Time to Lift the Veil....of Minds

 

(By M.A.Vaheeda Babu, Advocate, High Court of Kerala)

 

Recent decision of the Supreme Court1 to examine the gender discrimination affecting the rights of Muslim Women, taking note of the fact that, the issue relates not merely to a policy matter, but to the Fundamental Rights of Women under Article 14, 15 and 21 of the Constitution of India and the International conventions and covenants, by separately registering the same as a Public Interest Litigation draws once again, our attention to the issue which had been burning, right from the pronouncement of the judgment in Shah Bano Begum’s case 2 by the Supreme Court. Inspite of the several complaints from various corners of the country that the law enacted after the said judgment 3 is highly insufficient to curb the misuse of the Muslim Personal Law as existing, so far, none of the changing ruling parties have shown the political will to touch upon the burning issue once again by making appropriate laws, either at the Central, or State level 4. Let the Judicial will prevail, when the political will failed on this aspect.

Now that, the Supreme Court has resolved to venture into such an attempt, it will be only apposite to present a short evaluation and assessment of the issues.

 

Poligamy and Indiscreet Divorce

History reveals that various kinds of polygamous marriages were prevalent in various communities at various times and is still in practice in certain sects, all over the world. Polygamy is a Greek word which means any form of marriage in which a person has more than one spouse. Mainly, polygamy is of two types: a) Polygyny and b) Polyandry. Polygyny is where a man marries more than one woman, while polyandry is where a woman marries more than one man. Polygyny is the most common form of polygamy while the practice of polyandry is found prevalent only in limited sects/communities in the world like Nomadic Tibetans in Nepal and certain parts in China and Ladak.

 

Since, the present analysis is centered around the issue of arbitrary divorce and polygamy with respect to the Muslim Community, the discussion is now only on its polygynous form. Polygyny was accepted or even preferred in three/fourths of pre-industrial traditional societies, though it was then seldom practiced by the commoners or lower classes. It tended to occur most frequently in societies where the route to winning wealth and political power was through attracting followers or having lots of sons to hunt for the family head or defend the family’s land. In other cases, wealthy men accumulated many wives to produce more sons. It was very common for kings and other royalty to have many wives, both as a way to make alliances with other States or noble families and to ensure that they would have plenty of heirs.

 

For Arabs, until the revelation of Qur’an, during the “Times of Ignorance”5, there was no upper limit as to the number of wives. Many men had scores of wives, some even hundreds, during that time. After the revelation of Qur’an, the number of wives was restricted to four and many Muslim countries still retain the traditional Islamic Law permitting polygamy upto a maximum of four wives, whereas, certain others have strictly regulated/prohibited the same. In ancient India also polygamy was much prevalent in different religious communities.

British India, as a whole, was neither governed by Hindu, Muslim, Sikh, Parsi, Christian, Jewish or any other law except a religious observance, consistent in every case with the personal laws of the concerned community, thereby not regulating/prohibiting the polygamous system of marriage. Under the law imposed by Great Britain in respect of other matters, Hindus, Muslims, Sikhs, Parsis and all others were subjected to equal treatment in the matter of rights, liabilities and obligations.

 

6Till the year 1772, when Warren Hastings made Regulations (also known as Judicial Plan of 1772) for the administration of civil justice for the native population, there was no statutory law which was to be applied for solving problems relating to marriage and other related issues in different communities in India. Section 23 of the said Regulation declared thus “In suits regarding inheritance, marriage, caste and other religious usages and institutions the laws of the Koran with respect to the Mohammedans and those of the Shaster with regard to the Gentoos will be invariably adhered to”, making it clear that, Qur’anic injunctions shall be strictly adhered to. The said egulations was followed by various other Regulations wherein the word “Laws of the Koran” was replaced by the word “Mohammedan Law” and the words “Gentoos” and “Shaster” were replaced with the words “Hindus” and “Hindu Law” respectively. Still later, the principle of priority of custom and usage over Mohammedan law and Hindu laws was incorporated into the laws enacted from 1873 onwards for regulating the working of the civil courts. In view of the aforementioned changes in the law, the personal laws applied by the courts cannot be said to be one in conformity with Islamic principles.

 

Later, by the promulgation of the Muslim Personal Law (Shariyat) Application Act, 1937 7, the Muslim Personal Law (Shariyat) was made the rule of decision, in cases where the parties are Muslims. The principle of polygamy, divorce etc. now being practiced by the Muslim community in India by the name Mohammedan law 8 is evolved in this manner which, according to my humble view, has absolutely no connection with the Qur’anic principles and the stand of a section of the Community that it is unalterable is incorrect.

 

While framing the Constitution of India after Independence, Article 372 thereof was introduced, giving continuity to all the then existing laws in India, until the same is altered or repealed or amended by a competent legislature or competent authority, but, subject to the other provisions of the Constitution. It was also thought fit to constitute India as a secular State and to include Article 13 providing that, all laws in force in the territory of India before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III dealing with the Fundamental Rights, shall, to the extent to such inconsistency be void, further prohibiting the State from making such laws in future.

 

Article 25 which speaks about the right to free profession, practice and propagation of religion specified that, it shall not prevent the State from making any law, regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Our Constitution also gives power to the Parliament and Legislature of every State to make laws with respect to various matters, including the items in the Entry 5 (“marriage and divorce; infants and minors; adoption; wills, intestacy and succession, joint family and partition, all matters in respect of which, parties in judicial proceedings were immediately before the commencement of the Constitution, subject to their personal law”), in the Concurrent List 9 given in Schedule VII of the Constitution.

 

After independence also, in the case of other major religions, the polygamous system10 of marriage and limited estate of females continued, which were later appropriately dealt with by various central and state legislations11 imbibing the spirit of the Constitution, codifying the Hindu Law as then was applicable to the largest religious community of India, to achieve a better social order and to strive for an ideal society by eradicating gender discrimination, by introducing Hindu Marriage Act, Hindu Succession Act etc., inspite of the fact that, there were different schools of thoughts in existence concerning matters like marriage, succession etc., and Hindu Law, as that was then in existence concerning these aspects, were considered to have a sacramental origin. The central Acts, Hindu Marriage Act 195512, [applicable to Hindus, Buddhists, Sikhs and Jains],Christian Marriage Act 187213, Parsi Marriage and Divorce Act 193614 (both before independence) prohibited polygamy of those who follow these religions and they accepted the same for an egalitarian society.

 

The remaining major sect (the second largest religious community in India) is Muslims, for whom their personal law, in terms of Holy Qur’an permits polygamous marriage with conditions and limitations and divorce, also in unavoidable circumstances. But, unfortunately as far as Muslim Personal law as applied in India is concerned, it gives the Muslim male unrestricted and indiscreet powers to divorce his wife and to contract polygamous marriage which, goes against the real spirit of the Qur’an, as analyzed hereunder.

 

Although Muslim Law contains several positive provisions that would safeguard women’s rights and enjoins a duty to treat them with dignity, these provisions have deteriorated due to socio-cultural reasons and patriarchal subversions of a later period. As a result of the distortion made by and unfortunate metamorphosis that had undergone at the hands of Indo-Anglican Courts, the Muslim Law, as it is now in existence and administered by the Indian Courts does not appear to be that rational and sensible15.

 

Actually, the issue regarding indiscreet marriage, divorce and other related problems prevalent in Muslim community in India had come up for judicial scrutiny several times before the various Courts in India16 which necessitated the Courts to remind the legislatures, the need to have a codification/modification of the laws concerning the issue. But, unfortunately, no positive steps are seen taken in this line to codify/regulate the laws except for the enactment of Dissolution of Muslim Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 198617 (which is far to meet the requirements of the society and also devoid of many women favored provisions in Holy Qur’an), because of the strong objections from some unscrupulous section of the community, who had not understood Islam as a pious, progressive and respected religion with a rational outlook18, putting the life of their own sisters in misery. The imputable dignity attached to womanhood in Islam is lost sight of them.

