JOIN HANDS

The aim of this article is to provide a uniform solution for the inter-personal conflicts of laws. The laws in India, in this regard, are not only scattered but also archaic and redundant. This is more so after the Constitution of India came into force. The Constitution, being the grundnorm, is alone capable of providing the solution to these inter-personal conflicts of laws.

I. INTRODUCTION

The conflict of laws is nothing but our inability to cope up with the conflicts of minds. The primary responsibility for elimination of this supposed conflict lies with the legislature of India, which has drastically failed to solve this problem by enacting a “uniform civil code”. This unfortunate situation is further made complicated by non-uniform judicial precedents given by various High Courts of India. It is interesting to note that there is a wide gap between the judicial precedents of the apex court of India and various High Courts of the respective States. Thus, despite there being judicial precedents of the apex court, which can safely be relied upon for solving this problem, the High Courts are giving inconsistent judicial decisions. This situation requires an immediate action on the part of the three “Sovereign organs” of the Constitution of India[1] as well as an active and constructive participation of vigilant citizenry. To achieve this benign and much needed task, the Constitution of India can and must be taken as the base. This is because the Constitution, being the supreme law of the country, provides the constitutionality and legitimacy to all other laws of the country. Similarly, any law or provision in conflict with the provisions of the Constitution will be unconstitutional and void. Thus, the matter of conversion must also be judged in the light of the Constitution of India.

II. CONVERSION LAWS IN INDIA

The Indian laws do not prohibit conversion from one religion to another though forcible conversion is prohibited. The matter of conversion is a personal choice and the State normally does not interfere unless the medium of conversion is used as a façade to hide the naked truth of criminal tendencies. In that case the veil of conversion is lifted and the “true character” or “morality of the conversion” is considered by the Courts. The conversion laws in India can be found in:

(1) The Constitution of India, and
(2) Respective personal laws.

(1) Constitution of India

The choice of conversion to another religion is a Fundamental Right within the meaning of Article 25 of the Constitution. This right to convert is, however, subject to public order, morality, health and other provisions of Part III of the Constitution. Further, exceptions are engrafted upon this right by Article 25(2) itself. Article 25(2) (a) saves the power of the State to make laws regulating or restricting any economic, financial, political or secular activity. These restrictions or regulations should be primarily concerned with the “secular aspect” of religious practice rather than with the essentials of religion as per judicial pronouncements. Article 25(2)(b) reserves the State’s power to make laws providing for social welfare and social reform even though they might interfere with religious practice, including conversion.

(2) Respective personal laws

The conversion to another religion is a personal choice which is not forbidden by any of the personal laws operating in India. If any personal law tries to curb the choice of conversion, the same will violate Article 25 of the Constitution. Thus, it is clear that the matters pertaining to conversion are ultimately governed by the Constitution of India and not by the codified or uncodified personal laws of various parties.

III. CONSTITUTIONAL LIMITATIONS

The freedom of conscience and free profession, practice and propagation of religion is not absolute but is subject to various restrictions. This means that the right to conversion is equally subject to these restrictions. The practice of conversion can be grouped under the following categories:
(A) Conversion simplister, and
( Culpable and immoral conversion.

(A) Conversion simplister: The conversion simplister is that form of conversion which is not actuated by any malice, wrong and immorality. It satisfies not only the Constitutional requirements but even the requirements mandated by a civilized society. Thus, if a conversion does not fall within the limitations prescribed by the Constitution as well as by the civil and penal laws of a country, the same can reasonable and safely be termed as a valid, legal and morally sound conversion. If a conversion is vulnerable to Constitutional and statutory attacks and is against public policy and morality, the same becomes a culpable and immoral conversion, which must be checked and curbed at all counts with a punitive sting.

( Culpable and immoral conversion: All conversions which fail to be conversion simplister, which has a backing and protection of the Constitution of India, will be termed as “culpable and immoral conversion”. The courts take a serious note of such conversions and the façade of religious practice is made transparent to make the guilty responsible for his immoral act. This is more so where the matrimonial relationships are involved and the noble concept of conversion is used to advance an ulterior motive of re-marrying again. It must be noted that some questions, which arise under the ordinary civil and criminal law, are of a far-reaching significance to large segments of society, which have been traditionally subjected to unjust treatment. Women are one such segment. Thus, in dealing with the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. The solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints[2]. It would be appropriate to mention that religion is a matter of faith stemming from the depth of heart and mind. Religion is a belief which binds the spiritual nature of a man to a supernatural being; it is an object of conscientious devotion, faith and pietism. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution[3]. Thus, conversion should not cross the limits of morality and legality as adopted and accepted by the contemporary society. This means that religious freedom, including conversion, cannot be used as a protective shield against acts having adverse effect on public order, health, morality, etc. In Ramji Lal v State of U.P[4] the Supreme Court held that the section 295A[5] of IPC is not inconsistent with Articles 25 and 26 of Constitution as it imposes a restriction in the interest of public order. Similarly, in Stainislaus v State of M.P[6] the Constitutionality of laws prohibiting conversion by force, fraud, or inducement was challenged on the basis of Article 25(1). The Supreme Court held that the right to propagate one’s religion does not grant the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets.

IV. EFFECTS OF CULPABLE AND IMMORAL CONVERSION

The effects of conversion simplister are totally different from the effect of a culpable and immoral conversion. This means that in addition to the effects generated by conversion simplister, which are essentially civil in nature, the culpable and immoral conversions attract penal sanctions as well. This is so because the marriage is the very foundation of a civilised society. The relation once formed, the law step in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. Thus, the façade of conversion cannot be used to “bypass” the obligations and liabilities imposed by law.

A conversion simplister by a Hindu will have the following consequences:

(a) The spouse of the converted spouse can obtain a decree of “judicial separation”[7],

(b) The spouse of the converted spouse may obtain a decree of divorce[8],

(c) The children born to that spouse, after such conversion, and their descendants shall be disqualified from inheriting the property of any other Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens[9].

If the convert remarries after such conversion, then besides the civil consequences as mentioned above, penal sanctions may also arise. It is interesting to note that on the second marriage by the convert the aggrieved spouse has an “additional ground” to obtain “both” a decree of judicial separation and divorce. This is because the moment the defaulting spouse maintains a physical relation with any other person other than his or her spouse, section 13(1) (i) become attracted[10]. This further starts the penal chain reaction and the offending spouse becomes liable for the offence of adultery and bigamy, provided the conditions for the same are satisfied. For instance, if a male Hindu husband converts to Muslim law and marries another converted female Hindu wife of another person, then he will be liable for the offence of adultery and bigamy. This, however, presupposes the existence of a second valid marriage. Thus, in an adultery or/and bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. An admission of the marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case[11].

