Without leaving space for even an iota of doubt, the Kerala High Court in a realistic, robust, rational, remarkable and refreshing judgment titled Ramla vs Abdul Rahuf in Mat. Appeal No. 431 of 2021 against the order/judgment in OP 41/2019 of Family Court, Thalassery that was delivered finally on December 1, 2021 has pragmatically ruled that the refusal of a Muslim man to perform his marital obligations with his first wife after a second marriage is a good ground for divorce. It must be mentioned here that a Division Bench of Hon’ble Mr Justice A Muhamed Mustaque and Hon’ble Mrs Justice Sophy Thomas observed in its commendable order that, “The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage. In such circumstances, we have no hesitation to hold that the appellant-wife is entitled to get a decree of divorce on that ground also.” It must be apprised here that the Bench was adjudicating upon an appeal that was filed by a Muslim woman aggrieved by an order of a Family Court which denied her a decree of divorce.
To start with, this learned, laudable, latest and landmark judgment authored by Hon’ble Mr Justice A Muhamed Mustaque for a Bench of Kerala High Court comprising of himself and Hon’ble Mrs Justice Sophy Thomas sets the ball rolling by first and foremost putting forth in para 1 that, “The appellant is the petitioner in O.P.No.41/2019 on the file of the Family Court, Thalassery. The above petition was filed on enumerated grounds of the Dissolution of Muslim Marriages Act, 1939, (for short, the ‘Act’) for divorce. The parties are Muslims and they married in accordance with the personal law applicable to them on 04.08.1991. In the petition for divorce, the grounds under the specific head of Section 2(ii), 2(iv) and 2(viii) of the Act alone were referred. However, the pleadings in the petition indicate the ground for divorce under Section 2(viii) (f) as well.”
Simply put, the Bench then plainly states in para 2 that, “The Family Court dismissed the petition as the appellant wife failed to make out a case under Sections 2(ii), 2(iv) and 2(viii) (f) of the Act.”
While elaborating on the facts briefly, the Bench then seeks in para 3 that, “The brief facts are as follows:
The parties married on 04.08.1991. In the wedlock, three children were born. The respondent was abroad. He contracted another marriage with a lady namely Hajira during the subsistence of marriage with the appellant. That has been specifically averred in the petition and not denied in the written statement. According to the respondent, he contracted second marriage as the appellant refused to have a sexual relationship with him.”
As we see, the Bench then specifies in para 4 that, “We will refer first to the grounds urged in the petition for divorce. Section 2(ii) states as follows: “that the husband has neglected or has failed to provide for her maintenance for a period of two years.”
SECTION 2(IV) STATES AS FOLLOWS:
“that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.”
Section 2(viii) (a) and (f) states as follows:
“that the husband treats her with cruelty, that is to say- (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.””
To put things in perspective, the Bench then envisages in para 4 that, “The Family Court formulated the points for consideration on three different heads except with reference to sub clause (f). It has come out in the evidence that the respondent used to provide maintenance. Ext.B1 series clearly indicates that the maintenance provided by him. The statutory provision clearly states that it is only on failure to provide maintenance for a continuous period of two years, the ground for divorce is attracted on that ground. The appellant has a case that the above amount was in fact the money collected from abroad due to the intervention of local politicians to meet the marriage expenses of the daughter and not the maintenance provided. There was no evidence to that effect. Ext.B1 series would show that the amounts have been credited in the account on different occasions during the years 2017 and 2018. We need not interfere with the impugned order to the extent rejecting the claim for divorce on that ground.”
Significantly, the Bench then enunciates in para 5 that, “Section 2(iv) refers that the husband has failed to perform marital obligations for a period of three years. The appellant had stated in the petition that from 21.02.2014 onwards, the respondent husband stopped visiting her. This fact has not been denied in the written statement. On the other hand, according to the respondent, he was forced to marry another lady for the reason that the appellant failed to co-operate with him on his physical needs. We are not persuaded to believe the version of the respondent in this regard. Three children were born in the wedlock. Two of them got married. Absolutely, there was no evidence to show that the respondent was willing to cohabit with the appellant. That means, he failed to perform the marital obligations. The petition for divorce was filed in the year 2019. They were living separately at least for a period of five years prior to filing this petition. In such circumstances, we are of the view that the appellant made out a ground for divorce under Section 2(iv) of the Act. We also note that the Family Court had not entered into any finding on this point while discussing the point Nos.2 and 3. The Family Court carried on an assumption that providing maintenance would be sufficient to prove that the husband performed marital obligations. This finding, according to us, is erroneous and cannot stand the scrutiny of the law.”
It is worth noting that the Bench then succinctly observes in para 6 that, “The next ground is under Section 2(viii) (a) of the Act. This ground refers to the physical and mental cruelty of the wife. We noted that the parties are living separately for more than five years before the institution of the petition. That would show that there was no cohabitation. In such circumstances, we will not be able to justify the case put forward by the appellant-wife in regard to the physical or mental cruelty in the context of Section 2(viii)(a) of the Act.”
Finally and far most significantly, the Bench then goes on to remarkably state in the concluding para 7 what forms the cornerstone of this brief, brilliant, bold and balanced judgment that, “The next ground is under Section 2(viii) (f) of the Act. Though in the petition, this provision has not been specifically mentioned, we are of the view that mere omission to quote a statutory provision will not disentitle the claim for divorce on that ground if there are sufficient averments in the petition. There are averments in the petition regarding contracting second marriage by husband with Hajira. That fact has not been denied. If there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran. Staying away from the first wife for five years itself would show that he had not treated them equally. The respondent has no case that he lived with the appellant after 2014. The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage. In such circumstances, we have no hesitation to hold that the appellant-wife is entitled to get a decree of divorce on that ground also. We, therefore, allow this appeal and set aside the impugned judgment. We grant divorce under Sections 2(iv) and 2(viii) (f) of the Act. We, accordingly, dissolve the marriage between the appellant and the respondent solemnised on 04.08.1991. No order as to costs.”
In conclusion, the Division Bench of Kerala High Court comprising of Justice Hon’ble Mr Justice A Muhamed Mustaque and Hon’ble Mrs Justice Sophy Thomas has in its composed, cogent, convincing, courageous and commendable judgment left no stone unturned to make it unequivocally clear that the unequal treatment of wives is certainly a very valid ground for divorce for Muslim women. It cannot be also lost on us that the Bench also in this notable judgment specifically pointed out without mincing any words whatsoever that staying away from the first wife for five years itself and refusal of a Muslim man to perform his marital obligations with his first wife after a second marriage would show that he had not treated them equally. So the first wife certainly had a bona fide good ground to get divorce and the same was accordingly granted by the Kerala High Court in this leading case! The appeal of the first wife was thus allowed and the Trial Court decision was thus accordingly set aside!
