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

Uniform Civil Code in India: A false model for development?

(By Dr. W.F. Menski, School of Oriental and African Studies, London)

An important new study on the vexed question of the Uniform Civil Code (Vasudha Dhagamwar: Towards the Uniform Civil Code. Bombay: Tripathi 1989) prompts me to comment on the feasibility of such a wide-ranging and ambitious project for India as a whole.

Regular readers of K.L.T. will be aware that I have been arguing, on the basis of experience in Kerala, that much of centralized law-making, particularly if it is designed to affect the way local 'little' people regulate their daily lives, will not per se lead to the desired results. Thus, I argued (at K.L.T. 1986 J 17-20 and 63-65), that the official abolition of Joint Hindu family law in Kerala through the promulgation of the Kerala Joint Hindu Family System (Abolition) Act. 1975 was not in fact effective as far as most Kerala villagers were concerned. I have no reason today to abandon this argument, despite the dictum of Mr. Justice U.L. Bhat in Saraswathy Warassiar v. Parukutty Warassiar (K.L.T. 1988 (1) 638, at 640, para 7) to the effect that S.4 of the 1975 Act has created certain legal facts. One notes the carefully chosen words of the learned Judge at p.641 that "it would be open to the plaintiffs to sue for partition claiming share on per capita basis". This seems to indicate that the legal facts undoubtedly created by the statute have to be reinforced by litigation in cases where there is no assent to these new legal facts. In other words, a local citizen, when faced with opposition from other family members to his or her individualistic claims, may have to drag them to court to assert a right that the statute has already granted to this individual. It could, of course, be argued that it is in the nature of many legal rights that they have to be re-inforced and operationalised by court action. However, this approach to legal rights can hardly be an asset for a legal system of a country with many many millions of people who are dependent for survival on the goodwill of their close kin. Quite apart from problems of access to courts, financial barriers etc., I do not consider it a realistic option for most people to fight their families to assert their individual rights, though this will undoubtedly happen in some cases. In social reality, as I observed in numerous cases in Kerala and elsewhere, there is a definite preference for informal family arrangements and consensual sorting out of individual claims and ambitions without the aid of courts. Some lawyers have told me that a man in Kerala may now go as far as spending a fortune in legal fees on ascertaining his right over a single coconut tree. Such experiences illustrate one of my major points here: Modern State law, like the 1975 Kerala Act, is often imperfectly implemented and exists more on the statute book than in reality. It may be proudly held up as the 'official law' of the state, but the 'living law' can be remarkably different. Of course, lawyers never tend to suffer from such discrepancies. It is only confused individuals who cannot make sense of competing obligation systems who get caught in the nets of legal conflicts and often have to pay dearly for their trust in the 'progressive' law.

Whether one likes it or not, these are, in a nutshell, the major effects of what I called "legislative overkill" in Kerala. It seems to me that the implementation of a Uniform Civil Code for the whole of India could be a far worse form of legislative overkill than the 1975 Kerala Act.

In my K.L.T. essays of 1986, medical images had a prominent place; we discovered subsequently that Professor Tahir Mahmood [Personal Laws in Crisis. New-Delhi :Metropolitan 1986] was writing in similar terms. There can be no doubt that all of independent India's major leaders have been seeing themselves as doctors in charge of an ailing patient. Thus, more or less brilliantly conceived prescriptions for a better future" have been dominating much of the agenda of Indian legal development. One of the favourite strategies has been to prescribe a number of medicines, often with the specific aim to rejuvenate and develop the patient's ancient body into something more in line with the second half of the 20th century. Not unexpectedly, the doctors did not agree among themselves, but once the ayurvedins and hakims had been sidelined by the believers in the new religion of the progress and development, the patient was given little option but to swallow large amounts of legal drugs.

One wonderdrug, in particular, was recommended for boosting the country's immune system against communal fevers and for strengthening the general health of the body, e.g. national unity. Remarkable reticence about the true nature of this rather colourless and neutralising drug has been maintained up to now. It was offered to the nation under the label of 'Uniform Civil Code' and is found in Art.44 of the Indian Constitution of 1950 which provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India".

What did this well-sounding Directive Principle of State Policy mean? It appears that a major intended effect of this promised wonderdrug was to turn a newly created nation, still suffering from the recent wounds of communal frenzy, into a peaceful haven for all communities. Thus, the intention must have been to tackle what was perceived as the cancer-like spread of the traditional systems of differential statuses and inequalities, and to curtail and ultimately eliminate the various systems of communal personal law based primarily on religious distinctions.

The vision was that in the new secular body politic all members would be equal before the law, if not in reality, and that differences of race, religion, caste, class and gender would, rather sooner than later, be wiped away to create a standard breed of 'the new Indian as an individual with a dominant loyally to the central state.

These rosy perceptions of the future have now lost much of their attraction for the country's legal doctors. During the 1980s, there has been much talk of a "crisis" of the Indian legal system Upendra Baxi: The crisis of the Indian legal system. New Delhi: Vikas 1982) and of personal laws (Tahir Mahmood, as above). We now realise that what was prescribed to India in the 1950s is not untypical of legal prescription in the name of 'development' generally. The only difficulty is that nobody in the 1940s and 1950s knew quite how the new medicines would work, what their actual implications would be and what, more importantly, would be their side-effects.

Some 40 years later, some doctors of India's political and legal system are still advertising the miraculous wonderdrug as a panacea for all the ills of modern Indian legal development. Article 44 has gathered dust, but is still found in the shop window of the Indian Constitution. Yet the optimism about the effectiveness of the super drug has largely evaporated. The experts now carry a professional mien of distance and give their advice in guarded tones, even though there is no American-style insurance policy that a frustrated, ill-treated patient could seek to invoke. Self-doubt plagues the profession. One is now almost ready to contemplate alternative medicines; the ayurvedic type is beginning to be back in fashion, panchayats are debated again, and it does not even seem to matter what political persuasion the new doctors adhere to, their messages signal a loss of confidence in the ability of officious and formal state law to regulate the daily lives of the common citizen.

