Constitutional Morality And Religious Practices

In the recent Sabarimala judgment, one of the ‘principles’ used by the honourable judges was that of ‘Constitutional morality’ to decide that the ancient practice of restricting women of a certain age from entering the Sri Ayyappa temple at Sabarimala was unconstitutional. The conclusion drawn was that the rights under the Constitution that were related to religion and religious practices were subject to passing the test of ‘Constitutional morality’.

Although majority of us remain incapable (yet) of understanding what the term ‘Constitutional morality’ is, the natural assumption is that the honourable Supreme Court has a firm grip on the concept and is unambiguous and consistent about it.

In this regard, let us look at the opinion of a few of the judgements with respect to the interplay between Constitutional morality and religious practices.

In the Sabarimala judgment itself – Indian Young Lawyers Association vs The State Of Kerala – delivered in September 2018 –

(I) At least 3 of the honourable judges have held that Constitutional morality reigned supreme over religious rights.

However, honourable Justice Indu Malhotra, in her dissenting judgment has touched upon this topic and held a different opinion.

11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts. 11.7. The followers of this denomination, or sect, as the case may be, submit that the worshippers of this deity in Sabarimala Temple even individually have the right to practise and profess their religion under Article 25(1) in accordance with the tenets of their faith, which is protected as a Fundamental Right.

11.8. Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand. Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.

The honourable Judge then concludes as follows.

Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.

(II) The conclusion is therefore that the meaning of Constitutional morality is in fact harmonisation of fundamental rights, with none being greater or lesser.

In the Triple Talaq judgment – Shayara Bano vs Union Of India – delivered in August 2017 (just a little over a year ago) – the honourable CJI Justice J S Khehar and honourable Justice Abdul Nazeer addressed the following question posed as part of the petition (quote directly from judgment)

One of the issues canvassed on behalf of the petitioners, which was spearheaded by the learned Attorney General for India, was on the ground, that the constitutional validity of the practice of ‘talaq-e-biddat’ – triple talaq, was in breach of constitutional morality.

After a long discussion that involved citing several previous judgements and Constitutional Assembly debates, the honourable judges arrived at the following conclusion.

172. There can be no doubt, that the ‘personal law’ has been elevated to the stature of a fundamental right in the Constitution. And as such, ‘personal law’ is enforceable as it is. All constitutional Courts, are the constitutional guardians of all the Fundamental Rights (– included in Part III of the Constitution). It is therefore the constitutional duty of all Courts to protect, preserve and enforce, all fundamental rights, and not the other way around. It is judicially unthinkable for a Court, to accept any prayer to declare as unconstitutional (-or unacceptable in law), for any reason or logic, what the Constitution declares as a fundamental right. Because, in accepting the prayer(s), this Court would be denying the rights expressly protected under Article 25.

Readers can refer to the judgement cited and confirm that although the context was “personal law” the discussion was very much about the interplay between Article 25 (freedom of practise of religion) and Constitutional morality.

They concluded as below.

174. The prayer made to this Court by those representing the petitioners’ cause, on the ground that the practice of ‘talaq-e-biddat’ is violative of the concept of constitutional morality cannot be acceded to, and is accordingly declined.

The conclusion therefore was that the rights under Article 25 are fundamental rights and anything covered under the same cannot be tested against Constitutional morality.

In the same judgment, Justice Kurian Joseph observes as follows.

Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that “nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice.

The other two honourable judges have not commented on the question regarding Constitutional morality and religious practices, although the petitioners had raised this question. One conclusion to draw would be that they held no opinion on this matter, or that it was not needed given that they were able to arrive at their decision without having to address this question. The other conclusion would be that these two honourable judges also concurred (on this question) with the opinion of the CJI and other two brother judges.

(III) In any case, a majority of judges in the triple talaq judgment held that religious rights supersede Constitutional morality.

From (I), (II) and (III) above, we notice that within a matter of 13 months, three different interpretations of the question of Constitutional morality vs religious practices have been held.

a) Constitutional morality weighs greater than religious fundamental rights

b) Constitutional morality is all about harmonising all fundamental rights, including religious.

c) Constitutional morality cannot be acceded to matters concerning religious fundamental rights.

In the nation like ours, where religious issues continue to dominate public life, many more issues are likely to come up where religious rights face a test against other fundamental rights. Perhaps it would be a good idea for a larger bench of the Supreme Court to sit and arrive at a unanimous principle on the question of ‘Constitutional morality vs religious rights’. Because it is natural that there will be differences when it comes to application of any principle (whether it applies in a particular case or not, for e.g.). However, there must not be any ambiguity at all, about what the principle itself is.

 

SC Medical Colleges Case: Reasonable Grounds for Fear of Bias?

A lot many articles have been written in the past week or so on the developments in the Supreme Court of India with regard to the petition by CJAR seeking the constitution of an SIT to monitor an investigation into a medical college scam. Two excellent articles that must be read in this regard are here and here.

In this present post, I would like to discuss a little about the theoretical grounds for the ‘bias’ that is being feared, due to which the recusal of the CJI was being sought in the petition.

Extrajudicial source doctrine

In many countries, and especially so in the United States, the doctrine of ‘extrajudicial source’ is applied whenever a situation arises where the recusal of a judge is sought for. The principle generally followed is that the judge does recuse from a matter if the possibility of bias arises from an ‘extrajudicial source’.

The concept of ‘extrajudicial source’ has been described well in the matter of Johnson v Trueblood 629 F.2d 287 in United States Court of Appeals, Third Circuit. It says

“Extrajudicial bias refers to a bias that is not derived from the evidence or conduct of the parties that the judge observes in the course of the proceedings”

The origin of the doctrine itself can be traced to Berger vs United States 255 US 22 (1921).

