Death of Mother-in-Law in Kerala Act 17/16

(By K.R. Giri Iyer, Advocate, Ottapalam)

 

The Kerala Legislative Assembly has passed a drastic amendment to The Hindu Succession Act,1956 which is a central enactment.

 

Since succession is in the concurrent list as per Art.246 Seventh Schedule of Indian Constitution States can make amendments to the Central Act with the assent of the Honourable President of India which is also obtained on 21st October 2016 and Published in the Kerala Gazette dated 10.11.2016.

 

Now as it stands when a son dies before his mother, she will become a sharer along with wife and children of the deceased as per Class I of the Hindu Succession Act.

 

Subsequently when mother dies the undivided share over the properties she obtained due to the death of her son before amendment as per Section 15 (a) devolved upon her children (including the children of any predeceased son or daughter) and the husband. Present amendment incorporates “15(2) (c) any property inherited by a female Hindu from her predeceased son shall devolve, not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the predeceased son from whom she inherited the property”.

 

By the present amendment after the death of Mother-in-Law her husband i.e., father-in-law and other children who are alive or other children predeceased is excluded.

 

Now the following questions is mooted.

1. Whether the present amendment is prospective or retrospective?

2. Whether the mother-in-law can bequeath, assign, gift or mortgage her undivided share?

 

The first question is answered as per the dictum laid down in AIR 1994 SC 2623 Hithendra Vishnu Thakur v. State of Maharashtra Para 12 it is held that amendment of Substantive Law is prospective in Nature and hence the present amendment will apply only prospectively.

 

Regarding second question since as per S.30 of Hindu Succession Act right to execute will is available and there is no bar for executing any sort of conveyance which will nullify the effect of amendment. Hence during her life time she can bequeath, assign gift or mortgage.

 

The State of Kerala trendsetter in legislations in personal laws like Joint Family Abolition Act and the present amendment should have avoided such loopholes.

 

Death of mother-in-law can after the date of amendment only will curtail the havoc of claim by the others where as this may cause some confusion, coercion or cajoling during her life time to get some sort of documents from her.

A Lawyer Makes An Insightful Judge!

(By Simi John, Assistant Professor, Bharata Mata School of Legal Studies, Aluva)

 

The legal profession has become an area of interest for many students now. The earlier craving for other professional courses like engineering and medicine have subsided a little bit and young brilliant minds have developed a taste to try for a career in law. This is mainly because of the numerous opportunities the legal profession offers, be it in the judiciary, corporate sector, research field, teaching or advocacy. The direct recruitment as a judicial officer in the lower judiciary as soon as one completes his graduation in law has indeed invited the interest of a lot of students. This has become one major reason for choosing a career in law because as soon as the course is completed, hard working students can secure a safe future and a position of high respect by clearing the Munsiff-Magistrate Tests. In this context, my concern is regarding the qualifications prescribed for appearing in the above said examination.

 

A candidate applying for the Munsiff-Magistrate Test in Kerala should possess the following qualifications:

1.  He/she shall be a citizen of India.

2.  He/she shall be holder of a law degree recognized by the Bar Council of India for the purpose of enrolment as an advocate.

3.  He/she shall not have completed 35 years of age.

4.  He/she shall be of good character.

5.  He/she shall be of sound health with no bodily infirmities which render him/her unfit for appointment.

The qualifications are silent about the need to have any bar experience for becoming a judicial officer. The focus of this article is on the need of practice as an advocate for a candidate to be qualified to become a judicial officer in the lower judiciary.

 

A judicial officer is one who is vested with a lot of powers including discretionary powers and responsibilities. He should be sagacious, hard working, courageous and should be capable of exercising his discretion wisely. He should possess virtues like punctuality, patience, prudence, compassion and honesty. A judge essentially needs to be a good listener and someone who understands the inarticulate emotions of others. A judicial mind and good judgment and familiarity with the court procedures also are called for. Profound knowledge in law and related subjects essentially is the determining factor but mere securing of a law degree and an assessment of the candidate’s theoretical knowledge on law subjects will not be a sufficient yardstick for deciding whether he/she is capable of being a judicial officer.

 

Agreed that the LL.B. curriculum is so extensive and invariably covers all the law papers (now integrated courses cover even more!) and as part of clinical legal education, activities like court visit, chamber work, drafting, moot courts and even internships are incorporated. But in most of the colleges in Kerala, these are not taken seriously by the students. Court visits for a few days in various courts will never enable a law student to comprehend what is going on there. Most of the time, law students have to stand in crowded court rooms not even able to hear what is being communicated between the judge and the lawyers. I myself remember our court visit days where in some lower courts we could only hear the roll call and nothing else. Even in chamber work and internships in a lawyer’s office, the senior advocate might not be able to explain to the students the purpose of pleadings due to their busy schedule forcing the students to simply copy them down in their record books. Even students who have passed LL.B. with flying colours find themselves dumb founded in an advocate’s office because of the lack of practical training.

 

An advocate’s office is the real school where a young lawyer learns the practical aspect of the laws. It is where one learns the basics of drafting. Writing all sorts of pleadings and petitions, drafting power of attorneys, legal opinions and the like under the guidance of senior lawyers, listening to discussions between the lawyer and clients, hearing scolding for necessary and unnecessary things from the senior, sitting in court rooms for long hours listening to how senior counsels present their case or examine witnesses are the authentic experiences which help an LL.B. graduate to be proficient and mature enough to enter the legal arena. A lot can be learned from these advocate offices and court rooms which no law school can claim to offer! They reveal to the young lawyers the importance of skills of persuasion, assertiveness and the need to have a good reading and observation. All these helps a young lawyer to understand the essence of laws, presentation skills plus the dirty tricks played in the field, and also how to handle situations, how to be bold and face challenges in life. It also gives him an opportunity to learn the attitude of clients and their worries, how to be sympathetic to them, the behaviour of criminals and witnesses and helps him to know whether a witness is tutored or not. The attitude of clerks, court officers and the police can also be understood as a junior lawyer comes into contact with them all. Also it enables him to understand the plight of junior lawyers as well. After all one learns that it is no bed of roses. Knowledge of all these is essential as far as a judge is concerned. He should be able to keep a friendly relation with the bar and understand their limitations also. He should be able to place himself in the shoes of the plaintiff and the defendant or the complainant and the accused. He should be capable of comprehending the psychology of the witness in the witness box. He should be able to see from the viewpoint of the counsels also and should be keen in watching whether any tactics are involved in the case presented before him. For all this, only real life experience as an advocate can be of help.

 

Majority of the judges in our country have had a life as an advocate for a considerable period of time. Bar experience is essential to develop professional maturity in lawyers. It enables the ‘judges to be’ to understand the ways of lawyers better. A person who enters the court room for the first time, that too as a judge, tends to be nervous. They lack the professional experience and expertise to handle complex situations. Actual bar experience can be of vital help for a newcomer to overcome these hurdles.

 

Today students are preparing for competitive exams right from the first year of LL.B. There are a lot of munsiff-magistrate coaching centres where law graduates join after completing LL.B. without bothering to practice. If they don’t get through in the first chance, they repeat a year in such coaching centres still not even knowing what a real court room looks like. No amount of such study or even training given for selected candidates in judicial academies can be a substitute for real life practice as a lawyer in trial courts.

 

Judges deal with the lives and property of persons. They should not be allowed to simply step into the courts without practical experience. Well, there may be people who are academically so good that they need not have bar experience to become an insightful judge. But exceptions do not happen always! Vacancies for the post of legal advisers and legal officers call for at least 3 years of bar experience. Even for being a teacher in law colleges, run by the government, a minimum 3 years of practice as an advocate is mandatory. If so, then why is it not necessary for a judge, who has to sit in the court for the rest of his life, to have practical training as an advocate?

 

At least 2 years of practice should be mandatory for applying for the Kerala Judicial Service Examination. This will make them better acquainted with the court procedures and practical aspect of laws. Then we will be having judges who are aware of the things they necessarily should know and will enable them to exercise their discretion and reasoning even more wisely and will ultimately aid in delivering sound judgments.

Asking for The Moon: Legal Uniformity in India from a Kerala Perspective

Professor Werner Menski, SOAS¹

 

This article discusses the impossibility of the original 194( 1950s plan of a Uniform Civil Code for India, if understood mean a complete restructuring of the Indian legal system, abolition of the personal law system and creation of one new Indian family law for all Indians. This was like asking for moon, totally unrealistic and simply not feasible.

 

Indeed, since 2001, it has become apparent (but has been widely noticed) that Indian law has now reached a mature stage of legal uniformity which is significantly different from the originally envisaged model but aims towards uniformity. Postmodern Indian uniformised law clearly retains the personal law system, but seeks to ensure that all these various laws contain more or less the same rules-notably despite Muslim reluctance to have codified family laws. India has thus achieved a different kind of Uniform Civil Code than originally anticipated. It came in through the back door, so to say, gradually developing more uniform family laws for the nation through a combination of legislative interventions and, where necessary, judicial activism.

 

The resulting picture is a kind of mirror image of the moon. It is an innovative and remarkable legal growth, but brings perhaps no surprise to lawyers living in plurality-conscious places like Kerala. The article also seeks to show that lawyers and Judges from Kerala have made significant contributions to our understanding of this restructuring of Indian law.

 

Kerala as a mirror of legal pluralism

Kerala has always had a special place in my heart when it comes to South Asian legal studies. While most of my students know this, some even experienced the joys of living and working in Kerala for themselves.² Introduced to the KLT, its founder-editor M.C. Mathew and his family by my illustrious predecessor, Professor.J.Duncan M. Derrett, who was fascinated by Kerala, too.³ I met Shri. M.C. Mathew on my first visit to Kerala in 1983, then recently appointed as a specialist in South Asian laws at SOAS in the University of London. I recounted this in my speech for the Golden Jubilee Celebrationsof the Kerala Law Times in December 1998.⁴ Shri. M.C. Mathew had founded the K.L.T. with much foresight in 1949 and then looked after it and expanded it for almost 40 years until his untimely death on 10 February 1988. Since then, Advocate Siby Mathew and his brother Advocate M. Mathew has been steering the ship, providing a reliable and crucial legal service to all lawyers in the State and much beyond.

 

In our initial meetings, we did not immediately analyse the uniform civil code issue In depth, nor didwe discuss the wonderful story of Mother Yashoda showing little Krishna, who had asked for the moon, the image of the moon in a mirror. But I was aware that Professor Derrett had described Kerala as a legal museum of great scientific interest to comparative lawyers and was myself beginning to lay foundations for what today I call ' global legal realism' and a plurality-conscious approach to the study of law worldwide.⁵ Shri. M. C. Mathew patiently guided me through his local museum of laws over many years, and we had many stimulating discussions.I found him an alert legal realist, a lawyer who talked commonsense. Aware of many politics in the field of law, he was determined to exercise calm leadership and guidance to ensure continuity and stability, not only for his own business and family, but for the legal profession in his State, Firm in his own beliefs and attitudes, he deeply respected difference and the beliefs and views of others. There was much to learn from such a wise man.

 

I was aware, much before I came to Kerala, that the State had an interesting political history and was composed of many diverse groups of people, basically various Hindu Communities, different Christian groups, and several Muslim communities of great interest to social scientists and scholars of religious studies and law. Kerala, so much became clear to me from the start of my involvement, had always been inherently plurality-conscious, and its people were deeply aware of differences, past and present, that would need to be taken into account for the successful negotiation of a bright future. I knew that Professor Derrett greatly admired the Judges of the Kerala High Court for being super-conscious of such diversities, but did not anticipate in 1983 that judges and lawyers from Kerala would play over time such a prominent pioneering role in guiding the whole of India towards a better understanding of its own identity as a nation state composed of many different peoples, traditions, cultures and religions. All of these pluralities, given the interlinked nature of law as a global phenomenon, could not remain without effect on how Indian law would develop over time. From a Keralite perspective, with Delhi very far away, any debate of national legal uniformity would inevitably have to be about 'unity in diversity' and law would face many limits. The "irresolution between the particular and the universal"⁶ was always a living legal reality here.

 

The pretentiousness of asking for a Uniform Civil Code

Southern Indian voices were, as far as I am aware, not very prominent in the early debates on the uniform civil code in India. When India asked for the moon by introducing Article 44 into the Indian Constitution of 1950 as a Directive Principle of State Policy⁷, it set agenda for the future development of the country's legal system that were clearly in line with then prevalent modern and early postcolonial thinking about 'development' and 'progress'. In essence, the underlying argument ran like this: We have a system of religiously-founded personal laws of great complexity and confusing diversity. We have to change this. We want to achieve a number of policy objectives at once by creating a secular uniform family law for all Indians.

