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January 11, 2020 0Comments 445Views

UNION OF INDIA V. RINA DEVI

ADARSH KUMAR GOEL, J. 1. This appeal has been preferred against award of compensation of...

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January 9, 2020 0Comments 1857Views

NAVTEJ SINGH JOHAR V. UNION OF INDIA MINISTRY OF LAW AND JUSTICE SECRETARY.

Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.) “INDEX CHART” A. Introduction 1. Not...

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January 9, 2020 0Comments 426Views

HARI SANKARAN V. UNION OF INDIA

M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned Order dated 31.01.2019 passed...

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January 9, 2020 0Comments 372Views

CTO ANTI EVASION CIRCLE III RAJASTHAN JAIPUR … – LEGITQUEST

Abhay Manohar Sapre, J. In C.A. @ S.L.P .(c) No.11937/2017 1. Leave granted. 2. This...

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January 8, 2020 0Comments 767Views

RAJASTHAN HIGH COURT JODHPUR Vs … – LEGITQUEST

A.S. Bopanna,J. 1. Leave granted. 2. The appellants herein were the respondent Nos. 2 and...

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January 8, 2020 0Comments 382Views

MYSORE URBAN DEVELOPMENT AUTHORITY V. K.M. CHIKKATHAYAMMA

Abhay Manohar Sapre, J. 1. S.L.P(C)No………..(D.No.31403 of 2017) are directed against the final judgment and...

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January 8, 2020 0Comments 466Views

BIRLA CORPORATION LTD. Vs. ADVENTZ … – LEGITQUEST

R. BANUMATHI, J. 1. Leave granted. 2. These appeals arise out of the judgment dated...

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January 8, 2020 0Comments 441Views

POONA RAM Vs. MOTI RAM (D) TH. LRS – LEGITQUEST

MOHAN M. SHANTANAGOUDAR, J. 1. The judgment dated 28.08.2006 passed by the High Court of...

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January 8, 2020 0Comments 376Views

LEGITQUEST – New India Ass. Co. Ltd Vs. Genus Power Inf. Ltd

Uday U. Lalit, J. 1. Leave granted. This appeal challenges the order dated 30.05.2013 passed...

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January 8, 2020 0Comments 375Views

BHIVCHANDRA SHANKAR MORE V. BALU GANGARAM MORE

R. BANUMATHI, J. 1. Leave granted. 2. This appeal arises out of the judgment dated...

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Vishaka Guidelines, POSH Laws and the New Normal of Pandemic

November 13, 2021 0Comments 322Views

By Kanchan Sinha and Muskan Agrawal

November 13, 2021

The development of anti-sexual harassment legislation in India and jurisprudence around the same, owes a lot to international developments relating to the United Nation’s Convention on the Elimination of all Forms of Discrimination against Women, the national activism as well as judicial pronouncements.

Even beforethe Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (14 of 2013) and the related rules (collectively referred to as “POSH”) were enacted, Vishaka Guidelines pronounced in 1997 by the Hon’ble Supreme Court of India has served as a reference point for the Indian courts to grant reliefs to victims of sexual harassment. While granting such reliefs, the courts have pronounced judgements giving liberal interpretation to Vishaka Guidelines in order to ensure that the purpose of these guidelines is not defeated.

Similar to Vishaka Guidelines, POSH adopts a three pronged approach of prohibition, prevention and redressal to deal with the menace of sexual harassment. It prohibits sexual harassment of women at any workplace, provides for a redressal mechanism to deal with the complaints of sexual harassment and at the same time, it puts obligation on the employer/ appropriate government to undertake preventive measures to sensitise and create awareness amongst employees/ public. POSH actually goes one step ahead of Vishaka Guidelines by providing details and expanding on various aspects of the skeleton of law provided by Vishaka Guidelines, for instance, qualifications/ disqualifications for members of ICC/ LCC, time bound procedure for dealing with complaints, defining aggrieved woman, defining employee, who can file complaint as aggrieved woman or on behalf of aggrieved woman, defining workplace, setting out the concept of extended workplace, consequences of non-compliances etc. That said, Vishaka Guidelines still remain the soul and the spirit for POSH, e.g., the Delhi High Court in Ruchika Singh Chhabra vs. Air France India and Anr., held that the ICC constituted by Air France, all its resultant proceedings, and the report submitted by it, were invalid since the external member appointed did not meet the qualifications as per the POSH Act and, also, the ICC did not conduct its proceedings according to the principles of natural justice as required under the POSH Act. Additionally, the court also emphasised that Vishaka Guidelines are to be taken seriously, and not to be followed merely in a ritualistic manner.

Over the years, with the advancement of technology and more so during the current pandemic, the form of ‘workplace’ has undergone a complete transformation, yet, the judicial pronouncements rendered in relation to Vishaka Guidelines (such as, Ayesha Khatun vs. The State of West Bengal & Others[1] and Saurabh Kumar Mallick vs. The Comptroller and Auditor General of India and Ors.[2])as well as those rendered post enactment of POSH (such as,Sanjeev Mishra vs. The Disciplinary Authority[3]) make it amply clear that the protection of POSH shall be available to women even in this era of online/ digital workplace or the new normal of virtual workplace/ work from home.

In Saurabh Kumar Mallick’s case in 2008, it was emphasized that ‘a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression “office”’. In Ayesha Khatun’s case in 2012, with respect to the meaning of the expression ‘workplace’, the court noted that it has not been defined under Vishaka Guidelines, and observed that,‘a logical meaning should be given to the expression ‘workplace’ so that the purpose, for which those guidelines have been framed, is not made unworkable. Workplace should be given a broader and wider meaning so that the said guidelines can be applied where its application is needed even beyond the compound of the workplace.’

Taking the same spirit forward, please note that the definition of ‘workplace’ under POSH is not exhaustive, rather it gives an illustrative list of places that would be considered workplace. In Sanjeev Mishra’s case in 2021, the court observed that ‘in the present digital world, workplace for employees working in different branches of the same organization or different States shall be treated as one workplace on a digital platform.’

