On the Limits of Public Interest Litigation

 

(By Dr. Werner F. Menski, SOAS, London)

 

Two interesting cases recently decided by the Kerala High Court deserve some comments in the wider context of public interest litigation (hereafter p.i.1) in India. They are Geetha Timbers v. State of Kerala [1990 (1) KLT 402 (F.B.)] and George v. Circle Inspector of Police [1990(1) KLT 741]. Neither case is a classic p.i.1. case, but they are writ petitions under Art.226 of the Constitution. In both cases, the learned Judges of the Kerala High Court showed astuteness and vigilance in commenting on the limits of p.i.1. and of the High Court's writ jurisdiction. This does not entitle the enemies of p.i.1. to any sense of victory, however, for both judgments are a victory for common sense. Above all, they show litigiously inclined strongmen that p.i.1. will not be allowed to be abused for their benefit.

 

In Geetha Timbers the court felt snowed under by "an avalanche of exhibits and pleadings" (p.403). The case report indicates a long history of this litigation, dating back to the early 1960s, when the Kakki reservoir was inundated and huge quantities of timber of varying quality were carelessly left to rot in the mud. It is an indication of growing awareness about pollution (in this case by hydrogen sulphide) that the State officials subsequently made determined efforts to get rid of the timber. Surely, if the officials in charge had acted responsibly and efficiently in the first place, the forest areas could have been cleared before they became submerged. This would not only have saved a lot of taxpayer's money, but also much precious court time. This issue does not become relevant during the hearing, since Mr. Justice K.A. Nayar, who speaks on behalf of the Bench of three comes to the conclusion that we have a works contract here in the nature of a salvaging operation, rather than a contract for the sale of forest produce, (p.411)

 

Normally, in contractual matters there should be no need to use a writ petition under Art.226. But probably a widespread feeling among Indian lawyers (I may be wrong, but just how widespread this is one cannot quite assess from London) that p.i.1. petitions are an ideal new weapon in their armoury has made Geetha Timbers just that little bit more interesting. Apparently, the petitioner company had pressed the original petition of 1985 as a public interest litigation (p.404), with the argument that "the price fixed is extremely low and therefore public revenue is lost to the Government" (p.415).

 

This, however, seems to be a clever cover-up argument to gain access to the court-room. It is quite apparent otherwise that the petitioner, a powerful forest contractor company, in fact challenges the decision of a government department to allow an equally powerful rival company to walk away with a large amount of admittedly low-quality, but nevertheless quite valuable timber from the Kakki reservoir at a cut-price. In other words, here is a strategy to beat your rival by whatever means possible through the clever use of law.

 

The court attempts, for a little while, a discussion of the argument that judicial review is concerned with the decision-making process rather than the merits of a decision. But one can really find little fault with the Government's decision, especially since the petitioner company never put in a tender for the wood in the first place and the Court seems tired with this continuous quibbling of the two rivals.

 

It is not new that in such situations Indian Judges throw up their hands in disgust and decline to act as the petitioner wishes them to. The apparent refusal of the Kerala High Court to get involved any further in this particular contest looks very similar to the reaction of courts in 19th century British India, as important recent historical research on South Indian court cases by Dr. Pamela Price at Oslo University is showing.

 

If this had been a proper p.i.1. case, the Judges could not have acted like this. But in the present case, the Full Bench declines to make any comments on p.i.1. itself and simply turns the argument of the petitioners around. Thus, Mr. Justice K.A. Nayar takes this rather weak p.i.1. bull by the horns and declares that public interest will be safeguarded if the parties are directed to work out their rights under the existing agreements, which had already received court sanction at earlier stages of this protracted litigation. In other words, the parties are told to go away and to give up the idea of writ petition. There is also a hint of advice to the government that since now a higher price for the timber had been offered by the petitioner company, the government should make the best of the situation and accept the most competitive price for the remaining timber (p.416).

 

The case of George [1990 (1) KLT 741], in contrast, is a very recent litigation struggle and is described as a typical police protection case. The petitioners are the joint owners of a substantial rubber plantation. On 14th February 1990, they sold the right to cut and remove 2250 rubber trees from the estate during the following two months to a company that then apparently violates local labour agreements and runs into trouble the very next day, when the attempted slaughter tapping of the trees is halted by obstruction from certain trade union activists. So again, this is a local power struggle in which the High Court is asked to intervene.

 

One cannot quite see at first where the public interest element is in this case. The petitioners complain, rather too vaguely as we shall see, that while these disturbances were going on, the police remained rather inactive "due to political influence and for extraneous reasons" (p.743). The petitioners prayed for the issue of a writ of mandamus compelling the police authorities to give them adequate protection.

 

Now, it could have been argued with some force that it is a matter of public interest that the local police should protect citizens from the harassment of others and should not stand by or keep a low profile. The remedy of a writ of mandamus seems ideally suited for this kind of action, as the Court indicates in so many words. There are surely many situations in India when, for example, low-caste people suffer atrocities and the police does not act. In Britain, where p.i.1. does not exist yet, though some of our Judges are quite impressed with its Indian avatar, we are sooner or later going to see a police protection case in which charges of racial discrimination are made against a predominantly white police force that often looks the other way, or arrives when it is too late, when "Asians" or other ethnic minority people are facing harassment. So here is a public interest element that could have been elaborated on.

 

But of course we have, in this case, propertied men as petitioners, and they seem to have their own reasons to be vague. Their counsel remained very unspecific and either did not do his homework or had his own reasons not to provide more detail. Such a weak petition for a writ of mandamus was, of course, immediately challenged in the High Court as being without bona fides and it was also submitted that the allegations made are of a vague and very general nature.

 

The answer to this is quite remarkable and shows how p.i.1. can be misconceived or deliberately misconstrued. Counsel for the petitioners submitted, presumably in all seriousness, that the writ jurisdiction of the High Court under Art.226 is very wide and that "in these days when 'public interest litigation' is taken up or encouraged by the Supreme Court and the High Courts, no emphasis or importance to the form of the petition or absence of necessary particulars should be given" (p.745, emphasis added).

 

Not surprisingly, Mr. Justice Paripoornan, speaking for himself and Mr. Justice Jagannadha Raju, immediately finds that the absence of proper particulars warrants a dismissal of the petition. The learned Judge agrees that the High Court is not bound by technical rules in extraordinary situations or cases of the familiar p.i.1. type (p.746), but emphasises that in normal circumstances the Court would rightfully expect full details of the pleading, so that "the exercise of this 'reserve power' is resorted to only in rare cases to meet extraordinary or special or grave situations or emergencies, to remedy palpable injustice or hardship and that cannot be relied on, to completely overlook or ignore the ordinary, normal rules of procedure and practice" (p.747).

 

So, together with counsel for the petitioners we receive here an elementary lesson about one of the limits of p.i.1. petitions. Where exactly 'palpable injustice' or 'hardship' begins is not indicated by the learned Judge, but the message is clear enough. It may well be that the Court was slightly doubtful at the end whether it had not treated the petitioners too hard, since it virtually issues an invitation to come back to the Court, should the factual situation change (p.750). However, one could read this just as much as a warning to the police authorities and the persons that caused the obstructions.

 

Since the Court also finds that the statutory duty of the police authorities could be enforced by civil action in an ordinary court, and the petitioners have not exhausted that option, this case is forcefully dismissed on the ground that a prima facie case has not been made out.

 

Both cases, then, teach us something about the limits of p.i.1. for the ordinary litigant, i.e., for someone who has enough money to pay lawyers. The message is clearly that you cannot resort to p.i.1. to harass your rivals or enemies! Thus, the High Court of Kerala has firmly held that it is not willing to listen to the legal quibbles of 'men with long purses' under its writ jurisdiction. Equally important is the fact that the learned Judges of this High Court have strongly rejected the idea that in the age of p.i.1. one can dispense with properly documented petitions and let the Court do the lawyer's work. These two cases as a reminder to litigious local strongmen that the Courts will not be impressed by the one who merely shouts loudest that he has suffered injustice. There are no limits to the 'real' p.i.1 in India, but there are firm rules for its impostors.

Comparative Legal Training in Action: A Reluctant Defence of Polygamy

 

(Dr. W.F. Menski, S.O.A.S., London)

 

This article responds partly to an essay at 1989 (1) KLT J 47 - 58 (Khan 1989). As the title indicates ('Islamic polygamy - a blessing in disguise'), Mr. Khan wrote in defence of polygamy as an institution. However, while some points raised by the learned author are quite acceptable, his chain of argumentation shows serious flaws and logical fallacies which need comment in the wider context of the communal politics of modern Indian law and the debate on the Uniform Civil Code.

 

The essay appeared at a convenient time for me to use it as a tool to train students in the skills of dismantling a legal argument and of constructing an adequate response, with the aim of encouraging constructive criticism, an art that needs to be practiced. Our resulting comments are here prefaced with some remarks on teaching young lawyers appropriate skills.

 

The need for more appropriate legal training

 

Legal practice, we are often told, is centrally concerned with justice and the public interest. In real life, though, lawyers are frequently tempted to put narrower or private interest first. Does legal training encourage deviousness? There are remarkably many lawyer-politicians in the world, certainly not for want of legal business. The consequences for legal development and for development processes generally, may become significant, especially if certain class interests gain priority (for India see Bardhan 1984). In such contexts, there are many incentives to play tricks on justice; in fact, the image of a blindfolded Justitia may have helped to encourage such attitudes.

 

Notably, the ancient Chinese, in line with many other traditional cultures, maintained a skeptical view of the role of lawyers, who were described as something like 'litigation tricksters' and whose activities were officially discouraged (van der Sprenkel 1977: 69). Aspiring government officials were expected to study the Confucian classics rather than law, for which, like in ancient India, there was no exact equivalent in the language. Contemporary China, too, has not developed a consistent attitude of faith in lawyers and legal studies and remains distrustful of a specialist science that often holds itself out as divorced not only from religion and morality, but also separate from philosophy, sociology and related academic disciplines.

 

In any legal system, in my submission, the training of young lawyers is much more than a matter of academic or practical routine. One is at the same time in the business of forming personalities and character-building, increasing knowledge and developing skills. A holistic view of legal training is, however, not often taken, and is certainly not taken seriously enough, in Britain as well as in India, with the inevitable result that much lawyering remains not only bad craftsmanship, but often morally dubitable.

 

Solid legal training must insist that students pay attention to the grand concepts of law as much as to little technical details. In my experience, young lawyers who do not bother to spell correctly will also not follow precision in their argument. The same individuals may also show scant regard for the moral dimensions of legal work. If such individuals 'make it' to the profession, all too often, in the end, the burden falls on an already overworked judiciary to tutor and correct such lawyers and to keep them in check. For it is ultimately the judiciary that has to ensure that the often feeble voice of justice is heard in the jungle of conflicting and sometimes self-contradictory submissions with its cacophony of disharmonious and twisted noises from a variety of sources. Indian law has a number of fine examples of judicial perceptiveness in this regard, even in such grand cases as Kesavananda Bharati ((1973) 4 S.C. C. 225).

 

Concern with developing appropriate forms of legal training leads one to the idea that, apart from teaching 'the law', we must focus student attention on legal methods and skills. But it is not sufficient to nurture the art of developing one's own argument in a coherent fashion; equal importance must be given to the cultivation of another, closely related skill, taking a critical view of one's own or, better at first, someone else's product or argument.