There are averments in the petition regarding contracting second marriage by husband with Hajira. That fact has not been denied. If there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran. Staying away from the first wife for five years itself would show that he had not treated them equally. The respondent has no case that he lived with the appellant after 2014. The refusal to cohabit and perform the marital obligations with the previous wife is tantamount to the violation of the Quranic injunctions which commands equal treatment of the wives if the husband contracts more than one marriage.
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UNIFORM CIVIL CODE IS A MUCH NEEDED LEGISLATION
The Uniform Civil Code means a uniform personal law for all citizens of the country. This code will replace the existing religious personal laws in India and have a uniform law that will cater to all the citizens, irrespective of their religion. This has been envisaged by the makers of our Constitution under Article 44. But it has been strongly opposed because it is considered violative of Article 25 of the Constitution since it does not let people enjoy the personal laws. The article 44 of the Directive principle state policy state that it is the duty of the state to secure a Uniform Civil Code for the citizens throughout the country. One country, one rule is another name for it. The main objective behind implementation of a uniform Civil code in India is that it sets a law to govern the personal matters of all the citizens irrespective of religion. Personal laws are different from public laws as they cover marriage, inheritance, adoption, divorce and maintenance and the India practices a model of secularism in which it has made special provisions for people of different religions and the main idea behind Uniform Civil Code is to treat everyone equally irrespective of religion. Now the problem exists in the fact that there are differences and discrepancies within the personal laws. There is no uniformity. Also, there has been instances where the personal laws denied the rights of women or did not even give them rights. To counter these shortcomings, the Uniform Civil Code can be enacted. In India the main cause for communal conflicts among the common people are the personal laws The Uniform Civil Code is a uniform method or a standardized law which governs citizens as a uniform law. One problem with an absence of having UCC throughout India is that it may go against the basic principles of equality that is one of the fundamental rights of the constitution because by providing personal laws to a certain section of people we are determining the credibility of the secular ethos in the country.
As a matter of fact, it is known that personal laws of communities Gender Injustice is inbuilt. This is a result of the social and economic conditions under which these have been evolved and this is one of the Important reasons that why there is a need to introduce reforms in personal laws or bring about UCC to not only ensure equality between men and women but also in order to bring about gender justice. A uniform civil code if implemented shall lay the grounds for women to overcome various social evils that exist in the society such as the bigamy system and the dowry system which make women feel inferior and degraded. In order to bring uniformity, the courts have often said in their judgements that the government should move towards a UCC. The judgement in the Shah Bano case (1985) is well known where The Supreme Court’s decision in this case is regarded as a major milestone in highlighting the importance of UCC. The case concerned women seeking maintenance after being divorced under triple talaq. The women won in all lower courts, so the husband filed an appeal to the Supreme Court, which was dismissed because the Supreme Court ruled in favour of the wife as per the All India Criminal Code’s “maintenance of wives, children, and parents” provision (Section 125). In addition, the court recommended that a uniform civil code be established. However, widespread agitation was carried out due to religious sentiments attached to the law, and as an outcome, the then-government, under pressure, passed the Muslim Women’s (Right to Protection on Divorce) Act (MWA) in 1986, rendering Section 125 of the Criminal Procedure Code inapplicable to Muslim women. As a result, the court was correct in emphasising the importance of UCC for having a common basis for jurisdiction. Another case was the Sarla Mudgal Case (1995), which dealt with issue of bigamy and conflict between the personal laws existing on matters of marriage. In this case, relating to the issue for solemnizing of a second marriage by a Hindu spouse after converting to Islam. The court determined that a Hindu marriage solemnised in accordance with Hindu law may be dissolved only on one of the reasons listed in the Hindu Marriage Act 1955. Conversion to Islam and subsequent marriage would not automatically dissolve the Hindu marriage under the act, and therefore, a second marriage solemnised after conversion to Islam would constitute an offence under Section 494 of the Indian Penal Code (IPC). This made a need of UCC as it creates an ambiguous policy of marriage due to discrepancies between religious laws. By arguing that practices such as triple talaq and polygamy impact adversely the right of a woman to a life of dignity, the Centre has raised the question whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights. While the criminal laws in India are uniform and applicable equally on all, no matter what their religious beliefs are, the civil laws are influenced by faith. Swayed by religious texts, the personal laws which come into effect in civil cases have always been implemented according to constitutional norms. The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts. In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations. In Islam, personal laws apply to matters relating to inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from Quran. Some more judicial decisions that can be taken into account are:- John Vallamattom Case (The case in which Section 118 of the Indian Succession Act was declared unconstitutional after John Vallamattom challenged it on the grounds that it discriminated against Christians by imposing unreasonable restrictions on their willed gifts for religious or charitable purposes. This demonstrated the inconsistencies under religious laws), Daniel Latifi Case (This case demonstrates how universally applicable law should prevail over unjust religious laws. In this case, Muslim Women’s Act (MWA) was challenged for violation of Articles 14,15 & 21 of the Constitution. The primary point of contention was the amount paid throughout the iddat period. The Supreme Court upheld the act’s constitutionality but interpreted it in accordance with Section 125 of the CrPC, holding that the amount received by a wife during the iddat period should be sufficient to support her during the iddat period as well as for the remainder of her life or until she remarries).
The UCC aims to provide protection to vulnerable sections as envisaged by Ambedkar including women and religious minorities, while also promoting nationalistic fervour through unity. When enacted the code will work to simplify laws that are segregated at present on the basis of religious beliefs like the Hindu code bill, Shariat law, and others. The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all. The same civil law will then be applicable to all citizens irrespective of their faith. India faces a serious problem with personal laws due to their bias toward the upper-class patriarchal conceptions of society in all religions. As may be seen, panchayats continue to issue verdicts that violate our constitution, and no action is taken. Human rights are abused throughout our country through honour killings and female foeticide. By legalising personal laws, we’ve established a parallel court system based on thousands of ancient values. By eliminating all loopholes, the universal civil code would tip the balance in favour of society. While Muslims are permitted to marry many times in India, a Hindu or a Christian will face prosecution for doing the same. Similarly, there are significant disparities between many religious-related regulations. Equal laws in the areas of marriage, inheritance, family, and land are required. Here UCC serves as a saviour, bringing everything under one roof and assisting not only in ensuring greater equity but also in streamlining the legislative and judicial processes. The concept of a uniform civil code will also aid in reducing vote bank politics, which is practised by most political parties during every election. If all religions are subject to the same laws, there will be no room for politicising issues of discrimination, concessions, or special privileges enjoyed by a particular community on the basis of their religious personal laws. A Uniform Civil Code has become the hallmark of a modern progressive nation’s legal structure. It demonstrates the nation’s transition away from caste and religious politics. While our economic growth has been the fastest in the world, our social development has been non-existent. Indeed, it is possible to argue that we have degraded socially and culturally to the point where we are neither modern nor traditional. A unified civil code will aid in the advancement of society and help India achieve its goal of becoming a developed nation. As we all know, secularism is a critical aspect of our nation, as reflected in our constitution’s preamble. At the moment, we practise selective secularism, which means that we are secular in some areas but not in others. A Uniform Civil Code requires all citizens of India to adhere to the same set of laws, regardless of whether they follow Hinduism, Islam, Christianity or Sikhism. A Uniform Civil Code does not mean that people’s freedom of religion will be restricted; it simply means that everyone will be treated equally. That is authentic secularism. Additionally, as previously stated, in modern classification laws and religion are two distinct concepts, and thus entwining them will result in social disruption and inequality.
