LANDMARK JUDGMENT ON HOMOSEXUALITY

Dr. Janak Raj Jai

Advocate, Supreme Court of India
In the year 1994 the Delhi Administration decided to supply condoms to the inmates of Tihar
Jail on the plea that 90% of the inmates indulged in homosexuality. The government felt that to
prevent HIV/AIDS among them it was essential to supply condoms to the inmates of Tihar Jail.
This writer felt very much disturbed on this unacceptable decision of the government. Having
been in Jail during emergency for about 19 months, the writer personally observed that there
was no rampant homosexuality in Tihar Jail as pleaded by the government. Having been
aggrieved by the decision of the government for the supply of condoms, the writer filed a writ
petition [Civil Writ Petition No. 1009 of 1994] by way of Public Interest Litigation in the High
Court of Delhi, praying that under no circumstances could the condoms be supplied to the
inmates of Tihar Jail so long as Section 377 IPC remains on the Statute Book'.
The Respondent, an NGO, Bhedbhav Virodhi Andolan, opposed this writ petition and said that
the condoms should immediately be supplied to the inmates and Section 377 IPC be struck
down. Dr. S. Murlidhar, then Advocate (presently Judge of the Delhi High Court) was an
intervenor in favour of the NGO. Soli Sorabjee and Indira Jai Singh, who appeared on behalf of
the NGO, opposed this petition vehemently.
In the year 2001, another NGO, Naaz Foundation, had filed a petition [Civil Writ Petition No.
7455/2001] before the Delhi High Court praying for grant of a declaration of Section 377 IPC, to
the extent it is applicable to and penalizes sexual acts in private between the consenting adults,
as violative of Articles 14, 15, 19(1)(a) to (d) and 21 of the Constitution.
By an order dated 2-9-2004, the Division Bench of the High Court dismissed the petition by
holding that no cause of action has accrued to the NGO, Naaz Foundation. The Review Petition
filed by the NGO was also dismissed by the High Court.
Naaz Foundation challenged the order of the High Court in the Supreme Court. The Supreme
Court set aside the impugned order/judgment of the High Court, allowed the appeal vide order
dated 3-2-2006 and remitted the matter to the High Court for its fresh decision.
The matter came up before the Division Bench of the High Court comprising Chief Justice A.P.
Shah and Justice Dr. S. Murlidhar. It is pertinent to mention here that Justice S Murlidhar had
earlier appeared as an intervenor Advocate in favour of the NGO, Bhedbhav Virodhi Andolan.
Propriety demanded that Justice Murlidhar should have recused because of conflict of interest.

Even otherwise hearing the matter by another Division Bench against the dismissal of the
petition by an earlier Division Bench is not acceptable. The matter should have been heard by a
larger Bench without Justice Murlidhar's participation.
In the High Court, on behalf of the Home Ministry it was pleaded that Section 377 does not
suffer from any constitutional infirmity and is not violative of Articles 14 and 21 of the
Constitution. The High Court was not inclined to accept the stand of the Union of India that
there is need for retention of Section 377 IPC to cover consensual sexual acts between adults in
private on the ground of public morality. Finally the High Court elaborated upon the scope of
court's power to declare a statutory provision invalid. The Additional Solicitor General in his
written statement claimed that the courts have only to interpret law as it is and have no power to
declare law invalid.
The order of the High Court was challenged in the Supreme Court by a large number of
organizations and individuals including the petitioner Suresh Kumar Koushal. The Attorney
General appearing as amicus invited the attention of the Supreme Court to the affidavit dated 13-2012 filed on behalf of the Home Ministry to show that the Group of Ministers constituted for
looking into the issue relating to constitutionality of Section 377 IPC recommended that there is
no error in the impugned order but the Supreme Court may take final view in the matter.
P.P. Malhotra, Additional Solicitor General, appeared on behalf of the Ministry of Home Affairs.
He referred to the affidavit filed before the Delhi High Court wherein the Ministry of Home
Affairs had opposed decriminalization of homosexuality and argued that in its 42 nd Report the
Law Commission had recommended retention of Section 377 IPC because the societal
disapproval thereof was very strong. He further said that even after 60 years of independence,
the Parliament has not thought it proper to delete or amend Section 377 and there is no warrant
for the High Court to have declared the provision as ultra vires Articles 15 and 21 of the
Constitution.
Mohan Jain, another ASG, appeared on behalf of the Ministry of Health. He submitted that
because of their risky sexual behaviour, MSM and female sex workers are at a high risk of
getting HIV/AIDS as compared to normal human beings.
In para 32 of its judgment the Supreme Court Bench comprising Justice G.S. Singhvi and Justice
S.J. Mukhopadhaya observed that while the High Court and this Court are empowered to review
the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with
the Constitution, self-restraint must be exercised and the analysis must be guided by the

presumption of constitutionality.
The 172 nd Report of the Law Commission specifically recommended deletion of that Section.
However, the legislature has chosen not to amend the law or revisit it. This shows that the
Parliament which is indisputably the representative body of the people of India has not thought
it proper to delete this provision. Such a conclusion is further strengthened by the fact that
despite the decision of the Union of India to not challenge in appeal the order of the High Court,
the Parliament has not made any amendment in law.
The Supreme Court further said that unless clear constitutional violation is proved, this Court is
not empowered to strike down a law merely by virtue of its falling into disuse or the perception
of the society having changed as regards the legitimacy of its purpose and its need.
In para 43 of its judgment the Supreme Court rightly observed that while reading down Section
377 IPC the Division Bench of the High Court overlooked that a miniscule fraction of the
country's population constitutes lesbians, gays, bisexuals, or transgenders and in the last more
than 150 years less than 200 persons have been prosecuted (as per the reported orders) for
commiting offence under Section 377 IPC and this cannot be made sound basis for declaring
that Section ultra vires the provisions of Articles 14,15 and 21 of the Constitution.
The Supreme Court thus concluded that Section 377 IPC does not suffer from the vice of
unconstitutionality and the declaration made by the Division Bench of the High Court is legally
unsustainable.
While parting with the case, the Supreme Court made it clear that this Court has merely
pronounced on the correctness of the view taken by the Delhi High Court on the
constitutionality of Section 377 IPC and found that the said section does not suffer from any
constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to
consider the desirability and propriety of deleting Section 377 IPC from the Statute Book or
amend the same as per the suggestion made by the Attorney General.
It is unfortunate that the Government failed to assist the Supreme Court in right perspective in
this most sensitive matter. The Supreme Court deserves every appreciation for delivering this
significant verdict of the year 2013 after having thoroughly examined every aspect of the matter.

An India story through judgments

Anil Divan shows how the Constitution became a living organism in the hands of the Supreme
Court

Prof. N R Madhava Menon

Among the few senior lawyers who often write for the popular press on matters relating to the
Bar, Bench and constitutional governance, Anil Divan occupies a prominent place because of his
forthright views and ability to interrogate the decisions of those in authority. As he puts it, I
have played my innings on the front foot. Inspired by great lawyers and judges across the globe,
he sought to imbibe the courage to stand up and be counted particularly during times of crisis.
Fortunately for the country, India has had quite a few lawyers and judges in government as well
as in the profession who were prepared to make sacrifices for the cause of justice and the rule of
law founded on Human Rights. This is the India story that Anil Divan penned in his numerous
articles put together in the volume under review. As former Chief Justice J.S. Verma remarked
in his introduction, the book does qualify to become a text book on comparative study on rule
of law in liberal democracies, focusing on the Indian experience.
There are three broad themes around which the 50 pieces
included in the volume can be analysed. Firstly, the Supreme
Court and the way it dealt with landmark cases which came
before it during the six decades of its functioning. What the
reader gets out of these articles is not only a deeper
understanding of the development of constitutional law in the
country, but also the contribution of eminent lawyers and judges
who traversed that great institution with glory and
professionalism. A second theme which stands out prominently
in the book is about corruption in public life including the
judiciary and why the country's legal and judicial system could
not make any significant headway in combating corruption.
Given the fact, that the author himself was in the forefront
fighting many high-profile corruption cases in court, mostly
as amicus curiae, it is interesting to read the insider's story given in the articles written at
different times and regimes. The third theme that pervades the writings is about personalities
who have impressed the author most from within the profession and outside.
Much has been written about the Indian judiciary generally and the Supreme Court in particular
both in the popular press and in scholarly studies. While the judiciary is justly criticised for its

inability to tackle mounting arrears and long pendency, it has won universal acclaim and respect
for its independence and creativity in structuring a human rights-friendly jurisprudence which
is the envy of liberal democracies elsewhere in the world.

Personal liberty issues

In reviewing this record of the Supreme Court, Divan gives critical insights into the initial view
taken by the court in personal liberty issues (preventive detention) and property rights which
the court abandoned in later decisions contributing to a balanced development of civil rights
together with social and economic rights. In the process, the Court, as some people argue, rewrote the Constitution significantly, yet in a manner acceptable to the changing times. The
Constitution, unlike other laws, became a living organism in the hands of the court.
Between A.K.Gopalan (AIR 1950 SC 27) andMinerva Mills (AIR 1980 SC 1789), the Supreme
Court brought due process (expressly excluded in the text of Article 21) in place of procedure
established by law, read Directive Principles into Fundamental Rights, and discovered inherent
restrictions on the amending powers of Parliament by virtue of what it called the basic features
of the Constitution. In a dozen articles in the book, the author narrates the story with rare
insights.
Public Interest Litigation (PIL) is today much derided and despised because of its abuse at the
hands of some lawyers and litigants. In its initial phase in the 1970s and 1980s, it was indeed a
powerful tool in the hands of the judiciary to reach out justice to millions of disadvantaged
people who for different reasons could not come before the court to ventilate their rights. The
court liberalised the doctrine of locus standi in favour of public-spirited citizens, appointed
commissions to gather facts and evidence, gave remedies and relief unknown to earlier
jurisprudence and evolved the technique ofcontinuing mandamus to monitor implementation
of court orders. Anil Divan appeared on behalf of NGOs advocating public interest in many
causes, particularly those involving political corruption which brought PIL again into the
mainstream to the advantage of transparency and accountability in governance. The Jain
Hawala case ( Vineet Narain v. Union of India , AIR 1998 SC 889) is unique in this regard
where the author of the book made a significant contribution in taking the court to the root of
the problem of corruption and revealing the limits and limitations of judicial processes in
combating the evil. In doing so, the author brought out the inadequacies of the existing
mechanism and the need to amend the law for empowering institutions of investigation and
prosecution free from political interferences.
While most parts of the writings of Divan are subscribed to by the reviewer also, there are

difficulties in agreeing with the views of the author in respect of the Bhopal litigation.

Bhopal case
Disapproving Justice Bhagwati's dictum of absolute liability on hazardous industries, the author
seems to think that such a principle will boomerang on Indian operations abroad. He thinks that
foreign industry and technology would be reluctant to invest in India if such stringent standards
of liability are visited upon hazardous technology. This, it is submitted, is a misconceived
approach. Indian lives are taken cheaply and differential standards of liability are canvassed
though human rights adopt universal standards. To reason that such an approach will defeat
development is to belittle human dignity and national pride.
In the same vein, the author is critical of the interim compensation ordered by the District
Judge, Bhopal against the Union Carbide Corporation even before the commencement of the
trial or recording of evidence! His concern is whether this line of reasoning is acceptable in
other jurisdictions? It is submitted that the jurisprudence both on liability and on damages
evolved by Indian courts in Bhopal litigation and the Shriram case (1987)1 SCC 395 which
followed it, is the one that received appreciation from several developing countries which have
been for long at the receiving end of hazardous technologies and industries of the developed
countries. It is unacceptable to argue as the author does that the concept of damages in
hazardous torts is intended to be compensatory and not punitive. It is faulty reasoning to say
that since absolute liability is no fault liability, there cannot be any deterrent punishment.
Irrespective of whether the same principle would apply to Government corporations or public
sector undertakings, one would argue that the standard and measure of damages evolved by the
Bhopal litigation are now prevailing law for hazardous technologies of the nature employed by
UCC in Bhopal.
On the Front Foot is a well-researched and well-written commentary on the course of events in
independent India wherein the principal player was the judiciary. Reading the book one gets the
impression that despite being a votary of Indian judicial enterprise and innovation, the author is
more appreciative of what the English and American courts have done in the field of public law.
This, of course, is a mindset which Divan shares with many of his contemporaries at the Bar.
In all fairness, the author's track record justifies his writings and the arguments he advances to
support his conclusions. One may disagree with his findings but one cannot question the
honesty of his views.

Right to Reject, Recall and Re-elect

Ansh Singh Luthra
National Law Institute University, Bhopal.
A vote is like a rifle: its usefulness depends upon the character of the user. Theodore
Roosevelt
The Supreme Court of India recently empowered voters with a new weapon, one that may
significantly alter the way in which elections are conducted and fought in India. And in the run
up to the ongoing assembly elections in five States, it has raised lot of curiosities and
apprehensions.
A democratic nation derives its legitimacy from free and fair elections which in turn depend on
the right to vote given to its citizens. India, being a democratic nation also confers this statutory
1 right to vote to all its citizens based on the principle of Universal Adult Suffrage. The Supreme
Court of India, in the case of People's Union for Civil Liberties v. Union of India 2 , has now
further augmented the right to vote by reading the right to reject as a part of every voter's right
to vote. Rules 41(2), 41(3) and 49-O of the Conduct of Election Rules, 1961 were challenged in
this case 3 .The right to not cast a vote was previously present and in that sense it has not been
invented. The Supreme Court has merely crystalized it and has given it a concrete and functional
shape.
Rules 41(2), 41(3) and 49-O of the Conduct of Election Rules, 1961 mandate that the names of
voters opting to not vote any of the candidates standing for elections be noted in a register,
further their thumb impression/signature be taken against the said entry prescribed in Form
17A. This violates the right to secret ballot voting as enshrined under Article 19(1)(a) of the
Constitution of India. By registering the names of such voters in a separate register, they were
being subjected to screening, which not only infringed their fundamental right, but also exposed
them to potential wrath of the political elite and mafia for not voting them to power. The
Supreme Court, therefore, said that this was an infringement on the fundamental right of speech
and expression protected by Article 19(1)(a) of the Constitution of India. Now, protection of
voter's identity, which formerly faced a real threat, may be reinforced with the advent of the
None of the above (NOTA) option.
Post July 2004, when the UPA-1 came to power, the then Chief Election Commissioner TS
Krishna Murthy wrote to the Prime Minister on the need of a None of the above option button
on the EVMs (Electronic Voting Machines). His proposal did not cut ice with the government

and thus it did not see the light of the day in the 2009 elections. The Election Commission, in
2001, had also made a similar proposal, but to no avail. Later in 2011, social activist Anna
Hazare raised a similar demand. Hence, the None of the above (NOTA) option has had
support from the public, the bureaucracy and from the Election Commission. Alas! Three
important institutions could not persuade the government to act on something which was
already there in the book of law.
Now the question that remains unanswered is that if there were widespread support for the
implementation of this right, then why was the Election Commission hesitant in implementing it
at the earliest? Three guesses that I can make are (a) It was not economically feasible; (b) The
Election Commission thought that it did not have the authority to order its implementation; (c)
There was political pressure against its implementation.
With respect to the first guess, it was expressly asserted in the filing by the Election Commission
that the implementation of the NOTA would not create any financial burden on the exchequer
4 . The said option can be added by utilizing the last button in the present EVMs (Electronic
Voting Machines).
The second guess, that the Election Commission thought that it didn't have the requisite
constitutional power to implement the said option doesn't seem to be legally valid. When the
shift from ballot paper to EVMs took place, judicial or legislative intervention was neither
sought nor required. The Election Commission suo moto took this step. The Election
Commission could have done the same with the NOTA option as well.
This brings us to the third guess that there was pressure from the political elite. The political
elite may have put pressure to put the implementation on the back burner to ensure that their
comfort is not hampered.
It is very simple to conclude that the people of our country are disenchanted from political
leaders. They ventilate their cynicism generally through the media. But such ventilation of
cynicism has no legal value. The NOTA option would not only air the people's disillusions with
the political class but also have legal sanctity.
Needless to say, the NOTA option would increase voter turnout which in any case is good for the
health of a democracy. The NOTA option would also make the political parties more
accountable.

