Here is my response to a blog post by Abhinav Sekhri titled 'Girish Kumar Suneja and the Exclusion of the High Court’s Jurisdiction in Anti-Corruption Cases' at https://indconlawphil.wordpress.com/2016/10/30/guest-post-girish-kumar-suneja-and-the-exclusion-of-the-high-courts-jurisdiction-in-anti-corruption-cases/
Abhinav Sekhri raises some very important issues. The criminal justice system in this country is in serious need of reform, yet the Supreme Court has not really pushed for a reform process. Instead, the Indian judiciary has in select cases involving politically connected or high value accused, bypassed the criminal justice rules and procedures applicable to all, and has created specialized investigation, prosecution and trial processes (even special courts) for such "sensitive" cases on a case to case basis. This has been justified by the courts as being necessary because the investigation, prosecution and trial stages of our criminal justice system can be easily compromised by the powerful and influential.
Yet, the specialized processes created not only violate procedural and substantive rights of the accused and the complainants but may be even more prone to being compromised.
Also, these kinds of special rules created for individual cases cause further systemic harm to the criminal justice system and act as an impediment to the initiation of a real reform process.
This special treatment of the influential is happening not only in "sensitive" criminal investigations and trials. The black money, Sahara and the BCCI cases in the Supreme Court are also examples of a similar special handling outside the prescribed and applicable regulatory processes and institutions.
In a just and fair criminal justice system, there must be a separation between the investigating and the prosecuting agencies and the judiciary. This principle is being completely demolished by such special handling where the Supreme Court is involving itself in monitoring investigations, in perusing and approving charge-sheets, in monitoring trials etc. How then can the Supreme Court hear appeals from such cases without bias?
Read this news report on the sorry state of our criminal justice system – “Cops openly flout forensic norms, delay of over 10 days in sending samples to labs” at http://indiatoday.intoday.in/story/cops-flout-forensic-norms-samples-labs-police-station-delhi-state-legal-services-authority/1/798686.html?google_editors_picks=true
Sunday, October 30, 2016
Friday, October 28, 2016
Can the Supreme Court of India stop using misogynistic & derogatory terms like concubine and "keep" for women who are in relationships as mistresses, lovers, partners, girlfriends, etc.
Indra Sarma vs V.K.V.Sarma SC 2013 is a terrible judgment replete with old-fashioned misogyny. A single woman entered into a live-in sexual relationship with a married man and they lived together for 18 years with her giving up her job and handling the household. The terms in which the judgment describes the woman and her action in entering into this relationship is judgmental and demeaning.
Here is an extract:
"The appellant, admittedly, entered into a live-in relationship with the respondent knowing that he was a married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [(1928) 27 LW 678 : AIR 1927 PC 185] , that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasadv. Director of Consolidation [(1978) 3 SCC 527] and Tulsa v. Durghatiya [(2008) 4 SCC 520] .
We may note that, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. The long- standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that the DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.
Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage. [Paras 57, 59 & 64]”
This is such a regressive statement. Why does the Supreme Court still use the archaic and demeaning term concubine? We have had “concubines” as members of Parliament. There is so much that is wrong with this statement.
How does the Court presume monogamy in other live-in or married relationships?
Any long-term live-in relationship between a man and a woman in a sexual relationship should in my opinion fall within the purview of the Domestic Violence Act for certain purposes but perhaps not for all.
Our Supreme Court Judges should at least read the wikipedia entry on “Concubinage”at https://en.wikipedia.org/wiki/Concubinage so that they do not use this term again.
“While various forms of long-term sexual relationships and co-habitation short of marriage have become increasingly common in the Western world, these are generally not described as concubinage. The terms concubinage and concubine are used today primarily when referring to non-marital partnerships of earlier eras. In modern usage, a non-marital domestic relationship is commonly referred to as co-habitation (or similar terms), and the woman in such a relationship is generally referred to as a girlfriend, lover or (life) partner.”
The word concubine essentially used to mean a sexual slave or a socially and sexually subservient woman living with legal sanction in a man’s household shared with his legally wedded wife/ wives and occupying a lower status than the wives, It is not even an Indian concept. Why would our judges use this term?
Note also how the judgment solely blames the "other" woman (but not the man) for an 18 year old affair with a married man in para 24:
"Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..”
J. Katju in D.Velusamy vs D.Patchaiammal on 21 October, 2010
“If a man has a `keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'”
Why was this not expunged? The Supreme Court using such derogatory language to describe the circumstances of many women in exploitative relationships is unfortunate.
Here is an extract:
"The appellant, admittedly, entered into a live-in relationship with the respondent knowing that he was a married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [(1928) 27 LW 678 : AIR 1927 PC 185] , that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasadv. Director of Consolidation [(1978) 3 SCC 527] and Tulsa v. Durghatiya [(2008) 4 SCC 520] .
