\oXn]oT¯nsâ ImcpWyhÀjw

(ByAUzt¡äv H. lmcokv, Imbw-Ipfw)

kaql¯n A¨S¡hpw {Iakam[m\hpw sI«pd¸pw DImIp¶Xn\v \nbaw BhiyamWv. a\pjyÀ¡v kam[m\t¯msS Ignbp¶Xn\mWv \nba§Ä \nÀ½n¡p¶Xv. kmaqlnI PohnX¯nsâ DuSpw ]mhpamWv \nba§Ä. \nba¯n\v ap¶n FÃmhcpw ka³amcmsW¶v ]dbmdpIv. \oXn tXSnbpÅ am\hsâ ssP{Xbm{Xbv¡v a\pjyhwi¯nsâ A{XXs¶ ]g¡apIv. \oXnam³amcmb cmPm¡³amÀ Ncn{X¯n btim[hmeyw cNn¨hcmWv. Ncn{Xw BhÀ¯n¡pt¼mÄ C¯cw Hfna§m¯ HmÀ½IÄ \½sf NnesXms¡ DWÀ¯p¶p. A¯c¯n Gähpw {it²b§fmb \oXn]oT¯nsâ cIv hyXykvX ImcpWyhÀj IY kao]Ime¯v \ap¡v A\p`hnt¡Inh¶p.

P\m[n]Xy¯nsâ s\SpwXqWpIfn H¶mWtÃm PpUojdn. CXnsâ Gähpw {][m\s¸« t]mcmbvabmbn ImWp¶Xv tIkpIfn hn[nI¸n¡p¶XnepImIp¶ ImeXmakamWv. aÀ¯yÀ¡nSbn \oXn e`yam¡m\mWv \nba§Ä hmÀs¯Sp¡p¶Xv. \oXn sshIp¶Xv AXv \ntj[n¡p¶Xn\v Xpeyambn IW¡m¡p¶p. BImiw CSnªv hoWmepw \oXn \S¸m¡pw F¶mWv tIcf sslt¡mSXnbpsS s\dpIbn tcJs¸Sp¯nbncn¡p¶Xv.

AXnÀ¯nIm¡pw amaeIÄ t]mse Dbc¯n sI«nInS¡p¶ tIkpsI«pIfpsS Iq¼mcw Ipdbv¡p¶Xn\mbn IsI¯nb \ho\ amÀ¤amWv AZme¯pIÄ. X§fptSXÃm¯ ImcW§ÄsImIv tIkpsI«nsâ NcSn\I¯v AIs¸« At\Imbncw a\pjyÀ \ap¡nSbn hkn¡p¶p. AsXm¶gns¨Sp¡m³ AXnsâ ]nSnsbm¶v hnSphn¡m³ Xsâ BbpÊpw BtcmKyhpw k¼¯pw IjvS¸mSpw hn\ntbmKnt¡In hcp¶ lX`mKyÀ  kaql¯n [mcmfapIv. A¯c¯n AIs¸«hsc ]Zhn ad¶v ImcpWy¯nsâ tX³agsNmcnª cIv thdn« \ymbm[n]³amcpsS kvt\tlm³apJamb hnkvXmcamWv XpSsc tImdnbnSp¶Xv. kvt\lapJapÅ Hcp \oXnIY F¶ t]cn ]pd¯ph¶ hSIcbnse Hcp \ymbm[n]³ s]mXpkaql¯n\v Im«nsImSp¯ amXrI \oXn]oT¯nsâ biÊv hÀ²n¸n¡p¶Xmbncp¶p. Xq¡pIbdpw PbnÂin£bpw ]ngbpw am{Xw hn[nsbgpXp¶ Ic§fn \n¶v kvt\l¯nsâbpw ImcpWy¯nsâbpw kzm´\¯nsâbpw Xmcm«v tI«t¸mÄ \oXn]oT§Ä¡v am{Xaà s]mXpa\Ênepw IpfnÀag s]bvXp.

