Guest Teachers: Age Relaxation and Weightage

Guest Teachers: Age Relaxation and Weightage

1.      Division Bench of Punjab and Haryana High Court in Ashok Kumar Vs The State of Haryanaand others (Civil Writ Petition No. 13045 of 2009) Date of Decision: 6.4.2010 had held thus:

a.       To deny age relaxation to guest teachers would be unjust.

b.      Grant of exemption from passing the STET and weightage of upto 24 marks (i.e. 24%) towards experience to the guest faculty teachers are not justified. This virtually amounts to regularization of guest faculty teachers in service, which was deprecated and proscribed by the Hon’ble Supreme Court in Secretary, State of Karnataka & others vs. Umadevi & others, (2006), wherein it was held that persons, who got employment without following a regular procedure and at times enter through backdoor are not entitled to get permanence in service.

c.       HOWEVER, IT IS MADE CLEAR THAT IT WILL BE OPEN TO THE STATE TO GRANT REASONABLE WEIGHTAGE TOWARDS EXPERIENCE GAINED BY SERVICE IN GOVERNMENT OR PRIVATE INSTITUTIONS TO ALL THE COMPETING CANDIDATES, AS PER LAW.

2.      Supreme Court in Mahender Kumar & Ors.v. State of Haryana & Ors (Special Leave to Appeal (Civil) No(s).29755/2010), Date of Decision: 21.02. 2012, upheld the above judgment of Punjab and Haryana High Court.

3.      Constitution Bench of the Supreme Court in Secretary, State of Karnataka & others vs. Uma Devi & others [Appeal (civil) 3595-3612 of 1999], Date of Decision 10.4.2006, had inter alia held thus: “when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, WAIVING THE AGE RESTRICTION imposed for the recruitment and GIVING SOME WEIGHTAGE FOR THEIR HAVING BEEN ENGAGED FOR WORK IN THE DEPARTMENT FOR A SIGNIFICANT PERIOD OF TIME”. It was so held by the Supreme Court under Article 142 of the Constitution to do justice to them. The Supreme Court had also directed the  Union of India, the State Governments and their instrumentalities to take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from the date of judgment.

All Women and Minor(s) independently of the Adult Male Member(s) can be Tried for Domestic Violence

CASE STUDY

All Women and Minor(s) independently of the Adult Male Member(s) can be Tried for Domestic Violence

Hiral P. Harsora and Ors. v.  Kusum Narottamdas Harsora and Ors

Civil Appeal No. 10084 of 2016, arising out of SLP (Civil) No. 9132 of 2015, decided on October 6, 2016 by the Hon’ble Supreme of India.

QUESTION OF LAW BEFORE THE SUPREME COURT:

In the above appeal an important question as to the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as “the 2005 Act”) inasmuch as that the expression “adult male person” employed therein is a classification not based on any intelligible differentia, and not having any rational relationship with the object sought to be achieved by the 2005 Act arose before the Supreme Court of India.

FACTS AND BACKGROUND OF APPEAL:

On 3.4.2007, Kusum Narottam Harsora and her mother Pushpa Narottam Harsora filed a complaint under the 2005 Act against Pradeep, the brother/son, and his wife, and two sisters/daughters, alleging various acts of violence against them. The said complaint was withdrawn on 27.6.2007 with liberty to file a fresh complaint. Nothing happened for over three years till the same duo of mother and daughter filed two separate complaints against the same respondents in October, 2010. An application was moved before the learned Metropolitan Magistrate for a discharge of respondent Nos. 2 to 4 stating that as the complaint was made under Section 2(a) read with Section 2(q) of the 2005 Act, it can only be made against an adult male person and the three respondents not being adult male persons were, therefore, required to be discharged. The Metropolitan Magistrate passed an order dated 5.1.2012 in which such discharge was refused.

In a writ petition filed against the said order, on 15.2.2012, the Bombay High Court, on a literal construction of the 2005 Act, discharged the aforesaid three respondents from the complaint. The said order attained finality since it was not appealed against.

However, mother and daughter filed a writ petition in Bombay High Court, being writ petition No.300/2013, in which the constitutional validity of Section 2(q) was challenged. Though the writ petition was amended, there was no prayer seeking any interference with the order dated 15.2.2012, which, as has already been stated hereinabove, has attained finality. The Bombay High Court by the impugned judgment dated 25.9.2014 held that Section 2(q) needs to be read down in the following manner:-

“In view of the above discussion and in view of the fact that the decision of the Delhi High Court in Kusum Lata Sharma's case has not been disturbed by the Supreme Court, we are inclined to read down the provisions of section 2(q) of the DV Act and to hold that the provisions of "respondent" in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of "aggrieved person", “domestic relationship" and "shared household" in clauses (a), (f) and (s) of section 2 of the DV Act. If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant- mother or sister, but the complaint can also be filed against a relative of the son or brother including wife of the son / wife of the brother andsisters of the male respondent. In other words, in our view, the complaint against the daughter-in-law, daughters or sisters would be maintainable under the provisions of the DV Act, where they are co-respondent/ s in a complaint against an adult male person, who is or has been in a domestic relationship with the complainant and such co-respondent/s. It must, of course, be held that a complaint under the DV Act would not be maintainable against daughter-in-law, sister-in- law or sister of the complainant, if no complaint is filed against an adult male person of the family.”

