Women as seen by law.

Women

“Frailty, the name is woman”,

It was the ignominy heaped upon women of Victorian Era by William Shakespeare in his great work `Hamlet’.

The history or sociology has, however, established the contrary, i.e., `fortitude’, thy name is woman; `caress’, thy name is woman; `self-sacrifice’, thy name is woman; tenacity and successful pursuit, their apathetically is women. Indira Gandhi, Margaret Thatcher, Srimovo Bhandarnaike and Golda Meir are few illustrious women having proved successful in democratic governance of the respective democratic States. Amidst them, still, a class of women is trapped as victims of circumstances, unfounded social sanctions, handicaps and coercive forms in the flesh trade, optimized as `prostitutes’, (for short, `fallen women’)

Extracted from:

Gaurav Jain vs Union Of India

Constitution of India:

Article 51-A, Fundamental duties:

It shall be the duty of every citizen of India:

(e) ………to renounce practices derogatory to the dignity of women;

Article 39, Certain principles of policy to be followed by the State:

(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;

……….

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;………..

Meaning of: Girasdars Barkhalidars Gharkhed

Revenue terms: Girasdars Barkhalidars Gharkhed

Short history of Land Revenue collection in State of Sourashtra (now part of Gujarat).

The erstwhile Saurashtra State consisted of 220 princely states rules by sovereign Rulers in their own rights. The lands in these appeals form present parts of Surendra Nagar and Bhavnagar districts. In the State of Saurashtra, the Rulers entered into agreements with Taluqadar and estate holders and also created a class of interested people known as “Barkhalidars or Girasdars. Various parcels of lands together with all rights in or interest over those lands were granted for cultivation on payment of revenue etc. with a right of succession in favour of their cadets or relations or favourites known as “Girasdars” or “Barkhalidars”. “Gharkhed”, known in South India estate tenures as “Homefarm lands”, means land reserved by land holder for personal cultivation.

Meaning of revenue term: Bid Land:

“Bid Land” means such lands as has been used by the land holders for grazing his cattle or for cutting grass for the cattle. “Land holder” means Zamindar, Jagirdar, Girasdar, Taluqadar etc. or any person who is a holder of land or who is interested in land and whom the Government has declared, on account of the extent and value of the land or his interests therein, to be a landholder.

Meaning of revenue term: Kali:

The system in vogue was that the lands that were under control of the rulers through the agriculturists, the latter had to bring their produce to a common place “khali” meaning thereby threshing floor. The ruler or his agent used to take stock of the total produce harvested and set apart towards the ruler’s share according to the custom or the contract and the remainder belong to the agriculturists. In the other system the land was granted to the “Girasdars” or “barkhalidars”, and the requirement of bringing the harvest by the agriculturists to the threshing floor was dispensed with.

Source: Jilubhai Nanbhai Khachar vs. State Of Gujarat, AIR 1995 SC 142, JT 1994 (4) SC 473, 1994 (3) SCALE 389.

National Anthem: Singing not compulsory!

National Anthem of India

Obligation to sing National Anthem:

Three children belong to a sect called Jehovah’s Witnesses who worship only Jehovah-the Creator and none other. They refused to sing the National Anthem: ‘Jana Gana Mana’ because, according to them, it is against the tenets of their religious faith-not the words or the thoughts of the National Anthem-but the singing of it. They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful silence daily, during the morning assembly when the National Anthem was sung. A Commission was appointed to enquire and report, and it reported that the children were “law abiding” and that they showed no disrespect to the National Anthem. However, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants from school.

Freedom under Constitution of India:

Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19(2) provides that nothing in Article 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the said right. Art. 25(1) guarantees to all persons freedom of conscience and the right freely to profess, practise and propagate religion, subject to order, morality and health and to the other provisions of Part III of the Constitution. Art. 51-A(a) of the Constitution enjoins a dub on every citizen of India “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.

While on the one hand, Art. 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Art. 25(1). Therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial political or secular activity which may be associated with religious practise or to provide for social welfare and reform.

Disrespect to National Anthem:

The expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand respectfully when the National Anthem is sung, is a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion.

There is no provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung.

Prevention of Insults to National Honour Act, Section 3:

It will not be right to say that disrespect is shown by not joining in the singing. Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in s. 3 of the Prevention of Insults to National Honour Act.

Source: Bijoe Emmanuel vs. State (Supreme Court of India)

No handcuffs for prisoners in India

Handcuffs on prisoners, is inhuman.

No Handcuffing of prisoners without special reasons:

“Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict `irons’ is to resort to zoological strategies repugnant to Art. 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonized. To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man hand-and- foot fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture.”

Handcuffs in extreme circumstances: Continue reading “No handcuffs for prisoners in India” →

Appeal: Absence of remedy of appeal is not unconstitutional.

Remedy of appeal if not necessary:

Quasi judicial proceedings without remedy of appeal; Validity.

It is attractive to hear the argument that an order passed by an authority, which becomes infallibly final in the absence of an appeal or revision, is apt to be arbitrary and bad.

