties. Likewise, this principle cannot be extended to contentious matters or instances which would take away the rights of parties, including right of appeal.

d)  Except for the above exercises and subject to the exceptions well known to law, the court becomes functus officio once it passes a decree, irrespective of the fact that it is for framing a scheme. The immunity given to public charities shall not be pierced, except in the manner provided in the Code. Inherent powers of civil court as guardian of charities shall also be used only consistent with specific statutory objectives. Any other interpretation would militate against Ss.2(2) and 92(2) of the Code.

Voiceless Voice Test

(By Girish Panju M.S., Deputy Director of Prosecution, Kottayam)

Amendment Act 25 of 2005 Cr.P.C. has made some revolutionary changes in the fieldof investigation of criminal cases. Section authorizes the police officer not below the rank of a Sub Inspector to request a medical practitioner to conduct various examinations including, examination of blood, blood stain, semen swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings including DNA Profiling and such other tests of an accused which the doctor thinks necessary (See Section 53 Cr.P.C.). Section 53A Cr.P.C. was incorporated for the examination of persons accused of rape. These changes were incorporated for the purpose of collecting evidence as to the commission of offence during investigation. Besides the radical changes in Section 53 and the incorporation of Section 53A another milestone in the field of investigation by way of amendment is the introduction of Section 311A. Section 311A authorize the magistrate to direct a person including an accused to give specimen signature or handwriting for the purpose of investigation or any proceedings under the Code.

Interestingly neither Sections 53, 53A nor 311A deals with the taking of voice sample during the course of investigation, which was a long pending matter and still under the consideration of our Apex Court. In Ritesh Sinha v. State of U.P. reported in 2013 (1) KLT SN 1(C.No.1) SC, our Hon’ble Supreme Court consisting of two Judges bench has got occasion to consider the constitutional validity of taking voice sample of accused. Unfortunately the two Judges delivered two divergent observations and hence the Hon’ble Supreme Court decided to constitute a larger bench to consider the validity of taking voice sample of an accused.

Once our legal fraternity was under the impression that furnishing any information or evidence by the accused amounts to self incrimination and is violative of the rights guaranteed to the accused under Article 20(3) of our Constitution. Article 20(3) simply says that no person accused of any offence shall be compelled to be a witness against himself. In various judgments of our constitutional courts it was repeatedly held that the protection even to the accused commences as soon as a formal accusation is made, whether before or during prosecution. It follows that the lodging of a F.I.R., the filing of a complaint in court or the issuance of a show-cause notice under a special criminal statute will bring Article 20(3)into force.

But it is also settled by various courts that immunity under Article 20(3) does not extend to compulsory production of material objects or compulsion to give specimen writing, specimen signature, finger impression or compulsory exhibition of body or giving of blood specimens. In State of Bombay v. Kathikalureported in 1961 KLT 74 (SC), AIR 1961 SC 1808our Hon’ble Apex Court took the view that compulsion regarding the documents is prohibited only if the documents convey the personal knowledge of the accused relating to the charge. In C.Sampath Kumar v. Enforcement Officer Madras(AIR 1998 SC 16) a different matter in issue was considered by the Hon’ble Supreme Court that whether the statement of a person who is summoned and examined u/S.40 of the Foreign Exchange Regulation Act amounts to self incrimination and the Apex Court held that such a statement cannot be discarded on the ground of infringement of the protection guaranteed under Article 20(3). In A.A Mulla v. State of Maharashtrareported in AIR 1997 SC 1441 the court took the view that when no penalty is prescribed for the contravention in question the right under Article 20(3) does not apply. It is also significant to note that the protection against compulsion “to be a witness” is confined to a person “accused of any offence” and it is not applicable to a witness. But Sections 132 and 148 of the Indian Evidence Act confers protection against self incrimination to witnesses in civil and criminal courts. In R.Dinesh Kumar v. State Rep. Inspector of Policereported in 2015 Cr.L.J. 2362 Madras High Court took the view that Section 132 deserves most liberal construction and no prosecution can be launched against the maker of the statement on the basis of the answers given by a person while deposing as witness before court. Again the polygraph test and brain finger printing tests where subjected to the consideration of our constitutional court inSelvi v. State of Karnataka reported in AIR 2010 SC 1974 and took the view that those are testimonial compulsions and the bar under Article 20(3) will apply. At the same time it is repeatedly held by our Hon’ble Apex Court that taking specimen finger prints and handwritings from the accused is constitutionally valid and not hit by Article 20(3). See State through SPE and C.B.I. A.P. v. M.Krishnamohanreported in 2008 (4) KLT Suppl.722 (SC) = AIR 2008 SC 368.