According to this doctrine judges may be disqualified from a case only if the possibility of their bias arises from an extrajudicial source.

In the present case, the situation is not that the matter filed by CJAR was either heard earlier by the judges whose recusal was being sought. Nor is it the case that either the same or related matter was heard earlier and an appeal was being made. In either of such situations, the test of extrajudicial source of bias fails and there would have been no grounds for seeking recusal.

However, in the present case, the possibility of bias is being derived from an FIR filed by the CBI, in which there is a mention about the offenders (named in the FIR) having declared that they are working on “getting the matter favorably settled” in the highest court of the land. Given this fact, the recusal of some of the judges who were hearing the medical cases matter was being sought.

Hence the grounds for fearing bias, in the present case, clearly is derived from an extrajudicial source.

In the present case, both the 5-judge Constitutional Bench that annulled the orders of Justice Chelameshwar and Justice Nazeer, and the subsequent 3-judge bench that dismissed the petition placed far too much reliance on the observations of the SC in the ‘D.C Saxena vs Hon’ble CJI” matter.

In the cited case, the matter of the petitioner was dismissed summarily, following which he filed a writ petition against the CJI alleging bias and sought various remedies including removal of the CJI. The petitioner demanded, during the pendency of his petition, that the CJI not constitute any benches nor allocate work.

It was in response to this absurd demand that the observations of the Constitutional powers of the CJI were made. And clearly, in that matter, the source of the bias was NOT extrajudicial, since it was clearly connected to the dismissed matter of the petitioner.

However, in the present case, like highlighted earlier, the source of the bias that was feared was clearly from an altogether different matter – the CBI FIR and the pointers therein to the pending case before a bench of the SC.

Applicability for administrative matters

This question has been explained very well by Sri Gautam Bhatia in the article cited above. Hence I will not delve into this in any detail. Clearly, there is sufficient ground, due to the setup of the Supreme Court and the powers of the CJI, for fearing possibility of bias even on the administrative side of matters. Hence the request was made.

Such matters have been encountered earlier on administrative issues on the executive side. The general inclination seems to be towards treating administrative and judicial decisions on par in such matters. For e.g. in ‘Administrative Law’, Wade and Forsyth state

“..this distinction has long been a vexed issue but submit that it is now clear that in accordance with general principle, the same approach to bias should be adopted to
both administrative and judicial decisions”

While the reference in the above cited work is intended towards administrative matter bias in executive and other organs of the Government, there is no reason to deny its applicability in the present case, for the administrative side of things in the SC.

Reasonable Observer Test

In many countries, a ‘reasonable observer’ test is applied to determine whether bias that is feared has a genuine basis or not. If this particular test is passed, then there is sufficient ground to consider that the possibility of bias exists.

The basic premise here is that the reasons being quoted for fearing bias must appear to be valid to a ‘reasonable observer’. Many countries have their own definitions of who is a ‘reasonable observer’.

In Australian jurisprudence, the test is defined thus

“whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”

According to Canadian law, the bias must be apprehended by

“the reasonable, informed, practical and realistic person who considers the matter in some detail”

Irish case law mandates that

“(a) reasonable and fair-minded observer must apprehend bias on the part of the
decision-maker”

From these definitions, the concept of a reasonable observer becomes quite evident.

In the present case, to arrive at a decision whether a ‘reasonable observer’ can apprehend bias, we need to look at some of the statements in the CBI FIR.

“…who assured to get the matter settled in the Apex Court through their contacts…”

“…and they further engaged….(persons named)….for getting the matter settled in the Apex Court”

“However he demanded huge gratification for inducing the public servants by corrupt and illegal means…”

The above statements seem to have been the basis for the request for recusal made as part of the petition. The question is – does it cause grounds for fearing bias to any ‘reasonable observer’?

Again, one must remember that it is sufficient for a *possibility* of bias to be apprehended in order to request a recusal. Obviously whether or not there is any truth at all in these allegations is a totally different matter.

A Legal Case for Shared Parenting

Provisions in the Indian Constitution related to Children’s Rights

There are not too many provisions in the Indian Constitution which talk explicitly about the rights of children, and the rights & duties of parents towards children. Article 39(f) briefly touches upon this topic, but only in passing reference.

“Article 39(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”

However, this Article, being a part of the Directive Principles, is not really enforceable.

Apart from the above, the rights of children and parents are protected only in a generic sense by the rights protected under Part III

Procedure to be followed in the absence of domestic law

Issues such as custody of children, visitation rights, ‘best interest of children’ and responsibility of parenting have not been codified well under Indian law. While there is some coverage under Acts such as the Guardians & Wards Act 1898, the Hindu Marriage Act 1955 and the Prevention of Women From Domestic Violence Act 2005, the focus of the provisions under these Acts is more on the procedure to be followed with respect to these issues, rather than defining what considerations should go into determining custody, visitation and ‘best interest of child’.

It is therefore safe to say that there is NO clear domestic law on these topics.

The judiciary, over the course of several decades and judgements, has used the power of discretion it wields, to determine ‘best interest of child’ in adjudicating most of the cases involving disputes over custody.  However, in the recent judgement in “Justice K S Puttaswamy and Anr Vs Union of India and Ors”  the Supreme Court of India has laid down very clear guidelines on the process to be followed in such situations.

The honorable Supreme Court has said that in the absence of clear domestic law or legislation on any front, the relevant International law has to be construed as part of domestic law.