RELEVENT LEGAL PROVISIONS:

The relevant provisions of the statute are contained in the following Sections:

“2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

3. Definition of domestic violence.—For the purposes of this Act, any act, omission or

commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any

other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.—For the purposes of this section,—

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes—

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes—

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

26. Relief in other suits and legal proceedings.—

1. Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person

and the respondent whether such proceeding was initiated before or after the commencement of this Act.

2. Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

3. In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

Sections 17, 18, 19, 20, 21, 22, 31 deal with the  right to reside in a shared household, Protection orders, Residence orders, Monetary relief, Custody orders, Compensation orders, Penalty for breach of protection order by respondent respectively.

OBSERVATIONS OF THE SUPREME COURT:

MALE vis-à-vis FEMALE and DAUGHTER/SISTER vis-à-vis DAUGHTER-IN-LAW/SISTER-IN -LAW

The definition of “domestic relationship” contained in Section 2(f) is a very wide one. It is a relationship between persons who live or have lived together in a shared household and are related in any one of four ways -blood, marriage or a relationship in the nature of marriage, adoption, or family members of a joint family. A reading of these definitions makes it clear that domestic relationships involve persons belonging to both sexes and includes persons related by blood or marriage. This necessarily brings within such domestic relationships male as well as female in-laws, quite apart from male and female members of a family related by blood. Equally, a shared household includes a household which belongs to a joint family of which the respondent is a member. The Hindu Succession Act,1956 was amended, by which Section 6 was amended, with effect from 9.9.2005, to make females coparceners of a joint Hindu family and so have a right by birth in the property of such joint family. This being the case, when a member of a joint Hindu family will now include a female coparcener as well, the restricted definition contained in Section 2(q) has necessarily to be given a relook, given that the definition of ‘shared household’ in Section 2(s) of the Act would include a household which may belong to a joint family of which the respondent is a member. The aggrieved person can therefore make, after 2006, her sister, for example, a respondent, if the Hindu Succession Act amendment is to be looked at. But such is not the case under Section 2(q) of the 2005 Act, as the main part of Section 2(q) continues to read “adult male person”, while Section 2(s) would include such female coparcener as a respondent, being a member of a joint family. This is one glaring anomaly which we have to address in the course of our judgment.

When Section 3 of the Act defines domestic violence, it is clear that such violence is gender neutral. It is also clear that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another. Section 3, therefore, in tune with the general object of the Act, seeks to outlaw domestic violence of any kind against a woman, and is gender neutral. When one goes to the remedies that the Act provides, things become even clearer. Section 17(2) makes it clear that the aggrieved person cannot be evicted or excluded from a shared household or any part of it by the “respondent” save in accordance with the procedure established by law. If “respondent” is to be read as only an adult male person, it is clear that women who evict or exclude the aggrieved person are not within its coverage, and if that is so, the object of the Act can very easily be defeated by an adult male person not standing in the forefront, but putting forward female persons who can therefore evict or exclude the aggrieved person from the shared household. This again is an important indicator that the object of the Act will not be sub-served by reading “adult male person” as “respondent”.

This becomes even clearer from certain other provisions of the Act. Under Section 18(b), for example, when a protection order is given to the aggrieved person, the “respondent” is prohibited from aiding or abetting the commission of acts of domestic violence. This again would not take within its ken females who may be aiding or abetting the commission of domestic violence, such as daughters-in-law and sisters-in-law, and would again stultify the reach of such protection orders.  When we come to Section 19 and residence orders that can be passed by the Magistrate, Section 19(1)(c) makes it clear that the Magistrate may pass a residence order, on being satisfied that domestic violence has taken place, and may restrain the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides. This again is a pointer to the fact that a residence order will be toothless unless the relatives, which include female relatives of the respondent, are also bound by it. And we have seen from the definition of “respondent” that this can only be the case when a wife or a common law wife is an aggrieved person, and not if any other woman belonging to a family is an aggrieved person. Therefore, in the case of a wife or a common law wife complaining of domestic violence, the husband’s relatives including mother-in-law and sister-in-law can be arrayed as respondents and effective orders passed against them. But in the case of a mother-in law or sister-in-law who is an aggrieved person, the respondent can only be an “adult male person” and since his relatives are not within the main part of the definition of respondent in Section 2(q), residence orders passed by the Magistrate under Section 19(1) (c) against female relatives of such person would be unenforceable as they cannot be made parties to petitions under the Act.