The NOTA option, though new to India, has been in force in many other democratic countries
including Greece, Columbia, Spain, Ukraine etc. Even our neighbour Bangladesh that is much
behind us in every other aspect such as industrial development and GDP growth etc., has had a
similar provision since 2008. Even the 2013 Pakistani general elections were to have this option,
but due to paucity of time, the idea had to be dropped.
The NOTA option would be akin to the option to be present but abstain from voting, an option
that our parliamentarians have already been enjoying. They have an option to press one of three
buttons; a YES' button to support the motion, a NO' button to show that they don't support the
motion, and an Abstain' button to show that they are present but choose not to vote for the
motion at all. When parliamentarians can enjoy the right to abstain from voting by pressing a
button, why should a common voter not enjoy a similar right to reject all the candidates in the
fray by pressing the NOTA button?
However, the NOTA option has been mired with a fair share of skepticism as well. Certain
sections argue that this would lead to a state of anarchy. It is believed that if NOTA gets more
votes than any of the candidates in the fray, then massive exercise of re-elections would have to
be undertaken and that would come at a heavy financial cost to the exchequer finally borne by
the general public. But the Election Commission has clarified that the candidate who secures the
highest number of votes would be elected. The fact that more number of electors may choose the
NOTA option than any other candidate would have no bearing on the election process. However
according to me the NOTA option should be a right to reject and not a mere right to abstain. I
believe that it would be best to have re-elections, in which parties can field new, more acceptable
candidates than to elect a candidate that doesn't have the trust of the people.
The re-elections due to the NOTA option in the shape of Right to Reject would also increase
accountability of political parties as well as that of the candidates fielded by them. It would lead
to fielding of more educated candidates with a clean image. It would weed out money and
muscle driven politics and pave the way for a cleaner politics by educated leaders with a clean
background.
Democratic governments are formed on the premise that the best man should be elected by the
people to ensure good governance and development. The principle that consent requires the
ability to withhold consent in an election should be recognized and with the right to choose
should also come the right to reject. Therefore, the NOTA option should be further strengthened
and transformed into the right to reject. Further, I would recommend that an option to recall for
another re-election be also introduced, wherein if after a period of one year, the people of the

constituency are not content with their elected representative, they can call him back and go for
re-election. This would create a much needed deterrent to make politicians more accountable.
11 crore voters in Delhi, Madhya Pradesh, Chhattisgarh, Rajasthan and Mizoram, are the first to
have the NOTA option. And the result of the elections in these States may set the trend in the
upcoming general elections of 2014. It now depends on us how we use the proverbial rifle of vote
in our best interest and kill muscle and money power to pave the way for cleaner politics.

Loyaltyis it an out-dated emotion???

Shilpa Bhasin Mehra
It is difficult to find one word that describes the word Loyalty. The simple mention of the
word brings a plethora of emotions to the surface. Some of which are allegiance, devotion,
faithfulness, fidelity, steadfastness. It's honestly whatever feeling the word evokes in you.
We have heard many heroic stories in our childhood of the loyalty that the soldiers had to
their commander, willing to lay down their lives at his instruction, without ever having a
doubt of his intention. The loyalty of the people for their king seems immemorial. The loyalty
of a brother, son, wife and friend seems to be ingrained in the Ramayana. In our present
times, we hear of employees who started their career with one company and retired from the
same company after a lifetime of service. Some times their children also join the same
company, so the loyalty runs to the next generation. A wow just comes out of our mouth
when one hears of the untiring loyalty of such employees as well the Company in question.
I yesterday met a former cricketer, who had met with a fatal accident and is now in a
wheelchair. He was employed at a junior level in a bank, when he was fit and playing. The
bank has taken the entire responsibility of his medical care, trips abroad for treatment, lifelong insurance as well as education of his children. The bank still pays him his monthly
salary, though he can do limited work on a wheelchair. In fact, in his current situation, he was
recently promoted. In today's self- centred world, when one hears such a story, you feel there
is still some good in the world.
We hear of loyalty programs and loyalty bonus that companies offer to their employees. In my

opinion, loyalty has a deeper meaning. It's not showing a carrot as a bait, to retain employees.
There must be a feeling of belonging that makes you want to do things and remain steadfast
to the company that you work for. It would be harsh to equate this noble value in materialistic
terms. The ethics and working culture of a company should be more important to attract
employees to stay rather than a bonus scheme. The ones who stay to get a bonus, would
probably be the ones to exit once they get the bounty in their hand. An end of service bonus is
different because that is a token of appreciation from the company for the hard work and long
service that the employee has put in.
Many employees these days are doing their work while watching the clock tick, so that they
can complete their 8 hours and go home. They only look forward to their salary at the end of
the month and that sadly, seems to be their relation with the company they work for.
Companies fail to evoke a sense of loyalty in the employees simply due to lack of
communication or not taking any interest in the welfare of the employees. This is the reason
that retention of employees has become one of the major KPI of the HR department.
Employees get to hear information about the company that they work for through a
newsletter sent on email. It's like hearing the news about the government's activities in your
daily newspaper. The fairy tale stories published in the glossy pages of the corporate
newsletter, should be read in the same vein as the tales in the film magazines. Another aspect
of loyalty seen nowadays is not towards the company but to your manager, because he gives
you your promotion and leave.
Just like the world in many aspects is going back to basics and to the roots, in our corporate
world too we need to cut these shallow weeds and revert to the basic value system of a good
corporate system. People are moving towards a holistic (or rather wholistic, if I may use this
word) approach towards their disease rather than the antibiotic quick fix approach. Similarly,
the companies and the employees need to have a better rapport and meaningful relationship
towards each other. People should be loyal to the company and vice versa because they want
to be so for good and valid reasons and not for some materialistic end. Just like respect,
loyalty has to be earned and deservedit cannot be demanded or bought, because what is
bought can be sold too. Loyalty is a part of the ethics and ethos of a company. The new kid on
the block sort of companies need to realize this, and build such a culture.
Companies like Tata are revered in India, because of their genuine schemes for the welfare of
their employees. The good intentions and concern for their employees is what gives Tata the
respect, gratitude and loyalty of their employees.

Joyce Maynard has put this value across wonderfully in just a few words A person who
deserves my loyalty receives it.
There being two sides of a coin, both the companies as well as the employees need to deserve
the loyalty of the other, in order to receive the same.

UNIFORM CIVIL CODE

A KALEIDOSCOPIC IMAGE
Aishwarya Singh Kashyap*
Law plays a dual role in the society that of social change juxtaposed with social
control , thereby playing a pivotal role in moulding the society to commensurate the change in
the civilization. India is known as the land of Unity in Diversity and that stands to be a fact post
66 years of independence. Amidst such myriad flavours of cultural and religious mlange, the
dream sought for a Uniform Civil Code under Article 44, remains a big conundrum for social
engineering. Indian socio-cultural and religious helms mirror the image of a kaleidoscope with
its multi-dimensional depths, which poses before us many knots left to be untied. The UCC inter
alia , aims at consolidating a uniform formula for laws in relation with marriage, divorce and
adoption, all of which are profoundly guided by different religious practices at their core.
Many activists and proponents of the UCC have continued to fight for a de-stratified application
of personal laws, specifically in matrimonial ties, given the social outcry post noteworthy cases
like Shah Bano and Sarla Mudgal . Inter-religious marriages, in light of UCC, make for one of
the most delectable recipes for the social connoisseurs and legal critics, whilst it leaves food for
thought as to questions divided between the dichotomy of socio-legal validity and socio-legal
aftermath, for the couple and their progeny; the scorn they are likely to face during their
matrimonial journey along with legal hiccups pertaining to their marriage. What happens after
separation? Is UCC the answer to such interrogatives? Or is it a far-fetched dream of uniformity
in conjugal business, under the veil of forced bastion over the minority? How far is it practical to
embrace the philosophy of Uniform Civil Code?
The philosophy of Uniform Civil Code was the brainchild of nascent independent India with Dr.
Ambedkar, the draftsman of the Indian Constitution, as its forerunner, whilst prominent
journalists like G.S. Iyengar, K.M. Munshiji and Alladi Krishnaswamy Iyeramongst others, bore
the light of containing Uniformity' in civil laws as a fulcrum to balance the weight of religious
and cultural sentiments juxtaposed with civil justice, in a place drenched with pluralism.
However, India being a land of multi-dimensional demography, the notion of achieving
uniformity in civil laws sought by these leaders has continued to remain a dead letter in the
directive guidelines enumerated for governance, due to the schism created by the inhibitions and
insecurities of religious fundamentalists and minorities, with fastidious notions and devout
indulgence in religious and cultural practices being entwined in civil spheres of a person's life,
inclusive of marriage, divorce, maintenance and allied laws, adoption, inheritance, and so on and
so forth. As a compromise, the architects of the Constitution included the Uniform Civil Code

under the head of Directive Principles of State Policy in Article 44 whence it was favoured to
guarantee the Uniform Civil Code to the Indians within five to ten years. Sixty-six years have
passed and we're still pondering over such a possibility.
The vehement emphasis placed on this Code can be gauged by the words of Dr. Ambedkar, as
enumerated hereunder, inspired by the West 1 , where he opposed the delegates of minority
factions in the society who wished to immortalise their personal laws, specifically the Muslim
orthodoxy which placed heavy emphasis on the Shariat as an influence over their personal
affairs:
I personally do not understand why religion should be given this vast, expansive jurisdiction, so
as to cover the whole of life and to prevent the legislature from encroaching upon that field. After
all, what are we having this liberty for? We are having this liberty in order to reform our social
system, which is so full of inequities, discriminations and other things, which conflict with our
fundamental rights.
However, Dr. Ambedkar did not obtain anything more than an Article of the Directive Principles
stipulating that, The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.
The poignant words of J B Kripalan serve as a memoir against the grossly tainted Nehruvian idea
of bringing the Hindu personal laws of Buddhists, Jains, Sikhs and other Hindu religious
denominations under the ire of civil codification in the Hindu Code Bill of 1955 but isolating the
laws of other minorities, specifically Muslims from the codification process based on the
reasoning that the latter was not yet ready, thereby not only insulating them from the privations
of an established procedure, but also denying them the precious fruits germinating out of the
same thus making it imperative to define the contours of unscrupulous and vague silhouettes and
blur between civil and personal laws, eliminating those that have proved to be retrograde.

Is the Government waking up?

Joginder Singh, IPS (Retd.)
Former Director CBI
If speeches could solve the problems of India,we would already have become the most
developed country in the world. The fact is that, even if you have a valid and legal contract
with the Government, the chances are that you would not only feel harassed by the
unresponsive and unconcerned bureaucracy and aggressive enforcement agencies but shall
also be dragged to the court or arbitration. The government is an invisible entity and nobody
can lay his hand on the government and hold any person responsible, either for bona fide or
most of the time, mala fide mistakes. Examples are galore, where in spite of the
proclamations of the Law Minister, there is business as usual for the bureaucracy. Take, for
example, the case of M/s. Antrix Corporation Limited - a Government Company incorporated

under the Companies Act, and engaged in the marketing and sale of products and services of
the Indian Space Research Organization. Antrix entered into an Agreement with Devas
Multimedia in the year 2005, for the lease of Space Segment Capacity on ISRO, S-Band.
Article 19 of the Agreement empowered Antrix to terminate the Agreement in certain
contingencies. Article 20 of the Agreement dealt specially with arbitration and provided that
disputes would be referred to the senior management of both the parties to resolve the same
within 3 weeks, failing which the matter would be referred to an Arbitral Tribunal comprising
of three Arbitrators. It was also provided that the arbitration proceedings would be held in
accordance with the rules and procedures of the International Chamber of Commerce (ICC)
or UNCITRAL. On 25th February, 2011, Antrix terminated the Agreement with immediate
effect as per the directives of the Government and decided to refund ` 58.37 crores Up front
Capacity Reservation Fee. The matter is pending in the courts since then. Devas feels that the
Agreement is still subsisting, pending the arbitration. The Supreme Court has upheld the
contention of Devas. The matter may drag on indefinitely. The government itself has
admitted, more than once, that the State is the country's biggest litigant. Seventy per cent of
the over three crore cases that are pending in Indian courts involve the government as either
petitioner or respondent. To make matters worse, 90 per cent of those cases fail and should
not have been filed in the first instance, as the Prime Minister had observed. The President of
India had also observed on May 31, 2010: Government agencies being one of the biggest
litigants must exercise restraint from routinely instituting litigation. To make matters worse,
the country's judicial system is plagued by an inadequate number of judges who can hear
cases. As on 1-12-2012, there were 288 vacancies, against the sanctioned strength of 895
across all High Courts which have a collective backlog of 41.8 lakh cases. Uttar Pradesh,
India's most populous State, has the highest number of sanctioned High Court judges at 160
but has also the maximum number of vacancies at 74. With a population of 199 million only
one-third less than the population of the US, the third most populous country in the world
also has the maximum number of pending cases at 9.6 lakh. The same story is repeated in
other States. In August 2010, Solicitor-General, in a classic observation said: It's sad that
administration of justice has come to such a pass. The High Courts stay the trial and forget all
about it. This means, we are choking the administration of justice. No one should be denied a
fair and speedy trial. Also, what about the victims? What about society which feels that a
wrongdoer should be punished at the earliest? When the Solicitor-General said that the Chief
Justices of High Courts should play an active role in clearing the mess arising out of the
decade-old stay orders on criminal trials, the Bench claimed: The Chief Justices are helpless.
They have a tenure ranging from one year to even two months. What can a Chief Justice do in
such a brief tenure? The government as an impersonal entity takes the safest course, that is,
to keep the matters pending. Due to cancellation of Agreement, the Mauritian investment

entities have filed arbitration under the Mauritius-India bilateral investment treaty. The
panel has been constituted and exChief Justice of Rajasthan Anil Dev Singh has been
appointed as one of the members. The arbitration has already commenced under the
UNCITRAL Rules in the Permanent Court of Arbitration in The Hague and the proceedings
shall go on. The government has engaged the famous law firms besides deputing a number of
bureaucrats from DOS involving huge expenditure. Whatever may be the outcome, the
bureaucrats are the immediate beneficiaries. Over the past few years, India has been involved
in a number of such disputes with foreign investors. It was reported in an international Law
Journal that the issue of India's BITs came up for discussions in the parliament and the
Minister of State for Commerce stated: India has concluded BITs with 82 States, of which 72
BITs have come into force. He further said that India paid Aus $ 98,12,077 to White
Industries, following the award against India. A survey carried out by a Hong Kong-based risk
consultancy firm has found the bureaucracy in India to be the most stifling in the world. It
is no wonder that people are shy of investing in India. Steel magnet, L.N. Mittal, speaking at
the 48th annual convocation of Indian Institute of Management Ahmedabad said: I do not
want to give you any timeline about my Indian projects. I experienced so much of delay. India
is not in my top priority for investment, it is top priority as a country but not a top priority for
investment. The government has now decided to set up a dedicated institution for dispute
resolution in public contracts and the draft Bill would be prepared in consultations with
stakeholders. PMO has stated: This decision comes in the wake of several projects under the
public-private partnership mode getting entangled in contractual disputes as private sector
players are increasingly taking to arbitration to settle disputes after getting unsatisfactory
responses from the project authorities. One only hopes that many disputes like the
Antrix versus Devas will be sorted out, without litigation extending into decades. It is a
welcome step on the part of the government. Is the Government waking up?