 

One of those policy objectives was clearly nation-building through the tool of a Uniform Civil Code. But does one need a uniform civil law to create a harmoniously functioning nation? What if enforced unification of laws has the opposite effect? By the early 21st century, we can think of several examples of state-enforced uniformity gone terribly wrong.⁸

 

In my view, asking for total legal uniformity for hundreds of millions of Indians.in 1950 was clearly pretentious, asking for much more than the moon. The audacious proponents of comprehensive structural reforms, prominently around Dr. Ambedkar, evidently expected an eventual total remodelling of the Indian legal system along Western lines, assuming that modern Western states have family law systems that are the same for everyone in any particular country, irrespective of religion, community, local norms and other differentiating factors. In terms of jurisprudence, this would amount to a programme of implementation of legal centralism, a situation where the State, and the State alone, determines the legal rules. However, such kind of legal system and understanding of 'law' is clearly a fiction, and not a fact.⁹

 

I therefore say nothing new when I reiterate that the basic original assumptions underlying Article 44 of the Indian Constitution were quite wrong and inadequately thought through. In the USA, respect for difference seems a well-developed legal principle despite an outward impression of state-centric codified uniformity. Every US state has its own regime of family laws, with the result that there are huge differences within the USA on many points of detail, and lawyers have to be familiar with many different state-based and local laws - quite like in India. In fact US lawyers are so busy with administering their own jurisdiction of unity in diversity that most of them have little time for foreign laws. The same could be said for Indian lawyers.

 

A similar picture also prevails in Western European countries once one studies their laws carefully. English law makes specific exceptions for Jews and Quakers when it comes to getting married,¹⁰ treats Jewish and Muslim divorces, which raise similar problems over ‘limping marriages', differently even in recent legislation,¹¹ and now gives special privileges to people marrying under Anglican Christian law, but not others.¹²Italian law is outwardly secular and uniform, but retains many special favours for Catholics, Many European states have an enormous variety of local laws that any lawyers worth their salt have to be familiar with. Where is the case for total legal uniformity if eventhe alleged model of a codified Western legal system does not operate such a strictly uniformised pattern?

 

The idea of total legal uniformity itself is therefore an ideal, something that would make sense in principle, but is rather more difficult to achieve in legal reality. This ideal is strongly reflected in much writing, particularly in the Indian popular press. Which remainsa major source of information about law for the common citizen as Well as lawyers. Such writing remains generally quite misguided in the assumption That Western laws are uniform. For example Vijay Kumar Malhotra wrote in the Hindustan Times of 5August 1995,¹³ a few months after the much-debated case of Saria mudgal v. Union of India:¹⁴

 

Most European countries have a common civil code, and everyone including the Minorities are subject to the same set of laws. No exceptions are made and no protests are raised. Common laws in civil matters are not considered tyrannical by the minority communities.

 

I think that after 9/11 in New York and 7/7 and 21/7 in London many journalists would take a slightly different view of the absence of any protest about the imposition of uniform laws on all people in the newly pluralising multicultural states of Europe and Northern America. Europeans cannot even draw cartoons any longer as they please, without the risk of being pursued all over the world for alleged blasphemy and discrimination. There is now much evidence of violent protest against the refusal to officially acknowledge the presence of something like global shari'a in Western jurisdictions. Some Hindus in diaspora have become militant, too, pursuing some scholars through internet terrorism and other means. There are many copycat reactions now in this sphere.

 

More troubling still, particularly for Western-inspired legal centralist claims to Superiority, my own research based on mainly South Asian legal evidence shows Consistently that. there is much more silent private (rather than outwardly violent and Thus public) opposition and diligent undermining of enforced legal uniformity on a day- to-day basis by many members of ethnic minority communities living in Western countries.¹⁵ Experienced field researchers like the anthropologist Roger Ballard have shown that many Asians in the UK are restructuring their rule systems and behaviour ‘on their own terms', taking into account what the official law demands, but otherwise largely remodelling new rules for themselves, and as they see fit.¹⁶ My own research on legal patterns of assimilation among ethnic minorities in the UK consistently supports. such observations.¹⁷ More recent research and writing by younger scholars, such as Prakash Shah,¹⁸ strongly questions the claims of official legal systems to lay down uniformly binding rules for all. Worse, we now find evidence of state lawlessness in Europe, and particularly in the UK, as a desperate reaction of state legal centralism against some pluralising tendencies among the people subject to such laws. The major trouble is that the new laws are themselves discriminatory, and far from conscious of the need to promote legal uniformity, in effect singling out certain groups or categories of people for punitive treatment which is widely perceived as human rights violatioin.¹⁹

 

Even worse for the proponents of legal uniformity, recent developments in English marriage law suggest a newly emerging process of pluralisation which is almost inevitable, given the factual scenarios now presented by litigants. In the not yet widely known case of Chief Adjudication Officer v. Bath 2000(1) FLR 8, the English Court of Appeal found itself constrained to hold, in effect, that an unregistered Sikh marriage in the UK during the 1950s created a legal status equivalent to marriage under English law, thus entitling Mrs. Bath, a Sikh widow, to pension rights. As young people, this Sikh couple had married only in a religious ceremony in a London gurudwara, had never registered their marriage in the UK, and had otherwise behaved and been treated as a married couple, eventually with children. Following the husband's death, the formal requirements and expectations of English law became a key issue. Was the couple validly married under English law? Should Mrs. Bath be entitled to a widow's pension? The concerned officers of the government department dealing with welfare and pensions took a hard line, but Mrs. Bath fought back. The Court of Appeal ultimately achieved a just and fair outcome by applying principles of equity, certainly not uniformising equality.

 

Achieving justice in this particular case, which is significantly not treated as precedent, because that would have enormous implications on legal uniformity in English law, now poses huge dilemmas for what then, today, English law has to say about the uniform legal requirements for a valid marriage.²⁰ There are some test cases in the wings now, significantly from Muslims, questioning why an unregistered Sikh marriage could eventually become legally recognised, while a Muslim nikah contracted in Britain but not registered by the State, does not have that status. It is an age-old predicament of equity, the desire to find justice also in hard cases, that it cannot rely on the principle of equality. What, however, is wrong with equity? Of course equity involves consideration of difference and of the particular facts and circumstances of a case -how is that bad in itself in the never-ending search for justice? I am sure that Kerala's lawyers and Judges would have less trouble with this kind of scenario than man Western lawyers. If young lawyers in the State did not become sufficiently plurality conscious through their largely positivism-focused legal education, practising law would .aught them lessons about legal realism that are not unique to Kerala, but part of the daily routine of lawyers almost anywhere in the world.

 

Cultivating a faulty image of what Western laws are and holding this false ideal up as a for Indian laws of the future is, thus, deeply problematic in itself. Western laws were never uniform, and today's Western laws are re-pluralising as a result of ‘ethnic implants’.²¹

 

The foreignimage aspect of uniformity debates

Readers will be aware that in Europe, as in the West generally, anything Indian Used not to be valued as it should be, but maybe that is changing now. George Bush Has visited India as this article is being published, and it appears that writing about Indian law itself, which used to be a low-status occupation, is now carrying a higher Profile. Finally, the colonial shackles, and the Indian 'colonisation of the mind', as Ashis Nandy called it,²² are being broken. But of course such mental influences will Never be totally eradicated and one must expect to see continuing reflections of Western postcolonial superiority complexes and corresponding inferiority complexes among Indian legal professionals. Such presuppositions are strongly evidenced in the significant Inability or unwillingness among India's leading legal scholars to accept now that India Has actually managed to restructure its legal system on its own terms to achieve greater uniformity without introducing a full-fledged Uniform Civil Code as originally envisaged.

 

At first sight, the matter looks like this: India, like almost all other Asian and African Countries, has always operated a personal law system with different family laws for Muslims, Hindus and others. Article 44 as a Directive Principle of State Policy about introductionof a Uniform Civil Code reflected expectations of following Western legal models, perceived as superior forms of legal regulation. In reverse, most Western scholars but also many South Asian scholars, view and treat the continuation of personal laws as evidence of medieval backwardness.²³ Many Western people fail to understand that in places like Kerala Hindus, Muslims and Christians - and many different types of them - can actually live together peacefully and can be governed by one overarching legal system, admittedly very diverse, with many different local and community-specific Nations, but nevertheless a well-functioning legal system, and not anarchy or confusion. Complex, yes, but not impossible to operate, as experienced lawyers in Kerala know very well.

 

In Western contexts, we still tend to blame 'religion', 'culture'and 'tradition' for many of our problems and pride ourselves foolishly on having freed ourselves from 'customs' through formal legal enactments. Consequently, we look down on customary; and 'traditional' legal systems as evidence of backwardness. More evidently, though; religion is not abolished by the predominance of secularism even in the West. In Northern Ireland, not even Catholics and Protestants could for a long time co-exist without constant and grave sectarian violence. The ongoing break-up of the former Yugoslavia led to massive refugee movements and mass victimisation in the recent past, because some people are ethnically Serbs, while others are Croats or Bosnian Muslims. People of different backgrounds suddenly find (or are told in all kinds of ways) that they cannot live together and develop mechanisms to eliminate 'the other'. When the London bombers were found to be British Asians, more anguished questions began to be asked about such issues -but fortunately it is not an option to expel all Asians from the UK, one hopes. Ethnic cleansing is, however, happening all over the world, and is also a risk factor in the subcontinent today.²⁴ Significantly, most analysts continue to portray only countries in Asia and Africa as tradition-ridden and inferior, dependent on 'religion and 'tradition' and incapable of modernisation. Indian law is therefore either generously declared to be like English law, a hugely convenient myth, or it is perceived as an inferior cousin, a third world jurisdiction that better follows the West as fast as possible and gets rid of its vestiges of 'religion' and 'tradition' when it comes to law. As though the British had got rid of Anglicanism, the Italians of Catholicism, or the Turks o Islam!

 

Despite much evidence of the continuation of 'tradition' in Western legal systems, and the impossibility of a culture-neutral, plainly 'modern' legal system, the dominant expectation therefore remains that countries like India should follow a kind of Western trajectory of development in all respects. From this perspective, one of the central expectations remains still that India should have, or should work towards having, a Uniform Civil Code. This may partly explain why even recent decisions of the Indian Supreme Court reiterate the need for such a Code.²⁵ now evidently under some pressure from the arena of international law.

 

Adherence to old legocentric presuppositions further explains to a large extent why some learned Judges of the Indian Supreme Court continue to harbour the impression that central legal regulation by the Indian state in the area of family law is a possibility, even if delegated to state level. Thus, in Seema v. Ashwani Kumar, (2006 (1) KLT 791 (SC)decided by the Indian Supreme Court on 14 February 2006, Arijit Pasayat J, speaking on behalf of himself and S. H. Kapadia J. outlined in detail the complex and locally-coloured nature of Indian laws on marriage registration, noting the possible problems of absence of proof of marriage, and then held:

 

Accordingly, we are of the view that marriages of all persons who are citizens of India belongingto various religions should be made compulsorily registrable in their respective States. where the marriage is solemnized".

 

With respect. such an approach, as commonsensical as it may sound, is totally unrealistic and in fact positively dangerous, because India should never wish to have a system of law where the State alone decides when a person is married in accordance with the law, English law, having reached that supposedly advanced and sophisticated stage of legal regulation, is now faced with a scenario in which the government has recently curtailed the right of individuals to marry certain kinds of people, in this case mainly certain foreigners and asylum seekers, imposing a virtual ban on certain marriages in the larger public interest.²⁶ Not surprisingly, this new law is now being challenged on human rights ground. Here is a dangerous example of State lawlessness gone too far in a kind of control freakism that seems typical of the current British government.²⁷There are crucial warning signs here for civil rights groups in so-called developing Countries: This kind of 'Big Brother' State goes a few steps too far and is ultimately Not only going to be ineffective and too costly, but simply bad for 'good governance' and humanrights.

 

The emergence of the postmodern state in Asia and Africa

Excessively privileging the state in law-making thus carries enormous risks, as Indian lawyers and judges know very well.²⁸ There are evidently several ways ofbalancingthe relationship between the citizens and the State when it comes to familylaw matters. Total central legal regulation does not recommend itself as viable everywhere, maybe not even anywhere.²⁹ Observations about the continuing legalrelevance of 'religion', 'culture' and 'tradition' also in the West, which is certainly not a culture-neutral arena, as discussed above, raise further questions about whether Westernlegal developments could actually be a useful model for a country like India. I have .written a little about this in the past.³⁰

 

More recently I have observed that huge countries like India, Indonesia, Brazil,South Africa and Pakistan, with large populations and many poor people among their citizenry, do not find it feasible to operate along traditional state-centric lines of governance. Faced with the impossibility of operating legocentrism in practice, they are learning to delegate legal responsibilities and control functions to local level institutions and ultimately to individuals as members of socio-political groups.³¹ It is evident that major national 1 gal systems in the world today experiment with and operate such kinds of plurality -conscious legal mechanisms. These tend to encourage individual, communal and largely local self-reliance and self-regulation, privileging local forms of solidarity, right down to the family level, taking account of the individual’s voice, if she cares (or dares) to raise it.

