The Khap Panchayat and The Freedom to Love: SC

The Supreme Court today while dealing with a petition filed in 2010 by an NGO Shakti Vahini, talked about the concept of falling in love and marrying their chosen one.

There have been incidents of violence against the couple, who choose their own life and way forward, defying the rules and norms laid down by the community and the society. Such incidents are known as honour killing where the couple’s peaceful co-existence and individual lives are put to danger just because they went against the rules laid down by their fathers, brothers and their community.

The famous Khap Panchayats of the villages, which have on several occasions used the mandate of the village to scuttle not only the individual freedom, but also have acted as a bar to prevent any maturity on the part of the elders of the community over issues that call for evolution with time, but are dear to them due to age old cherished beliefs and customs.

The tyranny of the Khap Panchayats continues to be one of the kind which transgresses to the levels of intolerance, for example the occasions where the Panchayats banned the use of cellphones by young girls and wearing of jeans or skin fit lower garments were barred. There have even such situations where Panchayats have assumed the roles of a Family Court, thereby adjudicating the potency of the spouses,or annulling the marriage completely.

This does not end here when they, in the name of honour conjure the people to meddle with an inter-religious marriage or an inter-caste marriage. Such occasions are seen to have happened on many occasions. This does not only happen in the villages, but also is a feature in Tier-2 cities of India that are a home to the most rapidly evolving population in the country, not to mention the Tier-3 cities.

The social intolerance breeds high in various communities and the woman/girl who chooses to take a  man from another caste as her partner for life, is often subjected to the illusory honour that surrounds the girl, and is destructive to the father and the brother,or rather the entire family, and the community too.

It is a very simple expression of homogamous marriages being exaggerated to an extent where it becomes impossible for the people to accept the individual freedom of the girl and the boy involved.

The halo of honour has led to several couples living in a situation of spite and threat, or even getting killed which has not been monitored by the Police. The Police is not most of the times aware of any such threat, because such couples live under the belief that law would not aid their association, while the Supreme Court in  the spirit of giving a sigh of relief to such lovers, has allowed them to live, without fear, though there may  be no law, yet the concept shall be evolved.

The bench comprising of the Chief Justice, and Justice DY Chandrachud, and AM Khanwiljar, has done a great job, yet the evolution of the principles need various quarters to walk in for a more productive approach to the controversies that surround love marriages in India.


‘Politico-Military’ Approach is No Approach, General Saahab

With Supreme Court of India dealing with the status of Article 370 of the Indian Constitution, the overall status of Kashmir, still hangs in an abyss.

The Wazir-e-Azam of Jammu and Kashmir, recently reminded the people of Kashmir that the only benefit of the Kashmiris, as a people, lies in India. The Kashmiri Separatists have for long held on to two agendas, one being siding with Kashmir, while the other remains to form an independent nation for Kashmiris.

The ideas also has been garnering support within ranks of Pakistani establishment since partition as Kashmir remains one of the ever green contentious issue that India has been faced with.

The scenario today is about outrage and protests fomenting due to AFSPA, which has blessed the state with a woeful story of massacres and inhuman atrocities being perpetrated by the military in the valley.

The AFSPA started with the onset of militancy and war against Pandits of the valley. The AFSPA got more veracity due the support offered to the infiltrators by the Kashmiris to Pakistani militants who have actually abused the state and the government machinery there.

Today, with the information age taking strides in India, the whole of the world is talking about the grief of Kashmiris while we don’t talk about the Anti-Pandit riots and racketeering that took place in the valley.

The Valley today, is a lifeless place which is blessed with immense bounty of nature, the whole issue is based on the premise that the Muslims inhabiting Kashmir don’t feel that they are a part of India.

The military has been rough with the people due to their violent activities that are often aimed against India and the prevalence of militancy in the State. The military general of the day, Gen. Bipin Rawat suggested that a ‘politico-military’ approach remains the most logical approach to Kashmir is not correct.

The author is an Indian by blood, and fully endorses the efforts made by Dineshwar Sharma, the interlocutor appointed by the central government to deal with the issues, yet there exists a fault-line that nobody is willing to acknowledge.

Despite the number of sops for Kashmiris, the divide is germinating from the sense of minority vs majority  that has kept the Indian subcontinent divided over for years.

Today, also the Indian state is being perceived as an oppressor by the people of the valley who possibly do not hold sensitive views towards secularism. A political solution simply aims to address the issues pertaining to representation, and bargaining with the State, while the military solution means to address every act with a bullet.