In para 91 (page 91) the Court says

“In the view of this Court, international law has to be construed as a part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party”

In the same judgement, in para 133 (page 130) the Court says

“On the contrary, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation. In fact, the enactment of the Human Rights Act by Parliament would indicate a legislative desire to implement the human rights regime founded on constitutional values and international conventions acceded to by India”

Thus it becomes clear that International treaties and legislation, to which India is a party, must be considered as domestic law itself and adhered to, especially in cases where there is no explicit domestic legislation to the opposite effect.

Convention on the Rights of the Child

On the 2^nd of September 1990, the United Nations Children’s Fund (UNICEF) came out with a Convention on the Rights of the Child. In its own words, the convention is defined as follows

“The Convention on the Rights of the Child is an international treaty that recognizes the human rights of children, defined as persons up to the age of 18 years. The Convention establishes in international law that States Parties must ensure that all children—without discrimination in any form—benefit from special protection measures and assistance; have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in, achieving their rights in an accessible and active manner”

India is a party to this treaty.

The Convention contains several articles that confer rights on children on various aspects of their development. However, some articles that are relevant from the point of view of a child whose parents are separated are as below

“Article 9(1) Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”

“Article 9(3) Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”

“Article 14(2) Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child”

“Article 18(1) Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern”

“Article 29(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own”

In summary, the rights conferred by the treaty, on children, and parents, can be summarized as follows

1. Children cannot be separated from any of their parents, against the will of the parents
2. Children have a right to maintain relations and contact with both their parents
3. Parents have common (read as equal) responsibilities for the upbringing and development of the child
4. Only under extreme scenarios, and if also in best interest of the child, can the above rights be restricted

Manifestation of existing practices on children’s rights

Under Indian jurisprudence, it is common practice to grant custody and guardianship to one parent and allow only visitation rights to the other parent. Even under the best circumstances, the non-custodial parent gets visitation rights to the extent of only a few hours a week. Over the course of a year, the non-custodial parent may get, under the very best of circumstances, a total of 30 days (aggregate) custody of the child. This translates to less than 10% of the time of the child.

Needless to say, due to such reduced access to the child, the child is denied the chance to maintain appropriate relations and contact with the non-custodial parent.

Viewing the same from the angle of the non-custodial parent, minimal custody and visitation rights renders it impossible to fulfill his or her duty towards the child, except perhaps financial obligations which can be discharged even without physical access to the child (through maintenance support and so on). The non-custodial parent has very limited, almost non-existent, opportunity in areas such as education of the child, imparting of moral and social values, developing respect in the child for culture, identity, language and the nation.

Thus, the prevalent practice of limited visitation rights greatly destroys the rights of the child, and the non-custodial parent, as guaranteed by the Convention on the Rights of the Child. In other words, it applies restrictions on the rights of the child and the non-custodial parent.

Restrictions on Rights – need for non-excessiveness

Under Indian law, it is very much allowed for the State to restrict the rights of an individual. However, the restrictions must possess several attributes for it to become applicable.

Udai Raj Rai, in his book “Fundamental Rights And Their Enforcement”, gives a descriptive list of the attributes that ‘reasonable restrictions’ must possess in order for them to become applicable. Few examples are

• Restriction should not disproportionate
• Restriction should not be more than necessary to prevent the evil sought to be remedied
• Restriction should not be more than necessary to achieve the stated objective

In addition to the above, there are two important attributes of reasonable restrictions that must be adhered to

1. The restriction should not be excessive
2. The vagueness of statutory provision may make the restriction excessive or disproportionate

The Supreme Court of India also, over various judgements, has held the above to be valid tests of the reasonableness of a restriction.

In Chitaman Rao vs the State of Madhya Pradesh, the Supreme Court said

“The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public”

In State of Madras vs V G Row, the Supreme Court said

“The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict”

It becomes quite clear from all the above that even when the right of an individual has to be restricted due to circumstances, it must never be excessive.

In other words every opportunity must be ensured that the individual gets to exercise his or her right to the maximum extent possible.

Shared parenting as the go-to solution

This article will not venture into discussing the concept of ‘Shared Parenting’. In short, shared parenting refers to a collaborative arrangement in child custody or divorce determinations in which both parents have the right and responsibility of being involved in the raising of the child(ren). Both parents obtain equal custody rights under this method, and also bear equal responsibility on other aspects of the child’s development as well.

There has been a considerable amount of research that shows shared parenting to be a very effective instrument in reducing the ill-effects on a child that has to grow under separated parents.

From the point of view of this write-up, it is quite clear that under shared parenting, the child

• Is guaranteed equal access to both the parents
• Gets an opportunity to maintain equal relations with both parents
• Gets equal aid/attention from both his parents towards his or her physical, mental, social, moral and cultural development

From the point of view of the parents, shared parenting ensures

• Both parents get equal responsibility, and opportunity, towards upbringing of their child(ren)

Research has established numerous other benefits of shared parenting, as it is the closest that comes to co-parenting. However, only the ones that are relevant from the point of view of enabling the rights of the child and parents have been mentioned here.

Conclusion

In the absence of clear domestic law, the Conventions on the Rights of the Child has to be adopted as part of Indian law. The said law grants several rights to the child which assure equal care from, and equal access to, both the parents. The said law also imposes duties on both parents towards upbringing of their child, even when separated.

Shared parenting is the only arrangement that can come close to fulfilling the requirements of the UN treaty, in the case of separated parents and upbringing of their common child.

SJW Laws: Designed for Misuse?

Recently, the Supreme Court of India issued some landmark directions to curb the menace of misuse of the draconian IPC 498A. It has brought in a more rigorous review process, in the form of Family Welfare Committees, to reduce the problem of false cases and consequent arrest of innocent people.