The patient, in the meantime, has developed vigorously, beating all odds. There maybe all kinds of cancer raging in the vast belly, and some, ailments have definitely got worse. Like many bad (or sensible?) patients this one has obstinately refused to take all the medicines. But the doctors have definitely connived in this by failing to ensure that the drugs, once prescribed, were consistently applied and their effects monitored. After 40 years of somewhat haphazard treatment, the patient is still alive and well, with no vital bits missing, despite the threat of peripheral parts to fall off. But the immune system remains impaired, the communal temperature has gone up, and there are many danger signs.

Not that the end is near, though. As the world's largest functioning democracy settles down under a new leadership, the patient's ailments are likely to be re-assessed and the treatment will be continued. One may wonder how: There are not many options of therapy for the Indian disease of diversity. In fact, an appropriate diagnostic analysis should question the definition of 'disease' in this case. The problem itself will never ever go away. Perhaps our doctors' diagnosis so far has been wrong? What if we consider that diversity, in itself, may be an asset for legal regulation rather than a problem?

Our doctors, of course, in their customary self-engrossment with their powers, have so far largely overlooked the innate forces of immunity against injections of modern uniformising wonderdrugs. One knows and accepts that some limbs may be numbed for a while, shocked into submission by the new chemistry, and may look and behave almost as desired by the wonder doctors. But what happens after a couple of years when the initial effects may have been modified? What if after a while 'the system' re-asserts itself and the effects of the treatment are slowly taken away, not necessarily completely, but in such a way that the originally projected cure will not be achieved.

Vasudha Dhagamwar's new book contains much evidence of the resilience of the Indian body of traditions and the consequent rejection of recently implanted legal tissue. This timely and splendid study focuses to some extent on the fundamental uniformising legal and political pressures in modern India. These present a basically irreconcilable clash between the aims of the ambititious 'social engineering through law' school of thought and persisting social realities of a perceived 'traditional' type. This, as the study indicates, more between the lines than openly admitting it, has led to the slowly growing realisation that modern India can and will never become a mere copy of the so-called advanced and developed modern Western democracies. Indeed, the reluctance to admit this is felt throughout the book; a sense of urgency is expressed several times, a feeling of panic almost: if we don't act now, and soon, all progress will be lost!

But it would be quite wrong to imagine that a boat could be missed or has been missed already. This is a model case of Waiting for Godot. Fundamental misconceptions have confused the issues that this book seeks to address, creating immense tensions. Any debate on the Uniform Civil Code, therefore, seems as much emotional as it is political and legal. The author admits deep frustration over lack of agreement and progress, leading to phrases like "barren controversy" (p.71) and the view that the last four decades have been "a sad waste of time" (ibid.).

As one of India's leading socio-legal scholars, Dhaganiwar is far too experienced to rush into an apparently easy option. She displays some due cautiousness and declares open-mindedness, but this is perhaps little more than half-hearted rhetoric. As the title subtly indicates, this study is rather too concerned, apart from raising the issue, to propel developments in the direction of greater legal uniformity and progress. It is apparently one of the book's major premises that legal uniformity will more or less automatically follow from swallowing the legal wonderdrug of the Uniform Civil Code. But the argumentation fails to convince, the author simply tries loo hard to push her own perception of the issue. Yet the book is very useful indeed and admirable as a bold attempt to give the complex issue of legal uniformity in modern India a higher place on the agenda.

As the author is, at the same time, so very aware of the major difficulties of enforcing legal uniformity in a country like India, the main discussion in the book ends with a remarkably open-ended conclusion which is probably designed to challenge us into debate. Here is a prominent "mainstream" lawyer (with due reservations about the term, as expressed p.63) who seems to indicate her own ambivalence about the feasibility of a truly uniform civil code:

"Voluntary or compulsory, it seems that if and when the Uniform Civil Code is introduced, there is a strong possibility of a period of deep social unrest taking place. Unless the government is prepared to ride out this period, if it then gives in to those who don't want the Uniform Civil Code, more damage will be done by introducing than by withholding the Uniform Civil Code" (p.76).

This statement seems to say that there are basically two options: implement a Uniform Civil Code, irrespective of all the likely negative side-effects, or abandon it altogether. The suggestion that India should have a Uniform Civil Code, even if prolonged bloodshed follows seems rather disturbing. How desperate have we become? Should we hope for a 'benign' emergency dictatorship a le Mrs. Gandhi that is bold enough to impose uniformity from above, arguing that, in the long run, the bitter medicine will prove beneficial? The author's anguish is coming through many passages of this book; it poses serious questions, but offers no ready answers.

Clearly, thus, modern India's elite legal thinkers, realising that they are so very remote from the masses, are currently in a healthy crisis of self-assessment: one still feels the urge to recommend and prescribe the old wonderdrug to the nation, but there is much evidence that it has not worked so far, and does not work elsewhere.

Apparently also in this context, we are beginning to witness a growing realization that the elites of India have a duty not to devise remedies that suit mainly their own aims. The public interest element, so noticeably strengthened in the 1980s, is also beginning to assert itself in this debate. For, if a few enlightened individuals manage to separate law and religion, as is proudly asserted (p.51), the average Indian cannot, and may never want to do this, and would thus be alienated from the state by forced reforms along 'secular', non-communal lines. A consideration of public interest cannot overlook this important fact.

Dhagamwar's book, apart from discussing the issue of legal uniformity, contains an interesting range of material about different areas of the law, notably on adoption law. The perhaps necessarily rushed and sketchy treatment of many specific legal topics shows, however, that there is clearly no point in doggedly pursuing legal uniformity in India with reference to any one legal topic. In each case, as is only too apparent, the attempts to devise total uniformity are soon running aground, often because of vocal Muslim opposition. But it would be unfair, and the author resists this temptation well, to blame the Muslims of India for the ills of the system. At the same time, the valid point is made that the discussion has become dominated by Muslim issues and concerns and that the government has listened and reacted too much to conservative Muslims.