Despite the fact that it has been almost 24 years of Vishaka Guidelines, and almost 8 years of the enactment of POSH, sexual harassment at the workplace still remains an ugly reality of many women. Even though POSH extends protection to the unorganized sector, the women working in the informal/ unorganized sector find it difficult to access legal mechanism on account of lack of awareness or lack of means to do so. And, ironically, majority of India’s women workers are employed in the informal/ unorganized sector. That said, women in the formal sector also are not able to reap full benefits of POSH on account of lack of full compliance by the companies.[4]

Many companies set up ICC simply to ‘tick the box’ without adequately training the ICC members or without properly examining their suitability. Except for certain states (such as, Telangana and Maharashtra), there is no requirement in other states for registration of ICC after the same is formed by an employer. Employers are mandated to conduct awareness programmes at “regular intervals” but what amounts to regular intervals is not specified and is largely, left at the whims and fancies of the employers.

Thus, unless and until the adherence of POSH is strictly monitored at the ground level and the ambiguities are removed; the dream of completely eliminating sexual harassment of women at any workplace will remain a mirage.

Kanchan Sinha is Partner and Muskan Agrawal is Associate at L&L Partners.

[1](2012) 1 CALLT 482(HC)

[2] 151 (2008) DLT 261)

[3] S.B. Civil Writ Petition No.150/2021, decided by Rajasthan High Court on 11^th January, 2021

[4]https://www.business-standard.com/article/current-affairs/8-years-on-poor-compliance-with-sexual-harassment-law-at-workplace-121022300195_1.html , May 30, 2021

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Contract Beyond Clauses

November 11, 2021 0Comments 210Views

By Mudit Kaushik & Vasundhara Shankar

November 11, 2021

Contracts contain three basic requisites to be valid: a promise, a consideration, and an acceptance. The promise, or rather term, which is laid down in writing or spoken in words, and agreed upon by both the parties, is an express one. However, all the terms of a contract cannot be discussed or noted down in words. Therefore, some terms are taken to be omnipresent in a contract, even if none of the parties expressly state them in words. These terms are ‘implied terms.’

The terms in a contract can be ‘implied in law’ or ‘implied in fact’. In ‘implication in law’, the courts imply terms on a policy basis, whereas, in ‘implication in fact’, the courts actually look into the facts and ascertain the intention of parties while forming the contract. However, the fact that courts have to look at the intention of parties can make judgements rather subjective.

Historical Context and Development

There was a non-coherence in judgements related to reading terms in a contract, early in the development of the ‘implied terms’ principle in English Law. The famous MoorcockCase first tackled this difficulty of non-coherence in cases related to implied terms.

The case was by a shipowner against a wharfinger, on whose wharf the plaintiff’s ship was docked. Low tide had caused the ship’s hull to hit a ridge and the plaintiff sued, claiming that it was the responsibility of the wharfinger to ensure that the ship wasn’t damaged, even though there was no explicit term related to this in the contract. The Bench ruled in favour of the plaintiff, laying down the ‘Business Efficacy Test’.

This test established that a term can be implied in a contract to ensure business efficacy and prevent the non-inclusion of any consideration which the parties intended. However, the terms implied should be the bare minimum required for the fulfilment of the transaction, such that the burden is not imposed on one of the contracting parties.

Followed by this, was the “Officious Bystanders’ Test”, laid down in Southern Foundries Ltd. v Shirlaw.Mr. Shirlaw was removed from his post as the director of Southern Foundries Ltd. in 6 years from his date of appointment, even though his contract was of 10 years. In the judgement, delivered in Shirlaw’s favour, MacKinnon LJ developed the officious bystander’s test. The idea was that in case while the agreement was being signed, an officious bystander had asked the parties if there should be any clause preventing creation of any right to remove Mr. Shirlaw from his post, both the parties would have agreed vehemently. Therefore, terms implied in a contract should pass the test of officious bystander, where both the parties would have answered in affirmative, had any nosy bystander asked them about including the said term in the agreement. However, the main drawback of this test is its subjective nature, accompanied by the fact that the parties would often lie, and there was nothing that could be done about it.

Current Applications and Analysis

Looking at the entire contract holistically and understanding the context of the contract as a whole is important in matters where an impasse is reached on a clause implied in the contract. The Indian Judicature has also been proactively reading into contracts where an impasse has been reached and laid down some principles through landmark judgements in recent times.

One of these landmark judgements is that of Nabha Power Limited vs. PSPCL & Another.The terms in relation to the formula for calculating the cost of coal supplied was the point of contention in this case, with the respondent claiming that ‘washing’ wasn’t mentioned in the contract, and so the cost of washing of coal should not be included in the invoice. The Supreme Court cited the principles established in the Moorcock Case and the Officious Bystander test established in Southern Foundries Ltd. v Shirlawalong with a couple of other English cases. The Court adopted the five principles laid down in BP Refinery (Westernport) Pty Ltd v Shire of Hastings, to be established while checking implied terms. It was stated that the terms should:

be equitable and reasonable,
be necessary to give business efficacy,
be so obvious that “it goes without saying”,
be capable of clear expression, and
not contradict any express term of the contract.

A more recent case also had the Court diving into the intent of the parties in the contract, rather than the express written terms only. In the case of Adani Power (Mundra) Ltd v. Gujarat Electricity Reg. Commission, the Court had to infer whether Adani was right in cancelling the contract on non-delivery of power by Adani to GERC, because of an absence of Fuel Supply Agreement with Gujarat Mineral Development Corporation.

Gaurav Pachnanda, in his piece, talks about interpreting the terms of a contract. He writes that to read terms into a contract, courts take the help of the five-point test (which is an amalgamation of Moorcock, officious bystander and Belize test), the principle of contra proferentem, and also apply a ‘common sense’ approach. After going through the aforementioned cases, what has been found is that in most of the cases related to implied terms in a contract, the five-point test and, as mentioned that as a last resort, contra proferentem, have helped the courts to reach a decision. Almost every case of implied terms sees an application of these cases and principles, which suit the need of the hour.

