When the Supreme Court rules

By Soli J Sorabjee in The India Express

Illegal demands for dowry and cruelty against women are persistent evils in our country. Parliament has enacted legislation to curb these evils. Demanding dowry is punishable under the Dowry Prohibition Act, 1961. Section 498A of the Indian Penal Code [IPC] punishes a husband and his relatives that harass or torture the wife and coerce her or her relatives to satisfy unlawful demands for dowry.

A person was convicted for an offence under Section 498A. He challenged the conviction on the ground that the complainant was not his legally wedded wife, as he was already married, and, therefore, Section 498A had no application in his case. The question before the Supreme Court was about the meaning of the expression “husband”, in the absence of any statutory definition.

A bench of the Supreme Court comprising of Justices Arijit Pasayat and A.K. Ganguly in a recent judgment held that irrespective of the legitimacy of the marriage, for the purposes of Section 498A the expression “husband” would include a person who enters into a marital relationship and under the colour of a proclaimed or feigned status of “husband” subjects the woman to cruelty to satisfy illegal dowry demands. The Court further held that “the absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as ‘husband’ is no ground to exclude such person from the purview of Section 498A.”

In common parlance a husband is a person who is legally wedded to another woman, and the marriage is subsisting. What is the basis for the court’s extraordinary conclusion?  One is that acts of Parliament are not “drafted with divine prescience and perfect clarity”. True, but can that justify the reasoning that when a defect appears a judge cannot “simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament not only from the language of the statute, but also from a consideration of the social conditions which gave rise to the statute”? Then the judge “must supplement the written word so as to give ‘force and life’ to the intention of the legislature.” The eminent English judge, Lord Denning, who had adopted a similar approach, was roundly reproved by the House of Lords who decried “such judicial heroics.”

The critical question is whether it is permissible for judges in India to cure omissions in a statute by filling in the gaps a la Lord Denning. Or by so doing are the judges not in effect legislating under the thin veil of purposive construction? There are divergent opinions among judges, lawyers and academics. However, there can be no two opinions that the judgment protects women who have in fact been cohabiting in a marital relationship with persons who, though not their legally wedded husbands, are professedly acting and behaving as their husbands. The judgment also highlights that the life of the law is not logic but experience. It reflects a humane approach towards ill-treated sections of society. It is a significant addition to the jurisprudence of compassion evolved by our Supreme Court. And that is what ultimately matters to the exploited and marginalised sections of Indian humanity.

The Supreme Court has in 1996 held that “water is a gift of nature and it would be mocking nature to force the people who live on the bank of a river to remain thirsty.” The court has also held that the right to life guaranteed under Article 21 inter alia includes the right to water. Gandhiji often said that freedom for him would mean the availability of safe drinking water to every person in every village of India. This has still not become a reality. It is a cruel paradox that our country, despite having immense reservoirs of water, continues to experience water shortage as an acute problem. (It is reminiscent of Samuel Coleridge’s famous lines, “Water, water everywhere, but not a drop to drink.”) In much of rural India there is shortage of water for irrigation and for drinking. John Briscoe, who has authored a detailed World Bank report on the subject, has said that despite this alarming situation there is widespread official complacency.

The Supreme Court has come to the rescue. A bench comprising of Justices Markandey Katju and H.L. Dattu in a recent judgment dated April 28 spoke first of India’s strong heritage of science, pointing out outstanding scientific discoveries and inventions made in the past by Indians, and then went on to lament that subsequently we took “to the unscientific path of superstitions and empty rituals, which has led us to disaster.” The court rightly stressed that the way out for our nation is to once again turn to the scientific path shown by our ancestors. Then follows a critical part of the judgment — namely directions, not recommendations, issued to the Central government inter alia to form a committee to address the water shortage problem at the earliest. The committee’s composition is also set out in the order. Thereafter the court has directed the committee so formed to conduct scientific research on a war footing to solve the country’s water shortage. The functions of the committee have been set out in detail. Thereafter the court requests the committee “to do patriotic duty to the nation”, and through scientific research discover solutions for the water shortage problem. The justification for these directions, apparently, is that the country is reeling under acute shortage of water.