Still, much of this book, too, is firmly in the grip of this predicament. It is not a coincidence, as I have indicated elsewhere [see 1988 (1) K.L.T. J 56-66], that we find the same situation in Britain today.

It seems a bit too simple to accept the argument of some of Dhagamwar's informants that communalism is so strong in India because different communities do not have the same status in law (p.50 and 83). Rather, apart from competition for scarce resources and politicking community leaders, whose role is rightly castigated by the author in various contexts, the State itself has significantly contributed to the communal tensions, but not, as Dhagamwar consistently argues in many contexts, by respecting diversity and backpeddling on uniformity, but, in the first instance, by its own uncoordinated and unreflected programme of secularization and uniformisation, now perceived as threatening by almost all communities, even the Hindu majority. For, did we not know for decades that the Hindu never really agreed to the secularising reforms of their personal laws, and that such reforms as were made often show half-heartedness, either on the part of the legislators or the judges who applied the law, or both (J.D.M. Derrett: The death of a marriage law. New Delhi: Vikas 1978]? Dhagamwar's study shows that, far from developing consistently towards greater legal uniformity, modern Indian law has oscillated between extremes. So one abolished, as J.D.M. Derrett put it in his Critique of Modern Hindu Law [Bombay 1970 : 310], major elements of traditional laws "in a euphoric moment", while one reintroduced traditional elements in other contexts. More recently, the great euphoria (of course only in some quarters!) following the Shah Bano case of 1985 was rapidly smothered by the much-misunderstood Muslim Women (Protection of Rights on Divorce) Act, 1986 that appears to treat Muslim divorced wives differently from others. In Kerala, of course, the cases of Ali [1988 (2) KLT 94] and Aliyar [1988 (2) KLT 446] have now opened up the debate again, and we can be sure that the last word has not been spoken on this controversy.

The consequent muddles into which modern Indian family laws have been thrown, appearing hopelessly inefficient and confused to the uninitiated outsider, are not to be interpreted as welcome evidence of the persistently alleged Indian inability to be efficient, but are rather splendid proof of the conceptual blindness with which some self-styled experts applied the new wonderdrug of legal uniformity in India. What we see, in virtually every legal context, and not just in Kerala, is the apparent imcompatability of much of the new law with the thinking of common Indians who, as Dhagamwar notes, are far too busy with their own little worlds to philosophise about legal uniformity. This, she comes close to arguing, gives a mandate to those that have a long-term vision of modern Indian Law. I find this extremely dangerous, precisely the kind of doctor's approach that claims to know best what is good for the patient without listening to his or her perception of the presumed illness first. My diagnosis is rather that the communal fevers of modern India have been, over decades, aggravated by the discomfort caused due to the impending threat of abolition of one's traditions and the consequent inner rejection of what is perceived as foreign or alien tissue.

There is clearly no easy cure, no patently obvious remedy. But an urgent reassessment of the whole topic is asked for and is thankfully stimulated by Dhagamwar's splendid efforts. It does not help, though, to put wholesome blame on tradition; one needs to be more open-minded.

The author also notes the disappointing contribution of academics to the debate so far (p.47). She attempts to stimulate and generate discussion by interviewing a rather small and limited panel of community leaders (or those presenting themselves as such) and eminent legal experts. The study, thus, also offers a wide variety of opinions from the simplistic and demagogic to the legal philosophy of a leading light like Upendra Baxi. This evidence, often duplicating the author's earlier discussion, which is to an extent based on the responses of her informants, fills a major part of the book in seven substantial appendices. The material thus collected is perhaps not representative of anything other than the respective individuals, but it illustrates the lamentable state of the debate: there is a lot of politicking and infighting among the 'experts' shining though, quibbling over little details and outrageous episodes rather than giving attention to the important conceptual issues involved here. This is clearly a case of the blind leading the blind, and all the rhetoric about 'experts' and 'masses' is quite meaningless. In her final concluding discussion (pp. 158-162), Dhagamwar brings evidence of amazing examples of local legal uniformity that make all communalist politicians look like desperate agitators and show the proponents of a Uniform Civil Code in no belter light.

What is clearly needed now is a major re-assessment of some very fundamental issues in the debate on legal uniformity in India: To what extent does modern India need legal uniformity at all? Is it in fact counterproductive for the political unity of such a diverse and vast nation to press for uniformity in each and every respect (p.44)? Further, is the personal law system really as suppressive and divisive as Dhagamwar's study seems to make out? It seems far too simplistic to argue that a personal law system, perpetuating differential statuses, creates only barriers and injustice (p.62): the differentiation of statuses also makes for, and strengthens, links between individuals, and these remain of crucial relevance to most individuals anywhere in the world. This is certainly the case in India and, interestingly, in modern China too, where the modern law has again begun to remind individuals more openly of their social responsibilities. In India, this attitude has been phrased in terms of the fundamental duties of Article 51A of the Constitution, or in important court cases like Vijaya [All India Reporter 1987 S.C. 1100], where it was held that a Hindu daughter, also after marriage, has a duty to maintain her aged parents. I fail to see how one can argue in favour of the preservation of traditional links of support for tribals, as Dhagamwar does, but not for the (more 'civilised'?) average Indian!

Further, is there, as Baxi indicates (p.36), scope in not only contemplating, but fully accepting, legal pluralism rather than uniformity? Should India not be proud of her immense diversity and take this as an asset rather than something that needs to be legislated away? This question must be asked with renewed vigour today, especially since the American model of the 'melting pot' is now just a haunting skeleton in the legal wonder doctor's cabinet. In the context of modern Indian law, how useful are the various legal concepts found in the world? Have we got our perceptions of state law and the various kinds and levels of non-state law right? Is it correct to assume, for example, as Dhagamwar does (p.54), that Indian criminal law operates and is applied in a uniform way? If we have so much evidence that the various steps towards unification have been so painful and unsure, and that the technique of gradually codifying all personal laws separately will not work, since it does not necessarily lead to absolute uniformity, why do we remain fixed to the idea of a Uniform Civil Code?

