From LoC to LAC, armed forces given befitting replies to those challenging India’s sovereignty: PM Narendra Modi

Indian soldiers have given befitting reply to those who challenged the country’s sovereignty “from LoC to LAC”, Prime Minister Narendra Modi said on Saturday, in a subtle message to Pakistan and China.

In his seventh straight Independence Day speech from the ramparts of Red Fort, the prime minister said the country is fighting terrorism as well as expansionism with determination.

Asserting that the respect for India’s sovereignty is supreme and that the world has seen in Ladakh what India’s brave jawans can do to maintain this resolve, Modi said,”I salute all those brave soldiers from the Red Fort.”

“From LoC to LAC, anyone who casts an eye on the sovereignty of the country, the armed forces of the country have responded in the language they understand,” Modi said, adding the whole country is united in protecting the sovereignty of the country.

The prime minister’s comments came in the midst of India’s festering border row with China along the Line of Actual Control (LAC) and rising incidents of ceasefire violations along the Line of Control (LoC) with Pakistan.

Twenty Indian soldiers were killed in a violent clash with Chinese armies in Galwan Valley. The Chinese side also suffered casualties but it is yet to give out the details.

SC holds Prashant Bhushan guilty of contempt for tweets against judiciary

The Supreme Court on Friday held activist-lawyer Prashant Bhushan guilty of contempt for his two derogatory tweets against the judiciary.

A bench headed by Justice Arun Mishra said it would hear on August 20 the arguments on quantum of sentence to be awarded to Bhushan in the matter.

A contemnor can be punished with simple imprisonment for a term which may extend up to six months or with a fine of up to Rs 2,000 or with both.

The apex court had on August 5 reserved its verdict in the matter after Bhushan had defended his tweets, saying they were against the judges regarding their conduct in their personal capacity and they did not obstruct administration of justice.

On July 22, the top court had issued a show cause notice to Bhushan after initiating the criminal contempt against him after taking note of a petition.

While referring to the tweets by Bhushan, the apex court had earlier said these statements are prima facie capable of “undermining the dignity and authority” of the institution of the Supreme Court in general and the office of Chief Justice of India in particular, in the eyes of the public at large

Senior advocate Dushyant Dave, appearing for Bhushan in the matter, had said, The two tweets were not against the institution .

Bhushan has made immense contribution to the development of jurisprudence and there are at least 50 judgments to his credit , Dave had said, adding that the court has appreciated his contributions in cases like 2G scam, coal block allocation and in mining matters.

Referring to the ADM Jabalpur case on suspension of fundamental rights during the Emergency, the senior advocate had said that even extremely uncharitable remarks against the judges were made and no contempt proceedings were made out.

In a 142-page reply affidavit filed in the matter, Bhushan had stood by his two tweets and had said the expression of opinion, however outspoken, disagreeable or unpalatable to some , cannot constitute contempt of court.

Bhushan, in the affidavit, has referred to several apex court judgements, speeches of former and serving judges on contempt of court and the stifling of dissent in a democracy and his views on judicial actions in some cases.

Preventing citizens from demanding accountability and reforms and advocating for the same by generating public opinion is not a ‘reasonable restriction’, the affidavit had said, adding that the Article 129 cannot be pressed into service to stifle bonafide criticism.

Further hearing needed in 2009 contempt case against Prashant Bhushan and journalist Tarun Tejpal : SC

 The Supreme Court on Monday said further hearing was required in the 2009 criminal contempt case against activist-lawyer Prashant Bhushan and journalist Tarun Tejpal to examine whether comments on corruption against judges per se amounted to contempt or not.

A bench headed by Justice Arun Mishra and comprising justices B R Gavai and Krishna Murari posted the matter for hearing on August 17.

The top court had in November 2009 issued contempt notice to Bhushan and Tejpal for allegedly casting aspersions on some sitting and former top court judges in an interview to a news magazine. Tejpal was then editor of the magazine.

On August 4, the apex court had made clear to Bhushan and Tejpal that it would hear the case against them, if it does not accept their explanation” or “apology in the matter.

The apex court had on August 4 said that the court has not received the explanation/apology submitted by Bhushan and Tejpal so far and would pronounce its order on whether to accept them or not.

