Not Goldsmith But Nelson

(In response to 2008 (2) KLT Journal 21)

(By K. Ramakumar, Sr.Advocate, HIgh Court of Kerala)

The High Court of Kerala quite often issues directions to the officers of the Executive to consider the grievances of the petitioners before it with a time limit fixed to ensure speedy compliance with the order. Judgments command that “it shall be done as expeditiousiy as possible and at any rate within three months”. English, continuing to be the language of the administration, one of the enterprising civil servants, who was issued with the above direction told a litigant “look here, the Hon’ble High Court has permitted to fix any rate I like”. So much is the standard of English knowledge among the officialdom, in spite of the fact that English has been the language that ruled the people well over 100 years in this country. Another officer said when he was presented with an order from the High Court that “there will be a direction”, amazingly, “let that direction come then I will pass orders”, evidencing the total lack of familiarity with mundane english expressions.

So is unfortunately the position in the Judiciary. An old timer warhorse, an octogenarian in age but not in appearance or agility, has contributed a highly commendable Article in (2008 (2) KLT Journal page 21) on the need to develop command of language by legal practitioners. The exhortation is eclectic as well as effulgent. Before however, starting reading Oliver Goldsmith or Charles Dickens, one wishes, they do some homework with Wren and Martin. They cannot turn a Nelson’s eye to “Nelson’s Grammar”, an equally authentic Grammar Book. Grammar these days is the biggest casuality in judicial language. In one of the reported judgments including in the esteemed Law Journal KLT, a case has been described as one for “eviction of a building”. No building can be evicted except by use of a Bulldozer or the JCB of Munnar notoriety. A tenant alone can be evicted under the Rent Control Act. Yet the above faulty and flawed expression has got into the judgment, ironically of a Judge who later described the contents of a counter affidavit filed by the Government as “a murderous assault on an alien language”. Such assaults are becoming common these days. Usages like “recordical evidence” have already started creeping in the judgments of subordinate courts but fortunately not in the High Court. “Today moving” however has already found its way even in judgments of the High Court”. Some legal practitioners in the High Court use the strange expression “would your Lordship may”, which sounds absolutely absurd. An exuberant young counsel stunned the Court by submitting he has “an Adipoli decision” on a point. While nobody can dispute that English is a great gift of Goddess Saraswathi to us, its intricate grammar cannot be given a go bye for convenience and expediency. If you stick to English, it has to be ensured that it is good English or at least correct English. Ever heard of a professor, who told a student “I am not vacant come behind”, meaning thereby that he is not free then but the student may come later and the guileless Advocate’s Clerk who sent a wedding invitation with a request “Presents only. No presence”. Nor can liberties be permitted with English language like our Tamilian brethren do as “head-going affair” or “elephant matter”. There is no “hand and arithmetic”, to such amusing howlers. 

Our connection with English is solely because the British ruled us for more than hundred years. English itself had to fight for survival and revival in its own land against Roman and Latin, the language of the rulers. The East Africans look upon French language with admiration and awe because it was the language of their rulers. So did the Indonesians about the Dutch in the past, not now. The Goans go about gleefully with smattering of Portugese because they ruled Goa from Lisbon. We adore English because it was the ruler’s language and to speak in ruler’s language was fashionable. Indeed our mindset continues to be English, which is why we are aping the English in dress in a hot country like India. English has never been a unifying force, as is believed by my learned, esteemed senior friend, but it has only divided. Thousands of years ago, a Sankaracharya from Kerala had ascended “the Sarvanjyapeeda” in Kashmir, proclaiming to the whole world the unity of Bharath and he was not obviously speaking in English. The expression “Asethu Himalaya” had come long before the English conquered our country. There existed a shared sacred thought common from Kargil to Kanyakumari, about the Kailas, long before the British set their foot on the soil of India. The Sanathana Dharma had always proclaimed “Loka Samastha Sukhino Bhavanthu”, a great thought not with much parallels. It is not for nothing that Prophet Mohamed blessed our country saying “blessed be the country that bears thy name”. Hind was the name of one of His consorts”. It was only after the British came, the feeling that all those who are born between the Himalayas and the Hindu Ocean are ‘Hindus’, slowly started vanishing, which ultimately led to the biggest catastrophe in history, the vivisection of the country, but for which India would have by now been one of the strongest of powers in the whole world. Please do not forget that ours is the country which owns the precious and richest language in the world - Sanskrit, which unfortunately is neglected on petty parochial considerations. Even Quatar, a Muslim Princedom has discovered that for use in Computers, Sanskrit is the best. It is a treasure house of all knowledges, the Sastras, the Vedas, the Upanishads etc., that give the world the message of prosperity, peace and tranquility. Let us not therefore, forget our own heritage, our own languages and our own proud culture.

English, but good English, certainly yes. But not the  English mind set. 

Judicial Review in India -- Why March to British Tunes?

(By Jayasankaran Nambiar A.K., M/s Menon & Pai, Advocates)

Administrative law in India has been largely influenced by developments in the United Kingdom, where the law has evolved over different time zones to keep in step with changing political scenarios. This is rather surprising when one considers that, unlike in the United Kingdom where the concept of Parliamentary supremacy prevails, India has a written Constitution which serves as a Grundnorm from which all other laws derive their legal validity. The laws enacted by our legislative bodies - The Parliament and the State Legislatures - are not immune from judicial scrutiny and their validity must stem from a conformity to the Constitutional mandate. If a law offends the provisions of the written Constitution, it will be struck down as unconstitutional by the “sentinels” specified in the Constitution - The Supreme Court and the High Courts.

The reference to the “long arm of the law” is particularly relevant in the Indian context since our constitutional courts, armed with the powers under the Constitution, can strike down any legislative or executive action on the ground that they offend the rights guaranteed under the Constitution to a citizen or person. The Constitution does not recognise any “sphere of immunity” in respect of discretionary acts of an administrative authority - whether functioning under a statute or otherwise. If its action, albeit in exercise of a discretion validly conferred by law, offends the provisions of the Constitution, then such action must fail as opposed to the Constitution. In this sense, therefore, much of the law governing judicial review of administrative action in India can be traced to one central principle - that of ultra vires.