When we come to Section 20, it is clear that a Magistrate may direct the respondent to pay monetary relief to the aggrieved person, of various kinds, mentioned in the Section. If the respondent is only to be an “adult male person”, and the money payable has to be as a result of domestic violence, compensation due from a daughter-in-law to a mother-in-law for domestic violence inflicted would not be available, whereas in a converse case, the daughter-in-law, being a wife, would be covered by the proviso to Section 2(q) and would consequently be entitled to monetary relief against her husband and his female relatives, which includes the mother-in-law.

When we come to Section 26 of the Act, the sweep of the Act is such that all the innovative reliefs available under Sections 18 to 22 may also be sought in any legal proceeding

before a civil court, family court or criminal court affecting the aggrieved person and the respondent. The proceeding in the civil court, family court or criminal court may well include female members of a family, and reliefs sought in those legal proceedings would not be restricted by the definition of “respondent” in the 2005 Act. Thus, an invidious discrimination will result, depending upon whether the aggrieved person chooses to institute proceedings under the 2005 Act or chooses to add to the reliefs available in either a pending proceeding or a later proceeding in a civil court, family court or criminal court.

It is clear that there is no intelligible differentia between a proceeding initiated under the 2005 Act and proceeding initiated in other fora under other Acts, in which the self-same reliefs grantable under this Act, which are restricted to an adult male person, are grantable by the other fora also against female members of a family. This anomaly again makes it clear that the definition of “respondent” in Section 2(q) is not based on any intelligible differentia having any rational relation to the object sought to be achieved by the 2005 Act. The restriction of such person to being an adult male alone is obviously not a differentia which would be in sync with the object sought to be achieved under the 2005 Act, but would in fact be contrary to it.

ADULT vis-à-vis MINOR

Also, the expression “adult” would have the same effect of stultifying orders that can be passed under the aforesaid sections. It is not difficult to conceive of a non-adult 16 or 17 year old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person. Also, a residence order which may be passed under Section 19(1)(c) can get stultified if a 16 or 17 year, all of which would only lead to the conclusion that even the expression “adult” in the main part is Section 2(q) is restrictive of the object sought to be achieved by the kinds of orders that can be passed under the Act and must also be, therefore, struck down, as this word contains the same old relative enters the portion of the shared household in which the aggrieved person resides after a restraint order is passed against the respondent and any of his adult relatives. Examples can be multiplied discriminatory vice that is found with its companion expression “male”.

ARTICLE 14 OF THE CONSTITUTION, DOCTRINES OF SEVERABILITY and READING DOWN/UP: 

Article 14. Equality before law. - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 

Article 14 is in two parts. The expression “equality before law” is borrowed from the Irish Constitution, which in turn is borrowed from English law, and has been described in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14, as the negative aspect of equality. The “equal protection of the laws” in Article 14 has been borrowed from the 14th Amendment to the U.S. Constitution and has been described in the same judgment as the positive aspect of equality namely the protection of equal laws. Subba Rao, J. stated:

“This subject has been so frequently and recently before this court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilized constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that every one is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. No discrimination can be made either in the privileges conferred or in the liabilities imposed. But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them. In a society of unequal basic structure, it is well nigh impossible to make laws suitable in their application to all the persons alike. So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made.”

The Court dealt with several cases cited before it by both sides on Article 14, reading down, and the severability principle in constitutional law viz. Lachhman Dass v. State of Punjab, (1963) 2 SCR 353; D.S. Nakara v. Union of  India, (1983) 1 SCC 305; Re: Special Courts Bill, (1979) 2 SCR 476; Maneka Gandhi v. Union of India, (1978) 2 SCR 621; Rattan Arya and others v. State of Tamil Nadu and another, (1986) 3 SCC 385;Subramanian Swamy v. CBI, (2014) 8 SCC 682; Union of Indiav. N.S. Ratnam, (2015) 10 SCC 681)

In Subramanian Swamy v. CBI (supra)  a Constitution Bench of this Court struck down Section 6A of the Delhi Police Special Establishment Act on the ground that it made an invidious distinction between employees of the Central Government of the level of Joint Secretary and above as against other Government servants. This Court, after discussing various judgments dealing with the principle of discrimination (when a classification does not disclose an intelligible differentia in relation to the object sought to be achieved by the Act) from para 38 onwards, ultimately held that the aforesaid classification defeats the purpose of finding prima facie truth in the allegations of graft and corruption against public servants generally, which is the object for which the Prevention of Corruption Act, 1988 was enacted.

