Some Thoughts on Anglo-Indo-Saxon Antiquities

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

Remember the wicked words of Winston Churchill when the Indian Independence Act was introduced in the British Parliament? “Power will go to the hands of rascals, rogues, freebooters; all Indian leaders will be of low caliber & men of straw. They will have sweet tongues & silly hearts. They will fight amongst themselves for power .............”.  Those words were spoken in desperation by a conceited leader who did not want to go down in history as the director of the climax scene of the collapse of the British Empire, but who wanted to be called back to “divide and rule”. England had more to lose than what we had to gain at our independence. It is a different matter, but it does matter, that even after 65 years of “sweet tongues, political squabbles & silly hearts”, we have been unable to secure “a sovereign, socialist, secular, democratic republic”!

Indian rulers periodically became victims of the Greek, the Huns, the Mongols, the Persians, the Portuguese, the French etc., and the English, who all unabashedly denuded India of pride and wealth. Modern attackers (We, the People included) have Internet, Swiss banks and St. Kits to hide ill-begotten gains. Something that the ancient and medieval marauders did not need to have!

Scenario I: During “the Raj”, there was only Indian Civil Service for judicial and administrative services without clear demarcation between duties and functions. Our Constitution separated the Judiciary from the Executive. English legal system, all of whose known traditions are not known to be wholly acceptable, was an anachronism in the Indian context. Reclusive hermits and hermitages had to eventually yield to legal wishes of the People, in the name of liberty, equality and fraternity. Complacence at the Constitution and complexities by liberal legislation led to the collapse of the Anglo-Saxon system, an inevitable consequence of a 100% (?) democracy.

The advantages of colonialism have been, according to me, mainly industrialization, exposure to English language and abolition of principalities. English language, for a fact, is a common link across vast communication barriers in India. We have eminent writers, jurists and Judges whose command over English is legendary. I recall the story of the Indian student who corrected his English teacher from UK. That teacher was aghast first and apologetic later. We gave the world Sanskrit and consequent chronicles, which the rest of the world now clutches for Light. It is idiotic that we flee to Germany or USA to hold international conferences on Sanskrit and mother Malayalam. We find, in China, Japan, Russia etc., that higher education is imparted to international student community in local dialect and not English, without resultant diminution in expertise.

Scenario II: India has become a frontrunner in modernization. She has refused to be a dumping ground for used and useless foreign goods. We have top personnel - in numbers and brains - in Medicine, Physics, Engineering, Law, Economics, Education, Literature, Armed Forces and whatever. If personal wealth is a parameter, many Indians belong to “The Rich” club. Had the Raj continued to “divide and rule” us, this would not have been possible. Are we not exporting maximum human intelligence to the rest of the world? It is regrettable that such intelligence is not used to care for Mother India, whatever be the reasons for brain-drain. I might mention here two dramatic scenes every Indian should watch, which always rush to me whenever I find Indian pride being hurt. One is of Sivaji Ganesan bombarding Jackson in “Veera Pandya Kattabomman” (a childhood favourite) and the second, more recent, that of Akshaykumar firing a full volley at Pringle in “Namastey London”. Real morale boosters!

We had Mundhra, Nagarwalla or Harshad Mehta and others. We had coffin brokers at Kargil and “pre-paid-per-prepared-question” brokers at you-know-where and “no-ball” players who played ball, to mention some others. Undoubtedly, 2G tops the list. We have Union/State-wise scams and scandals, keeping in tune with Union list and State List, too many to be listed anywhere. We are our own pawns, we are our own brokers and we elect the pawnbrokers, bargaining for division and not for unity and integrity of the nation, a glorious nation with 100+ religious ideologies, 1,000+ languages, 10,000+ castes, 1,00,000+ secular misconceptions, million+ political ambitions and billion+ individual aspirations?! We gave the world Gandhiji, who must be squirming at 2G and other “ji”s who have institutionalized bad conduct.

Coming to English traditions and culture in the justice delivery system, despite my own affinity to it, nothing more need be kept in mind than the proposal to change the mode of addressing Judges and the decision that Judges should declare their assets. One cannot also forget the mighty words in (1993) 4 SCC 288: 1993(2) KLT 581: that “Judicial service is not service in the sense of ‘employment’. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State...................  The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.......The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it”. Thus, there has been much deliverance from English court culture, compelling courts to become behaviorally “Janakeeyam”, whether one can accept it or not. With duty comes responsibility, so spoke the elders.

http://www.legalserviceindia.com/article/l164-Should-Judge-be-a-Hermit.html mentions, inter alia, that “George Mikes in his article “Professional Deformities” writes as under: “it was not that Judges were, or are, Sadists. Very few of them are. But sooner or later most of them develop a ‘God Complex’..........when, in other words you are treated like God, then it is difficult not to believe in your divinity. You are addressed as “my lord”, almost like Him, so naturally you are inclined to believe...............Too much familiarity with those who frequently visit their courts on official business slackens the authority..............”.

Scenario III: That takes me to a few of the agonized words of Basant J. I set upon this monologue because of a pointer therein that “Code Red” is overdue in all quarters. I am sure many laymen, lawyers and Judges share his sentiments. I too have the infrequent occasion to compulsively pooh-pooh comments on “20%” because I would like to continue to believe that the 20% Hydra is yet to rear its heads in these parts. Bringing the past back cannot remedy present maladies or prevent evil. (1995) 5 SCC 457 lays down that: “Every aberration by a judicial officer in the performance of his duties, which may not be good conduct, cannot be misbehavior, but it may produce deleterious effect on the integrity and impartiality of the system. When the edifice of judiciary is built on public confidence and respect, damage by one Judge would rip apart the entire Constitutional structure”. I sincerely do not know whether to draw inspiration and guidance from this reasonable declaration of law.

Indian judiciary has been a beacon to the rest of the world, though we have borrowed liberally from Cardozo, Frankfurter, Denning and Co. That institution gave the world “Kerala Education Bill, A .K. Gopalan, Kochunni, Cooper, Dhulabhai, Kesavananda Bharati, Eachara Warrier, EMS, Menaka Gandhi, Minerva Mills, S.P. Gupta, All India Judges, T.M.A. Pai, Mandal, Unnikrishnan” and many other landmark decisions which will be applauded every time they are cited, like Mozart or Beethoven or Zubin Mehta. Encore, Encore, India! Our courts have kept at bay many an errant legislature, leader or public servant. We have proved time and again that the judicial pen is mightier than any gun or gang. Recent incidents in the nation and judicial orders relating to them emphasize the situation. That pen drew a coma many times, in the name of restraint and probity, where ordinary mortals would have drawn sword. Let us humbly be proud. Let us not let the odd apple spoil the lot.