 

Thus, I now regularly expect students to produce a critical analysis of a piece of academic legal writing, be it a learned article, a chapter from a book or a case report. This may be hard initially, as one has to overcome certain barriers, but the capacity for critical and rational analysis or arguments put forward by another person is a crucially important skill, not only for lawyers. This technique is also practiced in moot competitions, though in a more instant and therefore often haphazard fashion; it is much needed in later life, in court as well as in office situations.

 

There are obvious differences between responding to an argument in a courtroom situation and answering a point made in writing. Some of us are good in one, but not the other. Ideally, both types of skill should be taught, and they can be taught! It seems to me, however, that the academic stage of legal training, in Britain as well as in India, does not pay sufficient attention to this aspect. Some recognition of this deficiency is now evident in Britain: the professional stage of legal training at the Bar has been restructured to place greater emphasis on practical skills rather than the unreflected acquisition of masses of information. India, too, would benefit from some reform in this area, though an appropriate training 'on the job' does often take care of this matter.

 

With these issues in mind I invited my students of 'Law and Society in South Asia' to sharpen their skills of analysis and adequate response. Mr. Khan's essay, on a tricky issue of family law, proved ideal for this. Last year's group had done a similar exercise on an article on divorce (See Haq 1988 and Menski 1989), now the issue was polygamy, or was it Islamic polygamy? Or what was it really?

 

An Indian Lawyer's defence of polygamy

 

The article we comment on here was written by a Reader in Law at Aligarh Muslim University, no doubt a respectable place of learning in India. It appears to be a serious piece of scholarship, but it combines a number of skillfully constructed arguments with a few academically questionable elements. The resulting self-contradictions are not difficult to locate, but to fully disentangle the complex network of logically sound and unsound arguments and to separate fact and ideology in this article was a hard nut to crack. Most of my 20 students, who come from all over the world, have no axe to grind with the author, and include many Muslims, found themselves shocked into action by this essay. The present response is to a considerable extent based on our collective efforts.

 

It is fairly apparent that the article falls basically into three parts. The first, after a short introduction (the first para), argues that polygamy was, and continues to be, a universal phenomenon (pp.47-49) and, less convincingly, that it remains "an important social institution" (p.47). The second part (pp.50-53) focuses on the nature and extent of polygamy in Islam, while the third (pp.53-58) presents a range of social, moral and even natural justifications for polygamy. The article concludes, in the last three paras, with some important comments on the place of polygamy in modern Indian law. We shall have to return to those comments later, for only at this late point, as it were, is the parda of rhetoric, in which the arguments are clothed, slightly lifted to reveal a glimpse of the true message of this article: Hands off Islam and Islamic law! Hands off Muslim polygamy! No state interference in Islamic law in India!

 

The underlying central argument of the essay is remarkably similar to that advanced a few years ago by the leading Muslim law scholar in modern India (Mahmood 1986) and is in line with the reasoning of other Muslim scholars (e.g. Haq 1988) that Islamic law provides a useful model for the development of modern Indian family laws. In principle, the essay adds nothing new to the discussion, but it introduces an unfortunate tone and goes too far in its advocacy of polygamy.

 

It is probably common knowledge that the introductory and concluding parts of a piece of writing often provide much insight into the author's arguments. We have just looked at the conclusion; let us now turn to the introduction, which contains several crucial clues about how the writer perceives the issue under debate and how he intends to argue. Since he starts, in my submission, on the wrong foot, we need a disproportionate amount of comment on this short paragraph.

 

The argument begins in a very defensive mould, stating at once that polygamy is the most criticised aspect of Islamic family law and that Islam has been misrepresented by Western and non-Muslim writers so as to make it look repulsive. This is, of course, to an extent, true not only for polygamy, but for many aspects of Islamic law, notably criminal laws. By adopting a defensive posture, characteristic of minorities who see themselves as oppressed or threatened, Mr. Khan introduces at once an unfortunate antagonistic undertone which has evidently distracted from the real issue. Instead, a rather demagogic strand of argument continues. Thus I doubt whether it is factually correct to state generally that Islam has been charged by the West or now, more recently, "in free India by enemies of Islam" with "originating and advocating polygamy" (p.47).

 

It would be wise to rely on historical facts here rather than bloated arguments: Nobody could reasonably maintain that Islam invented polygamy. As a late-comer to the club of world religions, it could not really be charged with 'originating' very much, least of all polygamy! Mr. Khan himself clarifies this later by emphasising, correctly, that early Islam modified and in fact improved the existing rules on polygamy in pre-Islamic Arabic societies (p. 49). Here, then, is a purposely exaggerated claim, perhaps put up to rally Muslim support, but easily demolished.

 

That leaves the charge of advocating polygamy. It is no malicious allegation to say that Islam does this: it is the truth, though only to a certain extent, as it were, since we must point out at once that all Muslims do not speak with one voice on this issue. The reason is well-known: the interpretation of the small amount of Quranic material on polygamy is, for good reasons, heavily disputed. Many Muslims in the world accept the so-called liberal Tunisian approach, which has led to an official ban on polygamous marriages imposed in a Muslim country. Syria, another Muslim country, has developed the idea that polygamy must be strictly controlled.

 

It would, thus, be wrong for anyone to allege in sweeping terms that Islam advocates polygamy. The truth is, rather, that many spokesmen of Islam do this, including Mr. Khan, who has thus debarred himself from employing the above liberal arguments to protect Islam against unjustified charges. The reason must be that he sees the Tunisian reforms as wrong, which is probably why he does not even mention them. But for how long can one make unpalatable facts non-existent by keeping quiet about them and ignoring them in scholarly articles? The essay is, unfortunately, also a blatant attempt to repress diversity of opinions in Islam by the way it attacks any innovations as "strictly forbidden" (p.58).

 

Sensibly enough, yet only much later, and too late to the convincing, it is stated that Islam does not really advocate polygamy, but merely allows it and seeks to regulate it (p.49). These are again defensive comments which are very much contradicted by the subsequent crass argument that polygamy is a natural necessity for men.

 

We are not re-writing Mr. Khan's essay here, but it would have been much more .honest to state, at the outset, some basic legal facts: in the context of modern Indian law, Islamic law is the only legal system that continues to allow polygamous marriages today. The issue would then at once have been whether a Uniform Civil Code for India, envisaged as an ultimate goal by Article 44 of the Constitution of India, should respect this element of Indian Muslim law and how it should regulate polygamy: It is significant that the learned author meticulously avoids any reference to the Uniform Civil Code throughout the essay. This technique to ignore crucial realities and real issues that one does not like, or that do not fit one's argument or theory, as already observed, does not augur well for a scholarly enquiry. As a result, several of us were tempted to dismiss the whole piece as cheap demagogic, but this would do injustice to the learned author and would not be a constructive criticism.

 

The first substantive part of the essay (pp.47-49) focuses on the universality of polygamy. The major argument is that in all periods of human civilisation, and even today, polygamy has had an established place as an important social institution (p.47). Avery mixed bag of evidence is provided, jumping a bit too rapidly from one country and period to another, so that the polyandry of Draupadi, for example, is instantly followed by the German Philosopher Schopenhauer's views on polygamy. More could, no doubt, have been said about the important discussion of polygamy in Africa, where the Christian churches continue to face much opposition to their teaching on the need for monogamy.

 

While there is much truth in the general argument that polygamy was, in the past, a more or less universal phenomenon, some assertions found here do go too far and invite odd interpretations. Thus, the portrayal of polygamy as a "law which has few exceptions" (p.47) must be read in context, and to argue that polygamy was "an established institution from time immemorial" (p.49) should not be misinterpreted: it is doubtful whether polygamy was ever a binding norm in any society. To say that it was "an accepted way of life" (p.47) or even "the preferred type" of family organisation in certain societies (p.49) probably goes too far. The repeated statement that certain religious traditions did not explicitly prohibit polygamy is certainly a valid point, but the inference drawn can hardly be that such traditions, therefore, freely allowed polygamy.

 

The chain of arguments becomes seriously flawed when we turn to present-day conditions. Apart from a general indication that polygamy has become condemned by modern society (p.48), there is no evidence that this difficult aspect of the question has been addressed at all. Instead, the issue is obfuscated by an odd attack on Hindu culture as, till recently, "extremely unfavourable to woman (p.49). It is not clear how this fits in with the advocacy of polygamy as a universal phenomenon. Further, the author advances proof that Hindus in various parts of the country still practise polygamy under Hindu Law, overlooking the perhaps rather crucial fact that the recent edition of a famous book on Hindu Law (Jolly 1975) is a reprint of a work which was originally published in German in 1896 and first appeared in English in 1928! At that time, of course, Hindus could legally indulge in polygamy. One hopes that any Indian law student in his/her first year would instantly spot this confusion, which, moreover, deprives the author of a potentially valuable argument: He overlooks that modern Hindu law has outlawed polygamy by sections 5(i) and 11 of the Hindu Marriage Act of 1955, but that, in fact, many Hindus continue to make polygamous arrangements despite this drastic change in the law, which criminalises bigamists in S.17 of the same Act. He could also have used such evidence to strengthen the fruitful line of argument that many legal systems appear to have allowed polygamy in certain situations and on specific conditions. Of course, such reasoning is not really viable if one actually wants to argue, as the author later proceeds to do, that men should be free to make any polygamous arrangements they like.

 

This part ends (in the last two paras of p.49) with the familiar reasoning that Islamic law is more advanced in regulating bigamy than other legal systems. The claim is that it reformed and improved the existing law, limiting the number of wives to four, and "laying down strict conditions for having more than one wife at a time" (p.49). As a result, the author argues that polygamy "is therefore, both checked and regulated in Islam" which, then, "neither originated nor advocated nor even encouraged it" (p.49). This conclusion sounds convincing and correct at this point of the essay.

 

In the next major part (pp.50-53) which focuses on the nature and extent of polygamy recognised in Islam, the author elaborates on the nature of the Quranic injunctions regarding polygamy and their interpretation. Sensibly, the discussion starts with reference to the only Quranic verse on polygamy, verse 3 in Sura Nisa. It is rightly pointed out that this does not enjoin polygamy, but permits it under strict conditions, which, it is argued with considerable force, must be understood to mean equal treatment of wives in terms of material provisions and favours only, not in terms of emotions and affection. This is so because equality of treatment in that area is not humanly possible and therefore it could not have been intended by Allah to make such a tight condition. The ease with which certain motives are here presumed in the actions of the Islamic God is truly amazing. Considerable effort is then made to argue that all renowned commentators on the Holy Quran "are in perfect agreement to this interpretation" (p.51).

 

This, of course, is less than honest. The author gives this away by making repeated reference to "ignorant and biased critics", who apparently include not only Western non-believers, but many 'misguided' Muslims with their "imperfect standard" (p.53). Sadly, by setting his own interpretation up as the only correct one, it would appear that our learned author does exactly what the Prophet said one should not do (see p.51 and note 49)!

 

Despite the above-mentioned reservations, the conclusions reached in this part, too, remain convincing and proper: Uncontrolled polygamy is opposed to the teachings of Islam, keeping it, as the author is keen to emphasise, in line with the ideas of civilised society and "true culture" (p.52). Thus, not only is Islamic polygamy an exception rather than the rule, Islam also provides safeguards against its abuses and has evolved stringent limits for that purpose. In sum, Islam adopted what appears to be a reasonable "middle course between categorical prohibition and unqualified liberalization" (p.53). So far, so good, it seemed to us. But at the same time the learned author has already made some disturbing asides that shatter the aura of reasonableness created around Islamic polygamy. The full impact of that message is only brought home on the last few pages of the article. Yet the issue is anticipated here: Polygamy is held up as a remedy to solve exceptional and urgent social, moral and natural problems (p.52). It is described as being "in the nature of a remedial or auxiliary provision to be resorted to in cases of emergency created by natural design" (p.53). What this may mean or imply is not explained at this point. We are merely assured that due regard is given to the conjugal rights of wives (p.52) and the voluntary nature of this remedy is pointed out in general terms (p.53).

