KARTA: THE ELDEST [MALE/FEMALE] FAMILY MEMBER

by Abhyudaya Shishodia (Second Year Member of LAAC)

“The question isn’t who is going to let me; it’s who is going to stop me.”

– Ayn Rand

That’s the first quote that comes up when one googles the term ‘women empowerment’. Unfortunately, it remains a random statement from a random book which doesn’t really provide us with a true picture of things. The question has always been one of letting when we talk about Indian women in Hindu households. Patriarchal stereotypes never occurred naturally; they were a creation of society. And it is the laws of our country that have reinforced these stereotypes over ages; dictating what women are allowed to do and what they are not. The Hindu law is no exception to this. However, the Delhi High Court in the case Sujata Sharma v. Manu Gupta,[1] has levelled the playing field for women. Once again, the interpreter provided justice, unsponsored by the law itself.

The landmark judgement given by Justice Najmi Waziri declared that the eldest female member of a family can be its Karta. Written with a feminist undertone, the judgement reads, “If a male member of a Hindu Undivided Family (HUF), by virtue of his being the first born eldest, can be a Karta, so can a female member. The court finds no restriction in law preventing the eldest female coparcener of an HUF, from being its Karta.” This further clarifies the 2005 amendment to The Hindu Succession Act that made the daughter of a coparcener by birth “a coparcener in her own right in the same manner as the son”.[2]

The importance of this decision can only be valued once the position of a Karta is made clear. Karta is the manager of a HUF; its head who occupies a unique position unlike any other member of the family. The Karta exercises extensive control over the income and expenditure of the joint family. He has the power to manage the joint family business. In this respect he can take all such steps which are just and necessary for the promotion of the business. The Karta has the power of making contracts, giving receipts, entering into compromises, discharging contracts ordinarily incidental to the business of the family. She/he can enter into contracts incurring debts for family purposes and family business which will bind the other coparceners to the extent of their interest in the joint family property. The Karta may represent the joint family in the event of a suit by or against the family, so that other members are not the necessary parties to the same. She/he can be sued and he can institute a suit with respect to any property or other matters of the joint family. Whenever a decree is passed against him, it would bind all other members of the family. If the family has immovable properties, she/he has the power to manage the same by recovering rents, paying expenses by way of taxes, maintenance and carrying out repairs.[3]

This sui generis nature of the karta is with reference to the varied powers he holds while discharging his functions as the decision maker in various respects of the family functionality. The karta is considered to be a person with controlled capacities but within this fringe outline, he holds an immensely important position of responsibility. The relationship that a karta holds with other members of the family is not that of trustee or that of a partner or principal. His unique powers are “very wide and almost sovereign” and thus, its comparison to any partnership or a principal-agent relationship is naïve. The karta does stand in a fiduciary accord with the rest of the members of the family but the relationship cannot be termed as that of trusteeship. Even on the accountability factor, he is not accountable to any member of the family until it is a matter of misappropriation or fraud.[4]

Thus, this judgement has successfully provided women with more authority, say and agency in matters of the family. With this interpretation, the amendment to the Hindu Succession Act, now provides not just equal inheritance rights; it is now read with a much wider ambit to include the various facets of coparcener-ship. However, this verdict must be read along with another Supreme Court verdict which came out in 2105. In Prakash v. Phulavati,[5] the court declared that the provisions of the Hindu Succession (Amendment) Act, 2005, are applicable “prospectively” [on and from September 9, 2005, when the Act came into force], and not with “retrospective” effect as held by some High Courts in the country. This verdict is of serious consequence since it means that women will be entitled to become Kartas only if the predecessor has died on or after September 9, 2015.

On a final note, this judgement is an important indicator of the evolution that the Indian judiciary has gone through and further serves as a mindful reminder of the justice delivered by our courts as we continue on our journey towards a just and equal society.


[1] Sujata Sharma v. Manu Gupta, 2016 (1) RCR(Civil) 1046.

[2] Abhishek Jha, Move Over ‘Man Of The House’! Court Says Women Can Be ‘Karta’ Of Hindu Joint Family, http://www.youthkiawaaz.com/2016/02/inheritance-rights-for-hindu-women/.

[3]Ankita Gupta, Karta/Manager And His Legal Position: A Socio Legal Study, http://www.manupatra.com/roundup/341/Articles/Karta%20and%20his%20Legal%20Position.pdf.

[4] Akash Mishra, Karta And His Powers: An Overview, http://www.lawctopus.com/academike/karta-powers-overview/.

[5] Prakash v. Phulavati,, AIR 2016 SC 769.

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Religious freedom and gender equality clash: The Sabarimala Temple controversy

The Issue

The Supreme Court of India is hearing a Public Interest Litigation (PIL) filed by Indian Young Lawyers’ Association (IYLA), seeking entry of women in the Sabarimala temple, which is located on a hill in the Western Ghats in Kerala’s Pathanamthitta District.

The temple is managed by Travancore Devaswom Board (Devaswom Board), which manages and arranges for the conduct of daily worship, ceremonies and festivals in the temple according to its usage as per the provision contained in Section 31 of the Travancore-Cochin Hindu Religious Institutions Act. IYLA has challenged the validity of Section 3(b) of Kerala Hindu Places of Public Worship (Authorisation of entry) Rules 1965, which facilitates the ban on entry of women to the temple. A bench comprising of Dipak Misra, Pinaki Chandra Ghose and NV Ramana is hearing the matter.