An appeal is a desirable corrective but not an indispensable imperative and while its presence is an extra check on wayward orders its absence is not a sure index of arbitrary potential. It depends on the nature of the subject matter, other available correctives, possible harm flowing from wrong orders and a wealth of other factors.

Necessity of appeal is determined by subject matter:

If a death sentence is allowed to become conclusive without so much as a single appeal, Articles 14 and 21 may imperil such a provision but if a fine of Rs. 5/- imposed for a minor offence in a summary trial by a First-Class Magistrate is imparted a finality, subject, of course, to a constitutional remedy in the event of perverse or patent illegality we may still uphold that provision with an easy constitutional conscience. In the present case, a hearing is given to the affected party. Reasons have to be recorded in the order awarding damages. The writ jurisdiction is ready to review glaring errors. The maximum harm is pecuniary liability limited by the statute. A high official hears and decides. Under such circumstances the needs of the factual situation and the legal milieu are such that the absence of appellate review in no way militates against the justice and reasonableness of the provision. The argument of arbitrariness on this score is untenable. The section is not bad. Maybe, action under the section may be challenged in writ jurisdiction provided infirmities which attract such jurisdiction vitiate the order.

[Source: Per Kirishna Aiyer J. in Organo Chemicals.]

Homeopathy: Origin and Scope of Practice.

Practice of Allopathy by Homeopathic Doctor
if amounts to medical negligence:

“Similia Similibus Curantur” (Like Cures Like) is the basis of a system of therapeutics known popularly as Homeopathy.

Homeopathy is based on the premise that most effective way to treat disease is to use drugs or other agents that produce the symptoms of the disease in healthy persons.

This theory had its origin in or about 460 B.C. when the Greek physician, Hippocrates, noted the similarity between the effect of some drugs and the symptoms of the diseases they seemed to relieve. It was, however, in the late 18th Century that this theory was tested and popularised by German Physician, Christian Friedrich Samuel Hahnemann as a new form of therapeutic treatment after six years test study of scores of drugs on himself and others. Continue reading “Homeopathy: Origin and Scope of Practice.” →

Changes in meaning of words and phrases.

Meaning changes with time:

Change in meaning of words with change in setting and passage of time.

A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.

The phrase ‘assumption of risk’ is an excellent illustration of the extent to which uncritical use of words bedevils the law.

Thus, in the setting of one set of circumstances, ‘assumption of risk’ has been used as a shorthand way of saying that although an employer may have violated the duty of care which he owed his employee, he could nevertheless escape liability for damages resulting from his negligence if the employee, by accepting or continuing in the employment with ‘notice’ of such negligence, ‘assumed the risk’. In such situations ‘assumption of risk’ is a defense which enables a negligent employer to defeat recovery against him. In the setting of a totally different set of circumstances, ‘assumption of risk’ has a totally different meaning. Industrial enterprise entails, for all those engaged in it, certain hazards to life and limb which no amount of care on the part of the employer can avoid. In denying recovery to an employee injured as a result of exposure to such a hazard, where the employer has in no sense been negligent or derelict in the duty owed to his employees, courts have often said that the employee ‘assumed the risk.’ Here the phrase ‘assumption of risk’ is used simply to convey the idea that the employer was not at fault and therefore not liable.

[Source: TILLER vs. ATLANTIC COAST LINE R. CO., 318 U.S. 54: 63 S.Ct. 444: 87 L.Ed. 610 (per Frankfurter J.)]

A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.

[Source: Towne v. Eisner, 245 U.S. 418, 425 (1918) (per Holmes, J.)]

Principles of Interpretation: Supplying the omission.

Considerations for supplying the omission:

The role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words.

In reaching above conclusion Lord Nicholls of Birkenhead referred to some notable instances about interpretation given in Professor Sir Rupert Cross’ admirable opuscule, Statutory Interpretation, 3rd ed. at page 103:

‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’

Interpretation to correct drafting mistake:

This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters:

the intended purpose of the statute or provision in question;
that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and
the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.

The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.

(see Lord Diplock in Jones v. Wrotham Park Settled Estates [1980] A.C. 74, 105.)

[Source: The Inco Europe Ltd v First Choice Distribution [2000] 1 W.L.R. 586; [2000] 2 All E.R. 109; [2000] 1 All E.R. (Coram) 674; [2000] 1 Lloyd’s Rep. 467; [2000] C.L.C. 1015; [2000] B.L.R. 259; (2000) 2 T.C.L.R. 487; 74 Con. L.R. 55; (2000) 97(12) L.S.G. 39; (2000) 144 S.J.L.B. 134; [2000] N.P.C. 22.]

Lawyer: Conflict of interest.

Duty to avoid conflict of interest:

An advocate/lawyer who has been consulted by one party to a litigation may not appear on behalf of the other party, if the first party has conveyed to him any information of a confidential nature regarding the dispute between the parties.