 

Only in the third part of the essay does the author reveal his actual position. Under the heading "social, moral and natural justification of polygamy" (pp. 53-58), we find a remarkable volte-face, a chain of argumentation that virtually destroys all the valuable work in the first two parts.

 

The author first argues that an outright prohibition of polygamy would hardly lead to a pattern of actual behaviour. Having studied bigamy in modern Hindu law and the Supreme Court's collusion in its perpetuation, and being familiar with Eugen Ehrlich's theory of the universal phenomenon of 'living law', my students readily accepted that comment. Detailed socio-legal enquiry on this point could have provided useful arguments for the author.

 

But he was single-mindedly concerned to pursue the issue of the need for polygamy, which is taken up once again. Now the answer is slightly more vague than a moment ago: Islam permitted and restricted polygamy "with a view to meet social, moral, economic and natural eventualities (our emphasis) (p.53). Then the argument is advanced that Islam was the first to see the positive side of polygamy and that, 1400 years later, this "is now being accepted as natural and inevitable by modern researchers, philosophers, scientists and reformers all over the world" (p.53). This goes, of course, much further than saying that polygamy is a remedy in exceptional cases. Here the author begins to argue for polygamy as a necessary institution, on several grounds. The first one is well-known in Islamic studies and relates to the situation after a famous battle, which left many women and children without male protection. The same situation, the author argues, occurred in many European countries as a result of the two world wars, and has arisen in many other parts of the world. In Mr. Khan's submission, Islam showed the right path by allowing polygamy with some restrictions, and the world-would do well to follow this model. His argument may be respected, but the actual facts are different: in several European countries, especially Germany, millions of women did not become polygamous, but remained unmarried because of unavailability of men in their age groups; this has become socially acceptable and has caused no noticeable adverse moral effects. The facts are that many women in those countries, and elsewhere, have become self-supporting. Polygamy is, therefore, only one possible way to alleviate particular social problem.

 

Interestingly enough, in Britain today, an odd artificial shortage of marriageable Asian males has been created by the impact of the immigration laws, in particular the notorious "primary purpose" rule, whose declared aim it is to destroy transnational arranged marriage patterns among Asians. As a result, many young (and now not so young!) Asian women in Britain today, whether Hindu, Muslim or Sikh, face an agonising choice between remaining unmarried or marrying 'out of caste', which often means marrying a European. Two other commonly employed strategies carry considerable risks: to keep looking for the right spouse may lead to ultimate spinsterhood, while the decision to move out of the U.K. for the purpose of marriage means added disruptions for such women and may not be an attractive option at all. I have not yet heard of calls for there-introduction of polygamy in this context, but this may be expected.

 

Our learned author next progresses to a powerful religious and moral reason to justify not only Islamic polygamy, but polygamy generally: The Prophet of Islam, as a religious teacher and moralist, "could not recognise unmarried mothers and war babies nor could he ignore human nature" (p.53). The switching of words here is significant: war widows and orphans have suddenly turned into "unmarried mothers" and "war babies", i.e. illicit sexual relations are ominously hinted at. Worse, the author suddenly argues that "single life for a woman is not natural" (p.53), that such woman will suffer and that this would lead to adultery. Therefore, the author concludes with characteristic omniscience, the Prophet of Islam did the right thing by allowing polygamy to males.

 

We are not told why it is that women cannot bear living a single life. The hidden argument here is, of course, a very familiar one for Hindus and Sikhs, too: women are not trustworthy and must be kept under male control all their lives. Otherwise unchastity will result. This obsessive fear of violation of the chastity principle, linked with izzat (honour) in many parts of South Asia, and powerfully expressed in the Islamic concept of zina remains, of course, a major axis of sexual morality in all South Asian societies, even abroad. But we cannot overlook the oddly justified sexual discrimination in this approach: nowhere, at this point, is there a reference to male sexuality and the danger of seduction by men who, as is powerfully argued further below, have by nature an insatiable appetite for sex.

 

The present one-sided and twisted argumentation, therefore, does not disclose openly that it is abhorrence of zina which is here used to justify a basic rule that every woman must be married to one man, while any one man may be allowed several wives. Females in general, and unmarried females in particular, are thus in the familiar way portrayed as a moral danger to society. As a result, to permit polygamy was "the natural course" (p.53) and a little later polygamy is even advanced as "the natural relationship between the sexes" (p.54), apparently because it facilitates legalised sexual relations. The argument then turns again to Western scholars who made comments in favour of polygamy, against forced monogamy and for the re-introduction of polygamy into European countries to alleviate the miseries of millions of "doomed" women, plus all kinds of social evils. Not content with such sweeping array of arguments in favour of polygamy, the author then proceeds to his final invincible argument: "Nature also seems to favour polygamy" (p.54). Some of my students could hardly believe what they read: it is argued here that males need polygamy, that they are by nature polygamous!

 

What about women, then? Somebody noted that the argument was, a page earlier, that women will suffer if sex was denied to them. If men are by nature polygamous, are women by nature polyandrous? One female student declared herself ready to accept polygamy, provided polyandry was also legally recognised.

 

It is fascinating tc follow up how our learned author has arrived at his odd conclusion. He has taken a general reference to "man" (p.54) as referring to "men" only! It does not help the learned scholar to rely on Westermarck, no doubt a great authority, but seriously outdated in many respects today. The conclusion drawn is, thus, simply bogus and unscientific.

 

Now, if men are according to Westermarck and Khan, "instinctively polygamous" (p.55), while women find it "impossible........to experience sexual desire for several men at one and the same time" (id.), should not a reasonable law protect men from their own desires, and women from male lasciviousness, rather than the other way round? How, we may ask, can women be blamed for sexual immorality in the world if Mother Nature has given insatiable sexual appetite to "the normal man" (p.55), while the "normal woman" (id.) clings to the one man she knows? A serious attempt to devise a law of polygamy that protects women, if that is indeed the aim (which, of course, it is not in Mr. Khan's argumentation!) must obviously advocate the restriction of male sexuality. This may well be what the Quran intended, but the present twisted demagogic, dressed up as an academic discussion, leads only to further distortions.

 

For, the argument proceeds to inject the important comment that a good marriage law should not lose sight of natural realities. Fully agreed, in principle. But our suggestions vary dramatically: We have just argued for controlled bigamy to discourage male sexual greed. Mr. Khan pleads ominously that "some provisions should be made for men in whom sexual instinct is more than normal, otherwise illegitimate sexual relations are likely to become more frequent" (p.55)."

 

What does this suggestion amount to? The authors argument is now no longer that polygamy is a social necessity to take care of certain women and children, now it is held up as a natural necessity. To restrict polygamy would be to defy nature. At this point, more than anywhere else, Mr. Khan is clearly most concerned with avoidance of zina, which is later referred to as "a greater evil" than polygamy (p.57).

 

Allowing polygamy, in this context, is thus nothing but a clever device to legitimise sexual relations that may otherwise be illicit. This could almost mean a return to pre-Islamic conditions, since, as one of us discovered, a man who had exhausted his quota of four sex partners would presumably not automatically lose his appetite for more. Divorce law is mentioned, but our learned author is careful not to indicate the possibility of getting rid of wives who may no longer be sexually attractive. We may need to be reminded here of the facts in the Shah Bano case; the mere possibility of abuse is reason enough to build in some restrictions. The author is equally careful not to make any reference to mut’a marriages, only allowed to Shia Muslims, of course, which serve precisely the same purpose, i.e. to avoid a charge of zina.

 

In the end, the attempted portrayal of Islamic polygamy as a blessing in disguise has badly backfired. Worst of all, it has done much damage to the rightful argument by the Muslims of India that their personal law should be respected in an acceptable form and democratically impeccable way. That polygamy can be a useful legal remedy in certain difficult social situations may not be deniable. A blanket allowance for polygamy - for this is what the argument amounts to in the end - may indeed help to solve some, problems, in particular it may reduce zina, but it would certainly create new problems and is clearly unacceptable as it stands here.

 

Summary of our objections

 

We found Mr. Khan's hesitating argument that women would benefit from polygamous arrangements only partly acceptable and were not at all convinced that Muslim women had as much choice in the matter as one would make us believe. It seemed typical male arrogance to even suggest that women themselves were responsible for polygamy. The author's twisted logic had clearly enough shown the overriding concern that male sexual caprice should not be discouraged to avoid the "greater evil" of zina. Some of us found it ludicrous to say that women prefer polygamy, and several commented to the effect that women may have no option but to accept a man's polygamous arrangements, particularly in a society which sees polygamy as more than a remedy for certain socio-economic difficulties. There would, then be little hope for individual women to keep out of such arrangements; many may have no option but to accept. Therefore the apparent toleration of polygamy by women in a society does not prove anything at all.

 

This does not mean-that one has to argue immediately for a total and absolute ban on bigamy. Several of us remain convinced that carefully regulated bigamy, in the sense referred to by Derrett (1970:309), can be justified on social, economic and moral grounds. While we also have doubts whether the copying of Western legal models, such as compulsory monogamy, makes sense in Indian conditions, we have been objecting here to the way in which an Indian Muslim law teacher argues for virtually unlimited polygamy. We were amazed, if not shocked, about the irrationality of some arguments, especially the grossly exaggerated distinctions between male and female nature. We found this an unfortunate piece of legal writing, irresponsibly demagogic, damaging to community relations by the way it snipes at Hindus and at the West, seeking, ultimately, to portray the Islamic perspective as superior, though it is apparent that there is no consensus about polygamy among all Muslims and that Muslim polygamy, as it exists in India, is a far cry from the original ideal.

 

We accept that the regulationoflslamicpolygamyl400yeas ago may have been a wise and bold innovation inspired by the ideals of Islam. But Mr. Khan shows that, unfortunately, such high ideals have been adulterated over time. The author's attempt to declare as outlawed all innovation in Islam seems, thus, particularly obnoxious and is symptomatic of a siege mentality. At the end, the author himself is so confused that in an attempt to declare academics as useless day-dreamers he pulls the rug from under his own feet. The only real message, finally, is that the state in modern India has no right to regulate any aspect of Islamic law. If that was all the learned author really wanted to say, he could have done so in a less cumbersome way, making a constructive contribution to the present Indian debate on how to regulate polygamy. In fact, the author has done a greater disservice to the Muslim position on this question, inviting harsh criticism not only of himself, but of that Muslim position which he so vigorously portrays as the 'true' one.

 

While we respect the stance of the Muslim believers, we are here responding to a piece of legal writing in a learned legal journal. One may, therefore, expect certain minimum standards of academic and legal reasoning; these seem to have been debased here. While superficially controlled polygamy is subtly offered to the world as an ideal model, in a second strand of arguments closer to reality, it serves obviously to legitimise the passions of some rich, sex-hungry men. This exercise in bigotry offers a slightly too cheap accommodating measure for the lack of self-control of man as understood by Mr. Khan.