Hcp ]mhs¸« a\pjy³ _m¦n \n¶pw hmbv]sbSp¯v IS¯n ap§n hmbv] XpI Xncn¨S¡m³ \nhr¯nbnÃmsX h¶t¸mÄ P]vXnIbÀ Igp¯n apdpIn izmkw ap«nb B a\pjy\v s\SphoÀ¸nSm³ thIn Xsâ i¼f¯n \n¶pw ]Xn\¿mbncw cq] \ÂIn Hcp IpSpw_s¯  c£s¸Sp¯nb hSIc ap³kn^v tImSXnbnse Achnµv kn. CSbmSn F¶ \ymbm[n]\v ta ImcpWy tIcf¯nsâ kvt\lm{iphÀjw s]menªp. hSIc eoK kÀÆokkv AtXmcnänbpsS B`napJy¯n \S¯nb AZme¯n hfbw Npgen \¼ymÀIp¶pta Ipamcsâ tIknemWv Cu a\pjysâ th]Yp \ngen¨ PohnXw \ymbm[n]³ IIXv. 2008 Ipamc³ Im\d_m¦n ]md¡Shv imJbn \n¶pw hmbv]bmbn FSp¯ Ccp]¯¿mbncw cq] ]enibS¡w ap¸¯¿mbnc¯n Fgp¶qän A¼Xv cq]bmbn hÀ²n¡pIbpw _m¦v Ipamcs\Xnsc tIkv ^b sN¿pIbpw sNbvXp. hn[n ssh]cnXy¯n PohnXt¢iw t\cnSpIbpw A]IS¯nÂs¸«pImb km¼¯nI ]cm[o\Xbpw ImcWw hmbv] XpI Xncn¨S¡m³ Ipamc\v IgnªnÃ. XpSÀ¶v _m¦v P]vXnbS¡w \nba\S]Sn kzoIcn¨p.

XpI Xncn¨S¡m³ IgnbmsX hn§ns¸m«nb Ipamcsâ \nÊlmbhØ a\Ênem¡nb Cu \ymbm[n]³ _m¦v DtZymKسamcpambn kwkmcn¨v tIkv H¯pXoÀ¸m¡n HSpt¡Ip¶ _m¡n XpI Ipamc\pthIn \ymbm[n]³ kz´w t]m¡än \n¶pw \ÂInbmWv amXrI Im«nbXv. Ipamcsâ s\©nse XobW¡m³ Ignsª¶ NmcpXmÀ°y¯n kvt\lkv]Àinbmb \ymbm[n]³ Xm³ sNbvXXv shdpsamcp \nÊmcImcyambn IcpXn ASp¯ tIkpsI«nse NcSv Agn¡pIbmbncp¶p.

GXm\pw Znhk§Ä¡v ap¼v asämcp ImcpWyhÀjhpw \oXn]oT¯n \n¶v \ap¡v A\p`hnt¡In h¶p. AXv IpS¸\IfpsS \mSmb ]me¡mSv \n¶mbncp¶p. cIv ]XnämIv ap¼v \S¶ hml\m]IS¯n Ggp hbÊpÅ aI³ \jvSs¸«  amXm]nXm¡Ä¡v \jvS]cnlmcXpI \ÂIp¶Xnte¡pImb ImeXmakamWv tamt«mÀ BIvknUâv s¢bnwkv ss{S_qW PUvPn  Xsâ i¼f¯n \n¶pw Hcpe£w cq] \ÂIn amXrI Im«nbXv. ]cmXn¡mc\v \oXn\ymb kwhn[m\¯nepÅ hnizmkw \jvSs¸SmXncn¡m\mWv Xm³ amXrI Im«nbsX¶v PUvPn ]dbp¶p.