Arguments by Petitioners

In the petition filed by the IYLA it was contended that:

  1. Women, aged between 10 and 50, touching the idol was considered an act of desecration. An attempt was made to prosecute Kannada actor Jaimala on the plea of desecration following her disclosure that she entered the sanctum sanctorum and touched the idol in 1987. The priests conducted a special ritual to purify the idol.
  2. Discrimination in matters of entry into temples was neither a ritual nor ceremony associated with the Hindu religion. The religious denomination can only restrict entry into the sanctum sanctorum and a ban on entry into the temple constitutes discrimination on the basis of sex.
  3. The ban is violative of Articles 14, 25 and 26 of the Constitution. Further, guidelines should be laid down in matters of gender inequality in religious practices at places of worship.

An Intervention Application was filed by a NGO called ‘Happy to Bleed’, which was represented by Senior Advocate Indira Jaising, in which the following averments were made:

  1. The NGO runs a campaign with two primary objectives: first, to ensure that the State fulfils its duty of meeting the health requirements of women by providing sanitary pads at subsidized rates and free of charge to economically weaker sectors and, second, to fight against menstrual discriminatory practices, specifically the practice of the Sabarimala temple, Kerala of denying entry to women and girls between 10-50 years.
  2. The ban violates the rights of women under Articles 14 and 15 of the Constitution, and hence is not protected by Articles 25 or 26 of the Constitution. It is also contended that the discriminatory practice violates Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 that prohibits discrimination.

Arguments by the Respondents:

The following were the main arguments advanced by the Kerala Government and Travancore Devaswom Board:

  1. The custom in the temple requires a 41 days penance to be undertaken by the devotees, during which they undergo voluntary restraint from indulging in worldly pleasures and women cannot undertake such a penance due to physiological reasons.
  2. Further, such a ban has been qualified as a “custom” and “usage” that has been in place since time immemorial and is an essential practice, by reason of which it is protected under Article 26 of the Indian Constitution.

 

The concept of custom and usages

Article 26 protects religious practices that qualify as custom and that are essential to it.[1] It is disputed whether this prohibition is a custom or not due to contrasting claims. The former Devaswom commissioner Smt. S Chandrika claims that women have no restriction from entering the temple apart from the three seasons of Vishu, Mandalam and Maharavilakku.

In contrast, the the Thantri of the Devaswom Board and the Kerala Government justify the prohibition on entry of women, which they state has been in place since time “immemorial”, citing the report of Devaprasnam conducted by astrologers in 1985 which states that it is in consonance with the wishes of the deity that there must be a prohibition of women of a particular group from entering the temple.

In a 1991 year judgment, the Kerala High Court in the S. Mahendran v.The Secretary, Travencore Devaswom Board[2] after examining the Thantri of the temple, the President of Ayyappa Seva Sangham and a member of the Royal family of Pandalam held that the prohibition of women from worshipping in the Sabrimala temple is a continuous practice that has been in place from half a century and hence qualifies as a ‘custom’ and ‘usage’.

The Kerala High Court accepted the report and justified the practice as a custom, which has been prevalent since several centuries and thereby offered protection to the same under Article 26 of the Indian Constitution. What stance will be taken by the Indian Supreme Court? Only time will tell us.

The essential practice doctrine

Article 26(b) grants to religious denominations the right to manage their own affairs in the matter of religion. Overriding both these provisions, Article 25(2) allows state intervention in religious practice, if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.[3]

The Supreme Court of India has held that the right of a religious body to manage its affairs in “matters of religion” is a fundamental right which cannot be taken away by a legislature.[4] The protection extends to matters of belief, acts done in pursuance of religion as well as rituals, ceremonies and modes of worship which are essential parts of religion. Essential practices have to be decided by the Courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.[5]

The Respondents are claiming that the ban is an essential practice as the deity is a Naisthik Brahmachari. “Brahmachari” means a student who has to live in the house of his preceptor and study the Vedas, living the life of utmost austerity and discipline. Whereas, a “Naisthikan” is a student who accompanies his Guru and learns the Vedas from him. Hence, it would be against the wishes of the deity if women belonging to a particular age are allowed to enter the temple. Article 25(1) guarantees to all persons the right to freely profess, practise, and propagate their religion.

However, it has been held that the right of a denomination to wholly exclude members of the public from worshipping in a temple that can be claimed under Article 26(b), “must yield to the overriding right declared by Article 25(2)(b) in favour of the public to enter into the temple for worship.”[6] In the Venkataramana[7] case, the court removed the disability of Harijans from entering into Hindu public temples and it was held that Article 26(b) is subject to Article 25(2)(b). Yet, although there cannot be a total exclusion of other Hindus from worshipping in a temple at all times, it has been held that there can be exclusion on special occasions or during certain ceremonies.

Instances of Similar Practices

The Bombay High Court in a matter regarding the prohibition of entry of women inside the sanctum sanctorum of the Shani Shingnapur temple in Maharasthra, held that it is the fundamental right of women to enter temples and fundamental duty of the State to protect it, by relying on the Maharashtra Hindu Place of Worship (Entry Authorization) Act, 1956, which prescribes a six-month imprisonment for any temple or person who prohibits a person from entering a temple.[8]

Women are not allowed to enter the inner sanctum of the Haji Ali Dargah mosque in Mumbai as it is considered a “sin” in Islam if women enter the grave of a Muslim saint. This practice was challenged in the Bombay High Court in the year 2015. However, the High Court stated that it would decide post the decision of the Supreme Court in the Sabrimala case which involves a similar question.[9] Likewise, there is a similar restriction on the entry of women to the Nizamuddin Dargah in Delhi.