 

It is a dubious argument that most civilised societies began with polygamy, since there is an obvious difference between not directly forbidding something and expressly allowing it. The fact that polygamy existed earlier does not mean much today, and the essay certainly failed to address the question why polygamy has failed into such disrepute, even among Muslims. His distinctions between past and present are shaky, to say the least, he makes sweeping statements and holds obscure views on the natural differentials of the sexes, and uses simplistic generalised assumptions about the West. We were not concerned to defend the Western system as such: it is a valid assertion that the relaxation of divorce laws has encouraged serial polygamy and a less responsible attitude towards marriage. Unfortunately the same is now largely true of countries like India that have found it wise to follow the Western model. Thus, such points do not allow a conclusion that "the West is de facto polygamous" (p.56), and it certainly goes over the top to depict thousands of miserable women crowding the streets of Western cities at night or to assert that every man in the West has a mistress. What Mr. Khan really objects to is hidden away in a verbose aside, arguing that Muslim polygamy is "infinitely less degrading than the promiscuous polyandry.....of the West" (p.57). So here we are again: it is fine for men to philander, but women must stick to one man! Apparently our learned author did not realise that his system of respecting the natural urges of men must inevitably lead to serial polyandry.

 

For, is there any evidence, one must ask, that the law of nature changes for an Islamic husband after the fourth marriage? To give a free reign to 'natural' male urges makes nonsense of the whole Islamic system of controlled polygamy with its requirement of equal treatment and shows how ingenious the mut'a concept really is, as was, by the way, the Chinese system of allowing a man one 'wife', but a number of 'concubines', if he could cope with that. What Mr. Khan has not told us, of course, is that a Muslim divorce can be brought about faster than a marriage, that a Muslim wife has really no 'locus standi' in such 'proceedings', which are still giving so much discomfort also to judges in Britain. Most Muslim wives remain defenseless against male caprice of any kind. While the author attacks Western men for discarding women when they are weary of them, he fails to admit that Muslim husbands may be no better. To give an idealised picture of Islamic, law and the real picture of Western practices is clearly not a fair method of comparative study, and one is constrained to make the point again that this essay is a model exercise in academic deviousness.

 

It is, thus, quite apparent that any system of Islamic polygamy does not magically cure all social evils in Islamic societies. Worse, the way Islamic polygamy is advertised here gives quite unlimited discretion to male indulgence. It will encourage men to think that they have a God-given natural right to several women, while women are told to remain fixed to one man. Such crass biological determinism left more than half of my class angry and disgusted, which clearly shows that Mr. Khan runs a danger of creating enemies of Islam, giving people a good reason to 'bash the Muslims'. His arrogantly biased and hence internally contradictory piece of legal writing, which hides, in the end, behind religious authority to justify its aggressive, male chauvinist stance, which does not appear to us as purely Islamic, makes such an attempt at legal scholarship liable not only to misunderstanding, but also to misuse. We have tried here to develop constructive criticisms, but this has been very difficult throughout, especially in view of the antagonistic tone and the author's chameleon-like practice to change colours as he goes along, turning an initially acceptable and reasonable argument into quite reprehensible pseudo-scholarship that hides behind Islamic authority as a smokescreen.

 

In reluctant defence of polygamy

 

Despite our objections to the mischievous argumentation above and a variety of reservations against polygamy per se, there are several valid grounds to suggest that, in certain situations and on certain conditions, polygamous marital arrangements may be a desirable remedy for some problematic social and economic situations. This, in my submission, and from a comparative legal viewpoint that questions the axiom of the inherent superiority of everything Western, should be recognised by an appropriate legal system.

 

Thus, one can hardly fault the rationale of early Islam that not only allowed, but virtually expected men to take care of war widows and orphans. Whether support must necessarily be given by actually marrying the women is, however, questionable. Could genuine assistance not just as well be achieved by a form of charity, such as zakat, so that polygamy would here still be an excuse for male possessiveness? I disagree: merely to provide for the material needs of a person deprives him, or her, as the case may be, of equally important emotional and other social comforts. The same objection is, in principle, valid against modern forms of state welfare, which may provide some material benefits, but leave recipients in social isolation, if not permanently degraded because of the status differentiation that has been created and is perpetuated in this way. We must understand, I think, that such impersonal forms of welfare benefit leave people in an emotional vacuum and can never be a full replacement of supportive personal relationships that integrate or re-incorporate the individuals concerned into their particular social spheres. Oriental legal systems have no difficulties seeing the matter in this way. Of course, a purely individualistic rationale will be opposed to this kind of argumentation, but total individualism, while not absent as a concept in Oriental laws, does not make much sense there as a basic principle of organising human existence.

 

As we saw, the Islamic argument for allowing polygamous arrangements seems to be conducted on two levels: (i) let us take care of individuals in society that are in need of support and (ii) let us avoid zina.

 

In a society where women do not object to such 'protection', the law would indeed do well to recognise such polygamous arrangements and I would agree that Islamic law developed, in this regard, a reasonable approach to a complex problem. It would be helpful, though, to have some material and evidence from the experts on some crucial questions: To what extent have Muslim women in various parts of the world a real choice between taking up an offer of male protection, support from charitable funds, or other sources of sustenance? Does tradition provide authoritative guidance on this point, and what evidence can be found in various Muslim societies? If it could be shown that Muslim women have indeed a choice here, not just in theory, but in practice, then I would find such a system more acceptable.

 

Traditional Hindu law appears to have devised another system of looking after potentially destitute women without the need for polygamous unions. Vasudha Dhagam-war has recently made reference to Punjab cases where young widowed women (Sikhs, apparently) needed a customary divorce from their father-in-law if they wanted to remarry within their community (Dhagamwar 1989:65). To see this as evidence of actual polygamy or of defacto marriage between these two partners may be going a bit too far. It is known that some traditional forms of Hindu law saw marriage, in principle, as transfer of the procreative potential of the bride to a family rather than to an individual man. Should the husband die, the wife would be provided for in the family, often, but not necessarily, as far as I am aware, by marrying a family member. From this tradition follows the fact that "levirate marriages are not unknown to North India" (Dhagamwar 1989:65; see also Diwan 1980). But levirate marriages are not actually polygamous unions, and the fact that, as Dhagamwar reports, such women are apparently allowed to marry a man from outside the family shows that an element of female choice is not excluded. Similar to Islamic law, though, this phenomenon of Hindu law is designed to take care, in every respect, of a woman who has lost her husband. Again, if a woman agrees to such arrangements, what is wrong with them? One gets a feeling that much modern legal scholarship in India objects to tradition per se without bothering to consider the potential positive sides of non-state legal systems. A somewhat precarious balance will need to be struck in many cases.

 

Both the Islamic approach to polygamy and the Hindu system of levirate developed many centuries ago. Both reacted, presumably and sensibly, to social realities at that time. However, socio-economic conditions have since changed: war widows and orphans are more commonly taken care of, in economic terms, by state benefits of various kinds, at least in most developed countries and, with some hitches, as Ram Pyari (AIR 1988 Raj.124) shows, also in some developing countries, yet by no means everywhere. It would appear, though, that more and more women have become (or have had to become) economically independent to a larger extent, and thus able to stand on their own feet. In such situations it is seen again that economic factors have an important bearing, but with differential social consequences: while a rich man may be able to afford several sets of wives and offspring, a reasonably well-to-do woman, especially in the lower classes, where women have traditionally been less dependent on status considerations that demand their dependence on males, can buy herself at least some independence (see Gulati 1981), often by divorcing herself from a male parasite.

 

For different kinds of middle class women, Rama Mehta (1975) has shown us clear distinctions in their extent and perception of freedom, while a more recent socio-legal study (Dhagamwar 1987) has provided evidence that many women are prevented by economic factors from actively seeking divorce to free themselves from unacceptable domestic situations. We are, thus, though at tremendous cost, reaching a situation in India that divorce is becoming more and more common and, as a result, more women prefer to stay on their own, either as spinsters, refusing marriage altogether, or not remarrying after a divorce or the death of the spouse. Very many women would find the thought of being part of a polygamous arrangement quite repulsive.

 

Of course, Mr. Khan never considered the issue from the female perspective. But he would, no doubt, concur with a recent study that deplores the ease with which women can gain divorce and can thus treat divorce as "a sort of an insurance deal offering far more lucrative benefits than available in marriage" (Mahmood 1986:12.7). This line of argument indicates, apart from unease, to put it mildly, about the development of modern India's laws on maintenance for divorced women, that the really objectionable development is, in the eyes of many South Asian men, that more and more women manage to survive decently without male protection. The viability, and almost possibility of this happening, is constantly denied by dubious implication, especially when charges of prostitution are raised against any unattached woman. Female independence seems clearly anathema to the rationale of Mr. Khan and like-minded men and they would prefer to see them securely locked away in polygamous unions rather than 'roaming the streets at night'.

 

I am not arguing that it is ideal for anyone to stay on their own, since the price one may have to pay in emotional terms may be very huge. Yet it is a fact of life that modern societies tend to emphasise individualism and allow many of us to stay on our own if we can afford to do so in economic and emotional terms. A major difficulty is, perhaps, that most of us really cannot bear the solitude of individual freedom for long. The remedy is not, in the views of many people today, to enter a marriage, and certainly not to enter polygamous marriages. Critics of the Western system have a point, though, when they refer generally to dishonesty in this regard (Mahmood 1986:115) or point to "pretended monogamy" with further consequences for sexual morality (Khan 1989:57). While marriage today seems indeed a bit less of the universal phenomenon that it probably used to be, and the pressure to enter polygamous unions will have become even less as a result, Western Casanovas may prefer to remain unmarried altogether, while their Oriental counterparts receive welcome assistance by constructions of new justifications for polygamy.

 

The above-mentioned factors all serve to reduce the need for polygamous arrangements of the traditional type as envisaged by Islam. In what situations, then, may polygamy still be a reasonable remedy in modern Indian law today?

 

One situation that comes to mind first is childlessness of a couple (see also Derrett 1970:307). The instant answer to that, today, is often that one should not be too concerned, as there are already many people in the world, but that is a cruel response to a couple desperately wishing to have children. The other remedy often instantly offered is adoption, but the Indian laws on adoption do not exactly inspire confidence. Many people, at any rate, are not swayed by the legal fiction of adoption, even if it were easily accomplished. So neither way may recommend itself to all couples. The intense interest with which advances on the medical front in remedying infertility are followed, not just in the West, speaks volumes for the desire of people to have their own child, and many gods would be 'out of business' if childlessness were not an important concern.

 

Childlessness, of course, may be due to a defect in the husband rather than the wife, though South Asians generally tend to blame the wife for this, as well as, even more irrationally, for producing children of the 'wrong' sex. I have so far found little evidence through fieldwork in India that men whose wife bore only daughters would want to look for a second wife, or another wife. There are, however, as only reading law reports, often between the lines, can teach, a lot of cases where a marriage has remained issueless for one reason or another, and the couple end up in court. If the reason is obviously the wife's infertility, as in Vinod (AIR 1977 Del. 24), a conscientious husband maybe at great pains to make new arrangements; the modern Hindu Law would allow any polygamous arrangement, of course. But it is common that a sizeable number of Hindu men take more than one wife (Derrett 1970:297; Mahmood 1986:116; now Dhagamwar 1989:31). The Judges, too, have treated the issue with remarkable nonchalance and leniency, for decades lending a helping hand to their fellow-men by discharging the clever bigamist (Derrett 1970:308). Only more recent cases (Baby AIR 1981 Bom. 283, see Menski 1985) have begun to change this, and we now find cautious beginnings of judicial activism in this area (Sumitra Devi AIR 1985 SC 765), which may mean that the Supreme Court will finally implement its rhetoric threat, issued in Gopal (AIR 1979 SC 713), that bigamists should be treated harshly by the law. An analysis of this area of the law as it stands at present clearly confirms Derrett's view of two decades ago that "the rash abolition of polygamy in a euphoric moment is not working out satisfactorily" (Derrett 1970:310).

