Adieu Justice Ruth Bader Ginsburg -- The Civil Rights Gladiator

(By S.K. Premraj Menon, Advocate, High Court of Kerala)

a. Justice Ruth Bader Ginsburg who affectionately earned the moniker ‘Notorious RBG’ for her scathing dissents during her twenty-seven-year tenure was the second lady Judge in the United States Supreme Court. The Jewish born Justice Ginsburg after serving as a Professor in Rutgers University Law School and later at Columbia University, then served as the Director of the Women’s Rights Project of the American Civil Liberties Union during 1970s. She was appointed to the United States Court of Appeals for the District of Columbia in 1980 by the then President Jimmy Carter and finally named to the United States Supreme Court in 1993 by the then President Bill Clinton after Justice Byron White demitted office. Justice Ginsburg - a legal, cultural and feminist icon, was the bastion of gender constitutionality.

b. Justice Ginsburg had consistently interpreted the Establishment Clause of the First Amendment to the United States Constitution to provide for a high degree of separation of Church and the State. She authored several majority opinions in First Amendment cases. In Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy(512 US 136 (1994)) Justice Ginsburg held that the decision of the Florida Board of Accountancy to censure Silivia Safille Ibanez’s use of Certified Public Accountant and Certified Financier Planner designations violates the freedom of speech protected by the First Amendment, thus addressing concerns about the disclosure of truthful, relevant qualifications in the Accountants’ commercial speech. It was held that in cases involving commercial speech by professionals, the First Amendment takes precedence over deference to state regulatory agencies. In Buckley v. American Constitutional Law Foundation, Inc.(525 US 182 (1999)), which dealt with the authority of States to regulate the electoral process and the point at which State regulations of the electoral process violate the First Amendment’s freedoms, Justice Ginsburg held that the State of Colorado’s imposition of name, badge and financial requirements, on initiative-proponents and their circulators violated the First Amendment’s freedom of speech protections. In Eldred v. Ashcroft (537 U.S.186 (2003)),Justice Ginsberg rejected a First Amendment challenge to the Copyright Term Extension Act. The challenge had been made on the grounds that Congress exceeded its authority as set forth in Article 1, Section 8 - the Copyright Clause of the Constitution and that the Copyright Term Extension Act violated the First Amendment. In Illinois Ex. Rel.Madigan v. Telemarketing Associates, Inc.(538 US 600 (2003)), in a unanimous decision, Justice Ginsburg ruled that State efforts to pursue fraud charges against fundraisers and telemarketers for misrepresenting money collected in fundraising campaigns did not violate the Free Speech Clause of the First Amendment. In this case, the Attorney General of Illinois - Lisa Madigan pursued fraud charges against Telemarketing Associates, Inc. for keeping a major chunk of the funds solicited for Vietnam veterans while representing otherwise. Though the Illinois Supreme Court had ruled that such charges were barred by earlier decisions, Justice Ginsburg decided differently. In Christian Legal Society Chapter of the University of California v. Martinez (561 US 661 (2010)) Justice Ginsburg upheld, against a First Amendment challenge, the policy of the University of California, Hastings College of Law, governing official recognition of student groups, which required the groups to accept all students regardless of their status or beliefs in order to obtain recognition and that the Hastings non-discrimination policy was a reasonable, viewpoint-neutral restriction that did not violate the First Amendment. In Golan v. Holder (565 US 302 (2012)), a case that dealt with copyright and the public domain, Justice Ginsburg held that the ‘limited time’ language of the Copyright Clause in the Constitution does not preclude the extension of copyright protections to works previously in the public domain. Wood v. Moss(572 US 744 (2014))was a case which arose out of a campaign stop by the then President George Bush during his 2004 Presidential campaign. Prior to the campaign event, President George Bush dined at a restaurant near where a group of supporters and a group of protesters had gathered. Two secret service agents directed local police to move the protesters to protect the President. The protesters sued the agents in the United States District Court of the District of Oregon. The agents filed a motion to dismiss which was eventually granted based upon the Supreme Court’s decision. Justice Ginsburg in a unanimous decision, held that the secret service officers who moved protesters away from the President were protected by qualified immunity.