 

India as a typical state in that category has seen a recent significant shift towards; panchayati raj, familiar to readers. This has elements of a reaction to globalisation in the form of glocalisation.³² This kind of pattern is now also found in Brazil, South Africa, and comparatively unknown little places like Namibia.³³

 

Thus, the legal world is changing in front of our eyes, with immense new implication for how national legal systems now look upon their own roles when it comes to family law matters. It even appears as though the entire field of law is being freshly carvedup in a re-assessment of the relationship between Hartian primary rules and secondary rules. Whereas a classic modernist strong State would claim to be governing both spheres of rules, virtually to the exclusion of other rule-making entities, today’s postmodern and reality-conscious States are beginning to understand that 'primary rules' are anchored in people's minds within local communities and have their cultural and religious postulates embodied in 'traditions' of various kinds. The postmodern state, rather than seeking to reform those postulates out of existence, appears to be learning to respect them, certainly to a larger extent than it did as a modern state Thus, it might seek to incorporate and use those traditional structures for its own benefit, concentrating perhaps on more important issues of governance than regulating every marriage or divorce, or getting formally involved in every single dispute that may arise between 'little' individuals. Of course there is no clear trajectory of the emergence of a new 'soft' state from the troubled remnants of a 'strong' state, but this development is increasingly noticeable.

 

The postmodern state, in other words, is slowly learning to delegate responsibility but this does not mean that it thereby gives up its overarching control functions. These supervisory functions are now exercised in two ways, it would appear. Firstly, the central state will continue to make what may be called 'symbolic legislation', seeking to influence the vast arena of Haitian 'primary rules' by changing opinions among the people. Such laws may state new postulates as ideals for the future, rather than rules which are to be obeyed to the last dot. This is classic social engineering through law the educative route, which will normally take a long time. This is one possible task of new state-made laws, not expecting to be implemented overnight, but laying down a programme for the future, a kind of educative agenda for future development. Indias anti-dowry law could be seen in this category, discouraging a common practice against all odds, and thus totally ineffective, as Kerala lawyers have confirmed to me recently Other examples would certainly be the existing laws on child marriage and their continued legal validity, but also the new Hindu Succession (Amendment) Act of2005 and, of more direct relevance to the present discussion, the low-key amendment to section 25 of the Criminal Procedure Code, 1973 through the Criminal Procedure (Amendment) Act of 2001, discussed further below.

                                                      

A second type of central law-making which will continue to be of critical importance Also in a postmodern and 'soft' legal system would be the ultimate monitoring andsupervision of ‘justice' through the state and the Courts. This is where the Constitution and fundamental rights guarantees are coming in. In this arena, the Indian postmodern state is showing many signs of vigorous assertion of its supervisory role, often expressedin terms of judicial activism, frequently related to what has come to be known as ‘public interest litigation' or 'social action litigation', as some prefer to call it. The vigorous expansion of understanding the 'right to life' in Article 21 of the Constitutionis a strong indication of this kind of trend. This broadly supervisory function of state law, it appears, manifests itself in laying down certain minimum expectations as groundrules for all Indian citizens, fundamentally linked to basic expectations of fairness and justice,irrespective of 'religion', 'culture' and 'tradition'. One could call this a new kind of constitutional dharma, a form of equity. I will not, at this point, go into detailsof what that might mean.

 

Rather, I am concerned here to point out that this new supervisory mechanism may also involve various forms of social engineering through law, such as emphasis on the basic expectation that in a patriarchal society, it is mainly males who will have to face an obligation to use their powers over resources to the benefit of all those individuals who are in any form dependent on their support, especially women, children and aged or disabled persons. This, readers will realise, is also a strategy by the postmodern state to divert any expectation of social welfare support from the state itself.³⁴ Below I discuss further to what ingenious extent the postmodern Indian state has begun to utilise this strategy to strengthen a framework of uniform legal regulation in the country in the arena of family law. This is not only a matter of providing maintenance for divorced wives after divorce without spending a penny of state resources, but extends particularly to entry rules for marriage, exit rules for broken marriages, and related matters like polygamy, access to children and so on. Localised self-regulation may be an appropriate name for this not really new phenomenon.

 

The postmodern development of Indian uniform civil code agenda _;

Turning now specifically to Indian legal developments in relation to the uniform civil code debate, I identify two fairly recent significant elements. Firstly, the virtual unification of the ground rules for marriage and divorce across all communities by 2001. Secondly, the completion of the jigsaw puzzle of Indian post-divorce maintenance w, also by 2001 - and this is not an accident of history - forms the major argument to support my claim that India now virtually has a Uniform Civil Code, albeit not in the shape as originally envisaged. It seems therefore that the agenda of the 1940s with their demand for the moon have been superseded by a scenario in which we like Mother Yashoda, can now show impatient analysts and activists a mirror image of the moon.

 

 First, to what extent are the Indian laws on marriage and divorce uniform? At first sight, of course, the Indian law on marriage is extremely diffuse and confusingly pluralistic, largely because of museum-like customary traditions that are giving lawyers; all over the world a lot of business and create from time to time some strange bogus arguments. Frequently found examples of legal confusion in the West (and also occasionally in India) include allegations that Indian law does not permit marriages between Hindus and Christians, that a saptapadi has to be a part of all Hindu marriages that Muslim women cannot marry non-Muslim men, or that the parties have to be at least 18 or 21 years old to be legally married in India.

 

If one looks at marriage law in India from a little distance, it transpires that this entire field of law is extremely plurality-conscious, for it allows two individuals who wish to marry all kinds of options. Indian law almost totally leaves it to the discretion of the parties and their families which method of entering a legally valid marriage is ultimately chosen. There is no difference here between Hindu law or Muslim law in particular. Section 7 of the Hindu Marriage Act of 1955 protects the right of Hindus to enter a legally valid marriage by following customary traditions, whatever these may be in particular cases. Muslims can follow their own customs, too, under the mantle of shari'a, which is part of Indian family law.

 

The most significant common element that one can identify is therefore that with very few exceptions, Indian marriages are dependent on customary traditions, which may be new forms of custom rather than ancient traditions laid down in stone and most crucially here, they are not required to be registered by the state. However,this is not clearly understood in India, and even Supreme Court judges appear to cultivate' misguided impressions about the extent to which marriages in India have to be registered. Thus, in Seema v. Ashwani Kumar, decided on 14 February 2006, (2006 (1) KLT 791 (SC)) and widely reported in newspapers the next day because the Supreme Court had said that all marriages in India must be registered, Arijit Pasayat.J. stated that "it appears that there are four Statutes which provide for compulsory; registration of marriages", listing in first place the Bombay Registration of Marriages. Act of 1953, which applies in Maharashtra and Gujarat. As far as I am aware, this old Act, coming into force prior to the Special Marriage Act of 1954. Facilitates the registration of marriages, but does not make this process in any way compulsory. Marriage registration in Gujarat and Maharashtra quite clearly remains optional under the 1953 Act. Registration of some marriages is. however, compulsory under the secular Special Marriage Act of 1954, an Act which very few Indians appear to use. I do not think there are many other Acts in India that require compulsory registration of a marriage by the state in the same way that a Western European state would expect this to happen. Providing documentary evidence of the solemnisation of a marriage is one thing, legally validating the existence of a marriage between two people is quite another. Plurality-conscious Indian lawyers know this very well, but there are many lawyers and apparently also Judges who lack such awareness of legal plurality.

 

The common and almost uniform element in Indian laws on marriage is therefore The near - total absence of a legal requirement for registration with the state authorities. The commonsensical view and guidance that registration would be useful to provide Evidence of the existence of a marriage does not damage this general conclusion, and Indian family lawyers (but not most of their European counterparts) will know that Indian law has swiftly realised that mere official documentation of a marriage is not sufficient proof of its legal existence.³⁵ So there is nothing wrong with calls for more registration of marriages in India, but a comprehensive uniform compulsory registration system of marriage for all Indians will never materialise.

 

One also has to note that the recent Supreme Court Directions in Seema v. Ashwani Kumar (12006 (1) KLT 791 (SC)) are not only targeted at state governments, but still assumethat the central government may eventually enact a Uniform Civil Code, though that phrase is studiously avoided.³⁶ For the time being, and in my view indefinitely, postmodern Indian marriage law displays the familiar Indian 'uniformity in diversity'. It remains the recommendation that all Indian marriages should be registered but with few exceptions, contains no general bar to the full legal recognition of unregistered " ages as legally valid. While this creates some work for lawyers, and demands alertness of individual citizens, this seems to me like a viable system. It is of course open to abuse, but all legal systems are open to abuse. Law is never a perfect remedy.

 

Thegradual emergence of a uniform Indian divorce law

If entry into marriage in India is largely determined by a grundnorm of 'unity in diversity', as explained above, so is exit from marriage. Not surprisingly, there have been lively debates about the uniform civil code issue with regard to divorce between the 1950s and the start of the new millennium. While the old Gandhian/Nehruviandichotomy has never gone away, at first the demands of modernisation, leading to westernizing, globalisation, supported a belief that India needed to follow Western models, particularly English law. In the early 1980s at postcolonial SOAS in the University of London, many teachers still taught students with some conviction aboutthe almost unstoppable march of the common law round the world. My predecessor in London, Professor Derrett, had argued vigorously until the early 1970s that when it came to family law reforms, India could do nothing better than follow the steps of modernisation taken in London.³⁷ This advice was not so much geared towards uniformisation of Indian laws as guidance towards a somewhat secular and culture blind form of modernisation, despite the detailed knowledge that Professor Derrett had of Hindu law and Indian cultural and legal traditions. It appears that a combination of English legal training and colonial experience got the better of Derrett for some time.

 

But something significant happened rather soon. When Professor Derrett began to see cases from India about how the new regime of Hindu divorce law after 19( made it easier for Hindu men to throw their wives out of the house, leading to the 'own wrong problem',³⁸ he swiftly expressed reservations about the direction that modern Hindu divorce law was taking.³⁹ Derrett evidently became aware that not to take Indian socio-cultural factors into account in the application of India's modern divorce laws would cause social disasters. Applying the principle of gender equality a patriarchally dominated legal system, where gender justice remains a dream for most women, was not a suitable progressive route. When more evidence of such legal abuses surfaced, especially after the Marriage Laws (Amendment) Act of 1976 Derrett wrote his final book on Hindu family law before he retired, virtually admitting defeat of his own modernising prescriptions.⁴⁰

 

Readers will be aware that, when the Indian state subsequently wanted to introduce further divorce law reforms in 1981, privileging the breakdown principle as happened in English law in 1973, even several Indian women's groups rose in opposition and the Bill never became law. India thus stopped copying English legal developments in the statute law on divorce around 1981, just as I came into the field.

 

At that time, it was possible for an Indian husband to enjoy the first night after the wedding and to claim in the morning that something material was wrong with his wife and there should be a virtually instant decree of nullity. It became a cruel joke, mainly applied in North Indian cases,⁴¹ while South Indian Judges warned about maintenance problems for women.⁴² Professor Derrett alerted me to such cases and we discussed the emerging problems. Shri. M.C. Mathew at the K.L.T. concurred that justice could easily become a casualty if the facts and circumstances of particular cases were not taken into account. Focus on situation-specific justice rather than legal uniformity became central to my thinking about reasonable family law reform in India.

 

The unsatisfactory situation in Indian divorce laws continued throughout the 1980s and into the 1990s, and divorce rates began to soar. Continuous pressure to apply the breakdown principle in divorce law led to cases where women were given no chance to plead their side of the story, they were simply expelled from the house and beaten with chappals everytime they tried to come back, so that the husband could then claim that she had failed to resume cohabitation. Actually, it became almost sufficient for a husband to state that the marriage had broken down, as far as he was concerned.North Indian Judges, in particular, egged on by 'progressive' academics like Paras Diwan, would simply decree divorce even though irretrievable breakdown did not exist on the statute book.⁴³

 

One could say much more about maldevelopments in Hindu divorce law in India During the period. What few scholars realized, though, was that modern breakdown- type divorce regimes silently began to approximate the traditional rule systems on divorce in shari’a law ever more closely. Instead of comments on this trend, complaints about the unwillingness of of Indian Muslims to submit to family law legislation have dominated Indian debates. In reality, it could be argued, Indian divorce laws have gradually beenadjusted to resemble Muslim law rules rather than attempting to abolish Muslim divorce law through uniformising codification. Indeed, Indian Muslim men continue to stay outside codified legal provisions in this field and can use the talaq, or can negotiate a mubaraat, a divorce by mutual consent. Their women can bring themselves under the provisions of the Dissolution of Muslim Marriages Act of 1939 if they are strong enough, or they can argue for a khula divorce, which may then become amubaraat, an agreement to divorce. Indian Muslim divorce law today,though uncodified, is therefore not really that different any more from Hindu divorce law in substance. Patriarchy everywhere means that many women would be stuck in unsatisfactory marriages, but we are not even beginning to debate how many men may be imprisoned in bad marriages, too. Does it really matter, then, that Indian Muslim divorce law is not codified?