The duty of an advocate who has been consulted by a party to a litigation who subsequently retains another counsel to conduct the litigation was considered in U Ko Ko Gyi v. U San Mya (1930) 17 AIR Rang 365. In that case a Bench of the Rangoon High Court upheld the order of the District Judge restraining a counsel from appearing for the defendants in a case in which he had been previously consulted by the plaintiffs. Upon a consideration of the evidence the learned Judges were satisfied that during the course of the consultation with counsel the plaintiffs had given him certain information which would be of use to him as counsel for the defendants. This, as already observed, was the decision by the learned District Judge. In the course of the judgment of the High Court, reference is made to the law upon the point in England as it has been expounded in Halsbury’s passage quoted as follows:

Counsel ought not to accept a brief against a party, even though the party refuse to retain him, in any case in which he would be embarrassed in the discharge of his duty by reason of confidence reposed in him by that party.

Confidential information creates conflict of interest:

The clear implication of this exposition of the law is that if no confidential information were conveyed to him, counsel would be free to accept a brief against a party who consulted him. In this connection reference may be made to the case in Cholmondeley v. Clinton (1815) 19 Ves 261. In the course of his judgment in that case Lord Chancellor Elden observed:

The practice of the Bar in my time was this: If a retainer was sent by a party against whom the counsel had been employed, the retainer being in a cause between the same parties, the counsel, before accepting it, sent to his former client, stating the circumstances, and giving him the option. That has, I believe, been relaxed; and the course now is as it has been represented at the Bar. I do not admit that he is bound to accept the new brief. My opinion is that he ought not, if he knows anything that may be prejudicial to the former client, to accept the new brief, though that client refused to retain him.

Decision on application to restrain a lawyer from appearing:

“I am positively of the opinion that the applicant has presented this application maliciously with some ulterior motive. I find absolutely nothing unprofessional in the conduct of Maharaj Singh Vakil, nor do I feel at all satisfied that any confidential information was given by Sri Ram to B. Maharaj Singh during the consultation which he had with him, or that the plaintiff in any way suffers any loss by B. Maharaj Singh conducting the defence in the suit.

It is a point not without significance that the application to have Mr. Maharaj Singh restrained from appearing for the defence was not presented until long after he had been instructed by the defendant. The applicant’s suit was filed in May 1938. The defendant’s written statement was filed on 27th July 1938. This written statement was signed by Mr. Maharaj Singh. On 1st September 1938 issues were framed when counsel for both sides including Mr. Maharaj Singh for the defendant were present. It was not until July 1939 however that an application was made to restrain him from appearing for the defendant. I find it difficult to believe that the plaintiffs were unaware that Mr. Maharaj Singh had been engaged for the defendant in their suit. I find it equally difficult to believe that the plaintiffs’ counsel were unaware that Maharaj Singh had been consulted by the applicants. The natural inference in the circumstances is that neither the applicants nor their counsel entertained any idea that Mr. Maharaj Singh was in possession of any confidential information which would have been of use to him in the conduct of the defence.”

[Source: Saharanpur Grain Chamber Ltd. vs. Maharaj Singh, AIR 1940 All 233.]

Criminal trial in India: Presence of accused on each date of hearing.

Requirement of presence of accused on
each date of hearing during criminal trial

In an offence entailing punishment of more than two years, requirement of presence of accused in criminal trial, if mandatory?

Effect of changes in technology on Criminal Trial:

The situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation?

Criminal trial of summons case:

The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is “summons cases”. It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a “summons case”. Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, can not the court extend a helping hand to an accused who is placed in a predicament deserving such a help?

Criminal trial in warrant case:

Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed the court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of Session can also exercise such a right to put in written statements [Section 233(2) of the Code]. It is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth.

A pragmatic and humanistic approach is warranted in regard to such special exigencies. The word “shall” in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage, the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner.

[Source: Inspector of Customs v. Yash Pal, 2009(4) SCR 118: 2009(4) SCC 769: 2009(3) JT 577: 2009(3) SCALE 590: 2009 CrLJ 2251: 2009(2) SCC(Cr) 593: 2009(2) Crimes 108(SC): 2009(236) ELT 3. (per K.T. Thomas, J., for himself and S.N. Variava)]

However the minority opinion of court was delivered by R.P. Sethi, J. who expressed his dissenting views as:

Looking at the history of the section, the various conflicting pronouncements of the High Courts in the country and authoritative pronouncements of this Court by Three Judge Bench, the Law Commission recommended the necessity of examination of the accused personally. The recommendation of the Law Commission were accepted by the legislature. The incorporation of the provision necessitating the examination of the accused personally, undoubtedly is the reflection of a conscious decision, which the legislature took in its wisdom.
I am, therefore, convinced that Section 313 of the Criminal Procedure Code does not envisage the examination of the counsel, in place of the accused and the law laid down by this court by three Judge Bench in 1969 and later on followed in 1973, does not require any reconsideration, particularly by a Bench of the same strength and of a coordinate jurisdiction.