c. Justice Ginsburg frequently voted in a First Amendment-friendly manner in her dissents as well. She dissented from the majority opinion in Capitol Square Review & Advisory Board v. Pinette(515 US 753 (1995)) which focused on the First Amendment rights and the Establishment Clause, where it was held that Ku Klux Klan had the right to erect a cross next to a Christmas tree and a menorah on the Capitol Square in Columbus, Ohio, during the 1993 Christmas season. The majority concluded that such display did not violate the of Establishment Clause of the First Amendment and was consistent with the free speech rights of the Klan and other such organizations. Justice Ginsburg dissented stating that if the Establishment Clause is truly intended to separate Church and the State, then the Government can neither permit, and the Court cannot order, any religious items to be displayed, holding that, if based on the Constitution, the Advisory Board was not permitted to not allow certain displays to be shown, then by the same interpretation the Court cannot force any particular display to be shown either. In Florida Bar v. Went For It, Inc.(515 US 618 (1995)), where the majority upheld a State’s restriction on lawyer advertising under the First Amendment’s commercial speech doctrine, Justice Ginsburg joined Justice Anthony Kennedy’s potent dissent, criticizing the majority for prohibiting attorneys from communicating to persons who may be in dire need of legal assistance. Another famous dissent of Justice Ginsburg was in City of Erie v. Pap’s A.M.(529 US 277 (2000)) - a landmark decision by the United States Supreme Court regarding nude dancing as free speech, holding that an ordinance banning public nudity did not violate the operator of a totally nude entertainment establishment’s constitutional right to free speech. The secondary effects test employed by the majority particularly concerned Justice Ginsburg who joined Justice John Paul Stevens, to hold that the secondary effects test had traditionally been employed in relation to the location of erotic speech, not to substantiate an outright ban on protected First Amendment speech, inter alia warning that the consequences of the decision would be severe since for the first time the Court declared that unwanted or unpopular speech could be prohibited simply due to effects that happen to be associated with that speech. Justice Ginsburg always has been a strong defender of commercial speech. She joined Justice David Souter in the dissent in Zelman v. Simmons-Harris (536 US 639 (2002)) which upheld Ohio’s Pilot Project Scholarship Program, which provided for tuition money (known as vouchers) to parents in the Cleveland City School District to allow them to send their children to public or private schools of their choice, as the program did not violate the Establishment Clause of the First Amendment, even if the vouchers could be used for private, religious schools. In Van Orden v. Perry(545 US 677 (2005)), a case involving whether a display of the Ten Commandments on a monument given to the Government at the Texas State Capitol in Austin violated the Establishment Clause of the First Amendment, the majority held that the monument was constitutional, as it represented historical value and not purely religious value and upheld the constitutionality of a display of the Ten Commandments in a public park in Austin, Texas. Joining Justice John Paul Stevens, Justice Ginsburg dissented stating that the display has no purported connection to God’s role in the formation of Texas or the founding of the nation and therefore could not be protected on the basis that it was a display dealing with secular ideals. It was also stated that the display transmits the message that Texas specifically endorses the Judeo-Christian values of the display and thus, the display violates the Establishment Clause. In Beard v. Banks (548 US 521 (2006)), a challenge was made regarding the constitutionality of the Pensylvania Department of Corrections policy of denying access to written material such as newspapers and magazines, to violent (Level 2) inmates, on the grounds that the policy was a violation of his basic First Amendment rights, including the freedom of speech. The majority rejected a prisoner’s claim that the prison’s ban on reading material violated the First Amendment. Joining Justice John Paul Stevens, Justice Ginsburg dissented, reasoning that the restrictive reading policies had a highly questionable connection to the State’s interest in rehabilitation and that the prison’s rules came perilously close to a state-sponsored effort at mind control. In her separate dissent, Justice Ginsburg also criticized the high evidentiary burden, the majority placed on the prisoners. In Ledbetter v. Goodyear Tire & Rubber Co.(550 US 618 (2007)),Justice Ginsburg dissented from the majority view in the famous pay discrimination case. She wrote the dissent and read it from the bench, a rare practice, joined by Justice John Paul Stevens, Justice David Souter and Justice Stephen Breyer, holding against applying the 180 day limit to pay discrimination, because discrimination often occurs in small increments over large periods of time, that pay discrimination is inherently different from adverse actions, such as termination and that the broad remedial purpose of the statute was incompatible with the Court’s cramped interpretation. It was this dissent that paved way for enactment of the Lilly Ledbetter Fair Pay Act, which revised the law that if a present act of discrimination pertains, prior acts outside of the 180 day statute of limitations for pay discrimination can be incorporated into the claim. In Federal Communications Commission v. Fox Television Stations, Inc. (556 US 502 (2009)), a fractured majority held that the Federal Communications Commissiondid not act arbitrarily and capriciously under the Administrative Procedure Act by changing its policy with regard to fleeting expletives. Justice Ginsburg dissented holding that there is no way to hide the long shadow the First Amendment which casts over what the Federal Communications Commission had done. Anyhow, the Supreme Court declined to address the underlying First Amendment free speech issues and the matter was remanded to the Second Circuit. On remand, the Second Circuit addressed the actual constitutionality of the fleeting expletive rules, striking it down and the Federal Communications Commission re-appealed, whereupon the Supreme Court decided the appeal narrowly, striking down the fines as unconstitutionally vague, but upholding the authority of the Federal Communications Commission to act in the interests of the general public when licensing broadcast spectrums to enforce decency standards, so long as they are not vague, without violating the First Amendment. Justice Ginsburg’s last dissent was in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania(591 US__(2020)), on 8th July 2020, in a case involving ongoing conflicts between the Patient Protection and Affordable Care Act and the Religious Freedom Restoration Act over the Patient Protection and Affordable Care Act’s contraceptive mandate, which exempted non-profit religious organizations from complying with the mandate, which for-profit religious organizations objected to. The majority held that the Departments of Health and Human Services, Labour and the Treasury had authority under the Patient Protection and Affordable Care Act to promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees. Justice Ginsburg dissented joined by Justice Sonia Sotomayor critically observing, Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.’