1993 sabv 10 \v ]pXp¸cnbmc¯v DImb hml\m]IS¯n hm¡n ]d¼n kpµcsâ aI³ acn¨ tIkn \jvS]cnlmcw Bhiys¸«v \ÂInb lÀPn 1996  G{]n 16\v hn[nbmbn. hn[n XpIbn \n¶v Ccp]¯¿mbncw cq] BZyL«¯n lÀPn¡mc\v e`n¨ncp¶p. _m¡nXpIbpw ]enibpw C³jpd³kv I¼\n tImSXnbn sI«nsh¨p. Cu XpI kpµcsâbpw `mcybpsSbpw t]cn \nt£]n¡phm³ tImSXn D¯chnSpIbpw sNbvXp. F¶m tImSXn Poh\¡mÀ XpI kpµc\v ]Icw sImÃwtImSv s\³ta\n kztZinbmb cmaIrjvW³ F¶ Bfnsâ t]cnepÅ A¡uInemWv _m¦n \nt£]n¨Xv. tImSXn Poh\¡mÀ¡v kw`hn¨ ]niImWv A¡uIv \¼À amdn XpI \nt£]n¡m³ ImcWw. ]n¶oSv Hcp hml\m]IS¯n cmaIrjvW³ acWaSbpIbpw sNbvXp.

X§Ä¡v \jvS]cnlmcXpI e`n¨n«nsöv ImWn¨v ]cmXnbpambn kpµc\pw IpSpw_hpw tImSXnsb kao]n¨p. XpSÀ¶v \S¯nb At\zjW¯nemWv XpI cmaIrjvW³ ]n³hen¨Xmbn _m¦ptcJIfn IsI¯nbXv. C¡mcyw NqIn¡m«n taÂtImSXnbn kpµc³ A¸o lÀPn t_m[n¸ns¨¦nepw AXv XÅpIbmbncp¶p. HSphn sslt¡mSXnsb kao]n¨ kpµct\mSv IngvtImSXnbn dnhyplÀPn t_m[n¸n¡m\mWv D¯chpImbXv. Cu tIknsâ hmZw tI« PUvPn at\mlÀ InWn lÀPn¡mcsâ Bhiyw A\phZn¡m\mhnsöv IsI¯nsb¦nepw lÀPn¡mc\v \oXn e`n¡Wsa¦n am\pjnI ]cnKW\ \ÂIWsa¶v IImWv \ymbm[n]sâ ImcpWylkvXw kpµc\pw IpSpw_¯ntebv¡pw \o«nbXv. hn[n¡v D¯cw \ÂIphm³ Bcpansöv t_m[ys¸« PUvPn lÀPn¡mc\v \oXn e`n¡m³ Xsâ kz´w JP\mhv Xpdt¡In h¶p. Ft¶m hn[n¨ \jvS]cnlmcXpI tImSXn Poh\¡mcpsS ssI¸ng aqew A\p`hn¡m³ e`n¡m¯Xv  ImcWw \oXn \ntj[n¡s¸ScpsX¶v IcpXnbmWv \ymbm[n]sâ \S]Sn. \oXnbpsS Bizmkw kpµc\pw IpSpw_¯n\pw {]Xo£n¡m¯ Hc\p`hambn amdn. C\nbpw C¯cw Ddhhäm¯  ImcpWyhÀj¯n\mbn \ap¡v Im¯ncn¡mw.

Is  Section 66A of I.T. Act A Badly Written Law

(By Faizal Ahammed & Juby K. Mariam, Advocates, Mavelikkara)

 I.T. Act of 2000 is one which is enacted for the purpose of making a field inside the purview of law, the field which was till that time outside the scope of law, it was to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, this act has also made amendments to the Indian Penal Code 1860, Indian Evidence Act 1872, The Bankers Books of Evidence Act 1891, and the Reserve Bank of India Act, 1934 in order to further the same objective. It was the period in which most of the day to day activities were slowly becoming part of cyber world. The same transformation from leaf, animal hide  or stone to paper, happened in 20th century, ie from paper to magnetic disc. The Act essentially deals with,

a.Legal Recognition of Electronic Documents

b.Legal Recognition of Digital Signatures

c.Offenses and Contraventions

d. Justice Dispensation Systems for cyber crimes.

