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Justice for the Super Rich
The recent sitting of the Supreme Court at
the residence of Justice Mukherjee on 2 October, has justifiably led to the impression that
the court as an institution has been highjacked
by the rich and turned into a playground for men
with deep pockets. Coming as it does, fast on the
heels of the Amin petition filed under Article 32
in the Ambani-Wadia war, which was entertained
without any notice to the affected parties and
literally at a moments notice, one gets the impression that the Supreme Court is obsessed with
the problems of the Ambanis of the world.
It is not just the undue haste with which such
petitions are heard which is annoying. It is also
the fact that other more deserving cases of injustice ciying out for relief have not been entertained, thrown out at the threshold. This is not a
case for Article 32, we are told. Not only do the.
others get delayed justice, but what is worse, the
doors of the Supreme Court are closed to them.
Article 32 has become what the individual judge
wants it to be — an invitation to personalised
justice. Take the case of the cricket stars on
whose behalf a petition was filed in the Supreme
Court questioning the ban imposed on them. The
sympathy of the judges was with them, and soon
enough, thanks to judicial intervention, the ban
was removed. In contrast, when 70 and 80 year
old pensioners approach the Suprem,e Court complaining of discrimination, judges say "Why don't
you go to the High Ourt, is the Supreme Court
meant for this?"
What is the Supreme Court meant for? A
good question, to which we would like an institutional response, not an individual response which
varies from judge to judge. Article 32 has become a tool in the hands of judges to do what
they wish or/and what they dislike.
One hopes that the healthy public criticism of
the court will lead io the formation of guidelines
for priority hearing. Court time is limited and
any essential commodity must be rationed in
order of priority. Women and children in distress,
the homeless, underemployed and unemployed
must get first preference in court, as they, more
than the Ambanis and Wadias, are fighting survival issues.
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AI'THE LAWYERSW
COLLEC77VE
VOL. 4 NO.lO
CONTENTS
EDITORIAL
2
LETTERS
3
COVER STORY
Aids Victims — Isolated By The Law
Anand Gmver
4
The AIDS Prevention Bill, 1989: Protection or
Prosecution?
Sudhanha GauLam
REPORT
The Dereservation Controversy
r
"C
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II
LAW AND PRACTICE
Divorce by Mutual CMsent
Shyam MeW
13
Definition of Death: The Legal Aspect
P. M. Bakshi
15
Natural Mother as the Custodian of Her Child
Poonam Sarena
17
MONTHLY UPDATE
19
NOTICE BOARD
The Acquired Immuno Deficiency Syndrome
(AIDS) Prevention Bill, 1989
22
COMMENT
Trivial Indiscretion or an Outrage to the Mdesty
of a Woman?
Robin E. Abrams
"
25
FEATURE
The Jurisprudence of Obscenity
Jmke V.R. Krishna Tyer
27
b
·
HAAZIR HAI
Arthur CJMskalSon
30
ADAALAT ANTICS
32
a@
The views cnpressed g Uie aiuhors do not necma9 reprwent
Lhose of the editor.
Eauor : Indira Jaising
818, Swk Erchange Towers, Dakl Street,
Bombay - 400 023.
· R
Cowr Illustration : Udqy Parker
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The Lauyers October 1989
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3
LETTERS
.%
€:"
Legislation for Construction
., Labour
During the last four years, the National
Carrpaign
Committee
for
Central
Legislation
on
Onstruct ion
Labour (NCC-CL) has been fighting
for a comprehensive legislation to ensure social securhy and labour welfare
for construction workers, who are the
second largest and one of the most
exploited segments of the unorganised
sector in India today.
During the
first
phase of its
ac-
tivity, NCC-CL drafted a comprehensive legislation that could ensure the
implementation of social security and
Jabour welfare measures for construeHon workers. The Bill is called 'The
Construction Workers
EmplWment
and
(Regulation of
Conditions
scheme were submitted with the signatures of more than 4 lakh construction
workers Rom all over the country.
E
Courts (Court) Rules, 1988. The rules
expressly provide for a counselling
centre within the premises of the
oourt. The chief fiinaion of the marriage counsellors is to try and bring
about reconcijiation among the parties
coming to the court. Apart from this,
they can advise the court before or
during the proceedings.
To
press
for
the
complete
withdrawal of the Bill, the NCC-CL
has resolved to take a variety of steps
at various levels, for instance, to seek
the support of all state governments
for the NCC-CL proposal, to approach
various political parties in the country
for their support and to urge them to
include the demands of construction
labour in their .election manifmoes. A
signature campaign is also being oonducted in supµm of this.
Whether or not they can be represented by a lawyer, is a subject of
confUsion among the parties coming to
the court. Section 13 of the Fami)y
Courts Act, 1984 does not expressly
prohibit representation by a lawyer. All
that Section 13 excludes, is the :'right"
to be represented. This interpretation
is fimher strengthened by the reference to "an advocate" in Section 5(8)
.of the Family Courts (Court) Rules.
Further, any digression Fom the above
interpretation, will lead to a contradiction between the provisions of the Act
and rules passed by the government
of Maharashtra. Above all, can we
take away or prohibit a person fiom
getting legal representation? In theory, '
reconciliation
between
the
parties '
might appear simple and laudable, but
then in practice, the .socio-economic
disparity between the parties will
hamper the ends of justice. The parties should be given a choice.
of Ser-
vicej Act,
1986'.
On
5
December
i9U, this Bill and the accompanying
'i
The NCC-CL duly submitted a
critique of this Bill to the Petitions
Committee and requested that the Bil!
pending in the
Rajya Sabha be
withdrawn and a fresh comprehensive
Bill be introduced. It also requested
that the legislation proposed Py the
NCC-CL be examined, considered and
suitably incorNrated.
.
National Campaign Committee for
Central Legislation OIl CoDstruction
Labour
E-23, Xwier.4pamnems, Opposite D
BlocL Saraswati Vhar, Pitam Pur%
Delhi-110 034.
The Bill recognises the fact that in
the
unorganised
sector,
no
stable
employerqmplQyee relationship exists.
It therefore subscitutes the existing instability by a Tripartite
Labour Board
emplqyers
Construction
consisting of workers,
and
government
repre-
sentatives. It
is proposed that this
board would register all construction
I
workers
and
i
regulate
the
! er
[ " =C-=
l
!
contractors
emplcjyment
and
would
of workers
by allocation of work by rotation. It
would provide a minimum guaranteed
wage per month, as well as determine
P
4
The Bombay Family Courts
The Family Courts, established on 9
October 1989, under The Family
Courts Act, 1984 is located at Bandra
East and will be handling all the
matrimonial discord cases, presently to
be instituted or pending in the city
civil court, prior to 11s .establishment.
The territorial jurisdiction of this court
will be the same as that of the city
civil court.
The proceedings are held in camera
and outsiders are not allowed into the
courtroom. At present, there are five
judges. The general opinion amongst
the parties is that this court will help
speedy settlement of matrimonial disputes.
and provide appropriate conditions of
ir
service, thus alleviating the misery of
b
.
workers, which stems from insecurity
C
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of employment and rampant exploitation.
0
The government of Maharashtra, in
exercise of the power oonferred by
Section 21 of the Family Courts Act,
1984 has brought out the Family
Manish Narain
B-A. LLB. (Hons) 2ndyear,
National Law School ofIndi% Univelm
Bangalore.
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Before
0
the
Petitions
Committee
could fina!ise its report, and in Kct, a
I
few
k
1>
days
before
the
NCC-CL
was
called to tender evidence, Le. on 5
December !988, a Bill was introduced
l
in
the
Rajya
Sabha
under
a
title
j
,,
similar to that of the proposed NCC-
¶
Workers
CL Bill. Interestingly,
i
l
Building
and
does not contain a single line regarding the regulation of emplqyment or
' -a"
,
social
security
and
labour
welfare
measures for construction workers.
t
P
¶T
C
K
j,
Annual Subscription Rates:
Individuals
Institutions
RC.80
Rs.120
Overseas
(ercept South Asia)
$40
$60
—
South Asia
$26
$40
—
Construction
of Employmenr
and Conditions of Service) Bill, 1988'
i
Tel: 272794
this Bill, 'The
Other
(Regulation
THE LAWYERS
818, STOCK EXCHANGE TOWERS,
DALAL STREET, BOMBAY - 400 023.
India
Students
Rs.40
P
I
The Lauyers October 1989
3
"COYER STORY
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AIDS Victims — Isolated by the Law
4C
Even as AIDS becomes a major epidemic in India, government poliq towards it continues
to be based on prejudice, wii/i de/e/eTious e¶ects, both on citizens' rights and public. health.
Anand Grover describes the etTect of this prejudiced response in Goa and makes a case for a
rational approach to AIDS.
O n 21 June 1989, if anybody had
seen Benedict Al Dnso alighting
from a bus at Mapusa, Goa, he would
have surely thought that he was witnessing a scene Eom a" fiituristic film.
For, as Benedict aligMed Rom the
bus, he was accosted W policemen
. and health personnel in an ambulance.
He was told that he would have to
accompany them to a detention centre
for isolation. Benedict was bewildered.
" He Oas in a state of shock. There
was no question of any resistance. He
was led io the ambulance and then to
the TB Sanatorium at Mapusa, .Goa.
A discerning observer would have also
noticed that thoueh Benedict was
being detained, none of the police or
health personnel dared touch him.
For,' according to the Goa authorities,
he had been determined to be
serologically positive for Human Immono Deficieng' Syndrome (HIV), the
virus associated with the Acquired Im,
Privacy Violated
As soon as the press came to
know of it, they found the Goa state
authorities, in contrast with their usual
noncommittal attitude, most willing to
supply each and every bi[ of information about the personal details of the
person suspected of AIDS as also the
action that they had taken to prevent
the spread of AIDS. The next few
days saw a spate of articles about how
the "sons of the soil" were being infected with the dreaded disease by
foreigners.
.contact
did theyBenedict
find out was
why the
he
was beinghimdetained.
second
victim
of
the
Goa
government's law OIl AIDS.
Says Dominic: "The press simply
serisationalised the whole thing. They
never bothered to check any facts with
me or my family. The press could
have educated the public. Instead it
Qublished repons that I was highjy
promiscuous, that I used to roam with
hippies on the beach, that I was not a
public spirited citUen, all of which are
untrue. I have never roamed with any
hippies. Neither am I an tin-publicspirited citizen. I have been a voiun-tary donor of blood for several years".
Earlier, in February 1989, Dominic
D'Souza · (see interview on page 6)
suffered a similar Rte. Dominic was
taken to the Mapusa TB Sanatorium.
"Everyday a doctor would come to
supposedly check me up but he would
just stand outside the door and ask
me how I felt. Of course I wasn't ill,
so I said I felt well and&om that distance itself the doctor would go
away", says Dominic bitterly. The doctors, who should have known better,
were not prepared
to
examine
Douiinic, not even touch him, for fear
of contracting AIDS.
As a result of fhe publicity in the
press, virtually everybody in Goa came
to believe that Dominic and later
Benedict, Rasheeda and Asbok were
suUering from AIDS. This added to
'the trauma they were suffering from
on coming to know that they had coniracted HIV. At one stroke they were
faced with the prospect of not onN
living with a dreaded disease with no
known cure and with the prospect of
certain death, but also with the whole
world knowing about them having conuacted the disease and drawing their
own surmises about how they contracted the disease and castigating "
murjo Deficienq
disease.
Syndrome
(AIDS)
Benedict was not told
anything
' about the cause of hi4 detention. Only
when his relatives and Mends tried to
.
Later, the authorities in Goa also
isolated Ashok Kambli and Rasheeda
Begum,
in
the
Mapusa
TB
Sanatorium.
m LoWyeN OctDber 1989
4
~
then on that account. The governmeat
did not do anything to either protect
ihe confidentiality·of the patients or to
educate the public about the disease
or to set up support services for the
patients — i.e. the government did
not follow" any part of , the threepronged strategy of tbe WHO, considered to be crucial and accepted
world wide.
" :K'" ,
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HIV and AIDS
r
AIDS was first detected in 1981 in
the U.S.A. Within 7 years, scientists
have been able to isolate the virus associated with AIDS, now officially
known as HIV.
h is also now well
established that
HIV infection can
only occur by three modes, viz. sexual
intercourse,
blood
rraMUsion
and
matemo fetal transmission (see txjx).
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Initially, when AIDS hit the west, it
was found to
be most prevalent
amongst homosexuals. It was considered
to
be
·a
disease
Of
homosexuals. Anal
intercourse was
suspected to be the culprit. However
Ce
-"&
,rp
this myth proved to be only that — a
myth! Ii was totally shattered when
Ahican and Haitian victim of AIDS
were shown to be heterosexual. Therefore, it is now clear that i[ is not a
panicular sexual practice (e.g. vaginal
or anal) which is crucial, but whether
it is being conducted in a safe manner
or not (viz. whether a condom is
being used or not). Safe sexual practices are now considered to be more
important than any restraint on the
type of sexual practices.
a,
3.
Health Education Crucial
The World Health Organisation
(WHO) considers that the met important component of any effective
AIDS
prevention
programme,
is
educating the public at large about
the nature of the disease. Apart fiom
~5
12
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that, the WHO has pointed out that
protecting the confidentiality of the
HIV patient's health status and giving
the patient support in leading a normal life are most important in
preventing the spread of AIDS. If
conMentiaiiy is not maintained, and
no support is given for leading a normal life, no AIDS patient is likely to
approach the authorities. This will
drive the HIV carrier underground
and all the programmes to prevent
spread of the infection will flounder.
Moreover, in the absence of any
known cure for the disease, helping an
HIV patient to lead a normal life is
rightly thought to be the only way to
combat the trauma that sets in afier
the person realises that he or she has
contracted HIV infection.
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Goa Act
In this context, the Goa law makes
no sense. Isolation of the HIV patient
is the premise of that law.
In 1987, the Goa
Public Health
Act was amended W Act 7 of 1987
under which Clause (vii) of Section
53(1) was added, under which the
authorities were mandatori!y (the word
used was 'shall') required to isolate a
person found to be positive to the
serological tests. The rationale of the
1987 Goa law is evident Rom the
other clause introduced by the 1987
amendment which considers AIDS a
contagious disease. Thus, clause (viii)
provides that an HIV patient shall be
provided with materials, equipment
etc. which will not be used by any
other persons. Clause (X) provides that
linen, mattresses etc. used by deceased
AIDS patients shall be immediately
desupyed Py buniing. Clause (xii)
provides
that
persons
handling
deceased bodies of AIDS patients shall
ensure that they do not oome into
contact with secretions such as saliva.
Further, no opportunity is given to
the patient to show that he or she
has been determined to be positive
conclusively or that he or she was
wrongly determined serologically positive or that there is no need for isolation. The Goa Act is unfair, unjust
and unreasonable — both in substance
and procedure, and is violative of Article 14 (right
to equality), Article
19(1)(d)
(right
to
move
Eeely
throughout the territory of India) and
Article 21 (deprivation of personal
liberty).
Dominic and others believed that
they would be able to oonvince the
authorities that their isolation was totally unjust. His fiiends approached all
concerned, including Eduard Falleiro.
Says Isobel, a Mend of Dominic, "I
tried to meet all persons in authority
to convince them of the totally inhuman nature of the action. Ultimate-
Basic Facts Regarding AIDS
1
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The Human Immuno Deficiency virus invades particular cells in the human m. Being nuclear, they
take up the protein from the hast cells and start
reproducing. UMortunately, HIV has an affinity for the
T-4 oelis which form a part of the bodYs immune System
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along with B4ymphoqytes and macrophages. T-4 cells, also
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called the helper cells, heip the B-cells to recognise the
virus. The HIV turns over the DNA code of the T-4
cells and starts producing a reverse DNA axle, causing
them to cluster together and die. As a result, the immune system malfunctions and the body organs stop
i
responding to identified antigens.
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Transmission Routes: Be Safe Rather Than
I
Sorry
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The best way to avoid HIV infection and its potential
consequences is to understand clearly how it is trans-
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mitted and act to prevent transmission. HIV is known to
be transmitted through:
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1) Injection of infected blood directly into the
bloodstream through intravenous, intramuscular, or subcutaneous injections. B1ood-to-blood transmission may
occur through the sharing of unsterilised hypodermic
needles in drug-use or Rom their repeated re-use in
hospitals, blood blanks and other health service settings. It
also occurs when cxmtaminated blood and blood products
are transfiised to blood recipients.
2) Cbntact of infected blood, semen or vaginal and
cervicd secretions with mucous membranes in the vagina,
rectum, urethra and possib|y mouth and throat. Proper
use of latex omdoms Rom start to finish during intercourse with men is protective, because HIV does not
penetrate unbroken condoms. The sharing of 6bod or
semen during sex is a more important risk factor than
simply the number or gender of sexual partners or sex
pei' se.