d. One of the ground-breaking judgments of Justice Ginsburg was United States v. Virginia(518 US 515 (1996)) wherein she struck down the long-standing male-only admission policy of the Virginia Military Institute. Writing for the majority, she stated that because Virginia Military Institute failed to show exceedingly persuasive justification for its sex-based admissions policy, it violated the Fourteenth Amendment’s Equal Protection Clause. In an attempt to satisfy equal protection requirements, State of Virginia proposed a parallel program for women viz., Virginia Women’s Institute for Leadership at Mary Baldwin College. Anyhow, Justice Ginsburg held that Virginia Women’s Institute for Leadership would not provide women with the same type of rigorous military training, facilities, courses, faculty, financial opportunities and/or alumni reputation and connections that Virginia Military Institute afforded to male cadets and that being so, Virginia Women’s Institute for Leadership was a pale shadow of Virginia Military Institute in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence. Another was Olmstead v. L.C. (527 US 581 (1999)), a case regarding discrimination against people with mental disabilities, wherein Justice Ginsburg held that under the Americans With Disabilities Act, individuals with mental disabilities have the right to live in the community rather than in institutions, explaining that States are required to place persons with mental disabilities in community settings rather than in institutions when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. This proved a victory for the rights of people with disabilities. In this case, two women with mental disabilities were ordered to remain in a psychiatric facility even though some medical professionals believed they could live healthy lives in a community-based program. Whole Woman’s Health v. Hellerstedt (195 L Ed 2d 665 (2016))was yet another judgment in which it was held that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion. Writing a two-page concurrence, Justice Ginsburg wrote that many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-centre or hospital admitting-privileges requirements and that given those realities, it is beyond rational belief that the Texas House Bill-2 could genuinely protect the health of women and certain that the law would simply make it more difficult for them to obtain abortions. She went on to observe that when a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioner and that laws like Texas House Bill-2 that ‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.

e. The views of Justice Ginsburg, even her dissents find place in many major decisions of our Supreme Court. In a three Judge Bench decision in Consumer Education and Research Centre v. Union of India(1995 (1) KLT SN 27 (C.No.38) SC = (1995) 3 SCC 42) considering a Public Interest Writ Petition under Article 32 regarding violations of the right to health on occupational health hazards and diseases to the workmen employed in asbestos industries, Justice Ramaswamy speaking for the Bench went on to refer to Blannie S.Wilson v. Johns Manville Sales Corporation Ltd.(684 Federal 2^nd III (1982)) in which Justice Ginsburg as a Judge in the Court of Appeal, District of Columbia Circuit, deciding the question of limitation of three years from the date of diagnosis of mild asbestosis held that the period of three years should be computed from the date of discovery and the asbestosis, which is not a cancerous process, has a latent period of 10 to 25 years between initial exposure and apparent effect. In Saurabh Chaudri v. Union of India(2003 (3) KLT SN 144 (C.No.187) SC = (2003) 11 SCC 146) -the Constitution Bench decision was concerned with the constitutional validity of reservation whether based on domicile or institution in the matter of admission into Post Graduate Courses in Government run medical colleges. Concurring with Chief Justice V.N.Khare’s view, Justice S.B.Sinha referred to the minority view of Justice Ginsburg who joined Justice David Souter in Jennifer Gratz and Patrick Hamacher v. Lee Bollinger(539 US 244 (2003)) and held her dissenting views to be in tune with our constitutional scheme. In Chinnaiah v. State of Andhra Pradesh(2005 (1) KLT SN 9 (C.No.13) SC = AIR 2005 SC 162), a Constitution Bench of our Supreme Court considering the validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, dealing with the issue of reservation and the fact that the benefit of reservation was not percolating down to the most deserving class among the scheduled castes, delivering a separate concurring judgment, Justice S.B Sinha, referred to the very same minority view in Jennifer Gratz and Patrick Hamacher v. Lee Bollinger (Supra) and held her dissenting views to be in tune with our constitutional scheme. In Saurabh Chaudri v. Union of India(supra) as well as Chinnaiah v. State of Andhra Pradesh(supra), Justice S.B.Sinha referred to the minority view of Justice Ginsburg as ‘his minority opinion’. In Ashoka Kumar Thakur v. Union of India & Ors.(2008 (3) KLT Suppl.622 (SC) = (2008) 6 SCC 1), a Constitution Bench of the Apex Court considering the Constitution (Ninety Third) Amendment Act, 2005 and the enactment of the Central Educational Institutions (Reservation in Admission) Act, 2006 giving reservation to Other Backward Classes, Scheduled Castes and Scheduled Tribes, Chief Justice K.G.Balakrishnan, relied on the statement by Justice Ginsburg at the Fifty first Cardozo Memorial Lecture in 1999 where she said that comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights, that we are losers if we neglect what others can tell us about endeavours to eradicate bias against women, minorities and other disadvantaged groups and that irrational prejudice and rank discrimination are infectious in our world. In this, reality, as well as the determination to counter it, we all share. In Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008 (2) KLT SN 69 (C.No.83) SC = AIR 2008 SC 663),Justice S.B.Sinha dealing with the issue of discrimination of women from working in public places serving liquor, wherein constitutional validity of Section 30 of the Punjab Excise Act, 1914 prohibiting employment of ‘any man under the age of 25 years’ or ‘any woman’ in any part of such premises in which liquor or intoxicating drug is consumed by the public was under challenge, heavily relied upon the observation of Justice Ginsburg in United States v. Virginia(Supra) as to how the Court should look at differential treatment on the basis of gender. In Retd. Jus. K.S.Puttaswamy & Anr. v. Union of India & Ors.(2017 (4) KLT 1 (SC) = (2017) 10 SCC 1) which we popularly know as the Right to Privacy judgment, the majority of a nine Judge Bench speaking through Justice D.Y.Chandrachud, held that right to privacy is a constitutionally protected value, relying on the dissenting view of Justice Ginsburg in Minnesota v. Carter (525 US 83 (1998)),joined by Justice Stevens and Justice Souter. In Navtej Singh Johar & Ors. v. Union of India & Ors. (2018 (4) KLT 1 (SC) = (2018) 10 SCC 1), a Constitution Bench of the Apex Court considering a Writ Petition seeking to declare right to sexuality’, right to sexual autonomy’ and right to choice of a sexual partner’ to be part of the right to life guaranteed under Article 21 of the Constitution of India and also to declare Section 377 of the Indian Penal Code as being unconstitutional, while striking down Section 377 of the Indian Penal Code, Justice D.Y.Chandrachud referred to the dissenting view of Justice Ginsburg along with Justice Sonia Sotomayor in Masterpiece Cakeshop v. Colorado Civil Rights Commission(201 L Ed 2d 35 (2018)).