Being the first legislation on technology, some sections of the Act  was considered as draconian and some too diluted and lenient.  Even though this piece of legislation has proved to be a big leap in the field of cyber crimes, there still was a need for further changes which can improve its efficacy.This act has defined various offences and also has laid down certain penalties as well. This act in a way has characterised the cyber crimes, which were earlier unknown to general public in India. Before the amendment in 2008  there were only a smaller area which deals with offences.ie; tampering with computer documents, hacking etc. Of course it  was only a small percentage considering the large area which was yet to come into the area of cyber world. It happened so, that more and more areas became computerised. Age old crimes gradually mutate into the one which is done on computer. Few  in the modern age will be using paper or poster for doing defamation, though much easier and efficient way is opened through computer based social networks. A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation (commonly known as Phishing), identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the Code of Criminal Procedure to prevent such crimes.” Thus the need for an amendment  a detailed one was felt for the I.T. Act. Major industry bodies were consulted and advisory groups were formed to go into the perceived lacunae in the I.T. Act and comparing it with similar legislations in other nations and to suggest recommendations. Such recommendations were analysed and subsequently taken up as a comprehensive Amendment Act and after considerable administrative procedures, the consolidated amendment called the Information Technology Amendment Act, 2008 was placed in the Parliament. The 2008 Amendment Act was passed in an eventful Parliamentary session on 23 December 2008 (with no discussion in the House). The amendment was widely critisized on the ground of lack of legal and procedural safeguards to prevent violation of civil liberties of Indians. The Act has provided Indian Government with the power of surveillance, monitoring and blocking data traffic. The new powers under the amendment act tend to give Indian Government a texture and colour of being a surveillance state. The new I.T.Act provides good requirements from a national security perspective, information access misuse by unscrupulous parties, may prove to be dangerous for enterprises (as well as individuals). 

An important change that has been brought forth by the Amendment Act is that the new amendment has replaced Section 43 with Section 66. Under Section 66 the Word “hacking” has been removed, but instead hacking still remains an offence by the name of “data theft” in this section. This section has further been widened in the form of Sections 66A to 66F. Among these it is Section 66A which was widely criticised due to its draconian nature. The section reads as follows:

66 A:   Punishment for sending offensive messages through communication service, etc.

Any person who sends, by means of a computer resource or a communication device,

a)  any information that is grossly offensive or has menacing character; or

b)  any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

c)   any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages  shall be punishable with imprisonment for a term which may extend to two three years and with fine.

 Explanation:  For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

In short Section 66A deals with the sending of offensive messages through communication service, and causing annoyance to any electronic communication, and also includes the offence of misleading the recipient of the origin of such messages.

For getting clarity it will be better to examine what is the impact on civil liberty of the citizens through the amendment. Regarding Section 66A which punishes persons for sending offensive messages is overly broad. Section 66A has been challenged on the ground that it casts the net very wide - “all information” that is disseminated over the internet is included within its reach. The fact that some information is “grossly offensive” or that it causes “annoyance” or “inconvenience” (which is subjective) while being known to be false cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). None of the aforesaid terms in Section 66A are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not.  It is clear that Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A. The Section does not require that such message should have a clear tendency to disrupt public order. According to the section it is not necessary that the message must have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent - there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order.  Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall. It can be seen that some of the restrictions on freedom,  through the I.T. Act might not be intended by the Legislature, but finaly resulted in the same. For instance Section 66A(c) which is for preventing phishing and spam, due to the terms used in the section, unnecessarily curtail the liberty in using various web services, accordingly it  unintentionally prevents the organisations from using proxy servers, it prevents you from the use of anonymus remailers( a free computer service that privatizes your e-mail) it prevents the using of tunnelling(which allows for data to be sent securely). The phrasing of above said provision gives it a meaning which is unintended by the Legislature. The provision is as follows : “message for the purpose of causing annoyance OR inconvenience OR to deceive OR to mislead the addressee or recipient about the origin of such messages “. Here it can be seen that for making  the provision to be presise and narrow so as to avoid the above said dilemma it must be ‘AND’ instead of ‘OR’.