3) From an infected woman to her fetus during pregnancy or passibly during delivety.
HIV is a Kagije virus outside the body and is killed
W heat, ordina[y soap and water, household bleach, lysol,
and the chlorine used in swimming pools. It is relatively
difficult to mtch. Not one case has been reported of
HIV transmission by air, tears, sweat, shaking hands, hugging, coughing, sneezing, using swimming pools, touching
door knobs, toilet seats, fUrniture or telephones, massage,
mutual masturbation, sharing towels, bed-linen, drinking
glasses or food utensils, eating in restaurants, being bitten
by mosquitoes or other animals, or any other form of
everyday contact Saliva uncontaminated tty blood bas not
been implicated as a mechanism of transmission and
deep-kissing is generally not a high risk activity. Unprotected penetrative sex, vaginal or anal, injection of infected blood or blood products, and perinatal transmission
a(munt for almot all the millions of cases world wide.
The Lartyen October 1989
5
COVER STORY
tK
-2g-
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What it Means to Suffer From AIDS
Norma Alvares interviews Dominic D 'Souza, the frst victim of the repressive Goa kw.
g
Q. How did you come to know you had AIDS? Can
you recall the sequence of events which led to your isolation and detention "iri the TB Sanatoriiun at Mapusa?
A. I came to know that I had AIDS only when I was
isolated. No one told me anything earlier. Early in the
morning on 14 February, a policeman in civilian clothes
came to my house and asked me to come to the Mapusa
police station.
At the Mapusa police station I was asked whether I
had ever been admitted to the government hospital and
when I told them I was admitted a year and a half ear. lier for some minor ailment, they quickly assured me that
this inquiry was to do with those discharge papers not
being in order. I believed them, and totally unsuspecting,
accompanied them first to the government hospital and
later to the panjim police station.
Then it was back to Mapusa police station and Rom
there to the government hospital where the doctors
proceeded to conduct a physical examination. At first 1
wanted to refiise, but W now I was also quite scared
because I did not kngw what was happening. I asked the
doctors, the nurses and anybody around, time and time
again what this was all about..They would not even speak
to me.
Suddenly I realised that there were six policemen outside, two were armed and the others had "their lathis and
they were watching me. Then I saw the doctors talking to
each other in whispers and all of them kept looking at
me and people too &om the other departments started
peering in to a take a look at me. Probably the word
was spreading like wild fire in the hospital. It was only
when the nurse started writing OUt the admission papers
that I saw her write Acquired Immuno Deficieng'
Syndrome alongside my name. That's when I came to
know that I had contracted AIDS. But no official formally told my anything, ekher then or later.
Q. How were you treated while in detenhn?
A. The attitude of the medical staff was deplorable.
They were most unsympathetic. Everyday a doctor would
come to supposedly check me up, but he would stand
outside the door and ask me how I felt. Of course I
wasn't sick, so I said I felt well and from that distance
itself the doctor would go away. Pills of Liv-52 and
vitamin B-complex were sent in with my meals.
"
It was only afier I spoke to some reporters about the
attitude of the doctors, that things starred to change a
bit. They would come near the bed but barely touch the
stethpe to my chest before scurrying away again.
Q. What did you do before approaching the com?
A. My family and I had considered the option many
times but we didn't want to use it initially. We thought
we would give the government time to change its mind
6
about detaining me. We also approached M.LA. Uday
Bembre who agreed to broach the subject in the assembly. Sad to say when the matter came up, it became a
topic of laughter and ridicule. But underneath all the
ridiciMe and the jokes was the firm oonviction expressed
by the government that I was to continue to be isolated.
Q. Do you think isolation has served any use/iil purpose for you or for socieN? C has it made matten
worse?
A. I feel isolation was totally uncalled for. Not only
was it violative of my fundamental rights, it was also used
irrationally. Secondly, isolation causes a lot of mental
stress. It is scientifically known that an FINS mental
stability is vital for his well being. Beeuse if you sufTer
from mental stress the virus acts faster on your body.
That is why the WHO guidelines state tbat under no
circumstances should HIV carriers be isolated or be
ostracised from society or any publicity be given about
their cases or the patients confidential information be
made public.
J
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But precisely the opposite happened. So, it was not
just the law that isolaied me. It was society which was
isolating me also. In the sense that with the pubiicity that
was given to my case and knowing how small a place
Goa is, everybody knew exactly who I was. And so I
received a death sentence not only in medical terms, but
fiirther the normal regular life that I would have enjoyed
was irretrievabfy lost.
Third, forced isolation is going to have a reverse eUCct
on other AIDS carriers wbase identities are not yet
known. The government came to know that I was an
HIV carrier only because I donated blood. But there
must be several persons in Goa who Mil suspect that
they are AIDS carriers. Mind you, they may or not be
carriers. But with the influx of tourism in Goa, the drug
meoace and a lot of Goans have been working abroad
too or go on holiday — if you have such a law that
forcibly isolates tiie victim, you an be sure tbat anyone
who suspects he has AIDS will go undergroUnd. And
when you go underground without counselling Rom any
medical authorities, without being advised of measures for
having safe sex, you are going to transmit the virus to
others. On the other hand ·you do not Kijow for certain
that you have the virus. Symptoms of AIDS may come
up afier six months or after eight years. So, if you do
not have AIDS you have put yourself through unnecessary trauma.
Isolation has affected my whole life. It has kept me
away Rom my job. It has made me lase confideDce in
myself. I can't put my mind to doing anything, because I
am so uncertain what's going to happen tomorrow. I
don't want to invest in something, build my hopes and
then have them shattered all over again.
.
The LaWye7s October 1989
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COVER STORY
,
Ge
·"
ly I met Eduard Falleiro. I was shocked when he told me that Dominic had
government that aids was contagious
was correct.
dimely wkhout the intervention of the
Act Amended
Conclusion
In June 1989, Clause (vii) was
amended W Goa Act 13 of 1989, as
a result of which the mandatory
provision was changed such that discretionaiy [xjwer (the word 'shall' was
replaced Uy the word 'maj') was
granted. However, no guidelines were
laid for the exercise of the discriminatory power. In October 1989,
when the matters came up for hearing, Dominic and others amended
their petitions and challenged the new
Clause (vii) as being violative of Articles 14, 19 and 21 of the Constitution. They also claimed that as the
orders of detention were er facie illegal under the Act of 1989, they
should be awarded compensation for
wrongfiil confinement and the mental
pain, loss and suffering that ·tbey had
undergone. It woke up the Goa
government to its irresponsible action
and release orders were passed imme-
As the Njtion stancis today, an
unconstitutional law is oO the statute
book allowing the government to isolate HIV positive persons. What has
the government achieved? AH that one
can fairly say, is that ihey have succeeded in miseducaring the public
about HIV and AIDS. As a senior
government law officer who preferred
to remain anonymous told me, "We
had to do something about the
demands Rom the public. What about
their feelings?" It is obvious that their
feelings are based on lack of information and to put it bluntly, prejudice. If
government bases its strqteg on the
demands of a misinformed public, the
results are going to be oounterproductive. HIV will spread and not stop.
This is one disease where the government can't afford to play the political
game at all. 'The sooner it realise this,
the better.
'
court
to be isolated".
V
f
Ultimately,
though
apprehensive,
Dominic decided
to
approach
the
court. Says Dominic, "I was not at all
confident, because the way things were
happening
I
looked
at
everything
negatively. I had some hopes deep inside
that
something
hitfiil
might
come out of my encounter with the
court. I was hoping against hope and
in any case I had nothing to lase". In
June
1989,
Dominic
and
later
Benedict and
Ashok filed petitions
challenging
Clause
(vii)
of
Section
53(1) of the Goa Public Health Act
'if
i"trocjuced by the 1987 amending Act,
·=j,
<
as well
as
their detention
orders
before the Goa Bench of the Bombay
High Court. Surprisingjy, the court did
not
release
them.
However,
in
,
.'
Dominic's case he was allowed to
leave the TB Sanatorium at Mapusa
and was confined at his home, as his
,
mother was a nurse. The High COurt
assumed that the contention of the
'
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The AIDS Prevention Bill, 1989:
Protection or Prosecution?
%-
S,ddhartha Gautam makes a devastating critique of the proposed AIDS_Bil/ pending in
parliameng eu)osing its fallaciOus assumptions, as well· as its potential /br- driving AIDS
I
r
unde/ground.
!
¶
: .ac
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The AIDS Prevention Bill, 1989,
secretly introduced in the Rajya
Sabha on 18 August, is a foolish,
bysterical response to a major public
health challenge. It gives the government and health auihorities sweeping
invasive powers to inMnge on the
liberty of private citizens, with no rational relation either to the objective
of protecting the infected individual or
to that of checking the spread of the
HIV virus and of AIDS.
The Bill (see page 22) is a classic
example of a medimt problem being
used lo fiirther a puritanical, moralistic, anti-people ageoda, devoid of both
common sense anQ compassion. It
calls for large-scale coercive testing
and contact-tracing, without ojnsent or
confidentiality and legitimises isolation,
quarantine, and incarceration of those
infected, thase suspected to be infected, or at risk of infection. In order
to grasp the far-reaching, repressive
nature of the propased legislation, we
first need to examine certain assumptions behind the "scientific kcts"
about AIDS shared alike W medical
professionals, public health officials,
politicians and media people, which
perpetuate ignorance and confUsion
about the nature of the illness and
the mot effective means of protection
77ie LaWyers October 1989
i,
and
preventiorL
epidemics
For,
there
are
raging simultaneously,
two
both
equally crucial for us to uoderstand —
an epidemic of a
disease,
fear,
AIDS,
hatred
wansmissible lethal
and
and
an
epidemic
prejudice
of
against
·
groups of people already seen as butside
the
parameters
tion",
viz,
moral
of
"the
and
' economic
general
prostitutes,
'
popula-
hom*xuals,
poor professional blood donors, drug-
'
addicts, and women.
,
Extent
Acquired
Immuno
Syndrome
(AIDS)
has
Deficiency
become
a
.
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i
1
COVER STORY
health and human rights crisis of
major proportions around the world.
As of May 1989, over 1,51,000 cases
of AIDS had been reported by 140
countries to the WHO which estimates
that five to te:j million people worldWide may be infected. Currently in the
United States, someone dies from
AIDS every half hour. An estimated
6% of all the people in Africa have
been infected, including nearly a
quarter of the entire populations of
Uganda and Malawi. In India, even
according to the ICMR'S limited findings, 28 people have died from AIDS,
while ]392 others have been found
infected with the HIV virus.
There are two epidemics
raging simltltaneously..s—an
epidemic of a transmissible
lethal diSease, AIDS, and an
epidemic of fear, hatred and
prejudice against groups of
people already seen as outside
the moral and economic
parameters of "the general
population"...
Medical Facts
However, basic medical facts about
AIDS
remain
almost
universally
misunderstood. To begin with, the use
of terms such as the "AIDS virus", or
"the AJDS test", or an "AIDS carrier", or "AIDS infected" is highly
misleading, for it collapses the crucial
distinction between HN' infection and
AIDS.
HIV
(Human
Immuno
Deficieng' Virus), a viral infection of
the blood, attacks and may destroy
[he body's immune system. It is communicable, but not contagious in the
popular sense of being air-borne and
easy to spread, like a cold. AIDS, a
terminal phase of HIV infection, is
not a single disease, but a syndrome
which cannot itself be contracted. It is
the collective name given to a wide
range of g'mptoms caused by opportunistic infections and/or cancers which
follow in the train' of the virus, as a
result of the body's weakened selfdefences. Many of these are not themselves infectious and cannot be readily
communicated to' those with healthy
immune systems. What can be contraaed, however, is HIV.
bisting data simply do not support
claims that all, or most individuals
with HIV antibodies will develop
AIDS. So far, only 20—30% of
people with antitxujks to HIV have
been seen to develop AIDS. One
recent study from the US estimates
that if untreated, 14%· of those infected are likely to develop AIDS in
five years, 34% in seven years, and
42% in nine years. Some people can
carry HIV for several years, and possibly for a lifetime, without developing
any ymptoms, though they can unwit-
8
tingly pass it on. Some scientists have
asserted that HIV can remain biochemically inactive or latent even in
patients dying from AIDS and [hat
HIV cannot possibly cause AIDS
without a significant, though as yet
unresearched co-faaor. Athough there
is undeniably a correlation between
antibodies to HIV and the development of AJDS, the correlation is far
from
perfect, and
it
is only
a
hypothesis that
the relationship is
causal. Thus, much more than a
semantic quibble is at stake in pointing out the nonsensical nature of
terms such as "the AIDS virus" and
"AIDS test". The conAation of HIV
antibody positivity with AIDS equates
infection with death, giving rise to the
mistaken impression that HIV infection is AIDS and projecting hostility
and fear more than accuraiely describing medical reality.
High-Risk Myth
The centre piece of the entire testing and AIDS prevention strateEy of
the Indian CouDcil for Medical Research (ICMR), as also the underlying
public health rationale of the AIDS
Prevention Bill, is the notion of "highrisk groups", an epidemiological concept which has functioned in the
context of AIDS to isolate and condemn people rather than to protect or
treat them. The constant slip from
references to iransmiSsion modes to
talk about traditionally siigmatised social categories, as if the risk of HIV
The Laviyers October 1989
infection were linked io
essential
demographic traits raiher ihan lO
specific behaviours and practices, gives
a thoroughly distorted picture of the
unfolding pattern of the disease. Contrary to popular,fantasy, there are no
bio-medical or
physiological factors
which make some groups--ratli"er than
others more prone to this infection.
The HIV virus cares little whether it
enters the body of a prostitute or a
businessman or a baemophiliac child
or a gay person. Rather, it is passed
on through specific kinds of unprotected
sexual
interactions
and
through other routes like contaminated
blood and blood products and the use
of
unsterilised hypodermic needles,
which put many more people at risk
than the label of "high risk group"
implies. It is clearly what you do (and
what blood banks and blood product
manufacturers
and -" hospitals
do),
rather than who you are, which constitutes [he only meaningful risk factor.
m
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'g
µ
The
hequent
categorisation
of
AIDS
as
"a
disease
of
the
homosexuals in the US", "the scourge
of haemophiliacs in Cuba", or "a payment for prostitution in AMca", implies that anyone who does not belong
to one of these "risk groups" is safe,
and
that
AIDS only hits
defined
groups to
which the
majority of
people do not belong. Following this
logic, a female prostitute who is HIVnegative and who insists that
her
clients use condoms, or a gay man
who does no[ have penetrative sex, is
erroneously labelled as more at risk of
AIDS than a monogamous woman
whose husband might have contraaed
the virus from oontaminated blood;
and a drug addict who does not use
intravenous drugs, or an intravenous
drug user who does not share needles,
is wrongly assumed to be at greater
risk Rom HIV than the non-Mug
7\
»
" IF
user.
It is crucial then, to ialk in terms
of "high-risk activities" rather than of
"high-risk groups".
In
the
United
States,
where
AIDS
is
still
mythologised as a "gay plague". the
changing
demographies
of
the
epidemic are fast revealing ihe folly of
the latter concept. AIDS is" now the
leading cause of dearh there among
women, 24 to 35 years of age. Intravenous drug users, iheir lovers and
children have emerged as the fastest
growing future of the epidemic. A
"-A
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COVER STORY
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large majority of the new AIDS cases
in New York last year, were Black
and Latino women. In India, the cul-
i
I
tural silence uniformty maimained on
the left and on the right about the
range of sexual practices. that occur in
our society, the wide prevalence of
i
homosexuality
and
bisexuality,
of
heterosexual promiscuity, of male prostituUon, creates the impression that we
¶
:
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l
a:e somehow morally protected against
HIV infection. Unless we abandon the
idea that the "high-risk activities" as-
,
l6
i
!
sociated with HIV transmission take
place on the periphery of a mythically
constructed
"general
population",
rather than among and between normal, reasonable people who are likely
to
take
precautions
and
behave
P
!
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0
responsibly if fiimished with relevant,
comprehensible, accurate information,
we will fail
to avert the genuine
potential of devastation that the AIDS
epidemic presents.
J
i
I
There is an intimate connection between the fear of AIDS and the fear
of group most affected by AIDS. The
fact that AIDS is a fatal, infectious illness for which there is now no cure
and the fact that it was first documented in already stigmatised groups
like urban gay men, poor black' intravenous drug users and Haitians in
the US, ensured that the social, medical and legislative responses to the disease would be framed as a series of
i
mjralistic assignments of blame.
j
?,
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Rightist Response in US
~
ready
from it.the
The initiative
religious right
quickly died
seized
and
declared that AIDS was God's judgerrient of a society that did not live by
his rules. Proposals were floated to
tattoo homosexuals and intravenous
¶T
I
i
,2
In the United States, President
Reagan thought it fit to make his first
oWcial statement about AIDS a whole
seven years after the epidemic had
broken put and 25,000 people bad al-
drug users and to rouod them up in
concentration mmF. In the state of
Florida, three HIV-positive children of
T
.Gx
a haemophiliac family were barred
from
attending
class
by
school
authorities
and
their
house
was
burned by respectable, middle class
neighbours. Again in Rorida, a convicted HIV positive prostitute's sentence included wearing an electronic
«
collar that alerted the police whenever
sbe
left
her
house.