V. JUDICIAL RESPONSE

The judicial response to the conversion phenomenon has been always good except where the “purpose” of conversion or its “mode” is legal and morally sound[12]. In that case the courts have taken the moral aspect of the conversion very seriously and they have occasionally pierced the façade to see the true purpose of conversion. At the same time, genuine and conversion simplister were given due credit and recognition by the courts.

In Gove of Bombay v Ganga[13] it was held by the Bombay High Court that where a Hindu married woman, having a Hindu husband living, marries a Mohammedan after conversion to Islam, she commits the offence of polyandry as by mere conversion the previous marriage does not come to an end.

In Emperor v Mt. Ruri[14] a Christian wife renounced Christianity and embraced Islam and then married a Mohammedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.

In Sayeda Khatoon @ A.M. Obadiah v M. Obadiah[15], Lodge, J speaking for the court hearing the case of conversion observed:

“The parties were originally Jews bound by the Jewish personal law. The Plaintiff has since been converted to Islam and may in some respects be governed by the Mohammedan law. The defendant is not governed by the Mohammedan law. If this were an Islamic country, where the Mohammedan law was applied to all cases where one party was a Mohammedans, it might be that plaintiff would be entitled to the declaration prayed for. But this is not a Mohammedan country; and the Mohammedan law is not the law of the land. I can see no reason why the Mohammedan Law should be preferred to the Jewish Law in a matrimonial dispute between a Mohammedan and a Jew particularly when the relationship, viz.: marriage was created under the Jewish law. There is no matrimonial law of general application in India. There is a Hindu law for Hindus, a Mohammedan law for Mohammedans, a Christian law for Christians, and a Jewish law for Jews. There is no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case. It may be that a marriage solemnised according to Jewish rites may be dissolved by the proper authority under Jewish law when one of the parties renounces the Jewish faith. It may be that a marriage solemnised according to Mohammedan law may be dissolved according to the Mohammedan law when one of the parties ceases to be a Mohammedan. But I can find no authority for the view that a marriage solemnized according to one personal law can be dissolved according to another personal law simply because one of the two parties has changed his or her religion."

Sayeda Khatoon's case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum v Khodadad Bomanji Irani[16]. In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her marriage stood dissolved because of her conversion to Islam. The learned Judge dismissed the suit. On appeal Chagla, J. elaborating the legal position held as under:-

"We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband according to whose personal law such conversion does not bring about the same result. The Privy Council in Waghela Rajsanji v Shekh Masludin expressed the opinion that if there was no rule of Indian law which could be applied to a particular case, then it should be decided by equity and good conscience, and they interpreted equity and good conscience to mean the rules of English law if found applicable to Indian society and circumstances. And the same view was confirmed by their Lordships of the Privy Council in Muhammad Raza v Abbas Bandi Bibi. But there is no rule of English law which can be made applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The English law only deals and can only deal with Christian marriages and with grounds for dissolving a Christian marriage. Therefore we must decide according to justice and right, or equity and good conscience independently of any provisions of the English law. We must do substantial justice between the parties and in doing so hope that we have vindicated the principles of justice and right or equity and good conscience. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many other ties which make it possible for a husband and wife to live happily and contentedly together. It would indeed be a startling proposition to lay down that although two persons may want to continue to live in a married state and disagree as to the religion they should profess; their marriage must be automatically dissolved”.

The court further observed:

“Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the two parties to it professed different religious. We must also point out that the plaintiff and the defendant were married according to the Zoroastrian rites. They entered into a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion. It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although he may not want it and although the marriage vows which both of them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in section 2 which includes marriage and dissolution of marriage shall be the Muslim personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only one of the parties is a Muslim."

Again, in Andal Vaidyanathan v Abdul Allam Vaidya[17] a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held:

"The Special Marriage Act clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. Section 17 provides the only means for the dissolution of a marriage or a declaration of its nullity. Consequently, where two persons married under the Act subsequently becomes converted to Islam, the marriage can only be dissolved under the provisions of the Divorce Act and the same would apply even if only one of them becomes converted to Islam. Such a marriage is not a marriage in the Mohammedan sense which can be dissolved in a Mohammedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute”.

In Gul Mohammed v Emperor[18] a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her to Islam. It was held that the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC.

In Sarla Mudgal v U.O.I[19] the position was finally clarified by the Supreme Court. The court observed that the doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Thus, conversion to another religion by one or both the Hindu spouses did not dissolve the marriage.

It is, thus, obvious from the catena of case-law that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouse converts and the other refuses to do so. Where a marriage takes place under Hindu law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. Thus, a Hindu marriage continues to subsist even after one of the spouses converted to Islam. There is no automatic dissolution of the marriage. A marriage solemnised, whether before or after the commencement of the HMA, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act.

It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. In that situation parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be nonest.

It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy. The expression "void" for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the Section. On the other hand the same expression has a different purpose under Section 494, IPC and has to be given meaningful interpretation. The expression "void" under section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494, IPC. A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.

The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal.

The conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the “Muslim personal law". In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void[20].

It is clear from the above discussion that though the conversion simplister is recognised by the courts the culpable and immoral conversion is always taken with a punitive sting. That is an essential requirement to prevent abuse of the conversion process.

VI. THE ROADS AHEAD

The challenges of conversion have Constitutional colours and dimensions that can be tackled properly only by taking recourse of the Constitution of India. The Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that fundamental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court[21]. Thus, horizons of constitutional law are expanding. It is presumed that the Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law[22]. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind[23]. The law of conversion seems to be lagging far behind than the requirement of contemporary society, since it is scattered in various personal laws and the same process of conversion may have different consequences. The solution to this problem lies in the enactment of a “Uniform Civil Code” (UCC) under Article 44 of the Constitution of India, which has remained a secluded and disgruntled reality[24].

© Praveen Dalal. All rights reserved with the author.
* Arbitrator, Consultant and Advocate, Supreme Court of India.
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone no; 9899169611.