India is a country of diverse culture where the beliefs of the people are too vehement but with the right communication and education to all the religious groups, the implementation can take place efficiently and effectively. Special Marriage Act which has been enacted is hardly seen into practice since it is a mere option and not requisite, which further shows the importance of Uniform Civil Code. Thereafter, the culture of spreading inadequate information shall be dealt with regardless as it has become a trend in the country and could result to hindering proper implementation of the requisite laws like Uniform Civil Code. Uniform Civil Code is not a step to make India a Hindu State rather to bring about unity between different religions along with application of same provisions for all, leading to simplification of law and order for better results in the nation. Fear of the certain section of society who are subjected to the special rights, shall be addressed since such rights will have no impact or interference by enactment of the Uniform Civil Code, which shall be ensured to the society as this is one of their Fundamental Rights as under Article 15 of the Indian Constitution. Right to Religion under Article 25 of the Indian Constitution is not specifically for men but also females of the nation. The lack of political will to implement Uniform Civil Code is quite evident, it is important for the government to take strong steps rather than fearing the sensitive issues, keeping the prosperity of the nation and its people in mind such step shall be encouraged. Eminent Jurist from all the religion shall form a committee to bring together the Uniform Civil Code so that all the religions are kept in mind while drafting the Uniform Civil Code without any personal biases towards a particular religion. Uniform Civil Code is surely a sensitive issue but with the right information and communication it can bring about an ever lasting change in the nation along with the right growth and development. The developed countries like USA, Canada, Australia, UK, Russia etc. have adopted the Uniform Civil Code as a developing law for the betterment of their society, culture, religion and to remove discrimination amongst the communities. Uniform Civil Code is the only reason for these countries to achieve their higher goals. USA have a secular law that applied equally and uniformly upon all the citizens of their state. The USA have English common law, which makes every person equal and remove the discrimination between the majority and minorities. Even people from other countries also have to follow common law of their country. Because of uniform civil code USA has achieved its goals and is successful in developing in all aspects which include economically, socially and religiously as well. In India Goa is the only state in India having Uniform Civil Code as special marriage act 1954 is applicable all over the Goa. This was introduced by Portuguese in 1870 as goa family law but after the liberation of Goa this law was retained and became special marriage act in 1954. This marriage acts provides a civil marriage of two person of different sex irrespective of their religion. This law prevail in Indian to have their marriage outside the customs of their personal law. This law is still followed in Goa as it punishes polygamy which means having more than one spouse at a time. Hence no person can have more than one marriage at a time. Also this act states that at the time of divorce both husband and wife will be treated equally with regards to property and will not be discriminated. However, this act discriminates on a ground that a Hindu male can have more than one spouse living if the earlier wife fails to deliver a boy till she attain the age of 30 years, this shows that even this civil act is discriminatory.
Our country has diverse culture, tradition, religion to make them more progressive then, we need to remove discrimination on basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect. UCC involves secularism, it is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation growing traditionally as well as economically. Some communities think that Uniform Civil Code is ban for them as it is against their religion. Nevertheless it is modernization of their religious law which will boost up their equality and will make them rich traditionally and socially. According to Article 14 of the Indian constitution, every single citizen is equal in the eyes of law and court. But in India, we have personal laws based on the particular religion. For example, a Muslim can marry multiple times and he will not be prosecuted but if there is any Hindu, Christian or Sikh then he will be prosecuted by the court which is against the saying of Article 14 of Indian constitution. This is not equality in real means. If we want equality then there should be the same laws related to marriage, adoption, divorce, inheritance, family, land etc. Then the exact definition of equality will be defined. In some aspects personal laws are violation of article 14 of the constitution of India. Taking into account as stated by The Supreme Court judge-Justice Y.V. Chandrachud, rightly remarked, a common civil code will also help in strengthening the cause of national integration by removing conflicting interests. So to address the concerned controversy over UCC we would like to conclude by stating that the manner in which UCC was dealt with by the British in 1840, the issue is discussed with same apprehensions even 200 years later. The Shariat Application Act of 1937 protects the application of different laws as far as the Muslim Personal Law is concerned, but despite this, many personal laws of Muslims have been codified. The last in the row is the law of 2019, protecting Muslim women’s right of marriage. Equal rights to property for Hindu women come in bits and pieces. In 1935, Hindu women got limited right to property. In 1956, she got equal absolute right to property in succession and finally, a daughter got equal rights to the coparcenary property and agricultural or rural lands in 2005. Equal rights cannot be ensured just by one stroke. It requires consistent efforts and commitment for a long period of time. Our purpose of giving the example of Hindu law dealing with right to property of women was to emphasise that there was no unification in property rights of Hindu women. It was different at different points in time. UCC is something which can never be answered in a straight Yes or No. It has no one word answer. It is a process which has been going on and must continue to ensure rights of all members of society. The unification of code is not possible until society is serious about codification of the code. Codification is a pre-requisite for unification.
Our country has diverse culture, tradition, religion. To make them more progressive we need to remove discrimination on the basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect. UCC involves secularism, it is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation grow traditionally as well as economically.
Family court with territorial jurisdiction is the competent authority to give a child in adoption: Kerala HC
Without leaving any room for even an iota of doubt, the Kerala High Court has in a learned, laudable, landmark and laudable judgment titled Thomas P & Anr. V. State of Kerala & Ors in CRL. A. No. 971 of 2019 which was delivered on November 5, 2021 has laid down explicitly that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. The Court noted that as per law, the appellants were eligible to adopt the child. Moreover, it must be mentioned that presently the Family Courts are designated as Adoption Court as per O.M. No. D12-10890/2016 of the High Court of Kerala. As such, the decision of the District Judge was set aside and the appeal was allowed. The District Court was also directed to return the records for presentation before the proper court.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice M.R. Anitha of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This Crl.A has been filed against the order in O.P. (Adoption). No. 75/2016 dated 15.03.2016 of District Court, Kollam. According to the learned counsel for the appellant, respondents 2 and 3 are husband and wife. The 2nd respondent is the brother of the 2nd appellant and 3rd respondent is the wife of the 2nd respondent. The respondents 2 and 3 are the biological parents of Kumari, Maria Johnson aged 8 years old, who is the 4 th girl child of the said couple. The appellants are childless couple; both of them had undergone treatment for infertility for a long period. Doctors confirmed that it will not be possible for the appellants to become biological parent of a child. The 2nd appellant had to undergo uterus removal surgery. Hence, at present there is no chance for the 2nd appellant getting conceived. Kumari. Maria Johnson is the 4th girl child of the respondents 2 and 3. While so, the respondents 2 and 3 expressed their willingness to give in adoption of Kumari. Maria Johnson to the appellants. Hence, with a view to legalize the entire proceedings, O.P.(Adoption) No. 75/2016 has been filed by the appellants before the District Judge, Kollam. By the impugned order, the learned District Judge dismissed their O.P., finding that the court has no jurisdiction to entertain or adjudicate the issue of adoption mooted by the appellants and aggrieved by the same appellants approach this Court.”