:n
another
southern state, a judge "efijseci to
allow a litigant with AU
to enter
the courtrDom, even in a
.ass cage,
insisting that the judgement on his
AIDS discrimination case be read to
him over the telephone.
Response in India
That
a
"moralistic,
medicalised
metaphor of contagion" already hames
the discussion about AIDS in India, is
best
demonstrated
t?y
the
rabid
pronouncements of Dr. A~ S. Paintal,
director general of the ICMR which is
spearheading the response to the disease here. The director general's deep .
psychic
anxieties
centre
primarily
around women who, according to him,
are "the lousy lot", who have "AIDS
being poured into them.... because
tbey did not stop cohabiting with foreigners two years ago". Female prostitutes in particular are targeted as
embodiments of infectiousness in this
kind of fantasy, less for their actual
risks and rates of infection than as a
scapegoating device. The undifferentiated category of "prostitutes" is represented everywhere in the media as a
dark
threat,
covertly
going
about
spreading AIDS in India. This is done
in ignorance of the documented reality
that a woman stands a far greater risk
of contracting HIV infection Rom a
man than the other way around. Yet
the ICMR tested prostitutes in Delhi
with the help of the police until
recently, as if they were "reservoirs"
of disease to be thought of only as
"carriers" or "vectors", not as themselves at risk and in urgent need of information and education to protect
ihemselves. The entire stratey of
screening groups predetermined to be
at risk, based on the mispercepUon
that AIDS affects the sexually promiscuous, can only lead
to distorted
epidemiolog and bad public polig'.
Central Bill Misconceived
Given
the
complex
issues
and
problems discussed above, the AIDS
Prevention Bill (s"e page 22) clearly
reflects and endorses the victim — a
blaming and moratising type of public
polig' strateEy which has never proved
to be successful. Chapters II and III
of the Bill give designated health
authorities invasive policing powerS
without even a semblance of reciprocal
The LaWyers October 1989
accountability. Under Section 4, every
registered medical practitioner is required W law to inform the local
health authority of the existence
anywhere of any person who is HIV
positive or has AIDS or is a drug addicL As all drug addicts don't use
needles
(mtiny
drugs
are taken
through the oral or nasal route) and
since all intravenous drug users don't
share needles, why should they be
clubbed together and harassed?
Section
5
empowers
beakh
authorities to forcibly question, test
and isolate an HIV infected person in
a hospital "or other place.... where the
authority considers it necessary so to
do in the interests of such person and
also to prevent the spread of HIV infection". The person's consent is not
required for any of this, nor is there
any obligation on the health authority
to provide information about the. nature or consequences of the test. Further,
there
is no
confidentiality
provision protecting an individual's
HIV status Rom public disclosure. It
is difficult to imagine a context more
damaging to one's identity and reputation than that of AIDS related medical information. The recent case of
Swapan Ganguly, a professional bl@
donor in Calcutta who was erroneously suspected to be carrying the virus
and was kept in solitary confinement
in prison even after repeatedly testing
negative, shows the great emotional
distress and reputation damage that
can follow infringements of informational privacy. The rationale put forward for this confinement was that
"the law and order situation" in
Gangufy's neighbourhood might be affected by his release. In the meantime, as the poor man's name and
picture had already been printed in
the newspapers, enthusiastic neighbourhood boys threatened his parents, wife
and son to leave the area within seven
days, before anybody else was contaminated. The right to collect and
use such sensitive data as a person's
HIV status for public purposes, should
therefore be accompanied by a concomitant statutory or regulatory duty
to
avoid
unwarranted
disclosures.
Criminal penalties should be instituted
for any public disclosure.
Driving AIDS Underground
In addiiion to flagrantly violating
9
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COVER STORY
.>
medical ethics, the
atxjve provision
legitimises isolation, quarantine and incarceration, measures that can
only
boomerang as a public health strateEy.
The rationale behind quarantine is
that it is pcxssibie to divide the world
physically between those with HIV and
those without it as the best way to
halt the spread of infection. Cuba has
gone fiirthest with this idea by instituting repeated, mass screening of its entire
adult
population
and
isolating
some two hundred people found to be
HIV positive, most of them still healthy
and
aymptomatic,
in
a
sanatorium. In
India, we
obviousjy
cannot go the Cuba way. Given the
great social stigma attached to AIDS,
punitive measures like the threat to
isolare or quarantine, and the absence
of confidentiality around testing, can
only drive the
disease underground,
further distorting our understanding of
its pattern in our society and defeating
any attempts to interrupt its spread.
In the state of Illinois in the United
States, a requirement that all thase
applying for marriage certificates get
tested for HIV led to a 40% fall in
the number of marriage applients.
Civil Rights Violations
Permitted
Section 6 allows for the forcible
testing of those suspected to be of
"greater risk" leaviog the definition of
the
term
largely
to
the
health
authorities' discretion, except for
a
passing reference in the 'Statement of
objects and Reasons' of the Bill, to
the 333 lakh persons tested so far,
"mainly belonging to 'high risk groups'
like
sexually promiscuous men and
women".
Section
7
gives
health
authorities sweeping powers to "take
such
other
precautionary steps
to
prevent the spread of HIV infection
as it may deem necessary",
might sanction anything Rom
which
house
arrest
to
incarceration,
to
printing
someone's name and photograph in
the
newspaper,
to
sterilisation
or
castration (a
right wing group in
France has recently suggested this last
measure as a way to curb the excessive sexual appetites of tbase "prone"
to infection). Section 9 provides for
coercive contact-tracing, again without
any
assurance of
confidentiality,
a
measure which can only subject an
HN-positive person or a person ill
with AIDS and his/her associates to
10
endless harassment.
The potential for mischief is uolimited when one notices tbat the
designated health authorities can act
to do all of the above on the basis of
information fiimished by medical practitioners or "Rom any other source"
(Section 5). A spouse, a landlord, a
politician, an employer, a comperitor,
anybody at aU can get a private citizen
into trouble by merely reporting that
S/he might be carrying the virus. In
addition, Section 11 exempts health
authorities from any suit, prosecution
or other legal proceeding "for anything
which is in good faith done or intended to be done under this Act".
An individual is thus left with no
recourse to justice if the provisions of
the Bill are misused against him/her.
Though tbe Bill purports to be for
the rehabilitation of people with
AIDS, it talks at length only about
medical personnel, their salaries and
the testing kcilities and equipment
needed, without any guarantee whatsoever of the quahty of care the person with HIV infection or with AIDS,
whase liberty is impinged upon in
such drastic ways, will receive. The
glaring absence of any anti-discrimination measures to protect the infected
person Rom AIDS-phobic attacks in
settings like the workplace, university,
housing, prisons and hospitals, dearly
shows that the Bill is least meant to
protect people with AIDS.
Government Abdicates Duty
The government has failed miserably in the one area where it could have
mot effectively oontrolled the transmission of the HIV virus — through
contaminated
blood
and
bloodproducts and the use of unsterilised
hypodermic needles. The Bill places
the entire burden on the private
citizen, threatening to prasecute blood
donors if they know that they are infected and making it their responsibility to get tested every time they
give blood [Sections 10(1) and 10(2)].
Haspitals, blood banks and large pharmaceutical companies manufacturing
blood products are far better equipped
to meet prescribed screening norms
and rules and should be the ones held
criminally responsible for failure to do
so, rather than the poor professional
qonor who might be ignorant or illiterate. From the way in which these
The Laqers October 1989
institutions are completejy let off the
hook by the proposed legislation, it
would appear that whar is at stake is
not the survival of people with AIDS
and those who might become infected,
but rather the survival and protection
of testing centres,, high-salaried health
bureaucrats, muhinationai companies
manufacturing blood products, blood
banks and government hospitals.
ti4
Conclusion
This Bill represents a massive abdication of the government's responsibility to protect its citizens from the
HIV
virus and AIDS. Effective
preventive education and voluntary
testing, with informed consent and
confidentiality or anonymity alone can
halt the spread of HIV infection. The
World
Health
Organisation
itself
recommends edumtion, not mandatory
testing, as the best defence against the
virus. Its guidelines explicitly state that
there is no public health rationale to
justify isolation, quarantine or discrimination based on a person's HIV
status or sexual bebaviour. There° is
no reason to assume that, if properly
informed, a person infected with HIV
will go about intentionally infecting
other people. In most cases, HIV infection is unwittingly passed on Py a
healthy persoo who is not even aware
that s/he is carrying the virus. In fact,
it is in the best interest of the HIVinfected person to avoid fiirther exposure to the virus and other
infections as these would threaten
his/her immune system and may accelerate the development of AIDS.
Given the socially and politically
charged meanings that AIDS has been
invested
with,
and
given
the
problematic assumptions behind even
the most basic categories formulated
to understand arid respond to the disease, the AIDS Prevention Bill can
only succeed in unleashing a moralistic
witch-hunt and in isolating, criminalising and repressing
already
disfranchised and marginalised groups in
our society. The suppsed dichotomy
between public health and civil rights
is a spurious one; an effective public
health poliql to combat AIDS in India
will depend on civil rights.
Siddhanha Gauuun is a Law student at
DeLhi Uniyer©. Siddhanha worked with
AIDS goups in the US last jut.
i
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REPORT
"
44
;a..
The Dereservation Controversy
4'
The dereservation of 285 plots by the government of Maharashtra, without abiding by the
provisions of the Maharashtra Regional & Town Planning Acg was challenged in the Bombqy
High Court recentj)'. A report.
Till only a few weeks ago, a scandal
of apparently gigantic proportions
·
rocked Maharashtra, involving some of
its top politicians. Known as the
dereservation scandal, it related to the
deletion of a large number of plots
-,
+
earmarked for public purposes Rom
the draft development plan of Bom-
~
bay The significance of the state
government's action lay in the unseemly hurry with which the plots
were deleted. What was worse was
that ihe procedure for making "substantial modifications" under Section
31 of the Maharashtra Regiooal Town
Planning Act (MRTP), was not complied with. Given the enormous profits
involved in developing land in the city
and with an election just round the
corner, the public could not be faulted
for presuming that the pMicians had
gone soft on the builders and had
parceLled out large chunks of land to
them.
j
!
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· JMF
f
' .fy
The fiirore over the plots is just
part of a trend Indians have come to
witness
in
the recent
past as
epitomised W the HWD submarine
deal controversy and the Bofors gun
scandal. Political owruption is not new
to our country, but a shocking pattern
has bewme discernible of late. Money
is no longer seen as a necesmy input
for political mobilisation, but as a substitute for it. Large sums at one's
command are now seeQ as the safest
route to power. In place of the
idealism of old which compelled
politicians to go to the people, we
now hear of Swiss bank accounts
where our politicians have allegedly
stashed away hundreds of crores. If
we have concurrently seen a decline of
all values in social life and the eclipse
of our institutions, it is not merejy a
coincidence. Power is being increasingly used not for the benefit of the
masses, but to fiUfill the dictates of
the business elite. If our politicians do
tlOt curb their dependence on large
surns of money for their activities, it is
possible to visualise a scenario in
which they will become .captives of indusuialists, thus ringing the death-knell
of Indian democracy. It is against this
backdrop that the dereservation scandal has to be viewed.
Some people put the figure of
deleted plots at 285, while others said
it was as high as 577. The government itself admitted in the assembly,
that while some plots had been
dereserved since 1983, a bulk of them
were taken out of the draft plan
during the tenure of the present ministry. The authorities did not feel the
need to be squeamish about their action. Instead it was contended that the
government had the power to delete
plots when it thought fit. .Since the
present dereservations did not amount
to a substantial modification, it was
not necessary to publish the changes
or consider objections raised by the
people. In short, the government
claimed [hat there was no need to
take the public into confidence.
immmmimm
Can a judicial
interpretation of an issue .
of public importance be so
much at variance with
people's perception? There
is little doubt that the
people expected the court to
probe deeper into the
matter, particularly since
the opposition seemed to
have also benejitted fom
the alleged scandal and
had been rather inactive in
its watchdog role.
Grounds of Petition
The Bombay Environmenral Action
Group and the Save Bombay Committee filed writ petitions in the Bombay
High Court challenging the government. The Petitioners assailed the
direction
given
to
the
Bombay
Municipal Orµxation t?y the state
government asking it to decord sanction to the plans of owners who had
could not be given the right to pick
and choose the plots to be heed fiom
dereservations. They urged the court
to stop the authorities from making illegal deletions and also sought a list
of the plots and names and addresses
of the owners.
succeeded in gettiQg their plots out of
the draft plan. The petitions alleged
that the direction, pending the finalisation
of
the
plan,
was
illegal,
and
without and in excess of jurisdiction
under the MRTP Act, as also Article
14 of the Constitution.
contended
that
It was
large-scale
also
dereserva-
tions would set at naught the very object
of
planned
development.
The
Petitioners also argued that the release
of the plots would hurt the well being
of millions and that the government
The LaWyers October 1989
In a remarkable judgement on a
matter of such public importance, Mr.
Justice S. M. Daud rejected both [he
petitions after hearing the matter for
close to eight days — more like a
final hearing. Dealing with the charge
of factual mala jides levelled by the
Petitioners, the judge went over the
eight examples provided in the petitions and came to the conclusion that
there was nothing dishonest or unreasonable about them. He rejected
II
REPORT
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Section 31 of the Maharashtra Regional and Town Planning Act 1966
g
Sanction to DraR Development Plan
(1) Subject to the provisions of this section, and not
later than one year Rom the date of receipt of such plan
from the Planning Authority, or as the case may be,
Rom the said Officer, the State Government may, after
ccmsulting the Director of Town Planning by notification
irj the Official Gazette sanction the drafi Development
pAn submitted to it for the whole area, or separately for
any part thereof, either without modification, or subject
to such modifications as it may consider proper, or return
the draft Development plan to the Planning Authority or
as the case may be, the said Officer for modifying the
plan as it may direct, or refiise to accord sanction and
direct the Planning Authority or the said Officer to
prepare a fresh Development plan:
Provided that, the State Governmeot may, if it think
fit, whether the said period bas expired or not, extend
&om time to time, by a notification in the Official
Gazette, the period for sanctioning the draft Development
plan or refiising to accord sanction thereto, W such fiirther period as may be specified in the notification:
.
Provided
fiirther
that, where
the
modifications
proposed to be made by the State Government are of a
sUbstantial nature, the State Government " shalt publish a
notice in the Official Gazette and also in local
newspapers inviting objections and suggestions Hom any
person in respect of the proposed modifications within a
period of sixty days from the date of such notice.
the contention that the very number
of plots deleted created a legitimate
sense of disquiet. which compelled a
deeper look. On the demand for a list
of plots and oumers, Mr. Justice Daud
said the court could not give a directive for the mere asking.
"
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(2) The State Government may appoint an offcer of
rank not below that of a Class I Officer and direct him
to hear any such person in respect of such objections and
suggestions and submit his report thereon to the State
Government. .
(3) The State Government shall before according sanction to the drah Development plan take into consideration such objections and suggestions and the report of
the officer.
(4) The State Government shall fix in the notification
under sub-section (1) a date Dot eMier than one month
Fom its publication on which the final Development plan
shall come into operation.
-*ii
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(5) If a Development plan ocmtains any proposal for
the designation of any land for a pLlrNe speciGed in
clauses (b) and (c) of section 22, and if such land does
not vest in the Planning Authority, the State Government
shall not include that in the Development plan, mless it
is satisfied that the Planning Authority will be able to
acquire such land Py private agreement or compulsory acquisition not later than ten years Fom the date on which
the Development plan comes into operation.
(6) A Development plan which has come into operation shall be called the "final Development plan" and
shall, subject to the provisions of this Act, be binding on
the Planning Authority.
tor, was signiticant. He felt that there
was nothing in Section 31 to warrant
the inference that development at
variance with the designated user
necessarily stood hozen until objections had been invited by notice, considered and overruled in the form of
a final development plan.
be pushed into a preconceived straitjacket of equality or reasonableness",
the order said. Mr. Justice Daud
rounded off his 26 page order Py
going over the contentions of the
Petitioners and rejecting them. The
ecological group have made it known
that they would go in appeal.