Naturally, this new directive has attracted the ire of feminists and SJWs. In spite of strong evidence regarding rampant misuse of the law, these activists refuse to acknowledge the problem. One recent article on this issue totally dismissed the existence of the problem in one line stating the total number of cases of misuse was ‘miniscule’. At the same time, the article dealt in great detail the issues faced by the victims of domestic violence and abuse *in dealing with the criminal justice system* of India.

Since I want to deal with a different topic in this post, I will only briefly comment on the said article.

• The article is totally wrong regarding the prevalence of misuse. Like quoted earlier, there is ample evidence indicating the rampant nature of the problem. It is also unlikely that multiple High Courts and multiple benches of the Supreme Court, over a period of many years, would come to the same conclusion that misuse was common, if it were actually not so.
• The article is very accurate on the issue of the problems and inefficiencies of our justice system. I fully agree with the suggestion of the author that real justice would be served if separate courts are setup for such issues, and cases are disposed off in three months. In fact, if we actually reach a stage where we are able to dispose off cases in three months, then an additional month in the initial stage, for the purpose of weeding out false cases would hardly make a difference, given the fact that today it takes 5 years or more for such cases to be concluded. Also, a drastic reduction in false cases would only reduce the burden on the criminal justice system thereby helping it deal with genuine cases even faster.

The interesting part of the above quoted article is the detail with which it highlights the problems of our justice system today. Inordinate delays in getting the police to accept FIRs, the snail’s pace at which the courts move, the harassment to which the victims are put to, the abysmally low conviction rate and victims being forced to ‘settle’ the cases – are all true. But these are true for any case in India today, not just 498A or dowry cases. And it’s true for even men who end up fighting cases. Even if an individual has to file an FIR for a lost cellphone or a laptop, the hassles are the same. If an individual loses his or her vehicle and then it is found by the police, it takes several months to obtain the same from the courts. Obtaining a bail, especially for the poor, can be an arduous and long process.

If one were to categorize the most important issues with the criminal justice system today, I am confident a majority would agree with the following three

• Low conviction rate
• Inordinate delay in delivering justice/punishment
• Hassles faced by the parties involved

Keeping in mind the above issues, especially the three listed above, I have tried to study a few of the criminal laws and amendments that have been brought into effect in India in the past few years. In particular, I tried to analyse the following.

• Section 498A of the IPC
• The Protection of Women from Domestic Violence Act, 2005 (DV Act)
• The SC and ST (Prevention of Atrocities) Act – 2005 (Amendments)
• The Criminal Law Amendment Act, 2013 (amendments to the Rape Law)
• (Draft) Protection from Lynching Act, 2017

Attempt at circumventing systemic problems

When we look at these laws which have come into existence in the past 2 decades or so, we can identify a conscious attempt in shaping the law in a way some of the problems existing with the criminal justice system is overcome. One point to note is that these laws do not attempt changing or improving any of the processes with justice delivery. They introduce measures in the law to *work around* existing issues.

I) Increasing the scope of the crime

Given the low conviction rates in India for almost all crimes, one striking similarity between all these laws drafted by SJWs is the effort to increase the scope of the crime. The theory here seems to be that if more people are subjected to a law, the natural consequence would be that more people would get convicted. This manifests in two ways

• Loosening the definition of the crime
• Widening the definition of accused

The tendency here is to enlarge the definition of what constitutes a crime and also make it abstract to measure and prove. A second aspect is to include as many people related to the incident as possible amongst the accused.

In the DV Act, ‘domestic violence’ includes “….includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse….”. The Act goes on to define what constitutes verbal, emotional and economic abuse and includes an extremely broad definition for each of these. Even if a couple have a fight and words are exchanged between them, the retorts of the husband to the wife can and will qualify as ‘verbal violence’. Further, under the DV Act, all persons who shared a domestic household with the victim can be named as accused.

In the SC/ST Atrocities Act, there are nearly 29 categories of atrocities defined under Section 3. The Act lists these Atrocities using english alphabets and after running out of alphabets has sub-clauses named za, zb and zc. The list includes offences such as “giving false information…that can cause annoyance to a SC/ST member”, “insulting a deceased SC/ST member”, “…dumps obnoxious matter in the neighborhood…..” and so on. The definition of who can be an accused is again very broad – “any person who is not a member of the SC or ST community”

Under the modified rape laws (since 2013), the definition of rape has been changed and includes a definition that reads “…manipulates any part of the body of a woman so as to cause penetration into the …..or any part of body of such woman or makes her to do so with him or any other person….”. Recently Ms Madhu Kishwar has filed a PIL in the Delhi High Court highlighting such a classification of the offence and states, rightly, that even a non-sexual penetration can be classified as rape under this new law.

In the draft MASUKA lynching act, it is proposed that anyone who conspires to lynch will be treated in the same manner as one who lynched and will be subject to the same punishment. In other words, even if a person has not actually committed the act of lynching, he can still be punished for lynching.

Thus we see how, by loosening the definition of the crime and widening the net for accused, these laws intend to cause more and more people to be dragged in as accused. It does seem like this tendency is a response to the prevalent low conviction rates in our judicial system.

II) Interim relief or justice

A second aspect identified earlier in this post, with regard to the problems with the criminal justice system, is the inordinate delay in cases reaching closure. Coupled with low conviction rates, this means that most accused do not undergo punishment that the law actually prescribes for the offences.

The laws under analysis definitely make an attempt to work around this problem by introducing measures that aim at delivering some form of punishment to the accused, and relief to the victims, during the pendency of the trial itself.