 

Although Muslim Law as contained in the Holy Qur’an has several positive provisions that would safeguard women’s rights and provide absolute protection to women, the present pitiable state of Muslim women, most of them in their teens with children astride their waist, who throng in Court varandas seeking alimony, maintenance- both to her and her children, fair treatment etc, from their husbands who had contracted 2nd, 3rd or 4th marriage neglecting them and putting them in utter penury, does not show any kind of protection, but sheer persecution, in the name of Islam.

 

The community, which had earlier renounced English Education as part of our independence struggle and later issued ‘fatwas’ against the education on the wrong misconception that it is a sin, which is not in tune with the Qur’anic injunctions had to heavily pay for the same, in later years. The community is yet to recuperate from its ill-effects and its social backwardness.

 

The problem underlying in this issue is that, a large sect of people including some community leaders in India consider Muslim Personal Law, as it now stands in India, as divine and immutable. But, with regard to Criminal Law and Jurisprudence, this sect has absolutely no qualm or complaint in as much as, Indian Penal Code and allied Laws are applicable to all, irrespective of the religion, may be because, the punishments as provided in Islamic Law are more severe.

 

19Till the death of Prophet Mohammed (PBH) in 10AH (10 years after Hijra migration to Madina), he was the sole interpreter of the Holy Qur’an. After His death, his companions and later various religious scholars including Imam Abu Haneefa, Imam Malik, Imam Shafi, Imam Ibnu Hanabal etc., did the said task by codifying the Muslim Personal Law (Shariah Laws20),touching various aspects of human life. That is the reason why different interpretations of the Qur’anic verses which favour different schools are in existence. Had these interpretations been immutable, the Shariah would not have been different from one school to the other, which were later followed in different parts of the world, by the spread of Islam. But, as far as India is concerned, as already noted, it has lost its originality and still no positive steps are taken so far for codification of laws in consonance with the Qur’anic injunctions, which will suit the social fabric and remove the ill-effects of the present laws in the society by regulating/annulling the provisions which go clearly against the spirit of Islam and the Constitutional scheme.

 

19Islamic Shariah (laws), as codified by the various religious scholars are all derived basically from the Holy Qur’an and the Sunnah (which are the Prophet’s is sayings, deeds and approvals recorded to its finest detail by his companions in the form of Hadith (books)). Islam is an Arabic word which comes from the root word ‘silm’, which means obedience or submission. ‘Islam’ also comes from the root word ‘salm’ or ‘salaam’ which means ‘peace’. So the word Islam in context means attaining peace by submitting or being obedient to the will of Almighty God. Muslims believe that the Holy Qur’an is the last and final testament of Almighty.

 

God revealed to mankind till eternity, through the last and final messenger of Almighty God, Mohammed (PBUH). So, the Qur’anic injunctions are divine and immutable and reveal the will of God Almighty. It touches all aspects of human life, both as an individual and as a social being. So Islam is thus, a way of life for the whole mankind for all times to come. Holy Qur’an is revealed as a complete, structured formula touching all aspects of human life which would meet any contingencies.

 

So, there will be a solution in Holy Qur’an to meet any remote kind of contingencies, which may occur till the end of this world. Shariah tries to understand this by applying its injunctions to a particular problem in question. On going through Holy Qur’an, one can see that, for refining mankind, God Almighty had revealed 5 categories of Do’s and Don’ts:

    1.           ‘Fard’- compulsory or obligatory.

    2.           ‘Mustahab’- recommended or encouraged.

    3.           ‘Mubah’- permissible or allowed.

    4.           ‘Makruh’ – not recommended or discouraged.

    5.           ‘Haram’-prohibited or forbidden.

 

Principles of Fiqh(jurisprudence), Qawaidh-ul-fiqh (Rules of Fiqh), Qiyas (analogy), Ijtihaad (Legal reasoning), custom of the local people etc., are used by the scholars of their times to come to a solution to any problem in question, while interpreting the respective Qur’anic verses relating to the same.

 

Unfortunately, there comes the difference of opinion as to what is the injunction relating to the problem in question, as revealed from the verses in Holy Qur’an. It cannot be lost in sight that several such interpretations maintain the feudal formula of superiority of the male and subordination of the female which is not at all contemplated in the Qur’anic injunctions.

Viewed from this angle, one can better understand indiscreet divorce & polygamy and its related evil effects which prevail in the present day society, in the name of Islam. As already noted, the polygamous marriage in all other communities in India has been prohibited and made punishable under law and only on satisfying the conditions and provided in the statutes applicable to them, a man can divorce his wife.

 

Family and marriage are two basic concepts that pivot the society, in general, and the human civilization, in particular. The bottom line in the marriage relationship is good morality and happiness, creating a just and cohesive society where, the needs of men, women and children are well taken care of. In Holy Qur’an, marriage is a fortress of chastity19. It prescribes strict adherence to morality and sexual discipline, both to men and women. It strictly prohibits extramarital conjugal relationship or in other words it permits sexual relationship only through marriage. Moreover, the fine thread that runs through all its injunctions is protection and compassion to the weaker and poorer section of the people in the society, thereby achieving the goal of equality among all.

 

Holy Qur’an reads21

 “And if you fear that you will not deal justly with the orphan girls, then marry those that please you of (other) women, two or three or four. But if you fear that you will not be just, then marry only) one or those your right hands possess (i.e. slaves). That is more suitable that you may not incline (to injustice)22

 

In the same Chapter, verse 12923 says;

“You will never be able to be equal (in feeling) between wives, even if you should strive (to do so). So, do not incline completely (toward one) and leave another hanging24. And if you amend (your affairs) and fear Allah – then indeed, Allah is ever Forgiving and Merciful”

 

From the above verses, one can clearly understand that polygamy in Islam is not a rule but an exception in as much as, among the five categories of Do’s and Don’ts, polygamy falls in the category of things that are permissible, i.e., Mubah. It is even not in the 2nd category which is recommended. You do not become a better Muslim, by marring more than one or be sinful, if you do not. But, even though Holy Qur’an is the sole religious book which prescribes monogamy as a rule, many people are under the misconception that it is compulsory for a Muslim to have more than one wife. Some others have taken it as a privilege granted to men to have more than one wife.

 

Yet another sect, many members of which we meet in our daily life consider it as a way for easy money25 and for quenching sensual lust26, or consider it as an unlimited right ordained to them by God Almighty.

 

Yet another sect remarries by accepting dowry which is unknown to Islamic law, for the purpose of settling the issues in the earlier marriage. Actually, these people are making the women’s life a hell, by marrying them only for their material gain and pleasure, throwing the real spirit of the Qur’anic injunctions to the wind. By doing so, they are sinning against their religion itself, without understanding the goal behind the revelation of Qur’an to mankind i.e.,, upbringing the mankind from the state of darkness and to strive for an ideal society based on equality and social justice to all. It came to serve and increase people’s best interests, both as an individual and in community level too, to reduce harmful things and render them ineffective.

 

We could see from its entire fabric that the revelations are meant for full and complete protection of women. In the system of marriage also, apart from its initial goals of purity of sex, prevention of fornication, procreation of children etc, in effect, protection of women is what, that is meant by the Islamic Law. This is more clear when we scrutinize the marriages contracted by Prophet Mohammed(PBUH), who had a monogamous marriage with Khadeeja [He was 24 and she was 50 at the time of marriage], for 25 years and almost all his later wives were either orphans or war widows, who were left with nothing. We can also better understand the provision for polygamy by examining the context for such Revelation27. For eg. Wars cause the number of women to greatly exceed the number of men. In a monogamous society, these women, left without husbands or support, resort to prostitution & illicit relationships with married men resulting in illegitimate children with no responsibility on the part of the father, or thrown to lonely spinster hood or widowhood.