Then Supreme Court turned  to the doctrine of severability - a doctrine well-known in constitutional law and propounded for the first time in the celebrated R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930. The crux of the said doctrine is that if the offending portion of a statute can be severed without doing violence to the remaining part thereof, then such a course is permissible. This judgment has been applied in many cases since then.

The doctrine of reading down in constitutional adjudication is well settled. Justice Sawant in a Constitution Bench Judgment of Supreme  Court in DTC v. Mazdoor Congress 1991 Supp (1) SCC stated: “It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible—one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so”.

In B.R. Kapur v. State of T.N., (2001) 7 SCC 231, Supreme Court dealing with the provisions of the Representation of People Act, 1951 held that  Section 8(4) opens with the words “notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3)”, and it applies only to sitting members of Legislatures. There is no challenge to it on the basis that it violates Article 14. If there were, it might be tenable to contend that legislators stand in a class apart from non-legislators, but we need to express no final opinion. In any case, if it were found to be violative of Article 14, it would be struck down in its entirety. There would be, and is no question of so reading it that its provisions apply to all, legislators and non legislators, and that, therefore, in all cases the disqualification must await affirmation of the conviction and sentence by a final court. That would be “reading up” the provision, not “reading down”, and that is not known to the law.”

SUPREME COURT HELD THUS:

Relying upon the above judgments the Supreme Court held that the microscopic difference between male and female, adult and non adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, as per the principle settled in the Subramanian Swamy judgment, the words “adult male person” are contrary to the object of affording protection to women who have suffered from domestic violence “of any kind”. The Supreme Court, therefore, struck down the words “adult male” before the word “person” in Section 2(q), as these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act. Having struck down these two words from the definition of “respondent” in Section 2(q), the next question that arises is whether the rest of the Act can be implemented without the aforesaid two words.  An application of the aforesaid severability principle would make it clear that having struck down the expression “adult male” in Section 2(q) of the 2005 Act, the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words.

Under Section 2(q) of the 2005 Act, while defining ‘respondent’, a proviso is provided only to carve out an exception to a situation of “respondent” not being an adult male. Once the words ‘adult male’ are struck down, the proviso has no independent existence, having been rendered otiose.

The Supreme Court, therefore, set aside the impugned judgment of the Bombay High Court and declared that the words “adult male” in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted.

With the above observations, the appeal was disposed off accordingly. 

Treat with kid gloves: Triple Talaq vis-à-vis Uniform Civil Code

THE TRIBUNE, 17 OCTOBER, 2016

Treat with kid gloves

Triple talaq encompasses both social and legal issues. The right to freedom of religion enshrined in Article 25(1) of the Constitution is circumscribed by the considerations of public order, morality and health and other fundamental rights, like non-arbitrariness, non-discrimination, dignity and gender justice. Assuming that triple talaq finds sanction in sharia law and is further validated by the Muslim Personal Law (Shariat) Application Act, 1937, nevertheless, being a lesser right, it will have to give way to the aforesaid constitutional ideals. Moreover, Article 25(2) empowers the State to make any law providing for social welfare and reform. Even though the idea of the civil code per se is highly intricate and a debatable issue, Article 44 of the Constitution exhorts the State to endeavour to secure for the citizens a uniform code. Hence, instead of chasing after a politically loaded notion of  a uniform code, remove social vices like gender discrimination and archaic practises from various personal laws. 

RAJENDER GOYAL, Bahadurgarh 

The original piece sent to The Tribune reads rhus:

Triple Talaq vis-à-vis Uniform Civil Code

Triple Talaq encompasses both social and legal issues. Right to freedom of religion enshrined in the Article 25(1) of the Constitution is circumscribed by the considerations of public order, morality and health and other fundamental rights viz. non-arbitrariness, non-discrimination, dignity, gender justice etc. Assuming that Triple Talaq finds sanction in Islamic Sharia Law and further validated by the Muslim Personal Law (Shariat) Application Act, 1937, nevertheless, being a lesser right, it will have to give way to aforesaid constitutional ideals. Moreover, Article 25(2) empowers the State to make any law providing for social welfare and reform. It is no gainsaid to emphasize that Triple Talaq is an archaic & retrogressive practice and a social vice grossly violating the dignity of women. If the State does away with this by enacting a law, any challenge to such measure of social welfare and reform on the premise that it impinges upon the religious freedom of any section may not survive in view of the said Article 25(2).

However, idea of ‘uniform civil code’ in India per se is highly intricate and debatable issue, albeit, Article 44 of the Constitution exhorts the State to endeavor to secure for the citizens a ‘uniform civil code’. Even a cursory glance through the Hindu Law-mostly codified (applicable on about 81% Indian population) and Mohammedan Law-mostly un-codified (applicable on largest minority i.e. Muslims constituting about 15% of Indian population) would reveal that these laws vary in myriad ways both in theory and practice as applicable on people belonging to different sections within a religious community.