[1] These are the legislature, the executive and the judiciary.
[2] Danial Latifi v U.O.I, (2001) 7 SCC 740.
[3] S.Saghir Ahnad.J, in Lily Thomas v U.O.I, AIR 2000 SC 1650, para 38.
[4] AIR 1957 SC 620.
[5] Section 295A makes a deliberate and malicious act, intended to outrage religious feelings of any class by insulting its religion or religious beliefs a punishable offence.
[6] AIR 1977 SC 908.
[7] Section 10 of the Hindu Marriage Act, 1955.
[8] Section 13(1) (ii) of the Hindu Marriage Act, 1955.
[9] Section 26 of the Hindu Succession Act, 1956.
[10] Section 13(1) (i) of the Hindu Marriage Act, 1955 provides a ground of divorce to the aggrieved spouse if the offending spouse, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.
[11] Kanwal ram v H.P.Administration, AIR 1966 SC 614, Para 7.
[12] The judicial response in this article has been given vis-à-vis culpable conversion only and it is not covering conversion simplister.
[13] ILR (1880) 4 Bom 330. A case before HMA came into force.
[14] AIR 1919 Lahore 389.
[15] 49 CWN 745.
[16] 1946 Bombay Law Reporter 864.
[17] AIR 1946 mad 446.
[18] AIR 1947 Nagpur 121.
[19] AIR 1995 SC 153.
[20] Sarla Mudgal v U.O.I, AIR 1995 SC 153.
[21] P.U.C.L v U.O.I, (2003) (3) SCALE 263.
[22] State of Maharashtra v Dr Praful. B. Desai, (2003) 4 SCC 601.
[23] National Textiles Workers Union v P.R.Ramakrishnan, (1983) 1 SCC 228.
[24] Praveen Dalal, “ The desperate need of UCC”,

The aim of this article is to explore the inverse relationship of a custom empowering the parties to the marriage to dissolve their marriage and the sacramental continuity of a marriage soleminised under the Hindu Marriage Act, 1955. A valid and legally recognised custom is respected and given due weight by the courts so that it can have its full operation. This is so because no person, including a court, has a right to challenge a well recognised and universally accepted custom, which has passed the test of time and the rigorous of public and societal interest.

I. Introduction

Marriage is the very foundation of a civilised society. The relation once formed, the law step in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. A marriage solemnised, whether before or after the commencement of the Hindu Marriage Act, 1955 (Act) can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Thus, it is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy[1]. Even under the Muslim Law plurality of marriage is not unconditionally conferred upon the husband. Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co wives in law is condition precedent[2]. As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. One of the causes expressly recognised by law is the legal sanction of a valid custom to dissolve a marriage. Thus the rules of dissolution of marriage and monogamy are subject to a valid custom to the contrary. This shows that the law relating to marriage and divorce of Hindus has an inverse relationship with a recognised valid custom. If a Hindu custom allows the parties to the marriage to dissolve their marriage as per the custom, then the Act cannot prohibit its operation, even if it goes against the basic spirit of the Act.

II. The inverse relationship

The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29(2) providing that nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. Thus, a marriage which may not be permissible to be dissolved as per the provisions of the Act can still be dissolved if the party relying on a custom can successfully plead and prove it. This shows that a valid and recognised customary law of divorce will prevail over the provisions of the Act and thus it shares an inverse relationship with the provisions of the Act, which restrict the right of the spouses to get divorce on limited grounds only. It must be noted that the customary law of divorce can be relied upon only if it satisfies certain well-accepted principles, as enumerated by the Courts from time to time. The characteristics of a valid and binding custom or usage empowering the parties to obtain divorce are:

(1) it must be of immemorial existence, it must be reasonable, it must, be certain and it must be continuous. Every custom must have to be in existence preceding memory of man and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory[3],

(2) it is the essence of special usages modifying the ordinary law that they should be ancient and invariable; it is further essential that they should be established to be so, by clear and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their existence and that they possess the conditions of antiquity and continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it[4],

(3) after the existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reason that such an evidence is allowable as an explanation to the general rule[5],

(4) the breach of a custom in a particular instance need not destroy it for all times[6],

(5) the material customs must be proved in the first instance by calling witnesses acquainted with them until a particular custom has by frequent proof in the Court becomes so notorious that the Courts take judicial notice of it. A custom cannot be extended by logical process[7],

(6) an oral evidence as to instances, which can be proved, by documentary evidence cannot be fairly relied upon to establish custom when no satisfactory explanation for withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a priori method[8], and

(7) the ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under Section 57(1) of the Evidence Act[9].

III. Judicial response

The response of the courts in India is two fold. On the one hand they respect the mandates of the valid and well-recognised customs whereas on the other hand any attempt, which fails to satisfy the rigours of public policy and societal interests, is thwarted at the very threshold. The courts are also very conscious to ensure that the requirement of the existence of a valid custom are duly fulfilled and they must be expressly pleaded and clearly established before any relief is granted. The general impression is that since these customs are going against the basic theme and policy of the Act, they must be construed narrowly and strictly. At the same time once these customs are validly recognised even in the limited, narrowed and restricted parameters of societal interests, they are given their due weight age and the wisdom of courts is not substituted for their wisdom and recognition.

In Sankarlingam v Subban[10] divorce by consent was held valid as a matter of custom of the Pakhali caste of Ahmedabad observing that there was nothing immoral in a caste custom by which divorce and remarriage were permitted by mutual agreement. There was no invalidity in a custom by which married couple on account of disagreement between them by consent could divorce and were divorced by parties approaching the headman and other relations, paying certain amount and taking away tali or the sacred thread from round the wife's neck and giving it back to the husband. It was only when the divorce was enforced against the wishes of his wife that the custom permitted divorce would be illegal.

In Pakhali Jina Magan v Bai Jethi[11] it was held that a custom of divorce with mutual consent of husband and wife stated to exist among the Hindus of Pakhali caste of Ahmedabad was not repugnant to Hindu Law. When it was contended that the institution of divorce was itself opposed to the concept of Hindu law and that there was no decision of any Court in India which held a custom of divorce as valid as it was observed that divorce is not contemplated by the Hindu Law but it is not repugnant to its principles, and if there be a well established custom in its support, it may override the general provisions of that law. It was further observed that there had been many cases in our Courts arising out of divorce in the lower castes. In all those cases even where it was held that the divorce had not been properly granted, it had been taken for granted that the custom of divorce can validly exist in a particular community, especially if it is a Sudra community, but that divorce granted cannot be forced by the caste against an unwilling person.

In Veerappa Chettiar v Michael[12] the main question involved in both the appeals was whether the marriage of Bangaru Ammal was in Asura form or in Brahma form. The contention of the appellant was that it was not in Asura form. The Court held that the marriage of Bangaru Ammal was not in Asura form but in Brahma form. The Court observed: “Except a bare allegation in the plaint that the said marriage was held in Asura form, the plaintiffs did not give any particulars or set up any custom in the community to which the parties to the marriage belonged. There was nothing to show that there was a practice in the family to give Kambu as 'Parisam for the bride or Kambu was paid as 'Parisam' at the time of the betrothal ceremony in connection with the marriage of Bangaru Ammal. We are also in these appeals not concerned with any customary form of marriage but only with a marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of Hindu Law. But there may be a custom in a community not in derogation of the Hindu Law but in regard to the manner of complying with a condition laid down by Hindu Law. That is to say if the criterion for an Asura marriage was that there should be a sale of the bride, there may be a custom in a community in regard to the manner of paying the consideration' for the sale”.