In the recent  judgement of  Shreya Singhal  v  U.O.I  other provisions under Section 66 are discussed to show the contrast with  Section 66A, it will help to see the pequliarity of 66A which makes the section vague and broad, accordingly in Section 66.66B and 66C the terms used are “dishonestly or fraudulently” both defined in  I.P.C., in Section 66D it is “who ever cheats by personating” Section 66F again is a narrowly drawn section which inflicts punishment which may extend to imprisonment for life for persons who threaten the unity, integrity, security or sovereignty of India. Sections 67 to 67B deal with punishment for offences for publishing or transmitting obscene material including depicting children in sexually explicit acts in electronic form.  None of the expressions used in Section 66A are defined. Even “criminal intimidation” is not defined - and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act. Thus all other provisions related to offences, other than Section 66A can be seen to be some what presise and narrow, so as to attract specific acts, where as Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

Another interesting feature is that a number of the expressions that occur in Section 66A occur in Section 268. It is important to notice the distinction between the Sections 268 and 66A. Whereas, in Section 268 the various expressions used are ingredients for the offence of a public nuisance, these ingredients now become offences in themselves when it comes to Section 66A. Further, under Section 268, the person should be guilty of an act or omission which is illegal in nature - legal acts are not within its net. A further ingredient is that injury, danger or annoyance must be to the public in general. Injury, danger or annoyance are not offences by themselves (as it is in Section 66A) howsoever made and to whomsoever made.

It is better to mention some of the points which are in favour of  above said provision,  accordingly  the main problem with respect to the deletion of this section is that, the door for a handfull of harmful activities are suddenly opened. For instance online defamation has suddenly become no offence, though nothing is there in Section 500 of I.P.C. which deals with defamation in cyber field.  Loose language may have been used in Section 66A to deal with novel methods of disturbing other people’s rights by using the internet as a tool to do so. Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Further, vagueness is not a ground to declare a Statute unconstitutional if the Statute is otherwise legislatively competent and non-arbitrary.

But it can be seen that the said mere possibility of misuse happened in a number of cases from 2009 to 2012 and  thus  vagueness  in the said provision makes such an  impact, as of a law which is arbitrary. .  Law should be logical and practical for curbing something which is illogical or not practical and not vice versa.

Justice an Enigma

(By V.K.Babu Prakash, Presiding Officer, Labour Court, Kollam)

Time changes,

so does the season.

Birds fly to newer places

leaving the old.

My years as a judge

are running faster to finish

to call it a day.

I have been running

in between the rising and setting sun

to catch up with it.

The sun is the same

in a relative way.

But, I am getting older

and breathing hard

unable to run

with the sun

while I was young.

I like to rest

somewhere and watch out

the setting sun.

When looking back

what had I achieved ?

Did I find truth

as a judge in my dispensation ?

Don’t know...

As only a smoke screen appears

from the shadows

obfuscating the vision

I can only feel

that the truth

was only a riddle

cleverly hidden by

the litigants and lawyers

among the thicket

of law and facts.

Sometimes, too many

procedural laws never

helped to find out

truth from the cloud of

facts which were entangled

like a cob web.

After all, I was only

a mediocre judge

who was not dare enough

to travel to the

forbidden areas to

see the magnificent truth

in its real avatar.

Truth was always elusive

in the endeavor

to render justice

to the needy.

And what is justice ?

A word which

is always a mystery

enwrapped in an enigma..

……………….

Compounded Case, Harmless Accused And Witnesses,

but a Headache to Courts

(By K. Sankaran Nampoothiri, Advocate, Harippad)

With the introduction and effective implementation of The Legal Services Authorities Act 1987, in Kerala, it has become the order of the day for all the courts especially lower criminal courts to refer cases which are compoundable to Lok Adalat for its settlement and disposal. Compoundable offences can be settled or compounded either in courts or in Lok Adalats as per Section 320 of Cr. P.C. and Sections 19 clause 5 and 20 of The Legal Services Authorities Act. Wherever be the forum of settlement for disposal, it is inevitable to hear both the parties, i.e. the victim and the accused. Be it before the court under Section 320 of Cr. P.C. or before the Lok Adalats under Section 20 of The Legal Service Authorities Act, the court or the Adalat has to be guided by the principles of justice, equity, fair play and other legal principles, i.e. theexpedition to compromise or settlement of cases should not be at the cost of justice.