 

If that is the case, and we hear consistent calls for polygamy to be allowed in certain controlled situations; why bury one's head in the sand and plead that our notion of progress will be violated if modern India were to re-introduce, as it would look, the legal recognition of polygamy? I find myself in agreement with Derrett (1970:309-310) that one should not pay the lightest attention to such 'difficulties' and should instead be concerned, for example, that a couple who love each other, but are unable to have children together should not be forced by the modern state law to arrange a divorce so that the husband (or, more often, his family), can be allowed to make arrangements for procreation with another wife. For any state law to legislate against people's wish to have children, or even male children, as modern China's example shows, seems more than slightly overambitious.

 

A law that prohibits polygamy even in those limited few cases where there are genuine reasons for it, and where all parties concerned agree to it, is in-my view not a good law, since it causes hardship rather than helping people order their lives sensibly. That there must be some situations in which women willingly consent to polygamous arrangements in India is evidenced by a reference made by Vasudha Dhagamwar (1989:31) to the "curious institution of committing bigamy with the wife's consent".

 

I remain as concerned as Dhagamwar and others working towards harmonisation of modern Indian laws that we must try to achieve the best possible legal reforms that ensure better treatment for women and children. But we are dealing with a huge and diverse country, not a place where individualism is the most highly-prized commodity. Nor will this, in my view, ever be the case, for obvious cultural reasons, which no amount of legal and secularising reforms will ever undo. It is, thus, not necessarily correct to argue that women from all social classes and parts of India must be and are opposed to polygamous arrangements. One of my students rightly remarked that it would be just as unacceptable for Mr. Khan's model to be imposed on a society as it would be for polygamy to be completely outlawed in India.

 

The question of polygamy needs to be debated from all angles and with great depth, since despite modern uniformising trends, present India continues to exhibit a bewildering variety of diverse legal systems, whether state law or non-state law, which often vie for the allegiance of one and the same individuals, offering a possibility for devious people to choose the law that seems best suited to their interests. In this particular context one allegation is often heard, that of Indian men becoming Muslims merely for the purpose of allowing themselves more than one wife. If that was indeed such a problem as popular conversation on the issue would suggest, the Indian state, despite its secular image, would probably have reacted some time ago by re-allowing Hindus their cherished polygamy to avoid further defections from the rank of the majority that now feels so threatened. Perhaps this issue even provides an added explanation for the remarkable leniency of the Indian state towards Hindu bigamists until today. Seen from this perspective, allowing qualified bigamy for Hindus could get rid of one sore point, at least, in community relations, though I doubt whether we would want to see the comparatively lenient approach of Indian Muslim law applied to the Hindus.

 

Having pointed out the potential value of tradition, whether tribal or highly Sanskritic, I want to refer here to the shastric idea that it would be an issueless woman's dharma to allow the husband, even to encourage him, to take another wife. This, in the past, was probably quite sensible, especially since the same dharma-complex required the husband to maintain such a wife who had, as it were, stepped back as an individual for the benefit of a greater whole. Especially where relations between the women involved are good, and remain good, what is wrong with such arrangements? There are many societies the world over in which women see advantages in sharing a man, who may often be a rather precious figurehead and less of an economic asset, if not a definite liability. I continue to feel that Western feminists and other enlightened protagonists of gender equality have no right to condemn such societies and their time-tested opinions as backward or barbarous. They are alternative views of ordering society, and ultimately of law, and they deserve respect in their own right.

 

In my submission, the legal debate on polygamy must prominently address the needs of individual Indian women. Polygamy may, with much justification, be commonly perceived as injurious to women, but if the women concerned agree out of their own free will to a polygamous arrangement, then it is likely that this is a reasonable remedy, which must be respected by a reasonable law. I continue to hold that there are no universal standards, social or legal, on such matters; India must find her own workable compromise between uniform legal regulation and the diversity of her people's socioeconomic needs in the widest sense.

 

It is surely agreed without question that monogamy must remain the norm (Mahmood 1986:116). Thus, a controlled acceptance of polygamy does not amount to a blank cheque for bigamists. Rather, the need for it would only arise in certain social situations, which a law that is concerned to keep in line with society would do well to respect. Suggesting this does not mean total renunciation of the 'social engineering through law' approach. I would certainly argue, though, that modern legal systems in many Asian and African countries have become too ambitious, fired on, as they often are, by the enthusiasm of an elite that makes law reforms for itself rather than for the benefit of all citizens. The most recent suggestion that I have come across, symptomatic of this approach, is found in a rather ambivalent advocacy for the compulsory introduction of a Uniform Civil Code in India irrespective of the fact that "there is a possibility of a deep period of social unrest taking place" (Dhagamwar 1989:76), which, it is indicated, must be ridden out by a government that is serious about the matter. I could never see that happen, and it is possible that Dhagamwar's guarded words indicate just as much.

 

Total harmonisation of all differences in India is, quite clearly, a nonsensical aim. Development strategies follow here, without admitting this, the by now obsolete Western ideas of integration and assimilation that have largely proved unworkable in the multi-ethnic realities that we see today all over the world. There are hopeful signs that modern India, still in the process of shedding her colonial heritage through important cases like M.C. Mehta (A.I.R. 1987 SC 1086, at 1099), is beginning to see the customary ethnic diversities and differences as an asset rather than a liability. It is part of Indian culture that it is a multi-ethnic experience, and any attempt to implement a truly uniform legal regime, whether in the context of a Uniform Civil Code or a uniform law on polygamy, will not only be doomed to failure, but is a patently retrograde step. In fact, it promotes communalism by allowing communal identities to be played off against each other. This would not happen under a system that respect and accepts all parts of the whole as integral elements.

 

Having said this, however, does not mean that one needs to be happy with the present legal position. Modern Indian law has got itself into communal troubles by inconsistency in its continuing to allow Indian Muslims polygamy within the rather vague limits of shariat (we have seen that this could mean no limit!) but denying, officially at least, the same right to all other communities, it has even not achieved a satisfactory half-way house to proper legal reform. It is a bit like the Salman Rushdie affair in Britain, where it was said that the state should either protect all or none, but should not differentiate on the ground of religion alone, as is clearly the case in both legal systems, though for different historical reasons. The present Indian legal regulation of polygamy not only encourages deviousness, right up to the Supreme Court, as we saw, it also contributes probably to the growing number of desertions of women, and worst of all, it offers no reasonable remedy, in some communities, in those bona fide cases where polygamous arrangements, as explained, may be seen by all concerned as the best solution.

 

I am, therefore, though with some reluctance, suggesting that modern Indian law, which should not give up the idea of working towards greater legal uniformity in principle, cannot go for an outright ban on all forms of polygamous marriages. The only reasonable path is to make allowances for certain polygamous arrangements, as and when they become necessary in particular conditions. These could be specified to prevent that the natural urges of the male sub-species, as perceived by Mr. Khan, do still get an upper hand. And, of course, modern India, wanting the best of both worlds, would perhaps not get away with allowing polygamy only!

 

To safeguard the position of all participants in polygamous arrangements, certain minimum standards might be contemplated. The law should probably insist that all parties must be asked, without compulsion from any party, whether they are happy with the proposed arrangements. Adequate financial provisions and safeguards for future contingencies should reasonably be made, since there is perhaps a particular risk that such arrangements may be modified over time and may, indeed, come to an end, by dissolution or death.

 

As it were, Islamic law with its idea of contractual elements in marriage and the concept of deferred mahr, in particular, offers useful models in this regard that could be used, in principle, to safeguard especially the position of the spouses that share the partner. Since absolutely equal treatment seems impossible; to achieve, one should not be concerned about this point as long as all spouses are indeed happy. How to ascertain this, admittedly, will always remain a problem. But as all marriages, polygamous unions will be open to dissolution, a point that seems to have been overlooked in the heat of the debate.

 

If the law were to allow polygamy in this limited way, without placing too many hurdles before people, there should in theory be no need for clandestine arrangements that are so common today, where wife 1 may not even know of the existence of wife 2, as in a recent English case that ended in the man's death at the hands of a third party. Moreover, if such arrangements were properly registered and documented, the State's task in keeping a check on marital statuses would be made even easier than in a society like Britain, where often not even first marriages are brought to the attention of the authorities, i.e. where people simply cohabit as husband and wife without official legal sanction. In India, as the study of the emergent Asian laws in Britain shows (Menski 1988), this will be an effective, though not absolutely watertight remedy, as women and those concerned about their status will quickly learn that state registration of such unusual marriages safeguards the legal position of the women involved far more effectively than any community law could possibly do.

 

While I am, thus, certainly not advocating the open introduction of polygamy, because this would be abused and exploited by men, a qualified permission for polygamous arrangements of any combination seems a reasonable way forward for modern Indian law.

 

In the light of Ehrlich's concept of 'living law', though, I see no solution to a major perennial problem of law reform by the State. Despite the new law, Indians of any community will probably continue to make such family arrangements as they consider most appropriate. This may happen with one eye to the official law, so as not to fall foul of its letter, as the example of Asians in Britain shows in so many ways. But it will probably remain a fact of life that in the presence of State laws there can never be total harmony between law and society.

 

Even ardent reformers admit that India has many tribal societies whose values are worth preserving (Dhagamwar 1989:63). Since so-called modern legal development tends to see progress only in a denial of the value of differential statuses and of integration of religion and law, we are in an another deep conceptual impasse.

 

Finally, I would strongly urge two points: Firstly, that a re-assessment of the various Indian forms of traditional non-state legal systems and more official laws (the borders are obviously more fluid than Professor Baxi sees them) would be a useful exercise. This could be the topic of one, if not several fine Ph.D. theses in law, vitally needed studies in today's communally charged legal universe. Secondly, a re-assessment of the 'living law' theory of the German scholar Eugen Ehrlich should be undertaken, since that evidently sensible theory, not just in my view (see Baxi 1982:ix), could help train law-makers to learn to be less self-confident about their powers to change societies by the stroke of a pen. Law reform here seems rather like a chemical process: what goes into the glass reacts with what is there already to produce something new depending on a number of factors.' In chemistry, one may have means to calculate and predict the intended results. Social engineering through law depends much more on trial and error, it appears. This is another reason why the present defence of polygamy is a reluctant one.

 

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Menski, Werner F. (1985):'Solemnisation of Hindu marriages: the law and reality'. In: 1985 Kerala Law Times, Journal section, pp. 1-10.

 

----(1988): 'English family law and ethnic laws in Britain'. In: 1988 (1) Kerala Law Times Journal section, pp.56-66.

 

----(1989): 'Hindu talaq: On a progressive divorce law for India'. In: 1989 (1) Kerala Law Times, Journal section, pp.23-30.

 

Van derSprenkel, Sybille 1977): Legal institutions in Manchu China. London: Athlone, reprint.

Crocodile tears and Muslim polygamy in India

 

(Dr. W.F. Menski, SOAS, London)

 

At 1990 (2) KLT Journal Page 14-18, Island accused by my learned friend M. Fazlul Haq of misrepresenting and ill-judging polygamy in Islam and of shedding crocodile tears over Muslim women in India. It is regrettable that my exercise in comparative legal study, found at 1990(1) KLT Journal Page 50-69, appears to have offended some Muslim sensibilities and is portrayed as anti-Islamic (p. 17). I rather expected feminist attacks or human rights objections to our qualified defence of polygamy in India. Here now is my response, not so much a defence of the earlier reluctant defence of polygamy, which was mainly designed as a critique of what I called 'a model exercise in academic deviousness' (p.61), but a clarification of some of the points that Mr. Haq has raised to take the discussion further. Since the K.L.T. has a long tradition of encouraging scholarly debate on legal issues, surely a major reason why its much-revered and well-remembered founder editor was able to turn it into one of the leading law journals in India, it is hoped that a spirit of constructive criticism can be maintained here.