Dhagamwar's book provides a suitably disturbing response, guided by the author's "rare courage of conviction" which is candidly emphasised in Upendra Baxi's preface. While I find the laudable aims of Dhagamwar's important study fully accomplished, fundamental reservations about the book's evaluation of modern Indian legal development remain at the back of one's mind.

Since the book was written, apparently 1986, many dramatic events have taken place that make updating of its factual material inevitable. We seem to have moved a little bit closer to legal uniformity. While the issue of legal uniformity is still as unresolved as it was when Dhagamwar wrote, the Parsis of India have decided on a reformed law for themselves. We now find this in the Parsi Marriage and Divorce (Amendment) Act, 1988, which often reads like a carbon copy of the much-amended Hindu Marriage Act of 1955, thus pursuing the strategy of harmonising individual personal laws along similar lines. The Christians of India have not been able to react with equal speed, and predictions about legal development in this field remain unsure, as far as I am aware. Quite crucially, as we saw, the Shah Bano controversy over the rights of divorced Muslim wives to maintenance is still far from over. The 'illness' of lack of legal uniformity in India has still not not been cured by any of the modern prescriptions, and I venture to predict that there is no cure for legal diversity other than to accept it as part of human existence. Dhagamwar, too, seems unconvinced about the feasibility of a strategy of codifying the various personal laws first [p.70] and urges for a very basic policy decision for or against the Uniform Civil Code.

In my submission, it would be unrealistic to refuse to accept that the operation of human societies generally is based on and results in distinctions and diversity. These have always been there, and are going to remain a dominant fact of life. What a good law probably needs to do is to ensure a balance of rights and duties as between individuals and groups of people. Diversity per se, no matter how hard the law strives to create equality and uniformity, will never be abolished by statute or case-law. Whether one can begin to work towards greater legal uniformity without antagonising large sect ions of the population is, in my view, a most difficult issue. If one looks at the Indian policies of protective discrimination, one finds the same conceptual problem: To hope for absolute equality and total legal uniformity is, as I said, like Waiting for Godot.

The desire to create a national legal system has always been seen as a legitimate aim for a modern nation state, but this does not, by itself, mean total legal uniformity, which remains an ideal model of legal regulation, not a realistically workable concept. Experts on modern India's legal ills must no longer allow themselves to be misguided and blinded by the apparently so persuasive Western models of legal uniformity. Firstly, these have often allowed much more diversity than some modern Indian legal prescriptions have been prepared to concede. Secondly, many Western-type and socialist uniform, secular laws have run into severe difficulties due to the strengthening of grass-roots public interest elements, which feed on local diversity and reject unnecessary centralization. Such movements thus often appear populist or 'ethnic', challenging the inherent inequalities created and perpetuated by "uniform national laws in many countries. Such laws have regularly purported to be uniform and secular, but they have also favoured certain dominant power structures. Whether we think of the Indian ruling classes in P. Bardhan's model [The political economy of development in India. Oxford : Basil Blackwell 1984] or of the successive toppling of East German England about blasphemy laws that protect only certain religious faiths, or of Russia's difficulties in persuading national minorities that the centralized system serves them well, centrally imposed legal uniformity may, at best, remain an ideal goal. For a country like India, it looks more like a false, inappropriate model altogether.

This conclusion, however, does not automatically and totally deny the value of a certain extent of legal uniformity. But no useful purpose is, in modern India, served by ignoring the patient's healthy grass-roots awareness of the whole body as a complex and immensely diverse system that cannot be drugged into submission by a powerful dosis of legal wonderdrugs like the Uniform Civil Code.

Multi-Ethnic Tokenism and Children's Rights in English Family Law

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

At KLT 1988 (1) J. 56-66, I discussed the second edition of The family, law and society. Cases and materials, by Brenda M. Hoggett and David S. Pearl (London : Butterworths 1987) in some detail, criticising the lack of coverage of ethnic minority matters in English family law by this otherwise excellent and extremely informative book.

The new edition could be read as an interesting exercise in subtle tokenism. The cover photograph shows a family of four, whose members have all different colours of skin, albeit in an unrealistic combination; the bibliography now includes a few items that indicate the authors' awareness of the existence of non-English families in England a bit more explicitly. But, are there any other changes? We draw a blank with regard to ethnic minority matters in English family law.

In their brief preface, the authors indicate that they have made as few changes as possible to the new edition though the new Children Act of 1989, which came into force on 14 October 1991, obviously necessitated a major recasting of the chapters dealing with children. The intimate details of marital behaviour have apparently ceased to be the central focus of English family law; in other words, the discussion about the principle of irretrievable breakdown has been virtually terminated by the flood of easily available, so-called consensual divorces through the 'quickie procedures'. Instead, children continue to be a major focus in English family law in the early 1990s. This is partly because of continuing difficulties over the maintenance of children, who are not only victimised by record figures of breakdown of marriages, but also by the continuing economic recession.

Thus, a new Act, the Child Support Act of 1991, will come into force in January 1993. After lengthy debates and a variety of reports, it is proposed to encourage lone parents', as they are now called in this book, to return to work and thus to relieve the impoverished welfare state of the enormous burden of maintaining one-parent families. Another aspect of this reform (seeesp.pp.120-129) is to expect fathers to contribute lb the maintenance of their offspring, even if they have started a new family and claim to have no spare cash. Here it is obvious that the modern welfare state in England could no longer foot the expensive bill for the clean break principle, which allowed men to indulge in what Tahir Mahmood has castigated as 'serial polygamy', washing their bands of the consequences with the support of the state and its well-sounding ideology of the 'clean break', which was designed to promote individualism, but encouraged also blatant egoism.