He said the case pleMed by the
Petitioners hardly showed that changes
of a substantial nature had been
made. On the lack of any guidelines
or policy formulated W the government, the judge held that the Act itself provided stMcient guidelines as to
the Factors that had to be taken into
consideration for regional and town
planning. He said there euld be no
rigid or inflexible principles regarding
deletion of land Rom. its designated
user. The criteria would change Rom
place to place and time to time, he
said. "Every exercise of power cannot
Questions Unanswered
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Section 31 Not Applicable
The judge held that the MRTP
Act gave the final word on the plan
to the gavemment. Dealing with the
charge of legal maLa /ides, his order
said objections and suggestions under
Section 31 bad to be sought only
when the modificaUons were of a substantial nature. He turned down the
argument that Section . 31 applied,
even when one plot was dereserved,
leave along hundreds of them. The
judge held that this would be true
only when an individual' plot, by virtue
. of its size, location or some other fac12
Can a judicial interpretation of an
issue of public importance be so much
at variance with people's perception?
There is little doubt that the people
expected the court to probe deeper
into the matter, particularly since the
opposition
seemed
to
have
also
benefitted Rom the
alleged scandal
and
had been rather inactive in its
watchdog role. What is relevant is to
ask whether in a democratic polity
whose Supreme Court has held that
all state actions are justiciable and
Contd on page 31
The LaWyers October 1989
Br:
3
LAW AND PRACTICE
e' Divorce by Mutual Consent
e
Section 13-B of the Hindu Maniage Act, 1955 whkh provides for divorce by mutual consent,,
has been under the spotlight for some time now. The controverSy regarding withdrawal 0/
consent has been a major bone of contention in various cases, with High Courts adOpting
ditTereilt and dissenting views on the question of withdrawal of consent. Shyam Mehta comments.
I
B efore examining the various judgements on Section
13-B, it is important to clarify what the Section itself
contemplates. Sub-secUon (1) of Section 13-B of the Hindu
Marriage Act, 1955, lays down the three oonditions which
are the necessary pre-requisites for filing a petition for
divorce by mutual consent. They are:
:
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Ay
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i. the parties should have lived separately for a minimum period of Qne yeaq
2. they should be unable to live together;
3. they should have mutual)y agreed that the marriage
should be dissolved.
If these three conditions are fulfilled, the parties may
present a petition for divorce under Section 13-B.
"Sub-section (2) of Section 13-B provides that upon motion of both the parties, between six and eighteen months
t" "
after the presentation of the petition, the court shall, OIl
hearing the parties and aRer making such enquiries as it
,i
thinks
fit, and after
being
satisfied
that the
marriage
been solemnised
and
that the
averments
in the
petitionhas
are
true, pass a decree for divorce. This Sub-section merely
provides the procedure to be followed by the court for
granting the decree for divorce.
.
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Can Consent be Withdrawn?
The question that bas cxme up for adjudication in the
various High Courts of India is whether one of the parties
to a joint petition for divorce by mutual consent can
withdraw such a petition or such consent unilaterally. Let
3
us examine the views expressed W these courts.
¶6
The Bombay High Court in its decision in JWashree v/s.
Ramesh [AIR 1984 Bom 302], has supported the view that
once a joint petition for divorce by mutual consent has
been filed, one spouse cannot withdraw the consent to the
petition. The kcts of the case were that both parties filed
a joint petition in the district court for divorce W mutual
consent under the provisions of "Section 13-B of the Hindu
Marriage Act. The petition was kept pending for a period
of six and a half months after which the husband made an
application to the court stating therein that he was
withdrawing his consent which he had given 'when he was
in a vacillating and indecisive mood and that he was no
longer willing to give a divorce to his wife. The learned
assistant judge held that either party can withdraw the petition and tbe original consent and on these grounds, dis-'
missed the joint petition for divorce.
Subsequently, the wife appealcd to the High Court
against the dismissal of the petition under Section 13-B. It
was the Appellant's contention that since Section 21 of the
Hindu Marriage Act Provides that all proceedings under
the Act shall be regilated ty the Code of Civil Procedure,
1908 and neither the Act nor the High Court Rules make
any provision as to how a proceeding under the Hindu
Marriage Act can be withdrawn, tbe provisions of Order 23
Rule 1 of the Civil Procedure Code would apply. Sub-rule
(5) of this Rule states: "Nothing in this Rule shall be
deemed to authorise the oourt to permit one of several
PlaintifiS to abandon a suit or part of a claim under subrule (1) or to withdraw, under sub-rule (3), any suit or
pan of a claim, without the consent of the other Plaintiffs".
The learned sin&le judge, B. C. Gadgil, has held (at
page 304) thtit: "it would thus be ciuir that in any case
,
iE
These Grey Pages are a regular feature of the magazine. At the end of the year they
'will be compiled and indexed allowing the reader to use them as a ready reference.
r
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'In order to cater to the readers needs, we will be carrying articles in these Grey Pages
,on topics specially suggested by the Tea&rs. Would you like any particular topic of law
lo be discussed in the Grey Pages?
'
.IT you have any suggestions, send them to us. We will make sure your needs are served
fµr
^
"<3
~7
,and
.
the topics
".
you
suggest are covered.
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The Lauyers October 1989
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LAW AND PRACTICE
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'one of the co-plaintifEs would not be able to abandon the
.
-
suit more particularly when the other co-plaintiW has' not
consented to such abandonment ...." and has further held
(at page 30S) that: "it will not be possible for any party to
voluntarily 'agree to have a divorce by mutual consent or
to revoke or wiMraw that consent at a later stage. Such
'..
permission would nullifj' the veiy purpose of a joint application...".
It was also the Appellant's contention that Section 13-B
contemplated a joint application by both the parties and
the withdrawal of this type of an application could be
made jointly by both and not by either party. The whole
scheme of Section 13-B would be frustrated if it were held
that after having made a joint application, any party could
withdraw that application and that too without the consent
of the other party.
Once again, the learned single judge upheld the contention, stating (at page 306) that "'when a joint petition for
divorce by mutual consent is filed, fulfilling all the requirements as laid down in the Section, it was Dot open a[ a
later stage for either party to say that he or she did not
want the divorce. Once these requiremcnts are proved, it
would be necessary for the court to grant a decree' for
divorce. The fact that at a later stage either party does not
want a divorce would be irrelevant".
This decision of the Bombay High Court has been followed in Nitin. iqs. Padmini jI 1985 DMC 347 Bom],
Meena Lhuta vIs. Anirudh Duua [II 1984 DMC 388 M.PJ,
Chander Kbnta v/s. l/ans Kiunar and Anr. [AIR 1989 Delhi
73 (March issue)], among others.
Judgements Against Unilateral withdrawal
l
l
There have also been various dissenting judgements, the
notable ones being, Mohanan v/S. jeejabai [AIR 1988 Ker
28] and Harcharan Kaur V/S. Nachha'ttar Singh [AIR 1988
P. & EL 27].
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In the former, the facts of the case are that the hus-
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band and wife filed a petition for divorce by- mutual consent under Section 13-B of the Hindu Marriage Ace. Four
months later, the Respondent wife filed an affidavit stating
that she had not consented to the divorce and had not
read the petition before signing it and therefore sh¢ should
be allowed to withdraw thc petition. On these grounds the
additional subordinate judge dismissed the petirion. The
husband had subsequently come in appeal to the High
Court.
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Relying on the decision in Jayashree vIs. Ralnes/l the
Appellant contended that Order 23 Rule l of the Civil
Procedure Code is applimble and one of the parties to the
petition for divorce by mutual consent cannot unilaterally
withdraw
the
consent
or the petition.
thisthat:
plea,
the learned
judge,
Sivaraman
Nair saidDismissing
(at page 30),
"Satisfaction of the court, after hearing the parties and
after cmducting an enquity, necessarily contemplates an opportunity for either of the spouses to withdraw the consent
or to indicate from other circumstances that an order of
divorce, in terms of the application, may not be desjrable.
-
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The situation arising under Order 23 Rule 1 of the Civil
Procedure Code cannot be considered as similar to the
14
situation arising under Section 13-B(2) of the Hindu Marriage Act".
ii
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Recently, a single judge of the Delhi High Court, Mrs.
Justice Sunanda Bhandare, in the case of Snit. Chander
Rnta V/S. Hans Kiunar and Ann [AIR 1989 Delhi 73
(March issue)], has taken an interesting and correct view,
that a petition presented under Section 13-B (I) of the
Hindu Marriage Act cannot be withdrawn W one party
unilaterally. The learned judge has further held that if the
court is satisfied that the consent was not free consent and
it was the result of force, fraud or undue influence, then it
is a different matter, because in such a case, the court is
empowered specifically to refuse to grant the decree. The
court has further observed, that if one party was allowed
to wiEhdraw the consent even when other grounds, namely
that the parties continue to live separately and have not
been able to live together, still subsist and reconciliation is
not possible, then it will fhistrate the very purpose of the
Act.
Relying upon Section 23(1)(bb) of the Act, the learned
judge further observed that under this provision, the court
is empowered to grant the decree even in an undefended
case, if the court was satisfied that the averments in the
petition were true and the consent for the mutual divorce
had not been obtained by force, fraud Or undue influence.
Hence, the court held that if unilateral withdrawal of oonsent was ·permitted, the oourt would not be able to pass a
decree in an undefended case under Section 23 (l)(bb).
The court also relied upon the decision of the Bombay
High Court in Jqyashree vIs. Ramesh and granted divorce.
Whilst doing so, the learned judge did not follow the
decisions in Mohanan vIs. jeejabhai and Harcharan kbur
j'/S. Machatiar Singh.
The Delhi High Court has taken a view, which, read
with the view expressed by the Bombay High Court, should
seal the fate of all cases of unilateral withdrawal of consent
by one party after agreeing to a divorce by mutual consent.
Conclusion
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Despite the views of the Bombay and Delhi High
Courts, there are a few points which merit mention:
V
P
,
a) Section 13-B (1) of the Hindu Marriage Act brinp
into exisience a statutory contract between the parties who
have agreed to dissolve their marriage by mutual agreement. Please notice that the language used in the said Section is "agreement" and not "consent".
b) Once a petition under Section 13-B (1) is filed,
either party is estopped from resiling from the original
statutory agreement on the principle of promissory estoppel.
This doctrine" of prornissocy estoppel has been formulated
with .characteristic lucidity in Halsbury's Laws of England
[3rd Ed., Vol. 15, p. 175, para 344], and has been applied
by Mr· ljustice Vimadalal in Air Conx)ration EmpWees'
?nion v,s. G. b. Bjlirade [1969 (71) Bonn LR. 707] in the
.ollowing terms: "when one party has,:by his word or conduct, made to thc other a promise or assurance which was
intended to affect the legal relations between them and to
be acted on accordingly, then, once the other party has
The Lcmyers October 1989 '
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LAW AND PRACTICE
Z.
taken him at his word and acted on it, the one who gave
'
the promise or assurance cannot aRerwMds be allowed to
revert to their previous legal relations as if no such
promise or assurance had been made...". The learned Justice Vimtjdalal has further said (at page 712), that "the
representation on which promissory estoppel is founded is
not a representation with regard to an existing fact, but it
is in regard to something promised to be done in the fiiture...".
C) The entire period of eighteen months described in
Sub-section (2) of Section 13-B is for the purpose of giving
an opportunity to the parties to reconcile if possible and
not to withdraw the consent and frustrate the provisions of
law.
d) Though the words used in Sub-section (2) are "on
motion of both the parties", it does not mean that the
court is powerless, just becduse one party refuses to join in
the motion. The court's power under Sub-section (2) is to
C
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enquire into the averments contained in the petition and
hence, one party withdrawing his or her consent, does not
mean thai the oourt becomes jUnctus oµio or that the
court is deprived of its power to conduct sUch an enquiiy.
ej Sub-section (2) is a procedural Section and provides
for the court's power to gratw a decree for dissolution of
marriage after carrying out the requisite enquiry. Prooedural law is the handmaid of justice and should be oonstrued accordingly.
f) Eveo OIl the principal of interpretation of -statutes, it
is the duty of the court to give effect to legislation and
not to nullify it in case of absuQity or oonflict in the
provisions of law. This is clear from the dictum: "Suppress
the mischief and advance the remedy".
Shyam Mehta b a /ina/ year student at the ILS kw coueN Uniwsiey of Poona
m"
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Definition of Death: The Legal Aspect
With medical and scientijic technologies revolutionising health care and life saving techniques,
with the invention and use of machines like the heart-lung machine, the technical de/inition
of 'death' itsejf has come into question. The increasing transplant of /iuihan oigans Nn the
dead, has made the de/inition of 'death' atremejy importanL P. M: Bakshi looks into this
important aspect of medicine from the legal angle, ako documenting how dlNrent countHes
have approached this problem.
leading pathologist belonging to the medical faculty of
?
-zy
'
Athe Edinburgh University tells us a StOlj' about one of
his own professors of surgery who, while performing an
operation, observed that the patient was no longer breathing. He asked the anaesthetist, "The patient seems to be
dead at my end. How is tbe position at your end?".
siderable research and of a number of studies in the last
few years. Sind the definition is now linked with organ
transplantation a'nd questions of resuscitation, the classical
definition of deajh, namely, the cessation of circulaiion and
respiration, is no longer valid under these conditions.
Sources of Various Recommendations
Significance of the Moment
C\
This episode, humorous though it may be, reminds us
.
of the modem controversy about the precise moment of
death. This controversy has assumed practical importance
after the increasing resort to transplantation of organs.
~
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While
a few
organs can be
transplanted
Romwho
live are
donors,
a
few
can
be transplanted
only
from persons
dead.
It therefore beames necessary to determine the moment
of "death". In such cases, the problem of the exact definition and criteria of death is of fundamental importance.
The diagnasis of death is also important, when the decision
has to be taken to turn ofT the heart-lung machine, in case
of bopelessly unconscious patients who have been maintained under these conditioos for some time.
·
" yht
-=:"
The definition of death, which upto a few years ago,
presented no major problems, has been the subject of eon.
In regard tO the definition of death, two types of
recommendations may dow be said to be operative. First,
there are those that address themselves mainly to the
definition in th¢ context of transplantation. Secondly, there
are those that ¢nvisage a wider field for the application of
the definition. "
The sources lfrom which various suggested definitions of
death emandte,' also present a fair variety. There are, in
the first place, criteria suggested W national laws. France, .
Hungay and Italy are amongst countries which have
adopted such definitions by legislation. Ih the United
States, ttje state of Kansas was the first state to adopt a
definition of death by statute.
Secondly, there are recommendations made by intematioMl agencies, or at international conferences. Of' these,
The LaWyers October 1989
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15
LAVV AND PRACTICE
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the most well-known, are the statements of the Council of
International Organisation of Mediml Science (1968) (in
relation to heart transplantation) and the so-called Declaration of Sydney (1968). Then, there is the text adopted by
the Transplantation Society (1970), containing rules of conduct ooncerning transplantation. Incidentally, this text does
not give a definition of death as sUch, but specifies only
that "the definition of death of an individual is that of
brain death "rather than cardiac death". It fUrther says that
death should be declared by at least two physicians whose
primary responsibility is care of the potential donor and
who are independent of the transplantation team.
Z"hirdly, there are recommendations made by academic
and professional bodies. As examples of these, one may
refe'r to the recommendation of the ad hoc committee of
the Harvard Medical School (1968), the German Society of
Surge'y (1969) and the Swiss Academy of Medical Sciences
(1%9).
The Kahsas Definition
The two alternative diagnostic criteria of death, given in
the Swiss directives, are incorporated (though in more
elaborate terms) in the Kansas definition, drafted by L. F.
Taylor. The first alternative test adopted in Kansas (cardiac
respiratory cessation) reads as under:"A person will be considered medically and legally dead
if, in the opinion of a physician, based on ordinary standards of medical practice, there is the absence of spontaneous respiratory and carQjac fUnction and because of the
disem or condition which caused, directly or indirectly
these fUnctions to cease, or because of the passage of time
since these fUnctions ceased, attempts at resuscitation are
considered hopeless; and in this event death will have occurred at the time these functions ceased"
"
The second alternative criterion of death m the Kansas
definition is related to "absence of spontanecus brain fiinction". Like the first alternative, it also requires the opinion
of a physician, based on ordinary standards of mediml
practice and makes provision regarding attempts at resuscitation.
It is particularly provided in tbe Kansas statute that
"death is to be pronounced before artificial means of supporting respiratory and circulatory function are terminated
and before any vital organ is removed for transplantation".
Some Precedents: The Swiss Formulation
The Swiss Academy definition can be considered in
detail. The essential provisions of the directions for the
Definition and diagnosis of death of the Swiss Academy of
Medical Sciences, prescribe that a person must be regarded
as dead if one or both of the following conditions are nilfilled:
The Hungarian Law
R
The Hungarian law relating to the criteria for ascertaining that death has occurred, was passed for implementation
of the law on health in respect tg organ and tissue
removal. The criteria given are:,'
a) deep coma;
b) ocmplete absence of all reflexes;
c) both pupils fUily dilated and unreactive to light;
d) verification, l?y means of an examination repeated
several .times during a ten minute period which must be
counted from the time when the artificial maintenance of
respiration commenced;
e) an absolutely linear electro-encephalographic tracing
without sustained reaction to intermittent stimulation induced under conditions eonformihg to the provisions of annexure 3 to the law (no cerebral electrial activity).