Ritesh Sinha v. State of U.P. was decided by two Judges bench consisting of Justice Ranjana P.Desai and Justice Aftab Alam. Both of them delivered two separate judgments. The view taken by Justice Ranjana P.Desai is that direction to give voice sample is not violative of Article 20(3). According to her voice sample is like finger print impression, signature or specimen handwriting of an accused. Hon’ble Justice further added that giving of voice sample cannot be included in the expression “to be a witness” because by giving voice sample accused does not convey any information based upon his personal knowledge which will incriminate him. Hon’ble Justice further added that giving of voice sample is merely giving of an identification data to the investigating agency and he is not subjected to any testimonial compulsion. It is nothing but a physical characteristic of the accused. Hon’ble Judge further observed that voice sample can be included in the inclusive definition of the term “measurments” appearing in Section 2(a) of the Identification of Prisoners Act 1920. But Hon’ble Justice Aftab Alam has expressed his dissenting view that it is impossible to extend the provisions of the Identification of the Prisoners Act to that extend. Since no fruitful purpose was served it is decided to place the issue before a larger bench and the decision of the larger bench is awaited since 2012 December. So far till 2018 no decision was rendered by the Hon’ble Apex Court in this aspect.

At the same time our High Court has got benevolent opportunities to decide on the constitutional validity of taking voice sample. A single learned Judge of our Hon’ble High Court in Prathap v. C.B.I. reported in 2017 (3) KLT 458 took the view that if the accused in a criminal case can be directed to provide his hand writing or signature for comparison what is the bar in taking voice sample. The very same principle as that of taking hand writing can be adopted in taking voice sample also. To arrive at that conclusion Hon’ble single Judge has relied upon the dictum laid down by our Hon’ble Apex Court in State of Bombay v. Kathi Kalu Oghandi(1961 KLT 74 (SC)) in which our Hon’ble Apex Court has elaborately discussed the concept of testimonial compulsion. The observation of the Apex Court is that to attract the barriers of testimonial compulsion there should be a direction to the accused to do anything or to make any statement indicating his complicity in an offence, in any manner. The direction to provide voice sample of the accused will not in any way amount to testimonial compulsion because the direction is not to give any statement touching the offence or concerning his role or complicity in the offence. A mere direction to provide specimen voice sample is equal to that of providing hand writing, specimen thumb impression, or impression of foot or palm or finger, Hon’ble Supreme Court further held that if there is a positive direction to the accused to make some statements or to do something against his will or without his consent touching the allegation in the case, certaintly it will amount to testimonial compulsion. In Prathap’scase our Hon’ble High Court observed that the spirit of Section 311A Cr.P.C authorizing collection of specimen hand writing and signature can very well be applied in the case of voice sample also. The High Court further clarified that even though there is no specific provision in any law to authorize a particular course of action to take voice sample, the trial court can use its inherent or ancillary powers to do justice. The above mentioned Prathap’scase was decided by a single Judge of our Hon’ble High Court on 7th July 2017.

Again a similar matter was decided by two learned Judges of our Hon’ble High Court in Roopesh v. Union of Indiareported in 2018(1) KLT 23 in which our Hon’ble High Court took a complete different view that neither Section 311A of Cr.P.C. nor Section 5 of Identification of Prisoners Act can be invoked to confer powers on the Magistrate to direct the voice sample of the accused. The finding in Prathap’scase was vehemently attacked and the Division Bench consisting of two learned Judges clarified that a magistrate does not have any inherent powers and it is available to the High Court u/S.482 Cr.P.C. The Division Bench further held that since no statute confers an express power to direct the accused to provide his specimen voice sample it cannot be allowed by the Magistrate in any implied manners. The Division Bench further declared the judgement in Prathap v. C.B.I.is not good law. The Division Bench also expressed the view that the decision is subject to the verdict of the apex court yet to be pronounced. Again the entire legal community is awaiting the decision of the Hon’ble Supreme Court.

Tail piece

A buffalo was running like mad

Elephant asked “Why are you running”?

Buffalo: - They are arresting all cows

Elephant: - But you are not a cow!!

Buffalo: - Dear it will take minimum 20 years to prove that in an Indian Court

The Elephant also started running.

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).