Today, a man in England may still divorce his wife in simple so-called judicial proceedings that are in reality often nothing but rubberstamping an actual unilateral repudiation, very much in the style of the allegedly inhuman talaq practised by Muslims anywhere in the world. But men in England must now again expect to. be asked more firmly to contribute to the maintenance of any children, even if they themselves are unemployed and dependent on the welfare system. Though many objections have been voiced against these reforms, surely a sense of responsibility for one's own children is not a negative aim? Up to now, it has been far too easy for men in England and Wales to escape their responsibilities. In my view Indian Laws, including the Muslim Women (Protection of Rights on Divorce) Act of 1986, have gradually developed a more humane and advanced approach than modern English family law. English law returns now, it seems, full circule to traditional notions of responsibility that may well be seen as demeaning women, but might actually help them to keep body and soul together, as Mr. Justice Krishna Iyer [as he then was] put it many years ago in the famous Bai Tahira case [AIR 1979 SC 362]. More importantly, the new developments endorse what jurisdictions like India are doing to their men, expecting them to contribute to the maintenance of divorced women and any minor children of their broken marriage. The so-called' developed' world's claim to having the right solutions for helping women and children has proved to be too costly to operationalise. There is clear evidence that one-parent families in Britain tend to be significantly-worse off in financial terms than the standard family. Thus, if the English legal system does not feel able to stabilise marriages, it can now at least attempt to put on financial brakes, that may safeguard the position of children.

A further reform in English family law illustrates the need for the law to keep up with modern scientific advances, as well as to take account of the extremes of individualism to which Western legal systems have had to find new responses. The Human Fertilization and Embryology Act 1990 (see esp.pp.489-499) concerns the basic question of who is a parent, since medical techniques like A.I.D. treatment and embryo transfer, leading to surrogacy arrangements, created difficult new problems. The wider question about the best interests of the child has now also begun to be debated in situations where women have wanted a child without sexual intercourse, thus preventing even the rudiments of emotional attachment and purposely blocking any attempt at disclosure of the identity of the child's father. A child's right to a father is now an increasingly important issue in English family law.

Thus, the most recent developments in English family law, as reflected in the new edition of the standard text by Hoggett and Pearl, clearly focus on child law and have taken attention away from the need to look at English family law within the multicultural setting of the UK's contemporary society. With the renewed call for greater and better recognition of ethnic minority personal laws in Britain, this important lingering issue is not off the agenda, but has been temporarily displaced by the obviously important and 'rightful focus on securing the best interests of children. The time will come, though, I vent 3 to predict, when multi-ethnic tokenism will not be good enough anymore.

Recent Changes in the Citizenship Law of India

By Dr. Werner F. Menski, M.A., Ph.D., S.O.A.S. London

Introduction

In the current debates on freedom of movement in Europe after 1992, the position of non-EEC citizens resident in an EEC country is of particular interest. There are substantial numbers of such people living within the EEC, though we have no precise statistics; they are either unable or unwilling to become citizens of their respective EEC country of residence. Often their arguments for retaining an overseas citizenship relate closely to the legal provisions of their country of origin. This raises important questions in legal practice, for which few European immigration and nationality lawyers will be prepared.

Earlier, I began to discuss the notion of 'denizens' and their precarious legal position (see l & NL& P Vol.4 No.2 [April 1990], pp.86-88). While increasing recognition of this difficult problem, which is a mixed one of nationality and immigration law, is certainly welcome, we are still far from having satisfactory guarantees for the freedom of movement of such people within the EEC. The purpose of the present article is, however, not to discuss the rights of Indian Citizens in the EEC context, but rather to focus on the provisions of Indian Citizenship law, particularly some recent changes that seem to follow the restrictive trends of British law and have important implications for many British Asians and other overseas Indians.

Some legal practitioners in Britain today, and certain local law centres in particular, will occasionally be called upon to advise clients on the citizenship laws of India, Pakistan or some other South Asian country. Questions may arise as to the right of certain individuals to claim or retain Indian citizenship. Particularly the position of British-born children, whether or not either parent holds Indian citizenship, will be of some interest. Many Asians in Britain, asking themselves whether they should become British citizens, or whether it was wise to do so, will want to know what rights they may still have under Indian law. The aim here, then, is to guide advisers through various relevant South Asian laws. The present article focuses on India and is the first in a projected series of essays on the citizenship laws of South Asian countries.

It will be obvious to most readers that among Britain's resident 'Asian' population there are many people who have retained the citizenship of a South Asian country. As Commonwealth citizens (a term that means very little in the immigration context today) they have important rights in Britain, such as the right to vote and to stand in elections, which are not given to a German or French citizen resident in Britain, for example. In the domestic immigration context, on which our literature, professional concerns and newsflashes concentrate, such 'Asian' non-citizen residents may pose no specific problems, particularly if they have indefinite leave to remain in Britain. Rather, advisers may be dealing with an emigration issue and advice may be sought on the position of dependants with British citizenship and/or on the rights and privileges attached to Indian citizenship. Since India has introduced some important legal changes in the Citizenship (Amendment) Act, 1986 and these amendments are likely to affect many Asians in Britain, material on this complex subject will, I hope, be found useful. The present essay will first provide a basic outline of the development of the current citizenship laws of India and will then make particular reference to the impact of the recent legislative changes.

Citizenship under the Indian Constitution

Indian citizenship law has, a long history under the British raj, which does not concern us here (for details see Sinha 1962; Master 1970; Sethi 1981). In essence under British rule all Indians became British subjects, a status confirmed by the British Nationality Act of 1948, with the well-known result that this entailed a right to come to Britain, which was then taken away by a restrictive regime of immigration laws commencing with the Commonwealth Immigrants Act, 1962.