But if a case involves offence under Section 379 of IPC, where the value of the property does not exceed Rs.250/-, generally, as per section 320(2) of Cr. P.C. the court can give permission to compromise the case.

But in the following circumstance, the above offence cannot be allowed to be compounded either before the court or before the Lok Adalats.

As per Section 379 of IPC, whoever commits theft shall be punished. But theft as defined under Section 378 of IPC stands as: "whoever, intending to take dishonestly any movable property out of the possession of any person without the person's consent, moves that property in order to such taking is said to commit theft."

So from the above definition, it is clear that if a person dishonestly moves a movable property, irrespective of whether he is the owner or stranger, from the possession of another person who is in possession of it, the offence under section 379 of IPC will attract. In strict sense of the definition of theft as per section 378 of IPC, even if the property is moved by the owner from the possession of another person, to whom the possession was validly given, without his consent the offence will stand i.e., the offence will stand even against the owner of the property.

For compounding the offence in the above circumstance, the court has to resort to section 320(2) of Cr. P.C. But 320 (2) of Cr. P.C. states as: "the offence punishable under the sections of the IPC specified in the first two columns of the table next following may, with the permission of the court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the 3rd column of that table.

As per the first two columns of the above section, theft, where the value of the property does not exceed Rs.250/-, under section 379 of IPC can be compounded. But in the 3rd column of the above mentioned table it is stated that "the owner of the property stolen" can compound the offence.

So in the above mentioned circumstances, if the court permits to compound the offence, the owner of the property, who is accused of the offence, himself can compound it sans the victim i.e. the possessor. The victim of the offence will have no role to play, but he is being made a mute spectator. The accused can compound the offence against himself.

In turn, even if the victim expresses his willingness to compound the offence, as the court has no power to do anything in strict derogation of a crystal clear provision in the 3rd column of the table mentioned in Section 320(2) of Cr. P.C, the court has no other way but to follow the tedious and time consuming task of evidence taking.

The Court can be saved from the above dilemma only by addition ofwords "or possessor" after the word 'owner' in the column 3rd of the table in section 320(2) of Cr. P.C. through an amendment of the code.

UNIFORM CIVIL CODE - STILL A DEAD LETTER?

(By Pramod Krishnan, Advocate, Tellicherry)

At present there is a renewed demand for a Uniform Civil Code since the Chief Justice of India V.N. Khare has made his remarks while passing his judgment in the Christian Bequests case (John Vallamattom v. Union of India, 2003 (3) KLT 66 (SC) = AIR 2003 SC 2902).

First of all what is the root of the Uniform Civil Code? The answer is simple. It emanates from our Constitution. Part IV- Art.36 to 51 contains the Directive Principles of State Policy. Art.44 of the Indian Constitution requires the State to secure for the citizens a uniform civil code through out the territory of India. However it is only a directive principle of state policy, therefore it cannot be enforced in a court of law as in the case of fundamental rights enshrined in Part III of our Constitution. So it is the prerogative of the State to introduce Uniform Civil Code.

India has already a Uniform Civil Code-reputedly one of the best in the world. Codification of civil laws means placing all civil laws affecting the relationships between private citizens on statutory basis. India's codification began in the mid-19th century and continues this day. This includes the Contract Act, 1872, the Transfer of Property Act, 1882, the Evidence Act, 1872, The Civil Procedure Code, 1908, the Companies Act, 1956 etc. The codification of Criminal Law included the Indian Penal Code, 1860 and the Criminal Procedure Code, 1898 (now 1973).

So the controversy is really about uniform personal laws. At present the Hindus, Muslims, Christians etc. in India are governed by their respective personal laws. Whether this has to be codified is the crux of the present controversy.