In Shakuntalabai v V.L.V. Kulkarni[13] the Supreme Court held that custom must be proved and the burden of proof is on the person who asserts it. A custom cannot be extended by logical process. The Court observed: “ Customs cannot be extended by analogy and it cannot be established by a priori method. Further, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under section 57(1) of the Evidence Act. The Court entertaining no doubt that there has been ancient and unbroken customs of dissolution of marriage and of Serai Udiki marriage among the Panchamasal Lingayats which was judicially noticed by the Courts, and that the marriage in the instant case, of the fourth defendant with Gurulingappa was proved to have been customarily dissolved and that she was subsequently legally married with Gurappa in the valid customary form of Udiki marriage, whereafter, she lived with Gurappa as husband and wife until Gurappa died, and that, thereafter, she enjoyed the family pension by dint of her being nominated as wife of Gurappa to the knowledge of all concerned. She was accepted by the community as wife of Gurappa even after his death. There is, therefore, no scope for declaring the marriage illegal posthumously”.

In Dr. Surajmani Stella Kujur v D.C.Hansdah (14-02-01) the Supreme Court observed: “It is conceded even by the appellant that the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage. The appellant has, however, relied upon an alleged custom in the Tribe, which mandates monogamy as a rule. It is submitted that as the respondent has solemnized a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status, the establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the General Clauses Act, would mean an act or omission punishable by any law by way of fine or imprisonment. Article 20 of the Constitution, guaranteeing protection in respect of conviction of offence, provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause (3) of the Constitution means the law made by the Legislature including intravires statutory, orders and orders made in exercise of powers conferred by the statutory rules. For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. Nowhere in the complaint the appellant has referred to any alleged custom having the force of law, which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom, which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non- est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. In view of the fact that parties admittedly belong to the Scheduled Tribes and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent”.

In Yamanaji Jadhav v Nirmala[14] the Supreme Court observed: “We find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document, which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong.
Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true in the courts below that the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of their not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case it is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26th of June, 1982 has come into existence and which is the subject matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26.6.1982 based on the finding arrived at in deciding the new issue”.

IV. Conclusion

A close reading and appreciations of the traditional Hindu Law and the Act reveals that the codification of the traditional Hindu Law is a positive step in the right direction, which recognises a benign movement from the statehood of non-recognition to the platform of recognition of grounds for divorce. The traditional Hindu law did not recognise the system of divorce and the husbands were literally free to desert their wives, as this was a socially accepted phenomenon. There was, of course, the customary law which recognised that divorce can be granted by either party to the marriage if a custom prevailing in their community permits them to do so. The legislature by way of codification has improved the “marital equality” among the spouses by formulating certain grounds, which can be invoked by either spouse to get a decree of divorce. In this sense the legislature has made “positive and constructive departures” from the traditional Hindu law. The best part about this codification drive is that it expressly and in clear terms reserved the right to grant divorce under the customary Hindu law by incorporating Section 29(2) in the Act. Thus, the spouses are now free to get divorce either by invoking the provisions of the Act or by successfully pleading and proving a valid custom permitting them to obtain divorce.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Phone No: 9899169611.

[1] Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.
[2] Lily Thomas v U.O.I, AIR 2000 SC 1650.
[3] Edward v Jenkins, (1896) 1 Ch.D.308, reiterated in Mohammed Ibrahim v Shaik Ibrahim, AIR 1922 P.C. 59.
[4] Ramalakshmi Ammal v Sivanantha Perumal Sethurayar, 14 M.I.A.81.570.
[5] Raja Rajendra Narain v Kumar Gangananda, AIR 1925 PC 213.
[6] D.C. Bara Banki v. Receiver of the Estate of Choudhry & Ors, AIR 1928 PC 202.
[7] Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147.
[8] Saraswati v Jagadambal AIR 1953 SC 20.
[9] Uzagar Singh v Mst. Jeo, AIR 1959 SC 104.
[10] [1894] 17 Madras 479.
[11] I.L.R.1941 Bom 535.
[12] AIR 1963 SC 933.
[13] AIR 1989 SC 1359.
[14] (2002) 2 SCC 637.

The aim of this article is to analyse and appreciate the role played by the Apex Court of India in reviving and revitalizing the personal laws concerning marriage of various communities, particularly the Muslim community.

I. Introduction

Some questions, which arise under the ordinary civil and criminal law, are of a far-reaching significance to large segments of society, which have been traditionally subjected to unjust treatment. Women are one such segment. Thus, in dealing with the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief, which partakes basic human rights to secure gender and social justice, is universally recognised by persons belonging to all religions. The solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints (1).

II. Necessity of a Uniform Civil Code

Marriage is the very foundation of a civilised society. The relation once formed, the law step in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. This societal interest mandates the enactment of a “Uniform Civil Code” (UCC) so that we can have a uniform law governing the marriages and the relationships and obligations arising out of them. Article 44 of the Constitution of India is the source for the enactment of a UCC to bring harmony between various personal laws governing the matrimonial relationships. Dr. Tahir Mahmood in his book ‘Muslim Personal Law' (1977 Edition, pages 200-202) has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: "In pursuance of the goal of secularism, the State must stop administering religion based personal laws". He wants the lead to come from the majority community but we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community: "Instead of wasting their energies in exerting theological and political pressure in order to secure an "immunity” for their traditional personal law from the state legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India". It is a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State, which is charged with the duty of securing a uniform civil code for the citizens of the country, and, unquestionably, it has the legislative competence to do so. The difficulties involved in bringing persons of different faiths and persuasions on a common platform are appreciable but a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case (2). One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law – personal law of the Hindus-governing inheritance, succession and marriage was given go-bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27 (3). Any legislation that brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation. It is a matter of regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies (4). The political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus were concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mohammedans. The 1772 Regula-tions followed by the Regulations of 1781 where under it was prescribed that either community was to be governed by its” personal" law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation - not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The Successive Governments till date have been wholly re-missed in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. It must be noted that the legislative competence is one thing, the political will, sensitivity and courage to use that competence is quite another. Thus, unless and until the political parties unite together for the common betterment of India, the hope for a UCC will always remain a distant reality. They must sacrifice their own personal interests and work for the interest of nation at large. The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade that decision cannot be allowed to operate. The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. This thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. This rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review (5). The Supreme Court provided a sound legal base in the form of guidelines for preventing sexual harassment of women at workplace in Vishaka v State of Rajasthan, (1997) 6 SCC 241 even in the absence of legislative will to fill in the vacuum. Thus, judicial law making is permissible in certain exceptional circumstances and the problem of UCC can be solved by this process. A careful perusal of the recent decisions of the Supreme Court shows that the same is happening in a systematic and phased manner, for the common betterment of society at large.