Prognosis: The future is not bleak; it is live and awake, in the wake of the past.

Gain and Loss

(By V.K. Babu Prakash, Chief Judicial Magistrate, Pathanamthitta)

Justice R. Basant and Justice V. Ramkumar, two brilliant Judges of High Court of Kerala have demitted their office last month on attaining superannuatian. One does not need a second thought to emphasize that it really is a great loss to the institution of High Court of Kerala and the State Judiciary as a whole. These two wonderful Judges made tremendous contributions to the development of law and concept of Justice in many ways. Justice R. Basant although contemplated mainly on Criminal Jurisprudence, indeed in his last term of office indulged in many other topics of law which imprinted the finger prints of his skillful innovations. On the other hand Justice Ramkumar is a master craftsman on all the fields on which he focused which implanted the midas touch of him. When Justice Ramkumar is more practical, thread bare and pedantic in his approach and analysis to case laws, facts and evidence, Justice Basant is theoretical, philosophical and anxiously holistic to his approach and analysis on law and concept of Justice. Justice Ramkumar’s essential interest treads on sessions trial, facts and figures in the Judgements of lower courts, cognizance, investigation and civil laws, Justice Basant’s interest concentrates on appreciation of evidence and the intricate areas of Section 3 of the Evidence Act regarding facts proved, proof beyond doubt and proof beyond reasonable doubt and family laws and personal laws. Essentially, these two Judges are birds of the same feather, who though flew on different vistas far and few on their own, at last reached the same destination of Justice in their conclusions. Judicial officers and lawyers who attended the training classes and speeches of these stalwart Judges would definitely have fallen fans for their erudition and excellence. 

Law is an evolving process which turns and twists like a jelly fish according to the tide of the current in the society. Dynamic minded Judges function like catalytic agents who trigger and change the mobility of the Jelly fish and the current in the pond of Justice. It makes the pond a more lively and vibrant living organism than a placid pond which does not attract social attention. Judges like R. Basant and V. Ramkumar are beacon lights who help navigate the subordinate Judges to right direction and reach the shore of Justice safe and secure. The verdicts of these Judges are like flags to flutter high in the horizon of Jurisprudence. And their loss is a great gap which is fathomless, for sure.

Life v. Spirituality –  'A Journey to Salvation' (Based on the order of

Supreme Court on Hajj Pilgrimage -- Union of India v. Rafique Shaikh Bhikan)

(By M.K.S. Menon, Advocate, Supreme Court of India)

For the discharge of pious obligations and the journey of pilgrimages, India is always reckoned as one of the ultimate destination because of this nation’s warmth in accepting every religion, thoughts and practices.  Mecca is yet another place where one can look up to get enlightened of the true spirit of ‘Islam’, as professed by the prophet in its true spirit.  Recent order of the Hon’ble Supreme Court, on Hajj Policy of Government of India 2012, is delving in to this truth with utmost humility. Few quotations and paragraphs in this regard appearing in the judgment, which has unearthed the inner fabric of this great religion, are repeated here for the purpose of this article.

“We, therefore, direct the Central Government to progressively reduce the amount of subsidy so as to completely eliminate it within a period of 10 years from today. The subsidy money may be more profitably used for upliftment of the community in education and other indices of social development.

 The Noble Qur’an (English Translation of the Meaning and Commentary) published by The Ministry of Islamic Affairs, Endowments, Da’wah and Guidance of the Kingdom of Saudi Arabia which supervises King Fahd Complex For The Printing of The Holy Qur’an in Madinah Munawwarah. 

On being asked the meaning of the word “Al Sabeel’ occurring in the verse, the Prophet is reported to have said, 'provisions for journey and the means of transport’ (Bulughul Muram by Ibne Hajr, 667 & 713: Jassas Razi, Ahkam-ul-Quran, Darul- Kitab-ul-Arabi Vol. 2  Page 23: also in Tafseer Ibne Kaseer published by Tameer-e-Insaniyat, Urdu Bazar, Lahore, Vol. 1 Pages 458-459).

On being asked when Hajj becomes obligatory, the Prophet is reported to have said when the provisions of journey and the mode of transport are available. (Tirmizi 813).

It is related that people from Yaman used to come for pilgrimage without any provisions with them, saying that they were  people trusting in God and when they came to Makkah, they resorted to begging: The Holy Qur’an thus addressed this  issue in Verse 197 Surah 2. Al-Baqarah (Bukhari, 1523).

197. The Hajj (pilgrimage) is in the well-known (lunar year) months (i.e., the 10th month, the 11th month and the first ten days of the 12th month of the Islamic calendar, i.e., two months and ten days). So whosoever intends to perform Hajj therein (by assuming Ihram), then he should not have sexual relations (with his wife), nor commit sin, nor dispute unjustly during the Hajj. And whatever good you do, (be sure) Allah knows it. And take a provision (with you) for the journey, but the best provision is At-Taqwa (piety, righteousness). So fear Me, O men of understanding! Hajj is obligatory when one has control over expenses of travelling and mode of  transport whether as owner or on hire. Borrowing or using the means owned by someone else is impermissible. If someone offers gift for going for Hajj one is within rights to accept or reject the offer. The expenses of travelling and mode of transport means that one should have, besides a house for residence, clothes, household articles, sufficient money for travelling to Makkah and for coming back; if there are any loans, to repay them and to leave behind sufficient money for expenses on those dependent upon him.

(Fatawa-e-alamgiri edited and corrected by Abdul Latif Hasan Abdul Rehman Darul Kutubul Ilmiya Beirut, Lebanon 2000 Vol. 1 Page 240).

See also: the Religion of Islam by Maulana Mohammad Ali S. Chand and Company Pages 525-526.

See also: Kitab-ul-Fiqh by Abdul Rehman Al Jazeeri translated by Mr. Manzoor Ahsan Abbassi, published by Mehqama Auqaf Punjab, Lahore, 1977 Pages 1034-1035.

See also: Qamusool Fiqh by Khalid Saifulla Rehmani, Kutubkhana Naiyeemya Deoband 206, Vol. 3 Pages 195-196 . 