Explanation/apology submitted by Prashant Bhushan/Respondent No.1 and Tarun Tejpal/Respondent No.2, have not been received so far. In case we do not accept the explanation/apology, we will hear the matter. We reserve the order, the bench had said in its last week order.

During the brief hearing conducted through video-conferencing last week, the bench had said it does not want to curtail the freedom of speech and expression but for the contempt there is a thin line.

On July 22, the top court had issued notice to Bhushan in a separate suo motu contempt proceedings initiated against him for his alleged derogatory tweets against the judiciary, saying his statements prima facie “brought the administration of justice in disrepute”.

The apex court had on August 5 reserved its verdict on the contempt case against Bhushan.

Online courses on Cyber Psychology & Cyber crimes affecting children and teenagers from 3rd July 2020 by ISAC

Information Sharing and Analysis Center (ISAC) is India’s leading cyber security non-profit foundation and a Public-Private-Partner with NCIIPC, Government of India. Information Sharing and Analysis Center was setup in 2011,  is a registered not-for-profit foundation, focused on solving everyday cyber security challenges that impacts individuals and organizations at every stage of their growth using data analytics.
It  creates credible workforce for the Industry by means of unique capacity building programs. Its  mandate includes increasing information sharing among various agencies by creating straight forward platforms. ISAC conducts awareness programmes in Cyber Security specially focusing on the cyber crimes against kids in addition to many training programmes.

The Cyber Crime Intervention Officers’ (CCIO ) course is for parents, teachers, counsellors, lawyers, and LEAs to provide them with essential background on cyber crimes and cyber laws. The course lets one detect early signs of problems in school children and teenagers affected by their online activities and equipments for timely and decisive intervention.

On certification, one may volunteer to be part of the national network for cyber crime prevention, where the profile is shared with Law enforcement agencies and cyber crime cells across India. After the completion of the course, one will receive an ID card as shown above, which can be used while dealing with agencies and victims of cyber crimes.

One can become a part of the established network of existing Intervention Officers from across India, assisting law enforcement agencies in dealing with cyber crimes and their repercussions.

Details of the Online Course : 

Start Date: 3rd July 2020

Course Contents:

  • Children behaving abnormally online – case studies and lessons
  • Negative relationships online – How it impacts family
  • Social Isolation – offline and online issues
  • Low self-esteem and depression – tracking early signs online
  • The tendency for violence from online activities – how to spot the signs and prevent them
  • Internet Gaming Disorder– identifying addiction and other risks
  • Paedophiles online – How to protect children
  • Addiction – various types and what to do about them
  • Tech abuse – how to counsel children and parents
  • Sextortion, Cyber bullying and other online crimes – how to deal with it
  • Virtual girlfriends – how to tell if the children are involved
  • Cyberchondria – Medical self-diagnosis online and its risks
  • The Deep web – What is it
  • Criminal Propaganda – Steps to prevent it
  • Guiding victims affected by cyber crime
  • Tools and techniques to monitor children for online safety effectively
  • Fundamental IT Laws that every teacher and parent must know
  • Counselling victims of cyber crimes
  • Interacting and supporting cops and lawyers with cyber crime cases
  • Steps you can take to enhance cyber security awareness in schools

Further Details on:
Website : https://www.isac.io
One may use https://rzp.io/l/getccio to register and get 10% concession.

The Legal Stance of Online Casinos in India

India is one of the countries with archaic gambling and online gaming laws. Even with the world moving swiftly towards a more flexible viewpoint as regards games of skill, particularly casino games, India’s online gaming law is still very vague. It can even be called non-existent as the current government is not putting any efforts into the gambling laws.

While the confusion as to what type of gambling activity is legal continues in the country, it is quite obvious that Indians are in love with online gaming. According to recent stats published by ICSS (International Centre for Sports Security), the worth of the Indian betting market is over $130 billion. After going through this piece, do not forget to participate in legal online gambling in India at Lucky Dice.

Legality of Online Gambling in India

The outlook of the Indian government as regards online betting and gambling is still a grey area. About four sports were given total betting approval by the government, while the other sports of similar characters as the approved sports were not given any betting approvals. Sports like rummy and Horse racing are regarded as games of skill and are free to wager on but other games like poker and cricket as seen as games of luck and they are viewed differently by the Indian lawmakers.