PURPOSE OF EDUCATION
Remembering Nani A. Palkhivala
Kush Kalra
The multiplication of universities and colleges has
hardly kept pace with the insatiable needs of the
world's most populous democracy. By and large,
our education system has not been adequate for
the task of turning out a sufficient number of
young leaders who can lift the country out of the

polluted waters of our public life and the slime and sludge of a corrupted economy.
The most important function of education is enriching the character. What we need today more
than anything else is moral leadership - founded on courage, intellectual integrity and a sense of
values. The objective of higher education should be to turn our integrated personalities in whom
have been inculcated noble ideas. On the University campus we must stress the importance of
individual self-fulfillment but not self-indulgence, group cohesiveness but not group jingoism,
work and achievement but not power and acquisitiveness for their own sake. A university
campus is the one place where the virtues of discipline and non-violence should be written as
with a sunbeam on every student's mind. Your education has been in vain if it has not fostered in
you the habit of clear, independent thinking. There are well-dressed foolish ideas, just as there
are well-dressed fools, and the discerning man must be able to recognize them as such.
It is essential that the student during education acquires an understanding of and a lively feeling
for values. He must acquire a vivid sense of the beautiful and of the normally good. Otherwise he
- with his specialized knowledge - more closely resembles a well-trained dog than a
harmoniously developed person.
Professor Walter Raleigh said that the college final and day of Judgment are two different
examinations. Failures may also take some consolation from the fact that A.E. Housman, the
great scholar of Greek and Latin, and better known as poet, once failed in the papers on those
very languages at the Oxford University. His Biographer Richards comments, The Nightingale
got no prize at the Poultry Show. Even Rabindranath Tagore (Poet from India) was an utter
failure in school but a legendary poet.
In ancient India, kings and emperors thought it a privilege to sit at the feet of a man of learning.
Intellectuals and men of knowledge were given the highest honour in society. King Janaka,
himself a philosopher, journeyed on foot into the jungle to discourse with Yajnavalkya on high
matters of State. In the eighth century Sankaracharya travelled on foot from Kerala to Kashmir
and from Dwarka in the west to Puri in the east. He could not have changed men's minds and
established centres of learning in the far-flung corners of India but for the great esteem and
reverence which intellectuals enjoyed.
Unfortunately, in our times we have down-graded the intellectual and have devalued the very
word. Today an intellectual means a man who is intelligent enough to know on which side his
bread is buttered.
It has been said that there are two kinds of fools in the worldthose who give advice and those
who do not take it. Education has been called the technique of transmitting civilization. In order
that it may transmit civilization, it has to perform two major functions: it must enlighten the
understanding, and it must enrich the character.The two marks of a truly educated man, whose
understanding has been enlightened, are the capacity to think clearly and intellectual curiosity.
In the eighteenth century, Dean Swift said that the majority of men were as fit for flying as for
thinking. Technology has made it possible for men to fly, or at least to sit in a contraption that
flies, but it has not made it possible for men to think. If your education has made it possible for
you to think for yourself on the problems which face you and which face the country, your
college has done very well for you. If this habit of thinking for yourself has not been inculcated
in you, you would be well advised to acquire it after you leave college.
As the cynic remarked, a formal education at a university cannot do you much harm provided
you start learning thereafter. The capacity to think clearly should enable the student to sift, and
reject when necessary, the ideas and ideologies which are perpetually inflicted on him by the
mass media of communication. It should enable him to realize that these mass media are in

chains - in chains to the foolish and narrowing purposes of selling consumer goods, and to the
narrowing and stifling purposes of politics. A liberal education is a prophylactic against
unthinking acceptance of the modern mantras which are kept in current circulation by the mass
media.
All the troubles may be summed up in three lines (T.S. Eliot )
Where is the life we have lost in living?
Where is the wisdom we have lost in knowledge?
Where is the knowledge we have lost in information?

PUBLICITY INTEREST LITIGATION ?

Purnima Arora, Advocate*
Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and
was seen as a private pursuit for the vindication of private vested interests. Litigation in those
days consisted mainly of some action initiated and continued by certain individuals, usually
addressing their own grievances. The bulk of citizens were unaware of their legal rights and
much less in a position to assert them. As a result, there was hardly any link between the rights
guaranteed by the Constitution of India and the laws made by the Legislature on the one hand
and the vast majority of illiterate citizens on the other. However, this scenario gradually changed
when the post emergency Supreme Court tackled the problem of access to justice by people
through radical changes and alterations made in the requirements of locus standi and of the
party aggrieved.
Public Interest Litigation (PIL) as it has developed in recent years marks a significant departure
from traditional judicial proceedings. The court is now seen as an institution not only reaching
out to provide relief to citizens but even venturing into formulation of policy which the State
must follow.
Justice P N Bhagwati in S P Gupta v. Union of India1 has stated: Today a vast resolution is
taking place in the judicial process, the theatre of law is fast changing and the problems of the
poor are coming to the forefront. The Court has to innovate new methods and devise new
strategies for the purpose of providing access to justice to large masses of people who are denied
their basic human rights and to whom freedom and liberty have no meaning. The only way in
which this can be done is by entertaining writ petitions and even letters from public spirited
individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or
a legal injury or whose constitutional or legal rights have been violated, but who by reason of
their poverty or socially or economically disadvantaged position are unable to approach the

court for relief.

PIL has been an invaluable innovative judicial remedy. It has translated the rhetoric of
fundamental rights into living reality for the exploited and downtrodden humanity. Under-trial
prisoners languishing in jails for inordinately long periods, inmates of asylums and care-homes
living in sub-human conditions, children working in hazardous occupations and similar
disadvantaged sections have got lots of benefits.
In a letter by Bandhua Mukti Morcha alleging that a large number of migrant workers were
working as bonded labourers in stone quarries of Haryana, despite the enactment of the Bonded
Labour System (Abolition) Act, 1976, the Supreme Court appointed a commission to study the
facts and report to the Court.2
A letter was sent by one Nilabati Behera to the Supreme Court complaining that her son was
taken by the police to examine him in relation to a theft case but on the next day, he was found
dead on the railway tracks with multiple injuries. The Court treated the letter as a writ petition
and appointed a commission and after going through the evidence, came to the conclusion that
the youth was done to death by the police.3
A PIL was filed before the Supreme Court by certain social activists and NGOs with the aim of
focusing attention towards societal aberration, and assisting the finding of suitable methods for
realization of the true concept of gender equality and to prevent sexual harassment of working
women in all work places through judicial process, to fill the vacuum in existing legislation.
Taking note of the fact that the present civil and penal laws in India do not adequately provide
for specific protection of women from sexual harassment in work places and that enactment of
such legislation will take considerable time, the Supreme Court laid out certain guidelines to
ensure the prevention of sexual harassment of women.4
There are several other instances where the forum of PIL has been used to provide succour to
the downtrodden and underprivileged sections of the society.
However, the development of PIL in the country has uncovered its own pitfalls and drawbacks.
The genuine causes and cases of public interest have, in fact, receded to the background and
irresponsible PIL activists all over the country have started to play a major but not a
constructive role in the arena of litigation. It is being seen that the forum of PIL is being misused
and PIL is turning towards either Private Interest Litigation or Publicity Interest Litigation. It
has been observed that PILs are being filed either to settle a personal score particularly in

service matters or to seek cheap publicity. The Supreme Court has opined that the Court cannot
be a silent and mute spectator to it and helplessly watch the erosion of the institution of PIL.
In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra,5 the Supreme Court held that when
there is material in the PIL to show that a petition styled as a PIL is nothing but a camouflage to
foster personal disputes, the said petition is to be thrown out. The Supreme Court held: Public
Interest Litigation which has now come to occupy an important field in the administration of
law should not be publicity interest litigation or private interest litigation or politics interest
litigation or the latest trend paise income litigation. If not properly regulated and abuse
averted, it becomes also a tool in unscrupulous hands to release vendetta and wreak vengeance,
as wellPublic Interest Litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil
of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking.
Of late, many of the PIL activists in the country have found the PIL as a handy tool of
harassment since frivolous cases can be filed without investment of heavy court fees as required
in private civil litigation and deals can then be negotiated with the victims of stay orders
obtained in the so-called PILs.
The framers of Indian Constitution did not incorporate a strict doctrine of separation of powers
but envisaged a system of checks and balances. Policy making and its implementation are
conventionally regarded as the exclusive domain of the Executive and the Legislature. The
power of judicial review cannot be used by the court to usurp the powers of other organs. PIL, in
practice, however, tends to narrow the divide between the roles of the various organs of the
government and is, therefore, regarded controversial in this regard.
In order to minimize the misuse of the forum of PIL, which was evolved by the judiciary to
protect the interests of the underprivileged, the Supreme Court has constituted a Cell to
scrutinize the letters or petitions received so as to see whether they actually qualify as PILs or
not. The Cell bases its conclusion on the guidelines provided to it which are: (1) Bonded labour
matters; (2) Neglected children; (3) Non-payment of minimum wages to workers and
exploitation of casual workers and complaints of violation of labour laws (except in individual
cases); (4) Petitions from jails complaining of harassment, for premature release and seeking
release after having completed 14 years in jail, death in jail, release on personal bond, speedy
trial as a right; (5) Petitions against police for refusing to register a case, harassment by police
and death in police custody; (6) Petitions against atrocities on women, in particular harassment
of bride, bride burning, rape, murder, kidnapping, etc.; (7) Petitions complaining of harassment

or torture of villagers by co-villagers or by police from persons belonging to Scheduled Castes

and Scheduled Tribes and economically backward classes; (8) Petitions pertaining to
environmental pollution, disturbance of ecological balance, drugs, food adulteration,
maintenance of heritage and culture, antiques, forest and wildlife and other matters of public
importance; (9) Petitions from riot-victims; (10) Family pension.
In Dr. B Singh v. Union of India,6 the Supreme Court held that in admitting PILs the Court has
to take into account the two important points, viz.(i) Nobody should indulge in wild and reckless
allegation besmirching the character of others; and (ii) Avoidance of public mischief and to
avoid mischievous petitions filed for oblique motives, justifiable executive actions.
If not properly and strictly regulated, PIL becomes a tool in unscrupulous hands to release
vendetta and wreak vengeance. Therefore, the Courts should be extremely careful to see that
under the guise of redressing a public grievance, its forum was not being misused.

ACID ATTACK
Need For A Stringent Law
Sakshi Gupta
Amity Law School, Delhi.

Acid attack, especially on women, have seen an alarming growth in India over the last decade.
Acid attacks are a form of violence against women, where the perpetrator splashes a person or
object with acid in order to deface or kill them. Although acid throwing, also known as vitriol
age, has been a form of violence known to be committed throughout history, there has been a
steep rise in the cases documented in recent years, particularly in certain South Asian countries.
Some of this increase has been attributed to better documentation of cases and also to the fact
that victims of attacks have begun to report an attack more often. However, there appears to be
a substantive increase in the number of acid attacks that are being committed in recent times
due to various factors. Acid attacks are seen as one of the most vicious crimes as it causes
perpetual suffering to the victim. As acid melts flesh and even the bones of a person, it causes an
unparalleled degree of pain to the victim and leaves her mutilated an d scarred as well as gives
permanent disabilities at times such as blindness.
Instances of acid attacks are no longer a rarity in India. Despite this, there are no specific laws

that deal with this heinous crime. While these attacks can be attributed to various factors such
as the social weakness of women in a male-dominated society, the situation is exacerbated by
the general neglect of the lawmakers. As acid is inexpensive and easily available, it serves as an
ideal weapon for the perpetrators. So far, there is no separate law to deal with acid attacks.
Cases are registered under sections 320 (causing emasculation and disfigurement), 322 and 325
(voluntarily causing grievous hurt) and 326 (causing grievous hurt by dangerous weapons or
means). Under these sections, the accused could be sent to jail for a period of one year to 10
years. Further, as this offence is bailable in certain situations, the punishment does not act as a
sufficient deterrent in most cases.The crime of acid attack has a gender dimension in India, with
majority of the victims being women. Men who commit these crimes are usually spurned suitors
who want to avenge their rejection. Other cases involve denial of dowry by women, robbery and
land disputes.
The violent crime of acid throwing not only inflicts horrendous physical effects, but also mental
injuries on the victim just like burning in hell for penance of sins. Almost all the victims plea for
their right to die: this crime has given rise to a number of plea for euthanasia cases too. Sonali
Mukherjee, a victim of acid attack nine years ago, has appealed to the Indian Government for
medical support for skin reconstructive surgery as well as tougher penalties on her three
assailants, who were released on bail after only three years in prison. Either that, she says, or
authorities should give her the right to kill herself.
Our legal and medical systems have also proved very weak while dealing with such cases; there
is no proper legislation and the medical facilities provided are also not proper. One of the major
problems with this type of crime, just like several other crimes against women, is that the police
does not take strong enough action when complaints are registered. Globally 1500 such cases
have been reported which has now led the governments of South Asian countries, to take a
proactive approach to the crime. In 2002, Bangladesh introduced death penalty for throwing
acid and implemented laws strictly controlling the sale of acids. In 2011, Pakistan passed a law
in the form of Acid Control and Acid Crime Prevention Bill that established tougher penalties for
an acid-attack conviction - 14 years to life behind bars and a fine of up to $11,000.
But women's rights activists are demanding greater regulation of the sale and distribution of
acid to prevent these attacks. Better rehabilitation services are also crucial for victims. After an
attack, a victim faces physical challenges which require long-term surgical treatment, as well as
psychological challenges, which demand in-depth counselling from psychologists at each stage
of physical recovery.