Similarly, women are not allowed to enter the sanctum sanctorum of the Patbausi Satra Temple in Assam, while the Jain temple in Ranakpur does not allow menstruating women to enter. Interestingly, due to a myth attached to the Lord Kartikeya temple in Pushkar, women are forbidden to enter the temple due to the belief that women who visit the temple will be cursed.[10]

A similar practice of restriction of entry of women due to the reason that presence of women will disturb monks practising celibacy can be found in Mount Athos which is located at the coast of Greece, which is a home to traditional monasteries. The Mount Omine in Japan on which there are Buddhist monasteries does not admit women beyond a particular point due to religious reasons.

Interestingly, in a festival organised by Attukal temple, a known Parvathi temple in Kerala, only women are allowed. This festival known as the Pongala festival has figured in the Guinness Book of World Records for being the single largest gathering of women for a religious activity. Correspondingly, in Santhosi Maa temple and Kamru Kamchhaya temple in Assam, only women are allowed to enter the temple during the menstrual period of the Goddess.

[1] Shri Venkataramana Devaru v. State of Mysore , 1958 (SCR) 895

[2] S. Mahendran v. The Secretary, Travencore Devaswom Board , AIR 1993 Ker 42

[3] Gautam Bhatia, The case against customary exclusion (http://www.thehindu.com/todays-paper/tp-opinion/the-case-against-customary-exclusion/article8109225.ece)

[4] AIR 1954 SC 388

[5] Govindlalji v. State of Rajasthan, AIR 1963 SC 1638,

[6] Ibid

[7] Supra note 1

[8] http://www.livelaw.in/womans-fundamental-right-enter-temples-states-duty-protect-right-bombay-hc/

[9] http://www.thehindu.com/news/cities/mumbai/hc-order-on-womens-entry-in-mumbai-durgah-after-sc-verdict-on-sabarimala/article8120406.ece

[10] http://www.dnaindia.com/india/report-shani-temple-sabarimala-sree-padmanabhaswamy-haji-ali-entry-to-women-2196954

INJUSTICE, REBELLION AND CHANGE

Some judgments that have impacted the lives of women in India

‘There is no life that does not contribute to history’, said Dorothy West, and we think that’s so true! It does hold true, in particular if one looks the struggles of so many ordinary women, and how these struggles compelled the questioning of rules governing society, in some cases, an amendment and in almost all cases, a shift in perspective with which these injustices were viewed.

On the occasion of International Women’s Day, 2016, this post looks at some judgments that were of great significance for the women of our country.

Vishakha and Ors. v State of Rajasthan[1]

A social worker, Bhanwari Devi was was gang raped by a group of landlords, allegedly, because she tried to stop a child marriage. The perpetrators were never brought to book. Appalled by the injustice, a petition was brought by several women’s rights groups. The Supreme Court evolved a set of guidelines, recognising the statutory lacuna, making it mandatory for employers to provide for sympathetic mechanisms to enforce the right to a harassment free-working environment for women. Today, it is mandatory for workplaces to have an internal complaints committee to redress the grievances of women facing sexual harassment.

Pre-1997, a complaint could be lodged only under the Indian Penal Code Section354 (criminal assault of women to outrage women’s modesty) and Section 509 (word, gesture or act intended to insult the modesty of a woman). However, in this judgment, sexual harassment, including sexually coloured remarks and physical contact, was explicitly and legally defined as an unwelcome sexual gesture. It stated that every instance of sexual harassment is a violation of fundamental rights.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012, was passed by both the Houses, and came into force in 2013.

Tukaram v State of Maharashtra[2]

Mathura, a young tribal girl, was allegedly raped by two policemen in a police station. The case ultimately went up to the Supreme Court and the accused were acquitted, with the Court holding that since Mathura was ‘habituated to sexual intercourse, her consent was voluntary and thus, given the circumstances merely sexual intercourse, and not rape, could be proved. Soon after the judgment was given in 1979, law professors Upendra Baxi Raghunath Kelkar and Lotika Sarkar of Delhi University and Vasudha Dhagamwar of Pune wrote an open letter to the Supreme Court, protesting against the concept of ‘consent’ in the judgment, which had allowed the accused to go scot free. Following public outcry and wide media coverage, the Criminal Law (Second Amendment) Act, 1983 was passed which amended the Evidence Act, adding a new provision to the Act which states that if the victim states that she did not consent to sexual intercourse, there shall be a rebuttable presumption by the Court that she did not consent.

Mohd. Ahmed Khan v Shah Bano Begum[3]

Shah Bano was a Muslim woman who was divorced by her husband of 14 years, Mohd. Ahmed Khan. In 1978, she filed a petition for maintenance under Section 125 of the Cr. P.C., which entitles women who are unable to maintain themselves (including a divorced wife who has not remarried), to a certain monthly sum of maintenance from the former husband. Mohd. Ahmed Khan argued that he had already paid maintenance to her during the iddat period (which lasts about three months), and thus, under Islamic personal law was under no obligation to pay further maintenance to her. The Supreme Court found that if the divorced wife was unable to maintain herself, the husband’s liability to provide maintenance would cease with the expiration of iddat, however if she was unable to maintain herself, she would be entitled to maintenance under Section 125, and thus, there was no conflict between the Muslim Personal Law and Section 125 on this matter.