Under the DV Act, the victim woman is entitled to a ‘protection order’ from the courts. If such protection order is issued, then the accused cannot engage with the victim in any form whatsoever. There cannot even be verbal communication attempted with the victim. At the same time, the victim is given (in many cases, rightly so) the right to live in the shared household, along with the accused (husband and his family). It is no brainer that a protection order combined with a residence order is a most impractical benefit accorded. Living with a family while being legally prevented from communicating with each other is more a punishment than a relief.  In numerous cases, therefore, the husband is forced to vacate the property to avoid further criminal charges.

Under the same DV act, during the pendency of the case, the accused cannot dispose off any assets of household articles in which the victim can have an interest or entitlement. So if a case drags on for years and even if the accused have genuine financial constraints (for e.g.) they cannot dispose off any property or assets on which the victim can stake a claim.

Under the new rape laws, the ‘minimum punishment’ irrespective of the extent of the crime is 7 years imprisonment. The law has completely done away with the concept of graded punishment depending upon the severity of the crime, which is a common principle of natural justice. Like the PIL by Ms Madhu Kishwar highlights, the punishment for unwanted bodily embrace and physical penetration, though both definitely crime, are equated and same punishment is mandated by the law.

Under the proposed MASUKA law, any person who offers any assistance to an accused under the Act can be sentenced to 5 years of imprisonment. Such a measure would definitely prevent family and friends from offering any assistance to an accused, even if they know that he or she is innocent. The trial stage of the case itself can therefore become a terrible punishment for the accused with complete lack of support.

Thus, these laws have creatively incorporated various clauses in them that serve to deliver ‘interim justice’ to the accused. This is a definite response to the problem of long delays and low conviction rates in our system.

III) Reducing hassles for the accused

A third problem we had noted earlier is that of the hassles that have to be faced by the parties involved. Cases can go on for years. Victims (and accused) have to appear in courts hundreds of times. Interim reliefs take months to be pronounced. Dealing with police, public prosecutors and courts can be extremely consuming.

While the above problems are common to both victims and accused, the laws have focused on introducing measures that attempts to alleviate the problem for victims.

Under the 498A Act, once a chargesheet is filed, the victim has to appear before the courts only during evidence stage. The accused of course have to appear during all hearings. To be fair though this rule is common to all criminal cases when trial occurs. However, this provision facilitates those who file false cases because they really don’t have to ‘fight’ their cases since the State does so on their behalf.

Interim monetary reliefs for things such as medical expenses, loss of earnings and so on can be granted under the DV Act and these, and maintenance, have to be “…consistent with the standard of living to which the aggrieved person is accustomed”

Under the SC/ST Act, the victims, informants and witnesses are entitled to traveling and maintenance expenses during the investigation, relocation and social-economic rehabilitation.

Under the proposed MASUKA Act, the following is proposed in relation to a witness

“….it shall be the endeavour of the Court to ensure that any witness is not required to attend court on more than two dates of hearing”

Thus we see that various provisions to attempt reduce the trouble for victims is incorporated into these laws.

Facilitation of misuse

Even though there are 2 opposing parties involved in any dispute, any attempt to circumventing problems with the system can only favor one side. That is the very nature of remedies attempted. And naturally, such remedies in a law have to be oriented towards the victim(s).

The fall out of these provisions is that they greatly facilitate misuse.

• The increased scope of the crime makes it very easy for those who misuse to indict anyone whom they wish to target
• The attempt at interim relief or justice makes it very attractive for those who misuse to inflict pain and misery upon their targets and also derive monetary benefits
• The aim of reducing hassles for the victims makes it possible for those who misuse to undergo no trouble when engaging in falsely accusing others

Another common, and extremely important, aspect of all these laws is that there is absolutely no provision for penalty and/or punishment for misuse. This means even if the case is proven to be a deliberately false one, the laws themselves provide no counter measure to punish those who misuse.

For a person who wishes to misuse the law, the following four weapons are available

• Ability to indict whomsoever you wish (to target)
• Ability to inflict considerable social, economic, financial and physical damage during the trial
• Minimal hassle while engaging in the false case
• Zero punishment even if caught

Given the above, it is a no-brainer that these laws are widely misused.

Conclusion

Laws should focus on accurate description of the crime, the duties of the victim, accused and State upon a crime occurring, the punishment to be meted out and the relief to be provided. If the laws, in addition, venture into overcoming the deficiencies of the justice system, they will end up becoming biased towards the victims and against the accused. Under such circumstances, rampant misuse of such laws is an unfortunate but natural side-effect.

 

 

 

Temple funds for Hindu schools: Yes or No?

Background:

(Only an overview provided here – not the full details of the mess 🙂 )

Temples and Charitable Institutions in Karnataka are governed by the Karnataka Hindu Religious Institutions and Charitable Endowments Act 1997. This Act was challenged in the Karnataka High Court in Sri Sahasra Lingeshwara Temple, … vs State Of Karnataka.

In the year 2006, the Karnataka High Court passed a judgement in the above case and termed the entire Act of 1997 as illegal. This decision of the Karnataka High Court was challenged in the Supreme Court of India vide Civil Appeal 5924 of 2008. The Supreme Court has stayed the judgement of the Karnataka High Court until final judgement, which is yet to happen.

Meanwhile in the years 2011 and 2012, the Karnataka Government, assuming that the Supreme Court stay meant that the 1997 Act was valid, made some amendments to the Act. I will not go into the details of the amendments made since they are not directly related to the subject matter of this post. However, it is interesting to note that the 2012 amendment reversed some changes introduced in the 2011 amendment.