The solution has to come with a ‘Socio-Political’ approach, where the military is only left to the borders. The social moulding and mobilisation will need social leaders, and religious leaders from the various communities to hold proper dialogues and address the issues that seem to spread hate, and gather the popular support of the masses in the valley.

A socio-political approach shall be one which aims to make the negotiating or rather conciliating parties form a people’ common minimum programme under which a peaceful co-existence is worded.

The future for the Kashmir issue must be addressed at the earliest while the Indian State as well as the Kashmiris may do some self-check.

Legislators Must Not Take Up Practice Before The Courts

The Bar Council of India in furtherance of a petition filed by Advocate Ashwini Kumar Upadhyaya before the Supreme Court of India, has stated that why not a Legislator, an MP, and an MLA be designated as public servant that falls within the definition of the employee-employer relationship, has issued a circular for comments from the legislators, whether they must be banned from practicing in the Courts of law as and when they assume offices.

There is a wide range of debate centered around this issue, where there exists a strong case against the prevalent practice.

The rules of the Advocates Act, specifically bar the persons who are in services under some specific authority whereby drawing an emolument as employment, which is full time. This leads us to ponder, why the Supreme Court of India in the case of M.Karunanidhi vs Union of India declared that the relationship of a legislator with that of the State is not one of an employer-employee, while the legislators do fall in the meaning of the definition of the Public Servants in the legislation.

The issue has another flaw, that rests on the concept that these legislators while they are in power, they receive emoluments from their respective clients, and in certain cases, are parties against the State as well. The ultimate employer of the legislator is the state concerned. This brings in another fact that the Constitution bars the legislators from being involved in any employment other than that of the State itself. The employment means that they must not hold any office of profit apart from that they hold.

This also brings their unavailability to devote their expertise to the profession of law, and the most important job of the legislator. The job of a legislator just does not involve attending the proceeding in the house, but involves at making the lives of the voters better by serving them in the House. Legislators need to visit their constituencies, and conduct surveys, aid in the law making process and much more. The legislators sadly do not devote the necessary time, which is why find many ayarams and gayarams in politics.

The inevitability of lawyers for the political profession is known to all, the logical and the legal expertise that follows them, has from ancient times as they contribute to the the evolution of law.  While today, they spend time elsewhere, they have not time to devote to the profession of law.

This is also handicapped by the fact that the lawyers who  are legislators have the power to initiate impeachment proceedings against the judges they plead before, while they may use their clout to threaten the judges with any adversities, or their fellow lawyers, they may also abuse the powers.

The politics in judiciary also acts as a mode of publicity which is used in the District Courts and continues upto the higher Courts. The advocates assuming roles as legislators advertise themselves over the expense of the state, get to distinguish themselves over others, this is not under the ethics of the legal profession thus they must be beyond doubt be barred from practicing.

The professions of other callings, like CA, CS, Engineers and Doctors, among others who take up the profession of politician must be barred from practicing their professions and devote their time to the political profession only.

The law must build a a consensus, on this issue and bar the legislators from taking up practice along with the same, as it is unethical and is not healthy for the esteem of the legislative profession.


Probing the Prayers: SC

A bench of justices Navin Sinha and RF Nariman sent notices to the Kendriya Vidyalayas for their ritual of prayer in the morning assembly, which were Hindu prayers, and were obligatory for all the students to offer prayers, irrespective of their faith.

The petition is moved by a lawyer based in MP, who learnt from his children that they were subjected to the same ritual. The petitioner states that that instead of building scientific temper in the tender minds, the country’s largest school, is promoting fantasies and  a culture of relying on something that they don’t know over themselves.

The petitioner has also asserted that the prayers in Hindi and Sanskrit are imposed on students from the minority communities as well, who might not find it to be in consonance with their religious beliefs, and it maybe impermissible under the Constitution.

The SC, in response to the said petition, shot off a notice to the government and the Kendriya Vidyalaya Sangathan, and also ordered them to end the practice, pending further orders.

Justice Nariman branded it as a serious issue pertaining to a violation of one’s religious rights in one go. The move will have very far and wide ranging repercussions in the society.

The matter ha not been viewed from a perspective which forms the basic feature of the Indian society, while the petitioner stated that he had no personal interest, but it was for the minorities that he feels, he will be doing a service. While this issue has come to the fore, the petitioner has not taken the notice of the fact the missionary schools, and other minority schools, have a trend to promote their methods of prayers, while at the same time promoting their religion.