Even during the debate in the Constituent Assembly there was a wide spread opposition to the incorporation of Art.44 (Art.35 in the Draft Constitution) particularly from the Muslim members of the Assembly (CAD (Constituent Assembly Debates) Book No. 2 Volume III pp. 538,552). Naziruddin Ahmed, Mohd. Ismail Sahib, Pocker Sahib Bahadur and Hussain Sahib etc, made a scathing attack on the idea of having a Uniform Civil Code in India on the grounds that the right to follow personal law is part of the way of life of those people who are following such laws, that is part of their religion and part of their culture, that would lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country and that a country so diverse it is not possible to have uniformity of civil law. However, one of the most illustrious members in the Assembly, K.M. Munshi strongly felt that if the personal law of inheritance, succession etc. is considered as part of the religion, the equality of women can never be achieved (CAD Vol. Ill p. 548).

The Chairman of the Drafting Committee Dr. B.R. Ambedkar stated that in our country there is practically a civil code, uniform in its content and applicable to the whole country. He cited many instances like uniform civil law, transfer of property and Negotiable Instruments Act, which are applicable to one and all. However he conceded that the only province, the civil law has not been able to invade so far is marriage and succession. He also dispelled the arguments of certain Muslim members that die Muslim law is immutable and uniform throughout India. He cited the example of the North-west Frontier province, which was not subject to the Shariat law prior to 1935 and until then followed the Hindu law in the matter of succession etc. (CAD Vol. Ill p. 550). Similarly in the North Malabar region of Kerala, the Marumakkatayam law applied to all, not only to Hindus but also to Muslims. Until 1937, in the rest of India, the various parts, such as the united provinces, the central provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law of Succession.

Some of the learned members however predicted that a stage would come when the civil code would be uniform and stated that the power given to the State to make the civil code uniform is in advance of the time (CAD Vol. VIII p. 542). Dr. Ambedkar also opined that it is perfectly possible that the future Parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the code may be purely voluntary (CAD Vol. VII p. 551). The foregoing discussion clearly establishes that the framers of the constitution were aware of the gender injustice and sexual inequality of women and they incorporated Art.44 of the Constitution hoping that it would be introduced in the future at the appropriate time. It is clearly unfortunate that even after 56 years of independence, the State did not find it necessary to make any efforts to honour this constitutional commitment.

Now coming to the question whether Part III of the Constitution (Fundamental right) applies to personal laws, Gajendragadkar J. observed in State of Bombay v. Narasu Appa Mali (AIR 1952 Bombay 84) as follows:- "The Constitution of India itself recognizes the existence of these personal laws in terms when it deals with the topic falling under personal law in item 5 in the concurrent list-List III. This item deals with the topics of marriage and divorce; infants and minors; adoption; will, intestacy and succession; joint family and partition; all matters in respect of which parties injudicial proceedings were immediately before the commencement of this constitution subject to their personal law. Thus it is competent either to the State or the Union Legislature to legislate on topics falling within the purview of the personal law and yet the expression "personal law" is not used in Art. 13, because, in my opinion the framers of the constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the Constitution and so they did not intend to include these personal laws within the definition of the expression "laws in force". So according to the learned Judge personal laws were outside the ambit of Part III of the Constitution.

The judiciary in India has taken note of the injustice done to the women in the matters of many personal laws. It has been voicing its concern through few judgments, indicating the necessity to have uniformity in personal matters of all the citizens. The Supreme Court in its landmark judgment in Mohd. Ahmed Khan v. Shah Bano Begum (A.I.R 1985 SC 945), pertaining to the liability of a Muslim husband to maintain his divorced wife beyond "iddat" period, who is not able to maintain herself, held that Section 125 of the Code of Criminal Procedure which imposes such a obligation on all husbands in secular in character and is applicable to all religions. The Chief Justice Y.V. Chandrachud held:

"It is also a matter of regret that Art.44 of our Constitution has remained a dead letter......There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a Uniform Civil Code for the citizens of the country and unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. "The court has also in para 33 of the above judgment referred to Dr. Tahir Mahamood's book 'Muslim Personal Law' in which the author had made a powerful plea for framing a Uniform Civil Code for all citizens of India. It may be recalled that the Shah Bano 's case paved the way for introducing "The Muslim Women (Protection of Rights on Divorce) Act, 1986.

