Devastating Effect Of The Domestic Violence Act 2005

Since ages the social status of women has remained pitiful and worrisome. The stance of the society towards feminine gender was not as broad as today. They were the victims of dominance in the hands of their husbands and in-laws, unfortunately the women had no other choice but to accept the enormity as their fate and sanction the ambush done daily on their dignity without any condemnation.

Many tolerated the same as fortune and the rest who came forward to report had to step back due to lack of concrete provisions in law and improper legislation or had to face the gravest aftermaths of their attempt which at times may cost them their life! In order to provide effective protection of rights to women who were victims of violence of any kind occurring within the family, the Protection of Women and Children from Domestic Violence Act 2005[i] enacted as a step towards providing women with tangible legal protection.

The said enactment was in concurrence with the situation and social status of women then, however, the situation at present is not as same as before in fact has reversed, progress of mankind always shows the other side of the coin which is both negative as well as positive. The improved status of women in society and the rising awareness about the rights and privileges available is no doubt a great social change but is accompanied by the excessive bloody wisdom; due to the laws being completely inclined towards women, women find it irresistible to misuse and take the undue advantage of law.

As a result women use the given legal protection as a weapon against men and harass them by taking disadvantage of the prevailing laws. The author in this article has tried to highlight the devastating effect of the misuse of the provions by the women which are enacted for the welfare of women.

The Act at the inception proved to be very fruitful; women audaciously came forward and reported the violence that they suffered. Also, women were made more aware about their rights and the legal remedy that they could avail at the time of adversaries; they also became aware about how they could safeguard themselves as they started acquiring more and more education eventually giving them a better platform for better world exposure.

But as rightly said all power tends to corrupt and absolute power corrupts absolutely, the intention of the legislature entered demeaning stage when recently more of false cases were reported. In the recent time women started creating havoc by using the act as a tool or weapon to harass and blackmail men by registering false complaints against husband and his relatives with the alternate motive of extracting money.

Unfortunately the present law being gender specific there is no law to protect men [ii] from such melancholy, being a patriarchal and male dominated society the husband is left with very limited defences, the only remedy a man can avail at such time is either to defend the case and wait till the final judgement comes or file a concrete case against wife and prove her wrong. Mostly, the former remedy is the only one that can be adopted as the later one may get the husband into many complexities.

The primary intention of the legislature behind enacting gender specific law was to empower women and bring them at par with their male counter parts however, the law has not absolutely accomplished the objective of the legislature due to the presence of imperfections in it which in turned has become temptation for women to victimise themselves.

The most notable flaw in the act is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to husband and his relatives and will file frivolous and false cases [iii] taking apt advantage of absence of any laws to protect men. The most prominent drawback of the act is that the definition[iv] of  domestic violence  is as stated in the act is very much ambiguous in nature.

The definition of  domestic violence  varies, depending on the context in which it is used. The meaning and interpretation of  violence  may vary from one instance to another. The same may be defined differently in medical, legal, political or social contexts. Though traditionally the definition of domestic violence is associated with physical violence yet the same is defined variedly in different parts of the world. For instance Merriam-Webster dictionary defines domestic violence as  the inflicting of physical injury by one family or household member on another also a repeated habitual pattern of such behaviour [v].

For instance the act includes  insults  and  jibes  under the definition of  verbal and emotional abuse . It might in some cases, be extended to mere domestic quarrels that were not intended to fall under the definition of mental and verbal abuse[vi]. Also, it is pertinent to note that unfortunately according to Domestic Violence Act, 2005 the aggrieved party is always  any women . Man does not come within the ambit of such definition.

Further, the  respondent  under the definition means any  adult male person , which means a complaint cannot be directed against women. However, it is not mandatory that the violence shall always be caused by the man on women.

In the matter of Dr N.G Dastane v/s Mrs S Dastane [vii] the Hon’ble Supreme Court held that the cruelty is of two types one is mental the other is physical. It might be true that physical is generally being perpetuated by the husband being a strong one but at the same time this can’t be said to be universally true. It is also vice versa in case of mental cruelty to the husband.

The term cruelty thus have a wider connotation and the term can be interpreted contingently as a consideration of those occurring which are yet to occur and which may not even occur. Women to book the husband falsely may interpret the term in the most dangerous way. Thus it is very pertinent to note that though the act has defined the term  domestic violence  albeit in a vague manner yet the concept of cruelty cannot specify for females only.

Another notable flaw is that the Magistrate is empowered to pass protection order[viii] which means that the magistrate can take measures to protect the women from any acts of violence that are even likely to take place in the future. The act further says that the complaint can be filed by any person other than the aggrieved person who has reason to believe that the violence has taken place. The act has certainly given women with too many rights under one roof.

The powers and discretion of the judicial officers too are wider in nature. The foremost action what court takes after receiving complaints of domestic violence is initiating the order of  stop violence order  or  Protection order  against the respondent. The intention of this order is to give a space free from violence to women facing domestic violence. It is in nature meant to be emergency law. If the respondent is disturbing the aggrieved in peaceful living in a shared household, the residence order [ix] which is in it a dangerous immunity conferred upon the women.