In the year 2015, based on a petition by 64 temples, the Karnataka High Court passed a judgement declaring the 2011 and 2012 Amendment Acts also to be illegal. This judgement was again taken to the Supreme Court vide SLP (Civil) 6834-6959/2016 and is currently being heard. However, the Supreme Court, in this issue too, stayed the judgement of the Karnataka High Court.

In summary, the Karnataka High Court has quashed the 1997, 2011 and 2012 HR & CE Acts of the Government of Karnataka and the matter is pending in the Supreme Court currently with all judgements of the High Court being stayed.

Let us assume therefore that the HR & CE Act, along with the amendments, is actually valid at this point in time.

The Janardhana and Mahakali Temple Case

In the year 2004, the management of the Janardhana and Mahakali Temple in Ambalpadi, Udupi went to the Karnataka High Court challenging an order of the Muzrai Deparment. The facts of the case and the judgement are briefly as follows

• The Ambalpadi temple, following the HR & CE Act procedure, used to donate funds to other needy temples and charitable organisations after obtaining the permission of the Deputy Commissioner (DC) of the Karnataka HR & CE deparment.
• The DC also used to regularly allow the temple to make such contributions via written permission.
• On 11-02-2004, the DC sent a communication to the temple asking it to stop all such contributions claiming it is not allowed as per the “new” Act.
• The single judge bench, after hearing the petitioners, and going through the previous written permissions of the DC, passed a judgement allowing the continuation of such contributions.

The Janardhana and Mahakali Temple Case – Appeal

The Government of Karnataka, via the HR & CE department, chose to appeal this single-judge-bench decision via a Writ Appeal in the Karnataka High Court (WA 5012/2004). This matter was heard by a two-judge bench which upheld the decision of the single-judge-bench and passed a judgement to this effect in 2005.

In upholding the impugned judgement, the bench made some specific observations which are extremely relevant in the context of the recent controversy in Karnataka where 2 schools run by Sri Kalladka Prabhakara Bhat in Dakshina Kannada district of Karnataka have been denied funds from the Sri Kollur Mookambika Temple by the Government of Karnataka.

I reproduce relevant extracts of the judgement below

“It cannot be disputed that the respondent-temple is a religious institution and the money received by the respondent-temple is from the devotees who are religious. Therefore, when the funds are collected by the temple from the members of public, it is just and proper to permit the temple to utilise the same for the good of the public, namely, for charitable purposes like financing for maintenance or development or establishment of a hospital or establishment of educational institutions of charitable nature and which are not in commercial nature; or financing for mid-day meal provided to children in educational institutions”

“If the object of disbursement of funds is for charitable or religious purposes and if such fund is disbursed within reasonable limits, keeping in mind the total funds available in the respondent-temple, normally the authorities cannot refuse to accord permission for the request made by the respondent-temple”

One can see that the honourable High Court has upheld the contributions of the temple without even going into the technical details of what the HR & CE Act states on such transfers. Further, the judgement imposes no condition with regard to the charitable institutions and purpose being in any way connected to the temple that wants to contribute.

The HR & CE Act provisions

The Karnataka HR & CE Act provides for the creation of a “Common Pool Fund” by the DC which will be sourced from

“Section 17 contributions made by the Notified Institutions at five percentum of their gross annual income arrived at after deducting the following…..”

Now, Section 19 of the same Act deals with the Administration of the Common Pool Fund, created as above, and it says the following in one of the clauses

“Section 19(1) The Commissioner shall administer the Common Pool Fund subject to the conditions herein stated and for the following purposes, namely…”

……

“Section 19(1) (f) the establishment and maintenance of educational institutions where instructions in the Hindu religion is also provided”

….

“Section 19(1) (l) any other charitable or Hindu Religious purpose”

From the above, it is quite clear that the HR & CE, *in principal* is perfectly ok with excess funds from temples being used for maintenance of schools, and any other general Hindu charitable organisational purposes.

Conclusion

This intent of the Act, combined with the explicit directions from the Karnataka High Court, makes it obvious that usage of temple funds for funding mid-day meals, books and uniforms of kids in schools is perfectly legal and MUST BE ALLOWED.

 

Three Definitions of Minorities

Based on the actions taken by the State of India, three different definitions of the word “minorities” can be identified. Depending upon the purpose intended to be served, one of the three definitions is used. Here is a short introduction to the 3 types.

Type 1: “Minority need to be Majority”

This definition kicks in when a particular privilege is to be granted.

The spatial unit used under this definition is a area, block or district.

Illustration:

Under the PM 15 point program, various resources such as houses, toilets, roads, banks and other vital infrastructure which every citizen of the country requires is to be given, the definition of minority is an area, block or district where they are actually in majority. These units are variously called as MCDs, MCBs and so on.

Type 2: “Minority cannot be Majority”

This definition activates when a benefit is to be exclusively retained.

The spatial unit used under this definition is a state.

Illustration:

Article 30 of the Indian Constitution became necessary to ensure minorities do not suffer, due to their numerical inferiority, in being able to run educational institutions so they can sustain and grow their religion, culture, language etc.

In areas where the minority are in majority (as per definition 1 above), minorities have by definition numerical strength. They can naturally take measures to sustain and grow their culture and language. Further, as per the RTE law, all kids entailing the benefits should compulsorily join schools within a small radius of their locality. Thus, if RTE were made applicable in MCD/MCB areas, there simply is no threat to minority schools.

To overcome this logical khichdi, definition 2 is used. For the purposes of opening educational institutions, minority status is decided on a state basis and not on a district or block basis.