The judgment and the directions given are most welcome, and should provide much needed relief. The stress on science and scientific methods and bemoaning the path of superstition is heartening. Indeed that thinking is in keeping with the fundamental duty prescribed in Article 51A “to develop scientific temper”. Another noteworthy feature is that the directions issued to the Central government signify a wholesome change in Justice Katju’s judicial philosophy of separation of powers, of which he has been a strong proponent. It must be realised that the doctrine of separation of powers cannot be rigidly followed but has to be adapted to the needs and problems of our nation in a pragmatic manner. And that is what the judgment has admirably done.

The writer is a former Attorney General for India

http://www.indianexpress.com/news/when-the-supreme-court-rules/457216/0

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Equality is a fine balance

By  Soli J Sorabjee in The Indian Express

The prime minister’s recent statement that each organ of the state has “constitutionally assigned roles” and “each must respect the functions of the other” raises the critical question about the legitimate role of each state organ.

The constitutionally assigned role of Parliament and the legislatures is to enact laws and that of the executive is to implement the laws. One salient fact must be remembered. The powers of Parliament and legislatures under our Constitution are not absolute. They are subject to certain limitations, one of which is legislative competence. Another important limitation is the fetter of fundamental rights. Our Constitution expressly provides that any law which contravenes any fundamental right is void. Again, action of the executive must be within constitutional and statutory limits. It is axiomatic that the limits of power and their transgression cannot be determined by the limited power itself. Therefore it is for the judiciary to determine and enforce constitutional limitations. This aspect was extensively debated in the Constituent Assembly. Ultimately it was accepted that the question whether a law or executive action violates any fundamental right was to be decided by the judiciary which was its legitimate function.

The judiciary invalidates a statute if it is clearly in conflict with the Constitution. Our courts have not been trigger happy in striking down laws. Laws are not invalidated because the court disapproves of the policy underlying the legislation or its wisdom. Statistics and research would establish that in a vast majority of cases legislation, especially socio-economic legislation, has been upheld. Undoubtedly there have been at times judicial aberrations. This cannot be avoided because infallibility has not been divinely guaranteed to the judges. Surely that cannot be a reason for clipping the wings of the judiciary.

Suppose a law is enacted by an overwhelming majority that persons belonging to certain castes or community are ineligible to hold certain constitutional offices. Can the court shirk its duty of striking it down as discriminatory?

Reservation to the extent of 27 per cent for OBCs in higher educational institutions has generated furious controversy. The court is not concerned with the wisdom or otherwise of the reservation policy but it has to consider its impact on fundamental rights, especially the guarantee of equality. Leaving aside the recent Supreme Court stay order let us test the issue on principle. Suppose the percentage of reservation is increased — God forbid —to 77 per cent. If the court finds that the hypothetical 77 per cent reservation violates the fundamental right of equality, should it fold its hands in despair and refuse to interfere because the majority of people and several political parties are insistent about it? Such a course would not be exercise of judicial restraint but plain and simple judicial abnegation. The rationale of guarantee of fundamental rights in the Constitution and their protection by an independent judiciary is precisely to check the majority’s fleeting impulses and desires which are contrary to the cardinal values of the Constitution.

To dub judicial intervention in case of violation of fundamental rights by the legislature or by executive inaction as an overreach is tantamount to questioning the very legitimacy of judicial review by an independent judiciary which is a basic feature of our Constitution.

Courts certainly cannot interfere with the internal functioning of Parliament and legislatures about convening sessions, their timing and duration, the allotment of seats to members, its agenda of business and related matters. These are within the sole purview of the House. Judicial intervention is out of bounds even if there is malfunctioning in the House. However, if in exercise of powers and privileges claimed by Parliament the fundamental rights of a citizen are infringed, it is the duty of the court to adjudicate his complaint and give relief if the complaint is justified.

Often the occasion for judicial intervention is the inaction of the executive branch. In 1976, Parliament passed the Bonded Labour System (Abolition) Act. For a long time the act was not enforced till an NGO approached the Supreme Court. The court, departing from its traditional role, issued several directions. As a result the exploited bonded labourers secured much needed relief. Can this intervention be regarded as judicial overreach?

The court was confronted with the pervasive problem of sexual harassment of women in the workplace. The Court in its celebrated judgment, Vishaka, issued several directions which included definition of sexual harassment, the preventive steps that can be taken and also devised a complaints mechanism. Justice J.S. Verma, the architect of the celebrated judgment, was at pains to point out that these legally binding directions were pro-tem till Parliament enacted a law on the subject. Can the judgment in Vishaka, a classic instance of ad-hoc judicial legislation, be regarded as overreach? There can be two views about it but not about the beneficial effects of the judgment.