However, the orthodoxy perceived the judgment to be an attack on Islam and there were widespread protests against it. In what many see as caving under the pressure, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted, restricting the woman’s right to maintenance to the iddat period. However, the Act states that a divorced woman shall be entitled to ‘a reasonable and fair maintenance paid to her within the iddat period by her former husband,’ and courts have interpreted the provision quite liberally to protect the rights of divorced women. In 2001, a Constitution bench of the Supreme Court[4] held that the new Act substituted the earlier right of a woman to recurrent maintenance with a new right to a lump sum provision to be paid to the woman after divorce, and in case the husband failed to provide maintenance, the divorced Muslim woman would have the right to approach the magistrate’s court for the enforcement of her right, under the Act. Courts have recognised that the provision would have to be to secure the livelihood of the wife, which would be in monetary terms or by the grant of immovable property[5] and that the needs of the divorced woman, would have to be taken into account, with the amount including provision for her future residence, clothes, food and other articles.[6]

It is tragic that these women had to suffer the way they did, so that the system could be changed, however, we are thankful that their lives will not be forgotten and their struggles were not in vain.

[1] Vishakha v State of Rajasthan JT 1997 (7) SC 384

[2] Tukaram v State of Maharashtra AIR 1979 SC 185.

[3] Mohd. Ahmed Khan v Shah Bano Begum 1985 SCR (3) 844.

[4] Danial Latifi v Union of India 2001(7) SCC 740

[5] K. Kunhammed Haji v K. Amina 1995 Cri. L.J. 3371.

[6] Arab Ahemadhia Abdulla vs Arab Bail Mohmuna Saiyadbhai AIR 1988 Guj 141.

Qualified To Represent? The Educational Qualifications Debate in Haryana

CASE COMMENT


Introduction

On December 10, 2015, the Supreme Court upheld a controversial new law that prescribes minimum educational qualifications for contesting Panchayat polls in Haryana, rendering a sizeable fraction of the rural population ineligible to contest these elections. Besides Haryana, Rajasthan was the other State that fixed minimum educational qualifications for contesting Panchayat elections last year. The relevant Act in Haryana requires general candidates to have passed Class X, women and Dalit candidates to have passed Class VIII and Dalit women to have passed Class V. Besides this, persons will also be disqualified from contesting if they have arrears of electricity bills, do not have functional toilets at their residence, have criminal charges against them for an offence punishable by imprisonment for at least 10 years or are defaulters of co-operative loans.

The applicable Act in Rajasthan requires those contesting elections for the Zila Parishad and Panchayat Samiti to have completed Class X, whereas those contesting for the post of Sarpanch are required to have cleared Class VIII.

The Supreme Court Judgment[1]

The Act applicable in Haryana was challenged by certain persons who were interested in contesting the local body elections but were disabled from contesting because they did not meet the required educational criteria. They contended that each of the four new conditions for eligibility prescribed under the act created an unreasonable classification among the people, without any intelligible difference between the classes, and that this classification had no connection (or “nexus”) with the object sought to be achieved by the Act.

The Court held that it was not for the courts to decide that a particular legislation was unconstitutional merely because it was ‘arbitrary,’ because ‘courts do not examine the wisdom of legislative choices unless the legislation violative of some specific provision of the Constitution.’ Thus, with respect to the ‘educational qualifications’ criterion, the Court held that the object of the resultant classification was to ensure that those who seek election to Panchayats have some basic education, which would enable them to more effectively discharge their duties, which cannot be said to be irrelevant or unconnected with the purpose of the Act. The Petitioners had also relied on data to demonstrate that an overwhelmingly large number of persons would be disqualified from the elections, a majority of them being women and people belonging to the weaker sections of society. The Court held that the number of people debarred from elections had no bearing on the question of whether the relevant disqualification was constitutionally permissible, unless the disqualification was such that it resulted in a situation where holding of elections became completely impossible. The petitioners also challenged the disqualification that debarred from the elections people who were in arrears of to specified cooperative bodies and electricity bills, on the grounds that they imposed an unreasonable burden on people who were otherwise eligible to contest the elections. The Court held that if the makers of the Constitution considered it appropriate for insolvency to be one of the disqualifications from seeking election to public offices, there could be no constitutional infirmity if the state legislature debarred indebted persons from contesting elections. The petitioners also challenged the provision by which people who did not have a functional toilet at their residences were disqualified, because a large number of people could simply not afford it. However, this challenge too was rejected because there were schemes in place to provide financial assistance to people desirous of constructing toilets, and if a person did not have a toilet at his residence, it was not because he could not afford it, but simply because he had no intention of constructing it. According to the Supreme Court, those who aspire to get elected to civic bodies and administer them ‘must set an example for others’ and thus to disqualify those not observing basic norms of hygiene from seeking election to a civic body could not be called unintelligible.

The reaction to the judgment

One of the implications of this judgment is that around 50% of incumbent sarpanches and 70% of panches are now ineligible to contest the elections again.[2] They argue that despite not having the requisite educational qualifications, they have been running the village for several years and question this measure because there are no minimum educational qualifications for MPs and MLAs, whose policy decisions have wide policy ramifications.[3] Another problem that has emerged is a lack of candidates for certain villages, especially where posts have been reserved for Dalit or woman candidates, leading to situations like the one in a particular village where the outgoing sarpanch decided to get his son married to an educated girl, when the post of sarpanch was reserved for a woman.[4] Another strong criticism is that the judgment goes against the grain of the Right To Education Act, by shifting the burden of the state’s responsibility to provide education to the individual.[5]The ‘functioning toilet’ requirement has been severely criticized on the grounds that the 2011 census data shows that 29% households in rural India do not have a permanent residence and the disqualification is unfair when ‘the homeless surely cannot own a toilet.’[6]