f. Now, the Apex Court is seized of the challenge to the Citizenship Amendment Act, 2019. The minority opinion of Justice Ginsburg in Trump v. Hawaii(201 L Ed 2d 775 (2018)), would be cited, notwithstanding whether the Supreme Court favours or not. That was a landmark judgment which involved the Presidential Proclamation 9645 signed by President Donald Trump restricting travel into the United States by people from several nations or by refugees without valid travel documents. Two other executive orders issued by President Donald Trump on statutory and constitutional grounds were also challenged, on the basis that the proclamation and its predecessor orders were motivated by anti-Muslim animus. The majority held that there was no illegality in President Donald Trump’s travel policy. The minority view of Justice Sonia Sotomayor to which Justice Ginsburg agreed, read that The United States of America is a nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.’This view is squarely applicable in India as secularism is a basic feature of the Indian Constitution as well.

g. Justice Ginsburg who died on 18^th September 2020 has left behind a stout legal legacy all across the globe. Her contributions to human race impacted not merely the United States of America but the Supreme Court of India as well. We know, the United States of America is the oldest living democracy and the United States Supreme Court is a part of its Constitution. Our Constitution has borrowed several features from the Constitution of United States of America, inclusive of Fundamental Rights, making appropriate changes to suit Indian conditions and to address certain issues like caste, child labour, untouchability and so on. As we know, our Courts still cite the judgments of the United States Supreme Court on issues affecting fundamental rights. This article is just a recall of the monumental effect of Justice Ginsburg on the fight for equality in the United States of America and its effect in our country as well. Even in death, Justice Ginsburg is making history for women. As rightly said by Chief Justice John.G.Roberts of the United States Supreme Court, this world has truly lost a tireless and resolute champion of justice  and there can be no other. Let this be a tribute to the legendary Justice Ruth Bader Ginsburg - the Founding Mother of the United State’s gender equality jurisprudence.

Much Ado About Nothing

(By S.M. Unnikrishnan, Advocate, Palakkad)

As per the Hindu Succession (Amendment) Act, 2005, (39 of 2005) the daughters are also made coparceners in the property. Before the amendment only male members were coparceners and they get a right by birth in the coparcenary property. Before the advent of Hindu Succession Act (30 of 1956) on the death of a coparcener the property devolved on the other coparceners who are males not removed from the common ancestor by more than three degrees. The devolution of the property was by survivorship. While the matters stood thus, on the death of the coparcener, wife of the coparcener was entitled to maintenance from the coparcenary property. In 1937 when Hindu Women’s Right to Property Act came into force, the wives were entitled to a limited estate which will go back to the main stream i.e., coparcenary on the death of the wife since it was a limited estate. When the Hindu Succession Act, 1956 came into force there was difference in the devolution of interest in the coparcenary property. This limited estate became absolute under Section 14(1) of the Hindu Succession Act (30 of 1956).

As per Section 6 of the Hindu Succession Act, (Act 30 of 1956) when a male Hindu dies after the commencement of the Act, having at the time of his death an interest in a Mithakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.

Provided that if the deceased had left him surviving a female relative specified in class I of the schedule or a male relative specified in that class who claims through such female relative the interest of the deceased in the Mithakshara coparcenery property shall devolve by testamentary or intestate succession, as the case may by, under this Act and not by survivorship. Explanation 1- For the purposes of this section the interest of Hindu Mithakshara coparcener shall be deemed to be the share in the property that would have been allotted to him, if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. As per the proviso class I heirs of the coparcener in his share at the time of his death are his wife and children including daughters. So as per the Hindu Succession Act before the amendment of Section 6 in 2005 the daughters indirectly became sharers in the coparcenary property with regard to the share of the coparcener. This section i.e. Section 6 was introduced into the Hindu Succession Act 30 of 56 in order to give right in the Mithakshara coparcenary property to the females. In fact in the constituent assembly when the bill with regard to the Act was discussed there was a group having a firm opinion that coparcenery and coparcenery property should be put an end to. There was another group who were very much upset by the suggestion and they were not prepared give up the coparcenery and the coparcenery property. Only to satisfy them Section 6 was introduced in the Act. It was clear that by passage of time there will be no coparcenary property left for survivorship amongst the coparceners. Once the property of a coparcener devolves on his class 1 heirs on his death the remaining property alone will be available for survivorship. The result will be the coparcenary property gets truncated and only a skeleton will remain after sometimes as coparcenery property for survivorship. After a period of time there will be no property left for applying Section 6 and Section 8 of the Act alone will be there to apply if a male Hindu dies intestate. It is after almost 50 years that Section 6 was amended making daughters also coparceners. Now it is very clear that there will be only very little property left in the coparcenary for the daughters to acquire by birth.