III. Judicial codification of personal law

The codification of personal laws into a UCC has remained a secluded and disgruntled reality, but the judiciary has given them a new dimension and meaning with the exercise of its legitimate and Constitutional powers of judicial activism. This is more so where Muslim personal law was involved. The object seems to be to empower Muslim women with the basic Human Rights so that they can live a dignified and respectful life. It must be appreciated that a nation which does not respect its women cannot be described as a civilised nation at all. Such a nation cannot grow and develop and will ultimately perish due to its own rudimentary and tyrannical dogma. It seems the Supreme Court has followed this philosophy without any exceptions attached to it.

In Mohd Ahmed Khan v Shah Bano Begum (6) the Supreme Court considered the application of section 125 of the Cr.P.C to Muslim women. The Court gave section 125 a humanistic and benign interpretation and observed: “ Under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), 'wife' includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws, which define and govern the rights and obligations of the parties belonging to particular religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. Clause (b) of the Explanation to section 125(1), which defines 'wife' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character. Therefore, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her. According to the Explanation to the second proviso to section 125 if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. It is too well known that a Mohammedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section125 overrides the personal law, if there is any conflict between the two”.

In Smt. Sarla Mudgal v U.O.I (7) the Supreme Court considered the effect of conversion to another religion on marriage and observed: “The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage. In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion. A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Looked from another angle, the second marriage of an apostate-husband would be in violation of the “rules of natural justice”. The second marriage after conversion to Islam would, thus, be in “violation of the rules of natural justice” and as such would be void”.

In Danial Latifi v U.O.I (8) while upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court summed up its conclusions as follows: 1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1) (a) of the Act. 2) Liability of Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to pay maintenance is not confined to iddat period. 3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. 4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

In Shamim Ara v State of U.P (9) the Supreme Court streamlined the position regarding the requirements for a valid Talaq under the Muslim law. The Court held that the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected.

In Savitri Pandey v Prem Chand Pandey (10) the Supreme Court held that the second marriage by a spouse during the subsistence of an appeal by the other spouse against the decree of divorce would be subject to the end result of the proceedings. The court further observed: “ There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf”. The legislature accepted this request of the apex Court of India and enhanced the period of appeal from 30 days to 90 days, which is an appropriate step in the right direction.

In Amina v Hassn Koya (11) the Supreme Court while adjudicating upon the validity of a marriage entered into by a pregnant Muslim female observed: It is very difficult to believe that a woman who is five months pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant especially when the pregnancy is five months old. Therefore, we cannot accept that that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void. Also, the conduct of the respondent at the relevant time is to be considered. He went through the marriage. He did not raise any objection even after the marriage. He was present at the time of delivery of the child. Presumably he gave his own name as the name of the father of the child for the official record. Even thereafter, for nearly four years he went along with the marriage and brought up the child while treating the appellant as his wife. Any person, who learns that his newly married wife is already pregnant for five months and who does not accept that marriage or pregnancy, will not behave in the manner in which the respondent did. In the present case, the facts on record show that the husband was aware of the pregnancy of the wife at the time of the marriage. Therefore, such a marriage cannot be said to be invalid”.

In B.S. Joshi & Ors v State of Haryana & Anr (12) the Supreme Court held that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. The Court observed: “ The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier”.

In K.A. Abdul Jaleel v T.A. Shahida (13) the Supreme Court held that the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. The Court observed: “The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts the matters relating to the property of the spouses or either of them. The Statement of Objects and Reasons would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise”.

IV. Conclusion

The Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that funda-mental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court (14). We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind (15). It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation (16). These changed circumstances may also create a vacuum in the legal system, which has to be suitably filled up by the legislature. If the legislature fails to meet the need of the hour, the courts may interfere and fill-in the vacuum by giving proper directions. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field (17). Thus, directions given by the court will operate only till the law is made by the legislature and in that sense temporary in nature. Once legislation is made, the court has to make an independent assessment of it. In embarking on this exercise, the points of disclosure indicated by this court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure there from cannot be countenanced (18). The courts may also rely upon International treaties and conventions for the effective enforce-ment of the municipal laws provided they are not in derogation with municipal laws (19). Thus, till India has a UCC, the judiciary should continue its benign and much needed codification drive. This will provide a sound and judicious platform for the ultimate UCC enacted by the legislature, after considering and giving due credence to the observations of the highest Court of India.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone no:9899169611.

(1) Danial Latifi v U.O.I, (2001) 7 SCC 740.
(2) Mohd Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945.
(3) Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.
(4) John Vallamattom and Anr v Union of India, (2003) 6 SCC 611.
(5) Praveen Dalal; “ Judicial review: Nuisance or absolute necessity”, www.naavi.org, dated: 06-0804.
(6) AIR 1985 SC 945.
(7) AIR 1995 SC 1531.
(8) (2001) 7 SCC 740.
(9) (2002) 7 SCC 518.
(10) AIR 2002 SC 591.
(11) (2003) 6 SCC 93.
(12) AIR 2003 SC 1386.
(13) AIR 2003 SC 2525.
(14) P.U.C.L v U.O.I, (2003) (3) SCALE 263
(15) Justice Bhagwati in National Textiles Workers Union v P.R.Ramakrishnan, (1983) 1 SCC 228.
(16) John Vallamattom v U.O.I, (2003) 6 SCC 611.
(17) Vishaka v state of Rajasthan, (1997) 6 SCC 241.
(18) Per P.V.Reddi.J in P.U.C.L v U.O.I, 2003(3) SCALE 263: JT 2003 (2) SC 528(Para 122). (19) Praveen Dalal, Judicial review: Nuisance or absolute necessity, www.naavi.org, dated: 06-08-04.

The aim of this article is to analyse the cachet and efficaciousness of the instrument of Public Interest Litigation (PIL) in India. At the same time an attempt is made to evaluate the sociological aspect of the PIL in India. The article further vocalizes the scope and nature of PIL in India.