So, the men, who under compelling circumstances, take more than one wife, are taking higher risk and bigger responsibility than acting for his own gain, when we take into consideration the spirit of Verse 129 of Chapter 428.

 

Verse 33 of Chapter 2429 which reads,

 “But let them who find not (the means for) marriage abstain (from sexual relations) until l Allah enriches them from His Bounty”.

 

Fortifies my humble view, as mentioned above.

With regard to the indiscreet divorce prevalent in Muslim Community also, we can see that, the procedure followed by many are not in accordance with the Qur’anic injunctions in as much as, it is common in the community that Muslim males divorce their wives and throw them out of their houses at their slightest fancy or on petty altercation.

Verse 19 of Chapter 430 reads “And do not make difficulties for them, in order to take (back) part of what you gave them unless they commit a clear immorality (i.e. adultery).And live with them in kindness. For if you dislike them – perhaps you dislike a thing and Allah makes therein much good” Explaining this verse, one of the classical compilations of the Hadith reads that, “no believing male should hate a female, if one particular trait of her character is disliked by him, for, (possibly) another trait would be liked by him31. Another Hadith reads, “The Prophet said, Allah did not make anything lawful, more abominable to Him than divorce” and that, “of all the act, the most detestable to Allah is divorce.”31

 

So, it is clear that, Holy Qur’an expressly forbids a man to seek pretext for divorcing his wives, so long as she remains faithful and obedient to him. And, even if it has become inevitable to venture into divorce, the same has to be preceded by an attempt for reconciliation by two mediators/arbitrators nominated by the families of both the parties (one from the husband's side and one from the wive's side).33 The practice of Tripple Talaq as prevailing in India has absolutely no support from the Holy Qur’an.

But, we can painfully realize that the interpretations and understandings of a large sect of people are totally against the spirit of the revelations contained in the Holy Qur’an and Sunnah. Why is this happening in India when even Islamic countries are far ahead of us in this aspect, by regulating the divorce and polygamous system of marriage imbibing the true spirit of Qur’an?

 

34The codification and reform of Personal Law in the Muslim world (almost 50 sovereign states, spread over the continents of Africa, Asia and Europe, in which, the followers of Islam constitute a majority of the local population and other Muslim minority regions like India, Burma, Philippines etc), had begun during 1915-1917, in Turkey-then seat of the Ottoman Empire. Now, in major parts of the Muslim world, the Islamic Personal Laws stand codified or partly reformed. So far as others are concerned, statutes regulating selected aspects of Islamic Law, with varying scope and content are in operation. To rebuild the community in conformity with the socio-legal principles of Islam, codification of Personal Law covering all aspects of it, incorporating the neglected principles and striking out the so called principles, which go against the spirit of Islam, is absolutely necessary, so as to avoid misinterpretations and misapplications of the Sharia, which one can see in abundance in our present Indian society.

 

Let us examine as to what extent, the other Islamic countries had been successful in this respect, specifically confining to our topic:

In Jordan, Lebanon and Morocco, the legislation specifically recognizes right of every women to stipulate at the time of marriage, against her husband’s possible second marriage, while she remains his wife, entitling her to seek for a divorce, in case of violation of such stipulation. In Syria and Yemen also, such pre nuptial agreement is provided under law. Algerian Family Code permits marriage with more than one wife, within the limits of the Sharia (i.e. up to four only) if there is a just ground and the condition of equality can be fulfilled-provided that, the previous and future wives are duly informed of the other marriages. Either wife can bring a judicial action against the husband and demand divorce if the second marriage takes place without her consent.

 

In Egypt and Morocco, the marriage officials should be given the full details of the existing marriages, if any, of a man intending to marry and if the second marriage causes any kind of injury to the first wife, she can seek for divorce. In Egypt, the second wife can seek for divorce, if she has been deceived into a bigamous marriage. In Iraq, Syria, Afghanistan, Bangladesh, Indonesia, Iran, Malaysia, Philippines, Pakistan and Somalia, prior permission of the Court/quasi judicial body like arbitration council/Khazi is necessary for a married man to contract another marriage.

 

Special mention about the Pakistan Laws are absolutely necessary because, before partition, The Dissolution of Muslim Marriage Act, 1939 was enacted and made applicable to the whole undivided India, since under strict Hanafi Law, there was no provision enabling a Muslim woman to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and as such, the absence of such a provision entailed unspeakable misery to Muslim women. After the constitution of independent Pakistan after partition, the Dissolution Muslim Marriage Act,1939 was amended by the Muslim Family Law Ordinance, 1961, bringing about radical and progressive changes in the Family Laws, whereby marriages are to be compulsorily registered, consent of the existing wife, permission from the arbitration council etc., are necessary to contract another marriage. Section 28 of the 1939 Act was amended by Section 13 of the 1961 Ordinance in such a way that, any Muslim wife, on the ground of her husband’s taking of additional wife without written permission of the arbitration council can seek for dissolution of her marriage.

 

In Jordanian, Lebanon and Syrian Code, independent matrimonial home is to be provided by the husband who is entering into a subsequent marriage. In Syria and Indonesia, the permission for polygamous marriage can be given by the Court only in genuine cases and subject to specified conditions. In Yemen, there is provision for enforcement of the Qur’anic condition of equal justice between co-wives in polygamy. In Iraq, such permission from the Khazi shall depend on the financial position of the man and the Khazi shall determine whether it is for any lawful purpose. In Iraq, by an exceptional provision, bigamous marriage to a widow is permissible even without the Court’s permission. In Iran, concealment of earlier marriage is a matrimonial offence and by the 67th amendment, for contracting polygamous marriage, stringent conditions are provided. In Malaysia, it is to be further assured that second marriage would cause no legal injury to the first wife.

 

In all these countries, the permission for a subsequent marriage can be given only after a proper enquiry in its financial implications. In Tunisia and Turkey, polygamy is strictly prohibited and made a matrimonial offence, since, the State had observed that, nobody can fulfill the conditions stipulated in strict Islamic principles for the same in the modern social circumstances.

 

As far as the issue of divorce is concerned,35in Egypt, Iraq, Jordan, Kuwait, Lebanon, Morocco, Sudan, and Syria, a Talaq is no more effective if pronounced by a person who is not in his normal senses, like Talaq pronounced in drunkenness, insanity, angry state etc. The laws in Egypt, Iraq, Jordan, Kuwait, Morocco, Philippines, Sudan, Syria, UAE and Yemen, have totally derecognized the concept of Triple Talaq.

 

In all these countries every Talaq, even though repeated thrice or qualified with the word “three”, shall effect only as a single revocable Talaq.

 

In Malaysia, revocation of Talaq by the husband is to be duly registered with State authorities. If the wife refuses cohabitation after such a step by the husband, reconciliatory process is to be initiated, but the wife cannot be forced into resumption of marital relationship.

 

In Iraq, Jordan and Syria, a husband wanting to effect a Talaq has to approach the court. The court shall then make all efforts to ensure that divorce is avoided, and failing such efforts, can eventually permit only a single divorce. If a person does not go to a court for Talaq and effects it privately, he must register the Talaq with the court or the local registry which shall make sure that, the Talaq to be registered is in fact ,effective in law and cannot be avoided.

 

In Algeria, Indonesia, Malaysia, Somalia, Tunisia and Yemen a Talaq can be effected by a husband only with the prior permission or through intervention of the court which must first try to effect reconciliation, direct or through arbitrators. In Morocco, court’s permission for divorce is required.