Before leaving the issue of Hajj subsidy, we would like to point out that as the subsidy is progressively reduced and is finally eliminated, it is likely that more and more pilgrims would like to go for Hajj through PTOs.  In that eventuality the need may arise for a substantial increase in the quota for the PTOs and the concerned authorities would then also be required to make a more nuanced policy for registration of PTOs and allocation of quotas of pilgrims to them. For formulating the PTO policy for the coming years, the concerned authorities in the Government of India should bear this in mind. They will also be well advised to invite and take into account suggestions from private operators/travel agents for preparing the PTO policy for the future.”

The underlined portion (underlined by the author) is the part which reflects, the true spirit of the religion, which conveys the message that ‘in this material world, one should do his duty first i.e., to make arrangements not only for himself but also for those who are dependant on you, and if there will be surplus for you and your dependant’s for the future existence, after meeting the expenses on your pilgrimage to Mecca, then you think about going to Mecca’.  Means, Hajj is a dream you can cherish, provided you did everything that you can to ensure your physical existence in this world comfortable, which includes your duty towards those who look at you as the source for their very existence. The conflict between hypocrasy and reality has been explained by a single and gentle stroke of practical vision by the prophet. He wanted us to live gracefully first and then to think about spirituality. This great message has been conveyed once again and converted it into binding precedent, taking its position as a mile stone in the History, to be reckoned by the future generation, as an authority on interpretation of the true spirit of Qur’an.

The above referred quotes from the holy book ‘Qur’an’ appearing in the order, gives a clear direction in life as to how to become religious and also gives a vision to those who deals with religion, as to how to interpret the philosophy meaningfully.  Modern religious heads of every religion makes comments without realising that, what they preach are not practical in life. A small story about an half-baked modern philosopher and religious guru will be of some interest for the reader.

Mostly everyone wants to pretend that he is an exponent of philosophy. The orator who was teaching the principles of ‘Maya’, (illusion) in this story was also not an exception to that rule. He was delivering the speech in an open ground and the gathering also was pretty exited since he was so good in carrying the crowd to eternal ecstasy. He was trying to enlighten his audience by narrating the concepts of ‘maya’, that everything is an illusion and the fear is the out come of this illusion. He wanted everyone to realize that once it is understood that the life itself is an illusion, then there is no scope for fear in the life. All on a sudden, an elephant which got loose from the control of the mahout, came running from the nearby road towards the crowd sitting in front of the orator. Since the elephant was visible only for those sitting on the stage and not to the others since they were facing towards the podium, it was the orator who saw the elephant first and started running. When the disciples found the great man running, they also started running and they fortunately escaped to tell us this story.  Once the whole commotion was over, one of the youngster who was genuinely listening the preacher to gain some knowledge, asked the guru as to why he ran by seeing the elephant, because as according to the preaching already made by the guru, the elephant also is an illusion. The clever guru with his usual sense of humor said:

“we know that it is illusion but the elephant does not”. 

This is the height of scintillating philosophy preached by half baked teachers of modern era and this kind of understanding about religion is misguiding even the genuine searchers of the truth. Unfortunately many of our religious epics are neither completely dissected nor self explanatory because there are many unexplained episodes which are still pushing the enthusiastic believer into darkness.

Mahabharath epic of the mighty warrior ‘Drona’ and ‘Dharmaputra’ is one among them. From the episode it appears as though Drona was  killed by deceit played on him by none other than  ‘Dharmaputra’ with the active chipping in of Sree Krishna. The story goes like this:

“Drona who was the great exponent in archery and teacher of both Pandavas as well as Kauravas, happened to land in the ‘Kaurava side’ due to his fate, was destroying the entire ‘pandavas’ during Kurukshetra war, and at one stage Arjuna found it difficult to stop Drona. When Sree Krishna found his disciple drowned in pessimism, advised the Pandavas to take advantage of the virtue of ‘Dharmaputra’, the eldest brother of pandvas well-known for his unblemished record of telling truth and nothing but the truth. His words alone had carried sufficient weight in the minds of Drona. He was asked to name one elephant as ‘Ashwathma’, (name of the son of Drona) and to kill it first. Then to go to the battle field and declare  'Ashwathama Hatha’(Ashwathama is dead ). In order to inveigle the bleeding conscience of 'Dharmaputra’, he was permitted to say, ‘atha Kunjara’(but it is an elephant), at a minimal sound not enough to be heard by public at large. Even the truth came out later, but it was too late because Drona who collapsed on hearing the words of Dharmaputra was instantaneously killed by Arjuna. ” 

This story depicts Dharmaputhra that, he quoted half truth as the real truth and the real truth was kept away from the public. Here one has to make an effort to look beyond the canvas. No doubt, when you look at it from the angle as Drona as an individual, what is done against him is treachery. But when you look at it from the pitch of larger public interest, for what ever be the reason, Drona was on the wrong path of ‘Adharma’, and for ensuring the wellbeing of the nation, Dharmaputhra had to opt  the nation more than Drona as an individual. Under the ‘rajneethi’, a slant approach while interpreting ‘absolute virtue’ is necessary.  The episode is also extending justice to Drona, whereby, his greatness is magnified, since ‘Dharmaputhra’ the symbol of truth,  had to deviate from his path of ‘absolute truth’, so as to conquer Drona. Drona was justified for joining the ‘Kaurava’ side because, his allegiance was to his King and it was his duty to battle for the King. Here most important aspect to be understood is that it is ‘adharma’ got defeated and not Drona. That is why Bhagwath Geetha is giving significance to the term, ‘Dharma Samsthapanarthaya’; means, nothing can be an obstacle in establishing Dharma.  This approach is quite often visible in the judgments of the Apex Court. Even though from the view point of individuals, many orders passed may not appear to be palatable to our judgment. However in the larger public interest of the entire nation those are inevitable mild aberrations.  Concept of justice is impulsive. Justice as suitable to mother-in-law need not be right to the daughter-in-law. However the court may have to draw a line, very often at the cost of displeasure, of either of them.

The Hajj order of the Supreme Court, in its erudite language explains that Hajj according to the prophet is a sacred journey to be taken up by a contented Muslim and one shall not have mere business intention when you are arranging facilities for Haji-s. However the prophet it appears had never said that you should altogether ignore the realities of life. Prophet wanted every one to ensure that he earns for a decent livelihood. If that could be achieved through taking up the duty of assisting the pilgrims for Hajj, then no one can find fault with it. During that process even if you can make a decent living, that also is perfectly justified. Therefore it is also the duty of the responsible Government to facilitate as many persons/PTOs as possible to enter in to this noble venture and also to ensure that it shall not be permitted to be highjacked by a few affluent. Proper rules to ensure that this noble mission not being converted into a mere business also will have to be framed. The judgment has taken maximum effort to achieve this goal. It is the most audacious step to direct the removal of Hajj subsidy. Directions to monitor special quotas of 11,000 seats to be reserved is the icing on the cake.  Finally, further direction to stop the ‘Goodwill delegation’ is the pin-up on the crown. 