I. Introduction

The Constitution of India is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed as that they can understand and appreciate it. The more they understand it the more they love it and the more they prize it. It is really the poor, starved and mindless millions who need the court’s protection for securing to themselves the enjoyment of Human Rights[1]. The Constitution precedents cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teaming millions, half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face the death and destruction. Then, neither the court nor the Constitution will save the country[2]. This line of thinking has been now recognised and adopted by various social reformers, lawyers, judges and social workers. Even, general public now knows that the court has constitutional power of intervention, which can be invoked to ameliorate their miseries arising from repression, governmental lawlessness and administrative deviance[3]. The socio-justice tool through which these aspirations of the Constitution and people of India are achieved is known as “Public Interest Litigation” (PIL). Before proceeding further, it would be appropriate to appreciate the meaning of the expression PIL. A matter of “public interest” does not mean that which is interesting or gratifying curiosity or a love of information or amusement but that in which a class or community have a pecuniary interest or some interest by which their legal rights or liabilities are affected[4]. The expression “public interest” or “probity in governance” cannot be put in a straightjacket. Public interest takes into fold several factors. There cannot be any hard and fast rule to determine whether government action was taken in public interest or was taken to uphold probity in governance. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilised society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity[5]. The expression “litigation” means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression PIL means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights and liabilities are affected[6].

II. Evolution of PIL

The legal movement, which has resulted in the shaping of PIL in India, has been influenced stalwartly by the benign movement in U.S.A. The “Council for Public Interest Law” set up by the “Ford Foundation” in the U.S.A defined public interest law as follows: “Public interest law is the name that has recently been given to efforts to provide legal representation to previously non-represented groups and interests. Such efforts have been undertaken in the recognition that the ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumers, racial and ethnic minorities and others. It was born out of the need of a large number of people who individually lacked the economic resources or operational capacity to vindicate important social values and their own specific interest through court”. In India, the courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, women, children and other downtrodden have either no to justice or had been denied justice. A new branch of litigation known as PIL was evolved with a view to render complete justice to the aforesaid classes of persons. It expanded its wings in course of time. The courts granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. The court has intervened when there had been callous neglect as a policy of the State, a lack of probity in public life, abuse of power in control and destruction of environment. The court interferes and gives appropriate directions when there has been an element of violation of Art1cle 21 or of Human Rights or where the litigation has been initiated for the benefit of the poor and the underprivileged that are unable to come to the court due to some disadvantage[7].

The evolution of PIL in India has an interesting background. In the famous case of Kesavananda Bharati v State of Kerala[8] the Supreme Court ultimately put a brake on the arbitrary and unreasonable power of legislature to destroy the “Basic features” of the Constitution. Thus, the seeds of PIL could never have been planted had the Supreme Court not brought justness and fairness in the “Indian Legal System” in the year1973, by formulating the “Doctrine of Basic Structure”. Justice Krishna Iyer sowed the seeds of the new dispensation in Mumbai Kamgar Sabha v Abdulbhai Faizullabhai[9] and used the expression PIL and “ epistolary jurisdiction” in Fertilizer Corporation Kamgar Union v U.O.I[10]. In between, the Supreme Court interpreted the expression “procedure established by law” as a procedure which must be just, fair and reasonable in the year 1978[11]. This led to the testing of any “law” on the touchstone of Articles 14, 19 and 21 collectively and thus brought justness and fairness in the State’s dealing with the general public. The Supreme Court in the year 1993 declared “independence of judiciary” a “basic feature” and acquired autonomy in the selection and appointment of judges[12]. This made the interference of “Executive” in the appointment of judges a forgotten practice and made the judges more free and impartial to render justice. In the year 1993 the Supreme Court held that judicial review U/A 32 and 226 is a basic feature of the Constitution, which is beyond the pale of amendability[13]. Thus, the discretion to entertain a dispute or petition was reserved exclusively with the judiciary. This was a landmark judgment since all the PILs are either filed U/A 226 or U/A 32. This means that the discretion to entertain a PIL itself can be considered to be a part of basic feature and the only limitation could be the self-imposed restriction by the court itself. To supplement all this, the collective powers of Articles 32, 136, 141 and 142 made the Indian Supreme Court one of the most powerful court of the world.

The courts in India found that the oppression of the weaker and disadvantaged groups was considerably greater in India as compared to U.S.A. The political and legislative sensitivity was also missing. The Supreme Court was left with no choice but to assume a much more concerned guardian and protector of Fundamental Rights. The resources in India were always claimed to be limited, hence the financing of legal aid programme for giving a boost to PIL was ignored by the government as much as possible. This led to the relaxing of the requirement of “procedures” and “locus standi” by the Supreme Court. The court treated even a simple letter as a PIL. Since the coffers of the State were not burdened by this practice, the “Executive” did not object to the growth of PIL as a measure for emancipation of the poor and the weaker sections. Even the public at large supported the PIL drive. It is interesting to note that the tool of PIL proved to be a grand success in India as compared to its counterpart in U.S.A. This may be because the strategy for giving the poor and oppressed meaningful access to justice is not, as in the U.S.A, to provide funds so that they may participate in the traditional system on an equal economic footing. Instead the strategy is to change the system. Thus, volunteer social activists are allowed standing; a simple letter can be accepted as a writ petition, the court itself will shoulder much of the burden of establishing the facts through the commissions, and whenever possible the case will move swiftly to the issue of remedy, by-passing the time-consuming and costly process. The substantial accomplishments of Indian PIL surely prove that it is a development worthy of the most serious consideration by jurists, lawyers and judges from all societies, and particularly from the United States where the parallel and contrasts are so striking[14].

III. Scope of PIL in India

The scope of PIL, reflecting its sociology, is very wide which is clear from the following principles:

(1) The court in exercise of powers U/A 32 or 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who are in a disadvantaged position and, thus, not in a position to knock the doors of the court. The court is constitutionally bound to protect the Fundamental Rights of such disadvantaged people so as to direct the state to fulfill its constitutional promises.
(2) Issues of public enforcement, enforcement of fundamental rights of large number of public vis-a-vis the constitutional duties and functions of the state, if raised, the court treat a letter or a telegram as a PIL upon relaxing the procedural laws as also the law relating pleadings.
(3) Whenever injustice is meted out to a large number of people, the court will not hesitate to step in. Articles 14 and 21 of the Constitution of India as well as the International Convention on Human Rights provide for a reasonable and fair trial.
(4) The common rule of locus standi is relaxed so as to enable the court to look into the grievances complained on behalf of the poor, deprived, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right.
(5) When the court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the government from raising the question as to the maintainability of the petition.
(6) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or provisions analogous thereto would apply depend on the nature of the petition as also facts and circumstances of the case.
(7) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a PIL.
(8) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of the personal grievances, the courting furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice.
(9) The court in special situations may appoint commission, or other bodies for the purpose of investigating into the allegations and finding out facts. The court will not ordinarily transgress into policy.
(10) The courts would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to Article 142 of the Constitution of India.
(11) Ordinarily the High Court should not entertain a writ petition by way of PIL questioning constitutionality or validity of a statute or a statutory rule[15].