In an Indian famous case, the Campaign and Struggle Against Acid Attacks on Women
(CSAAAW) helped Hasina Hussain get justice after her ex-boss Joseph Rodrigues poured 1.5
litres of sulphuric acid on her when she quit her job in his company in 1999. The acid melted her
face, fused her shoulder and neck, burnt a hole in her head, merged her fingers and blinded her
for life. In 2006, the Karnataka High Court sentenced Rodrigues to life imprisonment.
The National Commission for Women (NCW) is pushing for a specific law to deal with such
cases. It has come up with a draft of the Prevention of Offences (by Acids) Act, 2008, which is
with the Union Ministry for Women and Child Development for vetting. After its approval, the
Bill will be sent to the Law Ministry before it is tabled in the Parliament to be passed as law.
Activists and lawyers also believe that a strict law needs to be in place to regulate the
procurement and sale of acid. The draft Bill proposed by the National Commission for Women
suggests that a national acid attack victims' assistance board be set up to recommend to the
government strategies for regulating and controlling the production, hoarding, import, sale and
distribution of acids.
For the first time, acid attacks have been suggested to be included under a standalone provision
in the Indian Penal Code (IPC). It has been proposed that two sections - 326A (hurt by acid
attack) and 326B (attempt to throw or administer acid) - be added to the IPC. This is a nonbailable offence. The proposed law states that the attacker could get a jail term of 10 years to life
for causing hurt by acid. He or she could be sent to jail for up to seven years for attempting to do
so.
But lawyers say that the proposed law is not enough.The government must invoke a stringent
law on the lines of the Maharashtra Control of Organised Crime Act, where no bail is granted to
the accused if there is a prima facie case. Unless a stricter law is in place, acid attackers will
roam free and can harm the victim again. Activists point out that the proposed law has no
provisions for the protection of victims.
The new law has a provision for monetary compensation for acid victims. But lawyers fear that
passing the buck to the accused may leave the victim without any support. In many cases, the
accused belong to poor families. They will not be able to pay the compensation. There should be
an additional clause in the law making where the State should take up the responsibility of
compensating the victim if the accused fails to do so.The victim must also get financial help as
soon as possible so that a surgery can be done immediately. Some states such as Karnataka have
adopted a mechanism to pay the victim from State funds. Recently, the Delhi Government too
announced that it would pay a compensation of up to ` 3 lakh to a victim in case there is

disfigurement of the face. Thus, there is an immense need to come out with legal measures and
medical reforms by our government to help these victims.

Disturbing trends in Judicial Activism

By T.R. Andhyarujina

Public Interest Litigation is a good thing when it is used to enforce the rights of the
disadvantaged. But it has now been diluted to interfere with the power of the government to take
decisions on a range of policy matters
Judicial activism is not an easy concept to define. It means different things to different persons.
Critics denounce judicial decisions as activist when they do not agree with them. Activism, like
beauty, is often in the eye of the beholder. In India, the opening up of access to courts to the
poor, indigent and disadvantaged sections of the nation through Public Interest Litigation,
popularly known by its acronym PIL, is unexceptionable judicial activism. From 1979, the
judiciary led by the Supreme Court in India became relevant to the nation in a manner not
contemplated by the makers of the Constitution and became an active participant in the
dispenser of social justice.
It is a matter of concern that over the years this original, beneficial and unexceptionable
character of the Court's activism in PIL has been largely converted into a general supervisory
jurisdiction to correct actions and policies of government, public bodies and authorities. This is
a type of judicial activism unparalleled in any other judiciary.
For basic rights
PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979,
entertained complaints by social activists drawing the attention of the Court to the conditions of
certain sections of society or institutions which were deprived of their basic rights.
In 1979, Supreme Court advocate Kapila Hingorani drew the Court's attention to a series of
articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had
served pre-trial detention more than the period they could have been imprisoned if convicted.
Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his

attention to torture by prison authorities and the miserable conditions of prisoners in jails. This
was taken up as a petition and the Court passed orders for humane conditions in jails. In 1980,
two professors of law wrote a letter to the editor of a newspaper describing the barbaric
conditions of detention in the Agra Protective House for Women which was made the basis of a
writ petition in the Supreme Court. The exploitation of workmen at construction sites in
violation of labour laws was brought to the attention of the Supreme Court by a letter. The slavelike condition of bonded labourers in quarries was brought to the attention of the Court by a
social activist organisation. A journalist moved the court against the evictions of pavement
dwellers of Bombay. Several cases of this type followed.
In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations
of the State and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati,
correctly stated the purpose of PIL as it originated. He emphasised that PIL " a strategic arm of
the legal aid movement which is intended to bring justice within the reach of the poor masses,
who constitute the low visibility area of humanity, is a totally different kind of litigation from
the ordinary traditional litigation ."
No longer were the Court's clientele drawn from landlords, businessmen, corporations and
affluent persons. With PIL, the common man, the disadvantaged and marginalised sections of
society had also easy access to the Court with the help of social activists.
This unique judicial activism was not found in other countries and leading judges abroad such
as Lord Harry Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded
it.
The new intervention
However, over the years, the social action dimension of PIL has been diluted and eclipsed by
another type of "public cause litigation" in courts. In this type of litigation, the Court's
intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the
society but simply for correcting the actions or omissions of the executive or public officials or
departments of government or public bodies. Examples of this type of intervention by the Court
are innumerable. In the interest of preventing pollution, the Supreme Court ordered control
over automobile emissions, air and noise and traffic pollution, gave orders for parking charges,
wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of
traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control
and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at

unmanned railway level crossings, prevent ragging of college freshmen, for collection and
storage in blood banks, and for control of loudspeakers and banning of fire crackers.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking
rivers in India. The Court has passed orders banning the pasting of black film on automobile
windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the
Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the
exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the
Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article
32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at
all involved in such cases. The Court is only moved for better governance and administration,
which does not involve the exercise of any proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took
away the constitutionally conferred power of the President of India to appoint judges after
consultation with the Chief Justice, and appropriated this power in the Chief Justice of India
and a collegium of four judges. In no Constitution in the world is the power to select and appoint
judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who are
perceived to have failed or neglected to investigate and prosecute ministers and officials of
government. Cases of this type are the investigation and prosecution of ministers and officials
believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief
Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister
of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in
the 2G Telecom scam case by the Supreme Court.
Military operation
The Supreme Court has made an order even in a military operation. In 1993, the Court issued
orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a
matter of strategy restricted the food supplies to hostages. The Court ordered that the provision
of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army
General wrote: " For the first time in history, a Court of Law was asked to pronounce judgment
on the conduct of an ongoing military operation. Its verdict materially affected the course of
operation ."

Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative
Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and
ordered the Speaker to conduct proceedings according to a prescribed agenda and not to
entertain any other business. Its proceedings were ordered to be recorded for reporting to the
Court. These orders were made in spite of Article 212 of the Constitution which states that
Courts are not to inquire into any proceedings of the legislature.
Other examples
Matters of policy of government are subject to the Court's scrutiny. Distribution of food-grains
to persons below poverty line was monitored, which even made the Prime Minister remind the
Court that it was interfering with the complex food distribution policies of government. In the
2G Licenses case, the Court held that all public resources and assets are a matter of public trust
and they can only be disposed of in a transparent manner by a public auction to the highest
bidder. This has led to the President making a Reference to the Court for the Court's legal advice
under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of
the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create
greater teledensity in India.
The Court has for all practical purposes disregarded the separation of powers under the
Constitution, and assumed a general supervisory function over other branches of governments.
The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a
public authority has also deflected the primary responsibility of citizens themselves in a
representative self government of making legislators and the executive responsible for their
actions. The answer often given by the judiciary to this type of overreach is that it is compelled
to take upon this task as the other branches of government have failed in their obligations. On
this specious justification, the political branches of government may, by the same logic, take
over the functions of the judiciary when it has failed, and there can be no doubt that there are
many areas where the judiciary has failed to meet the expectations of the public by its
inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: " The doctrine of judicial activism which justifies
easy and constant readiness to set aside decisions of other branches of government is wholly
incompatible with a faith in democracy and in so far it encourages a belief that judges should
be left to correct the result of public indifference it is a vicious teaching. " Unless the
parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which
is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the

functions of other branches of government and ineffective by its indiscriminate use.

(The writer is a senior advocate of the Supreme Court and former Solicitor General of India.
This article is an abridged version of a lecture he recently delivered at the sesquicentennial of
the Bombay High Court.)

A NEW OPENING FOR ABOLITION OF DEATH PENALTY

India is persisting in retaining death penalty notwithstanding that so
far 139 countries, from all regions of the world, have abolished the
death penalty and 150 have put a moratorium on death penalty. UN has
passed a resolution on 20 th September, 2010 appealing to all nations
to observe moratorium on death penalty if they are not agreeable to
pass a legislation abolishing death penalty.
Recently by a curious turn of events a slight clink seems to have crept in
against a look like formidable wall of opposition to the abolition of death penalty. I am referring
to the case of Balwant Singh Rajoana who was awarded death penalty for assassination of the
Punjab Chief Minister Beant Singh in 1995. Rajoana did not appeal against his conviction nor
did he file a mercy petition before the President for commutation of his sentence. The High
Court confirmed his death sentence in 2007.
Badal Government did not take any interest in this case nor was this an issue in the recent
election in Punjab. But recently the Jathedars of the holy and universally respected Akal Takhat
chose to give a Hukumnama to Badal to commute the sentence of Rajoana. From press reports
it appears that Rajoana made it clear that he was not asking for mercy and wanted to be hanged.
Why the Jathedars so acted is a matter which I am quite sure all well wishers and devotees of
Akal Takhat will consider seriously considering that Punjab has witnessed disturbing scenes and
lot of tension and even Police have had to intervene in some places.
Obviously because of political compulsion the Punjab Chief Minister Badal met the President
seeking mercy so as not to hang Rajoana and the execution has been stayed for the time being.
Another petition filed in the Supreme Court as a PIL seeking mercy for Rajoana was dismissed

by the Court observing that such a petition was not maintainable.

I may make it clear that I am a confirmed believer in the abolition of death penalty. I am
pointing out only the convoluted action of Badal Government in acting in this manner rather
than in the straight forward constitutional manner which is open to it.
I was glad to read in the press an official statement by the Shiromani Akali Dal, the ruling party
government, stating that it was against the death penalty "as it is the ultimate denial of human
rights and it violates the right to life". If so I would suggest a straight constitutional method,
namely, the Punjab Government should have a law passed by the Punjab Assembly amending
the Indian Penal Code and providing that punishment for death will be life imprisonment
instead of present death or imprisonment for life as provided in the Indian Penal Code. Our
Constitution has concurrent list which enables both the Parliament and the State Assembly to
pass legislation. Entry No. 1 in the list includes all matters including the Indian Penal Code at
the commencement of the Constitution. Thus, both the Centre and State can legislate and
provide for various sentences under the Indian Penal Code. Of course, if the Punjab Government
was to amend the Indian Penal Code for providing only imprisonment for life it may prima
facie run counter to the Indian Penal Code but for such a situation article 254 of the
Constitution itself provides a remedy, namely, in such a case the State Law may be reserved for
consideration of the President and if it has received his consent, that law shall prevail in that
State. The result will be that if Badal Government genuinely acts, Indian Penal Code will only
provide for imprisonment for life and not death in the State of Punjab. This will serve both the
purpose of Rajoana not being hanged and also set a healthy precedent for the rest of the country
to abolish death penalty.
It is, thus, clear that notwithstanding retention of the death penalty in the Indian Penal Code, a
Central legislation, the Punjab Government can pass a law providing for only imprisonment for
life under the Indian Penal Code and send it for approval to the President. It will then be for the
Centre to take the decision and if it does not approve of the Punjab Government suggestion at
least Badal Government would be able to say that it not only tried to lead in the field of human
rights for abolishing the death penalty but also in the process tried to avoid the execution of
Rajoana.
That States in our country will take different views on the question of death penalty is not in
doubt. The example of USA is apposite. The USA consists of 50 States. While at the federal ( i.e .,
Central) level, imposition of death sentence has been upheld as a constitutionally valid
punishment, 13 States as also the District of Columbia, have prohibited and banned death

sentence.
The vociferous opposition to abolition of death penalty springs from myth that it can lead to
increase in murders. Facts show otherwise. In 1945-50 the State of Travancore, which had no
death penalty, had 962 murders whereas during 1950-55, when death sentence was introduced,
there were 967 murders.
In Canada, after the abolition of death penalty in 1976, the homicide rate has declined. In 2000,
there were 542 homicides in Canada - 16 less than in 1998 and 159 less than in 1975 (one year
prior to the abolition of capital punishment).
A survey conducted by the United Nations in 1988 concluded that research has failed to provide
any evidence that executions have a greater deterrent effect than life imprisonment.
The Punjab Government should not have any second thought about the support both on moral
and legal ground for the abolition of death penalty in Gandhi's India who said: "I cannot in all
conscience agree to anyone being sent to the gallows, God alone can take life because he alone
gives it." Similarly, Dr. Ambedkar said , "I think that having regard to this fact, the proper thing
for this country to do is to abolish the death sentence altogether." The socialist leader Jai
Parkash Narain once said: "...death sentence is no remedy for such crimes."
The High Commissioner for Human Rights, Louise Arbour called the death penalty "..a sanction
that should have no place in any society that claims to value human rights and the inviolability
of the person. "
Will the Badal Government bring in the necessary amendment as mentioned above - if it does
not it will expose itself to the charge that all this drama of appealing to the President for mercy
for Rajoana was a political gimmick and not any larger consideration of human rights.