It appears that only one aspect did not dig up sufficient consideration of Hon’ble Supreme Court. i.e., regarding those PTOs who are having monopoly in the field.  Order is silent about those who are sending large number of Haji-s and making Crores of rupees within 2-3 months. No doubt, Division Bench of High Court of Kerala and Madras in the year 2010 and Bombay High Court in 2011 made verdicts in this direction but was not upheld by the Hon’ble Supreme Court. Normally when the matter reaches the Hon’ble Supreme Court,  it will be too late, and the Hon’ble Court hardly get time to deal with the matter because Hajj pilgrims had to start within a short time and if any interim order is passed, it will jeopardize the  pilgrimage of Indian hajjis. In fact the current order has been passed as an interim order in the Special Leave Petition filed against the Judgment of the Bombay High Court on 2011 policy and the 2012 policy was directly placed before the  Hon’ble Supreme Court much early.  Hon’ble Supreme Court through the present order tried to address almost all aspects of the pilgrimage. If above referred point also would have been taken in hand, then there is no scope for litigation on this issue in the future, which is bothering the Apex Court since 2003. If some direction was made to ensure the uniform distribution of quotas, by  acknowledging the great leap of social reform in India achieved through the inclusion of the word ‘socialism’ in the Preamble of the Constitution of India, then this order would have been reckoned by the entire world as another feather on the cap of Indian democracy. 

Supreme Court order points out that, till 2003 Saudi Government used to issue passes directly to the agents. However when the quota took the color of a largesse in the hands of the Government of  India,  it created hope in the minds of many honest and hard working people to get a source of living with decent return. Like any other subject, whether it is teaching, health or religion, when wealth and riches takes the front seat, richer and people with extra social influence, always managed to grab the biggest share of the bite. Major break through was achieved by the Hon’ble Supreme Court in the field of employment by chipping in the concept of ‘creamy layer’. All the three mentioned above avocations cannot be permitted to be down-graded as a mere business but has to be reckoned only as a service. However if money is involved, it hardly retain its noble color as service simplicitor. It is easy to criticize. It is like preaching philosophy, as narrated in the story of the elephant, but the truth is always very frightening. Striking the balance is always the guiding factor which thrive this country in which you will find unity in diversity, and this safety valve help us to survive as a single nation.  

One has to realize that a surgical knife cannot claim that it is the knife who is performing the surgery and the fact is that there is always a surgeon who performs it, upon whom the knife has no control. The knife can only volunteer itself in performing  the surgery and can only try to remain happy since the knife was found to be useful by the surgeon. Lawyers and the Judges actively struggling in the dispensation of justice, also may realize that they also fall under the same category of a surgical knife, and cannot afford to think that they are responsible in doing justice but may whole-heartedly accept the truth that there is always a super surgeon who decides ‘what justice is’.

Every year there is Hajj Policy and it may appear as though the single calculated motive of the government machinery, is to ensure that new entrants shall be prevented from entering the field so that those big players who had already made their kingdom can, not only retain their kingdom but also can increase its size with a snail pace. The latest direction of the Apex Court to remove the ‘Hajj subsidy’ even though made with great expectations, but it also shall be a ‘shot in the arm’, for those big players and cannot benefit the ordinary and needy, unless special care is taken by directing necessary amends to the current policy of the government.Wordings of their Lordships reads as follows:

“….. Before leaving the issue of Hajj subsidy, we would like to point out that as the subsidy is progressively reduced and is finally eliminated, it is likely that more and more pilgrims would like to go for a Hajj through PTOs. In the eventuality, the need may arise for a substantial increase in the quota for the PTOs and the concerned authorities would then also be required  to make  more nuanced policy for registration of PTOs and allocation of quotas of pilgrims to them…….”

Hon’ble Court made it apparent that the policy shall be nuanced enough to contain the principles of equality and shall not be violative of Article 14. It may create history, if further directions are given to ensure non-accumulation of quotas in limited hands. The policy of the Government, till date always created an impression that it is made to protect the interest of those established PTOs. This fear has to be addressed.  Hon’ble Supreme Court itself has said:

‘Justice is not only to be done, but it shall also appear to have been done’.

The Saudi Arabian Government believes in the socialist government of the famous country named ‘India’. That is why they decided to entrust the job of issuing the quotas for Indian Hajis, to Indian Government. In such circumstances it become the duty of the India Government to ensure that the administration is acting in consonance with what we have projected through our Constitution. As and when the executive failed due to what ever be the reasons, judiciary never stepped back from addressing the issue effectively.

Hon’ble Supreme Court referred to the words of the Attorney General who was justifying the introduction of various conditions to stop small operators from entering the field. They read as follows:

“This condition also must be viewed keeping the interest of the pilgrim as paramount. Learned Attorney General submitted that according to the Saudi Regulations, a PTO must be allotted a minimum of 50 pilgrims. He further pointed out that Hajj is a Pilgrimage on foreign soil and it comprises of a number of rituals. Since a majority of the pilgrims would be going for Hajj for the first time, the PTO needs to extensively brief the pilgrims about the rituals and the procedure to be followed during Hajj. Separate classes for briefing the pilgrims need to be conducted by the PTO. Individual agreements are required to be made with the pilgrims by the PTOs for which the pilgrims need to visit the office of the PTO. All logistics including ticketing, accommodation, visa processing etc., has to be made by the PTO for which they need the presence of pilgrims. Further, this condition is laid down to make sure that only genuine operators approach the ministry for Hajj quota, i.e., those who have a proper and well maintained office and who are genuinely  interested in taking the pilgrims to Saudi Arabia. The condition was further meant to scrutinize the PTO who sell their quota to other PTOs. The Attorney General stated that during the 2010 Hajj, the Ministry got complaints from various quarters regarding black marketing of seats by some of the PTOs. It was informed that some of the PTOs, after getting registration and allocation of seats, instead of carrying the pilgrims themselves sold the seats to other PTOs. The Ministry decided to take action against such unscrupulous PTOs but it found that many of them had no offices at all. The addresses furnished by them were fake and they were all fly by knight operators. A genuine PTO should be having an office with a reasonable area. The condition is provided to protect the interest of the pilgrims. On a consideration of submissions made on behalf of the parties, we see no arbitrariness and unreasonableness in the requirement of minimum office area (carpet) of 250 sq.ft. Many objections were raised against the requirements to furnish documents showing minimum annual turn over of Rs. 1 crore for the years 2009-2010 or 2010 -2011. ……….”