The author, therefore, feels that there is a strong case in favour of looking at the contract’s discussions between the parties and their intentions, to get a better picture of what the parties did or did not want from the agreement. The legal framework developed on the topic has been of great use to the Courts to clear the roadblocks that parties have faced in the application of their agreements.

Conclusion

We find that reading the contract in its entirety, accompanied by the discussions that precede the contract signing and intent of the parties, has been a helpful tool for a long time now, both in Indian and English legal systems. The legal principles devised by English Courts have been readily adopted by the Indian Judiciary in reaching their decisions that pertained to implied terms in a contract. For these reasons, the author advocates reading holistically into the contract and not just the express text of it. However, in the words of Justice Sanjay Kaul, commercial courts should refrain from reading terms into a contract, as contract making nowadays, is done by highly experienced people of this field. Maybe a day will come when ambiguities are completely removed from contracts, and reading implied terms into a contract will no longer be needed.

Vasundhara Shankar is Managing Partner, Verum Legal. She is a startup lawyer and focuses on data privacy, IP, tech laws, white-collar crime, dispute resolution & legal tech innovations.
Mudit Kaushik is Counsel, ZeusIP Advocates LLP. He is an IP and Tech law lawyer skilled in pre-filing strategies, prosecution, opposition, brand enforcement, data protection laws and domain name disputes.

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Can a Mortgagee under an English Mortgage initiate action U/s. 7 of the Insolvency & Bankruptcy Code?

October 29, 2021 0Comments 146Views

By Pallavi Ghaisas

The Hon’ble Supreme Court vide its judgement dated 26^th July 2021 in the matter of M/s. Orator Marketing Pvt. Ltd. Vs. M/s. SamtexDesinzPvt. Ltd. [1] reiterated that the trigger for initiation of the Corporate Insolvency Resolution Process (“CIRP”)by a Financial Creditor under Section 7 of theInsolvency & Bankruptcy Code, 2016 is the occurrence of a default by the Corporate Debtor.

On an earlier occasion, in the matter of IDBI Trusteeship Services Limited v/s. Ornate Spaces Private Limiteddecided on 29^th June 2020, the proceeding U/s. 7 of the IBC(“said Code”) was initiated by the Petitioner being Debenture Trustee/Mortgagee under the Debenture Trust Deed, and despite the Petitioner being Mortgagee under an enforceable English mortgage,the said Petition was admitted by National Company Law Tribunal (“NCLT”)(Mumbai Bench).

However, recently the NCLT (Mumbai Bench) passed an order on 7^th October 2021,in the matter of Beacon Trusteeship Limited v/s. Neptune Ventures and Developers Private Limited (“said Order”), wherein theNCLThas taken a different perspective on the rights of Mortgagee under an English mortgage. By the said Order, the NCLT held that since the Petitioner is a mortgagee under an English mortgage, it has absolute rights in the mortgaged property and cannot initiate any action under Section 7 ofthe said Code.

Facts:

The Petitioner and the Corporate Debtor had executed the Debenture Trust Deed cum Indenture of Mortgage registered on 10^th January, 2018 and terms and conditions of debenture interest rate thereof were amended by a supplementary Debenture Trust Deed dated 20^th September, 2019 executed by both parties (collectively “said Deed”);

The Corporate Debtor had issued Series A and Series B debentures aggregating to an amount of Rs.25,00,00,000/- and registered the secured charge with MCA in CHG-9 on 20^th January, 2020;

Under the said Deed, the debentures were secured by way of a registered mortgage of commercial premises of the Corporate Debtor located in Bhandup and receivables thereof were also hypothecated and the promoters of Corporate Debtor had also given personal guarantee;

The Corporate Debtor defaulted in the payment terms of the said Deed and hence an amount of Rs.32,08,76,450/- (inclusive of principal amount, interest and default interest) was claimed by the Petitioner as on 31^st December, 2019 and accordingly the Petitioner sought to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor by filing Company Petition under Section 7 of the said Code.

Findings of NCLT:

The Hon’ble NCLT decidedthat as per Clause 13 of the said Deed, an English mortgage was created in favour of the Petitionerbeing Debenture Trustee therein for the benefit of Debenture Holders and therefore, the title, ownership, possession, interest, benefits, claim and demand including any lease hold rights in respect of mortgaged property already stood transferred to the Debenture Trustee absolutely.

The Hon’ble NCLT held as follows and hencedismissed the petition :

The said Deed is a complete understanding which sets out consequences of default and redemption of debentures;

Petitioner has acquired absolute rights in the mortgaged property;

It was agreed between the Parties that the Debenture Holder and Debenture Trustee can take properties without intervention of court.

The non-payment of dues by the Corporate Debtor does not constitute a default for the purpose of issuance of proceedings U/s. 7 of the said Code;

The Petitioner has agreed to a recourse envisaged under the said Deed and the same enables the Petitioner to sell the mortgaged assets and recover its dues.

Conclusion:

As per Definition of ‘Mortgage’ under Section 58 of the Transfer of Property Act, 1882 (“TP Act”), a mortgage is only a ‘transfer of an interest in specific immovable property’. An English mortgage is defined under the same section as “Where the Mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely the mortgagee, but subject to proviso that he will re-transfer it to the mortgagor upon payment of mortgage-money as agreed, the transaction is called an English mortgage”.

In Indian law, the right of redemption is conferred upon the mortgagor by Section 60 of the TP Act. Hence, what is transferred under an ‘English Mortgage’ is right of ownership subject to a condition. Therefore, even in an English mortgage, there is transfer only of ‘some interest’ and not the transfer of the whole interest of mortgagor. The word ‘interest’ as opposed to ‘ownership’ is a limited right and not an absolute right.[2]

In view of the above,on one hand the mortgagee under English mortgage is deprived of its rights to initiate proceedings under the said Code and on the other handtransfer in his favour is not absolute but subject to the right of redemption of mortgagor. Hence, following questions need to be answered regarding rights mortgagee under English mortgage vis-à-vis the said Code.

Before initiating proceedings U/s. 7 of the said Code,should a mortgagee be compelled to enforce security as per the mortgage document?

If the sale proceeds from the mortgaged property are insufficient to cover the principal debt and interest, then can it constitute ‘default’ and a petition U/s. 7 of the said Code be admitted?