By that time, India and Pakistan had become independent on 14th August 1947. As a recent study notes (Agrawala and Rao 1990:71), all Indians and Pakistanis should automatically have lost their British nationality on that date. But both countries retained the colonial system of citizenship law and took some time to develop their own rules on citizenship, a pattern matched by many Commonwealth countries, especially in Africa. Thus, all Indians remained British subjects, definitely until 26 November 1949, when some provisions of the Constitution of India, 1950 (Arts. 5-9) came into force (Agrawala and Rao 1990:70). The Indian Constitution itself only came into force on 26 January 1950, so some doubts may remain about the intervening period, but this will be of little practical significance. Definitely, from 26 January 1950 all relevant provisions of the Constitution of India were in full operation, establishing for the first time an independent Indian citizenship (on details see also Agrawala and Rao 1990:65-75).

Part II ('Citizenship') of the Constitution contains Arts.5 to 11 which laid down, in essence, who was an Indian citizen on the date that the Constitution came into force. The Constitution neither defines 'citizenship of India' nor did it provide for acquisition or loss of citizenship after the commencement of the Constitution. This was to be done by later legislation, which is envisaged in Art.11.

Basically, under Art.5 all persons domiciled in India and either born there or either of whose parents was born there, or who had been ordinarily resident in India for not less than five years immediately preceding the commencement date (26th November 1949), became a citizen of India. This included many non-Indians, e.g. British settlers who had not, for whatever reasons, returned to Britain by 1950. The Indian Supreme Court has confirmed that satisfaction of any one of the above conditions, provided a person had Indian domicile, was sufficient to give that person Indian citizenship (Abdul Sattar AIR 1965 SC 810).

Art.6 made special provisions for persons who had migrated from Pakistan to India during or after partition and included them as citizens of India, provided they fulfilled certain conditions. Since these provisions concerned millions of people who had become embroiled in the refugee streams of 1947-48, they were obviously very important. Pakistani law, of course, contains corresponding provisions to take care of its own citizens in similar circumstances. Significantly, Art.7 of the Indian Constitution denies Indian citizenship to persons who migrated to Pakistan after 1 March 947 but before 26 January 1950. This includes people who fled to Pakistan in the initial turmoil and later wanted to come back to India. It appears that the law has treated such persons rather harshly (for details see Agrawala and Rao 1990:84-9); there is a considerable body of case law on this particular problem, mainly concerning the rights of Muslim individuals, some of whom merely wanted to visit relatives in Pakistan and found, on return, that their Indian citizenship status was being challenged. I see some parallels here with current British difficulties over the rights of returning residents; this material could well be the subject of an interesting piece of comparative legal research.

Art.8 of the Indian Constitution affected Indian?, overseas and is an important provision for Asians in Britain and elsewhere. It gave all persons who were either born in India or either of whose parents or any of whose grandparents was born in undivided India and who were ordinarily resident in any country outside India the right to become Indian citizens by registration. At that time, of course, the Asian population of Britain was not yet large, so this provision is more likely to have affected East African Asians, some of whom-opted for Indian citizenship (see Meher 1970), while many people, as we know, relied on their British citizenship status, only to see it eroded by the Commonwelath Immigrants Act of 1968 (see Steel 1969).

On the other hand, all persons who voluntarily (as distinct from 'by operation of law') acquired the citizenship of a foreign state (this excluded all Commonwealth countries according to Art.367(3) of the Constitution and the Constitution (Declaration as to Foreign States) Order 1950 made under it), thereby lost their claim to Indian citizenship by birth or descent. This constituted, in effect, a refusal on the part of Indian law to accept dual nationality (on this see now in some detail Agrawala and Rao 1990:105-6).

Since these constitutional provisions only regulated the position as on 26 November 1949 and 26 January 1950, Art.10 of the Constitution provided for the continuance of the above regulations and Art.11 gave powers to Parliament to create a full future Indian law of citizenship. Thus, any person born in India on or after 26 January 1950 was not covered by the above provisions but, as Agrawala and Rao (1990:76-7) argue, it would be wrong to speak of a lacuna here, since the British Nationality and Status of Aliens Acts 1914-1943 still applied in India till 30 December 1955, the date when India's Citizenship Act of 1955 came into force.

India's Citizenship Act of 1955

This Act first of all regulated the position of persons born on or after 26 January 1950 and provided a permanent law of Indian citizenship which, together with the Citizenship Rules of 1956 is still in force today. Being a federal republic, India saw a need to emphasise that only one citizenship and domicile was recognised in the country (Hem Chandra AIR 1956 Calcutta 378), a position reiterated by the Supreme Court more recently in Pradip Jain (AIR 1984 SC1420, at 1427), although in a different context.

The Act first of all supplements Part II of the Indian Constitution by making retrospective provisions for all persons born in India on or after 26 January 1950. At the same time, this Act provides for the future and thus lays down a comprehensive scheme for acquisition and loss of Indian citizenship. The Act is a fairly standard form of citizenship law with many features replicated in other jurisdictions. While one could go into great detail here, the present coverage is restricted to the most important aspects of the 1955 Act and to those provisions that have been subject to amendment in 1986.

Under the Act, acquisition of Indian citizenship is provided for by birth (S.3), descent (S.4), registration (S.5), naturalization (S.6) or acquisition of territory (S.7). Sections 8-10 cover various forms of termination and deprivation of citizenship, In its supplemental provisions, the Act continues to recognise Commonwealth citizenship (S.11).

S.3(1) of the Act applies the ius soli principle and provided that, with very few exceptions focusing on foreign diplomats and enemy aliens, listed in S.3(2), ‘every person born in India on or after the 26th January, 1950, shall be a citizen of India by birth.' This was the case even if both parents were foreigners. This provision corresponded to that in English law under S.4 of the British Nationality Act, 1948 prior to its amendment by the British Nationality Act, 1981. As we shall see below, India too has now abandoned the pure ius soli principle, so that a child born in India today would not automatically acquire Indian citizenship.