The sociology of PIL makes it clear that through this mechanism the courts seeked to protect Human Rights and Fundamental Rights in the following ways:

(1) By creating a new regime of Human Rights by expanding the meaning of Fundamental Rights to equality, life and personal liberty. In this process right to speedy trial, free legal aid, dignity, means of livelihood, education, housing, medical care, clean environment, etc emerged as Human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement.
(2) By democratization of access to justice. This has been done by relaxing the traditional rule of locus standi. Any public-spirited citizen or social action group can approach the court on behalf of the oppressed classes. Court’s attention can be drawn even by writing a letter or sending a telegram. This has been called “epistolary jurisdiction”.
(3) By fashioning new kinds of reliefs under the court’s writ jurisdiction.
(4) By judicial monitoring of State institutions such as jails, women’s protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting Human Rights.
(5) By devising new techniques of fact finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own officials for investigations. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of Investigation or experts to inquire into Human Rights violations. This may be called investigative litigation[16].

The court may face the following challenges of the social-justice mandate, which they are competent to tackle:

(1) The expanded role of the judges in modern social state and the new demands for judicial responsibility.
(2) The rise and growth of varied system of judicial review and legitimacy of such growth.
(3) The emergence of the notion of “access to justice” as a judicial answer to egalitarian ideals and demands for effectiveness, and the development of PIL.
(4) The role of the courts in promoting its legal system in terms of PIL[17].
These challenges can be effectively met if we select an appropriate locus standi strategy, which advances the cause of social justice.

IV. Social justice and locus standi

The social justice requirement of India mandates that the concept of locus standi should be treated with a pragmatic approach. The present socio, economic and political conditions of India requires a “liberal locus standi” policy. Thus, PIL should be entertained as much as possible, by diluting the concept of locus standi. It must be noted that the right to move the Supreme Court U/A 32 itself is a Fundamental Right, which along with Article 226 has acquired a status of basic feature. The concept of PIL must be looked in the light of the judicial review power of the Supreme Court and the High Court in India, which is also a basic feature of the Constitution. This means that whenever a violation of any Fundamental Right is seeked to be protected either U/A 226 or U/A 32, the courts are “duty bound” to take note of the same. The doctrine of basic structure is not meant for “executive” or “legislature” alone but it equally binds the courts to exercise their power of judicial review wherever the situation demands so. If enforcement of Fundamental Right U/A 32 were refused by the Supreme Court, then the whole purpose of providing the Fundamental Rights under Part III would become futile. Thus, the doctrine of basic structure takes away the “discretion” of the High Courts and the Supreme Court to refuse to entertain a PIL, except in cases of abuse of process of law or abuse of process of court.
Some people discourage the expanded role of PIL by arguing that the PIL are overburdening the already overburdened courts. The fallacy of this argument is apparent and it suffers from at least two weaknesses. Firstly, the problem of overburdening is an “administrative” problem whereas the rights sought to be enforced are Constitutional and legal in nature. It is difficult to appreciate how the sacrosanct Fundamental Rights and Human Rights can be brushed aside simply on the basis of a hyper-technical “administrative argument”. Even if we prohibit the entertainment of PIL absolutely, it will not solve the problem of overburdening of courts. The problem of overburdening of the courts can be solved only by adopting a positive attitude by the judges and lawyers and it has no relationship whatsoever with the benevolent concept known as PIL. It must be appreciated that two wrongs cannot make a thing right. Thus, the overburdening of courts cannot be lessened by limited use of PIL. The solution lies in administrative efficiency and not in curbing the essentially required PILs. Secondly, the doctrine of basic structure and the socio-economic conditions of India obligates the Constitutional courts to liberally use the tool of PIL. If we look back at the past what would have been India had the tool of PIL not been used by the courts in India. In any case, the maintainability of a writ petition which is correlated to the existence and violation of a Fundamental Right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in watertight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. The civil remedies for administrative wrongdoing thus depend upon the action of individual citizens. In such an action, the individual is pitted against the State-always an unequal contest. The individual does not have even the few procedural devices that the common law imports into criminal actions to try to redress the balance. At his own expense, he must challenge the vast panoply of State power with all its resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for an extraordinary remedy-injunction, writ of mandamus, or writ of prohibition. Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering. In simple terms, locus standi must be liberalized to meet the challenges of the times. Ubi just ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets .Law is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundry will be litigation-happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffer from atrophy and activism is essential for participative public justice. Some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi. Public interest litigation is part of the process of participate justice and 'standing' in Civilization of that pattern must have liberal reception at the judicial doorsteps. If the courts cannot, or will not, give relief to people who' are in fact concerned about a matter then they will resort to self-help, with grave results for other persons and the rule of law. Some may reply that if there is no evidence of a great increase in numbers there is no evidence of need for enlarged standing rights. The reply would overlook two considerations. One case may have a dramatic effect on behaviour in hundreds of others; this is the whole notion of the legal 'test case'. Secondly, the mere exposure to possible action is likely to affect the behaviour of persons who presently feel themselves immune from legal control[18]. It is of utmost importance that those who invokes this court's jurisdiction seeking a waiver of locus standi rule must exercise restraint in moving the court by not plunging into areas wherein they are not well versed. Besides, it must be remembered that a good cause can be lost if petitions are filed on half -baked information without proper research or by persons who are not qualified or competent to raise such issues as the rejection of such a petition may affect the third party's rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is; satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations[19]. It must be noted that even where a writ petition has been held to be not entertainable on the ground or otherwise of lack of locus, the court in larger public interest has entertained a writ petition. In an appropriate case, where the petitioner might have moved a Court in his private interest and for redressal of the personal grievance, the Court in furtherance of e-public interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus, a private interest case can also be treated as public interest case[20].