The law relating to judicial review in the United Kingdom has been forged out of necessity - one that arose from the need to check arbitrary action of administrative and quasi-judicial authorities, who were conferred with discretionary powers under a law which itself was deemed supreme. The concept of Parliamentary Supremacy ensured that if the decision of the administrative authority was within the boundaries of the discretion granted to him by the statute, then that decision could not be unsettled by the judiciary whose role was limited to that of an interpreter of the law laid down by the Parliament. It was, therefore, that in their role as interpreters of the laws that Courts in the United Kingdom developed the concepts of “unreasonableness”, “illegality”, “irrationality”, “procedural impropriety” and now “proportionality”, although the last mentioned concept has still not found its way into the domestic law of UK as a ground for judicial review. These concepts were virtually read into the laws enacted by the Parliament by the judiciary which reasoned that it could not have been the intention of the Parliament to confer a discretionary power that enabled the authority exercising it to act in a manner that was illegal, irrational, unreasonable or procedurally unfair or improper. The enquiry of the courts while testing administrative decisions against the said criteria are broadly as follows:

Illegality -whether the decision maker strayed outside the purposes defined by the governing statutes;

Procedural Impropriety - whether the decision was procedurally unfair;

Irrationality - whether the power conferring a broad discretion on the decision maker has been improperly exercised. This head also takes within its fold a wide range of decisions such as those taken in bad faith; those based on considerations which have been accorded manifestly inappropriate weight; those that are apparently illogical or arbitrary or supported by inadequate evidence or by inadequate or incomprehensible reasons; those which ignore substantive legitimate expectations; those which ignore the principles of equality and oppressive decisions.

The Wednesbury test which basically requires the court to find out if the administrative decision was one taken without taking into account relevant factors or one arrived at by taking into account irrelevant factors or if it was such that no sensible decision maker could have arrived at, is in effect a particular application of the irrationality test.

In the Indian context, one wonders why, in the face of the express provisions of our Constitution and the wide interpretation given by the courts to its central precepts, Courts have to strain to see whether the administrative decision offends the concepts of legality, procedural fairness and rationality, before interfering with the said decisions in exercise of the power of judicial review. The concept of “reasonableness” and “non-arbitrariness” are now so firmly entrenched in the Constitutional guarantee of fundamental rights that any administrative action which offends these concepts are automatically deemed unconstitutional or “ultra vires the Constitution”. In fact, when our courts strike down an administrative decision as violative of the fundamental rights of a citizen or person, they are literally applying the doctrine of proportionality (albeit, for reasons which are not so clear, not admitting to it) since they consider the merits of the decision taken by the administrative authority. They determine whether the action was really needed as also whether the action was within the range of courses of action that could reasonably be followed by the administrative authority. The actions of the administrative authority are tested against the fundamental rights available to the subject under the Constitution. This is the very essence of the doctrine of proportionality and it was rejected by the courts in UK, as part of its domestic law, because the doctrine lowers the threshold of judicial intervention and involves the courts in a consideration of the merits and facts of the administrative decision. In a country where the laws made by Parliament are Suprema Lex, nullifying a discretionary power conferred by Parliament would border on heresy.

In Union of India v. G.Ganayutham(1997) 7 SCC 463() the Hon’ble Supreme Court after an exhaustive review of the authorities in U.K. and India summed up the position in India at para 31, as follows:-

“(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will play only a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of “proportionality” and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will then be necessary to decide whether the courts will have a primary role only if the freedoms under Art.19, 21 etc are involved and not for Art.14.”

The issues left open for further discussion in Ganayutham, were considered in Om Kumar & Ors. v. Union of India (JT (2000) Supp. 3 SC 92 = (2001) 2 SCC 386.) where Justice M. Jagannatha Rao, speaking for the court, held at paras 65-67 of the judgment, as follows:

“65. ..in India where administrative action is challenged under Art.14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional courts as primary reviewing courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying proportionality and is a primary reviewing authority.

66. But where, an administrative action is challenged as “arbitrary” under Art.14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is “rational” or “reasonable” and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary....

67.  Thus, when administrative action is attacked as discriminatory under Art.14, the principle of primary   review   is for   the   courts   by   applying  proportionality.   However,   where administrative action is questioned as “Arbitrary” under Art.14, the principle of secondary review based on Wednesbury principles apply.”

The court then went on to hold that while reviewing punishment and it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases, can the court substitute its own view as to the quantum of punishment.

The importance of the aforementioned decision of the Supreme Court lies in the fact that it recognises that proportionality was always applied in our country as a principle to check administrative action affecting fundamental freedoms. It also demonstrates that the tests laid down in English cases are only facets of the larger concept of non-arbitrariness which goes to the root of Art.14 of our Constitution. What remained unsaid, but follows as a necessary corollary from the judgment, was that judicial review of administrative action in India is almost entirely based on the principle of ultra vires. This is because those administrative decisions which are found to be discriminatory, unreasonable or arbitrary (as explained in E.P. Royappa v. State of Tamil Nadu^₁ would be violative of the fundamental rights guaranteed under Part III of the Constitution and therefore ultra vires the Constitution.

In conclusion, it might be stated that the law governing judicial review of administrative action in India has evolved through the bold strides taken by our courts in the matter of constitutional interpretation. Through a wide interpretation of the provisions of Part III of the Constitution, our courts have ensured that almost any administrative action that is either arbitrary or unreasonable or illegal - in the sense of being ultra vires the statute, is unconstitutional and hence amenable to judicial review. The tests propounded by courts in the UK, while relevant in the context of the legal system there, need not necessarily be adopted in our country, where, owing to a written constitution, we are not constrained in the same manner as courts in that country. Judicial review of administrative action in our country rests on firm constitutional principles and hence we don’t need to apply the tests of illegality, irrationality, procedural impropriety or proportionality to justify judicial intervention.