 

I am not suggesting that the Indian Muslim law on divorce is perfect, but its largely uncodified state offers a low-cost solution (particularly for the state) and helps to avoid a scenario that India simply could not afford, namely that all divorces would have to go through a court of law. Significantly, Hindu divorce law continues to leave huge discretion for customary Hindu divorces in section 29(2) of the Hindu Marriage Act of 1955. The modernist lobby, in conjunction with Orientalist scholarship, has Sought to ignore this provision, but many Indian women's daily life chances depend crucially on such important outlets for gender equity.⁴⁴

 

Let us look at state regulation of divorce through a European lense. English law basicallydemanded compulsory registration of all divorces in the Matrimonial CausesAct of 1973, which embodies legal centralism. But a few years later, a torrent of divorce petitions flooded the courts, and English law introduced the so-called 'quickie divorce’ as an agreed formal procedure from 1977 onwards. Today, 98% of all English divorce follow this informal procedure of divorce by mutual consent. English divorce proceedings are therefore claiming to be judicial proceedings when in fact this has become an administrative process and all that happens at the end is that a Judge will pronounce the divorce decree in open court. Almost all English divorces occur therefore without a proper court hearing. While one wonders about the extent and the effectiveness of state supervision, the legocentric claim is made that all divorces in England and Wales have to go through courts.

 

I have seen Asian wives in the UK being forced to sign affidavit agreeing to a divorce on terms quite unfavourable to them. An English Judge might never notice that there was such duress, since English law does not have the protective mechanisms found in sections 23(l)(b) and (bb) of the Hindu Marriage Act of 1955 concerning force, fraud or undue influence in the process of agreeing to a divorce. In Hindu law, too, of course, there are no absolute safeguards for women against being forced out of marriage. It may well be for this reason that the Indian legislature has become so activist with regard to post-divorce maintenance. More about that issue further below.

 

The two major personal law systems of India and the secular provisions of the Special Marriage Act of 1954, thus, all allow various kinds of divorce on a large and growing number of grounds. The Paris law was streamlined by the Paris Marriage and Divorce (Amendment) Act of 1988. This left only the old Indian Christian law on divorce to be dealt with. As every lawyer in Kerala knows, that law used to be hopelessly outdated and was in need of reform. The Christian divorce law was codified in the Indian Divorce Act of 1869, at a time when divorce was granted with utmost reluctance and only in the most exceptional circumstances because of religious oppositions from various Churches. Christian divorce law therefore stood out by 1988 as an unconstitutional form of discrimination against Christian spouses in unhappy marriages. Until recently. Christian wives in particular were virtually imprisoned in their marriages, while their co-citizens of other religions could seek divorce on a number of grounds. This clearly demonstrated the urgency of having more uniform legal provisions. But was the right remedy to argue for and introduce a Uniform Civil Code?

 

Apparently the Indian answer to this has been a resounding negative. Earlier, there had been endless painstaking lobbying for reforms to Christian laws, much of it driven by Keralites.⁴⁵ Ultimately, perhaps wary and tired of asking Parliament to produce a Uniform Civil Code, Kerala's Judges resorted to drastic steps. In 1995, after several unsuccessful attempts, the High Court of Kerala removed certain restrictive words from section 10 of the old Indian Divorce Act of 1869, So that an Indian Christian wife could now seek divorce on grounds of cruelty, like any other Indian citizen.⁴⁶ Such judicial lawmaking never ceases to surprise my students in London - but it makes sense within the wider context of Indian judicial activism and public interest litigation. This skilful simple process of legal surgery instantly created

 

greater legal uniformity, at least for the Christians of Kerala, while keeping the personal law system intact.

 

India's Parliament evidently realised that now it was time to act and to reclaim the initiative in lawmaking, but it waited for the right time. This came, exactly two days after the important Danial Latifi case had been decided,⁴⁷ on 24 September 2001, when Parliament passed the Indian Divorce (Amendment) Act, 2001 (Act No.51 of 2001). This finally brought Indian Christian divorce law broadly into line with the other divorce laws of India under the various personal laws and the largely optional provisions of the secular Special Marriage Act of 1954. 

 

Details of this Act are well known in Kerala. The new Act provides basically ten grounds for dissolution of marriage among Christians, plus an additional ground for wives who can prove that "the husband has, also since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality". Some lawyers and activists in India, especially in Kerala, have fought long and hard for these amendments, which clearly represent another piece of the jigsaw puzzle of Indian legal uniformity that is now in place after enormously long lobbying and many setbacks.

 

The persistence of legal difference

Hence, after the initial decade of modernising reforms mainly in Hindu law in the 1950s, India has remained a country, like almost all other countries in Asia and Africa, in which different personal laws for different groups of people are being applied. Criticism of this has remained vocal and resurfaces from time to time.⁴⁸ The most prominent example is that an Indian Muslim man could therefore have up to four wives at the same time, while all other Indian men could have only one.⁴⁹ At least, that is what it looked like from the outside, studying only the plain statutory law, or the absence of statutory regulation in the case of Indian Muslim law. Few lawyers would have the time and energy to examine what happens in socio-legal reality on the ground. While I would query whether permission to marry four women is a blessing, the issue that became inevitably prominent in Indian law was whether it was constitutionallyvalid to maintain such distinctions between Indian citizens merely on the basis of religion. Was it in accordance with the spirit and letter of the Indian Constitution that citizens should have quite different rights and duties merely because they belonged to a particular religious community? Since the law could not abolish communities, could and should Indian law wipe out all vestiges of legal consequences of being socially and religiously different?

 

This issue has remained controversial, and it has been most interestingly litigated under Indian law with reference to the thorny issue of post-divorce maintenance for women. Following the much-cited and heavily misused Shah Bano case of 1985,⁵⁰ which is discussed further below and which even many people in the West know about (though they might know little else about Indian law), the verdict of Indian Supreme Court in Danial Latifi v. Union of India at 2001 (3) KLT 651 (SC) merely reiterated the old position, namely that making reasonable distinctions between citizens on the basis of certain criteria - in this case religion - would not be unconstitutional in itself. That decision therefore destroyed and virtually buried the argument that absolute legal uniformity is essential for India's development of a Uniform Civil Code.

 

Emergence of a gradually more sensitised judiciary

Like Professor Derrett, I deeply admire Indian Judges, their alertness in most cases, and their appetite for creative lawmaking. It is evident that some senior Indian Judges have been engaged in a rethinking of strategies for dealing with family law issues. Kerala, in particular, is blessed with the massive input and continued presence of former Supreme Court Justice V.R. Krishna Iyer, the Lord Denning of India.

 

We saw earlier that in Indian divorce law, blind modernisation was beginning to beseen as undesirable from the 1980s onwards, and a more careful approach was gradually but by no means systematically taken.⁵¹ Looking more specifically at the facts and circumstances of each case, more courts sought to ensure now that women and children would not suffer, since it was obvious that men could often afford better lawyers and had unfair advantages.

 

While Parliament basically stopped making new family laws, Indian Judge in several High Courts and especially the Supreme Court became the main motor for important but initially almost imperceptible legal developments which also concern the question of the Uniform Civil Code. To an extent, this shift to the judicial arena and the resulting judicialisation is not unique to family law; it seems in line with the emerging juristocracy in Indian law as a result of public interest activism. It is more significant in the present context, though, that not only differences between male and female litigants or the disadvantages faced by children, but the economic consequences of their decisions began to trouble Indian Judges more and more and made them think about the implications of their decisions. V.R. Krishna Iyer had earlier had much to say on this during his time on the Bench.⁵²

 

Since India does not have and will never have a Western-style welfare state, it became necessary to embark on a major restructuring of family law policies, especially regarding divorce and maintenance after divorce. There was, during this period of several decades, a gradual shift away from the dogged demand for a Uniform Civil Code and uniform legal regulation for all Indians towards a system in which justice or nyaya as a relative matter reasserted itself. Of course, there were always some cases in which courts criticised the absence of a uniform civil code, and this kind of argument can still be heard and read from time to time.⁵³ Such cases may still cause the press to produce catchy headlines, but they are becoming noticeably rarer, while some older academics still enthusiastically propagate legal uniformity as a desirable aim for India today.⁵⁴

 

Most Indian Judges, it seems to me, have now become postmodern realists the Hard way. Thus, it has been held that where a litigating couple is desperately poor, the husband or wife could not be expected by the law to maintain the other, they would both have to suffer this misfortune together.⁵⁵ Where, on the other hand, one spousewas significantly better placed than the other, then the man, normally, has an obligation to share his wealth.⁵⁶ But modern Hindu law, in its enthusiasm for modernity, had also introduced in 1955 a rule that a Hindu wife might have to maintain the husband, if she was better placed than him. It is highly significant to observe what happens to Hindu men who try to argue that they should be maintained by their wife: Virtually ridiculed by the courts,⁵⁷ they are told to go out and work, unless they are disabled and of necessity dependent on the support of others.

 

The coded sub-text in such decisions appears to be that men, as controllers of most of the property and resources in India, are primarily liable for the welfare of any women and children that may be in need of support. This kind of moral responsibility is increasingly being turned into a legal obligation by the quiet activism or occasional deliberate passivism of the Indian judiciary.

 

The Shabano case as a catalyst for legal uniformity

This new dominant concern for social welfare principles in India was earlier implanted into section 125 of the new Criminal Procedure Code of 1973, which defined a 'wife' as including a divorced wife. Because that Code applies to all Indians, not just to Hindus, it now became possible for Muslim wives to expect some maintenance beyond the traditional iddat period of three months and to ask for lifelong maintenance.

 

The Shah Bano case eventually surfaced from this legal issue.⁵⁸ Well before the Shah Bano case, however, the Indian Supreme Court, through V.R. Krishna Iyer J. (as he then was) had already established in 1979 that a Muslim ex-husband would be exempt from further support for his ex-wife if the payments were sufficient for her 'to keep body and soul together'.⁵⁹ Thus, important social welfare consideration introduced by a combination of judicial activism and legislative alertness to assist divorced wives against vagrancy and destitution. When Shah Bano's husband engineered his case to get around the social welfare argument by the Supreme Court, the Judges of the Supreme Court, incidentally five Hindu Judges, struck back and held, rightly in my view, that even under the Qur'anic provisions, there was an obligation on the divorcing husband to be good and generous to his former wife, so there was no conflictbetween traditional shari'a and India's general law.

 

This case created enormous political outcry, perhaps not so much about the issue of maintenance as about the politicised football of the Uniform Civil Code, on which the Judges pronounced towards the end of the judgment. This seems to have caused widespread riots and protests, leading to a chain reaction which ended allegedly in Rajiv Gandhi quickly giving in to the rioting Muslims, drafting the Muslim Women (Protection of Rights on Divorce) Act of 1986 in record time to take away, so the dominant popular and academic understanding, all rights of divorced Muslim wives to maintenance from their former husbands.^60. Thus, we still read all the time that Muslim men were allegedly given exceptional privileges by the modern Indian state and got away, once again, on the basis of religious exemption. Closely linked to this was, then, the 'politically correct' argument that it would be much better to have a ur code for all Indians!

 

However, such politicised gossip constitutes cleverly engineered misinformation It is important to note that section 3 of the 1986 Act first of all holds the ex-husband liable for the continued welfare of the wife, and only after that the 1986 Act turns to her heirs and any Waqf Boards as potential support mechanisms. More significantly, no financial limits were laid down by the legislature in the 1986 Act. Despite much disapproval, there were no riots in India when this Act was passed, probably because the legislative and media-driven ploy worked, in that almost everyone was happy to believe that divorcing Muslim men now had no further legal responsibility for their ex-wives after the iddat period.

 

The Supreme Court, faced with many constitutional challenges to the 1986 Act, then sat on the Danial Latifi case for 15 years and kept a studied silence, leaving the 'hot' arena to the High Courts. Carefully testing the waters through obiter dicts in Noor Saba Khatoon 1997 (2) KLT 363 (SC), and some other cases, the Supreme Court gradually acknowledged that Muslim ex-husbands under the 1986 Act. like all Indian ex-husbands under the provisions of S.125 of the Criminal Procedure code of 1973, remained liable for the welfare of their ex-wife until they made adequate provisions for the woman's survival at a level that is appropriate to the parties.

 

But first of all there was deafening silence from the Supreme Court for 15 years perhaps a case of judicial passivism. Gradually an appropriate interpretation of the 1986 Act as an Act of personal law was documented in a large number of reported High Court cases, with particular strength and elaborate arguments in the Kerala High Court.⁶¹ The law of India gradually began to be that all Indian husbands would have to make provisions for the benefit of their ex-wives until they die or remarry, also Muslim men. Under the 1986 Act, Muslim husbands actually found with few exceptions that they were now subjected to a tougher regime of responsibility, since there were no upper financial limits and procedures were strictly time-bound, at least on paper.