Advocate Pallavi Ghaisas currently works at Federal and Company (Advocates and Solicitors) in Mumbai. She specializes in Conveyancing and Real Estate Practice. She has done her B.L.S./LL.B from Government Law College (GLC), Mumbai and is also a qualified Company Secretary.

[1]Civil Appeal No. 2231 of 2021

[2]Ram Kinkar Banerjee and Ors. Vs.Satya CharanSrimani and Ors. AIR 1939 PC 14

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Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021: Analysis on the Perspective of the Right to Self Determination

October 23, 2021 0Comments 266Views

By Akshay Lodhi and Rainy Jain

October 23, 2021

India stands second in the world population index with the current population of 1.39 billion and it is increasing with every passing second. The population growth rate in India is twice the population growth rate of China and India is expected to replace China in the world population index in next 2-3 years. When compared to other countries, population density in India per square km is on an average 3 times higher than other countries, except in the case of Bangladesh.

India is a country still attached to its root values and customs and hence Indians tend to think that a bigger family is a blessing. It is perceived that more number of family members is directly proportional to more income to the family, which is a questionable approach when the nation as a whole is developing and does not have sufficient resources to distribute to each and every individual.

On the other hand, more number of people in a family means more mouths to feed even as the resources are scarce. The impact of rapid population growth with limited resources is one of the reasons for poverty, unemployment, additional burden on health care facilities, illiteracy and increased crime rates.

In the light of these issues faced by the nation, various efforts have been made by the Legislature after independence to control the population growth. The National Population Policy 1976 was proposed to look into the aspect of increased population growth as a reason for increase in poverty, burden on health care infrastructure, etc. This policy placed emphasis on medical education to help the rural population. However, this policy was neither discussed nor adopted. Later, the National Health Policy 1983 was formulated for the purpose of spreading awareness among the common people about the need of population stabilization through improved health care services. In the wake of National Health Policy 1983, the National Population Policy 2000 (NPP) was formulated with an objective to address the concerns about the usage of contraceptive medicines and infrastructure for child health care with the long term goal to have a stable population but these efforts were in vain because of higher illiteracy rate in a majority of the states.

The 84^th Constitutional Amendment 2002, followed the principle of National Population Policy by taking steps to freeze the allocation of seats in the Lok Sabha to a state which failed to pursue the agendas of population stabilization. Later, the Ministry of Health and Family Welfare setup the National Population Stabilization Fund in 2005, to review, monitor and achieve population stabilization. This program emphasized on the primary health care of women including the distribution of free contraceptive medicines.

In the year 2017, the Assam Government introduced the Population & Women Empowerment Policy for population stabilization in lieu of demographic development of the state. However, the same did not came into force. In the year 2019, the Population Regulation Bill was again introduced by a member of the Rajya Sabha, however, the same turned out to be a failure. In the year 2020, Anil Desai, member of the Rajya Sabha, introduced a proposal to amend Article 47A of the Indian Constitution in favour of population control without any success.

Recently, the UP Government proposed the Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021, for the purpose of population control and stabilization. This bill emphasizes mainly on the implementation of policies which will incentivize the target demography to adopt the two-child policy of the government in order to avail and enjoy government-sponsored benefits. Further, in case of failure to adopt the two-child policy by the target demography, there are no benefits available to these people and these people will be disincentivized, says the Bill. The current bill can be taken as an extension of the Population Regulation Bill 2019, with the only changes being increase in both incentives and disincentives to the people who will and will not adopt the policy respectively.

There is no doubt that this bill has certain objectives that are in favour of society including population stability so that equal and sufficient distribution of resources can be achieved. With stabilized population, premium healthcare and better education can availed by society and it is highly probable that crime rates may reduce. Another aspect is socio-economic development of the nation which will help in overall growth of the State.

However, with the implementation of this bill, the chances of sex selective abortion may increase in future as a large number of Indians still prefer a male child over a female child. Further, coercive implementation of this bill will not be fruitful as India’s total fertility rate has fallen from 3.4 children per woman in year 1992-93 to 2.2 children in 2015-16 according to the National Family Health Survey 4 (NFHS 4) and the Total Fertility rate, as projected in current trend, will reduce to 1.8 children per woman in the year 2030. Further, this bill in certain cases prevents individuals from taking part in self governance, even if a candidate has been elected through the people’s mandated.

Now looking into the world perspective, in certain countries efforts have been made to have more kids such as South Korea, Singapore, Turkey, France etc.These countries have good medical infrastructure and have the lowest birth rate, and are spending billions of dollars on policies that encourage people into having more children as the disparity between the ratio of young and old population is growing by the day and is creating an imbalance. However, it is the opposite in the case of India and it is necessary to take steps towards population stabilization but it is uncertain whether the current version of the bill and implementation of two child policy according to this bill is a bane or a boon in the long run.

With regards to the proposed bill in the State of Uttar Pradesh, its implementation may infringe upon the rights of the people. These rights have been defined under various laws and the same has been recognized by the Constitution of India.

The Right of Self Determination in light of the Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021

The Declaration of Social Progress and Development, proclaimed by the United Nations General Assembly Resolution 2542 of December 1969 begins with “reaffirming faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person, and of social justice under the resolution”. Upon reading Article 22 of the Resolution, it is easy to understand that the common concern of the international community is the development and co-ordinations of policies to strengthen the functions of families as a basic unit of society. Further clause (b) of Article 22 of the resolution puts emphasis on the right to determine freely and responsibly the number of spacing of their children. The International Conference on Human Rights Teheran 1968, under Chapter 3 (VIII), emphasizes that right to self-determinations is a basic human right, which provides decision making autonomy to an individual and the absence of such right amounts to violation of basic Human Rights in International Law Regime.