One major grey area in the gaming laws of India is the Poker. It is very surprising that games like the Texas Hold’em and Teen Patti (flush) is prohibited while Rummy can be wagered on. It is even more surprising that horse racing is allowed to be wagered on due to its classification as a skill game, yet cricket betting is prohibited. Interestingly, both horse racing and cricket share the same skill set.

The days of Matka gaming are long gone in India. What you will find these days are only a few games to wager on. Betting on such games is also found in particular states. Presently lottery, online rummy, online poker, horse racing, and a few gaming platforms are legal in India.

 

The Different State Laws on Gambling in India

If you are a regular online game player in India, you will notice that states in India have their individual gambling laws, even with the existence of centralized Acts. So, why are there different gambling laws in different states in India? The answer to this question is quite straightforward; the constitution of India, particularly in the 7th schedule gives states the power to make regulations and policies as regards betting and gambling in their various states. This means that the 7th schedule gives states the power to legalize online gaming and gambling if they wish to do so.

All the state governments in India can enact gambling laws as well as regulate gaming activities in their individual states according to their discretion. In addition, the Central government is prohibited from intervening in the proceedings of any of the states. With the diversity in the tribes in India and twenty-nine different states, one can only think about how diverse the gambling laws will be. Up till this very moment, only thirteen states have legalized lotteries while the rest have enacted several laws prohibiting gambling. Amongst the states that have legalized gambling are Sikkim and Goa.

 

Casino Gaming In Goa

There have been two significant amendments to the Goa, Daman and Diu Public Gambling Act, 1976. The amendments to the law legalize different gambling games. According to the amendments, slot machines and electronic amusements are allowed in certain locations in the states. The games authorized include offshore gaming and several table games. As of 2011, Goa could boast of numerous offshore casinos and 7 land based casinos.

 

Casino Gaming in Sikkim

Another state that legalized gambling in India is Sikkim. It is in fact the second state to do that. According to the Sikkim Casino Games (Control and Tax Rules) 2002, the government of Sikkim has the power to grant gaming licenses to casino operators and online gaming platforms.

This is the first state to legalize internet gambling in India. Following the 2002 law, Sikkim started handing out licenses to online casino operators whose servers are within the state. The licenses issued by the state of Sikkim include sports betting, lottery and casino gaming. The belief is that when the gaming operators become fully operational in Sikkim, players from other states will be allowed to legally wager there. The laws regulating gambling in Sikkim has made betting giants like Betfair and WilliamHill to watch the Indian betting market with keen interest.

Democracy cannot function with judicial review not being there, it is an essential component of the constitution: – Shri KK Venugopal, Attorney General for India

Pradosh Shetty

After the grand success of “Dattopant Thengadi Lecture Series”, Akhil Bharatiya Adhivakta Parishad (ABAP) announced the commencement of its new online lecture series in the name of an eminent jurist and academician, Prof. N.R. Madhava Menon and the opening lecture of the series was delivered by Shri KK Venugopal (Attorney General for India and Senior Advocate) on “Contours of Judicial Review”

The Attorney General for India is known for not mincing words while talking about the judiciary and how it chooses to operate out of its constitutional purview, and contrary to its finding in various precedents. He, therefore, started his observation by noting, “Supreme Court has done a tremendous amount of work. It has practically tried to wipe away tears from the eyes of the poor… At the same time, it has, in many cases, according to me, exercised powers which can never be termed as judicial adjudication or even within the bounds of judicial activism.”

Mr. Venugopal then began tracing the confrontations of the judiciary with the other branches like the executive and the legislature dating back to the 1950s when the said the government chose to strike down land reform laws on a “strict and liberal interpretation of the constitution”.

He referred to how the Golaknath Case acts as a cornerstone for judicial review and noted the observations made in it, that article 368 of the Indian Constitution cannot be used for amending the constitution. So, when the parliament made certain amendments, it looked as if the court had bowed down to the whims of the parliament.

However, in 1973, a 13-judge bench judgment, with 7-6 Majority in Kesavananda Bharati case, declared that the basic structure is immutable and if amendments are made to the constitution which sought to cripple the basic structure, the court would have no choice but to intervene and strike down the said amendment.

He then went on to mention how Alexander Bickel had described the Supreme court of the USA as the least dangerous branch. However, in Ld. Attorney General’s opinion, he would describe the Indian Supreme Court as “the most powerful branch as they can sit in judgments for the other two branches and have the power to strike down their laws and directions.”