This fact also need to be inspected from the roots of the societal values where the majority people irrespective of their caste, and religion, give  a prominent place to the concept of a Supreme Person, in-charge of their lives.

This fact, has its echo in the very schools of our system that cater to the same masses, the name of the lord is invoked to bring down positivity and inculcate values in the students, as has been argued over by prominent educationists over the years.

The fact that prayers in Hindi or Sanskrit are violative of religious beliefs of people, will have to be adjudged from the perspective of the contents of the prayers itself. In the worst case scenarios where the prayer refers to God as a Supreme Person, in any term which excludes idolatry, or cult, shall not be brought in question.

The society has fluctuating morals, while religion provides a constant set of basic human values, is another argument, which will stand good today’s times, while the State must promote a cult of cultural sensitization, while at the same time inculcating morals, the Court will have to take a task which shall not be very fruitful in its outcome.

The Court will have to define morality and supplant strong arguments against theology. Also the Court will have to take on the minority institutions for preaching in their own ways too.

Walking With AIDS:Aiding the Unaided

The one of the most dreaded and incurable diseases that the mankind faces today is AIDS. Despite so much of publicity about AIDS, the 5% of the Indian society is affected by AIDS (study by NIMHANS, 2014).

The disease is spread in humans through mosquito bites, blood infusion, use of infected blades, and unprotected intercourse. The causes, whatever they may be the disease comes with a social stigma that causes a the person affected to live a life in lurch.

The people who are known to be suffering from AIDS have been subjected to termination from their jobs, not only in the private sector but even in the public sector. The frequent occasions and ostracization that follow the disease, led the Supreme Court to rule that the doctors, or the paramedics to not to disclose the identity of the persons suffering from AIDS. The law even made efforts to curb the social ostracization, which even amounted to economic losses, in the form of loss of employment.

The Supreme Court took the view that the disease being without any cure, and the person expecting death in all the cases, must be dealt with in a humane manner, by not only the State bu the society as well. The people who were subjected to treatment like outcastes, were taken care of by the Parliament in the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Act, 2017, which came into force last year in April.

The act aims to ensure prevention of the disease as well as ensure that the human rights of the persons affected with the disease are not transgressed.

Thus, there is also a mechanism in place to provide people suffering from AIDS on the government support. The disease has no cure, but if detected at an early stage, the virus may be kept under control and the disease may not create havoc in the lives of the patients.

The annual average wages for a person who suffers from AIDS in our times, annually, must be somewhere around INR 1.80 lacs, which only includes the amount of sustenance and medicines.

While the people who suffer from AIDS, are burdened with meeting the familial expenses as well, there exists a mechanism in various states to put them on government support.

Today, a bench of acting Chief Justice of the Delhi High Court, Gita Mittal while hearing a PIL filed by an AIDS patient, remarked that the support that the Delhi Government provides to these needy people is even less than Rs 100/- a day, which is Rs 1000/- per month. The Court even said that the Delhi government can provide free water and electricity when it is cash strapped, but cannot provide humanitarian assistance in the form of minimum wages to these needy people.

The issue delves deeper as the governments all over have not tried to subsidise the medicines needed to keep the virus in check, be made available to people easily, as they remain highly priced.

The state support has to be multifold, as they will have to provide medicines at an affordable price, while they  ensure a payment of minimum wages to the patients who find it tough to find employment due to their failing health.

The lives of those walking with AIDS must be aided, while the ones with aids to support their needs, must not be aided at the cost of those in need.

The move of the HC is a right step at enabling beneficial treatment towards the patients of AIDS.

Changing Societal Morality: SC to Revisit Naz Foundation Judgment

In December, 2013, the Supreme Court of India gave its landmark judgment wherein it upheld the Constitutional validity of section 377 of the IPC.

The section has remained as it was laid down by Lord Macaulay, in the original draft of the Indian Penal Code. The Delhi High Court, in the same case had struck down the section stating that it was violative of the privacy of the individuals, who establish homosexual relations out of consent.

The judgement was appealed in the SC in the case of Suresh Kumar Koushal & Another vs Naz Foundation and Others. The Supreme Court also dismissed the review petition against the order, and now the curative petitions lie before the judges to take notice of.

A bench of Justices AM Kahnwilkar, DY Chandrachud and CJI Dipak Misra suggested that the judgment above needs to be reconsidered by taking all the aspects in a cumulative manner.