No doubt the statements of the Learned Attorney General may have to be taken as the view of a responsible Government. However a word of caution also may not be out of place. No one can dispute the fact that there shall be some screening method sufficient enough to ensure the comfort of the pilgrims and genuineness of the PTOs shall be monitored properly. Therefore a  permanent office with minimum of 250 sq.ft may be justifiable. On the other hand, the clause mandating  minimum turnover of Rs. 1 crore, appears to be irrational. As per the statistics, by taking 50 pilgrims, the turnover of a PTO can never be Rs. 1 crore. The concept of one crore turn over can safe guard the interest of only those who has got larger quotas. By one policy the number of pilgrims allotted to new comers is limited to 50 pilgrims and then by the same policy asking for Rs. 1 crore turn over is definitely made with ulterior motives. They are achieving some thing which is not possible directly but by indirect method. There is no policy to split up the existing large operator’s quotas. Then the clear intention is to keep away the new and small operators. Genuine persons who are involved only in Hajj operations are conveniently pushed aside and others who are doing general business of tour operations with larger turn over are preferred. Thereby the holy Hajj pilgrimage has become the monopoly of wealthy tour operators. Then the hope expressed by the Hon’ble Supreme Court, regarding the possibility of moving more pilgrims to small operators/ PTOs from the Government quota shall remain as a beautiful picture drawn in the shallow water. 

Similarly, when some born manipulators are capable enough to commit some malpractice in handling the pilgrims, can that be a valid explanation to introduce strange conditions which has got no nexus with the purpose to be achieved. Can that be reckoned as a panacea to stop malpractices.  Just because some one has got more than Rupees one crore turn over, can be reckoned as a Samaritan.  Can anyone vouchsafe that the so called Samaritans with large number of quotas are taking care of every need of the pilgrims. Government want every one to close the eyes and then to say that it is dark.  Hon’ble Supreme Court in various judgments, time and again, reminded us that taking out ‘an artificial cut of’ out of the hat can never be accepted as reasonable unless it is proved that it has got a nexus sufficient enough to dislodge the contrary presumption. 

At this juncture it is necessary to make a soul search to find out as to whether the Government of India had made any genuine attempt to avoid monopoly in this area.  Small PTOs are approaching the government so as to allot quota but their intention was reckoned as ‘business purpose’,  because they are making more than 50 lakhs within 2-3 months. However one shall not ignore the fact that there are BIG players making more than Rs. 50 Crores with in the same period of 2-3 months. Did the Government do some thing to split up the existing quotas and to distribute it to the so called genuine PTOs with 250sq.ft office space and Rs.1 crore turn over. Answer is a big ‘NO’. Absolute socialism may be a ‘misnomer’, but a sincere effort to create awareness of socialism will be of great help. One can easily discern from the experience, that it is the elite members of the same religion and casts stand in the way of doing justice to the fellow human beings, in the tedious but most religious journey called ‘life’. That is why the Prophet wanted to remind us ;

‘Learn to live gracefully first and then think about spirituality’.

"Age", "Agency" and "Consent"

(By Flavia Agnes*, Advocate, High Court of Bombay) 

A sense of doom  and despair seems to be pervading among some women’s groups over the  Delhi High Court Judgment (Tahra Begum v. State of Delhi  Ravindra Bhat and G.P. Garg, JJ,  9th May, 2012  reported in  (2012 (3) KLT  7 (Del. H.C.) which permitted a minor (almost 16)  year old girl to marry the man of her choice rather than restore her back to her parental authority. Some groups such as the Bharatiya Muslim Mahila Andolan who have been campaigning for codification of Muslim law have asked for laying down 18 as the minimum age of  marriage for girls (and 21 for boys), the underlying presumption being that all underage marriages must be declared as void.  

Before we come up with a knee jerk response to the hype created by the media and bite the bait,  we need to have greater clarity on whose side are we (the feminists) batting in this confrontation between  parental authority and the active  agency expressed by a young, teenaged girl. Also I wish to raise a connecting question -- if the Muslim law was codified and minimum age for marriage was stipulated, as has been done under the Hindu Marriage Act, would the High Court have responded differently?  Would the Judges have sent the girl back to her parental custody?  And the last question – could that have been construed as a “progressive ruling” by us, those claiming to be “feminists”?

Rather than speculations, it would be more prudent to make out my case by citing judgements of various High Courts  pronounced in the last decade.  The facts of these cases  were similar to the one that is currently being condemned:  A young girl  elopes with a boy of her choice. The girl’s parents file a case of rape / kidnapping or habeas corpus against the boy and get him arrested merely on the basis that the girl was below the “age of consent” or “age of marriage” as the case may be.  When the girl is produced in court, she defies parental authority and deposes that she has voluntarily eloped with the boy and has married him. Upholding her wishes, the courts permit the girl to accompany her husband / lover, rather than restore her custody back to her parents. The only difference – the parties were Hindus and not Muslims as in the present case. Here is a glimpse of some of these rulings: 

In Jiten Bouri v. State of West Bengal, [II (2003) DMC 774] Cal,  the Calcutta High Court, while permitting the minor girl to join her husband, declared as follows: “Although the girl has not attained majority yet she has reached age of discretion to understand her own welfare which is a paramount consideration for grant of her custody. She may not have attained marriageable age as per the provision of S.5 (3) of the Hindu Marriage Act but marriage in contravention of age can neither be void nor voidable … The girl has insisted that she wants to join her husband and does not wish to return to her father’s place.” 

In Makemalla Sailoo v Superintendent of Police Nalgonda District  [II (2006) DMC 4 AP],  the Andhra Pradesh High Court held that although child marriage is an offence under the Child Marriage Restraint Act, such marriages are not void as per the provisions of both, the Child Marriage Restraint Act as well as the Hindu Marriage Act.  

In Manish Singh v. State, NCT Delhi [I (2006) DMC 1], the Delhi High Court held that marriages solemnized in contravention of the age are not void. The court commented: “If a girl of around 17 years runs away from her parents’ house to save herself from their onslaught and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy.” The girl had deposed that she had married out of her own will and was desirous of living with her husband. The court ruled that once a girl or a boy attains the age of discretion and choose a life partner, their marriage cannot be nullified on the ground of minority and that it is not an offence if a minor girl elopes and gets married against the wishes of her parents. 