Our Army may still march to the rhythmic beats of “Colonel Bogey” but does the march of our law have to be to British tunes?

1. ((1974) 4 SCC 31) - where Bhagwati, J stated that if the administrative action was arbitrary, it could be struck down under Art. 14. Arbitrary action by the administrator was described as one that was irrational and not based on sound reason. It was also described as one that was unreasonable. See also para 58 of judgement in Om Kumar - (2001) 2 SCC 386.

Motor Accidents Claims Tribunals' Jurisdiction to Deal

Cases under the Non-Statutory Insurance Policies

(By C.R. Kesavan, Advocate,Tirur)

Whether Motor Accidents Claims Tribunals lack jurisdiction to deal with cases for compensation pertaining to occupants/passengers covered under non-statutory insurance policies?: Chapter II of M.V. Act 1988 deals with Insurance of motor vehicles against third party risk. Requirements of Policies and limits of liability u/S.147 is only against third party risk and nothing more. As far as Insurance Companies are concerned Motor Accident Claims Tribunals constituted u/S.165 of the M.V. Act are only to adjudicate upon claims for compensation in respect of third party injury/death and third party property damage upto the extent of Rs. 6,000/- arising out of a use of motor vehicles in a public place.

In Pushpabhai’s case the Supreme Court in (1977 ACJ 343 (SC)) has repelled the contention that the words THIRD PARTY includes all persons except the insured and insurer under S.147 (1) (b) of 1988 Act.

Occupants and passengers in motor vehicles are not third parties is the consistent line of finding of the Supreme Court in (1991 ACJ 1) Mallawwa and Others v. The Oriental Insurance Co. Ltd., and in (2003 (1) KLT 165 (SC)) Asharani’s case and in (2006 (2) KLT 884 (SC)) United India Insurance Co. Ltd., v. Tilak Singh.

In statutory insurance policies a private car passenger, motor cycle rider and pillion rider are not required to be covered by any Insurance Company. Statutorily an insurer is not required to cover the risk of damage to the vehicle insured. Statutorily the insurer is not liable for any third party property damage for an amount exceeding Rs. 6,000/-.

Disputes between the insured and the insurer regarding the damage caused to the insured vehicle and the liability to third party property damage exceeding Rs. 6,000/- are to be taken up at the appropriate forum and not before the Motor Accidents Claims Tribunals because the Policy issued in such cases are beyond the statutory requirements and in all these cases the liability of the Insurer is contractual. When the liability of the insurer is not statutory but contractual, the matter cannot be dealt with by a Motor Accidents Claims Tribunal constituted to deal with third party claims and only limited categories of occupants/passengers in a motor vehicle specifically covered under the statute. Thus in statutory policies of insurance the risk of passengers in private car, rider/pillion rider of motor cycle are not covered. Under a non-statutory Policy of insurance, when the risk of passengers in a private car, rider/pillion riders of motor cycle and third party property damage exceeding Rs. 6,000/- are covered by a contract of insurance, disputes regarding compensation for such categories cannot be dealt with by the Motor Accidents Claims Tribunal as in the case of own damage to the insured vehicle since it is a contractual liability incurred by the Insurance Company not under statutory requirements. In this connection it is also significant to note that the proviso of option given to the parties either to maintain the claim before the Tribunal or to approach a Civil Court for adjudication regarding third party property damage exceeding the statutory limit u/S.110 of the M.V. Act 1939 is deleted while enacting S.165 of the M.V. Act 1988. The legal effect of the absence of a proviso to S.165 of the M.V Act 1988 as u/S.110 of the M.V. Act 1939 is that the Motor Accidents Claims Tribunals cannot usurp the jurisdiction of a property damage claim exceeding Rs.6,000/- even if there is contractual liability to the insurer exceeding Rs.6,000/- under a non-statutory Insurance Policy. It is also significant to note that the bar of Civil Courts to entertain cases u/S.175 of the M.V. Act 1988 is as regards matters arising under statutory policies of insurance issued by an insurer.

This aspect has been lost sight of by the Division Bench of our High Court while dealing the case reported in (2008 (3) KLT 778 - The New India Assurance Co. Ltd. v. Hydros) especially when the Division Bench found that the specific coverage for the risk of gratuitous passengers as per the conditions of the Policy are contractual liability incurred by the Insurance Company. Accordingly the Division Bench ought to have set aside the award of the Tribunal and referred the parties to adjudicate the claim before the Civil Court on the ground that it lacks jurisdiction. 

Literate Kerala, Bribes and a New Case of Mata: On the Limits of 
Judicial Patience and Legal Realism

(By Professor Werner Menski, SOAS, London University)

The recent decision by Basant J. in Aboobacker v. Rahiyanath (2008 (3) KLT 482) is another model lesson in the skilful management of socio-legal tensions in India today, highly instructive in several respects. This forthright and amazingly versatile judgment will be required reading for all my students in London this year. It should also be studied by all Indian law students, primarily to enhance their level of plurality-conscious legal education, which is often seriously deficient, as standard law teaching - in so many law schools, and not only in India -  remains deplorably descriptive, technical and flat. 