 

Under the laws of Pakistan and Bangladesh every Talaq is to be notified by the husband to a local government official to enable him to set up an Arbitration Council consisting of himself and one representative of each of the parties. The council will make all possible attempts at reconciliation.

 

Thus, the decision whether a person does fulfill the Qur’anic conditions for divorce and polygamy as the case may be, which the ancient Muslim jurists had left to his own subjective satisfaction, are now been vested in the Court or another agency, in a number of other countries, especially Muslim countries considering the large scale misuse of the provision for indiscreet divorce and polygamy.

 

Inheritence

“Prescribed for you when death approaches (any) one of you if he leaves wealth (is that he should make) a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.36

 

“And when (other) relatives and orphans and the needy are present at the (time of) division, then provide for them (something) out of it (i.e. the estate) and speak to them words of appropriate kindness”.37

 

As per Islamic law of Inheritance, if a son or daughter of the deceased had died before him, their children (orphaned grandchildren of the deceased) do not get any share in his (their grandfather’s) property when he dies. This has now been taken care of imbibing the spirit of the above verses, in several countries through a device called Obligatory Bequests.

 

38In Algeria, Jordan, Morocco and Syria, a person whose son has died during his life time leaving behind his own children must make in favour of such children a will in order to give them the share which their deceased father would have inherited from him if he had survived him.

 

In Egypt, Iraq, Kuwait, Tunisia and UAE, a similar bequest must be made in favour of children of a predeceased child of either sex. In Egypt, Jordan and Kuwait such a bequest has to be made also in favour of great-grandchildren found in a similar situation. No bequest made under these provisions will, however, override the rule of Islamic law under which nobody can ordinarily make a will of more than one third of his total heritable property. If the grandchildren concerned have already got their due otherwise (by gift, etc) the obligation will lapse; and if the gift, etc. meets only part of this obligation or serves only some of those entitled to it, the obligation shall have to be discharged as far as necessary to comply with the law. In all the aforementioned countries such a bequest if not made in fact, is to be presumed by the law to have been made, and it shall be enforced in preference to other bequests made voluntarily, if any.

 

In Bangladesh and Pakistan, under a direct reform of the inheritance law introduced by the Muslim Family Laws Ordinance of 1961 children of a predeceased child – son or daughter – of the deceased shall inherit the share which that son or daughter would have received if alive at the opening of succession. In the Philippines the surviving child of a predeceased son would get one-third of his father’s notional share in the estate.

 

In Iraq and Tunisia, if the daughters are the only ones among the Quranic heirs, they will take the whole estate in equal shares; no part of it will go to the remoter relatives of the deceased.

 

As I have already noted the problem underlying in this issue in India is that, a large sect of people including some community leaders, consider the Muslim Personal Law, as now applicable in India, as divine and immutable, without understanding its historical evolution and its pitfalls, which still remain un-repaired, because of the averse attitude of the Muslim community to reforms. They fail to understand that the Muslim Personal Law now followed is not divine in the sense that, they are not in terms of the Qur’anic injunctions. Shariah can, at the best, be said to be based on human interpretations of the injunctions in Holy Qur’an as an endeavor to understand the divine will. Interpretations are human and what is human admits of change with the need of the time and whenever it is felt that it affects the spirit, goal and ideal of Holy Qur’an, making an adverse effect on the society. The present pitiable condition of Muslim women in India, especially in the lower strata of the society, who are indeed the real sufferers of these kind of misinterpretations and misapplications, point its accusing finger to the fact that the society had committed some mistake in understanding the real spirit of Qur’anic injunctions and warrants a re-thinking on this aspect and it is high time that Muslim Personal Law as applicable in India is to be fundamentally changed upgrading the status of Muslim women, putting an end to the centuries long suppressed and tormented life, in the name of Islam. Expecting positive steps, either from the part of the legislature or from the judiciary in this line, in tune with the spirit of the times and changing needs of the community and the society…

 

Foot Note:

1.     Prakash v. Phulavati.(2016 (1) KLT SN 7 (C.No.9) SC = (2016) 2 SCC 36.

2.     Mohammed Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 = AIR 1985 SC 945.

3.     The Muslim Women (Protection of Rights on Divorce) Act, 1986.

4.     In the year 2009,though steps taken by the Kerala Law Reforms Commission headed by its then Chairman, Late Justice V.R.Krishna Iyer to have a new State Legislation regulating the Muslim Marriage and Dissolution by preparing a draft bill, The Kerala Muslim Marriage and Dissolution by Talaq (Regulation) Bill, which was proposed to be progressive and consonant with the noble principles of Qur’an, in accordance with the two rulings of the Kerala High Court (Shahul Hameed v. Subaida Beevi. (1970 KLT 4), Saidali v.Saleena.(2008 (4) KLT 885) and though there were several debates and discussions at various levels on the topic,nothing concrete has been materialized, till today.

5.     Time before the revelation of Holy Qur’an is described as Times of Ignorance.

6      Dr.N.V.Paranjape, Indian Legal and Constitutional History, 5th Edition, Central Law Agency.

7.     Section 2: Application of Personal Law to Muslims- "Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, illa, zihar, lian khula and Mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)”.

 

8.     Late M. Hidayatullah, former Chief Justice of India states in the preface that, (“Mulla's Priciples of Mohammedan Law-16th Edition, N.M.Tripathi.Ltd.) the Expression Mohammedan Law was “ coined by the English. Islamic Law was not Mohamed’s Law. The expression Mohammedan and Mohammedanism are not correct and, in a sense, are even objectionable. The proper expression are Islamic law and Muslim law.

9.     Article 246 of the Constitution of India

10.  Section 430 of Mulla's Principles of Hindu Law, 15th Edition by Sunderlal.T.Desai.

11.  The Bombay Prevention of Hindu Bigamous Marriage Act, 1946, The Madras Hindu (Bigami Prevention and Divorce) Act, 1949.

12.  Section 5 r/w Section 17.

13.  Section 60.

14 Section 4 r/w Section 5.

15.  See the evolution of the Sharia Application Act, 1937 mentioned supra 7 & 8.

16.  Danial Latifi v. Union of India (2001 (3) KLT 651 (SC) = (2001) 7 SCC 740), Ahmedabad Women Action Group (AWAG) v. Union of India ((1997) 3 SCC 573), Mohammed Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 = AIR 1985 SC 945, Lily Thomas & Ors. v. Union of India & Ors.(2000 (2) KLT SN 53 (C.No. 62) SC = (2000) 6 SCC 224), Sarla Mudgal (SMT), President, Kalyani & others v. Union of India & Ors. (1995 (2) KLT 45 (SC) = (1995) 3 SCC 635), A.Yusuf Rowthar v. Sowramma (1970 KLT 477 = AIR 1971 Ker.261), Fazlumbi v. Khader Vali (AIR 1970 SC 1730), Mohammed Haneefa v. Pathummal Beevi (1972 KLT 512) etc.

17.  It does not deal with the procedure to be followed, if Talaq is at the instance of the Husband.

18.  Quoted from the words of late Justice V.R.Krishna Iyer

19.  Resources:(1) http://www.altafsir.com/ (2) http://www.searchtruth.com/tafsir/tafsir.php

        (3)http://www.onlineislamicstore.com/b7775.html (4)http://www.islamicawareness.org/Quran/Tafseer/Ulum/Defnffor6.html#Tafsir (5) www.aml.org.uk.