We may note that, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. The long- standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that the DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.
Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage. [Paras 57, 59 & 64]”
This is such a regressive statement. Why does the Supreme Court still use the archaic and demeaning term concubine? We have had “concubines” as members of Parliament. There is so much that is wrong with this statement.
How does the Court presume monogamy in other live-in or married relationships?
Any long-term live-in relationship between a man and a woman in a sexual relationship should in my opinion fall within the purview of the Domestic Violence Act for certain purposes but perhaps not for all.
Our Supreme Court Judges should at least read the wikipedia entry on “Concubinage”at https://en.wikipedia.org/wiki/Concubinage so that they do not use this term again.
“While various forms of long-term sexual relationships and co-habitation short of marriage have become increasingly common in the Western world, these are generally not described as concubinage. The terms concubinage and concubine are used today primarily when referring to non-marital partnerships of earlier eras. In modern usage, a non-marital domestic relationship is commonly referred to as co-habitation (or similar terms), and the woman in such a relationship is generally referred to as a girlfriend, lover or (life) partner.”
The word concubine essentially used to mean a sexual slave or a socially and sexually subservient woman living with legal sanction in a man’s household shared with his legally wedded wife/ wives and occupying a lower status than the wives, It is not even an Indian concept. Why would our judges use this term?
Note also how the judgment solely blames the "other" woman (but not the man) for an 18 year old affair with a married man in para 24:
"Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..”
J. Katju in D.Velusamy vs D.Patchaiammal on 21 October, 2010
“If a man has a `keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'”
Why was this not expunged? The Supreme Court using such derogatory language to describe the circumstances of many women in exploitative relationships is unfortunate.
Why the Supreme Court of India cannot on its own criminalize marital rape
Even though I support the legislative criminalization of marital rape in India, I think it is possible to persuasively argue in favor of the legal principle that while the Judiciary under the Indian Constitution can strike down a law that creates a criminal offence on the ground of arbitrariness, it cannot add language to a statute that would result in creating an offence or in criminalizing acts or acts by an exempted (by the legislature) category of persons and that the latter does not fall within the powers and jurisdiction of the Supreme Court.
Criminalizing conduct is a legislative function and a Court cannot usurp this function.
In case a criminal law offends Article 14 by arbitrarily exempting a category of persons, then the Court can strike down the entire law compelling the legislature to re-enact the law. This would of course require a well-functioning legislature, which India lacks.
See
“As stated above, the Supreme Court held as far back as 1812 in United States v. Hudson and Goodwin, and several times since then, that there are no federal common law offenses and that before someone can be punished as a criminal, his conduct must “plainly and unmistakably” run afoul of a federal criminal statute.
As the court has also stated, “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures, and not courts, should define criminal activity.”
The court deviated from this sound reasoning in Dirks, a move that has seemingly been tolerated by Congress. The court should not compound its error by going one step further, even if it seems like a small step. If Congress wishes to criminalize insider trading or expand the scope of current criminal liability, it can and should do so.”
From http://dailysignal.com/2016/09/30/supreme-court-should-make-decision-that-upholds-that-congress-not-agencies-should-make-criminal-law/
And see this interesting discussion on the judicial criminalization of marital rape in Nepal at http://www.nepalkanoon.net/2013/08/08/concept-of-criminalization-penalization-and-principle-of-legality-in-our-judicial-discourse-2/
Criminalizing conduct is a legislative function and a Court cannot usurp this function.
In case a criminal law offends Article 14 by arbitrarily exempting a category of persons, then the Court can strike down the entire law compelling the legislature to re-enact the law. This would of course require a well-functioning legislature, which India lacks.
See
“As stated above, the Supreme Court held as far back as 1812 in United States v. Hudson and Goodwin, and several times since then, that there are no federal common law offenses and that before someone can be punished as a criminal, his conduct must “plainly and unmistakably” run afoul of a federal criminal statute.
As the court has also stated, “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures, and not courts, should define criminal activity.”
The court deviated from this sound reasoning in Dirks, a move that has seemingly been tolerated by Congress. The court should not compound its error by going one step further, even if it seems like a small step. If Congress wishes to criminalize insider trading or expand the scope of current criminal liability, it can and should do so.”