In Sunil Kumar v. State, NCT Delhi [I (2007) DMC 786] the Delhi  High Court reaffirmed this position. The girl’s parents were adamant and were not amenable to any reconciliation and wishes to sever all relationship with her. The girl was not willing to return to them. Hence she was permitted to live with her husband. 

In Kokkula Suresh v. State of Andhra Pradesh [I (2009) DMC 646], the High Court reaffirmed that the marriage of a minor girl below18 years is not a nullity under the Hindu Marriage Act and the father cannot claim her custody.  

In Ashok Kumar v.State [I (2009) DMC 120], the Punjab and Haryana High Court commented that couples performing love marriage are chased by police and the relatives, often accompanied by musclemen and cases of rape and abduction are registered against the boy. At times the couple faces the threat of being killed and such killings are termed as ‘honor killings’.  

All these marriages were termed as “elopement marriages” and hence we need to examine this term which is used for marriages contracted without the consent of the girl’s parents. At times the girls are below the permissible age of marriage, and at other, they are projected as minors by their parents in order to invoke the state power by using the provisions of the Child Marriage Restraint Act (CMRA). The discussion on elopement marriages bring to the fore ways in which multiple social subordinations—caste, community, region, religion—intersect with patriarchy in order to hone in the sexual choices of defiant young women within established social mores. Women who exercise active agency to defy convention pose a threat to the established social order and hence are confined by reframing consent itself.  In this discourse, “consent” assumes a different dimension and gets embedded in assumptions about rational choice and parental authority, rather than choices made by women themselves.  

Hence judgements such as the one discussed above as well as the judgement which is sought to be condemned, which restrain the police from forcing women back into parental custody or the protective custody of the State, serve as a benchmark for a liberal interpretation of constitutional safeguards of personal liberty and individual freedom.  

It is indeed ironical that the provisions of the seemingly progressive CMRA come to the aid of parents to tame “defiant” young women, prevent voluntary marriages and augment patriarchal power than to pose a challenge to it. When child marriages are performed by families and communities, the provisions of this statute are seldom invoked. Many a times a girl who is restored to parental custody is married off, while is still a minor, against her wishes, to the man of the parent’s choice. The patriarchal bastions are too strong and well fortified for a modernist feminist discourse to enter and change social mores through legal dictates. The only sphere in which these provisions come into play is during “elopement” marriages where patriarchal power colludes with the state power.  They bring into sharp focus the vagaries of the term, “consent”. For the family and state authorities, lack of age becomes synonymous with lack of agency to express sexual desire and bodily pleasure. 

While this is problematic, even more problematic is the way in which a certain kind of feminist discourse engages with notions of age, agency and consent when there is a rupture between these terms. This raises some discomforting challenges to the feminist movement. 

Firstly, is it possible to place “consent” on a superior plane when there is a disjuncture between “age” and “consent” invoking the notion of “agency” which gets operational during elopement marriages? Secondly, does the response of a conservative institution such as the judiciary tends to be more nuanced and pro-women than the feminist demand for declaring all such marriages as void when such marriages contravene the stipulation of age despite a visible display of consent and agency? And thirdly, will invoking the Islamic notion of “age of discretion” rather than merely “age of majority” or “age of marriage” aid the defiant young women who challenge patriarchal authority, while exercising unconventional sexual choices? 

When we examine the agency which a young girl expresses in an elopement marriage, the legal provision becomes a weapon to control sexuality and curb marriages of choice. Even though the criminal provisions regarding kidnapping and statutory rape appear to be protecting minor girls, these provisions are aimed at augmenting the patriarchal parental power over the minor girl. There are no exceptions in legal provisions on abduction and kidnapping that allow a minor to opt out of guardianship, or to leave her parental home on grounds of domestic violence, child sexual abuse or abuse of parental authority. The use (and abuse) of police power, at the instance of parents with regard to marriages of choice, works in direct contrast to women’s autonomy, agency and free will. 

At times, Judges, with a concern for social justice, have resolved the issue by resorting to basic principles of human rights, in order to save the minor girls from the wrath of their parents and from institutionalization in state-run protective homes. The only way they could do so was by upholding the validity of these marriages by bestowing on the minor girls an agency (by invoking the premise of ‘age of discretion’) and by distancing the notion of “age” from “consent” or “agency”. 

On examining these judgments through the prism of women’s rights, could these judicial interventions in aid of minor girls be termed as “regressive” and the demand by women’s groups to declare these marriages as null and void be termed “progressive”? Could the curbing of the freedom of these minor girls to express their sexual choices by their natal families with the aid of the mighty power of the State within a sexually repressive society be termed as a progressive intervention and a challenge to patriarchy?  The recent legislation passed by the Parliament on Child Sexual Assault, raising the age of consent to sexual intercourse from 16 to 18 will  further deteriorate the situation and render young girls (and boys) even more vulnerable to parental and State power  when they express their sexuality and make unconventional  sexual choices and result in even higher level of “moral policing” by the State. 

Invoking the notion of “age of discretion” which the courts had done even while validating marriages of minor Hindu girls who had eloped, did not evoke a similar controversy as is being done at present. Has the present controversy and media hype due to the fact that parties concerned are Muslims. The groups condemning the judgement project as though the Judge erred in applying a concept of Islamic law to Muslims,  but not while applying the same concept to non-Muslims or to Hindus governed by a statute. 

The extremely provocative manner in which this judgement has been projected by the media, warrants that we do not respond in an expected knee jerk manner and lend fuel to the age old right wing demand for the enforcement of a uniform civil code.  At such moments, it is important for us to be clear on whose side we are batting.

Perhaps bringing Mathura back into this debate will help to clear the muddy waters.  Mathura,  a young 16 year old, illiterate,  tribal girl, who had eloped, was brought to the police station on a complaint filed by her brother. After interrogation, she was raped by policemen on duty. The controversial Supreme Court ruling which acquitted the policemen on the premise that she was a woman of lose moral character became the catalyst for the women’s movement in India in the late seventies. For many of us, Mathura continues to be the touch stone for testing our feminist sensibilities. This helps me to make my point that we need to be sensitive to the  multiple levels of vulnerabilities that teen aged girls who elope with their boyfriends or make other unconventional sexual choices suffer as they negotiate multiple levels of marginalizations.