In case of Indian social structure, the Constitutional Bench of the Hon’ble Supreme Court in case titled as Justice K.S.Puttaswamy(Retd) vs. Union Of India, was of the opinion that“…Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects…”. Furthermore it was also observed that “…The sanctity of marriage, the liberty of procreation, the choice of family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity.” Here intimacy and autonomy includes the right to procreate or to make sexual or reproductive decisions. Furthermore, in R. Rajagopal vs. State of Tamil Nadu, the Hon’ble Supreme Court, while deciding right to privacy under the ambit of Article 21 of the Constitution of India, opined that privacy interest in autonomy must also be placed in the context of other rights and values. Further, right to privacy also includes right to be let alone which can further be extended to privacy of an individual, his family, marriage, procreation, child bearing and others.

In Justice K.S. Puttaswamy (Retd.) vs. Union of India(Supra), the Hon’ble Supreme Court dwelled into the ambit of Article 21 in the light of “procedure established by law”. The Hon’ble Supreme Court upon analyzing numerous judgments including Maneka Gandhi vs. Union of India (1978) 1 SCC 248; Bachan Singh vs. State of Punjab (1980) 2 SCC 684: (1982)3 SCC 24 and Mithu vs. State of Punjab (1983) 2 SCC 277, analyzed that the ambit of Article 21 not only restricted to the procedure that has been established by law, but put the procedure established by law to the test of fair, just and reasonableness. The application of the test of fair, just and reasonableness becomes the paramount consideration while determining the substantive procedure established by law laid down by the parliament and if the substantive procedure fails to justify the test of fair, just and reasonableness, the same can be challenged under Article 14 and 21 of the Constitution of India. The application of Article 14 with Article 21 justifies fairness and reasonableness not only in the procedure established by law but also the law enacted by the legislation in its entirety.

Similarly,in the case of Mohd. Arif vs. Supreme Court of India, JusticeRohinton Fali Nariman brought in the observation laid down by Justice Krishna Iyer in Maneka Gandhi vs. Union of India(supra),“…Procedure’ in Article 21 means fair not formal procedure. ‘Law’ is reasonable law, not any enacted piece…’. And later on, Justice Rohinton Fali Nariman was of the opinion that “…the wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty…”

The Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021 (hereinafter “the Bill”), is one such Bill that has been brought in by the State government with the object to control and stabilize the population of the State of Uttar Pradesh. But upon careful perusal of the Bill in the ambit of the test laid down by the Apex Court under Article 21, the bill fails to justify the substantive process established by law as no regulatory authority has been defined in the bill, neither any protective mechanism has been mentioned through which people can seek relief in case of any grievance. Thus, in the light of the rulings of the Apex Court, violation of rights under Article 14 and Article 21 of the Constitution of India can be claimed. It is further to be observed that the bill itself can be challenged on the ground that it does not provide any procedure by which the people can approach the state or any other authority. Therefore, this bill does not survive the test of fair, just and reasonableness laid down in the case of Justice K.S. Puttaswamy (Retd.) vs. Union of India (Supra) and other cases as discussed above.

This Bill also does not adhere to the principle of Reasonable Classification as given under Article 14 of the Constitution. The bill, 2021, creates two separate classes among the citizens of state of Uttar Pradesh-one being the government employees and the second being the non-government employees/self-employed/businessmen/small occupations and others. Now in the given scenario, if this Bill comes into force it may result in forced sterilization of either of the spouses who are government employees so that the incentives given under section 4 of the Bill can be availed, and if the same is not done the government employee will have to bear the consequences in the form of disincentives. On the other hand, there is no procedure or guidelines given in the bill with regard to the application of the bill on non-government employees and other employees. Thus, it is only the government employees or the persons who are appearing for government service/job who will have to go through voluntary sterilization in order to avail the incentives. Therefore, there is intelligible differentia among the class of people created by this bill on the basis of sterilization. And therefore, this bill clearly violates Article 14 of the Constitution.

Further, there is no Reasonable Nexus between the intelligible differentia and the object to be sought by the Bill. It can be seen that the country’s fertility rate has decreased in last two decades. It can also be seen that the rate of sterilization is much lower in U.P as compared to rest of Indian States (18% to 36%). As per research conducted by a researchjournal, the cause of higher fertility rate is lack of education and the families which are not educated enough opt for sterilization instead of using contraceptives. The fertility rate in the state of U.P has decreased drastically from 4.4 to 2.7 children per couple from 2000 to till 2017-18. This paper has also observed that the fertility rate declined because of modern contraceptive methods than due to sterilization. In the absence of any concrete demonstration that population can solely be controlled through sterilization, the bill in itself takes away the constitutional right from the citizen of the state and therefore, the Bill violates Article 14.

Thus, in the light of above-noted judgments it is clear that every individual has the right to privacy which also includes and protects personal intimacy of a person including procreation and child bearing rights. The right under Article 21 cannot be taken away through implementation of two-child policies, nor by way of providing additional subsidies and increment policies, as is the case of Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021.

The major concern that can be seen in implementation of this bill is that, it will also violate the Right to Equality under Article 14 of the Constitution of India as this bill will divide married couples on the basis of the number of marriage one can enter into. A Hindu married couple can only have two children, whereas a Muslim man who can have upto four wives can have eight children from all the wives together and therefore, the ambit of this bill lacks in case of polygamy marriages. Further, this bill under section 18 and 19, determines polygamy marriages and the issue related to the birth of two or more children.However, these sections are not crystal clear upon the aspect of rights of a spouse to procreate. For example, in case of a Muslim man having four wives, if each wife has one child then there is no contravention of section 18 and 19, when looked from the perspective of the wife. Whereas, from the perspective of a husband he has four children, thereforethe husband has violated the objective of the Bill.

This bill will cease the right of a future spouse to procreate, if he/she marries a divorced/widow/widower already having two children. Thus, in the light of pre-existing rights, it is highly impossible to support the social structure of democracy when any bill may create social imbalance among the community of people on one hand and taking away the fundamental rights enshrined under Article 14 and 21 on the other hand.

Conclusion

The Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021, comes with an objective of better socio-economic structure of society in which families are in a position to avail better medical facilities and a healthy lifestyle. This bill further provides incentives to those people who are ready to accept the two child policy norms. However, the bill does not instill confidence in the minds of people as to how this bill will not infringe upon decisional autonomy of the public to decide how many kids they want and enforces the two-child policy upon them.