The principles of judicial review laid down by the Supreme Court in the Bommai case and the Bihar assembly dissolution case were timely and salutary. Their wholesome consequence has been to prevent wanton onslaughts on the federal fabric of our Constitution and to restrain the Centre from yielding to the temptation of toppling state governments.

Problems really stem from the judiciary’s role in entertaining Public Interest Litigation petitions. Some orders and directions passed are beyond the judicial sphere and at times smack of judicial adventurism. For example, direction to the administration to construct roads and erect buildings, to secure lands in a particular locality for locating some industries, directions for huge ad-hoc monetary payments to riot victims which have serious budgetary implications. Again, directions to ensure timely running of trains or to relieve congestion in the city or combating the menace of monkeys are certainly instances of judicial overreach. Judges must withstand the temptation of publicity and also rid themselves of the belief that the judiciary alone can solve all the problems that afflict our nation and remember that PIL is not a pill for every ill.

There is no panacea to the problem of tension between the judiciary and the legislatures. Some degree of tension is inevitable. However friction can be avoided if each organ of the state correctly understands and respects the constitutional functions of the other organs.

The writer is former Attorney General for India

http://www.indianexpress.com/news/equality-is-a-fine-balance/28323/0

German surrogate twins: Can adoption be a way out, court asks

New Delhi, Jan 18 (IANS) The twins of a German couple born to an Indian surrogate mother may have a chance to go to Germany – if the couple decides to adopt them. The Supreme Court asked the couple if they would consider adopting the two-year-olds as Germany does not recognise surrogate motherhood. The apex court Monday asked Jan Balaaz and his wife if they would consider adopting the children after Solicitor General Gopal Subramanium told the court that Germany does not recognise surrogate motherhood, but allows international adoption of children by its citizens.

Subramanium told the bench of Justice G.S. Singhvi and Justice Asok Ganguly that in the given scenario, the German couple may consider adopting the twins.He gave the information during hearing of a lawsuit by the government challenging the Gujarat High Court ruling which had directed the government to give Indian passport to the twins born to Jan Balaaz and his wife through a surrogate Indian mother.

The apex court has asked the couple to take their decision and apprise it within two days. The apex court on Jan 4 asked the central government to try to settle the tangled issue of citizenship of the twins through diplomatic channels. The children were born to Gujarati surrogate mother Marthaben. The government is opposed to grant an Indian passport to the twins on the ground that it would mean granting them Indian citizenship. The Gujarat High Court in its order on a lawsuit by the German couple ordered passports for the twins born in January 2008.

The couple came to India in December 2006 in search of a surrogate mother and entered into an agreement with Marthaben, according to which she lost her right over the child after delivery.On the plea of the German couple last month, the apex court asked the government to provide travel documents to the twins within 48 hours, while asking them to approach the German embassy for visa to the twins.

SOURCE IANS

Indian court asks government to curb sex tourism

Jan 17, 2010

In view of the increasing incidences of rape, sexual offences, sexual abuse of children, particularly street-children, the Indian government and the law ministry were urged to redefine rape and include related sexual offences in its ambit.

While the Supreme Court has asked the government to come out with foolproof measures to curb ‘sex tourism’ in the country and register cases of rape against those pushing children into prostitution rackets or having sex with them, a delegation of representatives from various national women’s organisations has met and submitted a memorandum to the Union law minister Veerappa Moily demanding that the Sexual Offences (Special Courts) Bill be introduced in Parliament and the definition of rape be expanded and punishment be enhanced.

Expressing shock at the fact that 70 per cent of sex workers are children, a two-judge Bench of Justices Dalveer Bhandari and AK Patnaik said: “Obviously, it is a case of rape if the girls are less than 18 years. If you register 376 IPC (rape) cases, they (accused) will learn the lessons of their life. But the problem is that you don’t do it.”

The apex court said this enormous problem cannot be addressed in a mechanical manner. “We need enormous efforts to deal with it. Gigantic problems have to be dealt on a priority basis,” the judges observed. The apex court gave the direction to solicitor general Gopal Subramaniam during the hearing on a PIL after counsel Aparna Bhat, appearing for certain NGOs, submitted that child prostitution amounted to rape and the menace has reached alarming proportions.

“Just taking them out of the brothel and putting them on the streets is not going to solve the problem. The efforts will bear fruits only after they are properly rehabilitated which is their right (children) under Article 21 (right to liberty),” the apex court said.