 

Under section 3 of the 1986 Act, as interpreted progressively in Kerala and  elsewhere, a Muslim ex-husband would firstly have to maintain the ex-wife during the iddat period. This is what a decent Muslim should do anyway, but many fail to do. In addition, the ex-husband also had to 'make and pay' provisions, designed for the timeafter the iddat period, during the iddat period. Thus, once a divorced Muslim wife reached the end of her iddat period and the husband had not maintained her properly and/or had not made reasonable provisions for her future welfare, the ex-wife could now go to court to claim both entitlements. While this may have strengthened the bargaining position of Muslim wives, fieldwork suggests that going to court to enforce one’s entitlements remains a major problem for most women in India, perhaps especially so for lower middle class Muslim ex-wives claiming their rights under the 1986 Act.⁶² So the 1986 Act does not really work so smoothly in practice, but to what extent is it useful as symbolic legislation or as a tool of bargaining within society?

 

Towards legal uniformity despite personal laws

More recent legal developments in Indian law throw further light on this issue.⁶³while S. 125 of the Criminal Procedure Code of 1973 had an upper limit of 500/-, more recently increased to Rs. 1500/-, there were no financial limits for the Muslim ex-wife's entitlements under the 1986 Act and the level of a divorced Muslim wife’s entitlements depended on the financial circumstances of the spouses. There is indeed an instructive case, again from Kerala, where a rich Muslim woman wanted more money from her millionaire husband, and she got it.⁶⁴ No riots or public protests followed this decision, as far as I know. This may have provided further re-assurance to the faraway Delhi lawmakers, who appear to have been watching this scenario, that the climate was eventually going to be right for further steps in securing better financial protection to all Indian women.

 

As the majority of judicial interpretations of the 1986 Act shows, and certainlyafterDanial Latifi v. Union of India in 2001,⁶⁵ the Indian state has been prepared to sacrifice or de-prioritise the principle of formal legal uniformity in favour of supervening social welfare concerns of basic justice for deprived women. As matters stand at present,if the higher object of securing equitable legal entitlements can be achieved in other ways, more so if this is fiscally prudent, legal uniformity drops off the agenda as a central policy aim. Thus Indian Muslims can have or keep their personal law want them, but they certainly cannot wriggle out of the particular kind of social welfare obligations that have since 1973 applied uniformly to all Indians.

 

Possibly to avoid arguments that Muslim men were treated less favourably than all other Indian men when it came to regulations of post-divorce maintenance for ex- wives, the provisions of the 1986 Act for Muslims and of S. 125 of the Criminal Procedure Code of 1973 were harmonised, significantly also on 24^th September 2001, two days after the Danial Latifi decision, when Act 50 of 2001, the Code ofCriminal Procedure (Amendment) Act of 2001, was passed. It is important to examine impact of this small but highly significant piece of legislation. As I have noted earlier no explanation of legislative intent was offered. Whether this is purposeful silence, legislation by stealth, or a new strategy to reinstate a higher level of legal uniform not clarified at all.

 

It is evident that this Act seeks to achieve three important things at once. Firstly, the Act removed the earlier ceiling for maintenance in section 125(1) of the Criminal Procedure Code of 1973 for all Indians, which will probably now also encourage litigation by middle class wives and other needy relatives. Secondly, the 2001 Act introduces in a new proviso strengthened rights to maintenance pendente lite or interim maintenance, a good measure, given that many claimants suffer on account of tardy implementation of the law and delays in the process of making claims.⁶⁰ Thirdly, and closely linked, another proviso in this new law promises speedy disposal of such cases as far as possible, within sixty days from the date of the service of notice.

 

Conclusions

The Indian legislature thus (i) strengthened the uniformity of Indian divorce laws and (ii) re-uniformised the country's law on post-divorce maintenance in 2001, merely two days after the Indian Supreme Court as gatekeepers of the Indian welfare state system had firmly brought Muslim males back into the postmodern Indian net of social welfare arrangements without insisting on formal legal uniformity and creating riots. All of this can hardly be accidental, the timing is rather impeccable. What does all this mean for the Uniform Civil Code debate?

 

The newly conceived (and yet ancient and traditional) social welfare orientation of the modern Indian state has, in my view, relegated the old political football of the Uniform Civil Code to an even lower rank in the league table of national agenda. Striving for better financial security for wives (including ex-wives) and children, the potential and often actual victims of broken marriages, has clearly become more important to the Indian state than endeavouring to secure legal uniformity for the sake of legocentric dogma. More sharply analysed, though, the Indian welfare state, by saving itself from welfare claims by its own disadvantaged citizens of all religions, and ire burden back to divorcing men and even to the joint family system to save its own coffers, has precisely fulfilled its own constitutional directive of securing uniform legal provisions for all citizens of India, at least in the field of maintenancefor divorced wives. If asking for a full Uniform Civil Code was like asking for the moon then we should now have learnt that a mirror image of the moon may be quite adequate as a substitute. It is certainly a much more realistic form of legal regulation than a total reconstruction of the entire Indian legal system.

 

It also seems that this uniformised postmodern Indian law, which clearly retains the personal law system, has begun to incorporate some begun to incorporate some benign elements of traditional shari’a law which today's patriarchal South Asian Muslims and their jurists (including leading scholars like Tahir Mahmood) may not fully wish to accept. But in fact, this would not be the first time that a useful principle of Muslim law has become adopted elsewhere in Indian law.⁶⁷

 

I note finally that the long-awaited decision by the Indian Supreme Court in Danial Latifi v. Union of India, 2001 (3) KLT 651 (SC) and its pro-women approach has not been debated fully enough. This was rightly observed by Flavia Agnes, one of the major analysts of developments in Indian gender justice today.⁶⁸ One major reason for this remarkable silence following Danial Latifi appears to be that the decision represents a defeat for legal modernism, and is thus embarrassing to most traditional positivism-focused legal scholars. This then becomes a matter of legal theory and wider legal policies but also of intellectual politics in legal scholarship.

 

Whatever the politics, the mirror image of the moon of Indian legal uniformity is now fully visible in Indian divorce law, as shown above, and a faint reflection of the moon’s sickle has made an appearance now even in relation to the Indian laws on registration of marriage. The full moon is clearly reflected when it comes to post-divorce maintenance law in India. Never mind that most analysts at present will disagree with such sightings or reflections of the moon. Indian law, so much is beginning to be increasingly evident, has learnt that it cannot just follow outdated ideals of the 1950s, or supposedly superior foreign models. Rather, it has to strive to develop what Professor Masaji Chiba so ingeniously called the 'identity postulate',⁶⁹ a method to match law and people and their culture-specific ideas about what is right and wrong. A realistic, reasonable Indian law of the present and the future, it seems, has to match the unity in diversity of the Indian people as a whole. It remains strongly evident to me that lawyers in kerala have known this all along.

 

FootNote: 

1. Professor of South Asian Laws, School of Oriental and African Studies, University of London.

2. Most memorable, in 1986 three students accompanied me for field work, and we embarked on what was then pioneering work on legal aid clinics in Kerala, guided by an astute newly appointed Judge of the High Court of Kerala, now India's next Chief Justice.

3. Professor Derrett is soon going to be 84 years old. He was delighted when I told him about the present celebrations, the continuing progress of the KLT and the continued activisms of our favourite High Court in India.

4. See KLT 1999(2) J 15-19.

5. Menski, Werner (2006). Comparative law in a global context. The legal systems of Asia and Africa. Second ed. Cambridge: Cambridge University Press.

6. Fitzpatrick, Peter. 2001. Modernism and the grounds of law. Cambridge: Cambridge University Press, p. 129.

7. Article 44 reads: "44. Uniform civil code for the citizens. - The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

8. Examples would be the Federation of Russia and the erstwhile Republic of Yugoslavia.

9. Griffiths, John (1986). 'What is legal pluralism?'. No. 24 Journal of Leg, Pluralism and Unofficial Law, pp. 1-56, at p. 4.

10. In the Marriage Laws 1949-1994.

11. The Divorce (Religious Marriages) Act of 2002.

12. This is the effect of sections 19-25 of the Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004, a preposterous piece of legislation which raises serious human rights concerns.

13. SeeMalhotra.Vijay Kumar (1995): 'Why conflicting voices?'. The Hindustan Times, 5August 1995. Malhotra also wrote, tackling Muslim reluctance to submit to legal uniformity: "Religion and rites are two different things. The Hindus, Sikhs, Buddhis and Jains ave already forsaken their sentiments in the cause of the national unity. Other communities should also come forward and contribute to the integration of the Indian society to which they necessarily belong. No community should remain isolated on the . basis of religion and if everyone is really interested in weaving a fabric of commonnationhood, then parochialism should give way to more liberal and accommodative attitudes in matters like a common civil code".

14. AIR 1995 SC 1531 and 1995(2) KLT 45 (SC).

15. See Menski, Werner. 2002. 'Immigration and multiculturalism in Britain: New issues in research and policy' in Vol. XIIKIAPS: Bulletin of Asia-Pacific Studies, Osaka, pp.43- 66.

16. Ballard, Roger (1994). Deshpardesh. The South Asian presence in Britain. London : Hurst & Co.

17. Menski, Werner. 1993. 'Asians in Britain and the question of adaptation to a new legal order: Asian laws in Britain?' in Israel, Milton and Narendra K. Wagle (eds ) Ethnicity, identity, migration: The South Asian context. Toronto: University of Toronto pp. 238-268.

18. Shah, Prakash. 2005. Legal pluralism in conflict: Coping with cultural diversity in law. London: Cavendish.

19. Shah, Prakash. 2005.'Introduction: From legal centralism to official lawlessness?' in Shah, Prakash (ed.) The challenge of asylum to legal systems. London: Cavendish, pp. 1-11.

20. Borkowski, Andrew. 2002. 'The presumption of marriage'. Vol. 14No. 3 Child and Family Law Quarterly, pp. 252-266. Probert, Rebecca. 2002. 'When are we married? Void, non­existent and presumed marriages'. Vol. 22 No. 3 (September) Legal Studies, pp. 398-419.

21. Menski, 2006, as note 4 above, chapter 1.3.

22. Nandy, Ashis. 1983. The intimate enemy: Loss and recovery and self under colonialism. New Delhi: Oxford University Press, p. xi.

23. Apart from the important earlier writings of Vasudha Dhagamwar, a typical recent example of such scholarship would be Pereira, Faustina. 2002: The fractured scales. The search for a uniform personal code. Dhaka: UPL and Calcutta: Stri.

24. An insidious form of this is found in Bangladesh today, where not only Hindus, but also all non-Sunni Muslims are put under pressure by a local brand of parochialism, which some studies see as Islamic fundamentalism. For details see Menski, Werner and Biswajit Chanda (eds.) (2005). Cancer of extremism in Bangladesh. Proceedings of the European Human Rights Conference on Bangladesh: Extremism, intolerance and violence. London: CEMS at SOAS and Bangladesh Conference Steering Committee.

25. V.N. Khare, CJI (as he then was), in John Vallamattom v. Union of India 2003(3) KLT 66 (SC), concluded the judgement at p. 80 with a telling comment on the uniform civil code: "It is a matter of regret that Art. 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies".

26. The relevant provisions are found in sections 19-25 of the Asylum and Immigration (Treatment of Claimants, etc.) Act of 2004. These have the effect that a British citizen may not be allowed to marry a person of his or her choice (or to enter a civil partnership under the recently promulgated law on this matter) if that persons belongs to a category of people subject to specific types of immigration control.

27. See Shah, Prakash. 2005, as note 19 above.

28. On this see Iyer, V. R. Krishna. 2004. Leaves from my personal life. New Delhi: Gyan Publishing House, p.

29, where he recounts the effects of thirty days of unjust incarceration on his thinking. 29. A long time ago, Allott, Antony. 1980. The limits of law. London: Butterworths, warned about this for English family law, taking the example of the 'house-mate', in other words, unmarried cohabitation, which has become a prominent phenomenon in many Western jurisdictions, partly as a reaction to excessive legal regulation and state intervention in marriage and divorce law. 30. See Menski, Wemer. 1990. 'Uniform Civil Code in India: A false model for development?' in 1990(2) KLT J 3-10.