Wife cannot be Compelled to be Pregnant by Husband

In a welcome landmark judgment, the Punjab and Haryana High Court
has categorically ruled that a husband cannot compel his wife to conceive
and give birth to his child. While making it amply clear that such

relationships that know no limits too have boundaries, the High Court was unequivocal in
asserting that intimacy is one thing, giving birth to a child another. Moreover, we cannot be
oblivious of the fact that it is the wife who bears the endless pain in giving birth to a child and
she cannot be coerced to experience it unwillingly. Justice Jitendra Chauhan of the Punjab and
Haryana High Court unambiguously said that, "Mere consent to conjugal rights does not mean
consent to give birth to a child for her husband. The wife is the best judge and is to see whether
she wants to continue the pregnancy or to get it aborted."
This landmark judgment delivered by Punjab and Haryana High Court is hugely significant on
many counts. It makes pretty clear that, "to have and to hold, for better, for worse, for richer, for
poorer, in sickness or in health" does not give a man the unfettered right to prevent his wife
from going in for an abortion. It would be pertinent to mention here that this ruling came on
revision petitions filed by Chandigarh based gynaecologists Dr. Mangla Dogra and other
petitioners. The main controversy in this case loomed around the decision of a wife to go in for
medical termination of pregnancy without her husband's consent. The husband, therefore, felt
aggrieved by this major unilateral decision taken by the wife alone on her own without his
consent.
To begin with, the couple were married in April 1994 and along with their son were initially
staying together in Panipat. But as they were not pulling along well and due to "unending
hostilities and strained relations", the wife ultimately started staying with her parents, along
with her son, at Chandigarh. However, the duo again came close and the wife conceived after she
agreed to accompany her husband to Panipat during the pendency of her application for
maintenance. She then opted to undergo an MTP which was carried out by Dr. Mangla Dogra,
who was assisted by Dr. Sukhbir Grewal as anesthetist.
Matters came to a head-on collision when the husband, subsequently, opted in favour of filing a
civil suit for the recovery of Rs. 30 lakh towards damages for inflicting untold mental pain,
agony and harassment against his wife, her brother and parents and also against Dr. Mangla
Dogra and Dr. Sukhbir Grewal for getting the pregnancy terminated illegally. In the lower court,
he gained the upper hand as a Civil Judge while taking up the plea asserted that, "There is a
cause of action in favour of the plaintiff against the defendants (wife and others) at this stage".
As expected, Dr. Mangla Dogra and other petitioners who were aggrieved by the orders wasted
no time in preferring the revisions.
Justice Jitendra Chauhan of the Punjab and Haryana High Court after listening to both the sides
unequivocally asserted that, "The wife knew her conjugal duties towards her husband.
Consequently, if the wife has consented to matrimonial sex and created sexual relations with her

own husband, it does not mean that she has consented to conceive a child. It is the free will of
the wife to give birth to a child or not. The wife is the best judge and is to see whether she wants
to continue the pregnancy or to get it aborted.Keeping in view the legal position, it is held that
no express or implied consent of the husband is required for getting the pregnancy terminated."
While imposing costs of Rs. 50,000 on the husband, Justice Chauhan on a jarring note
concluded that, "A woman is not a machine in which raw material is put and a finished product
comes out. She should be mentally prepared to conceive, continue the same and give birth to a
child. The unwanted pregnancy would naturally affect the mental health of the pregnant woman.
It is held that the act of the medical practitioners Dr. Mangla Dogra and Dr. Sukhbir Grewal was
legal and justified."
This landmark judgment by Punjab and Haryana High Court is truly commendable form all
counts. It accords woman the rightful place which she deserves and makes it abundantly clear
that pregnancy cannot be thrust on her against her own wishes. Her staying healthy and fit is of
supreme importance and she cannot be treated like a machine which has no brain of its own and
acts as per the whims and fancies of others. One fondly hopes that all other courts too will
emulate this landmark judgment and place women and her well being at the highest pedestal
above everything else and under no circumstances will compromise on it.

Whistleblower Protection
Mirza Saaib Beg,
NALSAR Univeristy of Law
Akash Pratap Singh, NLU-Orissa

In 1971 Frank Serpico reported several of his fellow officers for bribery and related charges. He
is the first officer to testify against police corruption. His heroic efforts gained international
momentum after the movie Serpico , starring AL Pacino. I was watching the movie last night
thinking about the whistleblowers protection programme that is so desperately required in
India. It is essential to understand the risks these people undertake coming out with sensitive
information, turning against their own associates and colleagues, risking their lives to combat
corruption. Frank Serpico was shot in the face at point blank range with a .22 LR handgun
during a drug raid. The bullet penetrated his cheek just below the eye and lodged at the top of
his jaw and colleagues failed to place a dispatch to police headquarters indicating that an officer
had been shot. Instead, Serpico was saved by an elderly man who lived in an apartment adjacent

to the one being used by the suspects.

A meticulously conscientious executive is indispensable for unimpeded functioning of an
effective justice system. It is not possible for the government investigative agencies to check
every department for possible corrupt practices, on a daily basis, but someone involved with the
organization is well aware of the daily transactions and may be of assistance to combat
corruption. Sadly, unabated abuse of power in a stochastically arbitrary manner has become a
diabolical concomitant of the executive systems acting in connivance with criminal cartels in an
alarmingly increasing majority of countries in Asia. The role of legal enforcement agencies is
truly paramount in order to achieve utopia of smooth and unimpeded functioning of an effective
justice system.
It is indeed refreshing to see our government attempting to take steps aimed at protecting
Whistleblowers in order to combat the iniquitous, morally and legally corrupt practices and a
myriad host of gangrenous issues that plague and stunt the economic growth of India. The
government is considering various measures to tackle corruption such as the formation of the
office of the Lokpal or Ombudsman to investigate corruption cases, the Judicial Standards and
Accountability Bill, 2010 that requires judges to declare their assets, lays down enforceable
standards of conduct for judges, and establishes a process for removal of the Supreme Court and
High Court judges and the Public Interest Disclosure and Protection of Persons Making the
Disclosure Bill, 2010.
A whistleblower is a person who raises concern about frauds, corruptions, wrongdoings and
mismanagement. In 2004, the death of whistleblower Satyendra Dubey, an engineer with the
National Highways Authority of India (NHAI) led to the initial work on protecting whistleblowers. Dubey was killed after he wrote to the ex-Prime Minister, A.B. Vajpayee's office about
the corrupt practices in the construction of highways. The government issued a
notification laying down certain guidelines for whistleblowing and protecting whistleblowers. It
introduced the Public Interest Disclosure and Protection of Persons Making the Disclosure Bill,
2010 in August 2010 to give statutory backing to the 2004 government resolution. Commonly
known as the Whistleblowers' Bill, it seeks to protect whistleblowers i.e. persons making a public
interest disclosure related to an act of corruption, misuse of power or criminal offence by a
public servant. A similar case is that of Manjunath Shanmugham, a sales manager of the IOC.
He was killed in 2005 for uncovering a racket that dealt in petrol adulteration. Following the
public outrage surrounding these murders, the government proposed a Bill pertaining to the
matter. The Department of Personnel and Training (DOPT) developed the Public Interest
Disclosure (Protection of Informers) Bill. The Bill designates the Central and State Vigilance

Commissions to receive disclosures from whistleblowers and lays down safeguards for
protection of whistleblowers. The Bill was referred to the Standing Committee on Personnel,
Public Grievances, Law and Justice which presented its report on June 9, 2011.
The Bill provides that anyone can file a complaint of corruption, with the Central Vigilance
Commission (CVC), against any employee of the Central Government or organizations backed
by the Central Government. The CVC is an authorized nodal agency for addressing complaints.
It has powers similar to a civil court, such as powers to issue summons, order police
investigation and provide protection to the whistleblower. However, the CVC is not authorized
by Indian laws to address the complaints regarding matters that are already in court's purview,
prejudicial to national security, international relations and proceedings of the Union
Cabinet. The proposed law does not deal with corporate whistleblowers, though as per the
recommendations of the Second Administrative Reforms Commission, the scope of the
proposed law could be enlarged to deal with corporate whistleblowers too.
Whistleblowers are given protections in most countries around the world. US was one of the
earliest to have the Whistleblower Protection Act of 1989, while the UK has the Public Interest
Disclosure Act of 1998, and Norway has a similar law in place since January 2007. As of now, in
India there is no statutory protection given to persons who come forward with information.
Under the Indian Penal Code (IPC), whistleblowers and witnesses have only very limited
protection. Sections 5 and 24 of the IPC provide limited protection to whistleblowers, but only
against prosecution under the IPC.
Objective and Working of the Bill
The Whistleblowers' Protection Bill, 2011 seeks to provide "adequate protection to persons
reporting corruption or wilful misuse of discretion which causes demonstrable loss to the
government or commission of a criminal offence by a public servant." The CVC would not reveal
the identity of the complainant but would have the authority to ignore frivolous complaints. The
criteria for 'ignoring' a complaint has not been clearly explained. Further, limitations have been
placed on matters which are sub-judice, prejudicial to national security, international relations,
proceedings of the Union Cabinet or those beyond the limitation period of five years.
It is true that an organisation is entitled to confidentiality from its employees. But when there is
corruption and fraud in defence procurement; unauthorized waste disposals from hazardous
factories into water bodies; non-adherence to flight safety standards by airlines; false
declarations by companies to boost their stocks, the overriding public interest may lie in

protecting the public's right to be informed. Whistleblower protection measures are gathering a
momentum in India aided by our recent slew of government and corporate scandals. It is only a
matter of time till legislators comprehend the gravity of the situation and the dire requirement
for their protection.

Power Of Women
Woman, by no means is inferior to man in any respect and can perform all functions equally
well or perhaps even better. She might be lacking brute force of the savage kind but is better
endowed with gifts of civilization.
In the Vedic period, women participated in every sphere of human life and enjoyed a fair
amount of freedom and equality with men. They studied in gurukuls and enjoyed equality in
learning the Vedas. They even fought battles. Purdah system was unknown. Women were free to
choose their life partners and polygamy was rare. A widow had the right to re-marry. There was
no discrimination between a boy and a girl. Men used to regard women with respect and as
partners in managing the affairs of the household.
In the post-Vedic period between 1500 BC to 500 AD various restrictions were put on womens
rights and privileges by Manu and the status of women suffered a setback and their role got
restricted to the four walls of their home. During the time of epics of Ramayana and
Mahabharata, the male law givers bound the freedom of women both in deed and speech.
Society become polygamous and polyandry was abolished. There was reduction in the
marriageable age of girls.
With the invasion of India by Alexander and Huns the position of women was reduced almost to
that of war prisoners. Muslim invasions of India brought complete subordination of women.
The Mughal period and the subsequent advent of the British period were marked with general
practice of killing baby girls, condemnation of widow and system of Devdasis.
But due to education and western impact on the socio-cultural life the behaviour and living
pattern changed drastically during the British regime. Injustice on women was highlighted by
Dada Bhai Naoroji, Swami Dayanand Saraswati, Ishwar Chandra Vidyasagar and Lokmanya

Tilak. Widow re-marriage was advocated by Raja Ram Mohan Roy and Brahmo Samaj.
Outstanding role was played by some great women in the 18th century like Annie Besant,
Kasturba Gandhi, Sarojini Naidu, Vijay Lakshmi Pandit which throws light on the improved
position of women.
With the dawn of independence of India the picture turned brighter. Our Constitution makers
and law framers showed concern for the basic rights of women. On an international level also
the concern of women had risen. The Declaration on the Elimination of Discrimination Against
Women in 1967 and the subsequent Convention in 1979 are some of the measures recognized at
the international level.
Article 14 of the Constitution contains the equality clause. Article 15(1) forbids discrimination on
the grounds of sex. Indian Penal Code deals very strictly with the offences against women such
as rape.
Section 498A of IPC deals with cruelty by husband or relatives of the husband and punishes it
with imprisonment which may extend to three years or with fine or with both.
Section 304B of IPC deals with dowry death and states that where the death of a woman is
caused by burns or bodily injury under abnormal circumstances within seven years of her
marriage and it is shown that soon before her death she was subjected to cruelty or harassment
by her husband, in connection with dowry demand, such death will be called dowry death and
whosoever commits dowry death shall be punished with imprisonment of not less than seven
years and it may extend to imprisonment for life.
Sections 375 to 376D of the Indian Penal Code deals with the offence of rape.
Section 494 deals with offence of bigamy and lays down that whosoever having a living spouse
marries again shall be punished with imprisonment of seven years and with fine.
Dowry Prohibition Act, 1961; Sati Prevention Act, 1987; Maternity Benefit Act, 1961 and Equal
Remuneration Act, 1916 are other such Acts which empower women against apathy to them and
provide them with equal rights as men. The Medical Termination of Pregnancy Act, 1971
prohibits advertisements relating to sex determination of unborn foetus and punishes its
contravention in any and every form.
The National Commission for Women Act was enacted in 1990 and under this Act the National
Commission for Women was formed. It investigates and examines matters relating to

safeguarding of women. It makes reports and recommendations to the Central Government on

the working of these safeguards and improving the condition of women. It reviews from time to
time the existing laws and suggests legislative measures for improvement of the position of
women. It looks into complaints and takes notice of matters relating to deprivation of womens
rights, etc.
The judiciary of our country also now does not just sit in an ivory tower. It has come forward in
many ways and passed many landmark judgments in favour of women. Discrimination relating
to education has been dealt in Anjali Roy v. State of West Bengal1. In Muthamma v. Union of
India2 the question raised was related to rule 8(2) of the Indian Foreign Services which required
the women members to obtain permission in writing to the government before solemnization of
marriage. The rule was struck down as violative of Article 16 (2) of the Constitution. In Air
India v. Nargesh Mirza3 a rule, where an air hostess had to retire at the age of 35 years or on
marriage if it took place within four years or on first pregnancy, was held to be an open insult
to womanhood. Inspite of all these efforts the question today arises whether the status of
women today is as good as it was in Vedic times. Are all these legal provisions, judicial decisions
as good as they seem? Have modernization, globalization and liberalization actually uplifted the
status of women or are they mere tall claims? In fact, the statistics are not at all encouraging.
In India, a crime is committed against a woman every seven minutes. Every 54 minutes
somewhere in India a woman is raped. Every 26 minutes molestation takes place. Every 43
minutes a woman is kidnapped and every 102 minutes a dowry death occurs. This shows that
the fairer sex is still the weaker sex. Child marriage is still prevalent, widow re-marriage is still
looked down upon and dowry is still there. All these laws are still confined to statutory books.
What is needed is a change in the mindset of both men and women. Unless and until we teach
every member of our society to respect women and womanhood no number of laws will be able
to actually give women power. If each one of us vow to ensure dignity and honour for all
women we might help to envisage women empowerment in our own small way.