However, others argue that basic knowledge is certainly necessary to work and build expertise and that while education is not an essential qualification for success, it could definitely improve the chances of success.[7] Some have even expressed that the minimum qualification should be extended to MPs and MLAs as well.[8] It has been argued that a minimum educational qualification is desirable at the Panchayat level because unlike the legislative assemblies, the responsibilities are mainly administrative, with a number of ‘financial responsibilities’ and that embezzlement of funds often occurs when sarpanches are not aware of what documents they are putting their thumb impressions on.[9]

According to the Supreme Court, “It is only education which gives a human being the power to discriminate between right and wrong, good and bad. Therefore, prescription of an educational qualification is not irrelevant for better administration,” On the other hand, Alladi Krishnaswamy Ayyar, during the Constitutional Assembly Debates regarding universal adult suffrage argued, ‘If democracy is to be broad based and the system of governments that is to function is to have the ultimate sanction of the people as a whole, in a country where the large mass of the people are illiterate and the people owning property are so few, the introduction of any property or educational qualifications for the exercise of the franchise would be a negation of the principles of democracy…’[10]

Which of these conceptions would be in the best interests of the world’s largest democracy?

[1] Complete judgment may be viewed here: http://supremecourtofindia.nic.in/FileServer/2015-12-10_1449739272.pdf.

[2] Khusboo Sandhu, SC order on education qualification for Haryana polls a shot in the arm for BJP at http://indianexpress.com/article/explained/sc-order-on-education-qualification-for-haryana-polls-a-shot-in-the-arm-for-bjp/ (last visited on 15.2.2016)

[3] Ibid.

[4] Ibid.

[5] Jhuma Sen, The Supreme Court’s Haryana Panchayati Raj Judgment Is Not Backed By The Constitution at http://www.caravanmagazine.in/vantage/supreme-court-haryana-panchayati-raj-judgment-not-backed-constitution (last visited on 16.2.16)

[6] Indira Jaisingh, A Judgement on Democracy That is Frightening in Its Implicatons at http://thewire.in/2015/12/11/the-supreme-courts-judgement-is-frightening-in-its-implicatons-17131/ (last visited on 16.2.16)

[7] Pyaralal Raghavan, Minimum educational qualifications for contesting panchayat elections in Haryana is a setback for democracy, at http://blogs.timesofindia.indiatimes.com/minorityview/minimum-educational-qualifications-for-contesting-panchayat-elections-in-haryana-is-a-setback-for-democracy/ (last visited on 15.2.16)

[8] Apurva Vishwanath, Supreme Court upholds Haryana law on panchayat elections, at http://www.livemint.com/Politics/KTRLWs6xYd6OlfSKC3SRHL/Supreme-Court-upholds-Haryana-law-on-Panchayat-polls.html (last visited on 15.2.16)

[9] Avijit Chatterjee, A matter of education, at http://www.telegraphindia.com/1160113/jsp/opinion/story_63522.jsp#.VsIffpN96YU (last visited on 16.2.16)

[10] Statement of Alladi Krishnaswami Ayyar, Constitutional Assembly Debates, Vol. XI, ( November 23, 1949)

Legislation: Juvenile Justice (Care And Protection of Children), Act, 2015

On 23rd December, 2015 the juvenile offender in the 2012 Nirbhaya gangrape case was released from the correctional home. The following day, the Juvenile Justice (Care and Protection of Children) Bill was passed by the Rajya Sabha. This Act, which has been in the news quite a bit, has been the subject of much controversy. In this post, we bring to you the main features of the Bill and discuss the arguments that are being raised for and against it.

Key Features of the new law

The most controversial and publicized of the changes brought in by the new law is that relating to heinous offenses. Heinous offences as per this Act are those for which the punishment is imprisonment for seven years or more. These include not merely the conventionally ‘gruesome’ offences such as rape and murder, but other crimes such as counterfeiting, cheating and offences under the NDPS Act and Arms Act. The new Act provides that in case a juvenile between the age of 16 to 18 is accused of a heinous offence, the Juvenile Justice Board is to conduct an inquiry with regards to his mental and physical capacity to commit the offence and ability to understand the consequences of committing the offence. After conducting this preliminary inquiry, the Board may order that the case be transfered to a Childrens Court (These are Courts of Sessions which are specified as Childrens Court) for further trial. The Childrens Court, after receiving the preliminary inquiry from the Board may decide that the juvenile is to be tried as an adult. The Act thus permits juveniles aged between 16 and 18 to be tried as adults in certain cases. It is important to note, however that even under the new law, neither an order of death sentence or life imprisonment without the possibility of release can be given against a juvenile.

The provision relating to trial of juveniles for heinous offences is not the only change brought in by this Act. Besides this much publicised aspect, the Act has brought in certain other changes as well. It empowers the Central Adoption Resource Authority to regulate adoptions and issue guidelines, and also lays down detailed eligibility criteria for adoption. For instance, prospective adoptive parents should be physically and financially sound. Single or divorced persons may adopt a child, however, a single male may not adopt a girl child. Further, inter-country adoptions may now take place, if adoption within the country is not possible, which was not provided for under the previous Act. Another change is that biological parents who give up their children for adoption have three months to rethink their decisions as opposed to the existing one month.

The Controversy: Should 16-18 year olds be tried as adults for heinous offences?