 Hence, instead of chasing after an elusive and politically loaded notion of ‘uniform civil code’, need of hour is to remove the social vices (gender discrimination, archaic & retrogressive practices etc) from the different personal laws governing the different religious communities and to modernize (reform) them in sync with the demand and challenges of the modern age (as far as possible in tune with fundamental rights enshrined in part III of the Constitution).

RAJENDER GOYAL, Bahadurgarh 

ABROGATION OF ARTICLE 370

ABROGATION OF ARTICLE 370

1.      Article 370 (3)-  Notwithstanding anything in the foregoing provisions of this article, the PRESIDENT MAY, BY PUBLIC NOTIFICATION, declare that this article shall CEASE TO BE OPERATIVE or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that THE RECOMMENDATION OF THE CONSTITUENT ASSEMBLY of the State referred to in clause (2) shall be necessary before the President issues such a notification.

2.      Constituent Assembly of Jammu and Kashmir was dissolved on 26 January 1957 and the Jammu and Kashmir Constitution came into effect.

3.      ORIGINAL VIEW OF THE PIONEER CAMPAIGNERS OF ABROGATION OF ARTICLE 370: Constituent Assembly of Jammu and Kashmir stands dissolved on 26 January 1957. Hence no occasion and question whatsoever of obtaining any recommendation of the Constituent Assembly of Jammu and Kasmir arise for any purpose. Presidential (i.e. Central Government) notification simpliciter would suffice to do away with Article 370 by invoking doctrines of impossibility of performance and executive necessity.

4.      OTHER VIEWS

-          Reconvene the Constituent Assembly of Jammu & Kashmir (consisting of surviving members, if any, of the erstwhile Constituent Assembly dissolved on 26 January 1957 and remaining vacancies duly filled through election based on adult suffrage) and persuade it to give a recommendation for the abrogation of Article 370 followed by requisite presidential notification in terms of Article 370(3).

-          The Parliament of India may bring out a Constitutional Amendment under Article 368 of the Constitution qua repeal of Article 370. It will be followed by a Presidential order to that effect in terms of Section 15, Part XX of the Constitution (Application to Jammu and Kashmir) Order, 1954 and it reads thus- to clause (2) of article 368, the following proviso shall be added, namely: — “Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370.”                                                                                            In view of Article 370(1), such Presidential order may be issued only with the concurrence of Government of the State (i.e. the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Rayasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office).

-          According to Clause (1) (c) of Article 370, the only Articles of the Constitution of India which applied of their own force to the State were Articles 1 and 370. Clause (1) (d) of Article 370 provides that the other provisions of the Constitution of India applicable to the State could be determined by the President of India- in consultation re “matters specified in the Instrument of the Accession of the State” and - with the Concurrence re “other matters”-  with the Government of the State. Exceptions and modifications could be made in the same manner and the provisions could be enlarged too. Power to modify includes a power to enlarge or add to an existing provision. Therefore, the term 'temporary' has been used in Article 370 so as to minimise the difficulty in the way of the amendment of the Constitution of India, whenever the necessity arises to modify or extend the scope of other provisions of the Constitution of India.

At the time of their accession, it was made clear to all Indian States that their internal autonomy would be safeguarded and they would not be obliged to accept the Constitution of India. But whereas other Indian States lost their independence by supplementary instruments and by agreeing to the settlement of their constitutional position and powers by the Constituent Assembly of India, Kashmir chose to remain a unit of the Indian Federation only on the terms and conditions specified in the Instrument of Accession. The State, if it chose to assimilate its status to that of other Indian States, could do so by a supplementary instrument signed by the Sadar-i-Riyasat (as advised by elected Council of Ministers headed by Prime Minister i.e. ELECTED GOVERNMENT ) on the recommendation of the State legislature. (Note:  On April 10, 1965, the nomenclatures of Sadar-e-Riyasat (Head of the State) and Wazir-e-Azam (Prime Minister) changed to Governor and Chief Minister in State Constitution.  From 17 November 1952 to 30 March 1965, Sh. Karan Singh was the head of State of Jammu and Kashmir. On 30 March 1965 he became first Governor of Jammu and Kashmir and remained in office till 15 May 1967). This legal position was set at rest by the Supreme Court of India in the case of Prem Nath Kaul v. the State of Jammu and Kashmir (AIR 1959 SC 749) wherein it was observed: “We must, therefore, reject the argument that the execution of the Instrument of Accession, affected in any manner the legislative, executive and judicial power in regard to the Government of the State, which then vested in the Ruler of the State.” Again, the Supreme Court of India in the case of Rehman Shagoo v. State of Jammu and Kashmir (AIR 1960 SC 1) said: “When certain subjects were made over to the Government of India by the Instrument of Accession, the State retained its power to legislate even on those subjects so long as the State law was not repugnant to any law made by the Central Legislature.”(Adarsh Sein Anand, former Chief Justice of India; former Chairman, National Human Rights Commission; and former Chief Justice of the J&K High Court)