31. Pakistan is a case in point, on which I cannot comment here in much detail. But I refer to the important case of Allah Rakha v. Federation of Pakistan, reported at PLD 2000 FSC 1, and now pending on appeal before the Shariat Bench of the Pakistani Supreme Court. I predict that this case will be treated like the Danial Latifi case in India and will have to wait, probably many years, for a final decision until a politically opportune moment. The Federal Shariat Court of Pakistan clearly recognised in its decision that traditional Shari’a law (as Hartian primary rules) was superior to the state-made provisions of Muslim law as found in the Muslim Family Laws Ordinance of 1961, which are just Hartian secondary rules, matters of procedure and legal administration. Nothing else should have been expected in an Islamic state, but what then are the implications of this kind of judgment for assessing the role of the Pakistani state as a guardian of gender-justice and human rights in the field of family law? There are many open questions here, and answers will not be forthcoming for a long time, but the key issue is similar as in Indian law: Can the central state really regulate minute details of relationships between spouses, or is this a matter to be delegated to the personal and informal level, with state law exercising some kind of 'soft' supervision through the protective human rights net of the Constitution, but otherwise leaving the field to facilitative administrative procedures which remain, in essence, optional?

32. On globalisation see Robertson. Robbie. 1986. The making of the modern world. London Zed Books and Robertson, Robbie. 2003. The three waves of globalization. A historyof a developing global consciousness. Nova Scotia, London and New York: Fernwood Publishing and Zed Books. From an Indian angle, see Doshi, S. L. 2003. Modernity. postmodernity and neo-sociological theories. Jaipur and New Delhi: Rawat.

33. See Hinz, Manfred O. (ed) 2006. The shade of new leaves. Governance in traditional. authority: A Southern African perspective. Muenster: Lit Verlag Berlin. Namibia independent since 1990, has recognised in the Traditional Authorities Act, 1995 and now the Traditional Authorities Act of 2003 that traditional chiefs have significant legislative, adjudicative and administrative functions and the Namibian Constitution protects 'custom' as a source of law and contains a fundamental right to culture in Article 66.

34. See on this in detail Menski, Werner. 2001. Modern Indian family law. Richmond: Curzon.

35. See Shaji v. Gopinath, AIR 1995 Mad 161, S.C. Shanthi v. P. Venkatesh AIR 1996Mad 150; also Joyita Saha v. Rajesh Kumar Pandey. AIR 2000 Cal 109.

36. The relevant wording in the third Direction issued by the Supreme Court is: 'As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny". One notes that this subtly re-asserts the supervisory functions of the Supreme Court once Parliament has enacted a Uniform Civil Code which will of course, in my view, never happen.

37. See Derrett, J. Duncan M. 1957. Hindu law past and present. Calcutta: A. Mukheriee &Co.

38. See eventually Derrett, J. D. M. 1981. 'When is an 'own wrong' not a wrong? in (1981) IMLJ, J 13-16.

39. Derrett, J. Duncan M. 1970. A critique of modern Hindu law. Bombay: N.M. Tripathi.

40. See Derrett, J. Duncan M. 1978. The death of a marriage law. New Delhi: Vikas.

41. For example, Bikkar Singh v. Mohinder Kaur AIR 1981 P&H 391 and Som Dutt v. Raj Kumari AIR 1986 P&H 191. For further details see Menski, 2001 ,as note 34, pp. 106-110.

42. Especially the powerfully worded case of Soundarammal v. Sundara Mahalinga Nadar, AIR 1980 Mad 294.

43. For details see chapter 11 of Menski, Werner. 2003. Hindu law. Beyond tradition and.-modernity. New Delhi: Oxford University Press.

44. An unpublished socio-legal PhD thesis from SOAS discusses this issue in excellent-detail. See Holden, Livia Sorrentino. 2004. Seeking equity through custom: Divorce and remarriage on the woman's initiative in Hindu law. London: SOAS.

45. The case of Mary Roy v. State of Kerala 1986 KLT 508 (SC) and AIR 1986 SC 1011 is particularly well known in this respect. See also Mary Soniz Zachariah 1990(1) KLT 130. On Christian law, see Champappilly, Sebastian. 2003. Christian law on marriage, adoption & guardianship and Canon Law on marriage. Cochin: Southern Law Publishers.

46. See Mary Sonia Zachariah v. Union of India, 1995( 1) KLT 644 (FB).

47. Danial Latifi v. Union of India, 2001 (3) KLT 651 (SC)

48. See earlier vigorously Dhagamwar. Vasudha. 1989. Towards the uniform civil code. Bombay: Tripathi.

49. This became an issue in the Sarla Mudgal case, as note 14 above.

50. Mohd Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945.

51. See Menski, 2003, as note 43 above, chapter 11.

52. V. R. Krishna Iyer J (as he then was) declared in a Prefatory Statement to one of his landmark decisions in the Supreme Court. Bai Tahira v. Ali Hussain Chothia. AIR 1979 SC 362, at p. 362: Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Art. 15(3) of the Constitution must be light the meaning of the Section. The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. In the same case, at p. 365, the learned Judge found that a maintenance arrangement that "could not keep the woman's body and soul together for a day...unless she was ready to sell her body and give up her soul!" was totally unacceptable in Indian conditions of life and under any form of Indian law. Evidently, such fundamental lessons have not been forgotten.

53. One of the most recent examples of this is John Vallamattom v. Union of India, 2003(3) KLT66 (SC), cited in note 25 above.

54. See Kumar, Virendra. 2003. 'Uniform Civil Code revisited: A juridical analysis of John Vallamattom' in Vol. 45 Nos 3-4 [July-December] Journal of the Indian Law Institute, pp. 315-334.

55. In Sivankutty v. S. Komalakumari, 1988 (1) KLT 601, it was held that poverty is "a misfortune that has to be shared by the wife also".

56. In Gladstone v. Geetha Gladstone, 2002(2) KLT SN 126 (Case No. 155), it was held at p. 126 by K. Padmanabhan Nair, J that "[e]very Indian citizen is bound to maintain his wife and children. That is a tradition of the society".

57. Kanchan v. Kamalendra, AIR 1992 Bom 493.

58. Mohd Ahmed Khan v. Shah Bano, AIR 1985 SC 945.

59. Bai Tahira v. Ali Hussain Chothia, AYR. 1979 SC 362 and (1979) 2 SCC 316. See also note 52 above.

60. Even India Today, a major source of knowledge among middle class Indians and NRIs about Indian law, continues to rely on politicised hearsay, which has created serious misinformation in the general public. For an example of misguided academic writing along the same lines, see Sathe, S. P. 2002. Judicial activism in India. Transgressing borders and enforcing limits. New Delhi, Oxford University Press, p. 19.

61. See Ali v. Sufaira, 1988(2) KLT 94 and a large number of subsequent Kerala cases eventually also noted and cited by other High Courts.

62. See the important research reported by Vatuk, Sylvia. 2001. 'Where will she go? Whatwill she do?. Paternalism toward women in the administration of Muslim personal Law in contemporary India' in Larson, Gerald J. (ed.) Religion and personal law in secular. India. A call to judgment. Bloomington and Indianapolis: Indiana University Press, pp: 226-248.

63. See Menski, Werner. 2004. 'Reluctant legislative activism' in 2004 (1) KLT J 35-41.

64. Ahammed v. Aysha 1990 (1) KLT 172.

65. At 2001 (3) KLT 651 (SC)

66. See the research of Vatuk cited in note 62 above.

67. In 1976, the Marriage Laws (Amendment) Act inserted section 13(2)(iv) into the original Hindu Marriage Act, permitting a Hindu wife exit through divorce from a marriage into which she had been virtually forced, a rule taken from Muslim law.

68. Flavia Agnes, in conversation with Tanu Thomas K., in The Times of India, Delhi edition, 29th August 2003, said that "the press has chosen to ignore it and the general public unaware of it".

69. Chiba, Masaji. 1989. Legal pluralism. Towards a general theory through Japanese legal culture. Tokyo: Tokai University Press, p. 180. 

The Celebrated ‘Lalita Kumari v. Government of  U.P. and Others’;
A Cause of Confusion

 

(By Nizam Azeez Sait, Advocate, Alappuzha)

 

The Cardinal Issue Involved in the Case

 

As stated in the Constitution Bench Judgment in “Lalita Kumari v. Government of Uttar Pradesh and Others(2013 (4) KLT 632 (SC)), the important issue therein for consideration was “Whether a Police Officer is bound to register a First Information Report (F.I.R.) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 or the Police Officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?”

 

The Back Drop Facts of the Case

On finding his minor daughter missing, Bola Kamath immediately filed a ‘missing report’ in the local police station. Later Bola got information that his daughter had been kidnapped, which was reported to the Police. But the Police did not register a case. Subsequently he approached the Superintendent of Police and as per the direction of the Superintendent F.I.R. was registered. As still the case was not investigated he approached the Supreme Court under Art.32 of the Constitution for issue of writ of Habeas Corpus or direction(s) of like nature.

 

Reference to the Constitution Bench

The case originally came up before the Bench comprising of B.N.Agarwal and G.S. Singhvi JJ. The Bench expressed grave anguish on the issue of Non-Registration of F.I.R.s in cognizable cases and issued Notices to all Chief Secretaries of the States and also issued various interim directions. (See reported Lalitha Kumari Ordersviz.,

2008 (11) SCALE 154, 2008 (11) SCALE 157, 2008 (11) SCALE 158, (2008) 7 SCC 164). Later, noticing conflict of views the case was referred to a 3 Judges Bench. After detailed hearing, the 3 Judges Bench concluded as under: “..it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench of this Court for the benefit of all concerned--the Courts, the investigating agencies and the citizens.”(Lalita Kumari & Ors. v. Government of U.P.,(2013) 4 KLT 632 (SC)) Accordingly, the case was finally heard by the Constitution Bench.

 

The Main Provision on the Anvil of Judicial Interpretation in the Case

Section 154(1) Cr.P.C., reads as follows: “154. Information in cognizable cases.-
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”

 

The Gist of the Arguments before the Bench

The Counsel for the Petitioner, most of the Counsel appearing for different States, the Counsel for the C.B.I. and also the Counsel appearing for the Union of India contendedthat the provision is mandatory in nature and if the information given to a Police Officer relates to the commission of a cognizable offence, then it is mandatory for him to register the case as per Section 154(1) and no preliminary inquiry is permissible. They relied on a plethora of decisions including the 3 Judges bench Judgment in Aleque Padamsee and Others v. Union of India & Ors.(2007 (3) KLT 1028 (SC)). But a few otherscanvassed the contra view that the discretion for preliminary inquiry before registration of an F.I.R. should be held permissible in certain situations as in the case of doubt about the correctness or credibility of the information. The main architects of the pro preliminary inquiry contentions were the learned Senior Counsel Mr.Shekhar Naphade and Mr.Sidharth Luthra. They pleaded for framing of guidelines by the Court in this regard. The bone of their contentions inter aliaas discernable from the judgment could be catalogued as under:

 

1.Various police rules prevailing in Punjab, Rajasthan, U.P., M.P., Kolkata, Bombay, etc., provide for conducting an inquiry before registering an F.I.R. Reference was also made to Crime Manual of the C.B.I. to highlight that a preliminary inquiry before registering a case is permissible and legitimate in the eyes of law. (See para 17 of the Judgment)

 

2.The scheme of the provisions of Sections 41,57,156,157,159,167,190, 200 and 202of the Code must be read together and have a bearing on the interpretation of Section 154. Giving a literal interpretation would reduce the registration of F.I.R. to a mechanical act. The word “shall” used in the statute does not always mean absence of any discretion in the matter. (See paras.19 and 20 of the Judgment)

 

3.The power to carry out an inquiry or preliminary inquiry by the police, which precedes the registration of F.I.R. will eliminate the misuse of the process, as the registration of F.I.R. serves as an impediment against a person. (See para 17 of the Judgment).

 

4. Registration of an F.I.R. without any scrutiny whatsoever is an extreme proposition and is contrary to the mandate of Article 21 of the Constitution of India. The Ld.Senior Counsel pleaded that the provision should be interpreted in such a manner as to avoid the vice of arbitrariness and unreasonableness.(See paras 19 and 104 of the Judgment).

The Constitution Bench’s Rebuttal of the above Contentions

 

The Court addressed the above contentions and categorically rejected the same inter aliafinding as follows:

Section 154 Vis-a-VisPolice Acts and C.B.I. Manual

 

As regard the various inconsistent provisions in the Police Acts and the Rules/Manuals, the Bench held as under:

“If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act, 1861, with regard to the fact as to whether the F.I.R. is to be registered in the F.I.R. book or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus, F.I.R. is to be recorded in the F.I.R. Book, as mandated under Section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as F.I.R.(See Paras 47 to 63 of the Judgment).

 

As regards the reference to C.B.I. Manual the Bench observed as under;

“…this Crime Manual is not a statute and has not been enacted by the Legislature. It is a set of administrative orders issued for internal guidance of the C.B.I. officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the C.B.I. Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that the C.B.I. is constituted under a Special Act, namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.” The Court after referring to Ss.4 and 5 of Cr.P.C. further observed that;“In view of the above specific provisions in the Code, the powers of the C.B.I. under the D.S.P.E. Act, cannot be equated with the powers of the regular State Police under the Code.”(See paras 79 to 82).