In another case concerning elopement of a Muslim girl with a Hindu boy, Vivek Kumar @Sanju and Anjali @ Afsana v. The State (Crl.M.C.No. 3073-74/2006, decided on 23.2.2007) (as cited in Tahra Behum above), the Delhi High Court commented as follows:

“There is no law which prohibits a girl under 18 years from falling in love  … Neither falling in love with somebody is an offence under I.P.C. or any other penal law. Desiring to marry her love is also not an offence. …..  However, this (to wait to marry till she is major) is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. … (When the daughter confided in)  her father that she was in love and wanted to marry Sanju,  the response of the father created a fear in the mind of (the girl). Her father slapped her and told her that her action would malign the family and bring danger to the religion. He even threatened to kill her or marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, against her wishes. Neither has he the right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father and joins her lover, it is no offence either on the part of the girl or on the part of the boy with whom she ran away and married.”

It is in this context, that the voice of the feminist movement must lend credence to the claims of the weak against the might of status quo-ist institutional authorities. The agency exercised by a young teen aged girl and her acts of assertion against the dictates of patriarchy need the support of both the judiciary as well as human rights / feminists groups. The claims of feminist jurisprudence must essentially lie within this complex tapestry. 

Before concluding, lest I am misunderstood, let me clarify. I am not advocating that all 15 year olds must drop out of school, elope with their boyfriends and marry them and then they will live “happily ever after” as per the popular Hindu movie formula. All that I am saying is that the Child Marriage Restraint Act which was enacted in1929 has not worked as it is almost impossible to penetrate the family, caste and community bastion and prevent child marriages as is perceived by some feminist groups. In today’s society, child marriage has become a class issue as opposed to the manner in which it was used in the nineteenth century reformist debates within the context of Brahminical patriarchy. We have seen the age of marriage gradually rising when living standards rise and families have more options for education and skill training of their daughters. 

The fear of leaving a young girl unattended at home who may become a victim of rape drives most poor families to marry their daughters young so that they do not to have to endure the stigma of rape and marrying off a sullied and non-virgin daughter. But in this context, the parents tend to view consensual and forced relationship in a similar way and they feel only they have the authority to steer a young girl’s sexuality in the manner they wish. 

We need to work towards creating more secure and women friendly societies where daughters can be raised with love, care and affection so that elopement is not the only choice for them to express their freedom and autonomy. The families need to provide spaces for an open discussion on sex and sexual choices. We need to challenge the premium placed on chastity  and  virginity within arranged marriages. Only when the sexually repressive atmosphere within which we raise our children changes, will the girls and  boys not feel the need to elope and marry in order to give into their natural sexual instincts and will be in a position to make more responsible sexual and life choices. 

*   Flavia Agnes is a women’s rights lawyer  based in Mumbai.  She is the Director of Majlis which provides legal advocacy
    and litigation support to women. 

Making Sense of the Law -- A Search for the Jurisprudential

Basis to the  Legal System in India

(By Jayasankaran Nambiar A.K., Senior Advocate, High Court of Kerala)

What is the jurisprudential basis of the law in India? The question is by no means insignificant or irrelevant. It is necessary to explore the issue if one really wants an answer to certain inconvenient questions about the working of the legal system - questions such as “Why do courts decide cases the way they do?” “Why, when we have a written constitution and statutes, do courts appear to decide cases against the express provisions of those documents?” and “can Judges decide cases based on their own personal philosophies and, if so, how can we expect any certainty in the application of laws?” The search for answers must take us back to the earliest form of law that we had in this country. Before that, however, a look at the current trends in jurisprudence would not be out of context.

Since the middle of the 20th century it has become fairly evident that there are no serious takers for a theory of law that focuses solely on a conceptual approach like that propounded by Austin and other positivist theorists. Neither, for that matter, are there takers for a purely analytical approach as propounded by Henry Maine. A modern theory of law looks at the working of the law and then attempts to provide a jurisprudential basis to the legal system. In order to have a proper understanding of the legal system and its working, one needs to understand the written law in the context of its history as also the changes that have taken place in society and in the factors that affect social life. As Oliver Wendell Jr. said in his “Common Law” - “the life of law has not been logic: it has been experience and in order to know what it is, we must know what it has been, and what it tends to become” and it is that methodology that I have chosen to adopt in my search for answers.

In ancient India, there did exist a legal system that was founded on the concept of Dharma. In his commendable work titled “Classical Law of India”, Robert Lingat explains that Dharma signified the eternal laws which maintained the world. According to this ancient conception, the world was not the product of fortuitous concourse of elements, but was ruled by certain norms and sustained by an order necessary to its preservation. This order was seen as an objective one, inherent in the very nature of things and the gods were seen only as its guardians. During the vedic period, the fundamental laws of the universe were identified with the laws of sacrifice and, consequently, Dharma was par excellence the sacrificial act which maintained, and even conditioned, the cosmic order. In later years, the concept of Dharma was widened to envelop the moral world as much as the physical and the norm of ritual became a norm of conduct. In external terms, Dharma was the action which, provided it conformed to the order of things, permitted man to realise his destiny to the full, sustained him in this life, and assured his well being after death. An act contrary to dharma necessarily involved a sanction which would strike him in his future existence if not actually in his present life. In internal terms, Dharma signified the obligation, binding upon every man who desired that his action should bear fruit, to submit himself to the laws which governed the universe and to direct his life in consequence. That obligation constituted his duty. Dr. S. Radhakrishnan in his essay “The Heart of Hinduism” says “Dharma is a code of conduct supported by the general conscience of the people. It is not subjective in the sense that the conscience of the individual imposes it, nor external in the sense that the law enforces it. Dharma does not force men into virtue, but trains them for it. It is not a fixed code of mechanical rules, but a living spirit which grows and moves in respose to the development of society.”

It is apparent, therefore, that in ancient India, law existed in the form of rules of obligation that derived their authority, not from any threat or coercion from a superior authority, but through the convergence of reason, among the people of the society, to adhere to a course of conduct generally considered righteous. The object of such righteous action being to ensure continuity of the existing order and peaceful cohabitation among the members of the society. Rights, in such a society, were recognised as incidental to the realisation of a person’s destiny and so long as they were not opposed to the natural order of things, they would enure to the person concerned. This feature of ancient Indian society, that used the indicia of convergence of reason in its members for identifying rights in the society, was indeed consistent with a respect for persons as rational and autonomous creatures. Rights were recognised because there was a convergence of reason among the people who, independently and devoid of any external pressure, saw it fit to recognise such rights. It is also a significant feature of ancient Indian society that its laws were not formalized through legislation or authoritative rulings. While a declaration of laws appears to have been made through various Smrithis (an indirect exposition, based on the memory of the author, of the law contained in the Vedas), the precepts of Smrithi were an authority only because, in them, was seen the expression of a law in the sense in which that word was used in the natural sciences, a law which ruled human activity.