The Australian Proposal
An Australian proposal on the subject reads as under:
l·
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"A person has died when there has occurred:
"\
a) ii:eversible cessation of all fUnction of the brain of
the person; or
.
b) irreversible circulation of the bkxxi in tbe body of
the person"
Conclusion
The
precedents cited above show tbat professional
opinion and iegal documents are increasingly favouriDg the
adoption of brain death as an alternative to erdiac death.
Recognition of this alternative is a response to the realities
of modem scientific developments.
The juridical and ethical regimes applicable to a dead
person are based OIl different principles and have different
aims than those relevant to the living persons. Th% seek
to uphold respect for the dead persons and for the feelings
of those by whom he was known and loved. This renders
it desirable that there should be no obscurity in this
regard. The difficulty, however, is that physiologically, death
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is a process. But the law requires ari event, a precise point
in time beyond which a person is regarded as dead. ,
Theoretically, it is possible to mark this point anywhere
along a oontinuum Wom permanent loss of ability to interact with one's surroundings to whole brain death or even
cellular death at the other end. The question is, at what
precise point it should be demarcated.
a) irreversible cardiac arrest, resulting in interruption of
blood circulation in the body, and thus in the brain (cardjo-circulatory death);
"Brain death" is .becoming more and more acceptable,
as stated above. At the same time, it may not be wise to
adopt legislation binding down the action of doctors. The
criteria of death should not therefore be legislated, unless
the absence of legislation has raised concrete difiiculties in
a particular country.
b) complete and irreversible failure of cerebral fUnction
or brain death (cerebral death).
P. M. Babhi is a fonner membeT of the Law Commksion of
India
16
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The Laqers October 1959
i
LAW AND PRACTICE
a- Natural Mother as the Custodian
of her Child
0
V
Poonam Saxena comments on a 1987 judgemeht of the Delhi High Court which upholds the
custodial rights of the natural mother of the child.
Mahinder Narain, j. of the Delhi High Court has held
in Snu. Madhu Bala v/s. Arun Khanna [AIR 1987
(81) Delhi] that the custodial rights of a child vest with the
(
natural mother, even where the father cannot be declared
as' 'unfit' for looking after the child.
i. e,= Case History
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The case started when the father of the child (a son
aged 3 years) filed a peiiiion under Section 25 of the
Guardians and Wards Act, 1890 (GWA) seeking the child's
'
custody on the ground that the child was removed from
his custody by the mother, without his consent. It was further pleaded by him that the mother was not competent to
have the son with her, as she was immoral, adulterous and
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bad remarried. These allegations however, were purely oral
statements not based on documentmy or other evidence.
The guardian judee, chose to base his judgement on these
allegations and ruled adversely against the mother. On appeal, the High Court not only disbelieved all these allegations as being vague and incooclusive, but also reversed the
,
judgement of the guardian jUdge to hold in favour of the
!
mother.
'
The father admitted impliedly before the High Court,
that he himself was not in a position to look after the
child. Working as a field assistant in a security organisation
of the government of India, he was required to perform
duties which necessitated him to move out often, from
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both his office and his home; consequently, he was totally
dependent on his two unmarried sisters and parents, for
jhe upbringing of tbe child. This oonflict on the question of
cust© and the tug-of-war over the child, therefore, was
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not directly between the father and the mother, but between the relations of the father on one hand and the
mother on the other band.
i-
The court in the pment case adopted a iiberal interpretation of the language of Section 2S and disregarded
(and correctly SO) the narrow approach adopted in a number of cases [see Ratan Amol Singh vIs. Snit. 'eel
Kauk air 1961 Punjab 51; Kiunanwami vIs. RajanunaL
AIR 1957 Mad. 563; in LowjQ' PaleL AIR 1944 Cal.
433; Chan&a Kunar v/s. ChhOte Lat AIR 1925 Oudh
282] on the question, as lO whether the person to whom
the court feels custody should be given in the welfare of
the child, should also be appointed its guardian.
e
Conservative Tradition
It may be pointed out, that Section 25 of the GWA
which was originally enacted as a corollaiy to Section 19,
meant to givc effect to the traditional a%lute rights of
the father, or guardian to the custody of thc child: guardianship and custody being inter-locked concepts, at the
time of the Kaming of this Act. The supremacy of paternal
rights had therefore subordinated the paramountcy of welfare of the children. The rights of tbe mother to the custody of the child, in the" presence of the father (as the
natural guardian), therefore, were negligible; so much so
that the ward or the child, if removed fiom the custody of
the father or the natural guardian, could be arrested and
delivered back to him [Sections 25 and 19 of the GWA].
The Hindu Minority and Guardianship Act, 1956
(HMGA) whose provisions are in addition to and do not
subsUtine the GWA [Section 2] entitled the mother to the
custody of the children below the age of five years only
{Section 6]. Even this provision, rmgnising the limited
rights of the mother is not mandatory in application, but
only directoty. htting forward of sufficient grounds by the
father regarding the unfitness of the mother can thus
,
The Lawyers welcomes comments, criticisms and letters from our readers. Letters to the
editor may be addressed to :
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The Lawyers
'818, Stock Exchange Towers,
Dalal Street,
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LAW AND PRACTICE
deprive her even of this limited right. The law is therefore
heavily against the mother.
as he attains puberty. Both the maternal love and maternal
discipline are required for bringing up the child".
Espousing such orthodox and conservative views by the
legislature authorising the Either of complete control and
rights over the children to the exclusion of their mother is
anachronistic and reactionary. A woman who produces a
child, undergoing the entire physical and mental trauma of
child birth is considered Py the legislature to be fit only for
its nursing and incapable of looking after and shaping its
future after the child attains the age of five years. This
preponderous cxjnciusion of the legislature, goes not oMy
against the practical reality and rules of nature, but also
against the welfare of the children — a concept which has
been inculcated and incorporated in the Act [The Hindu
Minority and Guardianship Act, 1956, Section 13] and has
also been accorded judicial recognition [Mohd Yonus v/s.
S/iatnshad Bano, AIR 1985 Alt. 217; Raj Rani vIs. Subhash
Chander, AIR 1983 DLT 240; RoSy Jacob V/S. Jacob, AIR
1973 SC '2090; Laua v/s. Ganga; AIR 1973' Raj. 93] as
being of primary consideration, while deciding the question
of custody and guardianship of the children.
The court' was not in favour of depriving the father of
the guardianship, but at the same time, while granting to
the mother, the custody of the son, aged seven years (at
the time of the pronouncement of the judgernent the son
was seven years old) it has given judicial reoognition of tbe
importance of the mother's contribution in the bringing up
"of the child and for its welfare. It also dismissed the contention of the father, that the mother being a working
woman would not be able to give sufficient attention to
ihe child and observed, at page 86 that:
Progressive Interpretation
The court in the present case, while aciopting a progressive attitude, disregarded ihe orthodox and parochial outlook of paternal power and supremacy of the father's right
over his children. Pronouncing a judgement, which is in
conformity with the basic objective of the Act, it observed
at page 85:
"No person other than a natural mother is in my view,
whether she works for a living or does not, or merely is a
house wife, is in any case a better person for bringing up
the child, in case of a male child at least uptil such time
"when the working mother has the custody of a school
going boy, he would have her company after she finishes
her work..~.the continuity of the care with the mother
should not be disturbed".
The judiciary in the prescnt case, therefore, while
libe:alising the rule of incapacity of the mother to the custod of the child has made a valiant efTort to uplift her
status through the instrumentality of law.
Poonam Rudhan Sauma is a lecturer in Uie faculy of law, Univa"
sin' of Delhi.
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It may also be pointed out here that the papmountcy
of the welfare of children in matters of their "custody in
the event of separation between their parents, was inculcated and given judicial recognition in England in 1925,
and was again firmly established by the Guardians of
Minors Act, !971-73. One is constrained to view the Indian
legislature's indifference to modify our ancient piece of
legislation namely, the GWA along these lines. The court,
therefore, should be complimented for 1is efforts to achieve
what ihe legislature has consistently and unfortunately failed
to do.
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The LaWyers October 1989
I
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LAW AND PRACTICE
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CRIMINAL
Unsatisfactory Explanation for Delay Vitiates
Detention OrdeF
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Further, the court held that the representation made by
the detenu had been dealt with unsatisfactorily — a delay
of 72 days in consideration and 42 days in getting the
comments from the customs authorities. This unexplained
delay was held to be violative of Article 22(5) of the Constitution of IMia, rendering the order of detention invalid.
Detention Order Cannot be Passed Against
Detained Person Likely to Remain in Custody
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The Supreme Court held that if there was a time lag
(between the incident on the basis of which the order was
passed and the order itself), it did not ii)so facto break the
link between the offending act and the detention order. It
held that the test of proximity was not a rigid and
mechanical rule. However, in case of unusual delay the
court had to scrutinise and evaluate the explanation given
by the detaining authority for the delay. The Supreme
Court held that the same reasoning applied for the detention order passed on 7 October 1987 and the Petitioner
(T. A. Sirajudeen) being arrested and detained on 19
January 1988. The explanation given by the detaining
authority for the delay in passing the detention order was
held to be vague and unsatisfactoy, vitiating the validity of
the order of detention.
T. A. Abdul Rahman vIs. State of KeraLa and Ors. jjT
1989 (3) SC 444].
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The superintendent of central excise, during a raid on
the house of TJL Sirajudeen found smuggled gold on the
premises. An order of detention was passed against
Sirajudeen, 11 months later, on 7 October 1987, with a
view to preventing him from illegally dealing in gold. The
detenu filed a writ petition for quashing the impugned
order of detention, but was not successful. His brother,
T./L Abdul Rahman, then appealed to the Supreme Court,
seeking to set aside the detention order on the following
grounds: (1) There was an undue and unreasonable delay
of 11 months between the incident and the detemion
order. Further, even after the order was passed, Sirajudeen
was not arrested till only 3 months later, and hence there
did not seem to be any necessity for detaining him in
order to prevent him from acting in a prejudicial manner.
(2) A representation submitted by Sirajudeen was disposed
off after a delay of 72 days, and this vitiated the order of
detention, as it was violative of Article 22(5) of the Constitution.
" ·"
Nallathambi had. been detained under the National
Security Act, 1980, by an order dated 7 September 1988,
by the collector and the district magistrate, Madurai. This
order was passed and confirmed by the state government
on 25 October 1988. The detention was challenged in the
Madras High Court, but was dismissed, whereupon
Nallathambi's wife N. Meera Rani appealed Py special leave
io the Supreme Court. She contended: (I) The detenu was
not given a proper and reasonablc opportunity for making
an effective representation. (2) The detaining authority was
not made aware of the fact that Nallathambi was already
in custody under Section 379 I.P.C. (3) The fact of his
arrest and the contents of his rejected bail application were
not taken into account by the detaining authority.
The Supreme Court held that the order was clearly invalid, since at the time of passing the order, the dctenu
was already in custody for an offence of bank dacoity
under Section 375 of the I.P.C. It is generally accepted
that ordinarily detention is not needed when the detenu is
already in custody. The detaining authority must show his
awareness of the kct thai the detenu is in custody and
must be satisfied on cogent material, that there is
likelihood of him being released. In this present case, even
though the detenu was not charged for robbery, the circumstances and facts subsequent to the offence and the
confessions made, made it amply clear that he would be
charged under conspiracy (Section 120-A and Section 120-
B).
The Supreme Court held that the question as to
whether an order of detention could be passed against a
person who is in detention or in jail, would always have to
be determined in the circumstances of each mse. Keeping
the above facts in mind, the Supreme Court quashed the
order of detcntion.
N. Meera Rani v/S. Government of Tamil Nadu and Anr.
[JT !989 (3) SC 478].
Sentence Alterable in Case of Undue Delay
Gyasi Ram was convicted and sentenced to death by the
sessions judge of Jhansi for committing murder. Subsequently, the Allahabad High Coun confirmed his death
sentence. The criminal appeal in the Supreme Court on 17
March 1981, was dismissed as well. Gyasi Ram's wife then
filed a merq petition to the President of India on 18
December 1981. Eight years later, the sentence of death
hadn't been executed and the mercy petition remained undisposed. Madhu Mehta, national oonvenor of the Hindustani Andolan,. filed a petition under Article 32 of the
Onstitution for a writ of habeas corpus or for an appropriate order.
The Supreme Court ruled that though undue delay entitled a person to approach the court, the Court could not
reopen the conclusion reached earlier by the court. Jt could
only examine the causes for delay and decide if the sentence should be carried oUt or altered into imprisonment
for life. Afier taking the facts and circumstances of the
case into considcration, the oourt held that even though
speedy trial is not explicitly mentioned as a fundamental
right, it is implicit)y contained in Article 21 of the CDnstitu-
The Lawyers October 1989
19
LAW AND PRACTICE
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tion. Speedy trial includes execution. and disposal of merq
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petitions.
I"urther, the inordinate delay in the execution of the
death sentence, apart from causing mental.agony and torture to Gyasi Ram, was a clear violation of the due
process of law or "Procedure established by law as given
under Article 21'. In the light of the above considerations,
the Supreme Court altered the sentence of death into one
of life imprisonment.
Madhu Mehta vIs. Union of India and Cks. [JT 1989 (3)
SC 465].
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'RENT'
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Denial of Landlord's Title Need Not Precede
Eviction
P. V. K Krishna Rao was the landlord of a building,
who filed an eviction suit against his tenant, Majati Subbarao, on the grouncj of bona jide requirement. Subbarao
disputed the landlord's title to the tenanted property, stating it was trust property. KriShna Rao in his rejoinder
declared that he was the absolute cjwiier. The rent oontrolfer passed a decree for eviction of Subbarao on two
grounds stated in Krishna Rao's rejoinder statement viz.,
(I) bona jide requirement of the landlord was made oUt
(2) the tenant's denial of the landlord's title was not bona
/ick Subbarao's appeals before the appellate authority were
dismissed. His appeal before the Higii Cburt was also dismissed, but only on the ground of denial of landlord's title
not being bona jide
Subbarao filed an appeal l?y special leave in the
Supreme Court, which examined the provisions of the
Andhra Pradesh Rent Act in which Section 10(2) specifically permitted eviction on denial of landlord's tiUe. The court
held that there was no merit in Subbarao's arguments that
denial of Krishna Rao's title should have preceded the
eviction proceedings. Subbarao also pleaded that Krishna
Rao had failed to amend his plaint and include the ground
of denial of title and hence he oould not have got a
decree on that ground.
that Smt. Sukhia, by marrying Gopai Singh, lost her interest in the holding and since Chancier Pal was only her son
and not Chain Sukh's son, he could not inherit the property, which wotjld go to Smt. Mainia W virtue of her being
the sister of Chain Sukh. The settlcpent officer, consolidation, Nainital and the deputy director of Moradabad dismissed Chancier Pal's appeals.
a¥
On filing a writ petition in the High Court, the orders
of the consolidation authorities were quashed. The court
held that Oy virtue of Section 180(2) of the Tenancy Act,
after her remarriage, she acquired an independent right,
which devolved to her son after her death.
The Supreme Otirr by evakiating Section 35 and Section 36 of the Tenahq Act said that on Smt. Sukhia marrying Gopal Singh, the holding would have devolved to the
next male descendent, but in the absence of ihe same and
in the event of Smt. Sukhia continuing to have possessiom
Section 180 of the Tenany Act was attracted. Upholding
the decisiem of the High Cburt, the Supreme Court dismissed the claim of Smt. Mainia.
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Snut Mainia V/S. The Deputy Director of Consolidation
[JT 1989(3) SC 288].
SERVICE
Equal Pay for Equal Work Only Among
Workers of Same Establishment
Carpenters emplQyed in the 1st and 2nd grade at the
wood working centre of the Himachal Pradesh State Handicraft Corporation, were being paid daily wages. Th':y
demanded parity of wages with their oounterparts in
regular government service, On the principle of equal pay
for equal work. In the alternative, they demanded that they
be paid the minimum wages prescribed by the deputy com"
missioner. They also demanded regularisation of their services with pension, gratuity, etc.
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This was taken care as the rent controller or trial court
had flamed an issue as to whether Subbarao's denial of
the landlord's title was bona jide or not. Since there was
no objection to this issue during the trial, Subbarao was
estopped from raising this objection before the Supreme
Court. The appeal was dismissed.
The interpretation of the principle of equal pay for
equal work has been very closely examined in earlier judgements. In this case, the Supreme Court held that discrimination oompiained of, must be within the same
establishment owned by the same management. A comparison oould not be made with wages paid" to emplcyers
Majati subbLuao v/s. P.V.K Nishna Rao (deceased) &
of a different establishment, in a different locality even
Chs. [JT 1989 (3) SC 694].