Four elements make this particular case interesting, well beyond Kerala and its specific facts and circumstances. Firstly, the case brilliantly illustrates the constant need for plurality-conscious management of law and negotiation of diversity by the State, and thus ultimately by Judges, in a complex jurisdiction inspired not only by colonial common law, but still also by ancient and current internally plural Indic traditions of vyavahara, a collective term for any type of dispute settlement, whether formal or informal. The case confirms that vyavahara, one of the ancient core concepts of Indian law, ultimately a device to maintain self-controlled order, means so much more than just ‘litigation’. It is indeed plurality-conscious navigation or ADR-like conflict resolution requiring a wide range of skills. Secondly, the case concerns the highly contested but now almost completely settled issue of post-divorce maintenance for Indian wives, specifically Muslim ex-wives and the precise ambit and meaning of mata, whatever that term in the Holy Qur’an exactly implied. Thirdly, adding spice and social drama, it involves a scenario related to polygamy, indicating how postmodern Indian law attempts to handle this universal problem, caused here, again, by childlessness in an otherwise happy marriage. Fourthly, the surprise element towards the end of the case report is the ex-Muslim husband’s dodgy argument that because he paid a bribe to secure a lucrative job as a teacher for his ex-wife, he should not be required to pay maintenance beyond the date of her re-marriage. The squealing ex-husband’s tortuous arguments are less shocking than funny: to what extent will outwardly devout Muslim men go to seek advantage through such dodgy pleading? Does God not watch everything? Is there no fear left of Judgement Day? Or did Aboobacker really pay the bribes and we are led to assume that God would condone such bribes, and hence a plurality-conscious Indian Judge should take account of this, too?

Overall, this case mainly raises questions about the extent of State involvement in a private drama that the main participants failed to negotiate sensibly among themselves. The main lesson in terms of vyavahâra may well be that going to court and pleading all sorts of dodgy things is not the wisest strategy in India today – it probably never was, anyway. But what a drama! It pains me far less than my current favourite Judge at the High Court of Kerala that such somehow unpalatable - but publicly known - facts are raised in a court of law. What about realism, then? Before we contemplate judicial indigestion, let me say that I hear nothing very different from many Indians that I have met over many years: Much can get done through bribes, not only in literate Kerala, but all over India, and now also among ‘dodgy Asians’ in the UK and elsewhere. No surprises here at all, but should such facts be judicially accounted for?

Of course Basant J. was rather indignant on hearing this particular claim by the ex-husband, and he certainly avoided becoming famous for holding that the contested Islamic mata could take the form of a bribe. So one sees the case swiftly closed with a few angry comments on the deplorability of bribes in literate Kerala. The thin line between sophisticated legal reasoning and the murky world of shady dealings, however, has again become visible for a moment. Let aspiring law students have no illusions about the high-flying majesty of law and potential clashes with low levels of morality in the real world. Decades ago, Professor Derrett used to write cynically that many outwardly pious people prayed by day and drank whisky at night. Today pious religionists bow to God one minute and bomb other humans into oblivion the next. Deep tensions between multi-billion dollar deals in ‘shining India’ and the crashed hopes of millions of investors when the bulls go mad and a major player collapses are again presently there to see for all. Welcome to Globalistan, a world that steadfastly refuses to become a better place and remains full of contradictions.

x     x     x

In Aboobacker, Basant J, clearly one of Kerala’s most experienced Judges at present, had before him an appeal by a Muslim husband against his divorced wife’s claim for excessive maintenance. How familiar! Most readers will know that in Indian law, under S.125 of the Criminal Procedure Code as modified in 1973, ‘wife’ came to include ‘divorced wife’, somewhat mystically implanted by an angry Durga in the shape of Indira Gandhi, but for good social and fiscal policy reasons that remain valid today. Readers will also be familiar with the fact that Indian men these days are often complaining vigorously when faced with ex-wives’ claims for maintenance. I get such cases even in London now. How unfair to see gendered tables turned! Poor men – but why do they not follow dharma, shari’at, izzat or simple reasonable standards in the first place and compensate the wife they seek to divorce? The thought that this may be reasonable is clearly not unique to traditional Islamic law. 

The basic socio-legal lesson these days may well be that it is no longer wise to divorce, perhaps rather preferable to enter polygamous arrangements. Actually, the husband in Aboobacker tried this, but failed, because the wife vigorously objected. So how should a reasonable man (and woman, one must add) react these days to a scenario of childlessness? Does one divorce a wife opposed to polygamy, or simply start another relationship? Does one ignore childlessness altogether? Decent societal values suggest that it is necessary to re-marry in such circumstances, if only to give the child fully legitimate status. In a Hindu nullity case in Delhi thirty years ago, Vinod Chandra Dube v. Aruna Dube (AIR 1977 Del. 24), the husband found that he had married a wife without a fertile womb. He did not go to court for many years, aware of society’s negative approach, but then he and his parents got older, and the dam of reservations against court action broke. The Judge granted nullity despite the wife’s strenuous arguments that many years of delay amounted to condonation of nature’s defect. The Judge, then, felt that the man should be allowed another chance to have a family, citing Hamlet and a lot of English cases. What a sea change in how Indian Judges deal with decision making now!  Basant J, in 2008, seems far less sympathetic to Aboobacker’s desire for paternal bliss and launches into a moralising mini-lecture in paragraph 49 about the institution of marriage.  While this culminates in idealistic talk of lasting friendship, it does not tackle the moral dilemma of the childless couple. What does one do in such a dharma dilemma?

In the present case, the Muslim husband used his continuing prerogative of talaq to free himself from the unsatisfactory marital bond and swiftly remarried. While we do not hear whether the new marriage resulted in offspring, our attention is correctly drawn to the predicaments of the divorced woman who refused the suggested polygamous accommodation. Evidently, law and life interact here closely, culture-specific social norms and values interlink with more narrowly conceived ‘legal’ rules. Law, as this case brilliantly illustrates, is indeed internally plural, and demands of us humans all the time to manage such internal diversities – but humans often fail because we are simply tempted to be too selfish. This is what the ancient Indian image of shark rule (matsyanyaya) was about. It may indeed require formal legal intervention on the part of a reluctant, otherwise ‘soft’ State and its judiciary. 

Aboobacker, a prosperous man after all, could simply have paid a generous compensation to his divorced wife, and there would not be this rather embarrassing case to his name. His wife would have had no reasonable claim and would have been advised to get on with her new life. One does not get the impression that the wife in the present case was vindictive. An educated woman, she simply dared to stand up for her basic rights against an unreasonably miserly ex-husband. She got her dues, ultimately, albeit more than seven years after the talaq divorce. It still remains all too true, therefore, that life does not favour Indian women in such situations and they have to fight for their rights. 