In between 1956 Act and the amendment in 2005, various states have introduced special enactments for giving share in the joint family property to the daughters. In Kerala, by the introduction of the Kerala Joint Hindu Family System (Abolition) Act, 1975, a notional partition of the joint family property took place on the basis of the sharers available in the family on 01.12.1976. As per Section 4 of the said Act joint family became disrupted as if a partition has taken place and they were holding the property as tenants-in-common. The property in their hands in the joint family property is their serarate property and thereafter none, both male and female will get any right by birth in the property. The proviso to sub-section (1) of Section 6 of the Hindu Succession (Amendment) Act (39 of 2005) any disposition or alienation including any partition or testamentary disposition of property which had taken place before December 2004 shall be affected or invalidated by the amendment. The notional partition as per Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, will be deemed to be a partition which has taken place on 01-12-1976 i.e., before 20.12.2004. So in Kerala the amendment has no effect because a special state enactment will prevail over the central enactment i.e., as inheritance to the property is included in the concurrent list in the 7^th Schedule to the Constitution; only criterion being it should not be against the central enactment for which provision is made in the central enactment. The Joint family Abolition Act was upheld by the Supreme Court to be constitutionally valid and therefore with regard to Mithakshara coparcenary property, the Kerala Joint Hindu Family System (Abolition) Act, will prevail over Section 6 of The Hindu Succession (Amendment) Act, 2005.

In the result, the amendment of Section 6 of the Hindu Succession Act in 2005, by which the daughters in the Hindu joint family is made coparceners have practically no effect as far as Kerala is concerned. Other states like Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the Act giving right to daughters also in the Mithakshara coparcenary property. Over and above this the Amendment Act says about non applicability of the Amendment Act with regard to testamentary dispositions of property effected before 20.12.2004. This clause will in effect open the flood gate for litigations and will become a lawyers’ paradise. Please see Section 30 and explanation in the Act and the recent judgment by Justice K.M.Joseph (Kalyanaswamy v. Bhakthavalsalam) (2020 (4) KLT 913 (SC)).

I am unable to comprehend why we should insist on the existence of a coparcernary and coparcenary property. My opinion is that the coparcenary concept should be put an end to and Section 6 is to be omitted from the Hindu Succession Act. The devolution of property should be as per Section 8 and 9 and 15 and 16 of the Hindu Succession Act for males and females respectively. The confusions and complications created by the statutes and judgments of various High Courts and Supreme Court can be avoided forever; though the recent judgment of the Supreme Court has tried to set at rest many contradictions. (Vineeta Sharma v. Rakesh Sharma & Ors.)(2020 (4) KLT OnLine 1009 SC). My feeling is that the new generation parents do not show any discrimination against sons and daughters and we need not create that feeling in them by introducing new statute and amendments.

According to me the same principles apply to Marumakkathayees and Aliyasanthanas in Kerala. Section 17 of the Hindu Succession Act has become practically defunct; especially after the commencement of the Kerala Joint Hindu Family System (Abolition) Act, 1975. In short, my opinion is that Section 6 has to be omitted from the Hindu Succession Act after discussing the pros and cons of the effect of the section and the amendment. The effect of the omission of Section 6 from the Act also can be gone into before finalising it.

My experience as a lawyer being limited to Kerala has its own limitations. Criticism welcome.

Adoption in the context of the Juvenile Justice
(Care and Protection of Children) Act, 2015

(By Sasisekhar Menon, Librarian, High Court of Kerala)

“Our children are our greatest treasure. They are our future. Those who abuse them tear at the future of our society and weaken our nation.”                     -- NELSON MANDELA

The United Nations Convention on the Rights of the Child, 1989 is the world’s most widely ratified human rights treaty in history. It was based on the idea that children are human beings and individuals with their own rights The convention says childhood is separate from adulthood, and lasts until 18 years. It has inspired Government to change laws and policies and make investments so that more children finally get the healthcare and nutrition they need to survive and develop, and there are stronger safeguards in place to protect children from violence and exploitation.

Hague Adoption Convention on Protection of Children and Co-operation in Respect of Inter Country Adoption; the preamble of which states Inter country adoption shall be made in the best interests of the child and with respect for his or her fundamental rights and to prevent the “abduction of’, the sale of, or traffic in children and each state should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin.

This Convention entered into force on 1^st May, 1995 and as on March 2019, the Convention has been ratified by 99 countries. To comply with international standards, many changes have been introduced in national legislation enacting laws to criminalize the act of obtaining improper gains from international adoptions.