.
thoiigh owned by the same management. Secondly, accuracy and dexterity of the carpenter craftsman would acIndependent Right to Property in Absence of
count for disparity. Finally, the minimum wages set down
Male Heir
were not extended to the employees of the oorµxation.
- Hence the petition was dismissed.
Chain Sukh was initially the occupanq tenant of a plot
of land. After his death, his widow, Smt. Sukhia became
Harbans Lal and Cks. 'v/S. Staie of Himachal Fmash
the occupanq tenant of the holding. Smt. Sukhia subsequentjy married and from her second marriage had a and Q7s. [JT 1989 (3) SC 29G].
son, Chander Pal. After her death, Smt. Mainia (sister of
Cbain Sukh) and Chancier Pal both claimed sole interest
over the land. The consolidation officer of Ahalgarh held
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The LaWyers October 1989
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Your two-word introduction
to good health
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health hazards,
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exercising, earing sensibly... and treating minor ailments
with self-care medications.
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Yes; good health begins when you accept the
responsibility of caring for your own health. And when
you look aher your health you look after your future:
a more active, vibrant, happier yOu.
Of course, self-care medications are no substitutes for
expert professional treatment in cases of serious illness.
However,stuclies have proved that 3 outof 4 illnesses are
minor and can be rreated at home.
Self-care.
A healthy practice.
kcuedm thepubbcmterest by eS:?
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PRC?CTER & GAMBLE INDIA LIMITED
.
NOTICE BOARD
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The Acquired Immuno Deficiency Syndrome (AIDS) Prevention Bill, 1989
Bill No. XX of 1989
j
A BILL to provide for the prevention and control of the spread of Human Immuno De/icienq Virus (HIV) infection and
to provide for specialised medical treatment and sociai support to,"and rehabih'tation of persons sunering µom Acquired
Itmnuno De/iCienq SynQome (AIDS) and for matters connected therewith and incidental thereto.
BE it enacted by Parliament in the Fonieth Yem" of the RepubLic of India as foLbws:CHAPTER I
PRELIMINARY
I. Short titiej extent and commencement
(1) This Act may be called the Acquired Immuno Deficiency Syndrome (AIDS) Prevention Act, 1989.
(2) Ie shall mend to the whole of India weept the Staie of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notificarion in the Official Gazette, appoint.
.
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2. Definitions
In this Act, unless the oontext otherwise requires, —
(a) "AIDS" means Acquired Immuno Deficiency Syndrome in a person resulting from HIV infection;
(b) "designated health authority" means an authority doignated as such by a State Government under section 3;
(c) "HIV" means Human hnmuno Deficienq Virus;
(d) "HIV infection" means ihe presence in the body of a person of HIV antibodies or antigens detected on the basis of test;
(e) "prescribed" means prescribed by rules made under this Act;
(f) "registered medical practitioner" means a medical practitioner who possessm any recognised medical qualification as defined in
clauSe (h) of section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Regisum
(g) "surveillance centre" weans a surveillance centre established under section 8;
(h) "test" means a serological procedure followed for detection of HIV antibodio or antigens in the body of a person.
0
CHAPTER II
APPOINTMENT OF DESIGNATED HEALTH AUTHORITIES
3. Appointment of designated health Authorities by State Governments
~
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Every State Governmenr shall, by notification in the Official Gazette, appoint such person or authority as it may deem fit as the
designated health authority and define the local lirnits within which such authority shall exercise the powers and discharge the functions
oonferred or imposed on it by or under this Act.
4. Registered medical practitioner to give information
Every registered mediml practitioner who, in the course of his practice becmnes cognizant of the existence of any case of HIV
infection in a person, a person suffering from AIDS or a drug addict in any private or public dwelling, hospital, nursing home or any
oUier plac% shall give information of such person in such form and manner as may be prescribed and with the least practicable delay
to [he designated health authority within whose local limits he is practising.
Eyplanacion '— For the purposes of this seciion, "drug addict" means an addict within the meaning of the Narcotic Drugs and
Psychotropic Substanm Act, 1985.
5. Power of. designated health authority to call for information, elL
On the receipt of infomation under section 4 or from any other source, [he designated health authority shall have Ihe power to direct
"the person referred to in section 4 —
(a) tD furnish such information as that authority may require from him for initiating action under section 7 and section 9;
(b) to submit himself for test;
(c) to remove himself forthwith to a hospital or .other place for special care and medical treatment where the authority considers it
necessary so to do in [he interests of such person and also to prevent the spread of HIV infection.
=lanauon. — For the purposes of this section "drug addict" means an addict within the meaning of the Narcotic Drugs and
Psychotropic Substarioes Act, 1985.
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NOTICE BOARD
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6. Test of persons belonging to certain categories
The designated health authority may, having regard to, the kinds of persons frequenting, or living in, any area or areas within its local
limits, who are a"posed to greater risk of acquiring or transmitting HIV infection or, any other relevant consideration, provide facilities
and make necessary arrangements for such persons to undergo tot.
7. Steps to be taken by designated health authority
J
The designated health authority shall, on receipt of information under section 4 or from any other sour&, take steps to provide for —
(a) counselling l?y qualified and specially trained person; (b) health edtication; (C) specialised medical treatment; (d) periodical clinical
and serological follow-up action; (e) social support including rehabilitation;
to the HIV infected persons and persons suffering from AIDS and also take such other precautionary sieps to prevent the spread of
HIV infection as it may deem necessary
CHAPTER III
SURVEILLANCE AND REIIABILITATION
dp
8. Establishment of Surveilla,nce Centres
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The Central Govemmcnt, after consultation with a STale Government, may, by notification in the Official Gazette, establish one or
more surveillance centres in the Staie for the purposes of this Act.
9. Surveillance centres to conduct survey and to report cases of HIV infection to designated health authoriy.
qp
(1) Every .surveillance centre shall conduct clinical or laboratory t«ts or shall cause such tests to be conducted for the purposes of
detecting, d«emining or monitoring the rate of HIV infection or for identifying the persons so infected amongst the general public or
selected groups of persons.
(2) Where a person has been detected to be having HIV infection or as suffering from AIDS, the dcsignated health authority may
require the surveillance centre to take steps to trace the sources from which such person has acquired HIV infection and the sources
through which he might have transmitted the infection lO others.
'/
CHAPTER rv
MISCELLANEOUS
10. Bar to donation of blood, organ, etc
(1) No person who knows [hat he is infected with HIV or is suffering from AIDS shall donate his blood, any organ or semen to any
blood bank, hospital, laboratory or any other institution.
(2) No professional blood donor shall give blood to any blood bank hospital, laboratory or any other institution unless he has got his
blood tested every time he gives blood for the presence of HIV antibodies in his blood and such test has proved that it is free Rom
HIV antibodies.
,Zp,
Eu)lanation — For the purpos« of this section, the expression "professional bloOd donor" means a person who gives his blood more
ihan once within a period of three months and for monetary consideration.
11. Protection of action' taken in good faith
.
No suit, prosecution or other legal proceeding shall lie against the designated health authority or any person for anything which is in
good faith done or intended to be done under this Act.
,
12. Power to make rules
(1) The Central Government way, t?y notification in the Official Gazette, make rules for carrying out the provisions of this Act.
G2) In particular, and without prejudice to the generality of the foregoing power, such rub may provide for all or any of the
.oIlowing matters, namely: —
(a) the form and manner in which particulars regarding the persons infected with HIV or persons suffering from AIDS or drug
addicts may be sent to the designated health authority under section 4;
(b) the qualifications and experience of persons who may be appointed under section 7;
(C) the qualifications and experience of —
(i) doctors and nurses; and (ii) laboratory technicians and oiher technical personnel, associated with surveillance centres, hospitals or
other places meant for the special care and treatment of persons infected with HIV or persons suffering from AIDS;
(d) the facilities and equipments required to be provided at a surveillance centre for the purposes of section 9;
(e) any other malter which is required to be, or may be, prescribed.
;y
(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while ii is in
session, for a total period of thiijy days which may be comprised" in one session or in two or more successive sessions and if, before
the expiry of the session immediately fo11owiag the session or the successive sessions aforesaid, both Houses agree in making any
b
The LaWyers October 1989
23
NOTICE BOARD
·
modification in the rule or both Houses agree that the rule should not be made, [he rule shall thereafter have effect only in such
modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule.
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~~ " e
STATEMENT OF OBJECTS AND REASONS
Acquired lmmuno Deficienq Syndrome more commonly known as AIDS; has of late assumed proportions of li major health hazard in
several pans of the world. NO vaccine is presently available for affording irnrnunisation against the virus nor is it possible to cure the
disease which invariably results in death. The World Health Orgariisatioa estimates that 5-10 million people have already been infected
W HIV throughotn the world.
2. In India, a surveillance programme on AIDS was initiated in 1985. Till 31st July 1989, 3.33 lakhs persons mainly belonging to "high
risk groups" like sexually promiscuous men and women have been screened and 1,392 individuals were found to have HIV infection.
The long incubation period (atnut 8 years) renders identification based on clinical ymptorns alone inadequate at the initial stage of
infection. Therefore, surveillance based on serology is necessary to prevent the spread of HIV, which causes AIDS.
3. Having regard to the potential of rapid spread of infection and the mode of its transmission, it is necessary to take effective
measures to prevent the spread of HIV, ty detecting persons infected, preventing transmission by thern of infection to others and by
providing counseliing, health education, and social support to, and rehabilitation of, infected persons.
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4. The Bill seeks, ihter ah —
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(a) to appoint designated health authorities to carry out the provtsions of the Act, who will be authonsed to demand information from
infected persons, and provide healih education, counselling, treatment, social support to, and rehabilhation of, infectd persons;
_b&,
<Fgg
(b) to require registered mdical practitioners to report to the designated health authority cases of HIV infection, drug addicts, and
AIDS to enable such authority to initiate preventive action;
(C) to. provide fo'r the establishment of surveillance cenlres after consultation with the State Governments for oonducting surveys to
detect the presence of HIV infection among high risk groups and the general population.
5. Tbe Bill seeks to achieve the above objects,
Rafique Alam
qr
Minister of State in the MinDt7y of Health and Family Welfare New Delhi
The 14th Augusg 1989
FINANCIAL MEMORANDUM
Clause S of the Bill provides that the designated health authority shall have Power to direa certain persons for test with respect to
detecting HIV infection or AIDS.
'
2. In order to provide oounselling facililiE under clause 7, qualified and trained personnel will have to be appointed. On their salaries,
etc, Rs. 100 lakhs of recuning oq?endilure is anticipated. Clause 7 further provides for health education, specialised medical treatment, periodical clinical and serological follow-up action and social support to and rehabilitation of HIV infected persons and persoris
, suffering &otn AIDS. On all these rnatrers an expenditure of Rs. 530 lakhs of non-recuning nature and Rs. 155 lakhs of recuning
nature will be invoNed.
P
'
_ .j:
"0
-~¶
3. In order to provide lest facilities and equipments to surveillance centres, under clause 9, an expenditure of Rs. 775 Iakhs would be
required, out of which Rs. 180 Iakhs will be of the nature of non-recurring and Rs. 595 lakhs will be of recurring nature.
4. Apart Forn the above, no other expenditure of recurring or non:recurring nature frouj the Consolidated Fund of India is envisaged.
MEMORANDUM REGARDING DELEGATED LEGISLATION
P
Clause 12 of the Bil! empowers the Central Government to make rub to provide for —
(a) the form and manner in which particulars regarding persons infected with HIV or persons suffering from AIDS may be sent to
the designated health authority under clause 4;
(b) the hcilities and equipments r«juired to be provided at a surveillance centre for the purposes of clause 9;
(C) the qualifications and Vperience of — .
(i) doctors and nurses; and
(ii) kboratory technicians and other technical personnel, associated with surveillance centres, hospitals or other places meant for the
special care and treatment of pemxis infected with HIV or persons suffering from AIDS.
2. The matters in respect of which rulo may be made are of administrative detail. The delegation of legislative power is, therefore, of
a nomal character.
"
:-a
j
.
24
7he La)4yerg October 1989
COMMENT
gaNE
3g7
Trivial Indiscretion or an Outrage to
the Modesty of a VVoman?
·
Robin E. Abrams reports on the controversial case of Mrs. Rupan Bajaj v/s. Mr. K.P.S. Gill.
On a July evening last year, several
distinguished guests gathered in
4.
Chandigarh
atfinancial
the home
of Mr. S. L.
Kapoor, LAS.,
commissioner
and secretary to the government of
,
.Ltm,
. " ·E"
' "
'
q
Punjab for
at approximately
in the
evening
a dinner party.8:30
Between
twenty and twenty-five couples attended the party including such
notable figures as the inspector
general of police, Chandigarh, Mr. V.
N. Singh, joint director, Intelligence
Bureau of India, Mr. Pathak; the advocate general of Punjab, Mr. K P.
Bhandari and his wife; senior advocate
of Punjab & Haryana High Court,
Mr. Mehra, his wife and their
daughter; in addition to press correspondents
Rom
the Hindustan
Times, India Today, and Indian Rpress. Mrs. Rupan Deot Bajaj and her
husband B. r. Bajaj, both Indian Administrative Service officers with more
than twenty years service were also
present, as was Mr. Kanwar P. S. Gill,
director general of police, Punjab, who
was pulling the next chair so close
that it touched his chair. Mrs. Bajaj in
surprise pointedly put the chair .back
in its original position, whereupon she
was about to sit when Mr. Gill again
suddenly pulled the chair very close to
his own. Mrs. Bajaj narrowly escaped
losing her balance and falling. Now
she realised that something was amiss
and refused to sit down at all. She
then returned to her original seat.
Within 10 minutes, Mr. Gill walked
across to where Mrs. Bajaj sat and
stood directly in front of her, with his
knees practicalfy touching hers. He
pointed his finger clx to her face,
and with a lewd look on his face
commanded: "you get up; you come
along with me". At this point Mrs.
Bajaj loudly rebuked Mr. Gill for his
obnoxious behaviour and told him to
leave immediately. Mr. Gill repeated
his order with added emphasis. Mrs.
Bajaj, fearful that he was about to
4, mt::d'd without the company of his
Given Mr. Gill's
What Happened
Drinks were served as people arrived. The group natural|y arranged itself in two large semi-circles facing
each other, one occupied by the
women, the other with the men. At
roughly 10 p.m., Mr. Gill walked
across the back lawn of the house
fiom the men's semi-circle to that of
the women and occupied an empty
seat, five or six chairs away fiom Mrs.
Bajaj. Evidently, Mr. Gill behaved in a
manner that offended the women sitting in the neighbouring chairs, such
that they got up and walked away. He
then called out to Mrs. Bajaj and told
her to "come and sit here; I want to
i~· Ialk to you about something". Mrs.
"?"
Bajaj walked over to Mr. Gill and was
about to sit when she noticed that he
responsibility as the
director general of police
for enforcement of the
laws, his behaviour should
be exemplary. One wonders
what leyel of harassment
or degradation a woman
must tolerate before the
criminal laws will o/)'er
protection ?
The LaWyers October 1989
pull her up forcibly against his body,
sought to leave. As he completely
blocked her way, she had to pull her
armchair backwards, turn and depart
through the space thus created. As
she turned quickly to escape, Mr. gin
slapped her on the posterior in the
fijji presence and view of all the
guests surrounding her.
Mrs. Bajaj immediately reported
the incident to the host of the pany,
Mr. Kapur. Shortly aherwards she
similarly informed Mr. Pathak, joint
director I.BJ., of Mr. Gill's offensive
and threatening behaviour.
She requested that he send an intelligence
report to the government of India,
regarding
his actions.
Apparently
others, including Mr. Mehra's daughter
had complained of Mr. Gill's misbehaviour during the evening.
Despite lodging oomplaints regarding the incident with the chief
secretary, the adviser to the Governor,
and the Governor himself, no disciplinary action was taken against Mr. Gill.
The Governor merely reprimanded
him for his inappropriate behaviour
and barred him Rom parties for [be
future. But Mrs. Bajaj informed the
Governor that she wanted action
taken under the relevant administrative
procedures and criminal laws. The adviser to the Governor called her the
next day saying that Mr. Gill was
present and wanted to apologise.
Finally, realising that even the
highest authorities of the state were
unwilling to take official action against
the director general of police, Mrs.
Bajaj filed a first information report
against Mr. Gill for the purpose of igitiating a criminal investigation. She '
specifically charged him with behaving
iri a manner that offended her modesty during an official party. Pursuant
to orders issued by the inspector
general of police, the report was im-
25
,
COMMENT
mediately sealed and no investigation
occurred. Subsequently, Mr. Bajaj filed
a complaint against Mr. Gill charging
him with the use of criminal force
while intending to outrage the modesty of his wife.