The another treacherous provision yet justified by the law is that the interim custody of the child also can be given to the aggrieved which puts the respondent in the fear as the visitation rights can also be denied in the  custody order . [x]

The prominent protection that gives wings to the ill-intentions of women is  monetary protection . Earlier, the genuine reason why women never raised their voice against their sufferings because they were economically dependent on their husband however, the condition is not the same now. Women too are educated and are economically self-reliant and at times are seen having more income than their male counter parts. The one who are indeed economically independent too harass their husbands by asking monetary reliefs by availing the benefit as provided under section 20(1) of the act. The women can avail the monetary relief, when the court is of the opinion to grant compensation to the victim for damages for injuries  compensation order  is issued.

The victim of domestic violence is also protected with monetary relief and the remedy to victim under any other civil or criminal court is not barred. In addition to this and exclusive of other provisions of law the jurisdiction of the magistrate to grant maintenance allowance is governed by section 125 of CrPC impliedly mandatory provision for maintenance and monetary relief was absolutely not required. The women who earn well also are seen taking undue advantage of the same on some or the other pretext.

The provision only tends to create multiplicity of proceedings and consequences which could be grossly unfair to both the parties. However, it is only the Hindu Marriage Act 1955 and Parsi Marriage and Divorce Act 1936 which specifically provides the relief of maintenance to both husbands as well as to wives at par [xi].

Domestic violence is extremely complex and to report the same as what is happened is even more complex. The violence takes place within the four walls of the house and no one else can aptly state it other than the one who suffered it specifically in the country like India where there are no specific laws for the protection of men.

There are many laws for the protection of women Dowry Prohibition Act, Section 498A in Indian Penal Code i.e offense of cruelty by husband and relatives of husband, Section 125 in Code of Criminal Procedure Code i.e maintenance for wife protection of women from protection of Domestic Violence, whereas there is no provision like 125A in Criminal Procedure Code or 498 B in Indian Penal Code.

The specific laws are misused by women and are accompanied by the failure in the investigation mechanism. Courts too are not diligent while pronouncing orders and often fail to apply their minds. Nobody addresses the grievances of husbands and his relatives not even the society. The practice says real purpose of the women related specific laws are misused and thereby husband suffer for no fault[xii].

In Vijayalakshmi v. Punjab University[xiii] it was held that as a result of joint operation of Article (15) and (3), the state may discriminate in favour of women against men but it may not discriminate in favour of men against women. Wherein is known that protection against domestic violence is a civil right it cannot be forgotten that its misuse cannot be taken lightly [xiv].

The other view on the other hand argues that social problems if remedied by force may lead to stronger reactions from the respondents, which in the end may be detrimental to the existence of society itself [xv].

It is absolutely true that to keep a check on men some stringent measures are necessary but this needed to be brought about not by adding more and more laws in the statute books with ill-advised measures but through proper enforcement of legal frame-work. Due to few false cases all the genuine cases too loose the gravity of being real and true and at times may be neglected.

The false reports puts the society into a perplexing condition wherein to believe or not to believe becomes the question. There are true cases where women are trapped in atrocious marriage and brutal household environment; they suffer in the hands of their husbands and in-laws.

Even the most educated and dignified people commit the offence of Domestic violence and even the qualified and well behaved women become the victim of Domestic Violence, many women are victims of sexual harassments and marital rapes which may lose spotlight if constantly women would report those crimes which never took place. Thus, in reality it is not only the law but also the inappropriate implementation of law which is responsible for the critical imbalance as what is seen today in the society.

Thus, the Police authorities too should be alert and diligent enough while registering the complaints while taking initial action and while doing further investigation they must once check the veracity of the crime instead of merely following the protocol. The Courts too should bound themselves with a responsibility of delivering decisions which would be based on applicability of their prudent minds and not by any stereotypical mind-set. It is true that the world is changing speedily and so does the social status of women but how many of the women do actually get literate to empower themselves is a biggest question having the most subjective answer.

Today we see women talking about the so called gender equality, we see their aspiration to pursue all what is being pursued by their male counterparts, we see women talking of the independence and freedom, but how many of them do practice it in reality? In a country like India, unlike other religions marriage is sacrament but considering the present situation importance of the institution of marriage is diminishing which consequently is disturbing the culture of family, the one who suffers the most is children in such families.

Conclusion:
The present law needs a rational approach and shall go through a revision. The society changes at particular intervals and that the laws shall commiserate with the change. Bringing into force more and more laws is not the solution but implementing the already existing ones is what is required. Everyone right from the investigating authorities till the courts where justice is sought shall play their role diligently and try to strike a balance in society only then the misuse of law will not take place.