Mr. Venugopal mentioned that the source of vast powers of judicial review was Articles 32, 142, and 226 of the Indian Constitution and further reflected upon the present status of Public Interest Litigation (PIL) in India. He remarked, “Today we find, during the time of COVID-19, the cases that are filed, I mean.. transport all the migrants from one part of the country to another. Unless you have an Aladdin’s lamp and rub it, you cannot suddenly transport. Is it not part of policymaking? … One’s heart is pained at the fate (of the migrants) but the Government is doing whatever is necessary for that purpose.”

He noted that there is a need for the judiciary to exercise restraint, and the concept of constitutional morality which is being used as the new go-to weapon in the armoury of judicial review, should be relooked into. He remarked that Sabarimala case acts as a perfect example where two different judges (J. Chandrachud and J. Indu Malhotra) had concluded with two different views using the same tool of “Constitutional Morality”.

Whilst a question was asked in the context of the trend, whether the idea of Judicial Activism promotes the idea of “Anti-Democracy”. He quipped; “Democracy cannot function with judicial review not being there, it is an essential component of the constitution”.

He went on to add that in separation of powers, which play an important role, none of the branches are more powerful than the other. However, the judiciary is the final interpreter of the constitution and in practice, the power given to them is to test the validity of the law created by the parliament.

Whilst talking about the Judges not being elected persons, he remarked that irrespective of that notion“the quality, integrity, and knowledge should be of the highest quality for the judges at the Supreme Court.”

Mr. Venugopal concluded the lecture noting that “the Bar Council of India should ensure that all law schools in India should be at par with the National Law Schools when it comes to quality and opportunities.”

Mr. Purushaindra Kaurav, the Advocate General of Madhya Pradesh, after the completion of the lecture, tweeted; “Adhivakta Parishad has taken a very useful initiative of online lectures by eminent speakers in the field of law. Today we must hear the highest law officer of the country i.e. Shri K.K Venugopal who is the direct or indirect mentor of many of us like me.”

This demonstrates how Mr. KK. Venugopal has unequivocally touched upon the lives of every lawyer in the country with his nuanced knowledge and contribution to the field of law with his top-notch courtcraft techniques.

This being a lecture series dedicated to Prof. N.R. Madhava Menon, Prof Anirban Mazumder & Prof Shameek Sen of NUJS Kolkata, who had the good fortune of working with Prof. NR Madhava Menon and having been his students, made these thoughtful & heartfelt comments about their mentor during the lecture.

“While Prof. Menon’s most significant contribution has been universally acknowledged to be towards the reformation of legal education and its pedagogy, I will humbly like to flag his most telling contribution to my own life. Having been his student, I have had the privilege of learning my greatest life lesson, “Think like a lawyer, speak like a lawyer”. When the entire world is getting devoured and swayed by the scourge of misinformation and the systematic loss of analytical abilities and critical thinking is conjuring them into believing in the hyper-real and the componential, Prof. Menon’s prophetic words find a constant resonance inside me. As an academic, I definitely try to keep THAT flame of independent thinking alive in me.” – Prof. Shameek Sen, WBNUJS.

“Prof. Menon was an institution in himself, he single-handedly changed the landscape of legal education in India. Whatever little NUJS has achieved, undoubtedly, the credit goes to him” – Prof. Anirban Majumdar, NUJS

The entire lecture can be viewed on YouTube here-

 

Pradosh Shetty is a 5th year Law Student at Symbiosis Law School, Hyderabad.

Online Lecture Series : Dattopant Thengadi Lecture Series

In order to utilize this lockdown period and for the benefit of lawyers, our organization is organizing an ‘Online Lecture Series’ in the name of ‘Dattopant Thengadi Lecture Series’ wherein a Senior Advocate, ASG or a Prominent Legal Personality share his views on a given subject/topic.

In this Lecture Series till now we have organized 10 lectures which have been broadcasted live on Social Media Platforms. The timing of live lecture remains by 6.00 PM on daily basis from Monday to Saturday. Presently we are having more than 8,000 subscribers on YouTube.