 

Mandatory Nature of ‘Shall’ Preposition in the Scheme of the Code

The Constitution Bench after referring various Precedents and explaining the scope of the word “shall” in S.154 in the context of the scheme of the Code, categorically held as under;

“ the use of the word ‘shall’ coupled with the Scheme of the Act lead to the conclusion that the legislators intended that if an information relating to commission of a cognizable offence is given, then it would mandatorily be registered by the officer-in-charge of the police station. Reading ‘shall’ as ‘may’, as contended by some counsel, would be against the Scheme of the Code. S.154 of the Code should be strictly construed and the word ‘shall’ should be given its natural meaning. The golden rule of interpretation can be given a go-by only in cases where the language of the section is ambiguous and/or leads to an absurdity.” (paras 36-46 in the Judgment).

 

Misuse Apprehensions; Unfounded

 

Regarding the scope for the abuse/misuse of the process of F.I.R., the Court said:

 

“While registration of F.I.R. is mandatory, arrest of the accused immediately on registration of F.I.R. is not at all mandatory...” The Court referred Joginder Kumar v. State of U.P. & Ors. (1994)4SCC260),wherein it was held that there must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. The Court further opined: “The registration of F.I.R. under Section 154 of the Code and arrest of an accused person under Section 41 are two entirely different things…..It is the imaginary fear that “merely because F.I.R. has been registered, it would require arrest of the accused and thereby leading to loss of his reputation” …..The remedy lies in strictly enforcing the safeguards available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of F.I.R. when the information discloses commission of a cognizable offence.”

 

The Court also referred 41st Report of the Law Commission and highlighted the following point based on Section 157 of the Code:

“14.1. .... If the offence does not appear to be serious and if the station-house-officer thinks there is no sufficient ground for starting an investigation, he need not investigate but, here again, he has to send a report to the Magistrate who can direct the police to investigate, or if the Magistrate thinks fit, hold an inquiry himself.”

Ultimately, the Court said: “..the apprehension of misuse of the provision of mandatory registration of F.I.R. is unfounded and speculative in nature.”(See Paras 97 to 105).

Mandatory Nature of Section 154; Article 21 Challenge Fails

 

After extensive discussions on the above lines and specifically on the interpretational challenge based on Art.21, the Court concluded as under:

 

“There are already sufficient safeguards provided in the Code which duly protect the liberty of an individual in case of registration of false F.I.R. At the same time, Section 154 was drafted keeping in mind the interest of the victim and the society. Therefore, we are of the cogent view that mandatory registration of F.I.R.s under Section154 of the Code will not be in contravention of Article 21 of the Constitution as purported by various counsel.” (Para 105 of the Judgment).

 

The Contra Views and Perceived Contra Views in Some Previous Judgments

Let us briefly analyse some of such Judgments put forth by the ‘pro preliminary inquiry’ counsel.

 

P. Sirajuddin v. State of Madras – Corruption Matter

It is true that in P.Sirajuddin v. State of Madras((1970)1SCC595), in the context of corruption cases,the SupremeCourt,speakingthroughJustice Mitter, observed as under:

“Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.”

 

Jacob Mathew v. State of Punjab and Another – Medical Negligence Matter

 

The Judgments relating to Medical Negligence viz., Jacob Mathew v. State of Punjab & Anr.(2005 (3) KLT 965 (SC)) or Suresh Gupta v. Government of N.C.T. of Delhi & Anr.
(2004 (3) KLT 14(SC)),did not specifically deal with the issue of lodging of F.I.R. The cases primarily dealt with the issue regarding the facts to be proved for recording a finding of negligence by a Doctor. Doubting the correctness of Dr.Suresh Gupta, a two Judges Bench referred ‘Jacob Mathew’ to the 3 Judges Bench. The 3 Judges Bench inter aliaheld:

 

“Negligence in the context of medical profession necessarily calls for a treatment with a difference... The test for determining medical negligence as laid down in Bolam’scase (1957)1WLR 582, 586) holds good in its applicability in India.. What may be negligence in civil law may not necessarily be negligence in criminal law.”

 

Further the Court issued certain directions for protecting doctors from frivolous or unjust prosecutions. The Court inter aliasaid:

 

“The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’stest to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him).”

In ‘Jacob’, the Court never spoke about any preliminary inquiry or option of the Police Officer for Non Registration of a case or F.I.R. It is obvious that the above direction relates to the post F.I.R. stage as it refers to the unbiased opinion of Government doctor applying Bolam’stest to the facts collected in the investigation. In this context it is to be borne in mind that normally the F.I.R. precedes investigation. Therefore the restriction intended in ‘Jacob Mathew’ can only be with respect to the submission of Final Report under Section 173 of the Code and not with respect to the Registration of F.I.R. Moreover, if registration of a case is ‘proceeding against the doctor’, then conducting preliminary inquiry will also be no less than ‘proceeding against the doctor’. Registration of F.I.R. cannot be equated with prosecution of a Doctor.

 

It appears that the 3 Judges Bench and the Constitution bench in ‘Lalitha Kumari’ have misread ‘Jacob Mathew’ and ‘Dr. Suresh Gupta’, as providing latitude to the Police Officer in the matter of recording of F.I.R./registering of case.

 

Preeti Gupta v. State of Jharkhand – Family Matter

In Preeti Gupta v. State of Jharkhand((2010) 7 SCC 667), the Supreme Court, speaking through Justice Dalveer Bandari, expressed its concern over misuse of Section 498A of the Indian Penal Code and observed that a serious relook of the entire provision is warranted by the legislation. A copy of the judgment was sent to the Law Commission also, which evoked the 243rd Report of the Law Commission. The Court in this case never considered the issue or held that in matrimonial or family disputes preliminary inquiry is permissible before the registration of a case.

 

Sevi v. State of T. N. and Another (1981 Supp. SCC 43)

 In this case Justice O.Chinnappa Reddy, observed as under: “If the Sub Inspector is not satisfied on the information received by him that a cognizable offence has been committed and wants to verify the information his duty is to make an entry in the general diary, proceed to the village and take a complaint at the village from someone who is in a position to give a report about the commission of a cognizable offence. Thereafter, the ordinary procedure is to send the report to the Police Station to be registered at the Police Station by the Officer-in-charge of the Police Station.”

 

The case related to cryptic telephonic information relating to rioting and has no significance in cases where the information recorded clearly discloses the commission of cognizable offence.

 

Rajinder Singh Katoch v. Chandigarh Administration(2007(4) KLT 877(SC))-- Civil Dispute 

 

The case related to the alleged wrongful restrain of a Cosharer by his Cosharer brother from entering into the joint property (house), allegedly owned by 7 persons. The Supreme Court rejected the plea for registering a case by the Police. The Court speaking through Justice S.B.Sinha, held as under:

 

“Although the officer-in-charge of a police station is legally bound to register a first information report in terms of S.154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not.”

“Criminal proceedings, in our opinion, cannot be taken recourse to for enforcing such a civil right. In any event, in a case of this nature where the authorities bound by law have already investigated into the matter and found that the allegations made by the appellant against respondent No. 4 were not correct, it would not be proper for us to issue any direction to the respondent Nos. 1 to 3 to lodge a first information report.”

 

Shashikant v. Central Bureau of Investigation & Ors. ((2007) 1 SCC 630)

 

Upon an anonymous complaint alleging corrupt practices and financial irregularities on the part of some officers, a preliminary inquiry was conducted by the Central Bureau of Investigation in which the statements of various officers were recorded. However, the investigating officer was of the opinion that it was not necessary to register a First Information Report but recommended for holding of departmental proceedings against the concerned officers. The Supreme Court relied on Vineet Narain v. Union of India, ((1998) 1 SCC 226), while justifying the preliminary inquiry and dismissing the Petition, againspeaking through Justice S.B.Sinha, the Court observed:

 In Vineet Narain(supra), it was held :

 

“The C.B.I. Manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the C.B.I.’s functioning….” The court further observed:

 

“C.B.I. Manual provides for a preliminary inquiry. A preliminary inquiry in terms of Para.9.1 of the C.B.I. Manual may be converted into a regular case as soon as sufficient material becomes available to show that prima faciethere has been commission of a cognizable offence.”   

 

 (Note- Sub-section(2) of Section 2 D.S.P.E. Act provides that “subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout any Union Territory in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein”. This provision cannot be taken as empowering the Government to make Rules/Manual so as to override the general provisions in the Code including S.154… In this context it would also be worth noting that even the challenge to the legal existence of the C.B.I., which was established by a mere Resolution of Ministry of Home Affairs, Government of India, without any reference to D.S.P.E. Act, was upheld by a well reasoned Judgment of the Gauhati High Court in Navendra Kumar v. Union of India & Anr.(2013 Cri.L.J. 5009). However the operation of the said judgment has been stayed by the Supreme Court to avert undesirable consequences). The Court further observed in ‘Shashikant’ as under:

 

 Although ordinarily in terms of S.154 of the Code, when a report is received relating to the cognizable offence, a First Information Report should be lodged, to carry out a preliminary inquiry even under the Code is not unknown.

 

….In In re Rangarujulu,Ramaswami,J. of the Madras High Court described the following three stages a policeman has to pass in a conspiracy case:

“...hears something of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up informants and is in the second stage of qui viveor lookout; and finally gathers sufficient information enabling him to bite upon something definite and that is the stage when first information is recorded and when investigation starts.”

 

Information Indicating the Necessity for an Inquiry but not Disclosing Offence

 

The following view In Thulia Kali v. State of Tamil Nadu((1972) 3 SCC 393), has beenendorsed by the Constitution Bench:

 

“It is well settled that a first information report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence.”

 

Anonymous or cryptic or vague information or even rumors though would not in itself constitute information within the meaning of S.154 of the Code may alert the Police Officer to keep vigil or inquire, which may lead to information within the scope of S.154. In a case of ‘man missing’ the plain information as such will not disclose the commission of a cognizable offence but certainly it indicates the necessity for an inquiry so the practice in vogue has been to make a General Diary entry and conduct inquiry and only when information disclosing offence is gathered F.I.R. would be registered (Though in Bachpan Bachao Andolan v. Union of India(2013 (7) SCALE 509), the Supreme Court directed that F.I.R. must be lodged in all ‘Child missing’ cases). When there is no specific first informantthe Station House Officer can suo motualso register a case (See Section 157 of the Code).

The Constitution Bench in ‘Lalitha Kumari’ has held as under:

 

“If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted (only to ascertain whether cognizable offence is disclosed or not.)”.

 

Inherent Ambiguities and Vagueness in the Constitution Bench Judgment

 

In the Judgment, up until Paragraph 105, the Court vigorously thwarted all the arguments put forth in favour of any sort of preliminary enquiry by the police when information discloses cognizable offence. The Court many a times in unreserved manner stated that the Provision in S.154 of the Code is mandatory. For instance the Court in unequivocal words said:

 

“For “cognizable offences”, a duty has been cast upon the police to register F.I.R. and to conduct investigation except as otherwise permitted specifically under S.157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of F.I.R.s, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality.”(Para. 43)

 

Again the Court said; “Therefore, reading Section 154 in any other form would not only be detrimental to the Scheme of the Code but also to the society as a whole. It is thus seen that this Court has repeatedly held in various decided cases that registration of F.I.R. is mandatory if the information given to the police under Section 154 of the Code discloses the commission of a cognizable offence.”(Para 96).

 

The Court also emphasized the fact that the word information appearing in S.154 is not qualified by the terms like ‘reasonable’ or ‘credible’. Hence the Bench held that, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. (See para 67 of the Judgment)

 

But in Paragraph 106, titled ‘Exceptions’, the Court again after reiterating that S.154 of the Code is mandatory, in the same breath states that, “yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.” In that regard the Court cited and quoted from JacobMathew v.State of Punjab (supra). The Court also stated: “In the context of offences relating to corruption, this Court in P.Sirajuddin v. State of Madras (supra), expressed the need for a preliminary inquiry before proceeding against public servants.”

 

The Court in the concluding part of the Judgment further, under the title ‘Directions’, holds abruptly without much deliberation, as under:

 

“(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The categories of cases in which preliminary inquiry may be made are as under:

 

(a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution.The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” Here the Court has given it to the subjective satisfaction of the Station House Officer. The Court has also made the ‘preliminary inquiry’ time bound.

 

As per the doctrine of separation of powers enshrined in our Constitution, Law making is not generally the function of the Courts. After having interpreted the provision in S.154 of the Code as absolutely fair and reasonable on the touchstone of Art. 21 and mandatory, how the Court on its own could exempt certain categories of cases from the purview of such mandatory provision and also provide that: “The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry?” It could have been left to the wisdom of the legislature, to exempt certain categories of cases or not to do so. Obviously it was not a reading down exercise to bring the law in conformity with Art.21. When there is clear provision dealing with the matter even Art.142 of the Constitution cannot be resorted to rewrite the same. The Court cannot blow hot and cold at the same time. But, here the Court in the first instance constructed a dam, strengthened it with valid legal reasons and blocked the water from flowing away and instantly thereafter with the same hands carved open a hole on the dam to allow whole of the water to escape without assigning any legally sustainable reasons. It is like glowing both red and green lights simultaneously on a traffic signal post.