20.  Shariah literally means ‘clear path’.It is the body of legislations referring to all branches of Islamic Science of knowledge including Aqeedah (Islamic creed), Tafsir (explanations/meanings of Qur’an), Hadith (words and deeds of Prophet (PBUH), history Arabic language etc.-Resource The compilation from U.K.Tertiary University level weekend courses on “Chronicles of Sharia”

21.  The explanation of the meanings/translation of Holy Qur’an (tafsir) quoted in this article are from the revised and edited English version of Holy Qur’an by Saheeh International – Riyad published in the year 1997 by Abulquasim Publishing House, revising the works of many others including the works of Abdulla Yusuf Ali which are usually referred by Indian Courts. The Editor of the book speaks that, for preparing the translation, each verse was reviewed in Arabic with reference to several works of tafsir and grammar and where differences arose, explanation given in an authentic Hadith or in the absence of such, those by the most knowledgeable of the Sahabah (companions) and Tabiun (followers/students of Sahabah) are taken and accepted, upon the literal and logical meanings understood in the Arabic language. These were again stated to be compared with the translation of others including that of Al-Hilali & Khan, A.Yusuf Ali, M.Picktal etc.

22.  Al-Qur’an Chapter 4 (Surah Nisa) Verse 3

23.  Al-Qur’an ibid:129

24.  Which means, neither divorced nor enjoying the rights of marriage.

25.  Where have these people put, the clear mandate in the Holy Qur’an to give dower to the women for whom they choose to marry, as a mark of respect to her? Al-Qur’an 4:4
“and give the women (upon marriage) their (bridal) gifts graciously”

26.  Reccollect the renounced Malayalam Movie ‘Padham Onnu Oru Vilapam’ (Lesson one: A Wail) of the year 2003- story written and directed by Mr. T.V. Chandran, which one the National Film Award for the best film on Family Welfare and several other awards in State level.

27.  The Verses regarding Polygamy was revealed after the battle of Uhud, in which a significant number of Muslim men were martyred and as a consequence, many women were widowed and their children orphaned. See paragraph No.11 of Saidali v. Saleena (2008 (4) KLT 885) – Ibid 4.

28.  Ibid 23.

29.  Al-Qur’an 24:33 (Al-Noor).

30.  Al-Qur’an 4:19 (Surah Nisa)

31.  Muslim - One of the 6 classical compilations of Hadith

32.  Abu Dawud-Hadith

33.  Al-Qur’an 2:228,229,230, 231,236–237&241 (Surah Al-Baquara), 4: 20-21(Surah Nisa), 65:1-7 (Surah Attalaq).

34.  Resource – “Personal Laws in Islamic Countries” by Tahir Mahmood, 1987, Eastern Book Company, Lucknow.

35.   Muslim Law in India and abroad by Tahir Mahmood and Saif Mahmood, Universal Law Publishing Co.2012.

36.  Al-Qur’an 2 : 180 (Surah Al Baqarah) – i.e., those who do not inherit by law/obligatory shares may be remembered in a bequest, in as much as only after fulfillment of debts and bequests, the remainder of the estate is to be divided – Ibid 21

37.  Al-Qur’an 4 : 8 (Surah Nisa).

38. Ibid.35.

Sedition, Section 124A, Indian Penal Code 1860 –

An Abhorrent Colonial Relic

(By B.Premnath, Advocate, High Court of Kerala, Ernakulam)

 

“Democracy is a charming form of Government, full of variety and disorder, and dispensing a sort of equality to equals and unequal alike”, said Plato. Civil liberties drive a democratic nation forward. Dissent, discord among the citizenry all count for its progress. The freedom which dawned on India after more than 150 years of British Colonial rule was the result of selfless struggles of freedom fighters. On November 26, 1949, we, the people of India, gave unto ourselves the Constitution of India. The fundamental rights guaranteed in our Constitution imbibes the spirits of U.S. Bill of Rights 1791, French Revolution 1789 and the English Revolution 1688 which proclaimed the valuable rights of liberty, equality and freedom of religion.

 

The founding fathers of the Constitution of India, themselves freedom fighters, knew the value of freedom, crafted “freedom of speech and expression” into the fundamental rights in Article 19(1)(a), only to be abridged by the laws which the State can enact within the subject matters in Article 19(2), namely; “In the interest of the Sovereignty and Integrity of India, the Security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”.

 

The importance of freedom of speech and expression was emphasized by the Supreme Court in S.Khushboo v. Kanniammal & Anr. (2010 (2) KLT SN 39 (C.No.46) SC = (2010) 5 SCC 600)thus: “Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as “decency and morality” among others, we must lay stress on the need to tolerate unpopular views in the socio cultural space. The Framers of our Constitution recognize the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre condition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes”.

 

In Terminiello v. Chicago (337 US 1 (1949))the U.S. Supreme Court observed that “free speech may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, even stirs people to anger”.

 

The first amendment of the U.S. Constitution that “Congress shall make no law respectingan establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”, was drafted by James Madison as part of the Bill of Rights which was ratified in 1791. In 1833, the Supreme Court of the United States ruled that the Bill of Rights applied only to the Federal Government, not to the States. As a result, when States infringed free speech, individuals could not challenge it as per the first amendment. It all changed in 1868 by the advent of the 14th amendment which prohibited states from denying people “liberty” without due process. In 1925, in Gitlow v. New York, the Supreme Court of the United States interpreted the “due process” clause and broadened the applicability of the Bill of Rights protection of speech to the States.

 

In 1919, the stirring dissent of Justice Oliver Wendell Holmes in Abrams v.. United States (250 U.S. 616 (1919)) canonized free speech in the United States of America when he held: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired its best reached by free trade in ideas - that the best test 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. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminetly threaten immediate interference with lawful and pressing purposes of the law that an immediate check is required to save the country”.

 

In Whitney v. California (71 L.Ed. 1095) Justice Louis De Brandeis held: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that in its Government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be the fundamental principle of the American Government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable Government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing the power of reason as applied through Public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed”. It was further held: “to justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practised” and further: “but even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated”.

 

Omission of “Sedition” from the draft Article 13(2)

 

The draft Article 13(2), corresponding to Article 19(2) before amendments, read as follows: “Nothing in Sub-Clause (a) of Clause (1) of this Article shall effect the operation of any existing law or prevent the State from making any law relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or which undermines the security of or tends to overthrow the State”. There was a general feeling that the offence of “Sedition”, as incorporated in Section 124A of the Indian Penal Code, 1860 then, (herein after referred to as “the Code”, for brevity) was enacted to secure the conviction of Sri.Bal Gangadhar Tilak. Mahatma Gandhi was put behind the bars invoking Section 124A. Founding fathers of the Constitution of India, reminded of the indiscriminate use of Section 124A, by the British against themselves and others to suppress the struggle for independence, dropped the word “sedition” from the draft Article 13(2). In the words of Sri.K.M.Munshi at the Constituent Assembly debates, 1st December 1948: “A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill will towards Government, was considered sedition once. Our notorious Section 124A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by S.124A. But the public opinion has changed considerably since and now we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therefore the word ‘sedition’ has been omitted”.

 

Article 13(2) was transformed into Article 19(2) as originally enacted as follows: “Nothing in Sub-Clause (a) of Clause (1) of this Article shall effect the operation of any existing law or prevents the State from making any law relating to libel, slander, defamation, Contempt of Court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State”.

 

Orders to prevent danger to “public order” held as unconstitutional

 

In Romesh Thappar v. State of Madras (AIR 1950 SC 24)and Brij Bhushan v. State of Delhi (AIR 1950 SC 129), Section 9(1-A) of the Madras Maintenance of Public Order Act 1949 and Section 7 (i)(c) of the East Punjab Safety Act, 1949 were under challenge, respectively. In Romesh Thappar, the Government of Madras issued an order under Section 9(1-A) imposing a ban upon the entry and circulation of a journal in that State for the purpose of securing the public safety and maintenance of public order. In Brij Bhushan, under Section 7(i)(c) an order was issued to a journal “to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by news agencies”. This order was issued under the premise that it is prejudicial to the public safety and maintenance of public order. The majority view of the Constitution Bench in both the cases was that Clause 2 of Article 19 having allowed the imposition of restriction on the freedom of speech only in cases where danger to public security is involved, an enactment which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent. Essentially, as the orders challenged were issued to prevent danger to public order and as the word “public order” fell outside the scope of authorized restrictions under Clause 2 of Article 19(2), the Supreme Court held those orders as void and unconstitutional.