 

To clarify two small issues first, raised by Mr. Haq at various points: Firstly, it is quite improper to suggest any ulterior motives on my part in writing about Muslim polygamy. Coupled with the term 'layman', which Mr. Haq uses quite liberally, why this paranoia when a non-Muslim writes about Islamic Law? Various people may resent the fact that someone who appeared to be appointed to teach Hind u law in London more than a decade ago has found it just as interesting to write on Muslim Law in the subcontinent. May be I soon found out that one cannot really teach and write about Indian Law today without knowing about Islamic Law? I am sure this has been true for a long lime. Thus I follow here in the footsteps of Proff. J.N.D. Anderson rather than the famous Professor J.D.M. Derrett. At any rate, my brief to cover Hindu and modern South Asian Law certainly includes several jurisdictions dominated by Islamic Law.

 

Further, to answer the last point of Mr. Haq's essay (at p.18), there is no question for me that the Islamic Law on polygamy holds considerable importance also today, not only in India, but worldwide. At 1988 (1) KLT Journal Page 56-66 I argued that Indian Laws are also important in Britain today; I have since gone much further in writing about the re-creation of Asian Laws in Britain and have made particular reference to British Muslim Law. My students' ongoing enthusiasm in contributing to this discussion readily confirms the relevance of the topic of bigamy/polygamy, too.

 

Mr. Haq rightly identifies (at p.15) two major points for a discussion of polygamy in Islam, i.e., what are the injunctions of Islam and what is the relevance of those injunctions in the modern world? This is, of course, a rather Islam-centric perspective, emphasising the importance of Islamic rules rather than, in the second question, those of modern state law. But the above remains a valid approach : If Muslims believe that the Qur'an regulates polygamy, then what is the claim to authority of the modern State Law in this field? Below, I shall elaborate on this point with particular reference to modern India.

 

Readers will have noted that Mr. Haq avoids reference to the latter point as much as possible and merely insinuates that I am incompetent to discuss his first question and not interested in the second. In my view, the underlying suggestion that a non-Muslim is forever unable to make sense of lslamic Law is plain nonsense, though such charges are still regularly made. Perhaps the learned author would like to consider that some people may not be Muslim precisely because they know much about Islam. The result need not be an unsympathetic attitude, but a tolerant 'live and let live' approach. I was happy to see this twice referred to in Mr. Haq's article and hope I am right in reading it in that spirit.

 

It is quite wrong (but see p.16) that my lengthy response to the earlier article of Mr. Khan at 1989 (1) KLT Journal Page 47-58 is silent on the Qur'anic law, which Mr. Haq has now laid out in some detail. I trusted that the learned readers of KLT would make sense of my comments on Mr. Khan's discussion of these provisions (see for example pp. 53-4 and the first para of p.56) and see no justification for laying them out in detail myself, just to show that I have studied them. There are many text books on Islamic Law which contain these provisions and discuss them. I certainly did not wish to increase the length of my earlier article by a mechanical display of basic sources. If that is called superficial, so be it.

 

Readers will remember that I constructed my response to Mr. Khan's essay as an exercise in comparative legal training, not an in-depth treatment of one particular legal system. A comparative lawyer must be able to view the world through another culture's eyes and to understand and appreciate different legal traditions, but this does not mean uncritical acceptance of the stated axioms of any one particular tradition. If some legal writers in India today have problems with that approach, it is in my view symptomatic of the urgent need to strengthen comparative legal training in Indian Law schools to enable lawyers to understand the difficult issues that a modern plural legal system has to grapple with. A narrow communalist approach is not good enough to make sense of any aspect of modern Indian Law!

 

Since it is plain that there is no disagreement between Mr. Haq and myself on the fact that the Qur'anic provisions permit polygamy in certain situations and under certain conditions, why all this fuss and twisted argument? My learned friend seems to disagree with Mr. Khan's rather than my argument. Certainly, I have never said that it is a rule in Islamic Law that a husband should have up to four wives. In fact, my major criticism of Mr. Khan's argument was precisely that he attempted to show, in the later part of his article, how 'normal' polygamy was.

 

Layman or not, it remains correct to say that Islamic Law allows a man four wives in certain circumstances, i.e. that many Muslim men have, in principle, a right to have up to four wives. Indian state law has, as far as I am aware, never circumscribed this right, while Pakistani law has done so (however ineffectively') in S.6 of the Muslim Family Laws Ordinance. 1961. Since we all know that in shariat law as it stands in India limited polygamy is a qualified right, why this quibbling over a few words taken out of -context? The real issue in this debate, and that is what I objected to in Mr. Khan's chain of arguments, is that some Muslims use the Qur'anic provisions to justify what Mr. Haq aptly calls 'sexual variety entertainment' (p.16). I did note that my learned friend docs not like this idea, but he also does not simply argue that Muslims live by the letter of the Qur'an; instead he quotes a number of scholarly opinions, marxist clippings and a few case notes.

 

Whatever words or quotes one uses here, the fact remains that polygamy continues to exist on a small scale in India today, clearly both among Muslims and in other communities. I have tried to argue, and I am sorry if this was not clear enough, that polygamy itself is not really a grave problem, but that Indian Law should take account of this social fact without discriminating between members of different religious groups. Saying this implied some criticism of modern India's handling of the law of bigamy, not of Islamic law. The recent case of an angry Hindu bigamist, prosecuted for an action that his Muslim neighbour would be allowed to take is cited by Mr. Haq. It is rather helpful to my argument and highlights the point that I was trying to make: Hindus in India have become increasingly resentful of what they see as the 'preferential treatment' of Muslims by the state legal system. The present differential treatment of Muslim men by modern Indian Law, allowing them alone more than one spouse, while denying the same right to all other citizens, is fundamentally wrong on many counts. In other words, I defended the position that bigamy, under carefully controlled conditions, may have a useful role to play in modern India's legal system, but I neither argued for a re-instatement of virtually unfettered male discretion in this area, nor have I said that Muslims should be forced to accept the total criminalisation of polygamy.

 

But I have also not explicitly defended Muslim polygamy, firstly because Indian Muslims are subject to Indian Law and secondly because of doubts over the effectiveness of Islamic Law safeguards against abuse of the polygamy provisions. I am of course, aware of the argument by some Muslim scholars that the rules of lslamic law offer themselves as an ideal blueprint for the whole of Indian law today. Clearly, this avenue for legal reform seems just as unacceptable as the imposition of a uniform civil code on all communities. It would, in principle, lead to the same 'period of deep social unrest' of which Vasudha Dhagamwar has recently warned us in her excellent study. Towards the Uniform Civil Code (Bombay: Tripathi 1989 : p.76).

 

What, then, would be the potential justifications for polygamy today Mr. Haq agrees with me on the factum of restrictions and conditions, but in what circumstances should one allow bigamous arrangements? Classical Islamic law saw the rescue of widows and orphans from battlefields as a valid ground. This, today, is not such a big issue, though the age of jihad is evidently not over. I would accept, however that the battlefield of life itself leaves many casualties that need to be taken care of' Whether one thinks of Bhopal, communal riots or other disasters, large or small, there are certainly many situations in which helpless women and children need assistance and might wish male protection. But I am not sure that this alone will explain or justify the incidence of polygamy in any community. What we clearly need is detailed fieldwork to ascertain in what situational contexts men and women in South Asia today make polygamous arrangements. I am not aware of any such work and do not wish to speculate here without substance. But from talking to people about this and from the literature that I know, I anticipate that two other grounds arc likely to appear as prominent infertility of a marriage and sexual or status desire of the man.

 

In my earlier article (at p.61), I have already argued that male protection can be given to hapless women and their offspring through charity rather than polygamy, i.e. a form of help that does not involve sexual relations. Islam, in the institutions of zakat and waqf, has excellent models for such charitable support as may be required from time to time, or even over a longer time. One may note that Mr. Haq agrees with me that 'polygamy is only one possible way to alleviate particular social problems and is a useful legal remedy in certain difficult situations' (p.17). Readers will have noted that Mr. Haq extends this now to rescuing prostitutes and their offspring, an issue which will be debated below.

 

The real problem, in my view, is the uncomfortable truth of promiscuity in human society. It should not happen, in the view of many, but it does. Here Mr. Haq prefers blinkered self righteousness to good reason. He throws in a few comments about the devious and corrupted bourgeois West, about marxist manifestos and AIDS as divine punishment for the West. On the latter, unfortunately, he has not got his facts right, and his comments are jus t as unacceptable as those of Western writers who have tried to blame the Africans, suggesting that it served them right. Unfortunately, AIDS is now a problem anywhere in the world and respects neither the borders of Muslim countries nor the sensitivities of Indian society. But dragging such topics into our discussion does not lead us anywhere.

 

I fully understand, though, that my learned friend found it difficult to believe that millions of unmarried German women could maintain chastity. How can one 'prove' this to alleviate the doubts of Mr. Haq? There is specialist literature about this, but I have mainly relied on my personal knowledge, derived from growing up in Germany and meeting such women daily as teachers, relatives and fellow citizens. I did make the more important point, however (atp.57),that a similar developments beginning to take place among South Asian women in Britain. Some research on this is now underway and our preliminary findings are that single Asian women in Britain can well be trusted to maintain chastity. The absolute necessity of male protection is just a convenient and powerful myth, perpetuated not only in India, but also in Britain; it means little in reality for such women. To enter polygamous unions, interestingly, docs not figure among the ambitions of our respondents, many of whom see men as exploiters rather than protectors.

 

Finally, two points remains to be resolved. Mr. Haq demanded to know (p.17) if in my view Mr. Khan had correctly cited the Islamic Law on the subject. I think I answered that on p.56 of my article and need not add any further comment.

 

As far as the position of Islamic Law in modern Indian Law is concerned, I argued above for a less Islam-centric approach than Mr. Haq appeared to take, for the simple and obvious reason that the relevance of the injunctions of Islam in modern India has to be worked out by reference to India's legal system, in which Muslim law is, for better or worse, just one component. Our discussion, then, cannot focus on Islamic Law alone but must be put into appropriate context.

 

With reference to polygamy, we have agreed on the position of the classical law as allowing a Muslim husband up to four wives subject to certain conditions. A major concern of the present exercise was to work out a viable legal rule on polygamy for the whole of India, taking account of the needs of various communities. As we all know, Indian state law has not interfered in the Muslim law on polygamy, for a number of reasons, but has reformed other personal laws on this very issue. At the risk of repeating myself, I can only say that the development of a uniform legal rule on polygamy for all communities in India will need to take account of the fact that in certain social situations, including the fact that the parties are Muslims, polygamy may continue to be seen as desirable, whether on grounds of religion, mere sexual greed or anything else.

 

Mr. Haq seems to suggest that there are certain situations in which polygamous unions make good sense both socially and legally. With reference to Gaurav Jain at AIR 1990 SC 292, he has invited us to consider an extension of the beneficial rules of Islamic law on polygamy to prostitutes and their children, whose lives, according to this reasoning, could be significantly improved in this way. I dare say this will not get rid of prostitution and its related problems, but modern Indian law, as it stands at present would not have any objections to such a solution from within Islamic law, since it appear-o have almost completely refrained from regulating Muslim family law. But does this suggestion make sense or does Mr. Haq shed crocodile tears over the prostitutes? I am sure other readers of KLT may have something to say on this.