Citizenship by descent is provided for under S.4 of the 1955 Act, the basic rule of S.4(1) being that 'a person born outside India on or after the 26th January 1950, shall be a citizen of India by descent if his father is a citizen of India at the time of his birth', provided that the birth is registered within a specified time. This amounts to a fairly generous application of the ius sanguinis principle.

It appears that, being aware of the existence of so many millions of overseas Indians, Indian law made fairly generous provisions for the acquisition of citizenship by registration in 1955. These were tightened up significantly by the 1986 Amendment Act. The provisions under the 1955 Act are found in S.5. They allowed a person of Indian origin, defined in the explanation as 'deemed to be of Indian origin if he, or either of his parents, or any of his grand-parents, was born in undivided India', to register as an Indian citizen. This could either be done if such person was an ordinary resident in India for at least six months immediately prior to making an application [S.5(1)(a)] or even from abroad [S.5(1)(b)] and was also open to women married to Indian citizens [S.5(1)(c) and to minor children of such citizens [S.5(1)(d)] as well as adult citizens of a number of countries specified in the First Schedule to the Act [S.5(1)(e)]. These countries are the UK, Canada, Australia, New Zealand, South Africa, Pakistan, Ceylon, the Federation of Rhodesia and Nyasaland (now Zimbabwe, Zambia and Malawi) and the Republic of Ireland, with New Commonwealth countries being added later, as they became independent. Overall, these provisions constituted a liberal regime, welcoming all those that sought to join the body of Indian citizens. It is known that these provisions were used by many Pakistani citizens, in particular, and that they were applied to Sri Lankan Tamils.

Similarly, the Indian provisions for acquisition of citizenship by naturalization appear quite liberal. S.6 contains the general rules, while the Third Schedule of the Act lists a number of conditions, such as an existing or former close connection with India (established in a variety of ways), the intention to retain such connection, good character of the applicant and knowledge of at least one of a specified range of languages. Paragraph (b) of the Third Schedule also lists a requirement that such persons must renounce their existing citizenship. In general, there seems plenty of scope for administrative discretion, which is acknowledged in the Act itself (S.14), but there is no evidence from the provisions of the Act itself to suggest any underlying hostility to persons seeking to acquire Indian citizenship.

Ss.8-10 in the 1955 Act provide for the loss of Indian citizenship by renunciation, termination or deprivation. Under S.8, an Indian citizen holding dual citizenship may voluntarily renounce Indian citizenship 'by making a declaration in a prescribed manner. This shows again that Indian citizenship law is not in favour of dual nationality.

Certainly of much greater practical importance is S.9, under which the voluntary acquisition of citizenship of another country (i.e., also of any Commonwealth country) leads to the automatic termination of Indian citizenship. In practice, this means that 'Asians' who are Indian citizens resident in Britain would automatically lose their Indian citizenship status if they were to acquire British nationality. This, no doubt, is one of the major reasons why many 'Asians' in Britain have not wanted to become British citizens. Whether this reluctance has more to do with the 'myth of return'(Anwar 1979) or with the desire to retain Indian citizenship for practical and legal reasons (often at least for one member of the family) is an interesting question that cannot be answered here; it would warrant some detailed research.

In Indian law, S.9 of the 1955 Act has given rise to an important debate about the respective powers of the executive and the judiciary to determine when a person has voluntarily acquired another citizenship (for details see now Agrawala and Raol990:85-9). There is a considerable body of case law on this, again involving mainly Muslim individuals embroiled in the tensions between India and Pakistan.

S.10(1), by implication, makes it apparent that an Indian citizen by birth or descent (sometimes referred to as natural born citizens) may never be deprived of citizenship, while several other categories of Indian citizens may lose their Indian nationality status. Such loss may result from fraud or false representation when acquiring Indian citizenship by registration or naturalization, disloyalty towards India in various forms, acquisition of a serious criminal record or prolonged -continuous residence abroad for more than seven years under S.10(2)(e). Again, there is much room for discretion here. Further, it has been argued that such provisions for deprivation of citizenship may lead to statelessness and are, therefore, undesirable (Agrawalaand Rao 1990:90-l).There are no indications, though, that the provisions of S.10 have been invoked frequently by Indian law.

At least one academic author (Master 1970:40) has complained that the Constitution and the 1955 Act created a confusing mess of different categories of citizens. The Citizenship Act, 1955 has been supplemented by the Citizenship Rules of 1956 (7 July 1956) which have often been used to clarify certain provisions of the 1955 Act and contain an abundance of procedural detail and guidance on the relevant forms, none of which concerns us here.

India's concerns about immigration rather than emigration

In conclusion of the previous sections, it would appear that with the exception of its treatment of Muslims with a Pakistani connection, Indian citizenship law has not been specifically concerned to exclude people. Rather, it has sought to facilitate access to Indian citizenship status for all those individuals who desired a connection with India.

In Europe, we are used to seeing India as an emigration country rather than a place to which people might wish to migrate. While this may have been right in the 1950s and 1960s, the past two decades have produced new developments which are now reflected in the recent changes to the Indian citizenship law. As a result, India's open door policy and liberal approach have been abandoned to an extent, and it is not surprising that some guidance seems to have been taken from the British Nationality Act of 1981.

The result, for some British Asians at least, has been harsh treatment from both English and Indian law. Of course, not only British Asians are affected by the new law; it has important implications for all overseas Asians with ancestral links in India. To an extent, India appears now torn between seeking to attract investment from the NRIs (Non-Resident Indians), a policy that has been spectacularly successful in some instances, and between attempting to keep out undesirable individuals or even groups of people, as some minorities would allege.