 

Immediately after Romesh Thappar and Brij Bushan, Article 19(2) was amended retrospectively by the Constitution First Amendment Act, 1951 in the following manner: “Nothing in Sub-Clause (a) of Clause (1) shall effect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”.

 

Article 19(2) now

 

At present Article 19(2) stands as follows: “Nothing in Sub-Clause (a) of Clause (1) shall effect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the Sovereignty and Integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”.

 

History of Section 124A

 

The law of Sedition evolved from the Statute of Westminster 1275, when the divine right of the King and the principles of a feudal society were not questioned. The Star Chamber case De Libellis Famosis of 1606 established seditious libel. Not only was truth no defence, but intention was irrelevant, as was the harm done by the libel. Punishments for the crime included imprisonment and the loss of the offenders’ ears.

 

Section 124A of the Indian Penal Code corresponds to Section 113 of Macaulay’s Draft Penal Code of 1837 - 39. The section was omitted from the Code when it was enacted in 1860. It was by Act XXVII of 1870 that it found a place in the Penal Code. The section then enacted, ran as follows:

 

“124A. Exciting Disaffection -

 

Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

 

Explanation- Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority is not disaffection. Therefore, the making of comments on the methods of the Government with the intention of exciting only this species of disapprobation, is not an offence within this clause”.

 

The case of Sri.Bal Gangadhar Thilak (Queen Empress v. Bal Gangadhar Thilak) (ILR 22 Bom. 112) in which he was convicted, is a classic example of the use of Section 124A which the British used to jail Indian leaders in the freedom struggle and suppress the freedom movement. The case was tried by a Jury before Strachey.J. The learned Judge explained the law to the Jury which in short is as follows: “The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small”. The Jury found Sri. Bal Gangadhar Thilak guilty, who applied for leave to appeal to the Privy Council. The Full Bench of the Privy Council refused leave to appeal. By way of application for special leave, appeal was taken to the judicial committee. It was contended that there was a misdirection as to the meaning of Section 124A of the Code in that the offence had been defined in terms too wide to the effect that “disaffection” meant simply “absence of affection”, and that it comprehended every possible form of bad feeling to the Government. The argument was rejected and the conviction was confirmed.

 

The decision in Bal Gangadhar Thilak’s case drew inspiration from Queen-Empress v. Jogendra Chunder Bose (ILR 19 Cal. 35), the first case under Section 124A, known as the Bangobasi Case. Sir Comer Petheram C.J. explained the law thus: “If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so if the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection in fact, produced by them”.

 

Section 124A underwent an amendment many a time thereafter, lastly on 01.01.1956 by the Act of 26 of 1955, Section 117. The offence of “Sedition” now reads as follows:

 

“124A. Sedition -- Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in, shall be punished with, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added or with fine.

 

Explanation 1 --- The expression “disaffection” includes disloyalty and all feelings of enmity.

 

Explanation 2 - Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt of disaffection, do not constitute an offence under this Section.

 

Explanation 3 - Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this Section”.

 

It may be immediately noticed that Section 124A of the Code had the heading “Exciting disaffection” when it was originally enacted, and the intention of the Rulers was clear as broad day light, to suppress any voice against the Government, even in its narrowest form.

 

Supreme Court holds Section 124A as constitutional

 

In a case, one Kedar Nath Singh was charged with Section 124A and 505(b) of the Indian Penal Code. It gave rise to Kedar Nath Singh v. State of Bihar, (AIR 1962 SC 955) where the constitutionality of the provisions was challenged. Supreme Court observed: “Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enemity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with Cl.(2)”. Supreme Court then adopted the interpretation which would make the provisions constitutional and read down the provision, narrowed its wide net by limiting its application “to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”

 

“Disorder”, “Public order”, "Security of the State”

 

The question is, within the restrictive sphere of Article 19(2), whether all sorts of disorders or disturbance of law and order, give rise to a situation of “public order,” and whether in case even some of them give rise to violence or incitement to violence, threaten the security of the State? Is it not necessary that to charge one with “sedition”, his acts should threaten the security of the State? It may be noted here that Entry No.3 of List III(Concurrent List) of Schedule VII of the Constitution treats “Security of the State” and “maintenance of public order” differently and in Entry I of List II(State List) of Schedule VII, “Public Order” is separately listed. Though the offence of 'sedition' appears in Chapter VI of the Code under the heading "offences against the State", of all the provisions, enumerated there, S.124A sounds odd.

 

In Superintendent, Central Prison, Fateh Garh v. Ram Manohar Lohia, (AIR 1966 SC 663), the Supreme Court held: “public order” is synonymous with public safety and tranquility and that “it is the absence of disorder involving breaches of local significance in contra distinction to national upheavals ; such as revolution, civil strive, war, affecting the security of the State”.

 

In Ram Manohar v. State of Bihar, (AIR 1966 SC 740)Supreme Court elaborated “public order”: “One has to imagine three concentric circles. Law and order represents the largest circle. Within which in the next circle representing public order and the smallest circle represents security of the State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State”.

 

Chief Justice M.Hidayatullah, speaking for the Bench in Arun Ghosh v. State of West Bengal (AIR 1970 SC 1228) succinctly explained the situations in which it could be said there is disturbance to public order or when there is no law and order : “Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chambermaids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being way-laid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society”.

 

Balwant Singh & Anr.v. State of Punjab ((1955) 3 SCC 214)was a case where the case against the appellants was that in a crowded place, on 31.10.1984, the day Smt.Indira Gandhi, the then Prime Minister of India was assassinated, after coming out from their office shouted the slogan “Khalistan Zindabad” and other slogans and keeping in view of the tension which had been generated, the said act attracted Sections 124A and 153A of the Code. Supreme Court set aside the conviction and sentence and observed: “The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans – which arrest – and not the casual raising of one or two slogans – could have created a law and order situation, keeping in view of the tense situation prevailing on the date of the assassination of Smt.Indira Gandhi. In situations like that, over sensitiveness sometimes is counter productive and can result in inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established (emphasis supplied) nor could the same give rise to feelings of enemity or hatred among different communities or religious or other groups”.

 

Therefore, mere acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence will not attract the offence of “Sedition” unless those acts threaten the security of the State and there is a “clear and present danger”.

 

“Clear and present danger” rule was propounded by Justice Oliver Wendell Holmes in Schenck v. United States: (63 L.Ed.470) “the most stringent protection of free speech would not protect a man in falsely shouting fire in a Theater and causing panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are use in such circumstances and are of such a nature as to create a clear and present danger that they will bring out the substantive evils that Congress has a right to prevent. It is a question of proximity and degree”

 

Determination of constutionality of an enactment

 

It is settled law that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. “the test of reasonableness, where ever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter in to the judicial verdict”, vide State of Madras v. V.G.Row, (AIR 1952 SC 196). The said decision also points out that “while the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute”.

 

A Constitution Bench in State of Bihar v. Bihar Distillery Limited, (AIR 1997 SC 1511)pointed out: “The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void”.