Laws governing Adoption in India:

Adoption law in India is in conjunction with the personal laws of individual religion and therefore, adoption is not allowed as per the personal laws of Muslims, Christians, Parsis and Jews in the country. However, an adoption can be made from an orphanage under the Guardians and Wards Act, 1890, subject to court’s approval. Hindus, Jains, Buddhists or Sikhs are allowed to adopt a child formally and the adoption is as per the Hindu Adoption and Maintenance Act, 1956 which was enacted as part of the Hindu Code Bills.

Adoption of abandoned, surrendered or abused children is governed by the Juvenile Justice (Care and Protection of Children) Act, _;2015.

In the absence of any concrete Act for inter country adoption, the procedures laid down by the Guardians and Wards Act, 1890 are followed.

The Juvenile Justice (Care and Protection of Children) Act, 2015

This Act (for brevity mentioned hereafter as the JJ Act, 2015) came into effect on 15.01.2016. It replaced the earlier Act of 2000 and allows for Juveniles in conflict with law in the age group of 16-18, involved in heinous offences to be tried as adults. The Act has also sought to create a universally accessible adoption law for India. It attempts to streamline adoption procedures for orphan, abandoned and surrendered children, the existing Central Adoption Resource Authority (CARA) has been given the status of a statutory body to enable it to perform its functions more effectively. It allows a JJ Board (which includes psychologists and sociolgists) to decide whether a Juvenile Criminal in the age group of 16-18 should be tried as an adult or not. It introduced concepts from the Hague Convention of 1993, which were missing in the previous Act. The Act introduced foster care in India. Families will sign up for foster care and abandoned, orphaned children, or those in conflict with the law will be sent to them. Such families will be monitored and shall receive financial aid from the State. In adoption, disabled children and children who are physically and financially incapable will be given priority. Section 56 to 73 of the JJ Act, 2015 deal with Adoption. Section 56(1) states that “adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provision of the Act, the rules made thereunder and the Adoption Regulations framed by the Authority.”

Section 63 mention the effect of Adoption thus, “once an adoption order is issued by the court, the child shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, for all purposes, including intestacy, with effect from the date on which the adoption order takes effect, and on and from such date all the ties of the child in the family of his or her birth shall stand severed and replaced by those created by the adoption order in the adoptive family”.

Section 67 explains State Adoption Resource Agency and Section 68 the Central Adoption Resource Authority. Section 72 deals with grants by Central Government and Section 73 deals with Accounts and audit of the authority.

Features of the Adoption Regulations. 2017 (w ef 16.01.2017)

Regulation 3: Fundamental principles governing adoption:

(a) The child’s best interests shall be of paramount consideration, while processing any adoption placement.

(b) Preference shall be given to place the child in adoption with Indian citizens and with due regard to the principles of placement of the child in his own socio-cultural environment, as far as possible.

(c) All adoptions shall be registered in Child Adoption Resource Information and Guidance system and the confidentiality of the same shall be maintained by the Authority.

Regulation 14: Non - resident Indians to be treated at par with resident Indian.

Regulation 22: Procedure for adoption of a child from a foreign country by Indian citizens.

Regulation 33: Role of State Government and State Adoption Resource Agency.

Regulation 34: District Child Protection Unit.

Regulation 37: Central Adoption Resource Authority.

Landmark Judgments of the Supreme Court of India on Adoption.

1. Lakshmi Kant Pandey v. Union of India(1984 KLT OnLine 1203 (SC) decided in 06.02.84).

The court held that no attempt should be made to trace or contact biological parents coming forward to claim child after it had been given to foreign in adoption. It is also necessary while considering placement of child in adoption to bear in mind that brothers and sisters or children who have been brought up as siblings should not be separated except for social reasons. As soon as deciding to give child in adoption to foreigner is finalised, recognized social or child welfare agency must, if child has reached age of understanding, take steps to ensure that child is given proper orientation and prepared for going to its new home in new country so that accumulation of child to new environment is facilitated.

2. In Shabnam Hashmi v. Union of India(2014 (2) KLT 444) on 19.02.2014, the court held u/S.41 of the JJ (Care and Protection of Children) Act 2000- Adoption of children by person irrespective of religion, caste, creed etc. Muslim personal law does not recognize adoption though it does not prohibit childless couple from taking care and protecting child with material and emotional support. S.41 as amended in 2006 contemplates adoption. Provision of S.41 enabling any person, irrespective of religion he professes to take child in adoption. Prospective parents, irrespective of their religious background, are free to access provision of 2000 Act for adoption of children after following procedure prescribed. The JJ Act, 2000 as amended in 2006 is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed. The JJ Act, 2000 does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act if he so desires. Such a person is always free to adopt or choose not to do so and instead follow what he comprehends to be the dictates of the personal law applicable to him. The JJ Act. 2000 is a small step in reaching the goal enshrined by Art. 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operative of the provisions of an enabling statute. An optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which however would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform civil code is achieved.

Adoption-Held-Right of child to be adopted and that of prospective parents to adopt- not to be declared fundamental right u/Art. 21 of the Constitution-Present is not appropriate time and stage where right to adopt and right to be adopted can be raised to status of fundamental right and/or to understand such right to be encompassed by Art. 21 of the Constitution- Elevation of right to adopt or to be adopted to the status of fundamental right- will have to await dissipation of conflicting thought processes in this sphere of practices and belief prevailing in country.