V. Abuse of PIL

PIL is a weapon, which has to be used with great care and circumspection, and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The court must not allow its process to be abused for oblique considerations. The petition of such persons should be thrown out at the threshold and in appropriate cases exemplary costs should be imposed. PIL cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions U/A 32 were entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this court. Personal interest cannot be enforced through the process of this court U/A 32 of the Constitution in the garb of a PIL. A person invoking the jurisdiction of this court U/A 32 must approach this court for the vindication of the fundamental rights of affected persons and not for the vindication of his personal grudge or enmity. It is the duty of this court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction of this court for personal matters under the garb of the P.I.L[21]. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance deserves rejection at the threshold[22]. It must be noted that once the court has accepted the PIL, its withdrawal is not permissible unless the court permits the same. Thus, the petitioner is not entitled to withdraw his petition at his sweet will unless the court sees reason to permit withdrawal. In granting the permission the court would be guided by considerations of public interest and would also ensure that it does not result in abuse of process of law. Courts must guard against possibilities of such litigants settling the matters out of the court to their advantage and then seeking withdrawal of the case[23]. Thus, a writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clear mind and clear objective. It is depressing to note that on account of the trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for disposal of cases of genuine litigants. Further, The court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of Information given by him; and (c) the information being not, vague and indefinite. The information should show gravity and seriousness involved. The court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others, and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court, cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature[24].

VI. Social justice through PIL

The Supreme Court has played an active role in attaining social justice through the mode of PIL. In Hussainara Khatoon v State of Bihar[25] the PIL was filed by an advocate on the basis of a news report highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. This litigation exposed the failure of criminal justice system and led to a chain of proceedings resulting in the release of over 40,000 undertrial prisoners. The right to speedy trial was recognised as a Fundamental right U/A 21 of the Constitution. In Bandhua Mukti Morcha v U.O.I[26] the Supreme Court considered the plight of bonded labourers engaged in the stone quarries of Haryana. An action in the form of PIL was initiated for the identification, release and rehabilitation of the bonded labourers. The court issued direction to the Haryana Government in this regard, which were updated from time to time to meet the end of justice. In Sheela Barse v U.O.I[27] a PIL was filed to assist the release of juveniles kept in jails. The Supreme Court issued directions for the release of such juveniles and asked for the information regarding the number of such juveniles who are placed in jails. In P.U.D.R v Commissioner of Police, Delhi[28] the attention of the Supreme Court was drawn to the police atrocities committed against poor people who were forcibly taken to a police station in Delhi to work there without wages. As a consequence of such atrocities, one person died. The while granting a compensation package to the legal representatives of the deceased, the court directed the recovery of the same from the erring policeman. In M.C.Mehta v State of Tamil Nadu[29] a PIL was brought before the Supreme Court complaining that thousands of children were employed in match factories in Sivakasi. These children were exposed to fatal accidents occurring frequently in the manufacturing process of matches and fireworks. The court directed the State Government to enforce various welfare legislations including the Factories Act and to provide facilities for recreation, medical care and basic diet to the children during working hours and facilities for education. The court further directed for the formulation of a scheme requiring a compulsory insurance of both adult and children employed in hazardous industries. In Delhi Domestic Working Women’s Forum v U.O.I[30] the Supreme Court took a serious note of the sexual assault by seven army personnel against six domestic servants travelling in the train. The Supreme Court laid down various guidelines to protect and assist rape victims. The guidelines include the legal assistance, anonymity, compensation and rehabilitation of rape victims. The National Commission for women was directed to evolve a scheme for providing adequate safeguards to these victims. In the landmark judgment of Vishaka v State of Rajasthan[31], the Supreme Court declared that sexual harassment of women at work place constitutes violation of gender equality and right to dignity, which are Fundamental Rights.

VII. Conclusion

The role of PIL in bringing and maintaining the concept of “social justice and equality” cannot be either doubted or rejected. The roads ahead are, however, very tedious, difficult and complex in nature. The toughest competition is from the “executive” wing of the Constitution as it is careless about and ignorant of its noble role, which the founding fathers of the Constitution have framed for it. The court may keep on recognising the basic Human Rights and Fundamental Rights, but their “enforcement” is equally important. The “executive” seems to be indifferent towards the goals set by the Constitution and is interested in self-fulfillment only. This process is reflected by the increasing judicial activism of the Supreme Court, which is encroaching upon, though rightly and justly, those areas which primarily and exclusively were reserved “executive” and the “Legislature”. The abdication of the “Constitutional duties” by the Executive and the Legislature has left no choice for the Supreme Court but to assume the role of “limited policy making and law making”. This further has necessitated the acceptance of “unlimited qualitative quantity” of PILs in India. This means that the deserving cases should be admitted and appropriate reliefs should be granted irrespective of the number of PILs involved. Thus, the wings of PIL are required to be spread further till Executive and Legislature wake up and fulfill their duties and responsibilities.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone no: +91 011 9899169611.

[1] Justice Dwivedi in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
[2] Justice Chandrachud in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
[3] Upendra Bakshi; “Taking suffering seriously: Social Action Litigation in the Supreme Court of India” Law and Poverty (ed) Upendra Bakshi, pages 387-415 (1988).
[4] Janta Dal v H.S. Chowdhary, AIR 1993 SC 892.
[5] Onkarlal Bajaj v U.O.I, (2003) 2 SCC 673.
[6] S.R.Pandian. J in Janta Dal v H.S.Chowdhary, AIR 1993 SC 892.
[7] Balco Employees Union v U.O.I, AIR 2002 SC 350.
[8] (1973) 4 SCC 225.
[9] (1976) 3 SCC 832.
[10] AIR 1982 SC 344.
[11] Maneka Gandhi v U.O.I, AIR 1978 SC 597.
[12] Supreme Court Advocate on record v U.O.I, (1993) 4 SCC 441.
[13] Kihoto v Zachilhu, AIR 1993 SC 412.
[14] Clark D. Cunningham; “ Public Interest Litigation in Indian Supreme Court: A study in the light of American Experience”, J.I.L.I, V-29: 4. P-494 (1987).
[15] Guruvayur v C.K.Rajan, 2003 (6) SCALE 401.
[16] Parmanand Singh, “ Public interest litigation in India”
[17] S.R.Pandian. J, in Janta Dal v H.S.Chowdhary, AIR 1993 SC 892.
[18] Fertilizers Corporation Kamgar Union v U.O.I, AIR 1981 SC 344.
[19] S.P.Anand v H.D.Deva Gowda, AIR 1997 SC 272.
[20] S.N Patil v M.M.Gosavi, AIR 1987 SC 294.
[21] Subhash Kumar v State of Bihar, (1991) 1 SCC 598.
[22] Janta Dal v H.S.Chowdhary, (1992) 4 SCC 305.
[23] S.P.Anand v H.D.Deva Gowda, AIR 1997 SC 272.
[24] Ashok Kumar Pandey v State of West Bengal, JT 2003 (9) SC 140.
[25] AIR 1979 SC 1360.
[26] (1984) 4 SCC 161.
[27] AIR 1986 SC 1773.
[28] 1989 (1) SCALE 114.
[29] AIR 1991 SC 417.
[30] (1995) 1 SCC 14.
[31] (1997) 6 SCC 241.

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