-          It  is no doubt true that Article 370(3) provides that the President may by notification declare that this article shall cease to be operative, but the proviso clearly lays down a limitation that the recommendation of the Constituent Assembly of the state shall be necessary before the President issues such a notification. It is not disputed that the Constituent Assembly of J&K never gave any such recommendation before its dissolution on 26 January 2016. In that view Article 370 cannot be withdrawn by Parliament purporting to exercise the power of amendment given by Article 368. That the power to amend the Constitution is not totally unfettered admits of no disputes vide the famous case of Keshvanand Bharthi, (1973) in which the Supreme Court held that a "Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed" (Rajindar Sachar, retired Chief Justice of the High Court of Delhi)

-          Article 371 provides for a special responsibility of the Governor for the establishment of separate development boards for Saurashtra and Kutch (in Gujarat) and Vidharba in Maharashtra for an equitable allocation of funds for the development of the area. (Also see Articles 371A(1)(b), 371C, 371H qua special responsibility of the Governors in the States of Nagaland, Manipur, Arunachal Pradesh respectively  in certain matters). Articles 371A and 371G provide that no Act of Parliament in respect of the ownership and transfer of land shall apply to the States of Nagaland and Mizoram unless the Legislative Assemblies of Nagaland and Mizoram by  resolutions so decide. The Articles 371A and 371G  further provide that no parliamentary law- dealing with religious or social practices of Nagas/Mizos, Naga/Mizo customary law and procedure, administration of civil and criminal justice involving decisions according to Naga/Mizo customary law- unless the Legislative Assemblies of Nagaland and Mizoram by  resolutions so decide. These provisions are identical, to some extent, to Article 370 of the Constitution regarding J & K. It may be pertinent to mention herein that In the USA such is the extent of State autonomy that an advocate getting his law degree from Washington University cannot as a matter of right practice in the State of New York.

NOTE:

Case law worth reading:-

Prem Nath Kaul v. the State of Jammu and Kashmir (AIR 1959 SC 749);  Sant Singh v. State (AIR 1959 J & K 35); Rehman Shagoo v. State of Jammu and Kashmir (AIR 1960 SC 1); Division bench judgment of J&K High Court re Bhupinder Singh Sodhi and Ors, Santosh Gupta v.  Union of India and Ors (OWP No. 530 of 2007 and OWP No. 1031 of 2004), DOD 16/07/2015; Division bench (Justice Hasnain Massodi and Justice Janak Raj Kotwal) Judgment of J&K High Court on Oct 09, 2015

JAMMU AND KASHMIR DEMOGRAPHICS

KASHMIR DIVISION: Area: 15,948 km²  (15.73%), Population:  6888475 (54.93%)

JAMMU DIVISION: Area: 26,293 km²  (25.93%), Population: 5378538 (42.89%)

LADAKH DIVISION: Area: 59,146 km² (58.33%), Population: 274289 (2.18%)

PAKISTAN OCCUPIED KASHMIR: Area: 13,297 km², Population: approximately 55 lakh

“Delhi Judge ALLEGED Bribery” case should become a “Test Case”

“Delhi Judge ALLEGED Bribery” case should become a “Test Case” in the matters of seeking the police custody /remand of the accused by the CBI, Police etc and grant of bail by the judiciary in vindication of oft-repeated Constitutional, statutory and judicial dicta viz. ‘paramount sanctity of life & personal liberty’, ‘presumption of innocence’, ‘bail is rule-jail is exception’. Hopefully, CBI (and other law enforcement agencies) and judiciary would make it a rule in all cases and strongly guard against it being reduced a single, solitary and stray incident. It would be in the fitness of the things for the Hon’ble Supreme Court to take a suo moto cognizance of the case and record a formal order encapsulating the exuberant spirit and underlying rationale of the case and said order be sent to all authorities concerned for strict compliance. BCI should also prescribe it as compulsory legal case study as part of course content of LL.B. Students. Needful may also be done by judicial training academies.