What supporters argue

Proponents of the new law argue that the existing law is not ‘strong’ enough and does not act as a sufficient deterrent for juveniles against the commission of heinous offences. According to them, to allow a person, weeks short of attaining the age of majority to escape strict punishment is arbitrary and a more suitable approach would be to let the Juvenile Justice Board decide on a case-by-case basis whether the juvenile was capable of understanding the consequences of his offences and should be tried as an adult. Maneka Gandhi, the Union Minister for Women and Child Development, who introduced the Bill asked, ‘ Who do we take care of, the victim, or that of the juvenile who committed the crime?[1] She further questioned how juvenile terrorists who had ‘blown up people and killed people could be put in a childrens’ home where they could radicalize other children.[2]’ In response to criticism that the new law would be overly harsh, she had defended the Bill, saying that since she did not ‘want to take any extreme stands’, she had constructed a law that went ‘straight down the middle’ as the juvenile justice board, would see what ‘circumstance or mind’ the child had.[3] If the child had committed a heinous crime with the mind of a child, at that time, he would go into the children’s system.[4] On the other hand, if the child was unrepentant, had committed the crime with an ‘adult mind’, or if the crime was ‘pre-meditated’ or ‘well-thought out,’ he will go into the ‘adult system.’[5] Describing the envisioned Juvenile Justice Board as a ‘child friendly board’, she explained that it would consist of people who had lots of experience with children. [6]

What opponents argue

Opponents of the recently enacted law have criticized it for being ‘regressive’ and a ‘knee-jerk reaction.’ Justice Leila Seth, who was in the Justice J.S. Verma Committee, which had examined the possibility of revising laws in the wake of the gang rape and had recommended not revising the age said, that children aged below 18 years, if subjected to a normal trial and a normal jail often turned into hardened criminals or repeat offenders, with no chance of rehabilitation.[7] Critics also dispute the statistics relied on by the government in support of their assertion that there has been a rise in the number of crimes committed by juveniles in recent times.[8] Further, experts in the field of neuroscience have said that the brains of adolescents are not fully developed, in fact, the eighteen-year cut off itself was an arbitrary number, and thus lowering this age did not have any basis in current science.[9] Thus, during the Rajya Sabha debate on the Bill, some MPs questioned the basis behind lowering the age to 16, asking whether the age limit would be further lowered if a 14-15 year old committed a heinous crime.[10] Others argue that the government’s crime statistics reveal that over 80% of juveniles accused of crimes belong to families with an annual income of less than Rs. 50,000, over 50% of them not even having completed primary school, thus making it unfair to penalize children when society had collectively failed to provide them with a suitable environment to grow in.[11] Opponents also point out that lowering the minimum age is in contravention of the United Nations Convention on the Rights of the Child, which India has ratified, and thus, by ‘passing the Bill, the Rajya Sabha has lowered India’s international image.’

What the Supreme Court had to say about this in the past

In the aftermath of the Nirbhaya case, a number of writ petitions challenging the erstwhile Juvenile Justice Act, 2000, were filed. Dismissing the said writ petitions, the Court had observed that the thinking behind the law as it had previously existed was that it was probably better to try and re-integrate children with criminal propensities into mainstream society rather than allow them to develop into hardened criminals.[12] In an earlier case[13], the Supreme Court had observed, “Juvenile delinquency is by and large the product of social and economic maladjustment…They do not shed their fundamental rights when they enter the jail. Moreover, the objective of the punishment being reformative, we fail to see what social objective can be gained by sending them to jail where they come in contact with hardened criminals and lose whatever sensitivity they may have to finer and nobler sentiments.”

Concluding remarks

The Act, which has recently come into force, has led to much debate, and a number of serious concerns have been raised on both sides of the debate. There will be much more to comment, however, based on actual experience as the law begins to be implemented. In case the law is challenged before the Supreme Court in the future, the debate will certainly take a new turn.

______________________________________________________

[1] Sanjay Singh, Rs. 10,000 and job for juvenile is incentivising crime, at http://www.firstpost.com/india/rs-10000-in-cash-and-training-as-a-tailor-for-juvenile-in-nirbhaya-case-is-like-incentivising-crime-maneka-gandhi-agrees-with-jyoti-singhs-father-2548154.html ( last visited on January 21, 2016).

[2] Smita Gupta, Adult laws will cover 16-18 year olds, http://www.thehindu.com/news/national/lok-sabha-passes-uvenile-justice-care-and-protection-of-children-bill/article7180849.ece ( last visited on January 21, 2016)

[3] Maroosha Muzaffar, Juvenile Justice Board is a Child Friendly Body, at http://indiatoday.intoday.in/story/juvenile-justice-bill-maneka-gandhi-interview/1/445214.html ( last visited on January 22, 2016)

[4] Ibid

[5] Ibid.

[6] Ibid.

[7] Abantika Ghosh, Changes in juvenile law crime against kids, say experts, Rajya Sabha debate today, at http://indianexpress.com/article/india/india-news-india/changes-in-juvenile-law-crime-against-kids-say-experts-rajya-sabha-debate-today/ ( last visited on January 22, 2016)

[8] Ibid.

[9] Mohit M. Rao and Vidya Krishnan, Neuroscience and the juvenile legislation at http://www.thehindu.com/opinion/neuroscience-and-the-juvenile-legislation/article8032028.ece, ( last visited on January 22, 2016).

[10] Rajya Sabha Votes and passes Juvenile Justice Bill, at http://www.thequint.com/india/2015/12/22/rajya-sabha-debates-juvenile-justice-bill-jyotis-parents-attend, ( last visited on January 22, 2016).

[11] Kanimozhi Karunanidhi, A bill for juvenile injustice, at http://www.thehindu.com/opinion/op-ed/juvenile-justice-bill-a-bill-for-juvenile-injustice/article7143729.ece ( last visited on January 22, 2016).

[12] Salil Bali v Union of India, (2013) 7 SCC 705.

[13] Munna v State of U.P. (1982) 1 SCC 546.