As we see, the Bench then observes in para 3 that, “Heard both sides. Section 2(2) of the Juvenile Justice (Care and Protection of Children) , 2015 reads as follows: “‘adoption’ means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.”
Furthermore, the Bench then mentions in para 4 that, “Section 2(23) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows: “Court’ means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts.”
What’s more, the Bench then added in para 5 that, “Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows:
“ ‘relative’, in relation to a child for the purpose of adoption under this Act, means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent.””
Going ahead, the Bench then points out in para 6 that, “According to the learned counsel for the appellants, being the brother’s child of the 2nd appellant, the child supposed to be adopted will come within the definition of ‘relative’ defined under Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 56(2) is also relevant which reads as follows:
“Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.””
Moving on, the Bench then also stated in para 7 that, “Next the learned counsel drew my attention to Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the Act) which deals with the appeals and reads thus:
“Any person aggrieved by an order of the Children’s Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)”.”
To put things in perspective, the Bench then states in para 8 that, “So this is the proper forum for entertaining an appeal against the impugned order. The learned counsel drew my attention to the provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2014 ( In short the rules). Rule 40(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 reads as follows:
“For all matters relating to adoption, these rules and guidelines issued from time to time by the State Government and notified by the State Government shall apply. In the absence of such rules the guidelines issued by the Central Adoption Resource Agency and notified by the Central Government under subsection (3) of Section 41 of the Act shall apply.””
As it turned out, the Bench then lays bare in para 9 that, “Rule 41(C) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 deals with the procedure for adoption reads as follows:
“The specialised Adoption Agency along with the prospective adoptive parent(s) shall file a petition in the Court having jurisdiction for obtaining the necessary adoption orders under the Act and these Rules within ten days from the acceptance of referral by prospective adoptive parent(s) and shall take necessary steps to get the process of legal adoption completed at the earliest.””
In addition, the Bench then points out in para 10 that, “The learned counsel also drew my attention to the Adoption Regulations, 2017. Regulation 4 of Adoption Regulations, 2017 deals with child eligible for adoption reads as follows:
The following shall be eligible for adoption, namely:-
“(a) any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;
(b) A child of a relative defined under sub-section (52) of Section 2 of the Act;
(c) child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.””
Not stopping here, the Bench then notes in para 11 that, “Regulation 5(7) of Adoption Regulations, 2017 reads as follows:
“ The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.””
Interestingly enough, the Bench then further noted in para 12 that, “The learned counsel further drew my attention to Regulation 55 Adoption Regulations, 2017 reads as follows:
“Legal procedure:- 1)The prospective adoptive parents, who intend to adopt the child of a relative as defined in sub-section (52) of Section 2 of the Act, shall file an application in the competent Court under sub-section 2 of Section 56 of subsection (1) of Section 60 of the Act in case of in-country relative adoption or inter-country relative adoption, respectively, alongwith a consent letter of the biological parents as provided in Schedule XIX and all other documents as provided in Schedule VI.
Women in live-in relationships and the matter of stealthing: A hidden issue
With the changing lifestyle and westernisation of people’s ideology, the practice of non-formal relationships by “Live-in Relationship” has emerged. With time, the concept of companionship has evolved, and it is no more limited to the usual way of a Marriage. This new expression of a live-in implies two individuals having a consensus to cohabit under the same roof to check their compatibility before the actual marriage ceremony. Sometimes termed as a walk-in walk-out relationship, this kind of union is entirely legal, although it has never been recognised in any Acts or other legislation across India. Judiciary has undoubtedly, in the process, played a significant role to normalise this practice by delivering certain revolutionary judgments.
THE LEGITIMACY OF LIVE-IN RELATIONSHIP: A CONFLICT BETWEEN MORAL PREACHING AND LEGAL PRINCIPLES
Recent judgments delivered by the Punjab and Haryana High court have proven that courts should be concerned with constitutional morality and not with what is considered moral in the eyes of society. In the series of events, the two benches of the high court had formerly denied protection to a couple who demanded security from their family members, quoting those live-in relationships are illegal in the country and is looked down on by society. Later on, the other bench took cognisance of the case and held that the couple shall be protected at all costs and that an individual’s liberty cannot be merely taken away on the grounds of being immoral.
The term constitutional morality was duly interpreted in the case of Manoj Narula v. Union of India, and it was found that to examine the constitutional character of any subject, it is to be assured that it aligns with the constitutional principles and does not become an act of arbitrariness by going against the set rules. The working of the Indian Constitution has been structured so that its principles match the needs of a progressive society. Its evolution is directly proportional to the conditions and culture prevailing in the community.
In its other leading judgment of Indra Sarma v. V.K.V. Sarma, the Supreme Court, via a liberal approach, opined that Live-in is a novel approach of the current generation to get into the nitty-gritty of a household without actually being bothered by an official tag of marriage. It is neither a sin nor a crime in the eyes of the law and shall be welcomed with open arms.
LIVE-IN RELATIONSHIPS: ABSENCE OF STATUSES AND ROLE OF COURTS AS GUARDIAN
The absence of a statutory enactment makes the practice swinging in uncertainty. There is neither any legal definition of the relationship nor any prescribed punishments for the wrongdoers. However, the court has tried to provide an identity to it by defining it in five different ways while delivering the judgment of Indra Sarma v. V.K.V. Sarma. The live-in relationship is where two individuals’ privacy needs to be protected. It does not matter how society pursues them to be about the privacy judgment held in K.S. Puttaswamy v. Union of India it is to be quoted that it is the decision of the individuals how they want to spend their lives as. It is not just providing them with the right to freedom to choose but the state’s duty to protect their very choice. It is necessary to ensure that the individual enjoys liberty with the utmost dignity and opt for whatever they deem suitable for a happy life.
The Supreme Court put forward certain conditions to certify a cohabitation as a “legal live-in relationship”. In the 2010 judgment of D. Velusamy and D. Patchaimal, the court specified the couple must adhere to the following points while establishing a legal live-in relationship. These were:
Both the boy and the girl have to present themselves as akin to being a husband and a wife.
They both must be legally eligible for marriage and should have attained the age of 18.
They must be eligible to get into a legal marriage and be unmarried.
Both have a consensus of mind for cohabitation without any pressure and have lived like a husband-wife for a considerable period.