Accomplishment of A - Dissenting Prediction

 

(C.J. Varghese, Advocate, Shertallay)

 

"An obese treatise on a point that does not arise will only result in added confusion and not a needed clarity" (1987 (2) KLT 848 at 869 para.16 - a dissenting judgment by Sukumaran, J.)

 

An anomalous legal position is evolved in Kunnath Yesoda v. Cheroota Kurthambu (1991 (2) KU 112).

 

The constitutional mandate under Art.141 together with principles of precedents, make it compulsory on all courts to follow the decision of the Supreme Court as binding. Similarly the decision of the High Court is binding on all subordinate courts as well as all other tribunals and quasi judicial authorities. In M/s. Star Diamond Co. India v. Union of India AIR 1987 S.C. 179, the Supreme Court made it further clear (A) constitution of India, Art.141 - Supreme Court decisions laying down position in law are laws binding on all-party need not be served with any notice or be a party to the said proceeding" (paras.1 & 4)

 

Again in Gopal Upadhaya v. Union of India, AIR 1987 S.C. 413 at 414 para.4, "when a question is answered expressly or by necessary implication we cannot ignore the answer by referring to the decision appealed against and holding that the real question that must be - considered to have been answered was something else. That is not an understanding the law of precedents. What the Judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the judges themselves are what constitute precedent". So a binding decision whether in limine or without notice is not void or invalid.

 

The decree in S.A. 379/83 referred and quoted in Kunnath Yesoda's case lays down a well established principle. "Any observation on the question of title can only be incidental to the finding on the question of possession, that will not preclude the plaintiff from bringing a fresh suit to establish his title". In other words in a suit for injunction the question of title does not arise. "In suit for injunction we are concerned only with the question of possession" Kesava Bhat v. Subraya Bhat 1979 KLT 766 = ILR 1980 (1) Ker. 89 = AIR 1980 Ker. 40. It is also laid down in the same case that the rule of presumption following title as is well known, is applicable only in certain limited classes of cases and under limited conditions and circumstances".

 

It is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person, who had no title whatever". Nelson's Law of Injunctions second edition page 355. In Vasudeva Kurup v. Ammini Amma 1964 KLT468 the Kerala High Court laid down that even a trespasser can get an injunction against true owner.

 

So it is very clear that the decision in S.A. 379/83 is a decision having a binding force through-out the State. But still the fortunate 'Kunnath Yesoda' got it as a non-binding decision. This anomalous position is the result of Thampi v. Mathew 1987 (2) KLT 848. This is what is predicted in the dissenting judgment Sukumaran, J. The principle laid down S.A. 379/83, following judicial precedents became "a virtual nullity". Legislative change made by the Code of Civil Procedure (Amendment) Act 104 of 1976 introduces Order XLIA. Under Order XLIA Rule 1 "The rules contained in order XLI shall apply to appeals in the High Court of Kerala................" So Order XLI Rule 11 is also applicable to appeals before High Court.

 

Scope of the rule:--

 

"The Law Commission was of the view that there should be stricter and better scrutiny and instead of appeal as a right on any substantial question of law, should be subject to special leave. The Legislature, however, thought it better to preserve the Court's discretion to hear the appeal, but placed injunction to keep the hearing confined to the question formulated by it at the hearing of the appeal under Order XLI Rule 11. The proviso to sub-section (5) of S.100 has, however, been kept as the repository of judicial discretion for reasons to be recorded; the power although not unbridled, yet enough to impress all such questions which deserve consideration to subserve the ends of justice. The caution that the Division Bench has administered that caution should be exercised, is nothing beyond reminding that hearing the appellant at the stage of Rule 11 of Order XLI for all purposes is enough except the question on which the court desires to hear the respondent; but formulation of a question of law at that stage cannot be allowed to deny a hearing on questions other than one framed if the court is satisfied that such denial shall cause injustice. Ritualistic adherence to the formulation which may have the effect of shifting the course of justice can never be desirable". (page 2742 Code of Civil Procedure, 3rd edition, Sir John Woodroffe and Ameer Ali's).

 

The order of dismissal of an appeal under Order XLI - Rule 11(1) is a decree (Surajpal Pandey v. Uttampandy, AlR 1922 Pat. 281, Radhanath Jha v. Bachalal Jha AIR 1955 Pat. 370, Annapa Ramanna v. Pondusi Sree Ramalu AIR 1958 A.P. 768). It is abundantly clear that an appeal dismissed in limine by any court other than High Court is a decree. It is further important to note that the majority after discussing various decisions of the Supreme Court and other High Courts observed p. 862 1987 (2) KLT "Dismissal of an appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the trial court on the merits of the case and the decision of the appellate court is held to be res judicata on the question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate that the decree of the trial court gets merged - in the appellate court's decree even when the appeal is dismissed on a preliminary ground or as time barred".

 

How then a decree of High Court passed under Order XLI - Rule 11 (dismissing the appeal in limine) be treated as non est or nullity. It is not queer to say that the judgment of the High Court which is binding on all courts, tribunals and quasi judicial bodies is not binding on the respondent therein for the simple reason that he is not served with notice - a mere formality which the statute itself made obsolete.

 

Therefore it is most respectfully submitted that the majority decision in Thampi v. Mathew (1987 (2) KLT 848) needs re-consideration in the light of the best reasoning of the dissenting judgment of Sukumaran, J.

The Judge in K.K. Mathew

A Critical, Though Reverential, Appraisal

 

(S. Parameswaran, Advocate, High Court of Kerala)

 

I. It was Barbara Goldsmith who commented, "Today we are faced with a vast confusing jumble of celebrities, the talented and untalented, heroes and villains, people of accomplishment and those who have accomplished nothing at all, the criteria for their celebrity being that their images encapsulate some form of the American Dream, that they give enough of an appearance of leadership, heroism, wealth, success, danger, glamour and excitement to feed our fantasies". How true it is in the Indian context as well.

 

II. In such an atmosphere, a self-effacing jurist-judge like the late lamented K.K. Mathew is a refreshing exception. Reserved, withdrawn, taciturn though tactful, unassuming though not unasserting, letting his power rest lightly on his head, frail in health but firm in mind, Justice Mathew is a celebrity to be remembered' and reverenced. The rise and transformation of this rustic of a tiny hamlet near Athirampuzha in Kottayam District into a nationally known and respected Jurist-Judge is a saga of success through the sheer dint of hard-work and intrinsic merit, though apparently it may be phenomenal. But I do not propose to deal in this article with Mathew, the man; my endeavour is to assess the judge in him.

 

III. The apex judiciary in the country exercises more power over a broader range of social and economic issues than the framers of the Constitution ever envisaged. It plays an active role in shaping and carrying out social policy, passing on the legality of governmental decisions as to a wide range of issues from acquisition of land for a public purpose to usurious loans. This expanded public policy role of the higher judiciary -whether conferred or arrogated - underlines the importance of the quality of the judge-appointees. As Justice Felix Frankfurter put it, "The most relevant things about an appointee are his breadth of vision, his imagination, his capacity for disinterested judgment, his power to discover and to suppress his prejudice".

 

IV. Justice Mathew, no doubt, substantially satisfied these requirements, though in the later years of his judicial and quasi-judicial activities, his pro-Establishment proclivities pronouncedly surfaced. Otherwise, demonstrated disinterestedness and knowledge of the law were qualities exhibited by him, and in plenty. His intrinsic merit is discernible in the not so small numbers of judicial decisions handed down by Justice Mathew over more than one decade span of his judicial life.

 

V. We are a nation with a diverse quilt of political and religious traditions. Some of these traditions do not translate well or inspire emulation today. The framers of our Constitution gave us a fine written instrument, but all the same, an unfinished one. To use unchanged the arms of tradition will be to invite defeat. Our Supreme Court, particularly of the Fifties and the early Sixties, which had a star-studded composition, not only gave an incisive insight into the working of the minds of the framers of the Constitution, but an exciting environment of free thinking. All the same, when we discuss a person like Justice Mathew, it should not be as a hero created as ideological model.

 

VI. A perusal of some of the important judgments of Justice Mathew provides a near ideal laboratory for examining the way the Judiciary, which interpreted the fundamental law of the land, has both initiated, and responded to, social change. He has on occasions placed the shield of the Constitution between the basic citizen's rights of the individual and the potentially tyrannical government of the State. At the same time, on a number of occasions as in the Bennett Coleman case (AIR 1973 SC 106) and as Chairman of the Law Commission recommending a Bicameral Supreme Court, Justice Mathew plainly and palpably supported the Establishment. Just as Felix Frankfurter of the U.S. Supreme Court, Justice Mathew believed in the philosophy of judicial restraint, and it proved to be his pervasive guide and a la Frankfurter his record on civil liberation and fundamental rights, exemplary as a private citizen, would be less impressive as a Justice. But, unlike Frankfurter, Mathew, did not view the law as a living, vital force that must change with the times. Justice Mathew essentially an introvert unlike Justice Frankfurter, had, and indeed, prided in, his ability to impress upon men of power and wisdom with fresh insights into complicated public problems. His weapons in his judicial arguments were threefold:

 

i) a meticulous legal mind;

ii) a skeptic's respect for compromise in an imperfect world; and

iii) an effervecent and self-effacing personality that built good-will and confidence when even reason failed.

 

VII. The judicial opinions rendered by Mathew cover a wide spectrum ranging from acquisition of land for a public purpose Usurious Loans Act. His fertility of genius and fecundity of thoughts are reflected luminously in many of these judgments. Paucity of time and limitation of space preclude a detailed discussion of these in this article. Some random, yet representative, samples are taken which would help the reader understand the judge in K.K. Mathew.

 

VIII. The views of Justice Mathew on agrarian reforms cannot be said to be totally socio-economically oriented. For, he concurred with his brother Judges of the Full Bench in Narayanan Nair v. State of Kerala (1970 KLT 659 (FB)) in declaring invalid Sections 29A, part of S.32,S.45A,S.50A(2),Expln. to S.85(l)and S.125(7) of the Kerala Land Reforms Act, 1963 as amended by Act 35 of 1969, while striking a discordant note only in regard to S.73. All the same, it is useful and pertinent to recall the justice's observations in paras. 8 and 9 of his separate opinion. The conservative in Mathew made Ma concur with the majority in striking down some important provisions. It is a far cry from this to the later-day Mathew of the Supreme Court, who said that property rights should be elbowed out of the Fundamental Rights Chapter. But, then, consistency has never been a judicial virtue and Justice Mathew was no exception!

 

IX. Observations have been made by Justice Mathew about the justiciability of Administrative Orders under Art.226 of the Constitution of India. Holding that administrative regulations and orders are sources of law, Justice Mathew observed "He that takes the procedural sword shall perish with that sword" (See James v. Auditor General of India reported in 1970 KLT 571 and similar other cases).

 

X. Mathew's comprehension of law relating to religion was equally good and great. The opinion in Achuthan Pillai & others v. State of Kerala and others (1970 KLT 838) (FB)) bears testimony to this.

 

XI. Justice Mathew in Sri Mahalinga Thamoiran Swamigal v. His Holiness Sri. Kasievasl Arulaandi Thambiran Swamigal (AIR 1974 SC199) gave a decision having far-reaching repercussions as regards succession to the office of the headships of Mutts. He expressed his views as follows:--

 

"The fact of a person being legally nominated as junior having peculiar relationship with the senior is status, and the capacity to succeed to the head is the incident of the status. The status, when created by a nomination, cannot be withdrawn or cancelled at the mere will of the parties. The- law must determine the condition and circumstances under which it can be terminated. Merely because the status originated from the act of a senior head in making the nomination, it would not follow that the senior head can put an end to it by other act. In other words, the junior heads as a class occupy a position of which the creation, continuance or relinquishment, and its principal incident, namely succession to the office of the headship of the Mutt, are matters of sufficient social or public concern in the sense that the Hindu religious community is vitally interested in all of them". There are similar other instances of his expatiation of the law concerning religion.