 

Question of constutionality of a law infringing the fundamental rights

 

As per Article 13(1), any inconsistent pre constitutional law will be void to the extent of inconsistency with Article 19(2). Any law enacted beyond Article 19(2) will fall foul of the Constitution and will be void under Article 13(2). The allowance the Court grants to the legislature when judging a constitutionality of a statute is not available when the question of infringement of the fundamental rights is in the dock. In R.K.Garg v. Union of India, ((1981) 4 SCC 675), the Supreme Court has laid down that “when a law of the legislature encroaches on the civil rights and civil liberties of the people mentioned in Part III of the Constitution (the fundamental rights), such as freedom of speech, freedom of movement, equality before law, liberty, freedom of religion, etc., the Court will not grant such latitude to the legislature as the case of economic measures, but will carefully scrutinize whether the legislation on these subjects is violative of the rights and liberties of the citizens, and its approach must be to uphold those rights and liberties, for which it may some times even have to declare a statute to be unconstitutional”.

 

It is submitted that judging by the standards set by the decisions of the Supreme Court, and mindful of the antecedents of Section 124A of the Code, the situation and the purpose behind it, Section 124A militates against Article 19(1)(a) and is therefore unconstitutional.

 

The wide net of Section 124A and its vagueness

 

It can be seen that Section 124A of the Code as it originally stood, meant to create a simple disaffection towards the Government established by law in British India an offence. Even the heading of the section was “Exciting disaffection.” Thus any body who simply shrugs his shoulder to the Government could be roped in. It was indiscriminately used by the British to suppress the freedom struggle. Later amendments brought only cosmetic changes. The terms used in Section 124A are vague. What is meant by “disaffection” is not clear. It lays a very wide web. One may not like the policies of the Government, he may speak out against it, make people grumble with anger and immediately he is caught under Section 124A. Another person may entertain hard feelings against the Government, show dissent to its various departments and limbs and then he is charged with “Sedition”. The term disaffection, used in the provision can include anything. Explanation 1 makes the net of Section 124A even more wider. It says that the expression “disaffection” includes “disloyalty and all feelings of enmity”, which means the citizens cannot open their mouth in diffidence. Thus this provision has certainly dictatorial overtones. It does not operate only when the security of the State is under threat, as restrained under Article 19(2). Section 124A as it now stands, has a chilling effect on free speech.

 

Vagueness and Constitutionality of a law

 

But can a law be termed as unconstitutional on the ground of vagueness? Supreme Court in K.A.Abbas v. The Union of India (AIR 1971 SC 481), held that “it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness” and also that “The real rule is that if a law is vague or appears to be so, the Court must try to construe it, as far as may be, and language permitting, on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases”.

 

The decision of the Supreme Court in The Collector of Customs Madras v. Nathella Sampathu Chetty & Anr. (1962 (3) SCR 786), succinctly laid down: “the possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity the converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements”.

 

In Shreya Singhal v.Union of India (2015 (2) KLT 1 (SC) = (2015) 5 SCC 1), the Supreme Court struck down Section 66A of the Information Technology Act, 2000 as unconstitutional as it is against Article 19(1)(a) and not saved by Article 19(2) on the ground that it creates an offence which is vague and over broad.

 

In Musser v. Utah, (92 L.Ed. 562), the U.S. Supreme Court struck down a statute where no reasonable standards are laid down define guilt in a Section which creates an offence, and where no clear guidance is given to either law abiding citizens or to authorities and Courts, on the ground of vagueness. In United States v. Reese, (92 US 214 (1874)), it was held that “the Constitution does not permit a legislature to set a net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightly detained and who should be set at liberty”. It was further held that a penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness. Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place.

 

In Grayned v. City of Rockford, (33 L.Ed. 2d 222), it was held that “a vague law permissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory applications”.

 

Conclusion

 

Section 124A of the Code is a penal provision, restraining the freedom of the subject. A penal provision has to be explicit. Bathing in the guaranteed freedom of speech and expression and assured of it as his fundamental right, a citizen needs to know as to exactly on what ground he is charged with or where has he gone beyond

Article 19(1)(a), to be in the teeth of Article 19(2). A citizen cannot be asked to wait for the interpretative process by the law enforcing machinery. There is a probability of misuse. Section 124A as it stands now, is an abhorrent colonial relic. It militates against the spirit of the Constitution of India. The British, who have liberally used the provision against the Indians, have done away with the Sedition laws in England. More than thirty years ago, Lord Denning expressed the opinion that the offence of seditious libel is obsolete:

 

“The offence of seditious libel is now obsolescent. It used to be defined as words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects. But this definition was found to be too wide. It would restrict too much the full and free discussion of public affairs...So it has fallen into disuse for nearly 150 years” (Landmarks in Law, Lord Denning).

 

Sedition under Section 124A is an arcane offence of a bygone era where freedom of expression was not the same as today. Now as the Law Commission is reviewing the Law of sedition, one can fervently hope that Section 124A will be overhauled so as to cover only those acts which threaten the security of the State. Otherwise it attracts the wrath of Article 13(1) and is void.

Hindu Marriage Act, 1955, Christian Marriage Act 1872,

Indian Divorce Act, 1869 -- A Very Recent Decision Regarding Dissolution of Marriage between a Christian Wife and a Hindu Husband

 

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

 

Wife - Jerry Garman @ Geraldine @ Jayalakshmy filed a petition under Indian Divorce Act 1869 for dissolution of marriage solemnized between herself and husband Sethuraman in Family Court under Christian Marriage Act, 1872. Marriage was on 17.8.1992. Sethuraman, the husband filed an interlocutory application to dismiss the petition filed by wife for dissolution of marriage on the ground that marriage was solemnized under Hindu rites and customs and hence petition under Indian Divorce Act, 1869 is not maintainable legally.

 

Family Court allowed the interim petition filed by the husband and dismissed the petition filed by wife for dissolution of marriage. Wife filed appeal.

 

Question posed was whether Family Court is justified in allowing the interlocutory application and dismiss the O.P. filed by wife.

 

MADRAS HIGH COURT - Held

 

1. From the evidence it was found that the wife was a Christian at the time of marriage.

 

2. So the marriage could not have been taken place under Hindu Marriage Act, 1955.

 

3. There is no case for any party that wife was converted into Hinduism from Christianity.

 

4.Marriage has taken place under Christian Marriage Act 1892, and so cannot be dissolved under Hindu Marriage Act, 1955.

 

5. For a marriage to be conducted under Hindu Marriage Act, both parties should be Hindus.

 

On the above reasoning the order passed by Family Court is set aside by Madras High Court. 2016 (2) MLJ 169 (D.B.) - Jerry Garman @ Geraldine @ Jayalakshmy v.
A.S. Sethuraman. The Madras High Court has considered AIR 1992 Karnataka (Jacintha Kamath v. V.K.Padmanabha Kamat) (AIR 1984 SC 411) - S.Anbalagan v. B.Devaraja)

 

The mode and method of conversion to Hinduism has also been considered on the basis of AIR 1971 SC 2352 (Perumal Nadar v. Ponnu Swami) AIR 1984 SC 411 has been followed in AIR 1984 SC 600.

 

Tailpiece:-

 

Substantial question of law under Section 100.

 

If a wrong finding, which has stemmed out on complete misreading of evidence or based on surmises and conjunctives, has been arrived by court, then that is a substantial question of law.

 

AIR 2016 SC 262 = (2016) 1 CCC 92 SC (Damodar Lal v. Sohan Devi) (para 13).

This Happened in 1940

(Extracted from 1995 (1) KLT Journal Section page 33)

Article by T.G.John, Advocate, Thrissur)

 

It is a well-known fact that spies are worse than the attacking enemy. Some spy for money and others for love of a cause. For Anna Wolkoff and Tyler Kent there were no mercenary motives to drive them into the network of espionage.

 

Tyler Kent was in the prime of his youth when he entered the U.S. Diplomatic Service in 1934. In 1939 he was transferred to the London Embassy where he met a Russian woman named Anna Wolkoff, about thirty six years old, who was a naturalised British subject and working in the Auxiliary Fire Service. Anna was a good  Nazi disciple and believed implicitly that national socialism was for the good of mankind.