It was with the arrival of the British in India, and more particularly, when the British took on the task of administering the people of India that the need was felt for codifying the law. This was more out of necessity for the British Administrators who found themselves in the unenviable position of searching for the applicable “law” in a society that had not seen it necessary to write it down. Even the available Smrithis were in Sanskrit and a transalation of the same often missed the context. The period of British Rule in India saw the enactment of various statutes, mostly based on the principles of English common law but adapted to suit the social condition in India. These enactments did not reflect the views of the people of India but were more in the nature of rules laid down by an imperial government for governance of a class of its subjects. The last Act of the British Parliament that was enacted for the governance of India was the Government of India Act, 1935, seen by many as the document that provided the basis for the Constitution of India that was drafted by the Constituent Assembly of India, after the country obtained independence in 1947. 

The Preamble to the Constitution of India contains words which clearly indicate that it is a document that the people of India have given unto themselves. These words in the Preamble are significant because they convey the idea, central to the validity and binding nature of the document, that the people of India have recognised the said document as laying down the principles on which they will be governed. Although not signed independently by those governed, it indicates, once again, a convergence of reason or a consensus among the people of India that they will arrange their affairs and be regulated in their conduct by the principles and philosophy enshrined in the Constitution. The Constitution also contains provisions for its own amendment, thereby indicating that the principles contained in it are not permanent in nature and are amenable to change with changing social conditions. This is not to say that the legal system in India does not recognise rights that are not expressly mentioned either in the Constitution or in the statutes or regulations that flow from an exercise of the constitutional power. Taking cue from the position that prevailed in ancient India, one must assume that in India, a codification or judicial declaration of the rights represents only a formalization of a right that already exists. Prior to formalization through the legislative or other processes, the right derives its status as a right from the tacit acceptance and recognition of it by others in society - from a convergence of reasoning - that it must belong to any particular person or class of persons in that society. The formalization of the right is important and necessary only for the implementation or enforceability of the right and not for establishing its existence as a legal right. Speaking at the HLA Hart Lecture at Oxford, Nobel Laureate Amartya Sen observed, “Legislation only reiterates some of the principles that deserve immediate public notice. That is not the same as saying that there is no law other than what is written. Natural law recognises the existence of certain “human rights” even prior to legislation...for example the universal declaration of human rights recognizes the existence of certain inalienable rights shared by all human beings which did not depend on specific legislation for it’s recognition as a right”.

In my view, the existence of a legal right in Indian Law, depends on a convergence of reason among the people of India recognizing the existence of a particular right in any particular person or class of persons. But how is this “convergence of reason” to be established? Again, in my view, one has to look for observable facts in order to identify such convergence of reason. Public opinion and reasoning, existence of similar rights in other countries and other similar criteria can point to the existence of a right in society. If there is an overwhelming amount of material that points to it, it would be plainly unjust not to recognise the existence of such a right. A right, the existence of which is established can later be formalized either through a legislative process or through a judicial declaration of it by the courts. These acts result in the right in question becoming legally enforceable using the enforcement machinery put in place by the written law. The necessity for formalizing a right is more for the purpose of administration of the law so that similar cases can be treated alike and different cases differently.

It is against this theoretical backdrop of the law that one needs to understand the working of the courts. Under the Constitution, the judiciary is entrusted with the task of interpreting the Constitution and the Laws. The task of enacting the law is entrusted to the Legislature and the Executive body implements the laws so enacted by the legislature. Our Constitution, however, envisages a system of checks and balances between the three organs of Government and requires them to act in tandem to give effect to the constitutional principles. Under the constitutional scheme, therefore, it would be perfectly legitimate for the judiciary - as the organ of Government entrusted with the task of interpreting the constitution - to interpret the provisions of the written constitution and bring within its fold new dimensions of expressly recognised rights or even new rights that are supported by the underlying philosophy of the constitution. Such a method of interpretation is necessary for, to quote Amartya Sen again, “a written Constitution speaks to us in three different ways namely, (i) through the motivation behind the rules of the kind that the framers sought in order to make it possible for people with different interests and divergent views to live and prosper together, (ii) through the specific intentions that the individuals, who drafted, proposed and ratified the Constitution, entertained, overtly or covertly; or (iii) through the words that the drafters used to translate their constitutional motivation into specific rules”. Something more than just the words and the phrases of the Constitution must necessarily be taken into account for understanding the motivation behind a democratic and participatory constitution that tries to create a legitimate space for different types of people with varying preoccupations and circumstances in a diverse society. The constitution has to be interpreted through the “here and now” approach by understanding the context in which the original words and phrases in the Constitution were used and adapting them to the changed social conditions. In this process, necessary consideration has also to be given to the proliferation of new ideas and technological advancements that have come into existence since the framing of the original draft. Add to this, the possibility of the judiciary “discovering” new rights based on empirical data and we have a legal system that can forge “new” rights, as opposed to existing “formalized” rights. These rights are legal rights and their formalization clothes them with the power of enforcement.

Many would argue that the recognition of a power in the judiciary to forge new rights, is inconsistent with the principle of separation of powers. They might even refer to its exercise as a species of “judicial activism” that is undesirable. The argument often raised is that judges, on account of their not being elected representatives of the people, do not have the mandate of the people to embark on such tasks. I do not think, however, that our Constitution supports such a notion. On the contrary, the Constitution that is accepted by the people, recognises a machinery by which Judges are chosen to occupy their office. Inherent in this provision is a tacit acceptance by the people, of the effectiveness of the machinery in selecting the right persons for the job and consequently, the competence of the persons so chosen, to interpret the law. In recognizing new rights in the course of discharge of their duties, Judges do nothing more than interpret what the law is.

To return then, to the questions that haunted us at the outset, it would be safe to assume that courts do not disregard the express provisions of the law when appearing to depart from them. Those instances, where they do seemingly depart, are better viewed as cases where they consciously, and through the method of interpretation, recognise a new variant of a formalized right or the existence of right that then deserves to be formalized for the future. In doing so they also recognise that the “new” right is different from the ones earlier dealt with and hence requires a different treatment. They are not, therefore, taking a different view in a like situation but, on the contrary, treating different cases differently. This is what legal interpretation is all about and, when carried out with due care and diligence, presents us with a fair legal system.