RIGHT TO STRIKE
By Dr. Anita Taneja
Strike is a temporary stoppage of work by a group of employees in order to express a grievance
or to enforce a demand concerning changes in work conditions. Strike is neither an act of war
against the industry nor against the employer. It is basically a weapon of self-defence against the

arbitrary and unjust policy of the management. It is a social necessity for promoting or
defending the just economic interest of the working class.
The right to strike has acquired an implied authorization from Articles 23, 24 and 25 of the
Universal Declaration of Human Rights (1948). In India the Trade Unions Act, 1926 for the first
time provided limited right to strike by legalizing certain activities of a registered trade
union. 1 Further, the Industrial Disputes Act, 1947 recognized that the workers have the right to
strike in certain circumstances other than those prohibited. 2The Supreme Court
in Chandramalai Estate v . Their Workmen 3 , recognized that strike is a legitimate and
sometimes unavoidable weapon in the hands of labourers.
In the Indian Constitutional set up the right to strike is not an absolute right but it flows from
the fundamental right to form union and is subject to reasonable restrictions. The question,
whether the right to strike is a fundamental right came up for consideration inAll India Bank
Employees' Association v. National Industrial Tribunal , 4 where the Supreme Court observed:
"Even a very liberal interpretation of sub-clause (c) of clause (1) of Article 19 cannot lead to the
conclusion that the trade unions have a guaranteed right to strike either as part of collective
bargaining or otherwise......The right to strike or the right to declare lock-out may be
controlled or restricted by appropriate industrial legislation, and the validity of such
legislation would have to be tested not with reference to the criteria laid down in clause (4) of
Article 19 but by totally different considerations."
The right of Government Servants to form associations, hold demonstrations and strikes has
been debated since long. The position is somewhat anomalous. On the one hand, government
servants like industrial workers have the guaranteed fundamental right to form association or
union and to demonstrate for redressal of their grievances, on the other hand, unlike industrial
workers, government servants generally are charged with onerous responsibilities for operating
essential and vital services to the community. As such they are expected to behave in a
responsible manner without resorting to concerted activity on the ground that strike would be
tantamount to disloyalty to the nation and the public. Government has tried to regulate strikes
by the government servants through the Government Servants Conduct Rules, Essential
Services Maintenance Ordinances, etc. and withdrawal of recognition of union formed by
government servants. Rule 4A of the Central Civil Services Conduct Rules, 1955 reads:
No Government servant shall participate in any demonstration or resort to any strike in
connection with any matter pertaining to his conditions of service.

The Supreme Court in Kameshwar Prasad v. State of Bihar 5 held that a person did not lose his
fundamental rights by joining government services. Article 33 of the Constitution provides that
fundamental rights of the members of the Armed Forces, etc. can be abridged or abrogated by
law, thus implying that fundamental rights of other government servants cannot be abridged.
Rule 4A was held to be valid so far as it referred to strikes, and void in so far as it referred to
demonstrations because it violated the fundamental right of speech and expression. In T.K.
Rangrajan v . Government of Tamil Nadu 6 the Supreme Court held that the government
employees have no fundamental, legal, moral or equitable right to go on strike even for a just
cause.
Recently, in April, 2011, several members of Indian Commercial Pilots Association went on
strike resulting in six pilots being sacked by State owned Air India thereby derecognizing their
Association. Hon'ble Justice Geeta Mittal of the Delhi High Court asked the 800 pilots to call off
their agitation, barring the pilots from resorting to any kind of demonstration and asked them to
resume work in the larger public interest and declared the strike illegal, as it was against the
commercial interest of the public airline as well as against the larger public interest. 7
To conclude, strike as a weapon has to be used sparingly for redressal of urgent and pressing
grievances when no other means are available or when available means have failed to resolve a
dispute. Every dispute between an employer and employee has to take into consideration the
third dimension, viz. the interest of the society as a whole. However, the workers must have the
right to strike for the redress of their grievances and they must be paid wages for the strike
period when the strike is legal and justified.

ELECTORAL REFORM

Will The Central Government Redeem Itself ?

Anna Hazare, when he gave up his fast, announced that the next his
fast, announced that the next movement is for Electoral Reform and
especially prioritised "Right to Reject candidate" at the elections
and the right to recall a legislator earlier than the end of his term.
The Central Government is seeking to project itself as responsive to
public opinion. Here then is an opportunity to do so. I say this
because the public demand for effectuating right to reject vote or
more clearly "None of the Above" (NOTA) is very easy to effectuate. The Representation of People
Act, 1951 and its rules provide a detailed mechanism for standing and voting at elections. The
Government of India has framed Conduct of Election Rules, 1961 to provide the manner how votes
are to be cast, and the precaution to maintain the secrecy of voting which is absolutely necessary
for a healthy democracy.
Prior to the introduction of Electronic Voting Machine (EVM), voting was by means of ballot
paper. Rule 49 (m) provides for maintenance of secrecy and voting procedure by E.V.M., whereby
the voter presses the button against the name of the candidate for whom he intends to vote.
Rule 49(o) further provides that if an elector decides not to record his vote, a remark will be made
by presiding officer on Form 17, and signature of the voter shall also be taken. But this procedure

is faulty and outdated, because it does not take into account mode of change of voting to EVM
instead of by ballot paper. This procedure is also illegal because by this the identity of the voter
who decides not to vote will be disclosed thus violating the fundamental right of voting in secrecy.
Realising this anomaly and lacuna the Election Commission of India as far back as 2001 and ever
since has been writing to the Central Government to make necessary modification in the rules by
providing a slot of NOTA in the E.V.M.
Finding the inaction of the Government, Peoples Union of Civil Liberties (PUCL), filed a writ
petition in 2004 in the Supreme Court asking for direction to the Central Government to suitably
amend Rule 49(o). The writ petition was heard by a two judge Bench which referred it to a larger
Bench in 2009; because of the congestion in the Supreme Court, the matter has not yet come up
for hearing. But notwithstanding the pendency, in law there is no prohibition to make the
necessary change by amending Rule 49(o) by providing "NOTA".
I believe that by introduction of NOTA in E.V.M. a radical change will be brought about in the
political arena. At present the voter is treated as a dumb driven cattle who must choose one, even
if he finds all of them to be thoroughly undesirable. A voter, at present, has no role in selecting the
candidate, as in the U.S.A. Primaries and even in Britain by constituency members. Here selection
of a candidate is done by a small cabal of party leaders and in some parties even by one or two so
called super leaders. The provision of NOTA voting will make a sea change in the power equation
in favour of the small voter as against the monster of a big political party. Such a provision will
enable the voter to exercise his right in secrecy and to send a message of his anger at the
unsuitability of contesting candidates and their political mentors.
It is not as if at present many voters will not like to record their disapprobation of the contesting
candidates but they are afraid to do so because of the unholy alliance of mafia crowd with many of
the contesting candidates. But NOTA being available in the voting machine, the voter will be able
to speak his mind without fear and thus defeat politicalisation of criminals.
At present, when voters feel disgusted at the nomination of undesirable candidates, they just sit at
home and sulk, but are not able to convey their resentment effectually. But in the changed position
the voter will be assured of secrecy and will exercise his right which will send a strong message to
the smug political bosses against their manipulation and force them to listen to the small
man/woman who in fact has the power with his/her little finger on the button to decide the fate of
the so called tallest of them.

Thus, NOTA can be effectuated immediately by the Central Government by amending the rule,
provided it is genuinely concerned with clean politics. The principles justifying NOTA are selfevident, namely(a) All legitimate consent requires the ability to withhold consent.
(b) It would end the farce where voters are often forced to vote for the least unacceptable
candidate, the all too familiar "lesser evil".
(c) Voters would decide the fate of the political parties' choices, instead of the parties deciding the
voters' choices.
(d) Many voters and non-voters, who now register their disapproval of all candidates for an office
by not voting, could cast a meaningful vote.
(e) This improves checks and balances between voters and political parties.
In any election when "NOTA" will be put on EVM, the list of candidates would be followed by the
button of "NOTA". If NOTA gets more votes than any of the candidates, then no one is declared
elected, instead, a follow-up by-election with new candidates, old being ineligible, would be held
to fill the seat, until a candidate wins a plurality of votes among all other candidates including
"NOTA".
NOTA has many thoughtful advocates in various countries in the world including the most well
known Ralph Nader, the consumer activist. U.S.A. Australia, Norway and other countries have a
very strong constituency favouring NOTA.
Of course, legislation would need to be enacted to provide that if NOTA votes exceed the
maximum cast for the highest vote getting candidate, the election will be countermanded and a
fresh election ordered. This change will be a warning to the political parties that decision about
the choice of candidate is not the sole prerogative of a clique within the party. It must involve the
voters at the initial stage of selection. A wrong choice will result in fresh elections.
I feel the Central Government can redeem its self damaging conduct during Anna Hazare Fast (as
even some of the Ministers have said it openly) by immediately amending Rule 49(o), as
demanded by Election Commission since 2001 and by providing a slot for NOTA in the voting
machine straight away for all future elections, thus recognizing the supremacy of the voters.

Corruption in Judiciary: Let Truth Precede Judgment

Hemraj Singh
Hope is the engine that propels life - individual and collective. Corruption has undeniably
permeated all surfaces of public life, even those that were previously considered impregnable.
The breach has been complete with only a few pockets of honesty and impartiality tucked away
like stolen diamonds, or so it seems. An overwhelming majority of these 'pockets' are found in
the judiciary, and if the recent unsavory aspersions cast on the holders of judicial offices are
anything to go by, even these pockets seem to be dissolving at howsoever slow a rate. And our
collective hope seems to be developing disturbing fissures.
Justice Dinakaran, who had already been recommended for elevation to the Supreme Court by
the Supreme Court collegium headed by the then Chief Justice of India, Justice KG
Balakrishnan, is now facing impeachment proceedings in Parliament on as many 16 corruption
and land-grab charges, including the charge of inappropriate administrative actions as Chief
Justice of Karnataka High Court to aid dishonest judicial decisions. The charges are quite
alarming, to put rather mildly.

The Dinakaran probe did not leave Chief Justice Balakrishnan untouched because the collegium
headed by him had cleared Justice Dinakaran's elevation to the Supreme Court, and one of the
most eminent Supreme Court lawyers and former Union Law Minister, Shanti Bhushan,
scathingly remarked that Chief Justice Balakrishnan was "recommending all corrupt persons to
become judges of the Supreme Court.particularly Justice Dinakaran was close to him." While
Mr. Bhushan's did not categorically call the ex-CJI corrupt, he did in some measure insinuate to
that effect. However, if the accusation is simply based on the fact that one of those
recommended to be elevated was tainted, it is ill-founded because other judges were also
similarly recommended and there is nothing to show that they were not unblemished.
One of the grave issues that Chief Justice Balakrishnan had to deal with during his tenure as the
CJI was that of a Union Minister's attempt at influencing a Madras High Court judge, Justice S.
Reghupati, to have a favourable order passed in a criminal proceeding. When Justice Reghupati
mentioned the attempt in the open court and it was reported in the media, Justice Balakrishnan
took serious note of it and also remarked that if it were true, contempt of court proceedings
could be initiated against the Minister. He demanded a report from the then Chief Justice of
Madras High Court, Justice H.L. Gokhale, on the issue. Justice Gokhale duly submitted his
report to the CJI.
Although Justice Gokhale's report to the CJI is not in public domain, it is still reasonable to
assume - though it would still be conjectural - that Justice Gokhale, denying any personal
knowledge of the incident, must have forwarded Justice Reghupati's letter to Justice
Balakrishnan. When asked about Justice Gokhale's report, Justice Balakrishnan categorically
stated that the report did not mention the name of any Union Minister.
Justice Gokhale, on his part, set the record straight by saying that Justice Reghupati's letter,
which was forwarded to Justice Balakrishnan, clearly mentions the name of Union Minister A.
Raja. The media played it up and quite a lot was made of this apparent inconsistency. It was
projected that Justice Balakrishnan had something to hide or someone to shield.
Interestingly, there is no inconsistency between the statements issued by the two Justices.
Justice Gokhale's report might not have mentioned the Minister's name because Justice
Reghupati's letter to Justice Gokhale had been forwarded to Justice Balakrishnan. And since
Justice Gokhale could not have added anything to the facts stated in Justice Reghupati's letter,
there was no occasion for him to mention Raja's name. And, of course, Justice Reghupati never
wrote to Justice Balakrishnan. So, there is no apparent falsity in either Justice Balakrishnan's or

Justice Gokhale's statement, neither are the two statements strictly incompatible.
Justice Reghupati's letter did mention the name, but it was not addressed to the CJI. So, the
matter technically remained in the hands of Justice Gokhale, who was fully empowered to
initiate contempt proceedings against the Minister.
Of course, nothing could stop the CJI to take matters in his hands, and his inaction might also
be considered an error on his part but is not necessarily indicative of bias.
The other serious charge against Justice Balakrishnan is that his relatives garnered immense
wealth during the time he was the CJI. To establish bias it must be established that any of his
judicial or administrative actions were motivated by consideration for his relatives. It is not
about whether his relatives 'derived' any benefits from his position but whether he 'allowed',
'directed' or 'channeled' the benefits to them or facilitated such channeling in any manner. So far
there is nothing to suggest any such thing. Therefore, in absence of concrete evidence, we must
exercise caution and not cast premature aspersions on the former holder of the nation's highest
judicial office.