FACTS OF THE CASE:

A case was registered at CBI/ACB/Delhi on 28.09.2016 on the basis of a written complaint dated 27.09.2016 lodged by complainant Sh.…..wherein it was alleged that Sh……(Advocate) (hereinafter A1), Local Commissioner, Court  no…., in the court of Mrs……(hereinafter A2),……Tis Hazari Courts, Delhi, was demanding bribe of Rs.10 Lakhs on behalf of above ….Judge for disposing off an Execution Petition bearing No…..in favour of the complainant, which was pending disposal before the said Court of Ld Judge. It was also alleged that A1 had also demanded a bribe of Rs.1 Lakh for submitting favourable report in the said Execution Petition. The complainant has also paid an amount of Rs.15,000/ to A1 as Local Commissioners fee on 26.09.2016, as directed by the above Court. The said complaint was verified by Dy.SP, CBI/ACB/Delhi on 27.09.2016 in the presence of independent witness including one witness from BSNL. The verification duly corroborated the facts mentioned in the complaint and the verification also revealed that A1 Local Commissioner has demanded a fresh bribe of Rs.20 Lakhs on behalf of A2…Judge for disposing off the above Execution Petition in favour of the complainant and Rs.2 Lakhs for himself. Subsequent to this, A1 agreed to accept the bribe of Rs. 5 Lakhs as part payment of total bribe of Rs.20 lakhs from the complainant on behalf of A2 on 28.09.2016. On the basis of said complaint and verification conducted by Dy.SP, an FIR bearing RC No…..was registered in this case. Thereafter, a trap was laid on 28.09.2016 and A1 was caught red handed while accepting bribe amount of Rs.5 Lakhs from the complainant as first installment in the presence of independent witnesses on behalf of (A2) and the said bribe amount was recovered from his possession on 28.09.2016 itself. It is further alleged that on being asked, A1 stated that he had demanded and accepted the bribe on behalf of A2 and he was about to call Sh…..(hereinafter A3), husband of A2. He voluntarily offered that he will pass on the bribe amount of Rs.5 Lakhs to A3 or A2 on 28.09.2016 itself. He further sent a whatsap message to A2 mentioning that he had received the said amount of Rs.5 Lakhs and he wanted to meet her on that day only. A2 had seen the said message. Thereafter, A1 made a call to A3, but his mobile was switched off. Thereafter, on the mobile phone of A1, a call was received from the mobile phone of A3, which was being simultaneously recorded through a DVR. In the said call, A3 asked A1 to meet him either at Daryaganj or at his residence.Thereafter, A1 made a subsequent call on the mobile phone of accused A3 at around 9.05 P.M and reconfirmed about the place of meeting. This time A3 asked A1 to come to his residence. This call was also recorded through DVR in the presence of independent witnesses. Thereafter, A1 voluntarily offered to hand over the bribe amount of Rs.5 Lakhs to A3 or A2, as he had collected the same from the complainant for A2. Accordingly, it was decided to proceed to the residence of A3 and A2 alongwith the said accused and independent witnesses. Thereafter, the CBI team alongwith independent witnesses, complainant and his partner and A1 reached at the residence of A2 and A3 at about 10.15 P.M. At around 10.21 P.M, A1 went inside the house of above mentioned persons and kept the DVR in switched on mode, which was given to him. After 10 minutes, he came out from the house of above persons and informed that he had handed over the bribe amount of Rs.5 Lakhs, received from the complainant to A3 in the presence of A2. He also stated that after receiving the said bribe amount of Rs. 5 Lakhs, A3 returned Rs.1 Lakh to him and kept the remaining Rs.4 Lakhs with him in a orange coloured plastic bag. The said Rs.1 Lakh was recovered from A1 in the presence of both the independent witnesses. Thereafter, all the members of the CBI team rushed to the residence i.e. flat of A2 and rang the door bell, after some time, the door was opened and both A3 and A2 were found inside the house and they were asked to hand over the bribe amount, but they did not cooperate. Thereafter, following the searches in the backyard of the house, one orange coloured plastic bag containing Rs. 4 Lakhs was recovered in the presence of independent witnesses. Thereafter, hand washes of both the accused persons were obtained in a colourless solution of Sodium Carbonate which turned into pink colour. Thereafter, further searches were made in the premises of the above accused persons and huge amount of cash of Rs.94 Lakhs was recovered. It was also alleged that the message box of mobile of A3 revealed that he was working as a tout for collecting huge amount of money from various persons in lieu of delivering favourable judgments from his wife i.e. A2.

JUDICIAL ORDERS:

ROUND 1:

The CBI didn’t seek Police custody/remand of the Judge (A2) but sought for 3 days Police custody/remand of the A1 and A3. The primary ground for which the PC remand was being sought by the CBI for the accused persons A1 and A3 was that the investigation was at a very crucial stage and ramification of conspiracy between the Judge Mrs....(A2) and A3 (husband of A2 and also a practicing lawyer) and A1 (practicing lawyer and also a local commissioner in the concerned case in the concerned court) was yet to be established. The concerned Special Judge, CBI, Delhi vide order dated 29.09.2016 sent the Judge (A2) in judicial custody and granted 2 days PC of the A1 and A3. The Special judge allowed 2 advocates as named by the A1 and A3 to be present between 10.00 AM to 11.00 AM on each day during interrogation of the A1 and A3 in the police custody purportedly under Section 41D of the CrPC (I think said Section not yet notified and enforced. Nevertheless, the Supreme Court in the case of DK Basu, Ashok K Johri vs State of WB, State of UP, 1996 had held that the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation).