In Europe today, litigants face many similar problems of navigating conflicting normative orders. Some famous recent cases concerned huge and successful maintenance claims against rich men, others severely penalise polygamy. Notably, English law continues to deny pension rights to any polygamously married wife, totally out of line with other European jurisdictions, which sensibly split the pension entitlements between the various wives. Very recently, the Spanish Supreme Court confirmed the refusal of Spanish nationality, in 2002, to a polygamously married Senegalese man, strongly warning of ‘unbreakable limits’, stating bluntly that polygamy is ‘incompatible’ with Spanish law. Everywhere in Europe Muslims, men and women, risk running into trouble when they stubbornly insist that their laws should be respected by Western legal systems. The contested line between demanding respect for your religion and criminalisation of the ‘other’ constantly raises new questions about what is reasonable. It seems in Europe we are still in the early stages of learning to navigate legal pluralism and its constantly revised manifestations, while Indian courts are better at handling such challenges. Last month, a Shia father in the UK received a jail sentence for encouraging and allegedly forcing his young sons to whip themselves in a Muharram ritual till they bled. In an earlier case of the same kind, I was able to suggest a compromise, avoiding punitive action. In schools and in employment scenarios, hijabs and beards are often not allowed, leading Muslims (and others, one must note) to open their own private schools and to prefer self-employment over the hassles of dealing with culturally insensitive teachers and employers. If you want Friday to be your holy day in the UK, you can arrange for that privately now, it seems, while wearing ‘religious dress’ may still lead to dismissal or indirect refusals of job applications, with few effective remedies provided by secular legal systems. In France earlier this year, wearing a hijab was taken as an indication of unwillingness to adopt civilised French values, and was promptly used to withhold citizenship. While most Indian Muslims are learning to live in a plurality-conscious ‘secular’ legal order, many European Muslims become more isolated, running into difficulties by insisting that ‘their’ laws are superior to State laws. Unsurprisingly, States tend to hit back, only to be pulled back by courts, even the House of Lords recently (in  R (on the application of Baiai & Ors.) v. SSHD, (2008) UKHL 53), where it was confirmed to be unacceptable that English law should discriminate in favour of Anglican marriage arrangements. Learning to respect the position of ‘the other’ is a much-needed skill that needs to be practised by individuals and state legal systems alike. Judges remain key players in such ongoing scenarios of vyavahâra, especially once disagreements escalate, leave the private realm and reach courts.

x          x         x

So much about wider dimensions and an increasingly illiterate, newly multi-religious and super-diverse Britain, deeply troubled by around two million Muslims now, and constant demands for more official legal recognition of Islamic law, presently focused on whether the ubiquitous Sharia Councils are acceptable if renamed as ‘Muslim Arbitration Tribunal’. We have not even come to legal substance, we are still – or again - pussyfooting over procedural politics and naming games.

In literate historically multi-religious Kerala, Aboobacker v. Rahiyanath raises many important policy issues and surprisingly firm and authoritative substantive answers are provided to most of them. The basic circumstances are typical, simple Keralite facts: a female Muslim student of 19 marries a young Muslim male in 1985, continues her education, and goes abroad with the husband to work. She trains as a teacher. The couple becomes prosperous, lives happily together, buys a plot of land and builds a house on it in the husband’s name, and also goes on haj together. But there is one problem: there is no child, and medical interventions remain unsuccessful.

Not untypically, after 16 years of childless marriage, the husband then asks his wife for permission to marry another woman. Perhaps unsurprisingly in today’s world, she reacts badly, feeling betrayed and hurt. She bluntly refuses permission, whereupon he divorces her by pronouncing talaq on 3rd April, 2001. Only three weeks later, he marries another school teacher, but does not maintain his first wife, nor makes fair provision for her future, as divorcing men of any religion are now expected to do in India. The wife then swiftly proceeded to claim maintenance under S. 3 of the Muslim Women (Protection of Rights on Divorce) Act of 1986, already on 14th May, 2001, still within the iddat period, perhaps leaving the husband a last chance to pay her a fair amount before the end of the iddat. But friendship between the parties had evaporated, they had stopped negotiating sensibly. Now there was only formal vyavahara to come. 

Perhaps the husband should simply not have divorced his wife, but he appears to have become upset over her refusal to agree to a polygamous arrangement and then apparently became vindictive, trying to deprive her of a fair share of the couple’s wealth. Maybe she demanded too much initially, we do not know. Had he paid her off at that critical point, though, there would have been no court case. It is as simple as that.

The wife also remarried, but only on 12th May, 2004. Well before that, as already stated, she had filed her claim for maintenance under S.3 of the 1986 Act. With rather more delay than ambitious Indian law-making has laid down as the norm, her claim was decided by a Magistrate only on 31 July 2003, while the wife was still unmarried, directing the husband to pay Rs. 2,70,000/- as reasonable provision and maintenance, plus Rs. 50,000/- for some alleged debt, which could well have been some alleged dower debt. The husband then appealed for revision before the Sessions Court, which on 30th March, 2004 set aside the direction to pay the Rs. 50,000/-, but confirmed the larger sum, which had been arrived at through judicial discretion, applying the so-called multiplier multiplicand method of assuming Rs. 3,000/- per month as necessary expenses, calculated for 90 months. Are such figures just taken out of thin air, or are they built on reasonable assumptions?

Unsurprisingly, the stubborn and unnecessarily desperate husband found this particular calculation unfair and excessive in terms of amount and length of time. Advised to claim abuse of justice, he cleverly took recourse to S.482 of the Criminal Procedure Code, which grants extraordinary inherent jurisdiction to a High Court. The claim was not only that the maintenance award to the wife was excessive but, more interestingly – because the wife had meanwhile remarried on 12th May, 2004 - the ex-husband asserted now that he should only have to pay until the date of her remarriage. He should have known better, for the wife correctly claimed that what happened post-iddat is irrelevant for ascertainment of the quantum payable by the former husband.