The apex court acknowledging the menace of khap-panchayats and honour killings across the country strongly opined that it is highly crucial to ensure that the right to choose a partner is protected at all costs. It is a combined duty of the state and the judiciary to look after the rights of those young couples who usually run away to save their lives from brutal attacks.
DEALING WITH THE ISSUE OF WOMEN IN THE LIVE-IN RELATIONSHIP: AN ANALYSIS
The Protection of Women from Domestic Violence Act of 2005 (Pwdva) is the first piece of legislation to recognise live-in relationships by providing rights and protection to women who are not legally married but have chosen to live with a male partner in a relationship that is similar to but not identical to marriage. Section 2(f) of the Domestic Violence Act, 2005 defines: “Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship like marriage, adoption or are family members living together as a joint family”. The court has interpreted the expression “relationships like marriage” on the same line and meaning with the live-in-relationships. The provisions of Pwdva will apply to all the individuals who are in live-in-relationships. “This provides women with fundamental rights to protect themselves from abuse, fraudulent marriage, and bigamous relationships”. Section 125 CrPC is one crucial legislation that was inducted to avoid vagrancy and destitution for a wife/minor children/old age parents, which has now been given to partners of a live-in-relationship after judicial interpretation. “Malimath Committee, also known as the Committee on Criminal Justice System Reforms, was founded in November 2000. The committee presented its report later in 2003, with some notable recommendations under the heading “offences against women.” One such bid was to amend Section 125 of CrPC to alter the meaning of wife, and the revision was made accordingly. The expression includes the ladies in the live-in-relationship, but the accomplice has abducted her at his own will, so now a lady in the live-in-relationship can get the wife’s status. It interprets that if a female has been in the live-in-relationship for a considerable period, she should have legitimate privileges as a spouse and claim maintenance under this section. A presumption would arise in wedlock where partners live together as husband and wife. However, a contradictory decision came when it was decided that the divorced wife could be treated as the wife and claim maintenance under Section 125 of CrPC. Still, it won’t apply to those staying in live-in-relationships because they are not legally married, and partners cannot divorce each other and claim maintenance under this section.”
STEALTHING: AN UNIDENTIFIED CRIME HIDDEN BEHIND THE MISINTERPRETED MEANING OF CONSENT AND IMPACT OF THIS IN A LIVE-IN RELATIONSHIP
Stealthing refers to the act of secretly removing a condom while having sexual intercourse with a partner who has consented to the protected sex. This is a deceptive form of sexual assault that grossly violates the sense of consent and exposes the partner to unwanted pregnancies, sexually transmitted diseases, etc. The non-consensual removal of condoms has been identified as a form of sexual assault by various western jurisdictions; for instance, “The Supreme Court of Canada and the Swiss Criminal Courts have identified stealthing as rape (R v. Hutchinson, 2011). Further, this issue acquired international attention when UK’s Supreme Court stated that stealthing fell under the ambit of rape and accordingly introduced the “doctrine of conditional consent” (Assange v. Swedish Prosecution Authority, 2011).” It is still a grey area between the white and black definitions of consent in India. It is an important issue that needs to be discussed because of India’s social conditioning and stigma attached to contraceptives. The National Health Survey of India 4 (NHS4) found that 80% of adult men aged between 20 to 24 years do not use contraception while having sexual intercourse; this might emerge from the notion that the use of condoms makes ‘one less of man’. The idea of ‘conditional consent’ has been identified under Section 375 (4) of the Indian Penal Code, which stipulates, “When the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is, or believes herself to be lawfully married, such sexual intercourse shall amount to rape.” This scenario explains that a woman’s consent is conditional on the man’s being her husband. When this factor is eliminated, the consent is effectively hampered, which the statute identifies as rape. Suppose the analogy has been drawn to the act of stealing, and the consent is based on the partner using a condom. In that case, the non-consensual removal of the protection during sexual intercourse invalidates the consent, thus amounting to rape. The non-consensual removal of condoms also is further covered under the ambit of Section 270 of the Indian Penal Code, which penalises malicious acts that are likely to cause the spread of deadly diseases. “The above analysis shows that stealing has all the elements of a crime but still has not been recognised as one; the policymakers and researchers have tried to look for the civil rather than criminal mechanisms while dealing with Stealthing. It is pertinent to note that Mrinal Satish, a professor involved in expanding the definition of rape in the Criminal Law Amendment Act, 2013, firmly believes that stealing should be covered within the ambit of rape”. Women in live-in relationships became very easy victims in such scenarios as the legislation for both live-in-relationship and stealing are unclear, leaving the victims unheard. If their issues are addressed in some circumstances, ambiguous legislation leaves the perpetrators free. It is time now that specific legislation concerning the above-stated matter is rolled out, and no room for injustice prevails.
Please read concluding on thedailyguardian.com
Worse than expulsion, punishment on constituency: SC
To start with, we saw how just recently the 12 BJP MLAs from Maharashtra had gone to the Supreme Court in protest against their year-long suspension from the State Assembly which definitely appears too harsh a punishment. Without any reservation, the Apex Court expressed an inclination to interfere with the resolution passed on July 5, 2021 by the Maharashtra State Legislative Assembly. We also saw how when the petition in this case titled Ashish Shelar And Ors. Vs The Maharashtra Legislative Assembly And Anr. in W.P.(C) No. 797/2021 and connected cases was called for hearing on January 11, 2021, the Apex Court Bench comprising of Justice AM Khanwilkar, Justice Dinsh Maheshwari and Justice CT Ravikumar after hearing the case in part minced no words to observe that the suspension of 12 BJP MLAs from the Maharashtra Assembly for a full year is “prima facie unconstitutional” and “worse than expulsion” as the constituency is remaining unrepresented.
It cannot be glossed over that the Apex Court has flagged the statutory requirement to not keep a seat vacant for more than 6 months! What Apex Court has said is absolutely valid. The Apex Court also minced no words to say most effectively, elegantly and eloquently that a “constitutional void” and a “hiatus situation” has been created in these constituencies and the “consequences are dreadful”.
To put things in perspective, the Bench also pointed out that, “If there is expulsion, there is a mechanism to fill up the vacancy. The suspension for one year will amount to a punishment on the constituency.” Justice AM Khanwilkar observed in simple, suave and straight language that, “This decision is worse than expulsion. No one can represent these constituencies in the House when they are not there…This is not punishing the member but punishing the constituency as a whole.”
To recapitulate, on July 5, 2021, we witnessed for ourselves how soon after the Assembly met for its two-day monsoon session, there was a lot of commotion and furore as Leader of Opposition and former Chief Minister of Maharashtra – Devendra Fadnavis of BJP objected seriously to an attempt by State Minister Chhagan Bhujbal of NCP to table a resolution demanding that the Centre release data on Other Backward Classes (OBCs) so that seats could be reserved exclusively for them in local bodies in Maharashtra. While protesting we also saw how several BJP MLAs had entered the well in protest, snatched the mace and uprooted mics which led to frayed tempers. We also witnessed how the Shiv Sena MLA Bhaskar Jadhav who was in the Chair presiding the House then adjourned the House for 10 minutes following which some BJP MLAs allegedly entered his chamber and threatened, abused and misbehaved with him which is definitely most outrageous and cannot be ever justified.