3. In Stephanie Joan Becker v. State & Ors.(2013 (1) KLT SN 115 (C.No.100) SCon 08.02.2013 held,

Inter country adoption- Application by appellant to court for appointing her as guardian of female orphan child aged about 10 years- Another application for permission of court to take child out of country for adoption- Application rejected by trial court -HC did not interfere- Adoption process spelt out under guidelines, adhered to- Expert bodies also in favour of adoption of child- Appellant could not be said disqualified or disentitled to relief sought by her- Impugned orders set aside-Appellant appointed as legal guardian of female child with necessary directions. Having regard to the totality of the facts of the case, the proposed adoption would be beneficial to the child apart from being consistent with the legal entitlement of the foreign adoptive parent.

4. In Sampurna Behura v. Union of India & Ors.(2018 (2) KLT OnLine 3060 (SC)on 09.02.2018 held-

The JJ Boards (JJB) and Child Welfare Committees (CWC) must appreciate that it is necessary to have sittings on a regular basis so that a minimal number of inquiries are pending at any given point of time and justice is given to all juveniles in conflict with law and social justice to children in need of care and protection. This is a constitutional obligation. The NCPCR (National Commission for Protection of Child Right) and the SCPCR (State Commission for Protection of Child Rights) must carry out time bound studies on various issues, as deemed appropriate under the JJ Act, 2015. Based on these studies, the State Governments and the Union Territories must take remedial steps.

5.InUnion of India & Ors. v. Ankur Gupta & Ors.(2019 (1) KLT OnLine 3083 (SC)on 25.02.2019, held-

Respondents No. 1 and 2 submitted an application through Central Adoption Resource Information and Guidance System (CARINGS) to adopt a child as Indian Prospective Adoptive Parents. Respondent No.2 had by then required citizenship of USA. Baby Shomya (born on 30.09.17) was referred by Respondent No.3 for adoption by R1&2, who apprehended that, referrel of Baby Shomya for adoption would expire on 18 January 2018, repeatedly corresponded with appellants as a follow up for completing adoption of Baby Shomya. In March 2018, when R & R2 visited Baby Shomya, they were informed that their request for permission to continue first application as Indian living in India, Prospective Adoptive Parents was declared as invalid because R1 had also been given US citizenship. Child was declared free for adoption in 14.12.17 by Child Welfare Committee. Before expiry of 60 days, child could not have been offered for adoption to parents, who were eligible for adoption under S.59.

Rl & 2 had been bona fidepursuing their applications for adoption, initially as resident Indians and thereafter even as overseas citizens of India, and as per S.57 were fully eligible and competent to adopt child. But statutory procedure and statutory regime, which was prevalent as on date was equally applicable to all aspirants.

Competent authority shall again notify child Shomya legally free for adoption, by notification within one week. In event, within 60 days from date Shomya was declared as legally free for adoption was not taken by or adopted by Indian prospective adoptive parents, child Shomya shall be given in adoption to Rts 1 & 2 in inter country adoption. All consequential steps thereafter shall be completed.

Recent Development:

The P & H HC has in July, 2020 ruled that a No objection certificate from the Central Adoption Resource Authority (CARA) or to follow a procedure of the JJ Act,2015 is not required if the Hindu adoptive parents has adopted a child directly from biological parents of the child. Justice Nirmaljit Kaur advised the petitioner to obtain a simple NOC from the CARA that it would be in the interest of the adoptive parents and the child. This also ensures a clean transition from one country to another and protect them from facing any difficulty in visa or any other requirement.

Tail Piece:“It is the spirit and not the form of law that keeps justice alive.”

                                                                                          - Earl Warren.

Whether Steamer Agent Liable to Pay Demurrage to Port for
Uncleared Goods? Question Answered by Supreme Court

(By V.B.Hari Narayan, Advocate, High Court of Kerala)

The Honourable Supreme Court in the judgement dated 5.08.2020 in Chairman, Board of Trustees, Cochin Port Trust v Arebee Maritime Agencies Private Limited & Ors .
(2020 (4) KLT OnLine 1126 (SC)which originated from the decision of the Honourable High Court of Kerala rendered on 27.9.2011 has decided several pertinent legal issues with reference to the liability of a steamer agent to pay ground rent/demurrage in respect of goods which are stored in the custody of port trust beyond a period of 75 days on account of the owner of the goods failing to come forward to take delivery of the same or clear the port charges.

Incidentally the Supreme Court also considered the larger question as to whether a ship owner or his agent can be considered as an ‘owner’ in terms of the definition contained under Section 2(o) of the Major Port Trusts Act with reference to goods.

The Supreme Court also considered the impact of Section 61 and 62 of the Major Port Trusts Act in so far as it lays down an obligation on the part of the Port Trust to sell goods not removed from its premises within an outer time limit of 2 months and whether such a stipulation is mandatory or directory in nature.