Furthermore, it can be observed that the implementation of this bill will clearly result in violation of fundamental rights. This bill is a better version of all the previous bills that have been placed before Parliament.However,this bill still fails to address the question about how society is benefited from this bill without violating the constitutional mandate under Articles 14 and 21.

Akshay Lodhi is Advocate, Delhi High Court.

Rainy Jain is an Associate at Samyag Legal, Jaipur.

Columns

Contextualising Mob Lynching in India as a Form of Honour Crimes

October 12, 2021 0Comments 113Views

By Ritabrata Roy and Triman Goel

October 12, 2021

PART 1

“It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that’s pretty important.”

― Martin Luther King Jr.

1.INTRODUCTION

Largely during the last five years, among other instances of aggravated violence particularly upon the religious minorities in India, the phenomenon of mob-lynching has significantly managed to create its niche. Recent reports suggest that this method of violence has become extremely popular among the masses in the sub-continent, especially in the wake of recent events of communal violence nationwide. According to reports, 2018 recorded the largest number of mob lynching cases between the years 2015-19, when the tally was more than 50 in the year itself.[1] In wake of the alarming rise of these incidents, the Supreme Court of India in 2018 prescribed some strict guidelines to curb these incidents in future. The core issue of this study is to analyse the elements of patriarchal communityhonour, which is arguably one of the primary motivations behind the phenomenon. I will argue that mob-lynching is a specific category of honour crimes and thereby, will make a strong case for implementing the 242^ndReport of the Law Commission of India towards enacting a specific provision on honour crimes within the Indian Penal Code 1860.[2]Such a provision, in my opinion, should encompass the subject of mob lynching by mainly focussing on the honour-based motivations of the crime. I further believe that such a comprehensive enactment will be a commendable step towards implementation of the Supreme Court’s guidelines in the TehseenPoonawalla judgment.[3]

2.INCIDENTS OF MOB LYNCHING AND THE TEHSEEN POONAWALLA GUIDELINES

2.1 The cases

The usage of mob-lynching as a form of so-called ‘retributive justice’ in the eyes of certain sections of the society is not an alien concept to the Indian subcontinent. However, in my opinion, the alarming reality that needs to be highlighted here is the sharp increase of the number of cases, especially in the last five years. Coupled with the volume of the incidents, the sheer magnitude of public brutality involved therein has compelled civil society and the judiciary alike to rethink about the measures to curb these incidents.

In my view, it is imperative to present a brief background to a few of such spine-chilling incidents of mob-lynching that shook the moral conscience of the country recently.

The Shahrukh Khan Case: In this case, a 20-year-old man was lynched by an angry mob on the suspicion of trying to steal a buffalo. The incident happened in the state of Uttar Pradesh on August 29, 2018.

About a year later, on June 18, 2019, a similar gut-wrenching incident from the state of Jharkhand again came to the forefront. Popularly known as the Tabrez Ansari case, the incident in which a young man who was alleged to have stolen a motorcycle was lynched by a mob. The victim died on June 22, four days after the incident. The video evidences of the incident revealed that the mob had forced the victim to chant some jargons of the dominant religious community in India, thereby communalizing the incident, making it a highlight in the popular discourses in the media circuit for days to come.

Within a couple of months, several other incidents of mob violence were reported in different parts of the country. One such widely reported was the Beena Devi case from the state of Uttar Pradesh, where a 50-year-old woman was brutally attacked on suspicions of child-lifting on August 26, 2019. The state of West Bengal reported an incident on July 26, 2019, where a Muslim boy (Faiz) was beaten to death by the family of a tribal girl, who was in a relationship with the deceased.

2.2 Statistics

Table A, provided below presents a graphical representation of the year-wise reported cases of mob-lynching across the country from 2015 to 2019.

TABLE A

2.3 Major characteristics of theTehseenPoonawalla guidelines

In the wake of these incidents, social activist TehseenPoonawalla and Tushar Gandhi moved the Supreme Court of India in 2018, seeking judicial interference to curb the magnitude of the growing menace.[4] In a landmark judgment pronounced by a three-judge bench headed by the then Chief Justice of India (Deepak Mishra, J) A.M Khanwilkar and Dr. D.Y. Chandrachud, JJ was highly critical about the growing incidents of mob-lynching across the country. Expressing grave concerns, the bench called for a complete overhaul of the law enforcement system to this regard.[5]The guidelines suggest creation of a special task force (STF) to procure intelligence reports on subjects likely to commit or incite such offence. Further, the Director General of Police and Secretary of Home Department of the States were directed to take regular meetings at least once a quarter with all nodal officers and State Police Intelligence Heads.[6] Regular police patrolling was also suggested as a complementing method to provide the necessary intelligence on the subject to STF.

With regards to the legislative methods, the court recommended that the Parliament enact a specific legislation directed towards the offence of mob-lynching with adequate punishment for the same.

2.4 Critically analysing the guidelines

2.4.1. Open-ended terminologies

Previous studies have revealed complex discrepancies in these guidelines from both policy-making and implementational standpoints. However, in my opinion the most striking feature that sticks out as a sore thumb, is the prolific use of open-ended terminologies throughout the guidelines. For the purpose of study, it appears to me that the court has not restricted the applicability of the guidelines only to the phenomenon of mob-lynching.

In this context, I wish to argue that, the impugned guidelines provide for an excellent opportunity to comprehensively implement the guidelines on honour crimes proposed by the 242^nd Report of the Law Commission of India,along with the guidelines given in the Shakti Vahini judgment.[7] However, for doing that, firstly, we need to characterize certain kinds of mob lynching as manifestations of honour crimes. In the forthcoming sections, I will first try to categorize the acts of mob-lynching as a specific form of honour crimes. Thereafter, I will try to make a case for comprehensive implementations of the aforementioned recommendations and guidelines.

PART 2

3. MOBLYNCHING: A SPECIFIC FORM OF HONOR CRIMES?

At the outset, let us go back to the different incidents of mob lynching that I have discussed in section 2. A closer analysis of these cases will reflect a variety of motivations behind these violent acts. In these four instances, while three of them reflect a stain of communal violence involved, one was rather a manifestation of discontentment with the existing law and order system. A recent study has claimed that majority of the mob lynching acts since 2015 are mostly motivated by communal disharmony. In these cases, the victims mostly belonged from the minority communities.