Mr. Rakesh Dwivedi, Senior Advocate, Mr. Siddharth Luthra, Senior Advocate, Mr. K.V. Vishvanathan, Senior Advocate, Mr. Sajan Poovyya, Senior Advocate, Ms. Pinki Anand, ASG, Mr. R. Venkatramani, Senior Advocated, Mr. Vikramjit Banerjee, ASG and Ms. Aishwarya Bhati, Senior Adv etc have enlighten the thousands of lawyers with their views on the different topics on the platform of Adhivakta Parishad in this ‘Dattopant Thengadi Lecture Series.

In the furthereance, of present ‘Lecture Series’ today, i.e. on 01.05.2020 Mr. C.S. Vaidhyanathan, Sr. Advocate will be sharing his views @ 6.00 PM on the topic of ‘Dispute Resolution as a Service and the New Normal’, and same will be broadcasted live on YouTube, Facebook and for tomorrow Mr. Harish Salve, Senior Advocate will be sharing his views.

Chasm with The President Jair Bolsonaro leads to dismissal of Health Minister.

 

Vanshika Jain

At a time when the health care centres are at verge of collapsing in Brazil, the ventilators and beds in the emergency room of Amazona are over 95 percent occupied, the renowned soccer stadium of Rio De Janerio has been converted temporarily into a hospital, the gravediggers of the largest country of South America are working overtime to bury the dead bodies, the corona virus mark has surpassed 30,000 in the country. Amid this Jair Bolsonaro, President of Brazil has frequently downplayed the severity of the global epidemic.

He advised that corona virus is just a “little flu” and the measures taken by the Health Ministry to curb it are unnecessary and economically harmful. Furthermore he said the outbreak is being blown out of proportion, insisting that economy should come into normality.

Yesterday Bolsonaro dismissed Mandetta, the Health minister of Brazil who from being an unsung minister in the cabinet became the most popular minster of Brazil due to the good work which the Health Ministry was doing to contain the pandemic in the country.

It is speculated that this decision came after the health minster criticized the President on a popular news show for refusing to obey the social distancing guidelines laid down by the Health Ministry.

This decision of banning Mandetta did now go well with the Brazilians as they came out of their windows banging pots and pans. Following this many ministers resigned from their post as a sign of protest.

The health ministry’s response in containing the epidemic was rated “good” or “great” by 76 percent of Brazilians, this data was submitted by Pollster Datafolha.

On several occasions Bolsonarao was seen not following the guidelines of World Health Organization and the Health Ministry of his own country. One of the occasions being, last week he visited a hospital with Mandetta, walked into the crowd, took off his mask and extended his hand for a supporter to kiss and autographed jerseys thus openly disobeying the social distancing guidelines

Naom Chomsky, an American linguistic said,” Bolsonarao competes with Trump to be the worst criminal on the planet.”

From the above instances it is clear that the President of Brazil is not acting as a responsible leader. He is not letting the Health Ministry do it’s work by meddling in between thus compromising the life’s of people of it’s nation for which he should be held accountable.

NCLAT exonerated the present Board of 63 moons of all the baseless allegations of oppression and mismanagement.

It is the right time to celebrate the big win for 63 moons as the National Company Law Appellate Tribunal, has dismissed the plea of the Ministry of Corporate Affairs (MCA) to supersede the Board of 63 moons technologies limited (formerly known as FTIL) under Section 397 of the Companies Act, 1956. The present 63 moons Board comprises of 4 former Secretaries IAS (Retd.), 1 former Supreme Court Judge, 1 former Bombay High Court Judge, 1 CA, 1 IIM-A Alumni, 1 noted Economist and 2 former Senior Bankers.

NCLAT has completely exonerated the present Board of 63 moons of all the baseless allegations of oppression and mismanagement.

On this occasion Mr. S. Rajendran, who is MD & CEO of 63 moons stated that “We are extremely happy to note that NCLAT has rejected MCA’s prayer to supersede the Board of 63 moons in connection with the payment default crisis that occurred at one of our subsidiaries, National Spot Exchange Ltd (NSEL) in 2013. The order has also given a clean chit to the current Board of 63 moons of any alleged misconduct or wrongdoing against the interest of its shareholders.”