 

XII. Yet another opinion of far-reaching importance delivered by Justice Mathew was in the State of Gujarat and another etc. v. Shri. Amhica Mills etc. (AIR 1974 SC 1300) where the validity of the Bombay Labour Welfare Fund Act, 1963 was challenged by a group of textile mills before the Supreme Court. Reversing the decision of the Gujarat High Court, the Supreme Court held that a law which takes away or abridges the fundamental rights of citizens under Art.19(1)(f) of the Constitution would not be void and nonest even as respects non-citizens like companies. Mathew felt that a Court should be hesitant to choose invalidation as an appropriate remedy. Though the test is imprecise, a court must weigh the general interest in retaining the statute against the court's own reluctance to extend legislation to those not previously covered. Such an inquiry may lead a court into examination of legislative purpose, the overall statutory scheme, statutory arrangements in connected fields and the needs of the public. The Frankfurterian complex in Mathew is demonstrably visible in his opinion in this case.

 

XIII. For Justice Mathew's illuminating exposition of the law of domicile and the law concerning foreign judgment and res judicata, one may have a look at his opinion in Sankaran Govindan v. Lakshmi Bharathi reported in AIR 1974 SC1764.

 

XIV. Justice Mathew had a proclivity -- or shall I say, penchant -- to endorse the Establishment's views and actions, and a number of such instances are available in the Law Reports of the country. An example is the case of preventive detention under the MISA (Maintenance of Internal Security Act, 1971).Speaking for a Constitution Bench, with Justice Bhagwati holding to the contra, Justice Mathew gave an interpretation upholding S.13 of the Act as amended by S.6(d) of the Defence of India Act, 1971. He held that the power to determine the maximum period of detention is not discriminatory. The words 'maximum period', means the highest or greatest course or extent or stretch of time, measurable in terms of years, months or days as well as in terms of occurrence of an event or the continuance of a state of affairs. "The maximum period" in Art.22(7)(b) can be fixed with reference to the duration of emergency. The Parliament in fixing the duration of the maximum period of detention with reference to an event like the cessation of the period of Emergency has in no way abdicated its power or its function to fix the maximum period or delegated it to the President. Only because the duration of the period is dependent upon the volition of the President, it does not cease to be the maximum period. The President will not act unreasonably and continue the Proclamation of Emergency even after the Emergency has ceased to exist", opined Mathew, who, on several other occasions, displayed a desire to don the dress of a liberal and libertarian.

 

XV. In matters of interpretation of statutes and testing the validity and vires of statutory enactments and subordinate legislation, Mathew had an approach of his own. The dilution of preliminary watch-dogging on delegated legislation may be declared valid in the compulsion and complicity of modern life, according to the learned Judge.

 

In a decision dealing with FERA (The Superintendent and Remembrancer of Legal Attain, West Bengal v. Girish Kumar Navalkar and others, AIR 1975 SC 1030), he observed as follows:-

 

"The general purpose or object of the Act given in the preamble may not show the specific purpose of the classification made in S.23(1)(A) and S.23(1A). The Court has, therefore, to ascribe a purpose to the statutory classification and co-ordinate the purpose with the more general purpose of the Act and with other relevant Acts and public policies. For achieving this the Court may not only consider the language of S.23, but also other public knowledge about the evil sought to be remedied, the prior law, the statement of the purpose of the change in the prior law and the internal legislative history. When the purpose of a challenged classification is in doubt, the courts attribute to the classification the purpose thought to be most probable. Instead of asking what purpose or purposes the statute and other materials reflect, the Court may ask what constitutionally permissible objective this statute and other relevant materials could plausibly be construed to reflect. The latter approach is the proper one in economic regulation cases."

 

XVI. While espousing principles considered essential to representative democracy, Mathew was careful enough not to upset the apple-cart of the Establishment. Critically and impartially observing, one may say that had it not been for this streak in his. personality, which some critics, perhaps, uncharitably, characterise as intellectual dishonesty, Justice Mathew's reputation would have gone up to dizzy heights.

 

XVII. The High Bench cannot be too cautious in upsetting practices embedied in our society or system by many years of experience or practice. The State is entitled to have great lee-way in its legislation when dealing with important economic or social problems. This philosophy of Justice Mathew forms the sheet-anchor of his discordant note in the Bennett Coleman case. Countless similar examples could be listed; but there is no need to be labour the obvious. We have come to recognise through bitter experience that it is not within the power of Government to invade the citadel of freedom of expression whether its purpose or effect be to aid or oppose to advance or retard. Though the application of this rule requires interpretation of a delicate sort, the rule itself is clearly stated in the words of Art.l9(l)(a) of the Constitution of India.

 

XVIII. Justice Mathew was at his best in his dissenting opinions from the Bench which are not small in number. Today's dissenter, in judiciary, is tomorrow's path-finder. His Lordship's observations in the famous E.M.S. Contempt case ((1968 KLT 299 (F.B.)) is an instance on point.

 

XIX. Justice Mathew's views in the E.M.S. contempt case are worthy of emulation in this preitine glory. In T. Narayanan Nambiar v. E.M.S. Namboodiripad (1968 KLT 299 (F.B.)) the respondent E.M.S. Namboodiripad, the then Chief Minister of Kerala in a press conference stood charged of having condemned the judiciary as follows:-

 

"Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set-up has not undergone any change, it continues to be so that judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well-dressed, pot-bellied richman and a poor, ill-dressed and illiterate person, the judge instinctively favours the former".

 

XX. Justice P.T. Raman Nayar and Justice T.S. Krishnamoorthy Iyer in two separate, but concurring, judgments found that E.M.S. was guilty of very grave contempt of Court; in a dissenting note reflecting courage, clarity of thought, catholicity of outlook and constitutional punditry, Justice Mathew declared that the laws in relation to defamation referred to in Art. 19(2) should not be allowed to paralyse a citizen's right to participate in self-government by free discussion of public conduct of officers or of public figures and that it is logical to hold that the law of contempt by scandalising a Court should not prevent a citizen from expressing his views as to the defects in the system of administration of justice or as to the remedies therefor. Justice Mathew then goes on to expatiate the Law of Seditious Libel as it developed in this country and the West and the Law of Contempt in all its ramifications and range reflecting enviable erudition.

 

XXI. Narrating the story of Timoleon in Plutarch's Lives, Justice Mathew concludes his opinion:-"I think Timoleon's attitude might not be a bad one for courts to adopt in our Republic, where the people have the fundamental right to say what they have to say concerning the governance of the country, including the administration of justice". While one wishes that the ultra-sensitive among the higher judiciary cared to follow this sagacious advice, one has also/to admit that the later opinion of the Kerala High-Court in the contempt case against Justice V.R. Krishna Iyer, and of the Supreme Court-in the contempt case-against Sivasankar pale into insignificance in qualitative content when compared with the great dissenter's rejoinder. That the Supreme Court speaking through Justice Hidayatullah (EMS Namboodiripad v. T.C. Narayanan Nambiar, 1970 KLT 588) confirmed the Kerala decision does not detract from the greatness, merit or scholastic content of Justice Mathew's judgment.

 

XXII One of the many outstanding judgments delivered Dy Mathew was in Bennet Coleman & Co. Ltd. and others v. Union of India and others (AIR 1973 SC 106) where the question as to whether the News Print Policy of 1973 of the Government of India violated Arts. 19(1) (a) and Art.14 of the Constitution of India arose for consideration. The majority of the Constitution Bench comprising Chief Justice Sikri and Justices AN. Ray, P.J. Reddy and M.N. Beg took the view that the news print policy violated the Constitutional freedom. Justice Mathew's dissenting Opinion reflects- in abundance his erudition; scholarship, insight, incisive, analysis and legal legerdemain. It could even be called his causus celebae. Justice Mathew observed that the freedom of the press is net higher than, the, freedom of speech under Art.19(1)(a) of the Constitution which does not specifically provide for freedom of the Press as the First Amendment of the U.S. Constitution. The freedom of the Press is simply an emanation from the concept of fundamental right of the freedom of speech of every citizen. Mathew added that it is a total misconception that speech cannot be regulated or every regulation of speech would be abridgement of the freedom of speech. He referred to the observations of Justice Holmes in Abraham v.- United States (1918 (250) U.S. 616):--

 

"But when men have realised that time had upset many fighting faiths, they may come to believe even more than they believe the very foundation of their own conduct, the ultimate good desired is better reached by free trade in ideas-that the best of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution".

 

XXIII. He adverted to the sentiments echoed by Justice Black when he said that the freedom of speech rests on the assumption that the; widest possible dissemination of information from the diverse and antagonistic forces is essential to the welfare of the public (Associated Press v. U.S. (1945) 326 U.S. 1.20) and made reference to the speeches and writings of great thinkers to bolster his views. According to Mathew, with the concentration of mass media in a few hands, the chances of new ideas antagonistic to the idea of proprietors of the big newspapers getting access to the market has become very remote. It is no use having a right to express your views unless you have got a medium for expressing it. The concept of a free market for ideas presupposes that every type of ideas should get into the market and if free access to the market is denied for any ideas, to that extent, the process of competition becomes limited and the chance of ail the ideas coming to the market is removed. There can be no doubt that any mass medium having the greatest circulation will influence the political life of the country because the ideal for which the paper stands has got the greatest chance of getting itself known to the public. It will also affect the economic pattern of the society. Whether or not the modern big news paper is the cultural arm of the industry, it has an interest in the present method of production and distribution, as it subsists mainly upon advertisement."

 

XXIV. "The mass media's development of an antipathy to ideas antagonistic to. theirs or novel or unpopular ideas, unorthodox points of view which has no claim for expression in their papers make the theory of market place of ideas too unrealisitc. The problem is now to bring all ideas into the market and make the concept of freedom of speech a live one having its roots in reality."

 

XXV. Any law or executive action which advances the freedom of speech cannot be considered an abridgement of it. The constitutional guarantee of the freedom of speech is not so much for the benefit of the Press as it is the benefit of the public. Relying on the observations of Meiklejohn in his "Political Freedom", Justice Mathew observed:

 

"If the right of the public to hear and be informed is also within the concept of these freedom of speech, the government, when it insists upon the newspapers concerned maintaining their present level of circulation does not abridge the freedom of speech, but only enriches and enlarges it. In other words, under the theory of the freedom of speech, which recognises not only the right of the citizens to speak, but also the right of the community to hear, a policy in the distribution of newsprint for maintenance of circulation at its highest possible level as it furthers the right of the community to hear, will only advance and enrich that freedom".

 

XXVI. Though there may be difference of opinion concerning the philosophy espoused by Mathew, it is beyond cavil that the dissenter in Mathew was in his elements in this masterpiece of his judicial exposition.

 

XXVII. With the increasing numerical strength of the apex court and the corresponding decline in the qualitative content of its judicial opinions, one has to content oneself with nostalgic memories of a bye-gone era of the Supreme Court, to which life and lustre was added by stalwarts like Patanjali Sastri, Subba Rao, Gajendragadkar, K.K. Mathew and V.R. Krishna Iyer.

 

Tail piece

 

XXVIII. Certainty is not the El Dorado for any legal system; on the contrary, uncertainty and change are the sine qua non for legal growth