Practice of Santhara: The Swinging Pendulum of Legal Validity

Santhara’ is the Jain practice where a person voluntarily gives up food and water until death occurs due to starvation. Jains believe that Mahavira, the last of the Tirthankaras (person who has conquered the cycle of death and rebirth) allowed Santhara or Sallekhana, as it as also known, as the ultimate test of spirituality and will power.[1] The controversy existing with regard to this practice, with some equating it with suicide, was recently brought into focus with the judgment of the Rajasthan High Court that declared Santhara as an offence punishable under Section 309 (which criminalize attempt to suicide) and Section 306 (which criminalize abetment to suicide). The Rajasthan High Court decision was the result of a Public Interest Litigation filed by Nikhil Soni, an advocate and human rights activist.

Contentions of the Petitioner:

  1. The practice is purely religious and has ‘no place in the law of the land.’ Every act of self-destruction by a human being, in common language is suicide, provided that it is an intentional act. Just like Sati (or, bride-burning), Santhara is also a process to commit suicide in the name of religion and should not be protected by the State. Thus, those who abet Santhara should be subject to investigation and punishment as is done in the case of Sati.
  2. The petitioner asserted that a person adopting Santhara is not allowed to go back on his vow and is often subject to various forms of cruelty by his family and community, such as being tied to a bed or chair and refused food and drink even if he wants to come out of his vow. This, alleged the petitioner, is no different from killing.
  3. The fundamental right to freedom of religion under Article 25 cannot protect a criminal act, as this right is subject to public order, morality and health. The Supreme Court has refused to protect religious practices that violate public order, morality and health. The petitioner relied on Jagdhishwaranand Avadhutta Acharya Police Commissioner, Calcutta,[2] where the Supreme Court upheld the power of the police to prohibit practices such as human sacrifices done in the name of religion and to impose restrictions on the performance of the tandava dance in public streets.

Though this practice amounted to suicide, which was being abetted by the family as well as the community, neither the police nor the administration in Rajasthan have taken any action.

  1. The Supreme Court has held in previous decisions that the right to life does not include the right to die. The substance of these decisions is that no person has the right to end his life voluntarily.

The Petitioner therefore claimed that Santhara should thus be declared to be illegal and punishable under the law, and the instances of this crime listed in the pleadings as well as their abetment should be investigated and subject to prosecution.

Contentions of the Respondent:

  1. Santhara is completely different from suicide. It was claimed that a person commits suicide when he is under emotional stress, the main intention being to escape the consequences of certain events, agony or social stigma. Unlike Santhara, it is far removed from religious or spiritual considerations. Death in case of suicide is sudden, and the act is committed with secrecy. Santhara, on the other hand is an act of ‘self-purification’ and is not giving up life but ‘taking death in its own stride.’ Santhara is not suicide, but the key to ‘attain salvation in the least possible number of birth and death cycles.’ It is voluntary process, and the person’s ‘quiet and joyful death’ enlightens society at large.
  2. Though Section 309 of the Indian Penal Code criminalizes attempt to suicide, punishment of a particular conduct depends on the scope and purpose of criminal law. What would constitute a crime depends on the policy of the State. In fact, even the Law Commission has recommended the decriminalization of attempt to suicide. The Supreme Court has recognized the right to live with human dignity, which means the right of a dying man to die with dignity.[3]
  3. The Respondents also referred to various decisions of courts in other countries where the withdrawal of life support was permitted.[4]
  4. Article 25 of the Constitution enshrines freedom of religion and the Constitution overrides the Indian Penal Code or other such laws.

The individuals practicing Santhara further have the right to privacy, which has been upheld by the Supreme Court in various cases.[5]

  1. The Jain community is a religious and cultural minority, which means that under Article 29, the State may not impose any other culture on them, such as force feeding a person who has taken the vow of Santhara.

Decision of the High Court:

The Court held that Santhara is an illegal practice and directed the State authorities to stop this practice and treat it as an attempt to suicide, which is punishable under the Indian Penal Code. The reasons given by the court were:

  1. It is true that the right to life includes the right to die with dignity when life is ebbing out. However this is not to be equated with the right to die an unnatural death, curtailing the natural life span. Extinguishing life is different from accelerating the process of natural death that has already commenced.
  2. The right to freedom of religion under Article 25 of the Constitution is subject to public order, morality and health. Also, the Constitution protects only those practices, which form an ‘essential part of the religion.’ The Jain scriptures do not preach that Santhara is an essential religious practice, which must necessarily be undertaken to achieve salvation. Article 25 does not protect such optional religious practices.

Appeal before the Supreme Court:

Members of the Jain community filed appeals against the decision of the High Court. The Supreme Court stayed the order of the Rajasthan High Court, which means that the practice of Santhara will not be considered an offence, at least for the time being, until the Supreme Court declares its verdict on the issue.

Reactions to the Rajasthan High Court judgment

The judgment has generated a substantial amount of controversy. Some who criticize the judgment argue that Article 25 does not mention ‘essential religious practices.[6]’ This phrase, when used by the Supreme Court in 1950 was used in contradistinction to secular practices and not to determination of the relative importance of practices within the religion.[7] The judgment characterizes the objective of Santhara as speedy death, ignoring the fact that there are certain pre conditions such as terminal illness or a great natural disaster, that are to be fulfilled before a person takes the oath of Santhara.[8] Others argue that the Constitution does not give courts the authority to decide what practices are essential to a religion and impose their own interpretation on its followers.[9]

On the other hand, some human rights activists allege that Santhara is a social evil, and that elderly persons are made to undertake the vow by family members who do not wish to care for them.[10] Some question whether the decision to take Santhara can truly be called voluntary since it is taken under the risk of being socially ostracized in case of a change in decision.[11] Others ask what the rationale is for force feeding protesters on a hunger strike but allowing Santhara to continue unrestricted.[12]