SURROGACY

Dr. Justice A.R. Lakshmanan

Of late, there are lots of contradictory reports appearing in the media about Surrogacy. To
make the records straight and to remove the misgivings about Surrogacy in the minds of
general public, I, as the former Chairman of Law Commission of India, pens down this article.
In the 228 th Report titled "Need for legislation to regulate assisted reproductive technology
clinics as well as rights and obligations of parties to a Surrogacy" submitted by The Law
Commission of India in August, 2009, it was recommended that "the need of the hour is to
adopt a pragmatic approach by legalizing altruistic Surrogacy arrangements and prohibit
commercial ones." The Law Commission of India further stated that "The draft Bill prepared
by the ICMR is full of lacunae, nay, it is incomplete. However, it is a beacon to move forward
in the direction of preparing legislation to regulate not only ART Clinics but rights and
obligations of all the parties to a Surrogacy including rights of the Surrogate child."
Accordingly, the Law Commission, in its concluding note in the said report, had made the
following key recommendations:1. Surrogacy arrangements should continue to be governed by contract amongst parties
but should not be for commercial purposes.
2. Surrogacy arrangements should provide for financial support for the Surrogate child
in the event of death, divorce or unwillingness of the Commissioning
couple/individual.
3. Surrogacy contract should take care of Life Insurance Cover for the Surrogate mother.
4. On the intended parents must be a donor in a Surrogacy arrangement.
5. Legislation should recognize a Surrogate child as the legitimate child of the
Commissioning parent(s).
6. The birth certificate of the Surrogate child should contain the name(s) of the
Commissioning parent(s) only.
7. Right of privacy of donor as well as Surrogate mother should be protected.
8. Sex-selective Surrogacy should be prohibited.
9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act,

1971, only.
From the above conclusion, it is stated that the Law Commission adopted a pragmatic
approach in coming to the rescue of couples who could not conceive children by natural
methods as it is estimated that 15 per cent of couples around the world are infertile. With
enormous advances in medicine and medical technologies, it is reported in the Preamble of
The ART (Regulation) Bill, 2010, that "Today about 85 per cent of the cases of infertility can
be taken care of through medicines, surgery and/or the new medical technologies such as In
Vitro Fertilization (IVF) or Intracytoplasmic Sperm Injection (ICSI)." Thus, the report of the
Law Commission tried to harmonise reality since Surrogacy arrangements were already going
on in large numbers and it was expressed that checks, balances and safeguards be provided
through legislation to curb malpractices and exploitation of commercial Surrogacy.
The two seminars conducted by Mr Anil Malhotra in 2009, which were chaired by this author,
were in line with the above approach of the Law Commission. It was thought essential to
generate and espouse a public opinion and bring about a positive feedback on the ill-effects of
commercial Surrogacy arrangements. Mr Malhotra, in his articles, has stressed the need for a
serious debate and has posed some very important questions for thoughtful consideration.
Hence, it is important that the Surrogacy Bill needs to be discussed threadbare.
The ART (Regulation) Bill could be seen on the ICMR Website and has already been
extensively reported and commented upon in the media both in India and abroad. Section 34
in Chapter - VII of the 2010 Bill on the Website of the ICMR clearly states that a foreigner or
foreign couple not resident in India, or a non-resident Indian individual or couple, seeking
Surrogacy in India shall enter into a Surrogacy agreement which shall be legally enforceable.
I am of the view that there is rationale in appointing a legal guardian who will be legally
responsible for taking care of the Surrogate during and after pregnancy till the child is
delivered to the Commissioning parent(s) or the local guardian. To prevent misuse and
exploitation of the Surrogate as also to monitor her health, well being and to ensure the safety
of the Surrogate child to be born, it is very important to have a legal guardian with well
defined duties and responsibilities agreed to between the parties in a legally enforceable
contract. Once, a Surrogate mother agrees to be in such a position, corresponding duties and
responsibilities in such a position will not be an invasion of her right to personal life and
privacy. Such an argument is untenable in the facts and circumstances of Surrogate
arrangements for altruistic purposes and would be inconsistent to the Surrogate mother's
intention of voluntarily agreeing to be a Surrogate.

The 2010 Bill talks of foreign couples coming to India for Surrogacy to submit documents
from their home country certifying that they permit Surrogacy and the child born will be
granted citizenship in the country of their nationality. This, in my view, would be self
defeating as such a provision will only create more hurdles and problems. In my considered
opinion, it would be more appropriate if the Indian Laws on adoptions are over-hauled and
non-Hindus are permitted to adopt children in India. This way, all Commissioning parent(s)
will be able to adopt Surrogate children within India and take them to their home country.
Their intentions can be tested on Indian soil by Indian Courts at the time of deciding their
adoption petitions and they can then be allowed to take Surrogate children out of India.
I am also in complete agreement with the view expressed by Mr Malhotra that what is really
required is a specialist Court or legal authority for adjudication and determination of legal
rights of parties by a judicial verdict in India itself. The power of determination of legal issues
and disputes arising out of Surrogacy cannot be left to Advisory Boards who neither have the
legal acumen or the expertise to decide such specialist problems of Surrogacy.

JUDICIAL REFORMS - An Overview

Dr.Justice A.R. Lakshmanan

In the recent past, in every forum of legal seminar, there has been a long debate about
introduction of judicial reforms. It is only being talked about and not so far been
implemented. The time has now come to give a serious thought to it.
The 18th Law Commission of India has already given varied recommendations on the subject
of Reforms in the Judiciary, which subject is very dear to my heart, and in particular, the
Commission has submitted a detailed report to the Government of India to reconsider the
Judges' cases I, II and III by its Report Nos. 2 and 4 giving ample reasons as to why the three
judgments should be reconsidered.
The word 'Collegium' is nowhere present in the Constitution of India. It was first used by
Bhagwati, J. in the majority judgment of SP Gupta v. Union of India. The expression of
Collegium and the Collegium of Judges has been freely used in Paragraphs 15 and 22 of the
said judgment. The Collegium is now to consist of the Chief Justice of India and 4 Senior most
Judges of the Court and in the appointment of a High Court Judge, the Supreme Court Judge
acquainted with that particular High Court should also be consulted raising the number to 6.
There is no indication as to what happens if there is no consensus among the Consultees or if
the majority disagrees with the Chief Justice of India. On a scrutiny of several Constitutions of
other countries, it may be seen that in all other Constitutions, either the Executive is the sole
authority to appoint Judges or the Executive appoints in consultation with the Chief Justice of
the country. Our Constitution has followed the latter method. Our Constitution provides a
beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment
of Judges of the Supreme Court and High Courts where both the Executive and Judiciary have
been given a balanced role. This delicate balance has been upset by the II Judges' case and the
opinion of the Supreme Court in the Presidential reference. It is time the original balance of
power is restored. The Parliament Standing Committee on Law and Justice also
recommended the scrapping of the present procedure for appointment and transfer by
Supreme Court and High Court Judges.
It may be noticed in this context that in every High Court, the Chief Justice is from outside the
State as per the policy of the Central Government. The Senior most judges who form the
Collegium are also from outside the State. The resultant position is that the Judges
constituting the Collegium are not conversant with the names and antecedents of the
candidates and more often than not, appointments suffer from lack of adequate information.

Two alternatives are therefore available to the Government. of the day. One is to seek a
consideration of the three judgments aforesaid before the Hon'ble Supreme Court. Otherwise,
a law may be passed restoring to the primacy of the Chief Justice of India and the power of the
Executive to make the appointments.
The 18th Law Commission has also submitted another detailed report suggesting various
reforms in the Judiciary and in particular, the selection and appointment of High Court
Judges. The post of the Judge of a High Court has importance under our Constitution and the
incumbent is often supposed to be not only fair, impartial and independent, but also
intelligent and diligent. The general eligibility criteria is that a person should have put in 10
years of practice/service in the legal/judicial field. The post of Chief Justice should not be
transferable. This practice was introduced in our country after the emergency had been
imposed. The Chief Justice who comes on transfer for a short period of 6 months, one or two
years is a new man, rather an alien for the place and passes his time anyhow. He has to
depend on others for policy decision in administrative matters. If the Chief Justice is from the
same High Court, he will be in a better position to not only control the lower judiciary, but
also to assist the persons both from the Bench and the Bar for elevation to the High Court.
This will also curtail the unnecessary delay in filling up the vacancy in the High Court. If the
functioning of the High Courts is to be improved, the policy of transferring the Chief Justice
has to be given up forthwith. Now the time has come when this policy needs re-evaluation.
Likewise, the policy needs to be changed for enhancing ARTICLE retirement age of the High
Court Judges and Supreme Court Judges at least by 3 years. Similarly, there is no uniformity
in the age of retirement of the Judges of the Tribunals in the country. The 18th Law
Commission has also submitted a report recommending uniformity in the age of retirement of
the Chairmen and the Members of the different Tribunals at the age of 70 and 65 respectively.
Considering the huge pendancy of cases at all levels of judicial hierarchy, it has become
necessary to increase the number of working days of the Court. It has to be introduced at all
levels of judicial hierarchy and it must start from the Apex Court. The recommendations for
the need for an urgent and immediate review of the present procedure for appointment of
Judges is being fortified by various legal luminaries and many retired Judges of the Supreme
Court.
It may be noted that the time has now come to re-consider my suggestions as aforesaid.

Age of Retirement of High Court and Apex Court Judges

Justice A.R. Lakshmanan

When we adopted and gave to ourselves the Constitution in 1949, the retirement age of Judges
was fixed at 60 years for High Courts and 65 years for Supreme Court. For the High Court
Judges, 60 years was increased to 62 years in 1963. At that time, the normal life expectancy was
about 60 years. With the changes in social and financial set up as well as medical facilities, the
present normal life expectancy is about 70 years. Barring few exceptions, a person is fit and fine
at the age of 62 or even 65 years. In our country, except for the Judges, the retirement age in
some quasi-judicial bodies has been increased. The retirement age in different Tribunals has
now been increased to 70 for Chairmen and 65 for Members. In the circumstances, the
Constitution provisions need a change for enhancing the age of retirement of High Court and
Supreme Court Judges at least by 3 years.
It needs no mention that enhanced age of retirement is prescribed in the higher echelons of the
administrative and judicial services because the professional experience gained by those
working in them needs to be fully tapped for the good of the society. It may be pointed out that
the Government incurs a lot of expenditure on orientation training of its employees, especially at
the senior level and therefore, their enriched professional experience in running the affairs of
the Government could be utilized for the good of the common man.

In almost every High Court, there is huge pendency of cases and the present strength of the
Judges can hardly be said to be sufficient to cope with the alarming situation. The institution of
cases is much more than the disposal and it adds to arrears of cases. The litigating citizens have
a fundamental right of life, i.e. a tension free life through speedy justice delivery system. Now it
has become essential that the present strength of the Judges should be increased manifold
according to the pendency, present and probable.
It is also necessary that the work of the High Courts is decentralized, i.e. more Benches are
established in all States. If there is manifold increase in the strength of the Judges and the staff,
all cannot be housed in one campus. Therefore, the establishment of new Benches is necessary.
The Indian Judicial System is constantly exposed to new challenges, new dimensions and new
signals and has to survive in a world in which perhaps the only real certainty is that the
circumstances of tomorrow will not be the same as those of today. The need of the hour is to
erase misconception about the Judiciary by making it more accessible by utilizing the resources
available to improve the efficiency and less daunting.
The Indian Constitution provides a beautiful system of checks and balances under Articles 124
(2) and 217 (1) for appointment of Judges of the Supreme Court and High Courts where both the
executive and the judiciary have been given a balanced role. This delicate balance has been upset
by the 2 nd Judges' case ( Supreme Court Advocates-on-Record Association v. Union of India )
and the Opinion of the Supreme Court in the Presidential Reference (Special Reference No.1 of
1998). It is time the original balance of power is restored. The Law Commission has in its 214 th
Report (2008) recommended accordingly.
The practice being followed in fixing the age of retirement of Chairpersons and Members of
various Tribunals functioning in the country reveals that there exists no rationale in fixing
different retirement age limits. There is neither any uniformity in the age of retirement, nor have
any cogent reasons been given in the respective Acts justifying the criteria adopted for the
purpose.
The question of increasing the retirement age of Judges of the higher judiciary, i.e. High Court
and Supreme Court Judges from 62 to 65 and from 65 to 68 years respectively has also been a
matter of serious discussion/consideration at different levels of the Government. Retirement age
in many Government Departments/Disciplines, particularly educational and scientific/research
institutions has already been increased.

It may be recalled that the retirement age of Central and State Government employees was first
increased from 55 to 58 years and then from 58 to 60 years. For Judges of High Courts, the
retirement age was increased only once from 60 to 62 years and for the Supreme Court Judges,
the retirement age since inception has been 65 years. Judges of High Courts and the Supreme
Court retiring at the age of 62 and 65 respectively need to have a substantial tenure in various
Tribunals to which they are appointed after their retirement as in that event only, they would be
able to substantially improve upon the system. If an incumbent is to retire within 2 to 3 years of
his joining a Tribunal, then by the time he might have full acquaintance of its working he would
be retired, surely then he shall not be able to contribute much in advancing and improving upon
the working of the Tribunal.
For selection and appointment in Tribunals, a set procedure is prescribed where the time spent
in inviting applications upto the selection and then clearance from the Government at various
levels, is six months to a year. The past experience clearly shows that whenever eligibility for
appointment as Chairpersons and Members of Tribunals includes former or sitting Judges of
High Courts or the Supreme Court or Chief Justices of such Courts, there may not be more than
5 to 7 instances where the sitting Judges may have, during their tenure of service, opted to
become Chairpersons or Members of Tribunals. They seek consideration for such appointment
either on the eve of their retirement or after their retirement and if the period of selection and
appointment would take time, they might not serve for more than 2 to 2 years, where the
retirement age is 65 or 68 years.
It would manifest that by and large eligibility for appointment as Chairperson is of those who
are or have been Judges of the Supreme Court, Chief Justices of High Courts or Judges of High
Courts, but the retirement age in different Tribunals is different viz . 65 years, 67 years, 68 years
and in some it is 70 years. There is no uniform prescription of age of retirement. Judges and
Chief Justices of High Courts have the same retirement age of 62 years. It is too well known that
functions and duties carried out by the Judges at any level are the same. There has already been
a lot of debate as to whether the retirement age of the Supreme Court and High Court Judges
should be the same for the precise reason that the functions and duties carried out by them are
of the same nature and therefore, if the age of retirement of a Supreme Court Judge is 65 years,
the same should be so with regard to High Court Judges. If the Judges or Chief Justices of the
High Courts who retire at the age of 62 years, wish to take up assignment in Tribunals, which is
as mentioned above, taken by them after their retirement, their work period in Tribunals may be
2 to 3 years. Obviously, when Judges of the Supreme Court are appointed in any Tribunal, their
retirement age must, at least, be 70 years, their date of retirement as a Supreme Court Judge

being 65 years.
A view has been expressed that there should also be no difference in the retirement ages for
Chairpersons and Members of Tribunals, who come from the judicial system, i.e. High Courts or
the Supreme Court, and it should uniformly be 70 years.
It may also be mentioned that whereas Judges of High Court are so many, Chief Justices of High
Courts are a few. On number of occasions, appointments of Chairpersons had to wait for want of
availability of the Chief Justices or Judges of Supreme Court, but in so far as Judges of High
Courts are concerned, there has been no problem of that kind. It would thus be expedient and in
the fitness of things to have a uniform retirement age of Chairpersons of Tribunals as 70 years
and uniform age of retirement of its Members as 65 years.

WHO WILL JUDGE THE JUDGES ???