Type 3: “Only Minority can be Minority”

This definition is used when “non-minorities” need to be deprived of a benefit.

The spatial unit used for this definition is the Country.

Illustration:

In many states of India such as Jammu Kashmir, Kerala and Arunachal Pradesh, Hindus are numerically inferior. Therefore, they qualify as minorities under definition 2 given above and can obtain benefits such as protection under Article 30 and exemption from RTE.

To overcome this logical avial, definition 3 is used. Under this category, minorities are decided on a national basis. Various arguments such as overall literacy rates, employment percentages are used to justify this. And counter arguments showing literacy rates of minorities in 2011 being more than that of Hindus in 2001 are discarded without consideration.

Conclusion:

Following are the 2 golden rules that can be derived from the above analysis.

1. Only minorities can be minorities.
2. If majority are actually in minority, refer to rule 1.

Is the NDA denying minorities their rights?

Today, the Hindustan Times has published an article titled “How the NDA is systematically denying minorities their rights” in which the authors, owing allegiance to the Congress party, make several claims trying to prove that the Modi Government is actually denying the benefits of many of the schemes that exist for minorities.

If one were to accept the claims in this article as-is, the only conclusion to draw would be that the NDA Government is anti-minority and is systematically removing all their benefits. The perception on the ground though, albeit with RW supporters, is the exact opposite i.e. that the NDA Government has increased its support and appeasement of minorities. Hence a closer look at some of the claims made in the article is necessary.

Allocations for minority welfare

In the third paragraph, the article says this

“First, the allocations for minority welfare have consistently declined since the time the BJP assumed office”

A little later in the 8th paragraph, the same article says this

“Even though it has nominally enhanced allocations for welfare schemes meant for minority development…”

It is quite evident the authors themselves are unsure whether the NDA Govt has increased or decreased the allocations!

Budget numbers

The article claims the following are the allocations for the year 2016-17

“It has dropped from Rs. 27, 172 crore in 2012-13 to Rs 9,930 in 2016-17. In percentage terms, it has come down from 1.93% of the budget (2012-13) to 0.50% in 2016-17.”

The authors have not given any link to the sources for these numbers. Let us look at some actual numbers.

Total plan outlay for minorities in the 11th Five Year Plan (2007-12) : 7283 crores

Total plan outlay for minorities in the 12th Five Year Plan (2013-18) : 17323 crores

Total minorities welfare department budget in the year 2012-13 : 3135 crores

Total minorities welfare department budget in the year 2017-18 : 4195 crores

Using the same reference years as in the article, the budgetary allocation for minorities welfare has gone up by 33% from the Congress Govt days to now.

Earmarking percentages in the PM-15 Point Program

The MoMA oversees a program called the “Prime Minister’s 15 Point Program for the Welfare of the Minorities”. Regarding this scheme, the article makes the following claim.

“The BJP ….. did not explicitly mandate that a percentage of the plan component of the budget be earmarked for minorities in proportion to their population”

Further down in the article, the authors make the following recommendation

“It would be expedient to mandatorily earmark 14% of the fiscal and physical outlays in the schemes under the PM15-PP for minorities”

On the 8th of February 2017, in response to a Starred Question (vide number 100) on the PM-155 Point Program, the Minister in charge of MoMA stated the following on the floor of the Lok Sabha

“All these schemes / initiatives are being implemented by participating Ministries / Departments, either exclusively or by earmarking of 15% of overall physical / financial targets (under the concerned scheme / initiative) or by monitoring the flow of funds in the minority concentration areas for the welfare of minorities throughout the country”

It is quite clear from the minister’s response that the Government is already earmarking 1% more than what the Congress is demanding.

Multi-Sectoral Development Programme (MSDP)

Several claims are made under this category. Let us look at a few.

• Claim 1

“It is being implemented in 90 districts with high concentration of minorities”

On the 2nd of December 2015, in response to an Unstarred Question (vide number 546) on the MSDP, the Minister in charge of MoMA stated the following on the floor of the Lok Sabha

“The Multi-sectoral Development Programme (MsDP), was launched during the year
2008-09 in 90 identified Minority Concentrations Districts (MCDs)…”

“The programme has been revamped in 2013-14 for better focusing and better
targeting on minorities. A total of 710 Minority Concentration Blocks and 66 Minority
Concentration Towns falling in 196 districts have been identified as per Census 2001 for implementation of the programme…”

So it was the Congress which focused on only 90 districts to implement this program in the beginning. The program has actually now expanded to over 196 districts (a 100% increase).

• Claim 2

“It has been well documented that a majority of Muslims are not counted in the BPL lists because of various reasons. Consequently, these funds are either diverted to non-minority beneficiaries or remain unutilised.”

Firstly, The authors do not provide any pointers to those “well documented” reasons due to which majority of Muslims are left out of the BPL lists.

Secondly, in the 12th Five Year Plan spanning 2013-14, out of a total outlay of 530316 lakhs for the MSDP, an amount of 415380 lakhs has already been disbursed to the various States by the Central Government. This means even with a full year to go, more than 78% of the funds have already been disbursed!!

(Note: These funds are allocated on an yearly basis and disbursed. So it is simply not possible that the entire 78% was disbursed by the Congress in 2013 itself)

• Claim 3

This claim is regarding the number of projects sanctioned & completed under the MSDP

“Union government said that in 2014-15, 4,70,165 projects were sanctioned for minority development but none were completed. In contrast, in 2013-14, when the UPA was in power, 52,698 projects were sanctioned and 16,967 were completed”

At first glance, it appears as if the NDA Government increased the total number of projects from 50+ thousand to 4.7+ lakhs without executing any of them. A closer look reveals the truth.