While considering the question as to whether a steamer agent can be construed as an “owner” in relation to goods under Section 2(o) of the Major Port Trusts Act, the court has drawn a distinction with reference to the ownership of goods until the stage of landing and removal to a place of storage, and when the goods are actually taken by Port Trust for storage.  But at the same time, by treating the definition of Owner as an inclusive one, and that loading and unloading can take place at the instance of steamers agent also, the Court refused to declare that the steamer agent is not included within the definition of Owner under the Major Port Trusts Act. As far as the 1st scenario is concerned, the Supreme Court held that until the stage of landing and removal to a place of storage, the steamer agent or the vessel may be held liable for charges in respect of services rendered qua unloading of goods. However  in respect of the 2nd scenario it has been made clear by the Supreme Court that the point of time from which the Port Trust takes charge of the goods, then it is only the Importer, consignee, agent or owner of the goods or those entitled to the delivery of the goods who are liable for payment of storage or demurrage charges. In the light of the above declaration of law it can be safely concluded that a ship owner or a steamer agent in so far as it relates to the payment of storage or demurrage charge demanded by the Port Trust is not liable for payment of such charges.However, the question whether the Port Trust can recover the charges from the shipper/consignor is left open.

As regards the question with reference to the obligation of Port Trust to sell those goods which are not taken delivery by the consignee within a reasonable time it was held by the Court referring to Section 61 & 62 of the Major Port Trusts Act that, it is the duty of Port Trust to destuff every container entrusted to it and return the destuffed containers within a short period of time as is feasible and what is the ‘short period’ has to be determined on the facts of each case. To that extent the Court set aside the judgment of Kerala High Court treating the expression ”may” used in Section 61 & 62 to be read as “shall” subject to a caveat that the Port Trust must act reasonably to sell the goods within a reasonable period once the goods comes into its custody. 

In view of the above Judgement more particularly the undertaking given by the steamer agents admitting their liability for payment of ground rent up to 75 days before the High Court it is now clear that the steamer agents are not liable to pay any ground rents to the port beyond the period of 75 days as admittedly they do not come within the purview of definition of ‘owner’ as provided under S 2(o) of the Major Port Trusts Act in relation to goods which are in the custody and storage of the Port Trust.

Overthrow of Right of Appeal

(By R.P. Remesan, Advocate, Kannur)

In the judgment reported in Pudupariyaram Service Co-operative Society Ltd v. Rugmini Amma(1996 (1) KLT 100) it was held that “A right of appeal is a valuable right and when a statute has provided such a right it should not be scuttled or frustrated by not forming such a sub-committee or executive committee.” The Division Bench was considering the right of appeal available to the aggrieved employee in the Co-operative Society by the decision taken in disciplinary proceedings. At the time of the judgment, Rule 198(2A) & (2B) are not in the statutebook, so there was no sub-committee to take disciplinary action against the employees. The practice was prevalent and what followed was to do all the disciplinary functions commenced from issuing of charge sheet to imposing of punishment by the committee of the society.  At the same time R.198(4) gives a right to the aggrieved employee to prefer an appeal before the managing committee. Therefore, the appeal also was considered by the same committee. The decision stated above removed the absurdity.
The committee excluding the sub-committee became the appellate body and the entire functions related to disciplinary action were vested with the sub-committee.After this verdict R.198(2A) & (2B) are included in the statute book.

In Kodanchery Service Co-operative Bank Ltd v Joshy Varghese(2020 (4) KLT 129)Division Bench of Kerala High Court held that the disciplinary sub-committee has no power to issue charge sheet to an employee for the reason that the powers of the sub committee
is only to make inquiries into the charges. The court categorically held that on conjoint reading of Sections 2(e) of the Act and R.182(2) and 198(2) of the KCS Rules the committee of the society, which is the authority competent to appoint employees in a co-operative society is bound to inform the delinquent employee  in writing of the grounds on which it is proposed to take action against him.The High Court interpreted the above provisions and held that the said committee shall issue the charge sheet to the delinquent employee.

Now the concern is whether the right of appeal provided under R.198(4) and protected vide judgment in Pudupariyaram Service Co-op.Society Ltd. v. Rugmini Ammais available to the aggrieved parties after the pronouncement of Kodanchery Service Co-operative Bank’scase.  It is to be noted that in the Kodanchery Service Co-operative Bank’scase Pudupariyaramcase was not discussed. The question whether the right of appeal was scuttled or affected was also not considered. What is now in the lime light is framing of charge is to be done by the committee of the society and not by the sub-committee. As per R.198(4) the appeal filed by the aggrieved employee also to be heard by the same committee.  This situation was not appraised in the present judgment.  In Pudupariyaram’s case the court held that advantages of an appeal provision are that the aggrieved party can focus on points missed by the first decision taking body and the appellant would be in a better position to project different angles. A reappraisal of materials for reaching different findings can be made by the appellate body.  Now the committee who framed the charges has to consider the validity of charges, if raised by the aggrieved, in an appeal and in such a situation there may be an embittered decision from the committee. This is the apprehended overthrow  of  right of appeal pointed out in Pudupariyaram’scase.

On going through the fact of the case as narrated in the judgment we can see that the sub-committee was constituted after suspending the employee from service. So the view of the High Court that the decision to initiate disciplinary proceedings cannot be subsequent to issuance of charge sheet and disciplinary proceedings commence only when chargesheet is issued to the delinquent employee are well founded. But there are unnoticed facts. Nowhere it is stated that the disciplinary sub-committee should be constituted at any particular point of time. Many of the societies constitute all the required sub-committees in their first meeting itself.That means even before committing the act of misconduct by an employee or otherwise there will be a disciplinary sub-committee in the society. If this aspect was perceived there would have been a different verdict then.