Source: ANN

Only first notice on bounced cheque valid

BS Reporter / New Delhi January 18, 2010, 0:34 IST

The Supreme Court has ruled in the case of Tameshwar Vaishanav vs Ramvishal Gupta that if the payee or the holder of the cheque does not file a complaint of dishonour within the prescribed time, he cannot issue a second notice and then file a complaint again.

Notice with respect to a cheque can be issued only once. The deadline or limitation starts from the date of the first notice. Later notices do not matter, the judgement stated while interpreting Sections 138 and 142 of the Negotiable Instruments Act. According to the Act, the notice of dishonour of a cheque due to insufficiency in the account should be sent to the drawer of the cheque within 30 days of the dishonour. If the drawer of the cheque does not pay within 15 days thereafter, the holder of the cheque may file a criminal complaint.

http://www.business-standard.com/india/news/only-first-noticebounced-cheque-valid/382925/

In Chhattisgarh, jail is the cost of filing a public interest litigation plea

Aman Sethi in THE HINDU

Police detain three witnesses to killings in Gompad village, ban journalists from site


Police decline comment on veracity of claims made in petition filed by Sodi Sambho and others. There is concern that the facts surrounding the Gompad killings might never be known


Konta: The mystery surrounding the killing of nine Adivasis in Gompad village in Dantewada district in October last year is deepening, with the Chhattisgarh police detaining three more witnesses to the incident and restricting all access to the area on the pretext of Operation Green Hunt. Operation Green Hunt is a catch-all phrase, used by the police and media alike, for all major anti-naxal offensives since July 2009.

Total control

As previously reported by The Hindu, the Chhattisgarh police have assumed total control over the movements of Sodi Sambho – one of several witnesses in a Supreme Court petition that alleges that the 9 civilians were killed by the security forces. On Friday, armed policemen and Special Police Officers (SPO) lined the length of the highway from Dantewada town to Konta, the block headquarters closest to Gompad, stopping vehicles and questioning commuters. Travelling with local journalists Anil Mishra of Nayi Duniya and Yashwant Yadav of Navbharat, this correspondent was repeatedly detained along the route and told that Gompad village was out of bounds as a major anti-naxal operation was underway. Non-journalists were, however, let through.

Concerned that we might enter the village from Andhra Pradesh, we were detained by SPOs for about 45 minutes on the Chhattisgarh-A.P. border and allowed to proceed only after the intervention of Deputy Inspector-General, Dantewada, S.R.P. Kalluri. At present, the police have refused to comment on the veracity of the claims made in the Supreme Court petition filed by Sodi and others. “The Superintendent of Police of Dantewada has been told to initiate an enquiry into the Gompad incident,” said T.J. Longkumer, Inspector-General Police, Bastar.

However, witnesses to the killings insisted in interviews to The Hind u that the police were involved in the early morning ‘sanitisation operation’ and killed nine villagers (seven from Gompad and two from nearby villages), including three women and a 12-year-old girl. “The police also cut off the fingers of a two-year-old infant,” said one witness speaking on condition of anonymity fearing police retribution. “The police stabbed Madavi Venka [a victim] and then shot him fatally,” said another witness, “All those killed were innocent villagers with no involvement with the naxals.” The witnesses were interviewed, via a translator, at a weekly bazaar at Adralpalli on the Andhra Pradesh side of the border between the two States. Due to the police cordon around Gompad village, witness reports could not be verified independently.

The villagers also claimed that the police have detained Soyam Rama, Soyam Dulla and Kattam Dulla, three witnesses whose testimonies could prove crucial when the case comes up for hearing in the Supreme Court. “All three men have been held at the police station at Konta for the last one week,” said a Gompad villager. The Adivasis were picked up by the police in the first week of January when they came to Dantewada town for a public airing of grievances, the villagers said, an assertion DIG Kalluri contests. “We have never detained these three men,” he said. “They have never been taken into police custody.” However, police sources speaking to The Hindu on background confirmed that the three men were indeed held “for questioning” at the Konta police station till January 14 but could not confirm their current location. At present, their whereabouts are unknown.

Yet to be addressed

Police control over witnesses and restrictions on the movement of the press have raised concerns that the facts surrounding the Gompad killings might never be known. In another PIL petition pending before the Supreme Court for the past three years, allegations of large-scale killing of Adivasis and arson by the Salwa Judum and security forces have yet to be addressed.

http://www.hindu.com/2010/01/17/stories/2010011761241000.htm