ROUND 2:

The Judge (A2) applied for bail in the concerned Court of Special Judge, CBI, Delhi. It was argued by Ld. Senior Counsel for A2, that there was no initial demand nor there was any demand at the time of actual trap flowing from A2 nor there is any acceptance on behalf of A2. He has also argued that A2, as per the case of prosecution, had neither contacted the complainant nor A1. Therefore, he has argued that Section 7 and 13(2) r/w Sec.13(1)(d) of PC Act, 1988 are not made out in the present case. He has also argued that in the present case benefit of proviso to Section 437 Cr.P.C be extended to A2, as A2 is a female having two minor children, aged 9 years and 7 years respectively, one of them is studying in 3rd class and other child is studying in first class and there is no one to look after them, as her husband i.e. A3 is also under incarceration. He has also argued that the mother of A2 is seriously sick, having to undergo dialysis on regular basis. He has also argued that entire court record of A2 has been sealed, therefore there are no chances of tampering with evidence, nor there are chances of A2 fleeing from justice. Therefore, he has argued that it is a fit case where bail should be extended to A2. In support of his contention(s) he  relied upon following judgments:(I) 2003(70) DRJ 327 titled as Shameet Mukherjee Vs. CBI  (ii) 1986(23) ACC 10 titled as Smt. Shakuntala Devi Vs. State of Uttar Pradesh. (iii) 2016 SCC Online Del. 4533 titled as Nisha Arya Vs. The State(NCT of Delhi)

Per contra, Ld. Public Prosecutor for CBI strongly opposed the bail application of A2 on the ground that, though there may be no direct demand on behalf of A2, but the entire facts presented before the Court clearly demonstrates demand flowing from A2, A1 was only acting on behalf of A2 as a conduit or agent to extract money. In any case, A1 was not in a

position to give any favour to the complainant, it was only A2 who was in a position to give favour to the complainant by passing a favourable judgment with regard to the case of the complainant, which was pending before A2. He has also argued that it is not necessary that to make out Section 7 of PC Act, 1988 a public servant should directly accept the bribe money. Said bribe money can be accepted either by himself or through any other person on his behalf and Section 7 of PC Act is even otherwise attracted where a public servant agrees to accept the said bribe money. He has also argued that investigations are at a very initial stage and

considering the fact that the entire judicial institution has been defamed, it is a fit case where bail should not be granted to A2 nor proviso to Section 437 Cr.P.C is applicable to the facts of the present case considering the gravity of the offence(s) for which she has been booked. He has also argued that huge amount of 94 lakhs was recovered from the house search of A2.

After going through the rival contentions of the both sides the court noted that there is no initial demand made by A2 during the verification proceeding(s) nor there was any demand

flowing from A2 during the actual trap nor there is any recorded conversation of A2 in this regard. The acceptance of bribe money was made by the husband of A2 i.e. A3. Regarding recovery of Rs.94 Lakhs from the house in possession of A2, admittedly the said house was in joint possession of A2 and her husband A3, as A3 is a practicing Advocate, the source to whom the said money belongs, is a matter of investigation and trial. This amount of Rs.94 Lakhs in any case, does not pertain to the present trap case. The Court further noted that ratio of the judgment by the Supreme Court in the case of Nisha Arya Vs. The State (supra) is squarely applicable to the facts of the present case as A2 is a female having two minor children, aged 7 and 9 years respectively, her husband A3 is also under incarceration, there is

nobody to look after them, as admittedly the Investigating Agency had not sought any police custody remand of A2, therefore investigation qua A2 is complete and she is no more required for further investigation. There is no apprehension of absconding of A2, as she belongs to respectable strata of society nor there are any chance of tampering of evidence by her, as the entire records pertaining to her Court have already been sealed.

 The Hon’ble Supreme Court in said case had held that “be that as it may, the fact of the matter is that both the applicants are female being married women having minor children to support and to be looked after by them. They are undisputedly no more required for their custodial interrogation and appropriate conditions can always be imposed upon them in order to allay the apprehension raised on behalf of complainant. Out of the offences charged in this case, all offences except offences under Section 308/452 IPC are bailable in nature. So far as, offence under Section 308 IPC is concerned, it is informed to the Court that complainant was discharged from the hospital on the same day. Trial may take considerable time and thus, no useful purpose would be served by keeping the applicants behind the bars”.

Eventually, vide order dated 3.10.2016, the Hon’ble Special Judge, CBI, Delhi held that it was a fit case where accused should be on bail. Accordingly, the Judge (A2) Mrs…..was admitted to bail on execution of personal bond in the sum of Rs.50,000/with one surety in the like amount.