There has been a very deep social debate not only in India but across the globe over legalising the association between people of the same sex. The religious scriptures that command authority over men have announced that the sexual energies are to be used only for the procreation of children, while the society has of late began to recognize the prevalence of homosexuality.

Homosexuality has been studied in psychology where there are proofs of the fact that it is a psychological disorder, while the transgenders and bisexuals are left unexplained, in the lurch of perversion.

Thoughts, are the implants of desire that bears result in time. The emotional aspect of lives is one that nobody but a man himself may control. The choice of individuals to live the way they want describes a lot of aspects about their lives.

The people now a days have developed certain acceptance towards those who don’t do things in the dark. They do it openly and with consent. At least they remain better placed than those who rape women or force males into homosexual activities.

The legal sphere accords granting of liberties to men and women to live as they want, while the society uses its weight to avoid any frictions between the accepted norms.

Indian society is known to have been conservative. While the Court is faced with a narrow view of the society which represents the LGBT community, the majority of people who live straight lives, need to come out strong to use their weight to transgress upon individual freedom.

There has been a wide scale of support to people who have come out openly as LGBT, and the recent facebook demonstrations for support have assumed significance.

Thus the overall picture will be very thorny, as the SC treads along the road less taken to find the majority at one end and a minority at the other.

As the law is used as a means to social end, there will have to be a lot of ground work and opinion moulding before an abrupt order is enforced. The possibility of rioteering and ruckus, honour killings and suicides may be followed as has been seen in the case of Special Marriages.

The law will have to move cautiously.


Salary Hike for Judges A Reminder of Supremacy of the Parliament

With the Parliament aiming to give the salaries of the judges a hike, the Parliamentarians from all hues have seemed to develop an understanding with the Minister for Law and Justice, Mr Ravi Shankar Prasad’s antagonism for the Judiciary altogether.

In a piece on this portal by this author, the importance of the judiciary, and the need to keep it free from the political discourse, the author left out certain issues that remain at the centre of the  discussion.

Today, the political forces in the country are not stable. The law reflects the ideas of the law-makers, while the High Courts and the Supreme Courts are the sole guardians of the Constitution. There have been occasions when the National Parties, like the Congress, BJP, CPM, and other regional parties have used their weight to meddle with the judiciary.

The most unforgettable incident remains the appointment of Justice AN Ray by Indira Gandhi during her emergency years, and the abuse committed by the judiciary that became inimical to the political democracy of the nation and individual rights.

Today’s discourse is about the power of the ruling regime to dictate the judicial conscious, more than ever. The judicial discourse, if at all goes against the ruling it gives the detractors and the opposition a saga to harp upon. The incident that marks this phenomena is the Right to Privacy decision.

The Supreme Court in its bid to relieve the Muslim women also passed a decision against the practice of talaq-e-biddat which has relegated the conflagration to the next levels. This made the Law Minister remark about the judiciary remaining in its limits.

The discourse has another angle which is the appointment of judges in the Constitutional Courts across the country. The Memorandum of Procedure has not been finalised yet, while the Parliamentarians, in unanimity have tried to stand together against the collegium system .

The Supreme Court has also been targeted to make the judiciary a select preserve of the few, ‘business judiciary’, which is a direct insult of the judiciary by a Parliamentarian. This is the view of a CPM member of Parliament, and it is based on the fact that certain senior advocates charge a good amount of fees. While the fees and the need are left to the parties concerned, the whole story must be described based on the fact that how Advocates, not only in the High Courts, but also the Supreme Court serve their clients. The clients who are unable to pay the fees, are given free legal aid, and are represented by the same senior advocates, while there are other advocates too, who represent their clients for no fee. The advocates also provide lodging facilities to their clients.

The Judiciary selects only those lawyers, who have the mantle of going into the depth of the law, and they don’t spend time like most of the lawyers trying to make a debut in politics. The lawmakers from every background have not been very effective in drafting laws of high pedigree.

The law makers must realise that the judiciary is there to aid the Parliament in keeping this State apparatus in function. The faith of the masses rests with the Judiciary, which has kept its dignity in many trying situations, which must not be abused.

The Constitution of India, is supreme, and the judiciary as well as the parliament are subordinate to it, while ensuring separation of powers.

Thus the lawmakers while giving a hike to the wallets of the judges must not try to assert their supremacy if they have the power to account for the taxpayer’s money.

Jai Hind.