Gill's 'Defence'
Mr. Gill seeks to minimise the entire incident. He has invoked a rarely
utilised provision of the Ir,dian Penal
,Code which states that no actioR will
be a criminal offence if the harm
caused is so slight that no person of
ordinary sense and temper would complain about the harm. Presumably he
feels that all women should willingly
endure such behaviour while attending
official state parties; or if important
figures such as himself assault a
woman, an apology" should suffice to
eradicate the incident.
Tbe High Court of punjab has intervened in the proceedings before the
magistrate on several occasions. First,
the High Court granted a claim of
privilege with regard to certain hies
requested for the" criminal investigation, on the grounds that they related
to official affairs of the state of Punjab, even though the magistrate had
examined the documents and rejected
the claim of privilege. In addition,
upon appiication, the High Court
suspended two summons issued For
examining the chief adviser and the
secretary to the Governor under the
complaint. Finally, the High Court issued a judgement and order quashing
the investigation pursuant to the first
information report as well as the complaint.
"
The High Court seemed to agree
with Mr. Gill that the incident has
been blown out of proportion.
Pjacing much emphasis on the fact that
Mrs. Bajaj and Mr. Gill previously
had worked togerher and that in the
context of a party attended by such
high state officials, it would be "unconscionable and unnatural" for Mr.
Gilt to assault Mis. Bajaj with the in--'
tention of outraging her modesty, the
. High COurt fbund benign justifications
for his actions. For example, Mr. gin
must have pulled the chair ckser to
bis own in order to have a conversation regarding work outside the earshot of
the
other guests. While
indicating its unwUlingness to believe
the allegations under the circumstan-
ces, the High Court ooncluded that if
the. iMdent occurred it must have
been accidental and therefore so trivial
that
it does ' not warrant criminal
penalisation according to Section 95 of
the penal code. This Section is intended to oover incidents which all
over the world, the public and the
courts view as innocent. It seeks to
protect against the criminalisation of
acts, which all people do and suffer in
tum, and which it is desirable that
they do suffer.
The criminal laws give the police
unfettered power to investigate all
cases where they suspect [hat a cognisable offence has been created on
the basis of a first information report
or a complaint. On the other hand, in
appropriate mses, an aggrieved person
can seek relief under the Constitution
from the High Cburt, when the allegations taken at their face value and accepted
in
their
entirety
do
not
mmimmimm
While indicating its
unwillingneSs to believe the
allegations under the
.
circumstances, the High
Court concluded that if the
incident occurred it must
have been accidental and
therefore so trivial that it
does not warrant criminal
penalisation according to
Section 95 of the penal
".§-«
""
code.
¥
constitute the
offences alleged
and
thus restrain the police Fom abusing
their power by investigating baselesS
complaints.
To
violate
the
penal
Must Women Only Endure?
statutes prorecting
the
modesty of
women, a complaint or report must
allege an act done to a woman or in
The High Court's judgement may
her presence that is clearly suggestive
be interpreted as an outright denial of
of sex according to the common no_
tions of mankind. In
this case, the
High Court concluded that the allega.
the allegations in contravention of the
criminal statutes, protection of a high
ranking police official, or a true belief
tions
could
not
give
rise
to
a
reasonable suspicion that the accused
that the alleged behaviour is merely
part of what every woman must en-
committed the
offence of outraging
the" modesfy of Mrs. Bajaj.
dure without complaint as an unfortunate part of modern society. In any
event, if the judgement is upheld by
Mrs. and Mr. Bajaj have filed a
special leave petition in the Supreme
the Supreme Courr, it leaves doubt
concerning the
continued vitality of
the provisions of the penal code that
Court seeking reversal of this judg"-
protect against outraging ihe modesty
ment.
They claim that the
High
Court unconstitutionally intervened in
of women, and perhaps indicates an
insensitivity to [he increasing incidents
yashing investigation of the first in-
of sexual assaults upon women. Alter-
.ormation report and
complaint. In
order " to quash an investigation, the
natively it creates the impression that
the laws are more vigorously enforced
High Court must not dismiss the al-
against the less renowned or politically
legations
as
fabricmed
or
unconscionable, bur
rather accepting the
allegations,
determine whether
they
constkute the offence alleged. Therefore, if an individual reports an incl-
influential members of the population.
dent that contains all the ingredients
forcement of the laws, his behaviour
of
the
ofFence
of
outraging
the
modesty of a woman according to the
should be
exemplary. One wonders
what level of harassment or degrada-
provisions of [be Indian Penal Code
as Mrs. Bajaj has, the High Court
cannot impose its own interpretation
tion a woman must tolerate before
the criminal laws will offer protection?
of .the events and dismiss the allega-
Robh E. Abrams is a ~ pracUing in
tions as trivial.
New York
":"'
=.t
77ie Layers October 1989
.. .
A--4-"
.
Given Mr. Gill's responsibility as
the director general of police tor en-
d
26
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. .. . _._ .
"":C
P
a
FEATURE
m!
^'" The Jurisprudence of Obscenity
Justice Y R. Kiishna Iyer concludes hh essqy on the law of obsceni{y, a7guing against restrictions
being placed on the Feedom of the press on the grounds of obsceni{y in all cases where
public interest necessitates such disclosures. The jim part of the article was published in the
4ugust issue of 77ie Lmyers.
The Indian law on obscenity has
had an international origin. The
Obscene
Publications
Act,
1925
(amending the Penal Code) gives effect to Article I of the international
convention for the suppression of, or
;
4'=
3
'
·
t"
traffic in obscene publications signed
by India in 1923 in Geneva. Coming
back to the concept of obscenity itself,
several judgements refer to it. The
Supreme Court, in the leading case of
Ranjit Udeshi stated:
f
f
{
"It is always a question of degree
or as the lawyers are accustomed to
say, of where the line is to be drawn.
It is, however, clear that obsceniy W
itself has extremely 'poor value in the
propagation of ideas, opinions and information of public interest or profit'.
When there is propagation of ideas,
opinions and information of public interest or profit, the approach to the
problem may become different be-
t
..
:
q
"'
µ,
Where a reputed journal
devoted to dissemination of
information on public
and expression" [AIR 1965 SC 881 at
Page 886].
matters or personalities for
In an important observation which
has a wider Fill-out when publications
have relevance to public interest, social
expasure and informatory object, the
court stateO
.
"It may, however, be pointed out
that one may have to consider a plea
that the publication was for public
g4 This
bears on the question
whether the book etc. cari in thase
circumstances be regarded as oMne.
It is necessary to bear in mind ihat
this may raise ijice points of the
claims of society to suppress obscenity
and the claims of society to allow ftee
speech. No such plea has been raised
in this case but we mention it to draw
attention to the fact that this may
;.
¥
"We are not called upon to decide
this issue in this case but we have
found it necessaiy to mention it because ideas having social importance
will priina facie be protected unless
obscenity is so grass and decided that
the interest of the public dictates the
other way" [Ibid at page 886-887].
cause then the interest of society may
tilt the scales in &vouc of free speech
"%"
.
prosecuted for it, his plea was that he
had 'introduced obscene ideas with a
view to exposing them to detestation,
and of amending ihe age Py showing
the depravity of wickedness' and the
plea was accepted (see Dr. Johnson's
Life of Savage in his Lives of the
PoeLg)-
democratic edj/ication,
comes by important
discoveries bearing on a
high jiinctionary's private
sexual deviances impacting
on his image and activities
as a public servant,
exposure of such
delinquenCy is the public
duty of the press in a
democratic polijy.
lead to dWerent results in diUerent
cases. When Savage published his
PYogess
of
a
Divine,
and
Social Context
What is obscenity is the central
issue and must be judged in its social
context. Justice Hidayatullah has dealt
with this question in the Udeshi case:"It may, however, be said at once
that treating with sex and nudity 1d
art and literature annot be regarded
as evidence of obscenity without something more. It is not necessary that
the angels and saints of Michaelangelo
should be made to wear breeches
before they can be viewed.
"If the rigid test of treating with
sex as the minimum ingredient were
accepted hardly any writer of fiction
today would escape the fate Lawrence
had in his days. Half the book shops
would cIase and 'the other half would
deal in nothing but moral and
religious books which Lord Campbell
boasted was tbe effect of his Acl
"The question is now narrowed to
what is obscenity as distinguished hom '
a permissible treating with sex?" [Ibid
at Page 887].
The learned judge has rightly ODliceded tbat a radical change has overtaken our country and the world, in
the approach to obscenity. Of course,
'dirt for dirt sake' or 'dirt for money's
sake' or salacious presentation without
the slightest redeeming merit at all,
cannot be salvaged ty the constitutional right of ftee speech. A more controversial area is reached when the
court is called upon to adjudicate "the
tendenq to deprave and corrupt" in
"the matter charged". Should the writing be viewed as a whole so that its
thrust may be better evaluated or
should the court mere|y pick oUt isolated passages where obscenity oozes?
Justice
Hidayatullah
makes
platitudinous point when he says:
was
The Lauyers October 1989
a
27
FEATURE
j·
O
"We
need
not
attempt
to
bowdlerise all literature and thus rob
speech and expression of freedom. A
balance should be maintained between
freedom of speech and expression and
public decency and morality but when
the latter is substantially transgressed
the former must give way" [Ibid at
page 889].
Should bits and pieces of obscene
sentences or episodes illustrative of
the broad purpose of iniorming or
educating the public prevail? If the
preponderating purpose of the entire
writing is socially good in some
measure, we will be perverting the law
to suit the palate of morbid orthodo]¢y
to declare it contraband. It is extremely significant
that
even Justice
Hidayatullah, speaking for the court in
Udeshj attacbes great weight to the
possible social good the book may
promote, when considering visa for
publication. For instance the learned
judge observes:
"If by a series of descriptions of
sexual encounters described in language which cannot be more candid,
some social good might result to us
there would be room for considering
the book" [Ibid at page 890].
The ulrimate decision went against
the publication bemuse, in the view of
the Bench, even in the setting of the
whole book, "there is no social gain
to us which Can be said to
preponderate", a doubtful opinion too
dated to be good aad may need to be
reconsidered. Even the Udeshi case
accepts the passage that, granted some
social interest is promoted, the writing
becomes non-obscene.
In Samaresh Bose [AIR 1986 SC
967], a Bench considered and rejected
the charge of obscenity against a novel
titled hajapatj showing progressive
sensitivity beyond Udeshi We rnay
respectfiilty seek for light and law
hom here. A few prefatory quotes will
set the tone for tbe ratio of the
ruling. Says the high Bench:
"In our opinion, in judging the
question of obscenity, [he judge ixj [he
first place should try to place himself
in the pcNtion of the author and
Rom the view point of the author the
judge should try lo understand what is
it that the author seeks to convey and
what the author conveys has literary
28
and artistic value" [AIR 1986 SC 967
at page 981].
Justice A. N. Sen clarified [hat
views expressed by reputed writers on
such issues may well be consulted and
ruled against obscenity in the book
,
"Some portions of the book may
appear to be vulgar and readers of
cultured and refined taste may feel
shocked and disgusted. Equally in
some portions, the words used and
description given may not appear to
be in proper taste. In some places
there may have been an exhibition of
bad taste leaving it to the readers of
experience and maturity to draw tbe
necessary inference but certainly not
sufficient to bring home to the adolescents any suggestion which is depraving or lascivious. We have to bear in
mind that the author bas written this
novel which came to be published in
the Sarvodiya Hsh for aU classes of
readers and it cannot be right to insist
that the standard should always be for
the writer to see that the adolescent
may not be brought into contact with
sei If a reference to sex W itself 1ij
any novel is considered to be obscene
and not fit to be read by adolescents,
adolescents will not be in a position to
read any novel and 'will have to read
books which are pu rely religious"'
[I6id at pages 983 and 984].
Vulgarity and Obscenity
The court had earlier observed:
"A vulgar writing is not necessarijy
obscene. Vulgarity arouses a feeling of
disgust
and
revulsion
and
also
boredom but does not have the effect
of depraving, debasing and corrupring
the morals of any reader of the novel,
whereas ohscenity has the tendenq to
deprave and corrupt those whc=
minds are open to such immoral inRuences" [Ibid at page 983].
KakAknr [AIR 1970 SC 1390] and
Samaresh Bose [AIR 1986 SC 967]
show that Indian law is liberalising itself and liberating Ree speech &om
the coils of elderly allergy to sex
scenarios.
focus on the unseemly sex escapades
of holders of public ofTice, which, in
public interest, must be brought to
the censorious notice of the people.
I) The penal law on obscenity, read
.
down to serve the constitutional pur,~_5
pose of Article 19(2), is not meant to ""
shield ministers, high oWcials or even
judicial personages tg forbidding disclosure of rruth to the public. No
longer are these erotic delinquencies
driven underground t?y the terrorism
of obscenity statutes. There is no immunity cult of official secrecy about
the venereal adventures of public persons if such indulgences will highjack
their public decisions about which the
public has an interest to know. The
,
paramountq' of public interest is _+4
paramount.
~f
II) When a public figure complains
of a dekmatory publication and the
statement relates to sex excess or immoral exercise, the action is in the
domain of defMnation, not obscenity.
Obscenity is designed to deprave, not
defame, to corrupt people, thro' immoral influences, not injure the
reputation of particular persons. A
publication is obscene if it tends to
deprave and immorally corrupt minds
generally, while a defamatory statement tends to injure the reputation of
particular persons to whom it refers.
A sex affair imputed to a perscn
may injure his reputation and so is
libel. Obscenity does not relate to particular individuals and their reputalionj
but is a lewd or lustfUl writing or
hard-core pornography victimising may
the minds of thcxse in whose hands
the offending publication may fdll. Tbe
two offenses are distinct and differenL
Defamation
does
not
become
obscenity merely because the matter
or missile used to libel or slander is
soaked in sei To omfiise between the
two is to miss the nature of their
juristic components. Assuming the
defamaiory matter depicts the vulgar
sex of the libelled P!aintiU, it may
produce disgust in the reader about
him but not induce depravity in the
community.
Legal Implications
Ill. Obscenity is not mere sex stuff
in print. Sex education, sex scieace,
sex and religion, and sex in other
The long discussion" must now be
condensed
into
legal
propositions
about obscenity jurisprudence with
departments per se will
not b"
obscene. As held in
Shree Ram
Sarena [1940 (1) Cal. 581], a picture
The LaWyers October 1959
-:k
-
>
=:1> "
rb
4,£ ;
~:
m||lL
FEATURE
%
hj
k
A
of a woman in the nude is not per se
obgeene. Pornography for profit, sex as
y
inarketable written
aphrodisiac,
lascMous filth for money's sake — these
are obscene. But in a wHte up or
book written for a purpose, incidental
sex incitement is not ohscenity. "
,
b
u-
IV. Even if a publication has a
tendeng' to be .an aphrodisiac, if the
writing has the slightest social value,
public utility or interest affecting the
democratic
health,
the
charge
of
obscenity is unsustainable.
·C
'
,
F
,
i
l
!
.L
V. The power process in a republic
has an ultimate accountability to the
people. The people being the final
masters have a right to know wbat ef,<DE,
fects their weal and who, how, what,
t'
""
and why about
the operators of public
power. Such .information is their right.
The American people exercise this
right to know about presidential candidates,
elected
ofTicials,
Supreme
Court judges. The right to information,
once
atrophied,
democrag'. And the great
deadens
mediator
between the people and the republic,
the constant monitor of the engineers
of state power, their administrative efficiency and their moral integrity is the
press. Even the private Life of public
persons is public property, where it
projects into people's interests.
,
!
Justice Mathew put it best in Raj
Narain:
.
r
l
'.
/
"In a government of respnsibility
µq_
W7
like ours where all the agents of the
public must be responsible for their
conduct, there can be few secrets. The
N
'
people of this country have a right to
know every public act, eve[ything that
is done in a public way, W their
public fUnctionaries. They are entitled
to know the particulars of every public
·transaction in ail its bearing. The right
to know, which is derived from the
concept of heedom of speech, though
I10t absolute, is a factor which should
make one
wary, when secrecy is
claimed for transactims which can, at
any rate, have no repercussion, on
public security (See Net York Time
Co. V/S. United States, 1971 (29) Law
Ed. 822403 US 713]. To cover the
veil of secrecy, the common routine
i"
business, is not in the interest of the
public. Such secrecy can seldom be
legitimately desired. It is generally for
'
,L,
"
7:"
the purpase of parties and politics or
~
"'
personal
self-interest ..of bureaucratic
routine. The responsibility of oWcials
to explain and justify their acts is the
chief safeguard against oppression and
corruPtion" {AIR 1975 SC 865 ai
page 884].