It must also be understood, however, that India has a huge immigration problem in its Eastern regions bordering on Burma and Bangladesh, in particular (see Nag. 1990). The extent of recent uncontrolled immigration in those parts of the country seems to have forced policy changes in citizenship law on the whole country. The concerns are, in principle, not different from those of any country that perceives itself as being 'swamped' by aliens: the reaction has been to create barriers for the acquisition of Indian citizenship. I doubt whether this strategy will solve any of the perceived or actual problems; in the short terms, the effects of the new law appear quite drastic, but they are not a viable solution to the immigration problems faced by India.

India's Citizenship (Amendment) Act of 1986

This short Act (No.51 of 1986) came into force on 28 November 1986. Its effects are, however, not yet covered by Agrawala and Rao (1990), whose otherwise excellent and very informative article is therefore to be read subject to the present section.

S.2 of the 1986 Act substitutes S.3(1) of the 1955 Act with a new wording and has dramatic and immediate effects. S.3(1) now reads:

'Except as provided in sub-section (2), every person born in India,-

(a) on or after the 26th day of January, 1950, but before the commencement of the Citizenship (Amendment) Act, 1986;

(b) on or after such commencement and either of whose parents is a citizen of India at the time of his birth,

shall be a citizen of India by birth.'

Thus, any person born in India on or after 28 November 1986 becomes a citizen of India by birth only if either of the child's parents is an Indian citizen at the time of the child's birth. This new provision, probably copied from S.1 of the British Nationality Act 1981, but (for obvious reasons) not including its residence clause, abruptly terminates the automatic application of the ius soli principle in Indian citizenship law. This new law creates quite obvious problems for children of unknown parentage, particularly for foundlings, as no provisions are made for them elsewhere. Under the old law, at least, the ius soli principle would appear to have come to their rescue, now there is a lacuna which needs to be filled with some urgency.

According to an article by Tania Midha (India Today 15 December 1986:39-40), opposition politicians and human rights activists vehemently opposed the new law as violative of the equality principles of the Indian Constitution and 'against the ethos of the whole country', as a leading human rights lawyer put it. The tightening up was justified by the Union Minister for Home Affairs as a protective measure against the large-scale illegal influx of people from Bangladesh, Sri Lanka, Pakistan and some African countries. The most likely effect of this change in the law appears to be the creation of large numbers of 'denizens', foreign nationals residing in India, or indeed of stateless persons. How Indian immigration law would treat such people is not well known at present; there is an urgent need for work in this field (see Menski 1990).

S.3 of the 1986 Amendment Act changes certain important details in S.5 of the 1955 Act relating to acquisition of Indian citizenship by registration. Firstly, persons of Indian origin wishing to register as Indian citizens must now have resided in the country for five years rather than merely six months immediately prior to making an application for registration. Secondly, the same residence requirements now apply to persons who are, or have been, married to citizens of India, as an amendment to S.5(1)(c) indicates. This is a significant tightening since there was no such requirement before. But the old law only applied to women, so here at least sexual equality has been introduced. It may be quite relevant for practitioners to be aware that S.5(1)(d) was not amended, so that the position today still appears to be that minor children of persons who are citizens of India may register as Indian citizens with comparative ease.

The third amendment in S.5 of the 1955 Act is of particular relevance for overseas 'Asians' and has many implications in legal practice, though perhaps more in countries like Trinidad, Guyana, Fiji or Kenya than in Britain. The point here is that the explanation in S.5 as to who is deemed to be a 'person of Indian origin' (see above) has been vitally affected: the 1986 Amendment Act, with a typical swift stroke of the pen, has cut off the grandparent generation, so that 'Asians' overseas now will need to be either born in India or have atleast one parent born in India to be able to avail themselves of the registration provisions in S.5. It seems that India has here partially, if not totally, cut the umbilical cord for many millions of overseas 'Asians'. Their preferential treatment, should they wish to return to India, has been curtailed significantly. Quite why this should be so still needs to be researched.

S.4 of the 1986 Amendment Act also changes certain provisions in the Third Schedule of the principal Act which, as we saw above, concerns the naturalization provisions. The effect of the 1986 Act here is to raise the qualifying periods of residence in India in clause (d) from seven to 12 years, out of which now an aggregate of nine rather than four years must have been spent resident in India and/or in government service in the country. A related amendment is made in clause (ii)of the proviso, to the effect that periods of residence or service earlier than 13 rather than eight years may be taken into account. Here, too, then, longer qualifying periods have been introduced, presumably to test the depth of an individual's connection with India.

Epilogue

In principle, if we wish to respect the right of countries to develop and determine criteria for their citizenship, we cannot find much fault with the recent developments in Indian citizenship law, though the critical comments about violating the basics of the Indian ethos seem justified. The recent changes have clearly made it more difficult for overseas 'Asians' to retain citizenship links with 'Mother India', who seems to push them away. Perhaps it has played a role that she surely has enough children? We have seen clear indications that the changes in the law were not so much directed at the overseas Indians as at illegal immigrants from neighbouring countries. I do not wish to trivialise the restrictive nature of the new law. Clearly, for British and other 'Asians' (especially those of Hong Kong and Fiji), there is a serious predicament in being made to feel unwanted wherever you go. In the case of India, as elsewhere, the test will lie in the application of rules of immigration law, the basic question being whether individuals will actually be allowed to stay in India long enough to clock up the qualifying periods that are now required by the law.

Bibliography

Agrawala, S.K. and M. Koteswara Rao(1990); 'Nationality and international law in Indian perspective'. In: Ko Swan Sik (ed.): Nationality and international law in Asian perspective. Dordrecht: Martinus Nijhoff Publishers, pp.65-123.

Anwar Muhammad(1979): The myth of return: Pakistanis in Britain. London.

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Menski Werner F.(1990): 'South Asian laws in British legal practice: a matter for immigration lawyers?' In Vol.4 No.2 [April 1990] l & NL & P, pp.63-7.

Nag Sajal(1990) -.Roots of ethnic conflict. Nationality question in North-East India. New Delhi.

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