 

Another strange direction in the Judgment is as under:

 

“The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.”

 

If taken literally, the Court has restricted the preliminary enquiry to the interpretation of the information so as to see whether, on the face of it, commission of a cognizable offence is disclosed. But the exemption of certain categories of cases from the mandate of Section 154 of the Code and the subsequent residuary provision “The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry” suggests that the ‘Preliminary inquiry’ referred therein is not merely an interpretational inquiry but a fact finding/fact verifying inquiry. Moreover, the said residuary provision virtually gives unqualified discretion to the police officer to register or not to register F.I.R. upon any type of information, which runs counter to the earlier affirmed mandatory nature of Section 154 of the Code and the categorical denial of any latitude to the Police Officer when the information discloses cognizable offence. Therefore, the Judgment in its practical application has become vulnerable to support divergent interpretations/views on any same fact scenario.

Magistrate/Special Court’s Power to Order Preliminary Inquiry; ‘Lalita Kumari’ Jurisprudence?

 

Recently, a Single Bench of the High Court of Kerala in Sanker Reddy v. Chief Secretary (2016 (4) KLT 538), upheld the order of ‘the Court of the Enquiry Commissioner and Special Judge (Vigilance)’, as per which, a direction for preliminary inquiry was issued upon allegation in the Complaint that the Petitioner, a top ranked Police Officer attempted to “hush up the issues” for helping the accused, the then Finance Minister, in a previously ordered investigation with respect to alleged large scale corruption. The complainant alleged that such attempts “are writ large from the contents of the Case Diary of that case”, therefore order for conducting the Preliminary inquiry was made after calling for and perusing the Case Diary of the said investigation. The High Court said:

 

“True that in ‘Lalita Kumari’, the Apex Court was dealing with complaints being filed regarding corruption cases directly before the police. At the same time, the aforesaid mandate contained in ‘Lalita Kumari’ clearly covers a situation of the present kind also. If the information contained in the complaint does not disclose a cognizable offence; but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not. Here, in this particular case, serious allegations have been raised against a Senior Superior Police Officer. In such case, the court below was very vigilant in not ordering an investigation under S.156(3) Cr.P.C. After perusing the Case Diary, the court below had ordered a preliminary inquiry as per the mandate in ‘Lalita Kumari’, in order to ascertain whether a cognizable offence is disclosed or not in the complaint.”

 

If the scope of the preliminary inquiry is only to ascertain whether a cognizable offence is disclosed or not in the complaint, then it would be better for the Judicially trained Special Judge/Magistrate to do that at his end rather than leaving it to the less equipped Police Officer. But on a whole reading of the Judgment it would appear that the scope of the ‘preliminary inquiry’ is beyond that. At any rate, in ‘Lalitha Kumari’ there are obvious ambiguities and lack of proper guidance as to the scope of the ‘Preliminary Inquiry’ by the Police.

Generally the courses available for a magistrate when a complaint is filed are as follows:

 

(a) When it does not contain allegation of facts constituting an offence/lacks cause of action, then, it is not a proper complaint and the court can reject the same as a case of institutional defect (see the definition of complaint in S.2(d) of the Code), (b) Can direct an investigation after registering a case by the Police under S.156(3) of the Code (c) Take

 

cognizance and proceed under Chapter XV of the Code.

 

Now the High Court of Kerala in ‘Sanker Reddy’ has approved one more option, which is of ordering ‘preliminary inquiry’ purportedly as per the mandate in ‘Lalita Kumari’.

 

Obviously, ‘Sirajuddin’ stands approved in ‘Lalitha Kumari’. But, in this regard it may be recalled that in Madathil Marakar Haji v.Vakkom B. Purushothaman &Ors.(2007 (4) KLT 659), another single bench had held that the Magistrate/Special Judge cannot direct such a preliminary inquiry upon a complaint. The Court observed:

 

“..the order passed by the Special Judge in a complaint received by him under S.190 of the Code to conduct ‘vigilance enquiry’ or ‘preliminary enquiry’ by VACB cannot be said to be in tune with the dictum laid down by the Supreme Court in Sirajuddin’scase. Every Criminal Court is bound to act in accordance with the provisions contained in the Code, while dealing with criminal cases, unless any Special Statute provides to the contrary.”

 

In ‘Madathil Marakar Haji’ the earlier contra view in Biju C. Valluvanandan v. State of Kerala, 2004 (3) KLT 296, was held to be ‘per incurium’ and in ‘Sanker Reddy’ the Court did not notice ‘Madathil Marakar Haji’. Now the conflict of views has to be resolved by a larger bench.

 

It is submitted that when it is found that S.154 of the Code is mandatory when the information discloses commission of cognizable offence and the law as laid down by the various decisions of the Supreme Court has ensured that the police cannot arbitrarily arrest and there should be independent reasonable justification for effecting arrest, the conduct of ‘preliminary inquiry’ instead of ‘regular investigation’ will not make much of a difference on the reputation/stigma/misuse aspects as often projected, even in cases with respect to public servants or doctors or with respect to any other category of cases.

 

Conclusion

Some of the Counsel before the Constitution Bench submitted that the court should choose a ‘middle path’ rejecting both the extreme propositions. But, it appears that, in the end, in the process of trying to cut open some sort of a nonexistent ‘middle path’ the Court got itself landed in the dark and obscure ‘no-man’s-land’ far from the maze. In the result, the Judgment has rendered itself legally inoperative/purposeless by reasons of its inherent ambiguities and vagueness as explained above. Now it has become the need of justice that the Supreme Court should through another Constitution Bench or otherwise put some light on the issue by coming up with the required precision and clarity for settling the correct law on the subject. In other words, the confusion caused by ‘Lalita Kumari’ should be put to rest at the earliest opportunity.

 

Tail Piece:To err (in Judgment) is humane; my critical views on the Constitutional Bench Judgment i.e. ‘my judgment of the judgment’ may be sound or may be erroneous, but those are my bona fideviews. In India the Supreme Court is regarded as ‘the Sentinel of thequi vive’. A citizen’s constitutional rights including freedom of expression have always been zealously guarded by this great institution. I humbly salute the Hon’ble Supreme Court for what it has generally been for over 60 years.

Remembering My Senior, Late Sri.V.S.Muthuswamy Iyer, Advocate:

Doyen of the Palakkad Bar

(By R. Harishankar, Advocate, High Court of Kerala)

 

On 3rd December, 2016, Advocate Sri.V.S.Muthuswamy Iyer passed away at the age of 80 after having practised law with great distinction for 57 years. Any judicial officer who had the privilege to hear him and any advocate who had the privilege to brief him would unhesitatingly agree that Sri. V.S.Muthuswamy Iyer was both an astute lawyer and a great advocate.

 

It is with deep sorrow and trepidation that I embark upon to enlist the experience I had with my senior: late Sri.V.S.Muthuswamy Iyer, who was popularly known as VSM amongst the members of Palakkad bar. The trepidation is attributable to the simplicity and sublime nobility of character of Sri.VSM who stood tall among his contemporaries. The simplicity and sublime nobility of character of Sri.VSM was attributable, in my humble view, to the vast knowledge of law, religion, spirituality, political science et cetera possessed by him. The vast knowledge was acquired painstakingly by continuous self-education.

 

Sri.VSM was born on 16.08.1936 at Vadakkencherry, Palakkad. He was the second son of late V.S.Subramanya Iyer and late Lakshmi Ammal. In 1959, Sri.VSM enrolled as an advocate in the Madras High Court. His beloved father had a desire to see Sri. VSM practise law in Palakkad. Accordingly, Sri.VSM began his career in law under the tutelage of Sri.S.R.Ramakrishna Iyer, Sri.L.S.Viswanatha Iyer and Sri.P.B.Menon. Sri.P.B. Menon, the lone nonagenarian lawyer of Palakkad bar, is still in active legal practise. An interesting fact is that Sri.VSM attended the chambers of his seniors, one after another daily; until he became confident of conducting cases independently!

 

Many of the advocates who practised under the rigorous tutelage of Sri.VSM achieved success in the practise of law. Sri.VSM was a senior friend of my father Sri.K.Radhakrishnan, Senior Advocate. In the year 2010, Sri.VSM was afflicted with pulmonary fibrosis. However, the disease did not deter Sri.VSM from accepting my father’s request to have me as his junior. I still fondly remember the first time I met him at his chambers in December 2010. Three things struck me. The first thing which struck me was the politeness with which he spoke. Secondly, the gentle smile on his face was very reassuring. Thirdly, his outlook towards law as a profession and not as a business. At the age of 74, inspite of his illness; Sri.VSM resumed active legal practise; on my joining his chambers. During the hiatus, his chambers were managed with dexterity by Adv.Sri.V.M. Prasad and Adv. Smt.Sheela Prasad: son and daughter-in-law of Sri.VSM. I was the penultimate junior of Sri.VSM. I came to understand, belatedly, that Sri.VSM resumed active legal practise to oblige the commitment made to my father.

 

Sri.VSM was a civil lawyer. However, one could approach him with any legal problem as he had profound inclination to learn and discuss about new issues connected with any branch of law. Every discussion with Sri.VSM was brief and enlightening as he came out with interesting solutions to the complex legal problems faced by his clients. Each document brought by the client was read and understood thoroughly, before he questioned the client about various facets of the factual matrix explained by the client and the contents of documents. The questioning was done to ensure that the client had a genuine case and evidence to substantiate the case. Once he was satisfied as to the genuineness of the case, he would suggest the courses open to the client. Sri.VSM believed and fought tirelessly and tenaciously for triumph of truth. Even at the age 74, Sri.VSM worked for around 12 hours a day. He did not encourage his clients to venture into litigation. Instead, he requested the clients to attempt settlement.  It is only when the clients returned back to report that the attempt to settle was an exercise in futility, Sri.VSM would file Original Suit. An important quality which Sri.VSM inherited from his senior Sri.S.R.Ramakrishna Iyer was the discipline to arrange the case file in the right order. His case files contained the most relevant papers and documents. Astoundingly, Sri.VSM could pick up any pleading, document or an exhibit even when there was no supply of electricity! He was an advocate who made friends out of clients and not clients out of friends. I sat to his left in his huge consultation room at his chambers at Palakkad. Witnessing the manner in whichnSri.VSM interacted with his clients was a great learning experience. Frivolous litigation was not his cup of tea. However high the offered fee, Sri.VSM always rejected, deprecated and deplored frivolous and vexatious litigation. He genuinely believed that a client must not suffer on account of financial incapacity to engage an experienced lawyer. He did many cases without charging any fee. Once an old lady visited my senior’s chambers with ` 5000 and told my senior that 20 years ago, my senior had conducted her case without fee successfully.  However, the fee is brought now as her children are well placed. Another noteworthy facet is that Sri.VSM never charged fee for cases pertaining to temples.

 

Sri.VSM was an ideal senior who wanted his junior to read all his briefs and do research on various propositions of law. The only thing he expected from his junior was commitment to legal profession. He was one of those rare seniors who did not spoil his juniors by offering huge sums as incentive. Instead he offered as incentive sufficient time to his junior to clear a doubt and explain best points of law and fact in a case, access to his wonderful library, chance to be part of his interactions with clients, permission to carry case files home for reading and doing in-depth research, confidence to conduct cases independently and last but not the least blessings and wishes, all of which I cherish with gratitude.

 

In the Court, Sri.VSM was bold, friendly and approachable by anyone. He was very kind and generous to advocates. He always took great care and helped young advocates on being approached for help. Before his case would be taken up for hearing on any interlocutory application, examination of parties or final suit hearing, my senior spent time inside court reading any informative journal as he believed wasting time was inappropriate. Sri.VSM had great advocacy skills and had mastered the art of cross examination. He had enough industry to succeed without intellect and enough intellect to succeed without industry. During the entire court proceedings, Sri.VSM never lost his cool either at the Judge or at the defendant/respondent while being cross-examined or at the opponent advocate. Supreme command over English language was his hallmark. However, unusually he had supreme command over Malayalam and Tamil. I still remember how he left the Principal Sub Court, Palakkad presided over by Sri.A.V.Narayanan (Former Principal Sub Judge) and the entire lot of people in the court spellbound with his 45 minutes final arguments in an Original Suit in Malayalam!

 

According to Sri.VSM, in the Profession of Law, Gurukula system is the method for achieving perfection – 4 methods to derive knowledge and expertise are – Quarter of it from the Teacher, a Quarter by self effort, a Quarter from friends and the last Quarter by experience. By his passing away, we have lost an Original Thinker, Eminent Lawyer, Ideal Senior and most important of all a Great Human Being.