The interplay of Religion and Law in India:

Various religious practices have been challenged before the Courts previously. In the often remarked case of Mohd. Hanif Quaraishi & Ors. v. State of Bihar, the practice of cow-slaughtering by the Muslim community was challenged by members of a Hindu right-wing party. The Supreme Court, from an interpretation of Quaranic texts finally held that though animal sacrifices were necessary during some festivals, it was not necessary for cows specifically to be sacrificed.[13]

In 1983, the Supreme Court held that the government had the authority to impose restrictions on the performance of the ‘tandava dance’ that involves the use of weapons and skulls, since it was not an essential practice for the followers of the Anandamargis sect and was also a threat to the public order.[14]

Earlier this year, the Gujarat High Court, in a case relating to a forged notification[15], which stated that ‘bal sanyasis’ do not fall within the Juvenile Justice Act, criticized the practice of bal dikhsha (a practice where children as young as eight years old renounce the world to become ‘bal munis’), questioned why the Central and State governments had maintained complete silence on the issue and also recommended that Government should consider coming out with legislation in this regard. Controversy also arose when a proposed amendment in the Wildlife Protection Act suggested ban in domestic trade in peacock feathers, which are traditionally carried by Jain monks[16]

Legal challenges to religious practices are not unique to India. When the Religious Freedom Restoration Act, 1993 was passed in the U.S.A, courts for over three decades adopted an approach that allowed religious communities to practice any custom, even if this meant overriding criminal laws prohibiting them. A major turning point was the case of Employment Division v. Smith[17]where the Supreme Court held that criminal laws could curtail the use of a certain drug without a proper prescription even if it was being used by certain people as a part of their religious calling to do the same.[18]

Author’s Remarks:

With the Supreme Court order staying the Rajasthan High Court’s decision, the status quo remains. However a decision in this case might lead to further developments in the debate regarding the interpretation of the ‘right to die with dignity,’ which may influence the legal position on euthanasia as well. The Supreme Court’s verdict on the scope of religious freedom guaranteed under Article 25 will impact the several cases relating to religious practices that are pending in the Courts. The decision may pave the way for many more challenges to religious practices or possibly make it much more difficult for such challenges to be successful. Whatever may be the case, considering the overwhelmingly large role religion plays in Indian society, the verdict when reached will have far reaching consequences for the country.

Disclaimer: The views expressed in this article are those of the authors and do not necessarily reflect the views of National Law University, Jodhpur or those of the Legal Aid and Awareness Committee.


[1] Sandipan Sharma, Debating Santhara: This Jain Practice is not suicide but Indian laws don’t see it that way at http://www.firstpost.com/india/debating-santhara-the-jain-practise-isnt-suicide-but-indian-laws-dont-see-it-that-way-2408134.html. (last visited on September 20, 2015)

[2] Jagdhishwaranand Avadhutta Acharya v. Police Commissioner, Calcutta, AIR 1984 SC 51.

[3] Gian Kaur v State of Punjab, 1996 (2) SCALE 881.

[4] Bouvia v Superior Court (225 Cal. Reporter 297) (CT App 1986), Barting v Superior Court (209 Cal Reporter 220 (CT App 1984), Airedale NHS Trust v. Bland, 1993 All ER 821 (859).

[5] R. Rajgopal v State of Tamil Nadu, 1994 SCC (6) 632; PUCL v Union of India, (1997) 1 SCC 30; Selvi v State of Karnataka, AIR 2010 SC 1974.

[6] Abhishek Manu Singhvi,’Santhara is not Suicide: Rajasthan High Court judgment equating the two must be rectified’ at <http://blogs.timesofindia.indiatimes.com/candid-corner/santhara-is-not-suicide-rajasthan-high-court-judgment-equating-the-two-must-be-rectified-2/&gt; (Last visited on August 28, 2015).

[7] Ibid.

[8] Ibid.

[9]Suhrith Parthasarathy, The flawed reasoning in the Santhara ban at http://www.thehindu.com/opinion/op-ed/the-flawed-reasoning-in-the-santhara-ban/article7572183.ece. (Last visited on September 20, 2015)

[10]Milind Ghat, The Jain religion and the right to die by Santhara at   http://indianexpress.com/article/explained/the-jain-religion-and-the-right-to-die-by-santhara/. (Last visited on September 20, 2015)

[11] Manasi Phadke & Tanushree Venkatraman, Santhara: Glorified Suicide or essential practice? at http://indianexpress.com/article/india/india-others/the-rite-death-santhara-jain/ (Last visited on September 20, 2015).

[12] Ibid.

[13] Mohd. Hanif Quaraishi & Ors. v. State of Bihar, AIR 1958 SC 731.

[14]Acharya Jagdishwaranda Avadhuta and Ors. v. The Commissioner of Police, Calcutta and Anr., (1983) 4 SCC 522.

[15] Rameshbhai Vora & Others v State of Gujarat, Civil Writ Petition No. 7414/2006. (8/5/2015).Judgment may be viewed here:

http://indiankanoon.org/doc/78909229/?type=print

[16] Supra note 8.

[17] Employment Division v. Smith 494 U.S. 872(1990).

[18] Doug Linder, Free Exercise of Religion-The issue: When may the government enforce a law that burdens an individual’s ability to exercise his or her religious beliefs? at http://law2.umkc.edu/faculty/projects/ftrials/conlaw/freeexercise.htm (Last Visited on September 20, 2015).