In hindsight, it must be mentioned here that the Maharashtra House was devoid of any Speaker in the House stemming from Nana Patole of the Congress party resigning and Shiv Sena MLA Bhaskar Jadhav was one of the four presiding officers that were named by Acting Speaker Narhari Zirwal the previous day. It also deserves mentioning here that Maharashtra Parliamentary Affairs Minister Anil Parab subsequently moved a resolution to suspend 12 BJP MLAs – Bunty Bhangdia, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jaikumar Rawal, Narayan Kuche, Ram Satpute and Bunty Bhangdia – for a year. Naturally, the suspended 12 BJP MLAs then filed a writ petition in the Apex Court in 2021 against the Maharashtra State Assembly and the State of Maharashtra and asked for the suspension to be quashed as they felt that the punishment was too much. The matter has been posted for further hearing on January 18.
To be sure, we need to pay attention here that the Bench made it absolutely clear that as per the relevant rules, the Assembly has no power to suspend a member beyond 60 days. In this regard, the Bench then sought it fit to refer to Article 190(4) of the Constitution which stipulates that a seat will be deemed to have become vacant if a member remains absent in the House without its permission for a period of 60 days. The Bench pointed out clearly that as per Constitutional provisions, a constituency cannot go unrepresented for a period beyond 6 months. It cannot be lost on us that while saying so, the Bench flatly refused to buy the argument of senior and eminent advocate of Apex Court C Aryama Sundaram who appeared for the State of Maharashtra that the court cannot examine the quantum of punishment imposed by a Legislative Assembly.
As it turned out, what followed next was that after the Bench expressed its views, Sundaram then politely sought time to take instructions from the State. The hearing was then accordingly adjourned to January 18. The Bench made it clear that it will not go into other aspects except the quantum of punishment. Justice Khanwilkar told Sundaram that, “…we can say that the decision to suspension can only operate till 6 months and later than that it will be hit by a constitutional bar.”
As we see, the petition of suspended 12 BJP MLAs submitted that their suspension is “grossly arbitrary and disproportionate”. The challenge that they bank upon is denial of the principles of natural justice and violation of laid down procedure as per the law. It is the strong grievance of these MLAs that they were not even given an opportunity to present their case and that their suspension violated their fundamental right to equality before law as enshrined under Article 14 of the Constitution. They have also submitted that contrary to rules, they were not given access to video of the proceedings of the House and it was not clear how they had been identified in the large crowd that had gathered in the chamber. They do have a point!
Furthermore, the MLAs have reckoned that under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker and it cannot be put to vote in a resolution as was done glaringly in this case. For esteemed readers exclusive benefit, it must be mentioned here that Rule 53 states that, “The Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly.” The member must “absent himself during the remainder of the day’s meeting.” Should any member be ordered to withdraw for a second time in the same session, the Speaker may direct the member to absent himself “for any period not longer than the remainder of the Session”.
Of course, it cannot be denied that the Bench rightly said that, “The basic structure of the Constitution would be hit if the constituencies of the suspended MLAs remained unrepresented in the Assembly for a full year.” The Bench very rightly referred to Article 190(4) of the Constitution which stipulates that, “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.”
Be it noted, under Section 151 (A) of the Representation of the People Act, 1951, “a bye election for filling any vacancy..[in the House] shall be held within a period of six months from the date of the occurrence of the vacancy.” This clearly implies that barring exceptions specified under this Section, no constituency can remain without a representative for more than six months. This is why the Apex Court flagged most commendably the statutory obligation to not keep a seat vacant for more than 6 months which no one can ever deny!
It would also be worth noting that Rules 373, 374 and 374A of the Rules of Procedure and Conduct of Business in Lok Sabha stipulate for the withdrawal of a member whose conduct is “grossly disorderly” and suspension of one who abuses the rules of the House or willfully obstructs its business. It is quite noteworthy that the maximum suspension as per these Rules is as stated “for five consecutive sittings or the remainder of the session, whichever is less.” It has to be conceded that the maximum suspension as per these Rules is “for five consecutive sittings or the remainder of the session, whichever is less.”
What’s more, the maximum suspension for Raja Sabha under Rules 255 and 256 also does not exceed the remainder of the session. Several recent suspension as we witnessed of members did not exceed the remainder of the season. This is exactly what the Apex Court took into account also.
In addition, we saw how Mahesh Jethmalani who is an eminent and senior lawyer of the Supreme Court pointed out cogently that recently when the Rajya Sabha suspended 12 MLAs for disorderly behaviour, it operated only for the duration of the session. He argued that the rights of the constituency are also to be protected. Mukul Rohatgi who is the former Attorney General of India and also an eminent and senior Supreme Court lawyer too argued that the principles of natural justice were violated by the House. The petitioner’s lawyers argued that the Court has jurisdiction to examine the correctness of the punishment of the House. Senior advocate Siddharth Bhatnagar raised the argument that the suspension cannot exceed 6 months. He submitted that, “If seats are allowed to be vacant then it has a major effect on the democracy. This is worse than expulsion.” He also added that this can allow the government to manipulate the strength in the House to secure majority votes in crucial issues.
In conclusion, we definitely have to keep our fingers crossed as to what the Apex Court will finally rule when it comes up for hearing on January 18. But it goes without saying that the case of the petitioner is strong. This quite evident from what we see the initial observations of the Judges who are hearing this high profile case. One is sure that the Apex Court will decide the case as per the law and we will soon read what is ruled also in this leading case!
Patentability and copyrightability of blockchain assets in India
Blockchain, Cryptocurrencies, and NFTs will get surrounded in our life in the potential future. The scope of blockchain is increasing day by day. The use of blockchain started with the Finance–Tech industry, i.e., cryptocurrencies. Its use has expanded to include the healthcare industry, real estate, governance, e-commerce and more. With its commercial use, several legal issues have started to come up. These issues include the patentability and copyrightability of blockchain.
Here, two questions arise- what is blockchain and what does patentability and copyrightability entail. Blockchain is a type of distributed ledger technology. At any moment, blockchain keeps a secure and transparent account of all transactions from the beginning to the end in the form of blocks. This article aims to highlight the patentability and copyrightability of blockchain in India and discuss the potential solutions.
BLOCKCHAIN PATENT IN INDIA
Seeing the potential of blockchain technology, various companies have started to file their patent applications. Thereby raising issues of intellectual property rights in each jurisdiction. A patent is a kind of Intellectual Property Right. In India, patent applications must pass three essential criteria- novelty, non-obviousness and industrial application.