The core argument of my present study is that, most of the cases of mob lynching in India are violent manifestation of the so-called ‘protection’ of family or community honour which effectively brings them within the broader ambit of honour crimes or honour-based violence (HBV). For the purpose of this claim, I will argue for giving a broad interpretation of the term ‘honour’. However, to elaborate this claim further, let me first critically discuss the concept of honour crimes, particularly from a motivational aspect.

3.1 Honour Crimes: Concept and Motivations

Honour crimes are commonly defined as, “acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonor upon the family.” Mainstream literature on the subject have reflected upon the nature of the ‘honour’ involved in these crimes, as patriarchal community or family honour. Discussing this point, Phyllis Chesler has observed that, a family/community honour is often associated with the chastity/purity of a woman. Therefore, “female chastity and fertility is considered a family-owned asset that no individual woman dares to claim as her own.”[8] As Safia Heidi rightly summarized that it is the collective patriarchal community honour that is usually borneby the women of the community. Even the slightest perceived taint to suchhonour is washed away with retributive violent retaliations such as killing of the victim and other forms of honour violence.[9]

3.2 Feeling of collective shame and anger

The mainstream literature on the subject has often charactarized ‘honour crimes’ as a retributive means of redeeming collective institutional shame. Erving Goffman notes that, ‘shame’ is an outcome of embarrassing interactions with the society, which can both be temporary and permanent/institutional.[10] With regards honour crimes, it is institutional honour that works as the motivating factor.[11] Further, it has been noted that the honour offenders often work as a group, trying to clean/preserve their community honour as a unit, by acting violently against the victim who is perceived to have maligned it.[12]

It is this collective feeling of honour/shame that makes the honour crimes unique. Thus, a closer look at the cases worldwide would reveal the intrinsic involvement of the extended family members or the community members of the victim in planning and executing the act. MazherIdriss of Manchester Metropolitan University points out that the strong sense of bond (brotherhood) among the community members in a closely knit society ignites a sense of retributive compulsiveness among them, to retaliate violently against the victim even in the slightest threat to such honour.

Interestingly, such collective feeling of honour (pride) and shame is visible within different communities across the world, having certain cultural identities similar to each other. For e.g. in a recent incident in Berlin, a young Turkish girl was murdered by her cousins after she had tried to escape the possibility of a forced marriage. It was found out that the entire family had conspired for the act.

Similarly, among the Pashtun community in Afghanistan, the community honouris violently protected (usually) by the male members of the community (collectively) by punishing anybody who is presumed to have maligned the same.[13]

Therefore, the phenomenon of redemption through retribution, reflects a strong manifestation of collective institutional honour, as Goffman has previously pointed out.[14]

3.3 Collective sense of honour in mob lynching

In my opinion, the act of mob lynching at a motivational level presents intrinsic similarities to that of honour crimes. Leaving the political discourses concerning the phenomenon aside, if we investigate the motives behind the act of mob lynching, a strong sense of immediate threat to the collective honour of the group concerned, coupled with an urgency of violent redemption, is clearly visible.

Both Shahrukh and Faiz’s incidents reflect the same. For instance, Shahrukh’s alleged act of trying to steal a buffalo (which is considered pious by members of the community in question), was readily perceived to be a threat to the collective feeling of religious honour and was redeemed in the form of a violent retaliation. Faiz’s death rather presents a template case of honour killing emerging out of a disapproved inter-faith relationship. Here, the act of entering into a relationship with a girl from a different community was perceived to be dishonorable by the girl’s family/community members, worthy of a violent retaliation in the form of honour killing.

The above discourse, therefore, makes it clear that the acts of mob lynching largely reflect similar intrinsic traits of honour crimes to the extent that in my opinion, the former can be regarded as a specific species of the former genus. This line of argument is pitched by Mark Walters in his extensive literature on hate crimes, where Walters frequently argues in favour of an integrated paradigm of honour and hate crimes.[15]

4. LEGAL REFORMS SUGGESTED

4.1 The judiciary-proposed reforms relating to honor crimes

Within the legal parlance, the issue of honour crimes has been doing the persisting rounds in the reformative discourses for a long time. The urgency of the situation is so grave that the Supreme Court on numerous occasions has recommended an amendment in the Indian Penal Code to include a separate section or a subsection within the existing provisions on murder dedicated to honour crimes.

Time and again, the apex court has also called for enactment of strict punishments (including capital punishment) for these barbaric practices. In BhagwanDass v. State (N.C.T.) of Delhi,[16]Katju, J observed that,

“In our opinion honor killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate ‘honor’ killings should know that the gallows await them.”

Similar recommendations have been made by the Law Commission of India, back in 2012, in its 242^nd Report where clear recommendations are made to amend the existing provisions of the Indian Penal Code, 1860 to the extent of including a sub-section within the provisions of Sections 300 and 302 to include a specific provision dedicated to honor crimes. It also called for enactment of a specialized legislation vis-à-vis “Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011”. This proposed law is directed towards prohibition of khap panchayats, labelling them as ‘unlawful assemblies’.Such recommendations have been reviewed and approved by the judiciary in Shakti Vahini v. Union of India and Ors.[17] In this case, the judges went to the extent of giving specific state-wise directions for legislative amendments to combat the menace of honour crimes.

4.2 Progress towards implementation

Despite the Supreme Court’s directions and sheer urgency of the implementation, unfortunately no significant progress has been made yet by either the union government or the respective state governments towards implementing the Law Commission recommendations. However, it is noteworthy that some of the states such as Tamil Nadu has constituted dedicated ‘anti-honor killing cells’. But the enactment of a new dedicated law still appears to be a distant dream. Demand for such a legislation has often been criticized by the government, because of its potential of being misused.Analysts, however, have often pointed out that the unfettered influence of vote bank politics entrusted with the local khap panchayats, is one of the core reasons behind this lackluster attitude on behalf of the legislature.