In February of 2014, just few months before the UPA Govt term ended, a new project was added to MSDP. This scheme is called “Digital Literacy under Cyber Gram” (DLuCG) and it imparts digital literacy in minority concentrated areas. Under DLuCG, each individual target (person) is considered as a project.

Under this scheme, the two states of West Bengal and Uttar Pradesh (till recently – a non NDA state) have been allocated a total of 3.43 lakh “projects” – most of which is still incomplete.

Since this scheme was non-existent during the Congress rule, it is totally incorrect to compare the project size of 52K back then with the project size of 4.7 lakhs now.

Detailed budgeting and expenditure tracking

The article makes the following suggestion

“In addition, to ensure proper monitoring of these schemes, a separate budget statement with details of targeted and non-targeted expenditure must be detailed”

The Ministry of Minority Affairs, in its website, has a separate section for its schemes. In this section, minute details of every single scheme including budgets, grants, state-wise disbursement list and records of past several years are maintained and is available for download freely. It would have been good if the authors had at least once glanced through this website.

Conclusion

The article in Hindustan Times has several factual inaccuracies with regard to the handling of schemes for minorities by the NDA Government. It is quiet clear from available data that the present Government is in fact increasing its focus and spending on minority welfare schemes.

Amendment to Article 15 of the Constitution

In order to further the cause of #Core2 and #Core3, here is a proposed amendment to the Constitution of India.

The PDF version is available constitutional-amendment-article-15-draft.

============================================================================

THE CONSTITUTION (ONE HUNDRED AND XXXXXX AMENDMENT) BILL, 2017

A BILL

further to amend the Constitution.

BE it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows:—

1. This Act may be called the Constitution (One Hundred and XXXXXX Amendment) Act, 2017.
2. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
3. In article 15 of the Constitution, under section 1, the following sub-section shall be inserted, namely:–

“15 (1) (a) In all matters concerned with access to, control over, or distribution of, any material resource of the country that is not private-owned, the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

 

STATEMENT OF OBJECTS AND REASONS

All citizens in this country have equal rights to the resources of this country. There cannot be any discrimination when it comes to the State distributing the material resources of the country. Such discrimination leads to appeasement of certain sections of society that can only harm the nation in the long term. Needless to state, such discrimination is also unconstitutional.

It is to be noted that the proposed amendment will not conflict with the objectives of the special schemes sanctioned by the Constitution for the development of socially and economically backward sections of the society.

In order to ensure the original intent of the founders of the nation with regard to Articles 14 and 15 of the Constitution is brought to fruition, and to ensure the spirit of the Constitution makers with respect to Article 39(b) is explicitly upheld, it is necessary to amend the Constitution, as above.

The Bill seeks to achieve the above objectives.

 

New Delhi

dd/mm/yyyy

Article 30 in truly secular India

A draft Constitutional Amendment Bill to set right Article 30.

Yes, I live in la la land.

The Quality of our College Teachers

Please read this previous related piece on the National Eligibility Test (NET) for context.

In order to become an Assistant Professor or a Junior Research Fellow in any of our Universities or Colleges, an individual MUST *qualify* in the NET. Even the IITs must consider the NET in order to recruit Professors.

Structure of NET examination:

• There are 83 subjects in which examinations are conducted.
• Every candidate must write 3 papers.
• The contents of the 3 papers are as follows
  • Paper-I shall be of general nature, intended to assess the teaching/research aptitude of the candidate. It will primarily be designed to test reasoning ability, comprehension, divergent thinking and general awareness of the candidate. 60 (sixty) multiple choice questions of 2 marks each will be given, out of which the candidate would be required to answer any 50 (fifty)
  • Paper-II shall consist of 50 objective type compulsory questions based on the subject selected by the candidate. Each question will carry 2 marks
  • Paper-III will consist of 75 objective type compulsory questions from the subject selected by the candidate. Each question will carry 2 marks

Qualification criteria:

• Pass marks for Paper 1
  • General category students : 40
  • Others : 35
• Pass marks for Paper 2
  • General category students : 40
  • Others : 35
• Pass marks for Paper 3
  • General category students : 75
  • Others : 60
• Once the list of students who have passed as per above is obtained, the top 15% of students belonging to SC, ST, OBC, Disabled Category and General Category are made in each subject.

The 5 lists, each containing 15% of top ranking students, constitutes the “Qualifying Candidates” list.

Just so that we internalize it – let us paraphrase it once again.

The people who join our colleges and universities as professors come from this top-15%-list.

In the year 2015, a total of 23595 students constituted this qualifying list. Let us look at the performance of these “top” students. Here is a table capturing the lower end of the top-folks 🙂

Paper	Marks Obtained	Number	Percentage of top students
1	35-40 (including 40)	1120	4.74%
2	35- 40 (including 40)	287	1.21%
3	60-75 (including 75)	3644	15.40%

Observations:

• 5% of the top students – who actually hold a Master’s degree or equivalent – cannot even score 40% marks in a paper which tests their reasoning ability, comprehension, divergent thinking and general awareness.
• 15% of the top students – cannot even score 50% in a paper which contains objective type questions on the subject of their choice. Again, these are Masters degree holders.

POST GRADUATES WHO STRUGGLE TO EVEN SCORE MINIMUM MARKS IN REASONING ABILITY, COMPREHENSION AND SUBJECT OF EXPERTISE ARE THE TOP TALENT AVAILABLE IN THIS COUNTRY ENDING UP BECOMING TEACHERS IN OUR *ELITE* COLLEGES.

GOD SAVE THIS COUNTRY!