Mr. Rajendran was shocked and surprised at NCLAT upholding the NCLT Chennai’s order on Section 388B and such sections against some of the past directors of 63 moons who were not even on the Board of NSEL i.e. Mr. Manjay Shah and Mr. Dewang Neralla. And strangely in case of Mr. Jignesh Shah, Section 388B was applied on the basis of material beyond the original petition filed by MCA in 2015. Shockingly, out of the three directors of 63 moons, only Mr. Jignesh Shah was on Board of NSEL and no Section 397 proceedings are initiated against NSEL nor any Section 388B is upheld against any other directors of NSEL including other directors of 63 moons who were also on NSEL Board. This complete contradiction is one of the many unexplained & unsubstantiated inconsistencies in the Order.

The NSEL payment crisis, occurred because of a well-crafted political conspiracy during UPA 2 era. It was due to continued targeting of Mr. Jignesh Shah which started in the earlier UPA Govt. by a powerful minister and his network of loyal bureaucrats, who failed in their duty and misled the Govt. for many such industry negative actions.

At this occasion Mr Rajendran stated that,“The operational part of judgement is being examined and all necessary steps will be taken as per the legal advice. We are very sure that ultimately truth shall prevail & justice will be done.”

 

Muslim Women (Protection of Rights on Divorce) Act 1986

Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.
Parliament, with its supposed omniscience in law, may, in its professed omnipotence enact legislations to undo and set at naught the effect of any judicial decision of the Supreme Court or any other Court, however good and conducive to the welfare of the people that decision may be. But to borrow from Shakespeare, while it may be good to have giant’s power, it may not at all be good to use the same as a giant.

It is now well-settled, since the celebrated decision of the Supreme Court in Olga Tellis,“ that right to life and personal liberty guaranteed under Art. 21 of the Constitution includes the right to livelihood. Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.

It is also equally well-settled, since the decisions of the Supreme Court in Maneka Gandhi and in Olga Tellis, that no one, obviously including a Muslim divorced woman, can be deprived of the right to life or livelihood except by the procedure established by law, which must be reasonable, right, just and fair.

Would the provisions of the Muslim Women (Protection of Righs on Divorce) Act of 1986, which apparently seeks to deprive a divorced Muslim woman of such right to maintenance from her former husband, and providing for maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run after her own relatives one after the other and then ultimately to knock at the door of the Wakf Board, at all appear to be reasonable and to be a fair substitute for the provisions of Chapter IX of the Code of Criminal Procedure? To put it in other words, whether deprivation of the Muslim divorced woman of her right to maintenance under the beneficial provisions of Chapter IX of the Code of Criminal Procedure, which are otherwise available to all other women in India, has been effected by a reasonable, right, just and a fair piece of law as enacted in the Muslim Women (Protection of Rights on Divorce) Act of 1986?

And if these provisions are much less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a Muslim divorced woman has obviously been unreasonably discriminated and driven out from the protection of the benign provisions of the general law as enacted in Chapter IX of the Code of Criminal Procedure, which are available to a Hindu, Buddhist, ]ain, Parsee or Christian woman or a woman belonging to any other community.

Now except for the protection afforded by Art. 25(1) the provisions are patently violative of Art. 14 of the Constitution mandating equality

before and equal protection of laws to all persons otherwise similarly circumstanced, and also violative of Art. 15(1) of the Constitution which forbids any discrimination on the ground of religion, as the Muslim Women (Protection of Rights on Divorce) Act of 1986 would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. This criticism has been accepted (almost verbatim) by the Supreme Court in Danial Latifi v Union of India.

 

Danial Latifi v Union of India
The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged in Danial Latifi.

A Constitutional Bench of five judges speaking through Rajendra Babu, ] noted that the purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat, and thereby to reverse the decision in Shah Bano, but ironically the enactment actually codifies the very rationale contained in Drmial Latzfi.

At the outset the court noted that the Act in terms does not apply to a Muslim woman whose marriage is solemnised either under the Special Marriage Act 1954 or a Muslim woman whose marriage was dissolved either under the Divorce Act 1869 or the Special Marriage Act 1954 nor to the deserted and separated Muslim wives.

It was also made clear that to find out the personal law of Muslims with regard to divorced women’s rights, the starting point should be Shall Bano case and not the original texts or any other material all the more so when varying versions as to the authenticitv of the source are shown to exist.