Blockchain patents aim to protect a combination of application software and encryption. Therefore, they are linked to software patents. Section 3(k) of the Patent Act 1970 states that “mathematical or business method or a computer programme per se or algorithms are excluded from patentability.” In recent developments, computer programmes have been granted an exclusion from this provision and can be considered a patent if they have a technical effect.
Therefore, two main issues relating to blockchain patents are-
1. Will invention be considered patentable subject matter under Section 3(k) of the Indian Patent Act?
2. How to decide whether blockchain technology developed is novel and non-obvious?
• Issue 1- u/s 3(k) of Indian Patent Act
In “Ericsson v. Intex Technologies, the Delhi High court interpreted the term per se. It stated, “any invention which has a technical contribution or has a technical effect and is not merely a computer program per se” is patentable. This was also upheld in Ferid Allani vs UoI, wherein it was held that “If the invention demonstrates a ‘technical effect’ or a ‘technical contribution’, it is patentable even if it is a computer program. The Court relied on the Computer Related Inventions Guidelines 2013 to define technical effect”. Therefore, for blockchain technology to be considered for a patent application, it must demonstrate a specialised product or technical contribution.
• Issue 2- Novelty and Non-obvious
There are three main essentials for a patent application- novelty, non-obviousness and industrial application. In the introduction, blockchain has vast applications in different industries. The main issues lie with originality and non-obviousness. It is noted that blockchain technology has limited novel features because innovators are merely using existing technology for making transactions. Concerning non-obvious nature, it’s essential to figure out whether a person who is usually skilled in the art can apply the same technique to blockchain technology.
On top of that, few people understand how this technology works. To overcome this, government employees technologically advanced specialists must determine whether the application is novel and has an inventive step. It is essential as granting a patent to a technology that is not novel and is vital would give a monopoly to a company and further reduce the growth of technology.
THE INTERSECTION OF COPYRIGHT AND BLOCKCHAIN
You might be hearing the word NFT accompanied by the news, such as The girl in this viral meme selling her iconic image as an NFT for $1,000,000. So, you might be thinking, what is an NFT and what does the selling of NFT means?
NFT stands for a non-fungible token, a digital token representing art, films, video and other media and is recorded on a blockchain and kept as a link. They are purchased and traded over the internet using cryptocurrency, primarily Ethereum. Artists monetise their digital art, audio, and other digital assets by selling them to anybody in the world using NFTs. NFT has also raised important questions in Intellectual Property Rights- Does selling of NFT confers IP Rights to the buyer? What are the implications of selling NFT by infringing the IP rights of the creator? What are the remedies in case of infringement?
NFT is a form of expression. Therefore it embodies the copyright of the creator in it. “Many people think that owning NFT is the same as owning the copyright to work. However, it is not the case. Copyright always remains with the creator, and only ownership is transferred to the buyer. It is the same as owning a physical copy of an artist’s painting. Here, the artist who painted the picture would be the holder of copyrights in it, and he will be entitled to make duplicates and create other derivatives of it”.
Given how frequently things are copied and distributed online, NFT can be copied and circulated indefinitely. As a result, there’s a reasonable risk that NFT’s copyright will be violated. The Copyright Act of 1957 protects and registers the author’s creative works in India. Copyright can be obtained for original literary, musical, dramatic, and artistic works that last sixty years after the author’s death. “Section 51 of the Act specifies the circumstances under which a copyrighted work is considered infringing. Interlocutory injunctions and damages are available as remedies for infringement. Infringers will face up to three years in jail and a fine of two lakhs if they violate the copyright”.
These remedies are ineffective when persons make money by selling NFTs under false identities. There are currently no stringent laws to prevent copyright infringement in the case of NFTs. It is essential to enact legislation that will aid in assessing the legitimacy of the underlying asset.
Blockchain has gained prominence worldwide with its varied industrial and innovative applications. Legal solutions related to IPR, such as patent and copyright, play a vital role in determining its future. Blockchain and NFT trading present several IP issues, and it is required to develop worldwide norms based on pre-existing IP laws and treaties to prevent a breach. This will eventually defend the creator’s moral and commercial rights.
In addition, blockchain technology would help in the protection of intellectual property. The content owner will register how they want their material to be utilised and disseminated on the database. The decentralised ledger will ensure that the content is delivered in a regulated way. There will be no confusion about where the content came from, who contributed it, who used it, and how it was used, as well as the constraints that came with it, putting a stop to conflicts. Content artists, like authors, might use blockchain’s decentralised, peer-to-peer structure to directly distribute their work to customers, circumventing existing distribution methods and retaining a more significant part of earnings. This might influence everyone from huge media companies to small blogs, allowing artists to connect directly with their audiences.
WHOLE POLICE STATION SHOULD BE MONITORED THROUGH CCTVS INCLUDING INTERROGATION ROOM: P&H HC
In one of the best judgment that I have ever read, it is most heartening to learn that the Punjab and Haryana High Court in a very commendable, cogent, courageous, composed and creditworthy judgment titled Kaushal v State of Haryana and others in CRM-M-43672 of 2021 delivered on January 7, 2022 has directed that CCTVs should be installed in every part of police stations including the interrogation room as per the directions issued by the Apex Court. According to the single Judge Bench comprising of Justice Amol Rattan Singh of Punjab and Haryana High Court, the directives issued by the top court clearly state that no portion of police stations should be left uncovered by CCTVs. The court further stated that our country cannot make the excuse that our interrogations techniques are different than that of western countries and authorities cannot use methods like the third degree as a means of interrogation.
To start with, in this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice Amol Rattan Singh of Punjab and Haryana High Court, the ball is set rolling by first and foremost pointing out that, “Case heard by way of video conferencing. By this petition, the petitioner seeks a direction to respondents no.1 to 3, with a prayer that whenever the petitioner is sought to be taken for interrogation in any case, a videography be done of his leaving the jail premises till his reaching the concerned police station and during interrogation, a videography be also done.”
While continuing in the same vein, the Bench then states that, “It is further prayed that during interrogation his medical examination be also got conducted through a board of doctors or through a civil hospital, so that if any torture ‘is done to him’, then it can be revealed through the said medical examination; with a further prayer made that when he is to be taken outside jail on remand, then either his family members or his lawyer be informed of the location, with his lawyer to be permitted to be present there, where he is being taken and appropriate security be also provided so that he may not be killed in a fake encounter. It is further prayed that respondents no.1 to 3 be directed to comply with the provisions of Section 31 of the Prisons Act, 1894.”
To be sure, the Bench then discloses in the next para that, “A detailed order had been passed by this court on 03.12.2021, directing the DGPs of Punjab and Haryana to file affidavits in response to the observations made in that order, in reply to which both, the DGP, Punjab and the DGP, Haryana, have filed affidavits, both dated 06.01.2022, which are ordered to be taken on record. The affidavit earlier filed by the SSP, Chandigarh, dated 26.10.2021, which is now on the case file, is also ordered to be taken on record.”