Mr. Justice Basant clearly relished getting his teeth into such a complex contest, subtly indicating in para 8 of the judgement that “the questions raised are interesting and demand a detailed look…”. There follows a masterly historical analysis of the relevant law. With characteristic attention to detail, we are first provided an amazingly succinct lesson in Indian legal history, examining the management of the relationship of Muslim personal law and secular laws in India since the Criminal Procedure Code of 1898. Pinpointing the social welfare implications of S.488 of the secular 1898 Act, the learned Judge finds that, already by 1898, State involvement overrode religious loyalties when it came to avoiding vagrancy of an Indian man’s wife and children. Crucially, this position was later not allowed to be challenged or fettered by S.2 of the Muslim Personal Law (Shariat) Application Act, 1937.

In terms not dissimilar to what Mr. Justice V.R. Krishna Iyer (long may he live) would have said decades ago, the learned Judge of the current generation then swiftly explains (paras 10 and 11) how humane socialist concern for the weak and underprivileged (including neglected parents) underpins today the new provisions of S.125 in the Criminal Procedure Code of 1973, which boldly also included divorced wives. Examining this provision, and its relationship with S.127(3)(b) of the same Code, which at first sight appeared to exonerate Muslim husbands, the learned Judge refers with some pride to early judgements from “literate Kerala which has done a lot for the cause of emancipation of women in India” (para 13) and helped to clarify the legal position. 

The relevant law is well known, and the cases mentioned will be familiar to readers of the KLT, including Bai Tahira in 1979 and of the course the world-famous Shah Bano case of 1985. Basant J. identifies with razor-sharp precision that the central issue was actually all along the contested definition and implication of mata, a concept explicitly mentioned in the Holy Qur’an as a matter of obligation for devout Muslims. So we learn that there was in fact never any quarrel that mata had to be paid (paras 16 and 18).  Rather, the controversy in Indian law and discourse was over the naming of this remedy and, of course, its precise implications and ambit. Was it ‘maintenance’, ‘provision’, ‘gift’, or some kind of compensation for the fact that the Muslim husband could, at any time and without giving reasons, terminate the contract of marriage? 

Mr. Justice Basant thus explicitly links the origin of the 1986 Act to a pressing obligation on India’s secular legislature to clarify the diffuse meaning of mata, which then resulted, strongly in favour of the divorced Muslim wife’s interests, under S.3(1)(a) of the 1986 Act as “a  reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. By now we know that Rajiv Gandhi and his plurality-conscious secular advisers meant serious business with this kind of intricate wording, and the Supreme Court in Danial Latifi v. Union of India ((2001) 7 SCC 740) and (2001 (3) KLT 651), after 15 years of studied silence, has loudly and clearly endorsed this position. 

The 1986 Act, thus, clearly serves to protect the basic entitlements of divorced Muslim wives, seeking to protect them not only from vagrancy, but also in effect from unfair dismissal from a marital contract. Basant J. firmly holds that the 1986 Act, too, is not hit by the 1937 Act, since that Act, whose wording is painstakingly examined, could not prevail over a new statute on Muslim law. So here we have further evidence that demanding a new statute in 1986 was a crucial tactical mistake of India’s Muslim leaders. By 2001, it was thus absolutely clear, endorsed finally in that year by the Supreme Court decision in Danial Latifi, that divorced Muslim wives were entitled to fair and reasonable provision and maintenance, to be arranged and handed over to the wife during the iddat period. Any recalcitrant Muslim husband would be in trouble if he refused to pay such reasonable sums. As Aboobacker teaches all concerned, fighting windmills will simply cost men a lot of extra money in legal fees. The law on this important matter in postcolonial India is well-settled now and almost crystal-clear.

x     x    x

Several specific questions are addressed by the learned Judge in later parts of the judgment and require some comment here. In para 25, the issue is raised whether a divorced Muslim wife should be entitled only to maintenance from the date of divorce to the date of remarriage. So if the husband paid that, would he be absolved from further liability to pay any additional amounts as fair and reasonable provision and maintenance under S.3 of the 1986 Act? 

While the reasoning on this has been contested in the Kerala High Court and elsewhere, I think the answer could be clearer than given in the present case. It must be correct, indeed, that remarriage does not have any impact on this matter. But the reason is, in my submission, because the explicit wording of S.3(1)(a), namely “a  reasonable and fair provision and maintenance”, as already noted in Ali v. Sufaira (1988 (2) KLT 94), implies two different types of payment. Maintenance is first of all for the period of iddat, which is uncontestable, and where one can bargain at best over the precise length of the iddat and the daily amounts of maintenance needed by a specific divorced woman. The additional term ’provision’, on the other hand, namely the main component of what mata is supposed to mean, I submit, is not explicitly time-bound in any form and should simply be fair and reasonable in the circumstances of a specific case. 

This is why it is entirely correct for Mr. Justice Basant to argue that a divorced Muslim wife in India certainly has a larger right than any other divorced wife in Indian law, and that this is also constitutionally halal. It is thus also correct to reiterate (para 31) that even a millionaire wife can get more from a husband who can fairly part with additional resources for the ex-wife’s benefit. On the other hand, what may happen in case of a desperately poor Muslim couple was not at issue in the present case. While it is unlikely to come to courts in the first place (but such cases are probably seen at Magistrates Court or Family Court level), it would help if Indian Judges could firmly state, whenever appropriate, even if this be obiter, that a desperately poor Muslim ex-wife can still bargain with her desperately poor ex-husband, so that she should not just be dumped into oblivion. A few pots and pans, and some old clothes, even the odd item of jewellery, are better than nothing at all. Above all, it is important to emphasise that the divinely ordained obligation of taking care of ‘the other’, in this case of mata, does not go away just because the husband himself is desperately poor. The provision of mata in such unfortunate circumstances still hovers over the ex-husband’s head and he cannot just disown the former wife. A clear judicial statement to that effect, in an appropriate case, would at least discourage moderately prosperous Muslim men from simply claiming destitution and utter inability to make any kind of provision for the ex-wife. Literate Kerala remains full of poor people, so such a strategy may well be socially effective to shift the power balance that little more towards poor women faced with divorce.