4.3 Anti-mob lynching guidelines: A similar fate?

As seen in section 2.3, in the TehseenPoonawalla Case(supra),[18] the Supreme Court has categorically laid down some explicit guidelines to prevent the heinous acts of mob lynching from happening in future. Such measures include,setting up of Special Task Force (STF), regular monitoring of the situation, meetings between the top brass of the police force and the legislatures and finally enactment of a dedicated legislation. However, within the last couple of years, despite the sharp increase in the number of incidents of mob violence, no significant measures have been adopted by the legislatures or the executive to implement these aforesaid guidelines. Even more heartbreaking is the recent reluctance among the judiciary to seek update on the matter. In June 2020, a petition, filed before the Jharkhand High Court, seeking responses from the state government on the implementation of the Tehseen S. Poonawalla guidelines, was rejected on technical grounds. Interestingly, a similar petition is pending before the Supreme Court for the last two years.

The irony of the matter is that in theTehseenPoonawalla case(supra), due to the urgency of the issue, the court had made many of the guidelines as time-bound. The court observed that,

“horrendous acts of mobocracy cannot be permitted to inundate the law of the land” and “earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become ‘the new normal’.”[19]

However, it seems that the sense of urgency has now somewhat fizzled out.

4.4 The opportunity and the right time to seize it

Throughout the discussions till now, we have seen how both phenomena of mob lynching and honour crimes, despite their alarming increase, has been somewhat pushed to the sidelines in the present scheme of things. However, in my opinion, this scenario presents an excellent opportunity to comprehensively curb both these practices simultaneously.

I have already established that at least on a theoretical premise, how mob lynching can be regarded as a manifestation of honour crimes. Having these similarities of the salient features at the backdrop, I believe that the time has come to enact a comprehensive legislation targeting both these practices.

Such legislation, in my opinion, will have to treat the act of mob lynching as a form of honour crime, focusing on the motivational aspects of the crime. By doing so, it will have to define the concept of ‘honour’ in an open-ended manner, so as to encompass different forms of violence committed in the name of it, either explicitly or implicitly.

This form of legislation will also do away with the shortcomings of the proposed monotoned form of template honour crimes, largely involving an unapproved relationship. It is noteworthy that the legislation, that is proposed by the Law Commission of India, primarily focusses on such template form of honour crimes, thereby rather ignoring allied issues such as homosexuality, hate crimes and others as forms of honour crimes. I believe that this integrated approach is essential because both mob lynching and honour crimes have gradually become global phenomena at present. India is gradually rising higher up the ladder as far as the global rates of these crimes are concerned. It is interesting to note, that these crimes are presently viewed from a multi-dimensional standpoint globally, while India lags behind in that quotient.

Ritabrata is principal founder of ‘The Dailogue Box’, a Doctoral Tutor and a PhD researcher at University of Sussex, United Kingdom. He has also been working as an Assistant Editor at Manchester Journal of Transinslamic Law and Practices since 2019. His research interests lie in areas such as honour based violence, gender studies and male victimology.

Trimanis a student at Lloyd Law College.

[1]Refer to Table A in section 2.2.

[2]Tehseen S Poonawalla v Union of India & Ors [2018] Supreme Court of India WRIT PETITION (CIVIL) NO. 754 OF 2016, SCC.

[3]ibid.

[4]M Mohsin Alam Bhat, Vidisha Bajaj and Sanjana Arvind Kumar, ‘The Crime Vanishes: Mob Lynching, Hate Crime, and Police Discretion in India’ [2020] Jindal global law review.

[5]Tehseen S. Poonawalla v. Union of India & Ors. (n 3).

[6]ibid.

[7]Shakti Vahini vs Union of India and Ors [2018] Supreme Court of India Writ Petition (Civil) No. 231 of 2010, 7 SCC 192.

[8]Phyllis Chesler, ‘Are Honor Killings Simply Domestic Violence?’ (2009) 16 Middle East Quarterly G1.

[9]Veena Meetoo and Heidi Safia Mirza, ‘“There Is Nothing ‘Honorable’ about Honor Killings”: Gender, Violence and the Limits of Multiculturalism’ (2007) 30 Women’s studies international forum 187.

[10]Erving Goffman, Stigma : Notes on the Management of Spoiled Identity (Harmondsworth : Penguin 1990).

[11]ibid.

[12]Lynn Welchman and Sara Hossain, ‘Honor’ : Crimes, Paradigms, and Violence against Women (Zed Books 2005).

[13]Yasmin Jiwani, ‘Posthumous Rescue: The Shafia Young Women as Worthy Victims’ (2014) 7 Girlhood studies 27.

[14]Goffman (n 13).

[15]Mark Austin Walters and Jessica Tumath, ‘Gender “Hostility”, Rape, and the Hate Crime Paradigm’ (2014) 77 Modern law review 563.

[16]Bhagwan Dass v State (NCT) of Delhi [2011] Supreme Court of India Criminal Appeal No. 1117 of 2011, 6 SCC 396.

[17]Shakti Vahini vs. Union of India and Ors (n 10).

[18] Tehseen S. Poonawalla v. Union of India & Ors. (n 3).

[19]ibid.

Interviews

Interviews, Trending

Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur

February 3, 2020 0Comments 1491Views

Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.

Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?

A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.

Q: So you have had the feeling that the establishment is trying to interfere in the matters?

A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.

Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?

A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.

Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?

A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.

Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?

A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.

Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?

A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.

Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?

A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.

Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?

A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.

Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?

I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.

Q: What kind of technology would you recommend that courts should have?

A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.

Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?

You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.

Q: Do you think law should permit this to death row convicts?

A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.

Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?

A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.

Q: What about capital punishment as a means of punishment itself?

A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.

Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?

A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.

Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?

A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?

Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?

A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).

Q: You think giving proper training to police to prepare a case will make a difference?

A: Yes, it will make a difference.

Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?

A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.

Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?

A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.

Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?

A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.

Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?

A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.

Q: What will happen if in a democracy these rights are controlled by hook or by crook?

A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.

Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?

A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.

Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?

A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.

Q: Is there any other thing you would like to say?

A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.

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