Justice V.R. Krishna Iyer

"Parliament should wake up and implement glasnost and perestroika in the
judiciary. In the name of independence, we cannot have judicial absolutism and

tyranny."
Most of the judges of the Supreme Court of India are those who were previously senior judges in
High Courts. There is no valid ground to sustain any discrimination among judges of the
Supreme Court and the High Courts in the matter of their age of retirement. There is justice in
eliminating the differential age for retirement of the robed brethren of the High Courts and the
Supreme Court. An anomaly is now being corrected.

what criteria and guidelines are being applied, what level of

scrutiny is done, before a Judge of the High Court is
elevated to the Supreme Court? At present the choices are
made seemingly according to the fancy of the judges who
constitute the Collegium.
But what criteria and guidelines are being applied, what level of scrutiny is done, before a Judge
of the High Court is elevated to the Supreme Court? At present the choices are made seemingly
according to the fancy of the judges who constitute the Collegium. There is no investigation into
the social philosophy, academic excellence, judicial performance or wealth and other
circumstances that should help reveal the class bias of those who are chosen.
This writer was 104th in rank as a Judge of the Kerala High Court but proved to be, according to
many senior advocates, one of the best who sat on the Supreme Court. The name was initially
rejected by Chief Justice S.M. Sikri for unknown reasons, but was regarded as good by Chief
Justice A.N. Ray, who made the selection. I was a member of the E.M.S. Namboodiripad-led
Ministry in Kerala in the 1950s. That was my "sin," but when I left the Bench, at a dinner Fali S.
Nariman and others with him passed a resolution that termed me a humane judge. The
resolution said: "Permit us to remind you that the Bar is the judge of judges and no judge can
avoid or escape the verdict of the Bar. We have summoned you this evening to hear our
unanimous declaratory verdict. Our verdict is a decree of affection and admiration. Let us also
declare, in these proceedings which are sui generic, that we are not only your judges but also
your judgment-debtors. No words of prosaic prose would be adequate to encompass your vitality
and versatility - not even if we drew upon and borrowed from the hoarded wealth of a vast
vocabulary you are known to possess. We shall therefore crave your indulgence to supplement
the record by those profounder feelings, which the language of the lexicon cannot communicate
and which are best conveyed by the language of the heart."
The senior advocates judged me by my performance. The President conferred on me the Padma

Vibhushan.
A Performance Commission is a necessary instrument to assess the worth of judges proposed for
elevation or for extension of tenure or for ad hoc appointment. The Collegium often blunders
and people suffer. There are no checks on its decisions - it seems to choose on the basis of fancy
affections and inadvertently even includes corrupt brothers from the High Court - and not on
the basis of a study of the candidate or with access to the public to know the facts, as in the U.S.,
or association with the Bar as in the U.K. The whole system needs reform and principles need to
be set out on a candidate's social philosophy. That is why privy purses were sought to be
protected, and the nationalisation of banks and a land reform law were struck down. A professor
of law even expressed the view that the Supreme Court is the consciencekeeper of the
proprietariat.
Arbitrary power will corrupt even the best of persons absolutely. A High Court Chief Justice was
complaining to me how a Chief Justice who had been on the job for only two months had been
picked for the Curzon Road wonder while he, with a clean record, was overlooked although he
had been serving for three-and-a-half years in the position in a High Court.
The Collegium is a judicial creation and the syndrome of the personality cult being beyond
accountability. It is bizarre in its performance - its selection process is secret and suspect and is
subject to no scrutiny. It excludes the executive and is in that respect unique in the world. Why
India should retain such a bedlam process, akin to a prefeudal power cult, is unclear. Parliament
must make a law regarding selection of judges, a code of conduct for judges and a Performance
Commission as has been done by many States in the U.S.
David Pannick, QC, has argued thus: "The Judicial Performance Commission could serve a
valuable function in these respects. Litigants should have the power to refer to the Commission
a complaint about the conduct of a judge. The Lord Chancellor should have such power, and
should be obliged to exercise it prior to dismissing a judge. (This would not prevent a judge
resigning to avoid publicity on the matter).

My appeal to parliamentarians is to wake up and implement

glasnost and perestroika in the judiciary. They control the
executive and strike down laws you make. Who controls
them? In the name of independence you cannot have judicial

absolutism and tyranny.

In May 1986, Lord Hailsham expressed support for the introduction of an independent
Complaints Board to investigate facts and make recommendations to the Lord Chancellor prior
to the dismissal of a Circuit Judge. He said, quite understandably, that he was troubled by the
absence of a fair procedure.
Judges with a class bias are misfits in a socialist republic. Some judges with a communal bend of
mind are on the Bench. The regionalism and communalism of this body called the Collegium has
brought down the greatness of India's fine judiciary.

An appeal
My appeal to parliamentarians is to wake up and implement glasnost and perestroika in the
judiciary. They control the executive and strike down laws you make. Who controls them? In the
name of independence you cannot have judicial absolutism and tyranny.
Franklin D. Roosevelt said it. Jawaharlal Nehru once told Parliament why India cannot allow the
Supreme Court to be the Third Chamber of the House. You are the people's voice and vox populi
vox dei and must express critical, nationalist correctional power. The three instrumentalities
must harmoniously work the Constitution's sense of justice, social, economic and political into a
reality. Remember that Roman adage: "Whatever touches all should be decided by all."
Even with respect of District Judges beyond 55 years of age and up to 58 years there are
guidelines in Kerala that provide for compulsory retirement in the public interest "if the High
Court on an assessment and evaluation of the records of such officer is of the view that such
officer is not fit and eligible to continue in service beyond the age of 50 years, 55 years and 58
years, as the case may be."
Why not, then, have similar provisions for High Court judges too? This is a democracy, not a
robed dictatorship with papallike infallibility vested in the Supreme Court for the purely
administrative functions of government. Corrupt antisocialist 'brethren' are dangerous without
accountability.
Let us not permit forensic fascism. By and large, India's judges are of a high standard. But a few
foul the Bench and shake the faith of the people in the justice system. On the Politics of the
judiciary, Professor Griffith of London University quoted Winston Churchill thus: "The courts

hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal
cases, and in civil cases between man and man, no doubt, they deserve and command the
respect and admiration of all classes of the community, but where class issues are involved, it is
impossible to pretend that the courts command the same degree of general confidence. On the
contrary, they do not, and a very large number of our population have been led to the opinion
that they are, unconsciously, no doubt, biased. (The Secretary of State for the Home Department
[Mr. W.S.Churchill] on the second reading of the Trade Unions (No.2) Bill, 1911 (26 H.C.
Deb.col. 1022).
The executive is weak and tends to treat this country as a dollar colony. The judiciary is Britishoriented and precedentboard. Parliament at least must be supreme, activist, sovereign,
democratic, socialist and, secular. If you fail, India dies. Never. You are the voice of swaraj, the
victory of a do-or-die struggle. Your Constituency is the People of India. Edmund Burke put it
thus: "We are not slaves of the robed brethren mechanically obedient to a curious invention
called collegium."

LEGAL SANCTITY BEHIND LAW TEACHING

Teaching is a noble profession, and more so if it is teaching of law. Law teachers produce legal
eagles who are the future politicians, judges, diplomats, lawyers of the country. These intellectuals
in turn with their sharp mind help the country to balance conflicting interest in various fora even
in international fora representing the country. They help the country to achieve its goal of socioeconomic-political justice for common people.
Now the question is what are the required qualifications to be appointed as a law teacher in
Universities Institutions and Colleges?
Strictly speaking education is in the concurrent list under Entry 25 of VII Schedule of the Indian
Constitution. Legal profession is under Entry 26 of the same list. Thus, both State and Centre have
law making power in this regard. The University Grants Commission Act, 1956 (hereinafter
mentioned as U.G.C. Act) and Advocates Act, 1961 are two central legislations which deal with
appointment of law teacher. They can be appointed in the following ways:1. Under Bar Council Rules enacted under Advocates Act, Part IV, under the heading Paper IV;
Public interest lawyering, Legal aid, and para-legal services; under 12 th point it is provided that
full time teachers of law including the principal of the college shall ordinarily be holders of a
Masters degree in law and where the holders of Masters degree in law are not available, persons
with teaching experience for a minimum period of 10 years in law may be considered. Part time
teachers other than those with LL.M. Degree shall have a minimum practice of 5 years at Bar.
2. Under U.G.C. (Minimum Qualifications Required for the Appointment and Career
Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations, 2009 which
is enacted under clauses (e) and (g) of sub-section (1) of section 26 and section 14 of the U.G.C.
Act, 1956. It provides that- NET/SLET 1 shall remain the minimum eligibility condition for
recruitment and appointment of lecturers in Universities/Colleges/Institutions. Provided,
however the candidates who are or have been awarded Ph.D. Degree in compliance of
abovementioned U.G.C. Regulations, 2009 shall be exempted from requirement of the minimum
eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or
equivalent positions in Universities/Colleges/ Institutions.
3. A probable way of appointment of adjunct teachers from the Bar and from among the retired
judges under The Advocates (Amendment) Bill, 2003 under provision of section 4 amending
section 7 of the principal Act.

Conclusion
There seems to be existence of diverse legal provisions for the required qualification of appointed
law teachers. The U.G.C. was established in the year 1956 by the U.G.C. Act, 1956 and its purpose
was to promote and coordinate University education, and for the determination and maintenance
of standard of teaching, examination, and research in Universities (Section 12 of the U.G.C. Act).
The Advocates Act, 1961 is a special legislation that provides under section 7, clause (h)- to
promote legal education and to lay down standard of such education in consultation with the
Universities in India imparting such education.
It is clear that special legislation prevails in specific matter. Thus, Indian Bar Council has the main
say in consultation with U.G.C. to lay down the required qualification of law teachers for
appointment in Colleges, Institutions and Universities. It can also be added that last intention of
legislature prevails (Here the Advocates Act, 1961). 2 Again in the U.G.C. pay related orders
regarding teachers having Ph.D. Degree has recognized it as a research degree for promotion of
quality in higher education. It gives the teachers three increments with one advance increment in
salary. So, the purpose of Ph.D. degree is only for research for career advancement. Thus, Law
teachers having LL.M. degree cannot be prevented from getting appointed in law colleges,
Universities, and government run or controlled institutions as it is the norm which is laid down by
the Advocates Act.

ABOLISH DEATH PENALITY

Justice Rajendra Sachar

The call of former President Dr. A.P.J. Abdul Kalam to the Government of India to hold
public consultation on the desirability of retaining death penalty has not received adequate
media attention. This is unfortunate because we can no longer play hide and seek game with
the straightforward question of abolition of death penalty.
Great leaders of the world have voiced their opposition to death
penalty. Gandhiji said; "I do regard death sentence as contrary to
ahimsa. Only He takes it who gives it."
Freedom fighter and Socialist leader Jayaprakash Narayan said, "To
my mind, it is ultimately a question of respect for life and human
approach to those who commit grievous hurts to others. Death
sentence is no remedy for such crimes."
Dr. Ambedkar during the Constituent Assembly debates said, "I think that having regard to
this fact, the proper thing for this country to do is to abolish the death sentence altogether."
The High Commissioner for Human Rights, Louise Arbour called the death penalty "...a
sanction that should have no place in any society that claims to value human rights and the
inviolability of the person".
President Eduardo Frei of Chile said; "I cannot believe that to defend life and punish the
person that kills, the State should in its turn kill. The death penalty is as inhuman as the crime
which motivates it."
Apart from human rights there is pragmatic and practical wisdom which dictates against
retention of death penalty. Our people are usually talked into silence by the pro capital
punishment lobby that it is only in "rarest of rare cases" as decided by the Supreme Court that
death penalty is given, suggesting as if since the law propounded this restriction, number of
executions have been considerably reduced. Unfortunately facts belie this, ironically, after the
rarest of rare doctrine was propounded in 1980, the Supreme Court confirmed death penalty
in 40 per cent. of cases in the period 1980- 90 whereas it was 37.7% in 1970-80. For the High

Courts the figures confirming death sentence rose from 59% in 1970-80 to 65% during 198090.
The vociferous opposition to abolition of death penalty springs from myth that it can lead to
increase of murders. Facts show otherwise. Thus, in 1945-50 the State of Travancore, which
had no death penalty, had 962 murders whereas during 1950-55, when death sentence was
introduced, there were 967 murders.
In Canada, after the abolition of death penalty in 1976, the homicide rate has declined. In
2000, there were 542 homicides in Canada - 16 less than in 1998 and 159 less than in 1975
(one year prior to the abolition of capital punishment).
A survey conducted by the United Nations in 1988 concluded that research has failed to
provide any evidence that executions have a greater deterrent effect than life imprisonment.
In 1997, the Attorney General for Massachusetts (USA) said, "There is not a shred of credible
evidence that the death penalty lowers the murder rate. In fact, without the death penalty the
murder rate in Massachusetts is about half the national average."
A survey released in September 2000 by The New York Times found that during the last 20
years the homicide rate in the States with death penalty has been 48 per cent. to 101 per cent.
higher than in the States without death penalty.
The death penalty has been abolished since 1965 in U.K. The membership of European Union
is dependent on having no death penalty. This has been done obviously in the confidence that
murders do not get automatically reduced by retaining death penalty.
The South African Constitutional Court unanimously ruled in 1995 that the death penalty was
unconstitutional as it constitutes "cruel, inhuman or degrading treatment or punishment".
The grievous danger of irreversibility and innocents being executed is no panic reaction
considering that 500 people have been executed in the United States since the Supreme Court
reinstated the death penalty in 1976.
Since 1973, 123 prisoners have been released in the USA after evidence emerged of their
innocence of the crimes for which they were sentenced to death.
Baldus Report prepared in the United States found that if a homicide victim was white, his or

her killer was four times more likely to get the death sentence than if the victim were black.
The same disadvantage will occur in India in case of Dalit and the Poor.
This very question was asked of the Home Ministry in 2005 by President Dr. A.P.J. Kalam why all those on death row were the poorest of the poor, remains well known but officially
unacknowledged.
So far 133 countries, from all regions of the world, have abolished the death penalty in law or
in practice and only 25 countries carried out executions in 2006, a recorded 1591 executions
compared to 2105 in 2005.
The community of States has adopted four international treaties providing for the abolition of
the death penalty. The Second Optional Protocol to the International Covenant on Civil and
Political Rights and the Protocol to the American Convention on Human Rights provide for
the total abolition of the death penalty but allow States wishing to do so to retain the death
penalty in wartime as an exception.
"There are no exact figures of executions having taken place. However, in 1989, the Attorney
General for India informed the Supreme Court that between 1974 and 1978, 29 persons were
executed. The Government announced in Parliament that 35 executions had been carried out
in the three years between 1982 and 1985. And in 1997 the Attorney General for India
informed the UN Human Rights Committee that between 1991 and 1995, 17 executions had
been carried out.
On 29 th November 2006, in a response to a question in the Rajya Sabha (Upper House) of
the Parliament, the Minister of Home Affairs reported that at present mercy petitions of 44
persons were pending before the President of India, a number of which had been pending
since 1998 and 1999." ( vide Lethal Lottery Publication by Amnesty International India and
PUCL - Tamil Nadu and Puducherry - 2008)
The last execution took place on August, 2004. Even in a judgment in 2006 in Aloke Nath the
Supreme Court candidly admitted that the so called rarest of rare case for imposing capital
punishment was too vague and stated "No sentencing policy in clear terms has been evolved
by the Supreme Court". Is that not enough reason for abolishing the death penalty because
otherwise vagaries and fancies will determine the Sentencing.
World opinion is now almost wholly veering round to the abolition of death penalty. Is it not

embarrassingly shameful that our land of Lord Gautam Buddha, Lord Mahavira and the
apostle of Non-violence, Gandhi should present such a negative face against Human Rights
which embody Right to Life.