The Indian courts have already held, in effect, that such an obligation in principle exists. In Aboobacker, Mr. Justice Basant reiterates several times that is the obligation of mata itself is not contested. This obligation in principle ought to be impressed on poor men, too, just as Hindu men have been told in quite a few cases that as long as they are able-bodied people, they are expected to maintain their ex-wife rather than relying on others, or even on the wife (see e.g. Kanchan v. Kamalendra, AIR 1992 Bom. 493, at 494; Durga Singh Lodhi v. Prembai (1990 Cri.L.J. 2065 (M.P.), at 2067). Men as providers evidently need to be reminded of this basic role and the resulting presumptions from time to time. Activist Indian Judges should have no hesitation to give voice to their social consciousness in this respect.

From para 33 onwards, the next issue for debate in Aboobacker is the relationship of rights under S.3 of the 1986 Act and similar rights under S.125 of the 1973 Code. Could it be argued by crafty husbands that the 1986 Act has extinguished the rights of Muslim divorced wives under S.125? Again, Mr. Justice Basant alertly and swiftly plugs this potential loophole. Nothing going! The rights in the general law of S.125 Cr PC continue to apply despite the presence of the later personal law. This new personal law did not extinguish the earlier general law rights, adding thus in effect to the argument that Muslim ex-wives in India have better and stronger rights than other divorced women. Quite clearly, no more argument is possible about that now. 

Next in para 37, the nature of the relationship between sections 5 and 7 of the 1986 Act and S.125 of the 1973 Act are at issue. Here, too, the potential loophole is sought to be plugged by reasoning to the effect that the Muslim woman’s rights under S.125 do not stand extinguished. Notably, however, this firm judicial finding is supplemented in para 38 by the learned Judge’s conclusion that the Danial Latifi case did not really conclude this matter. So we are likely to see more case law on this subject, in due course, also because of the finding in para 40 that Abdul Gafoor Kunju v. Pathumma Beevi (1989 (1) KLT 337) may need reconsideration by a larger Bench in an appropriate case. What is clear, though, is that the divorced Muslim woman’s rights under S.3 of the 1986 Act “can be said to be superior and larger” (para 41) than the rights under S.125.

Regarding quantum of fair and reasonable provision and maintenance, there is really nothing to add in terms of substance. This is another very clear part of the judgment, including the wise comment that divorce is an unenviable situation, so that “[t]he best option is not to divorce at all and not to fracture such a sublime institution of marriage” (para 45). Having already found earlier that the date of remarriage is irrelevant in principle, also because holding otherwise would encourage husbands to become even more recalcitrant in the hope of saving money, the learned Judge finds in favour of the wife who refused to accept the husband’s suggestion for polygamous arrangements and confirms that the husband remains liable to pay Rs. 2,70,000/- to the former wife. 

x       x       x

Lastly, the issue of bribes is raised. This is the real India, too. Welcome to the world of shady deals. Apparently, the husband had instructed his lawyers to plead that he should not have to pay any mata to his ex-wife, because he had already paid a bribe to secure her a job as a teacher in a private school. I can sense Mr. Justice Basant hyperventilating: What a disgrace to literate Kerala, indeed! The wife, of course, denies that any such payment was made and claims that she secured employment through her own merit. Refusing to delve deeper into this matter, the learned Judge closes the judgement with some brief moralising statements about such issues. Here the strong sense of realism capitulates against the force of a hidden malady that raised its head not for the first time. A protective shutter thus came crushing down swiftly and heavily on the husband’s purse. And quite rightly so, since God, I am sure, would not look kindly upon an argument that bribing school officials could be seen as a form of mata. Whatever that concept was meant to be, it was supposed to protect the Muslim wife against vagrancy. While bribing someone in power to give your abandoned wife a job sounds humane and may even be seen as reasonable, I doubt that this would be treated as Islamically acceptable. Probably the less said the better. Clearly, here again, law and real life collide, and our sense of realism suggests that they also collude from time to time.

x      x       x

In conclusion, we see alert Indian Judges continuing in ongoing vigorous struggles to protect the entitlements of divorced Muslim wives to mata, whatever that may precisely mean in today’s legal English. The present case also confirms impressively that the somewhat infamous Shah Bano case remains good law in India, despite what many foreign observers and myopic local commentators have written. In India, Judges continue to make law, much more so than scholars with their politicised comments. This was authoritatively re-asserted by the Supreme Court in Danial Latifi in 2001 and is also eloquently reinforced in Aboobacker. 

But in the ongoing struggle over the management of cultural diversity in India’s post-divorce maintenance regime, some Muslim men still keep trying to fight windmills. This was not the last case we are going to see on this subject. But this desperate male chauvinist activity is becoming ever more dangerous and results now in image-defacing decisions like Aboobacker. This latest Don Quixote, again a chivalrous prosperous Keralite male, ran into the windmill powered by Basant J, giving rise to yet another notable decision from this Judge and a model lesson in Indian socio-legal analysis of the new millennium. 