The court held that if the provisions of the 1986 Act were read as less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law which are available to Hindu, Buddhist, ]ain, Parsi or Christian women or women belonging to any other community. The provisions would then be violative of Art. 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Art. 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion”.2° To avoid this result the court interpreted the Act by reading its provisions in a manner which would make it compatible with constitutional principles.

Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986 were the principal sections, under attack before the court. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled inter ailia to a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband”. Section 4 provides that as long as the divorced woman has not remarried and is unable to maintain herself after the iddat period the Magistrate may order such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and lair maintenance to her; if they do not have the means then other relatives who do have the means and failing them the State Wakf Board.

The constitutional validity of these two sections was upheld through a process of ingenious interpretation. The court found first that the wordings of s. 3 of the Act indicated that the husband has two separate and distinct obligations:
(1) to make a “reasonable and fair provision” for his divorced wife; and (2) to provide “maintenance” for her?‘ Second it was held that the word “provision” in s. 3(1)(a) of the Act incorporates “mata” as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period. Third it found that the emphasis of s. 4 is not on the nature or duration of any such “provision” or “maintenance”, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, “within the iddat period”.

Fourth, “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it”.

It would therefore ”extend to the whole life of the divorced wife unless she gets married for a second time”.3 Fifth, the court held “Section 4 of the Act refers only to payment of ‘maintenance’ and does not touch upon the ’provision’ to be made by the husband referred to in s. 3(1)(a) of the Act.”4 Consequently the right to have a fair and reasonable provision in her favour is a right enforceable against the woman’s former husband in addition to what he is obliged to pay as “maintenance” and so “there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman”. Finally it was held “what could be earlier granted by a Magistrate under 5. 125, CrPC would now be granted under the very Act itself This being the position, the Act cannot be held to be unconstitutional”.

Unfortunately, the court ignored the provisions of Art. 25 and its impact on personal laws for arriving at the same conclusion. It is arguable that the State is limited by Art. 25(2) to enact legislation to amend personal laws only for “social welfare and reform”. Further the legislation so enacted must be in compliance with fundamental rights.

Gajendragadkar, J. in Narasu Appa Mali, had said that the State Legislature can take gradual steps for social welfare and reform but cannot introduce distinctions or classifications which are unreasonable, irrational or oppressive. Since the 1986 Act is certainly neither a measure for “social welfare and reform” under Art. 25(1) nor a measure in compliance with the principle so enunciated, it is unconstitutional.

The decision although it reaffirmed Shah Bano, strangely did not cause any protest and is now the accepted as the authority for the proposition that that the powers and jurisdiction of a Magistrate under the 1986 Act are co-extensive with the those under s. 125 of the Code of Criminal
Procedure as far as a Muslim divorced woman’s right to
maintenance is concerned.

Even prior to Danial Latifi’s case the Supreme Court had already tempered the impact of s. 4 which provides for the right of a divorced woman to claim maintenance sequentially against various relatives and ultimately against the State Wakf Board, by directing that “she would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations aforementioned, maintaining her and directing her claim against the State Wakf Board in
the first instance” .

At present, as a result of the decision in Danial Latifi, according to some High Courts9 the Muslim divorced wife has higher rights than her counter parts in other religions.

Like other divorced wives under Section 125, CrPC, she can get monthly maintenance under s. 3 of the Act provided she is unable to maintain herself. Even when she is able to maintain herself and is even a millionairess, she can get the capitalised payment of amounts under s. 3 of the Act which other divorced wives cannot. Again while the remarriage puts an end to the claim of other divorced wives, the Muslim divorced wife on re-marriage can keep the capitalised amount with herself with no liability to return the same. Thus viewed from any angle, the Muslim divorced wife under her personal

law (i.e. the Act) has larger and superior rights than what her counter parts of other religions have under s. 125 of the Code”.

The Act, however, does not in any way affect the rights of the Muslim children to claim maintenance from the father and the provisions of Chapter IX of the Code of Criminal Procedure can obviously be invoked by or on behalf of such children. Section 3(1)(b) of the Act, no doubt, provides that a divorced women shall be entitled to, where she herself maintains the children born to her before or after divorce a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children. But as has been held,“ and rightly too, the right under s. 3(])(b) is a right of the divorced woman hersclfand is incidental to the divorce and the said provisions can in no way affect the operation of the provisions of Chapter IX providing maintenance for minor children.