Duty of the Press
Where a reputed journal devoted
to 'dissemination of
information on
public matters or
personalities for
democratic edification, comes by important discoveries bearing on a high
filnctionaIYs private sexual deviances
impacting on his image and activities
as a public servant, exposure of such
delinquenq is the public duty of the
press in a democratic polity. The social value and dominant purpase of
such publication redeems it Rom any
criminal taint of obscenity, assuming
the article reeks with the reprehensible
nocturnal
acrobatics.
DecenCy
and
moraiiy in public life is oorrectively
promoted
Py
the
courageous
disclosure, dePraviN and debauchery in
high places inhibited t?y timely delivery
of the obnaxious facts to the people
who matter. Obscenijy, in penal and
constitutional jurisprudence, walks a
far-away
street.
Jurisprudence
of
ohscenity, in a democraq, is a fiinctional fiduciary of decenq and has a
sanitising mission to cleanse public
power
of
indulgern
prurient temptations.
surrender
In an era where democratic exer· cises thro' dections at school or oDllege parliaments and r;oting rights at
adolescent age is invested, - it is of
critical importance that
even the
younger generation is sensitised to
revolt against sex abuse and the corrupt misuse of Nwer. The snobbish
and prudish days are long ago gone
when the mere reference to a " sex
organ or lurid act will push a young
mind into pornographic excitement.
Only
a politial
obsolescent
and
pachydermic -puritan will confijse between the battle against oBRcials who
pervert their oMce for private prurient
prospects with a tendency to deprave
or debauch. Only a randy bull with
the apparel of public power will use
obscenity law as a punitive cover-up.
The law is sometimes an ass, but not
an
abettor
of
criminals.
The
jurisprudence of public o&e in a
democratic republic demands that the
purity, even sex puriy, of public '
pc»ier is invigilated by a fearless press
unmaskMg violators and not abdicating
its sacred fiinction of informing the
public, whose right to know is fiindamemal to fiindamental rights.
There is no rose but has a thorn
The blunt description of an abnor " but to see only the thorn and not the
rose is guilty optio and jaundiced
mal sex act ty a brazen person wearjuristio. Public, criticism of sex aberraing the mantle of high oWce who
misuses
his
oKiciaI
influence
for
libidinous fndulgence is disgust and
shock at the culpable conduct of the
blackguard and the democratic outrage
at a diabolic public fUnctionary getting
awdy with it, while at the responsible
wheels of state power. Hound him
out, he has forfeited his right to represent us in public business, is the
righteous sentiment and exasperated
reaction; not — repeat not — the
arousal of sexual. depravity and rush
Of salacious impulses. The purNe
and setting, the person and his position, the misuse of oWce and Ihe
economic despair of the victim which
led to his, or her surrender to the
shameless philanderer — these and
the nature of the journal and thrust
of the article are decisively against
obscenity and highly supµxtive of the
author's political object 'of campaigning
against a sex'beast pervertihg"and pol-
n"eTL"aWeK"jOcto"b'er.'i1989
jh
to
luting ty stink an oMce of trust or
seat of authoEity won W the fktnchise
of citizens or sworn in ty the highest
executive of the nation.
tion of public men in lurid detail — is
as near to obscenity as sugar is to
brown sugar. Some look for erotica
and see it in even sublime wriring.
The story is oft quoted of a lady wljo
charged Dr. johnson with putting improper words in his dictionary and
came the classic retort hom the great
Iexicographec "Madam, you must have
been looking for them".
The
constitutional
fUndaniental
which obligates the investigative journalist to inform the public, and consequently vaccUiates him against legal
blackmail, is James Madison's admonition:
"Knawledge will forever govern ignorance; and a people' who mean to
be their own governors must arm
themselves with
the power which
knowledge gives".
29 "
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HAAZIR HAI
iE
Arthur Chaskalson
Arthur ChaskaLson is a distingubhed senior counsel of the Johannesbiug Bdr. Ten years backj
he gave up a lucrative praciice to, set up .the Legal Resources Centre at ohann«biug oT
which he is the National Director. Raju Ramchandran who met Arthur ChaskaLson at the
Salzbiug Seminar in Mq this year at the Session on "Human Rig/W Across Cultures and
Political Systems': interviewed him for The Lauyers.
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Q. The report of the Legal Resources Trust for the year ended 31
March 1988, shows that the majority o,'
the peopk who have used its service
are black and that the Legal Resources
Centre has notched up several victories
for the blacks — both through litigation and negotiation. But has the Legal
Resources Cemre initiated legal steps to
challenge the structure of apartheid?
A. There are limitations imposed by
the South Afiican legal system on
challenges to unjust laws. The Constitution provides for parliamentary
supremaq. No court has the power to
declare an Act of Parliament invalid,
and so the Acts of Parliament by
which apartheid is enforced, are
beyond challenge. However, delegated
legislation can be and has often been
successfiilly challenged on the grouncj
that it operates unequally between
races.
Q. How independent and rac©
faif would you rate the South APican
judiciary?
.L
That's a difficuk question.
Judges in any society reflect the social
- values of the time. Judges in the
higher judiciary are mainjy white, and
therefore, informed by the values of
the white communiy. By and large,
South Ahican judges have been indepeadent in that thq have been willing
to rule against the government and
they have independem views in their
consideration of challenges to subordinate legislation. In a normal commercial litigation between blacks and
whites, the South .Ahican judickuy is
quite Eair. When apartheid was at its
peaE several shocking judgements
were delivered. To give an example,
Mr. pitje, a black lawyer went to address a magistrate Rom a table
resewed
for
white · lawyers.
The
magistrate bad ordered him to address
30
G
·€7 ;m
Judges in any society
re/7ect the social values of
the time. Judges in the"
.
t"
higher judiciajy are mainly
white, and therefore,
informed by the values of
£r=¶
the white community.
naa!nuumj
him Kom the table meant for blacks.
Upon bis refijsai to do so, he was
convicted of contempt of co.urt and
was fined S5. The appellate division of
the Supreme Court refiised to interfere, holding that the magistrate had
not acted in bad faith. Such a disgracefitl judgement would
not
be
delivered in today's climate. In the interpretation of legislation relating to
the present emergency, the record of
the provincial division has been better
than that of the appellate division —
the former struck down a provision in
the
regulations
barring
access
to
lawyers, but the decision was reversed
by the appellate division.
Q. How do judges reconcile with
apartheid?
.L The inhastructure of the South
Afiimn legal system is Roman-Dutch
common law which abhors all forms
of discrimination and recognises and
protects
fundamental
rights
and
Reedorns. The laws of apartheid are
wholly antithetical of this tradition.
This attempt to impose an aparrheid
superstructure upon an inhastructure
of Roman-Dutch common law, re-
qu ires an almet schizophrenic approacti by courts to problem solving.
At one and the same time they are
asked to articulate and give euect to
equitable common law principles and
to uphold and enforce discriminatorj
laws; at ooe time to be ao instrument
of justice and at another to be an instrument of oppression.
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Q. What are the kzws of apmheid
which have been dKmantkd so fw? Is
apartheid on the wqy out?
A. Two of the pillars of racial discrimination, namely influx laws and
labour laws have fallen. The influx
oontrol laws have been repealed.
Labour laws have been amended to
scrap job reservations and to give
black workers the right io form trade
unions. The Restoration of Citizenship
Act, 1986 marks an ideological watershed: it marks the abandonment of a
policy based on the assumption that
black people are temporary sojourners
in the cities. But, of course, apartbeid
continues in the PopulatioD Registration Act, land laws, the homelands
policy, the education laws and the
ftancbise laws. Laws are still being
The LaWyers October 1989
.f
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HAAZIR HAI
H
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^
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The Legal Resource Centre now has oMces at
Cape Town, Durbam Port Elizabeth, Pretoria and
Grahamstown.
"b
Almost all the clients of the Centre are black
On their behalf, the centre has been taking up
cases and has been able to get them relief Rom
injustice in a large number of cases. Says Arthur,
"The black population of South Ahica is excluded from parliament. They are not however
excluded Rom the courts, though financial constraints impose limits on effective access to
P
j
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courts, which is possible only if legal representation is available, What is of considerable
.
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significance, is that people from the black community have until now shown a willingness to
turn to the centre, to secure enforcement of
rights or protection against unlawful acts which
cause them harm. In a sense this is surprising,
because there has been an increasing tendency
within the black community to avoid using state
institutions. The fact that the courts are used,
suggests that. they are not seen simply as institutions of the state, but that some recognition is
given to their independence and their capacity to
resolve conflict and protect rights. Of course, in
the present emergency, the spaces within which
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courts can function, have been narrowed and a
number of problems which affect the day to day
lives of people within the black community, are
beyond the reach of the courts".
Two significant cases takeji. up by the Legal
Resources Centre were Komani (1980) and Rikhoto (1983). In Komanj the appellate division of
the Supreme Court declared invalid, a regulation
which was applied to prevent a number of
families from coming together in the towns to
live with one another and imposed forced separation of husbands, wives and their children. This
ruling reunited a large number of families. In
Rikhoto, the appeliate division held ihat a procedure followed by administration boards under the
Black
Labour
Regulations,
which
required
migrant workers to return each year to the rural
areas &om which they had been recruited, did
not prevent such workers from qualifjhng for
urban rights under the Urban Areas Act. As a
result, thousands of migrant workers who had
been denied urban rights became entitled to
claim them.
Apart from litigation, the centre has also conducted negotiations with the authorities to
remedy injustice to black communities.
.
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made W white people but there are
signs that change will mme in South
Ahica. We can see the beginnings of
a process whicb oould possibly lead to
the dismantling of racial discriminatioo
and the creation of a democratic
society. That time may be closer than
many of us would have thought possible a year or two ago. Although
there is still much that has to be
done in order to create a just society,
we are living at a time when tbat
society is within our reach.
With respect, it is not appropriate for
any judge to hold that "no principle
permits environmentalists to seek discovery of particulars because of the
oR-chance that some impropriety or illegality is likely to be discovered." Information is not easy to mme Py in
our counuy and for this very reason it
is necessary for the courts to assist
citizens
to
get
information
of
governmental action if a µih'a facie
case exists. To hold ihat because the
eight examples cited W the Petitioners
did not contain any irregularities, the
petitions were not sustainable, is to
view judiciaj responsibility rather narrowly. And if the dereservation of 285
plots is not a substantial modification,
what is?
Environmentalists are often lampooned for taking up eoological muses
allegedly at the cost of the common
man, who needs the amenities of life.
This is actually an argument to
sidetrack the main issue, which is
whether the government has in fact
violated
the law for
extraneous
reasons. The truth can never see the
tight of day if the onus of proof is so
overwhelmingly put on the shoulders
of the ordinary citizen. Despite Mr.
Justice Daud's order, public suspicion
over the dereservation scandal has not
abated. Only Py taking the matter to
higher judicial forums and forums of
the people will the truth come out.
We owe that much to ourselves.
7
9
.
Contd Pom pa8e 12
'k
need valid justification, it can be argued that the criteria for dereservations will vary Rom area to area and
time to time? If every exercise of
[xjwer cannot be put into a strait-jacket of equality and reasonableness,
would it be wrong for the public to
infer that the judiciary has abdicated
its role under the Constitution?
d
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In an open society, public policy
must be formulated under the gaze of
a vigilant public, judiciary and political
opµMtion. The government must not
only be atxjve board, but must also
:
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be seen as such. If the plots were
:
dereserved bona /ide in the public in2¢ terest, why was the government so
,
.
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reluctant to part witb the list of plots?
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The LaWyers October 1989
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31
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PostM R. No.:
MH-BY-SOUTH-382
ADAALAT ANTICS
"b
Diwali Litigation
'
Eve7y year sees litigation specj/ic lo
Diwali around October in the
Supreme Count It? jun 'ime for
peopZ 'to eat "and eat and eat So we
Ue sugw petitbns and price Ntitions
each yew. Petitioners con4?laining that
sugar is not avaikbk in the nuvket at
controlled rates, iice not avaiLable in
adequate. quantities etc. etc. And they
are all grante4 as judges too are in a
festive mood around Diwalt
Diwali .for the Judges
Even' _DiwaLi sees bng queues of
Lauyers outside the· judges' cham.bers canying huge boxes of mithai and
other goodies. Gone are the dqys when
a greeting card would suNce. Now we
aLso have the rehrse phenomenon —
greeting car& sent by judges, on impressive govenimeM of ' India letterheads, to lcmyers. Here's wishing them
all a hapEy Diwalil But of course, only
some buSy buSy L&Nt$ get them The
~-judge naus has ceased to be a
one-w® a¶O and has become a noway uchange — ai least yisibk — at
Diwali time.
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reference to Justice Fatima Beevj he
"sqys she is a Sunni MusLim and a
won% whkh is whai qualgied her for
appoinlmenL That she is a Sunni Muslim is not her fault and that she is a
woman L¢ equally not her fauk So
sqyiRg that she was therefore appointe4
is to run her down as a judge. An
equauy derogatory reference is made to
a judge who happens to bebng to the
"scheduled castes.
It seems women and scheduled castes — forget scheduled tribes (none
haw -even. made it) will continue to
wew their badge Of servitude, no matter what thq do. For no matter which
woman was appoinle4 it would still be
said — she was a woman, thHefore
she was appointed
It is one thing to call for a more
open democratic method of appointing
judges, it is quite another to sekctivejy
bait individual judges for factors
bqyond theY conn·oL Ii is bad enough
that they start with handicaps of caste
and s« The sad fact is that thq are
discriminated against To run down ·the
occasional person who transcends these
handicaps is to do them a geat injustice.
sariZ She then reminded hihi that the
salww kumeez was as Indian as the
sari But he was not amused The
judge insisted that the true Indkn
woman btyer was alwqys clad in a
sari Nothing eke was good enough to
j
impress.
c-ad
.
So, lady ~c?ts, the neu time your
petition is Uwown olu just check back
and recollect what y)u were wewing
on Utat dqµ
The Commission Racket
NQ j,we are not referring to the
Bo ors commission, but another
.
h'nd of commission in court. A prac" ":b
tice has arisen in the DeLhi High COurt
of judges appointing local commissioners to record evidence or tO seiZe
documents or to.µuide over meetings
etc., in pending disputes.
"'
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It appears that everybody has his
favourites. There seems to be no basS
kr deciding who should be a commissioner. There are attractive pnce tags
attached to the appoinnnent — anything between R¢. 2a90 and Rs. 5,000
for each commission. Junior kmyers
Briej7ess Layyers
(God forbid seniors!)
compete
with
each other to get the maUmum number
The Ambulance Chasing Layyer
S uddenk; evayone in the Bombqy
High Court K sitting cooling their
heels in the h'brcuy. Why? Some of the
fastest judges are not available for
work The result, LaWyers have nothing
to do but sit around in the librtuy
While thq otherwise complain about
the whims and fancies of judges, thq
are now saying Lhat for' the business,
any judge is better than no judge!
News .has come that Melvin BeW
the fat cat tort lahyer who made
a bid to represent the victims of the
Bhopal tragedy in 1984, has recently
been convicted _and med $ .5,000 for
/iling a suit for damages_ lOr iniluy
caused by a jire, on ,be/ialf of a man
whO died 12 yem be/ore the /ire broke
out! So milch for the great American
Legal System which is supposed lO Well Dressed Woman Layyer
protect victihu of disaster in miLLt'on ·
dollar awwds. We wonder how many
millions he would have made for him- A young woman layyer, prope'jy
scg if he had been in on the Bhopal
dressed in a white and black salsuit! ' ·
wgt kameez with bLack jqcket and
. gown found herse(/ being told by a
j judge of the Supreme Court that she
How Nasty Can You Get?
P
. KuldeeP Nair, writing in the Indian
post onem his anajj'sis on why
. certaih people 'got appointed as judges
to the Suphme Court In an obviOuS "
"" Ml properk clad Amazed she
reminded the judge that as fw gls she
could tdL 90% of the women Lineyers
of appointments, picking up a neat bill
at the end of the mortt/j
with 4-5
comnussiou
Nobody knows why a judge choos"s
ji
a pankular jirm There is no list of 7
Layyers who could be in the paneL H
Sjat
we
somebody's favouMe, you
could get as many as y)u wanL Some
young ones suddenly /ihd then1selyes
appointed
chaihnen
of
Companies
where theTe are disputes. So" rush for
the new commission pmctice, bqj'ore
someone else gas it. .
P
Devil's Admuue
Atjydj
she knew· wore the salww kameez But
that was not a good enough answer.
»ompth said the judge: "a woman
must wear the proper Indian dress, a
uf
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Edite4 printed and published W Indira Jaising for the 'LaWers Collective, 8/8, Stock Erchange Towers, Dalal Sueeg Bombqy 400 023.
No&ced for the LLmy7s Collective W Sayajit B/iatkaL Typesetting by Nike Computcr Services, Tel: 266382 Printed by SBH Mailing
.sen?ices,?02_Ram_Nim Meyu* Road Bombqy 400 039, INDL4.
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