I have heard English Judges say in cases of divorce and ancillary relief that they have to make sure that there is no charge on public funds as a result of their decision. In India, we should note, such considerations are not even mentioned as a reason for why men should continue to pay maintenance to ex-wives. The discourse, to some extent driven by devious litigants, is conducted in terms of religion and conflicts of personal law and general law. In England, there is a notably different discourse, but there are also many strategic silences. The welfare State used to assume - or at least claim - that it would be able to afford looking after destitute divorcees. We have gone quiet on that in Europe, as more and more States are realising today that this social welfare approach is fiscally unrealistic. Moreover, such lofty policies are too easily exploited by crafty individuals who claim entitlements or engineer situations of need to salt away private assets and make unjustifiable gains. I find it somewhat alarming that current social science research should refer to Somali male refugee assumptions that equate traditional cattle raiding (and resulting proof of masculinity) with hoodwinking unsuspecting modern welfare States out of benefits, because it may not be right in terms of status that a proud male should  be doing certain types of work. Related recent discussions about clear-up operations regarding widespread abuses of disability benefits are further alarming indications that ‘dodgy’ claims are by no means restricted to literate Kerala. 

In the present Indian scenario, the State clearly realises that it needs to fall back on society, on families, and particularly on men. All men, and not just Muslim men, as providers and controllers of resources. There is no reason here for Muslim males to feel victimised. If, as in the present case, a wife trusts her husband and puts all her eggs in his basket, that basket must become a protective safety net also for her, which will then need to yield fair and reasonable provisions for this women’s survival, whether she remains married to this particular man or not.

Unlike Pakistani law, of course, Indian law is not constitutionally required to test whether a particular law or amendment is Islamically correct. It seems to me that this frees the mind for deeper consideration of the higher purpose of mata. The focus in Indian law rests quite appropriately on whether the social welfare task of mata was accomplished in any particular set of circumstances. In this context, ignoring the allegations of bribe and just making a few indignant comments, while otherwise holding the wife entitled to the full amount of provision earlier determined seems entirely appropriate in Aboobacker, both from a social welfare perspective and an Islamic viewpoint. As indicated by Mr. Justice Basant, not all women might wish to remarry, and thus a comprehensive welfare net would need to account for scenarios where a divorced Muslim wife chooses not to remarry. I was intrigued that in para 50, the learned Judge actually commented on this when talking about the trauma of divorce: “The helpless plight of the spouse obliged to offer her body and mind to different men in quick succession cannot be lost sight of by a compassionate court”. Are these not echoes of Bai Tahira v. Ali Hussain Fissalli Chothia (AIR 1979 SC 362)? Here, at p.365, Mr. Justice Krishna Iyer (as he then was at his best in the age of Indian Supreme Court activism), thundered that adequacy of payment was the key issues, lest a woman “was ready to sell her body and give up her soul!”. 

Maintenance cases, we may need to be reminded, are not only about money. Like bribery, they are also about morality. Surely, forcing Muslim women into remarriage because of vagrancy should count as a form of endorsing zina? This dimension of the potential problems for divorced Muslim wives, anywhere in the world, has not been debated openly, but is in fact a major lesson that the Islamic countries of the Indian subcontinent, and not only those countries, ought to take more seriously in years to come. India clearly leads the way here and provides a guiding light to Islamic countries in demonstrating how plurality-conscious management of competing expectations of divorce, remarriage and sexual morality are to be managed in the 21st century. Bribe or no bribe, the key issue remains ensuring, as best as possible, the decent survival of divorced Muslim wives. The present case, closing all kinds of loopholes for further disingenuous male arguments, is thus an important milestone on India’s road to improved financial safety for divorced Muslim wives. It also indicates that, without much fussing, persistent judicial activism at all possible levels can continue to strengthen India’s post-modern social welfare net, helpfully also exonerating in the process the State’s stressed coffers. 

I see important continuities here with ancient Indian and other traditional methods of dispute settlement in family affairs, and one hopes that the message to Indian men of any religion is crystal clear: Pay up and hand over what is due to your ex-wives, do not waste money on fighting windmills and feeding lawyers to produce obnoxious arguments in the courts of any country. It is neither halal nor fair to do this in today’s increasingly gender-conscious world, and we do not even have to engage in fashionable and piously laborious human rights talk to bring out such messages. Realist navigation of competing claims in a spirit of altruism, caring for ‘the other’, is as much an element of the underlying mentalité of India’s vyavahâra and its modern manifestations as of the Islamic concept of mata and its contemporary interpretations. Aboobacker’s case teaches us that conflicting expectations can be overcome and reigned in by experienced, plurality-conscious Judges with a lot of patience, even when faced with dodgy claims.

Summons and Bail 

(By T.M. Rajasekharan, Advocate, Calicut)

The decision of the Kerala High Court in Sreekumar v. State of Kerala (2008 (3) KLT 748) ought to have covered one more problem confronting the accused persons who appear before a criminal court on receipt of summons. It has become an unnecessary practice that an accused person appearing before a court on receipt of summons in Form I Cr.P.C. should offer for bail. When he is decent enough to appear on summons, offering for bail with sureties is meaningless. At the best, he has to be released on self bond.

         Summons in Form I (S.476 R/W.61) reads as follows:

         To                                     (name and address of the Accused)

        Whereas your attendance is necessary to answer the charge of (State shortly the offence charges) you are hereby required to appear in person (or by pleader as the case may be) before the Magistrate of                         on the day of           herein fail not.

        Dated this                                      day of

        (Seal of the Court)                                                                                                  (Signature)

Nowhere in the Form I it is stated that he should offer for bail, far from requiring him to produce sureties. His presence is not necessary if he appears through pleader duly appointed, except for recording plea or framing charges. Even this can be performed through counsel. When the summons does not call for bringing sureties, the learned Magistrates are not right in remanding the person for want of sureties. Such acts are not merely unfriendly and inhuman, but a challenge on the integrity of the honest citizen of the country.

In most other States, when accused person appears on summons is released on executing self bond regardless to the fact whether the offence alleged is bailable or nonbailable. I must add that in spite of innumerable judgments of Supreme Court and High Court on the right of bail, releasing an accused person from court on bail even in bailable offences is a nightmarish experience owing to unwanted and cumbersome formalities of bail. Considerable time of the court can also be saved if bail is not insisted upon. Only when the person defaults in appearance the court need require him to produce sureties.

I feel that the High Court’s attention is drawn to the sad plight of accused persons on this aspect as well.