While narrating what happens with many of the prisoners, the Bench then points out that, “Before proceeding further, what has been contended by the petitioner in paragraph 22 of the petition is again being reproduced in this order, which is as follows:- 22. That the incidents that are happening with the petitioner inside the jail and during remand are as follows:-
i) The investigating agency spits on the floor and asks the petitioner to lick it and if the petitioner refuses to do so, then he is forcible made to lick the spit of the police officers.
ii) The investigating officers urinates on the face and on the body of the petitioner after removing his clothes.
iii) The petitioner is made to be naked throughout the remand and given merciless beatings.
iv) Sharp objects are inserted in the private parts of the petitioner.
v) The petitioner is given electric shocks behind is ears and on his private parts so that he is tortured badly and even signs of said torture are not openly visible to the ld. Magistrate as well as medical officer.
vi) His legs are put in wooden logs and then pulled aside thereby causing damage to his muscle and rollers are rolled over his thighs so that the petitioner feels the worst kind of pain and still there is no visible mark of injury.
vii) The petitioner legs are tied with a rope and he is hanged with his head down and this is repeated every day while in police remand.””
As anticipated, the Bench then states that, “As regards the allegations of absolute inhuman treatment, as made in the aforesaid paragraph, as expected, the allegations have been completely denied by both the DGPs, with is also stated that no such allegation was ever made earlier by the petitioner and that therefore the petitioner has only made the allegations with mala fide intentions.”
Most significantly, what forms the cornerstone of this notable judgment is then elucidated stating that, “As regards video recording of investigation of the interrogation process, the DGP, Haryana, has stated that there is no such provision in the Cr.P.C. for conducting investigation under surveillance of CCTV cameras. The DGP, Punjab, is conspicuously silent in his affidavit on that aspect. Though, as regards installation of video cameras in all police stations, as pointed out by the learned State counsel, in the affidavit of the DIG (Law & Order), Haryana, dated 02.12.2021, it has already been stated that CCTV cameras are installed in all entry and exit gates of prisons and all police stations (which has already been noticed in the order previously passed by this court), it is to be noticed that such cameras were also installed by both the States on directions issued by the Supreme Court and this court, with Mr. Ghai again pointing today to the directions issued by the Supreme Court in the case of Paramvir Singh Saini v. Baljit Singh and others (2021) 1 SCC 184, which read as follows:-
“16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector’s room; Sub-Inspector’s room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.
17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.
18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.”
To put it differently, the Bench then observes that, “Hence, with the directions issued by the Supreme Court also being to the extent that cameras be installed at not just entry and exit points and main gates of police stations, but also in all lock-ups, corridors, lobby and reception areas, verandas, out houses, rooms of officials, outside the lock-up rooms, station hall and in front of the police station compound, as also outside washrooms and toilets, the obvious implication is that no part of the police stations would be left uncovered by CCTV surveillance. Naturally therefore, any interrogation room would also be covered by such directions.”
Furthermore, the Bench then holds that, “Consequently, the DGP, Haryana, the DGP, Punjab, as also the DGP, U.T., Chandigarh, are now directed to file affidavits as to whether the aforesaid directions of the Supreme Court have been complied with or not, and if of course the matter is still being monitored by the Supreme Court, any order passed after 02.12.2020 would be brought out in the affidavits to be filed by the DGPs of both the States and the U.T., Chandigarh.”
Be it noted, the Bench then points out that, “It is to be again specifically noticed that the contention of the DGP, Haryana, to the effect that there is no such provision in the Cr.P.C. would seemingly get completely negated by the aforesaid directions given by the Supreme Court of India, with it to be highlighted by this court (which obviously would be in the knowledge of every authority), that as per Article 142 of the Constitution of India, the Supreme Court, in the exercise of its jurisdiction, may pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it, and any order or decree so passed would be enforceable throughout the territory of India. Further, the law declared by the Supreme Court would be binding on all courts as per Article 141.”
As a corollary, the Bench then naturally observes that, “Consequently and obviously, non-compliance of the directions issued by the Supreme Court in Paramvir Singh Sainis’ case, would amount to contempt of Court and this court would, naturally, also be bound to ensure that the directions issued by the Supreme Court are actually carried out at ground level by the States and Union Territory falling within the jurisdiction of this court. Hence, the aforesaid direction to the DGPs.”
At the risk of repetition, the Bench then envisages that, “Of course, to repeat, if the Supreme Court has passed any further order after 02.12.2020, as would grant further time to the States to comply with the directions given on that date, or the order issued has been modified in any manner, such orders would be brought out very specifically in the replies to be filed by the DGPs.”
It is worth noting that the Bench then mines no words to hold that, “Further, it is directed that not just in the case of the present petitioner, but in the case of every person who is in police custody or is being taken into police custody, all provisions of the Cr.P.C., including Section 41-B, 41-C, 41-D and 54, 55 and 55-A would be meticulously followed, with compliance reports in that regard to be made a part of the report under Section 173 of the Cr.P.C., as regards even medical examination necessarily to be conducted in terms of Section 55-A thereof.”
Quite ostensibly, the Bench then hastens to candidly add that, “Naturally, any non-compliance of the said statutory provision would amount to violation of the direction hereby given and any accused would have his/her remedy available to him/her in respect of violation of any such provisions and the directions given.”
Most remarkably, the Bench then is quite forthright in holding that, “It is to be again reiterated in this order, as was said in the last order, that no court is oblivious to the fact that the police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force. Hence, violation of such procedure, especially leading to violation of human rights even in the case of the worst criminal, cannot be ignored by any court.”
Most forthrightly, the Bench then also underscores that, “Further it is not an excuse for us, in India, to take a plea that many other countries are far more advanced than us and therefore there can be no comparison with the methods adopted there, in interrogating accused persons here. We are the 5th or 6th largest economy in the world and therefore any such plea taken would only seem to be taken as an excuse to not actually adopt contemporary methods of investigation, including interrogation, rather than taking shortcuts by using third degrees methods etc.”
Finally, the Bench then concludes by holding that, “Adjourned to 09.02.2022. To be shown in the urgent motion list.”
To sum it up, it merits no reiteration that what the Punjab and Haryana High Court has directed must be strictly implemented in letter and spirit. Of course, it must be rigorously ensured that the whole police station is monitored most effectively through CCTVs including interrogation room as directed most commendably by the High Court! No doubt, it must also be regularly ensured that no third degree method is resorted to by police under any circumstances and those who are found complicit in indulging in torture must be punished adequately and strictly so that the right message percolates among the men in uniform that they cannot take the right to life and personal liberty as guaranteed to every person as a fundamental right in India under Article 21 of the Constitution is actually rigorously implemented on the ground also where it matters the most! Let’s fervently hope so because this is exactly what forms the touchstone of this most commendable judgment!
Sanjeev Sirohi, Advocate.
CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power.
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