From http://dailysignal.com/2016/09/30/supreme-court-should-make-decision-that-upholds-that-congress-not-agencies-should-make-criminal-law/
And see this interesting discussion on the judicial criminalization of marital rape in Nepal at http://www.nepalkanoon.net/2013/08/08/concept-of-criminalization-penalization-and-principle-of-legality-in-our-judicial-discourse-2/
Monday, October 10, 2016
Personal laws cannot be allowed to violate the constitutionally guaranteed fundamental rights
- Seema Sapra
In my opinion, personal laws have to be subject to the guaranteed fundamental rights in part III of the Constitution and a larger Supreme Court Bench needs to correct course on this issue. How can personal law be exempt from scrutiny for violating fundamental rights? The triple talaq, Sabarimala and Haji Ali cases presently before the Supreme Court of India present the perfect opportunity for the Supreme Court to declare that fundamental rights are supreme and personal laws that violate fundamental rights of citizens will not be enforced by the Indian State. But the Center’s submission before the Supreme Court of India that triple talaq violates the equality and dignity of women and is an undesirable practice is cursory and not very creative. The Court should in its judgment discuss in detail exactly how and why triple talaq violates the fundamental rights of Muslim women.
Narasu Appa Mali is only a Bombay High Court decision so it is not precedent for the Supreme Court.
The Supreme Court in Sant Ram versus Labh Singh did not decide the issue as to whether or not personal laws are subject to Part III.
In Shri Krishna Singh versus Mathura Ahir, this issue is cursorily mentioned and disposed off in a single paragraph which states:
“It would be convenient, at the outset, to deal with the view expressed by the High Court that the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III of the Constitution. In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he could not introduce his own concepts of modern times but should have enforced the law as derived from recognized and authoritative sources of Hindu law, i.e., Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or is modified or abrogated by statute.”
The Supreme Court in Shri Krishna Singh does not even discuss this crucial constitutional issue, no reasons are given, and it simply states (incorrectly in my view) that Part III of the Constitution does not affect personal laws.
So it would appear as if the issue as to whether or not personal laws are subject to scrutiny under all of Part III for violation of fundamental rights is not in any way settled law and the issue is still open for the Supreme Court to decide. I might be missing some relevant judgments, but in any case, the only correct thing would be for a larger Supreme Court Bench to unambiguously clarify that all personal laws are subject to the constitutionally guaranteed fundamental rights in Part III.
Perhaps this was too sensitive a topic in the 1950s and 1960s and our Judges then were not progressive enough, but such a declaration will not be controversial today. Most importantly the language and spirit of Part III makes this the only correct position in law. This will also be in line with modern conceptions of human rights. Religious scriptures written and religious practices developed centuries ago when there was no concept of basic human rights, and when it was culturally appropriate to treat so-called lower castes and women as lesser human beings, cannot be allowed to be used to continue to violate the fundamental human rights guaranteed by Part III of the Constitution of India merely by calling them personal laws.
In my opinion, personal laws have to be subject to the guaranteed fundamental rights in part III of the Constitution and a larger Supreme Court Bench needs to correct course on this issue. How can personal law be exempt from scrutiny for violating fundamental rights? The triple talaq, Sabarimala and Haji Ali cases presently before the Supreme Court of India present the perfect opportunity for the Supreme Court to declare that fundamental rights are supreme and personal laws that violate fundamental rights of citizens will not be enforced by the Indian State. But the Center’s submission before the Supreme Court of India that triple talaq violates the equality and dignity of women and is an undesirable practice is cursory and not very creative. The Court should in its judgment discuss in detail exactly how and why triple talaq violates the fundamental rights of Muslim women.
Narasu Appa Mali is only a Bombay High Court decision so it is not precedent for the Supreme Court.
The Supreme Court in Sant Ram versus Labh Singh did not decide the issue as to whether or not personal laws are subject to Part III.
In Shri Krishna Singh versus Mathura Ahir, this issue is cursorily mentioned and disposed off in a single paragraph which states:
“It would be convenient, at the outset, to deal with the view expressed by the High Court that the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III of the Constitution. In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he could not introduce his own concepts of modern times but should have enforced the law as derived from recognized and authoritative sources of Hindu law, i.e., Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or is modified or abrogated by statute.”
The Supreme Court in Shri Krishna Singh does not even discuss this crucial constitutional issue, no reasons are given, and it simply states (incorrectly in my view) that Part III of the Constitution does not affect personal laws.
So it would appear as if the issue as to whether or not personal laws are subject to scrutiny under all of Part III for violation of fundamental rights is not in any way settled law and the issue is still open for the Supreme Court to decide. I might be missing some relevant judgments, but in any case, the only correct thing would be for a larger Supreme Court Bench to unambiguously clarify that all personal laws are subject to the constitutionally guaranteed fundamental rights in Part III.
Perhaps this was too sensitive a topic in the 1950s and 1960s and our Judges then were not progressive enough, but such a declaration will not be controversial today. Most importantly the language and spirit of Part III makes this the only correct position in law. This will also be in line with modern conceptions of human rights. Religious scriptures written and religious practices developed centuries ago when there was no concept of basic human rights, and when it was culturally appropriate to treat so-called lower castes and women as lesser human beings, cannot be allowed to be used to continue to violate the fundamental human rights guaranteed by Part III of the Constitution of India merely by calling them personal laws.
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