In Sarala Mudgal v. Union of India (AIR 1995 SC 1531) Kuldip Singh, J. held-" the respective personal laws permitted by the British to govern the matters relating to inheritance, marriages etc. only under the regulations of 1781 framed by Warren Hastings. The legislation - not the religion - being the authority under which personal law was permitted to operate and is continuing to operate, the same may be superceded/supplemented by introducing, a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The successive governments till date have been wholly remiss in their duty of implementing the constitutional mandate under Art.44." Therefore the Supreme Court requested the Government of India, through the Prime Minister of the country to have a fresh look at Art.44 of the Constitution of India and "endeavour to secure for the citizens a Uniform civil code through out the territory of India".

The Supreme Court went a step backward in its earlier stand in Lily Thomas v. Union of India (AIR 2000 SC 1650) wherein a Division Bench of the Supreme Court held that the court had not issued any direction for codification of common civil code in Sarla Mudgal v. Union of India. The court referred to judgment in Ahmedabad Women Action Group v. Union of India (AIR 1997 SC 3614) where it was held that the observation made by the Judges in the Sarla Mudgal case pertaining to the desirability of enacting the uniform civil code were made only incidentally.

But the Apex Court has once again clarified its stand on Art.44 in John Vallamattom v. Union of India (2003 (3) KLT 66 (SC) = AIR 2003 SC 2902), wherein the court held that it is a matter of regret that Article 44 of the Constitution has not given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies. A few words in the said decision rendered by Chief Justice V.N. Khare is quoted here "Art.44 provides that the State shall endeavour to secure for the citizens a Uniform Civil Code through out the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Art.25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Arts.25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation". The other two Judges of the bench, Justice S.B. Sinha and Justice AR. Lakshmanan also agreed with the Chief Justice.

Right from Champakam Dorairajan decided in 1951 till the latest John Vallamattom's case in 2003 the Supreme Court has been interpreting the Directive Principles in their widest sense so as to make them judicially enforceable. The judiciary has by and large served as an agent of positive change in this regard.

There is a misunderstanding and misconception in the minds of intellectuals and the general members of minority groups particularly the Muslims that the Uniform Civil Code is forcing the Hindu personal law on other religions. It is a wrong notion. The best contents from the personal laws of each religions, viz- Hinduism, Christianity, Islam etc. will have to be taken when a draft Uniform Civil Code is drawn up. Contentious issues like succession, marriage, divorce, custody of children etc. will have to be sorted out after discussion with every community in the country. It will be more easier if the draft is accepted by all religious denominations in India before it is made a law in the Parliament.

Looking back to 1955-56 when the Hindu Code was promulgated in the Parliament, there was wide spread opposition from the Hindu fundamentalists who voiced their strong opposition and tried to scuttle the Bill. Even the then President Dr. Rajendra Prasad disagreed with the Prime Minister Jawaharlal Nehru with the Hindu Code. Nehru displayed great political will in passing the Hindu Code in Parliament. At that time there was polygamy amongst Hindus. There were even retrograde practices like Sati and many other customary practices that were opposed to good conscience, equity and thereby affecting gender justice. Hence the passing of the Hindu Code is a case in point in achieving to a great extent if not fully in advancing gender justice, departing from fundamentalists religious practices.

Of the primary sources of law, the most important and effective source is the legislation i.e., the law made by the legislature generally. Therefore so long as the State does not make the necessary legislation to implement the directive principles, the implementation of which is possible at this juncture due to the all-round development of the country, mere positive interpretation by the judiciary would not be sufficient to enforce them. The directive principles were never meant to remain as such in perpetuity. The mandate of the Constitution is that they must be implemented as and when the time is ripe politically, economically and socially.

It is long overdue for a legislation to be enacted in the Parliament considering the question of gender equality. So Parliament should consider this matter seriously and take necessary steps to implement the directions given by the Supreme Court of India in John Vallamattom's Case by framing a Uniform Civil Code in the country so that gender justice can be achieved.

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[Para 5 to 7 excerpts from the book Judicial Activisim in India, 1 st Edition by Dr. G.B. Reddy, Gogia Law Agency (Hyderabad).