 

Anna was not the proverbial beauty of a female spy. But still she fascinated Tyler Kent and dominated him throughout. The Hitler spies knew of Anna, her eagerness to help the Nazis and her relationship with Kent and exploited the situation. Anna printed into Kent’s mind the idea that Britain was steering America into a bloody war and that he could stop this war by following her directions.

 

“What do you want me to do?” he asked Anna while they were, alone in her apartment in a whirlwind of romance. “I am only a code and clipher clerk and what part can I play in preventing America from entering the war?” Kent repeated.

 

Anna’s answer was a peroration. Kent was handling all the top-secret messages passing between the President of U.S. and the British Cabinet. If the American people knew of the disastrous policy being followed by President Roosvelt and of the friendship between Roosvelt and Britain’s First Lord of the Admiralty, Winston Churchill, the public’s eyes would be opened. Roosevelt would be voted out and a man who was not a war-monger would be installed in his place.

 

The modus operandi which Anna suggested was very simple. Kent was to pass over to Anna copies of every message that passed through his hands for coding and transmission. Like a hypnotised man with the Stardust of romance, Kent obeyed her faithfully. All these messages were passed by Anna to Berlin.

 

Meanwhile, Department M.I5 was watching Anna for subversive activities. The British counter-intelligence was searching for some leaks in their top-secret messages. The leak, Scotland Yard decided was from the American Embassy and it was confirmed when a woman counter-intelligence Officer who had had Anna Wolkoff under observation for thirty hours reported that she saw Tyler Kent enter her apartment. Tyler Kent and Anna Wolkoff, were arrested on a charge of espionage.

 

The trial was sensational. It was October 1940 and London was being bombarded from the air on trial days themselves. Feelings towards spies were not kindly. The trial opened in a secret session in London and the prosecution set out to prove that Kent was guilty of copying top-secret documents and communicating them to Anna Wolkoff and that these documents were useful to the enemy. The trump card of the prosecution was that Anna Wolkoff had sent several letters to William Joyce known during the last war as Lord Haw-Haw. In some letters Anna Wolkoff had used information received from Tyler Kent and this information, Joyce relayed back to Britain in his broadcasts. The court took fifteen minutes to bring in a verdict of guilt. Anna was convicted in the record time of twenty seconds. She was sentenced to ten years hard labour.

 

“Your primary allegiance you owe to your own Government” the Judge told Kent, “but while you are living in Britain you have to conform to the laws of this country. You will go to prison for seven years”.

Three Roses of Judicial Ethics

(By A.M. Ashraf, Munsiff, Alathur)

 

The concept of Justice has a dominant value in the matter of judicial thinking. Judges are the important element of it. Judges are owed to the Law. It makes confidence in judicial independence, fairness and impartiality. A Judge represents societal realities. Public confidence mainly depends upon the quality and propriety of Judge. Judges can’t be accountable to the electorate as politicians. The duties of judiciary are not owed to the electorate, they are owed to the Law of the nation. The concept of judicial independence and judicial accountability are mostly inter linked, which point a finger about cherished canons of judicial ethics. The Constitution of India provides for an independent and impartial judicial systems. It is no doubt true that, in this realm the three attempts namely Restatement of Values of Judicial Life (Code of Conduct), the Bangalore Principles of Judicial Conduct, 2002 and the Oath of a Judge as contained in the Third Schedule of Constitution of India have swiftly achieved its object for the time being. Ideo, it will be apposite to look into its wings and dreams.

 

(I) Restatement of values of judicial life

 On 3.12.1999 and 4.12.1999 a conference of Chief Justices of all High Courts was held in the Supreme Court premises. During the said conference Chief Justices unanimously adopted a charter called “restatement of values” of judicial life (Code of Conduct) as the principles to be followed by the Judges, for the independent strong and respected judiciary, indispensable in the impartial administration of justice delivery system. It was a complete Code of Conduct and incorporates, therein all the canons of judicial ethics. It can be encapsulated as here under:

i. Justice must not merely be done but also be seen to be done. The behaviour and conduct of members of higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.

ii. A Judge should not contest the election to any office of a club, society or other association, further shall not hold such elective office in a society or association connected with the law.

iii. Close association with individual members of the Bar, particularly those who practice in the same Court, shall be eschewed.

iv. A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

v. No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.

vi. A Judge should practice a degree of aloofness consistent with the dignity of his office.

vii. A Judge shall not hear and decide a matter in which a member of his family, close relation or a friend is concerned.

viii. A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

ix. A Judge is expected to let his judgments speak for themselves, he shall not give interview to the media.

x. A Judge shall not accept gift or hospitality except from his family, close relations, friends.

xi.  A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

xii. A Judge shall not speculate in shares, stocks or like.

xiii. A Judge should not engage directly or indirectly in trade or business, whether by himself or in association with any other person (publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business.)

xiv. A Judge should not ask for, accept contribution or otherwise actively associate himself with the raising of any fund for any purpose.

xv.  A Judge should not seek financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.

xvi. Every Judge must at all time be conscious that he is under the public gaze and there should be no act or omission by which is unbecoming of the high office he occupies and the public esteem in which that office is held.

 

(II) Bangalore Draft Principles:

The independent impartially, integrity, propriety, equality are the hall mark of our judicial system. Based on these values in the year 2002, it has been drafted another Code of Conduct called “the Bangalore Draft Principles”. This principles are expected to establish standards for ethical conduct of Judges and to afford the judiciary a frame work for regulating judicial conduct. The Bangalore Draft had underwent a few discussions and finally approved by a round table meeting of Justices from several law systems, held in Peace Palace in the Hauge, Netherlands in November 2002. The mechanism and methodology of ‘accountability’ may differ from country to country; therefore it was left to be taken care of individually by the participating jurisdictions. With the second meeting held in Bangalore in February 2001 the draft was given a shape developed by Judges by drawn principally from Common Law countries. The preamble of Bangalore Principles of Judicial Conduct can be summed as under:

 

i. Judicial independence is a pre-requisite to the rule of law and fundamental guarantee of a fair trial. A Judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

ii. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

iii. Integrity is essential to the proper discharge of the judicial office.

iv.  Propriety and the appearance of propriety, are essential to the performance of all the activities of a Judge.

v. Ensuring equality of treatment to all before the Courts is essential to the due performance of the judicial office.

vi. Competence and diligence are prerequisites to the due performance of judicial office.

vii. Implementation – By reason of the nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement those principles, if such mechanisms are not already in existence in their jurisdiction.

 

 (III). The Oath of affirmation by Judge:

The Constitution of India has drafted this realm upholding the Indian judiciary to reach the goal of securing Justice, Liberty, Equality and Fraternity. This means and includes in the form of oath to be made by the Judges. Though the path is tough, the Judges have to adopt it and bear out the oath or “Pramana Vachana” (swearing) they have taken when entering the office.

 

Swearing in the name of God or making a solemn affirmation a Judge ordains himself:-

i. That I will bear true faith and allegiance to the Constitution of India as by law established;

ii. That I will uphold the sovereignty and integrity of India;

iii. That I will truly and faithfully and to the best of my ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill will; and

iv. That I will uphold the Constitution and the laws.

 

The oath of a Judge is a complete code of conduct and incorporates therein all the canons of judicial ethics. These canons can’t be consigned in formula in achieving the goals. Mostly these canons have originated in and have been handed down by generation after generation of Judges by tradition. A Judge may commit error, the noble things is that the Judge must recognize his mistakes. The famous dictum of Justice Jackson is that “we are not final because we are infallible, we are infallible only because we are final” Justice Robert Jackson in Brown.v.Allen (1953). In concise, if we admit our mistakes as Judges, we strengthen the public confidence in the judiciary.