End-Notes

  1. To be referred to as  the Act  throughout the article.
  2. Section 2 (a) of the act provides the definition for aggrieved person which is  aggrieved person  means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent; the definition clearly indicates that the act provides specifically to women.
  3. John Enrich Edward Dalberg Available at http://www.goodreads.com/quotes/814115-absolute-power-corrupts-absolutely
  4. Section 3 of domestic Violence Act defines  Domestic Violence
  5. Available at http://www.meriam-webster.com/dictionary/violence.
  6. Gosh & Choudhari, pg 323
  7. AIR 1975 SC 1534
  8. Section 18 of PWDVA 2005
  9. Section 19 of PWDVA 2005which retrains the husband from disposing of property or disturbing the possession of shared household, irrespective of her legal inequitable interest in it.
  10. Section 21 of PWDA 2005, the protection provided in the said section should be given diligently by the judicial authorities. Due to this there are chances of future of child getting affected.
  11. Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient for his or her support and necessary expenses of the proceedings pending under the Act Under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim expenses where the proceeding is pending under the Act
  12. P.K Das, law relating to cruelty to husband (2008) P.1
  13. AIR 2004 SC 3946
  14. http//:criticalanalysisof domesticviolenceLawinsection
  15. IOSR Journal of Humanities and Social Science(IOSR-JHSS) Volume10, ISSUE 2 (Mar-Apr 2013), PP41-44 e-ISSN:2279-0837, P-ISSN:2279-0845

First Information Report (FIR) : Know more

The first information report means an information recorded by a police officer on duty given either by the aggrieved person or any other person to the commission of an alleged offence. On the basis of first information report, the police commences its investigation. Section 154 of the Code of Criminal Procedure, 1973 defines as to what amounts to first information.

The said section reads as under:-

154. Information in cognizable cases

  1. Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
  2. A copy of the information as recorded under sub-section
    (i) shall be given forthwith, free of cost, to the informant.
  3. Any person aggrieved by a refusal on the part of an officer-
    in-charge of police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post to the Superintendent of Police concerned, who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence.


The provision in section 154 regarding the reduction of oral statement to writing and obtaining signature of the informant to it, is for the purpose of discouraging irresponsible statement about criminal offences by fixing the informant with the responsibility for the statement he makes.

Refusal by the informant to sign the first information is an offence punishable under section 180 of the Indian Penal Code. The absence of signatures on the first information report by the informant, however, is not necessary to the extent that it will vitiate and nullify such report. The first information is still admissible in evidence.

In order to constitute an FIR in terms of section 154 of the Code. of Criminal Procedure, 1973 two conditions are to be fulfiUed:-
(a) what is conveyed must be an information; and
(b) that information should relate to the commission of a cognizable offence on the face of it.

In other words, FIR is only a complaint to set the affairs of law and order in motion and it is only at the investigation stage that all the details can be gathered. In one of the judgments, the Madhya Pradesh High Court observed that the report of the crime which is persuading the police machinery towards starting investigation is FIR, subsequent reports are/were written, they are not hit under section 161 of the Code of Criminal Procedure, 1973 and cannot be treated as such.

Who can File an FIR?

First Information Report (FIR) can be filed by any person. He need not necessarily be the victim or the injured or an eye-witness. First Information Report may be merely hearsay and need not necessarily be given by the person who has first hand knowledge of the facts.

Where to File an FIR?

An FIR can be filed in the police station of the concerned area in whose jurisdiction the offence has occurred. A first are to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty person.

Its secondary though equally important object is to obtain early information of an alleged criminal activity and to record the circumstances before the trial, lest such circumstances are forgotten or embellished.

Why FIR should be filed promptly

This is the golden principle of law prescribed in the Code of Criminal Procedure, 1973 that the First Information Report should always be filed promptly and without wasting any time. Such type of report gains the maximum credibility and is always welcome and appreciated by the courts.

According to Supreme Court the FIR recorded promptly before the time afforded to embellish or do away with the evidence is useful. It eliminates the possible chance of giving rise to suspicion.

Is there time duration fixed for Filing an FIR?

We have already emphasized this fact that as far as possible and practicable, every FIR should invariably be filed promptly, expeditiously and without wasting any time. There may be circumstances where some concession of time must be given in filing the FIR But there must be cogent reasons for reasonable delay in filing the FIR under the compelling circumstances. Judges with lot of wisdom and experience can use their discretion judiciously and in the interest of justice in each and every case. However, no possible duration of time can be fixed for applying the test of reasonableness to the lodging of an FIR as we have already explained. It depends upon facts and circumstances of each case. The delay in lodging the FIR as such is not fatal in law if the prosecution substantiated the factual difficulties encountered by the persons lodging the report.

Following are the reports or statements which do not amount to be an FIR:

  1. A report or a statement recorded after the commencement of the investigation (sections 162 and 163 of the Code of Criminal Procedure, 1973).
  2. Reports not recorded immediately but after questioning of witnesses.
  3. Reports recorded after several days of developments.
  4. Information not about occurrence of cognizable offence but only cryptic message in the form of an appeal for immediate help.
  5. Complaint to the Magistrate.
  6. Information to beat house.
  7. Information to the Magistrate or police officer on phone.
  8. Information received at police station prior to the lodging of an F.LR.

It was held in Damodar v. State of Rajasthan, AIR 2003 SC 4414: 2003 AIR SCW 5050: 2003 (4) RCR (Cri) 355 (SC) that if the information was conveyed to police on telephone and DO entry was made, it will not constitute an FIR even if the information disclosed commission of cognizable offence.

SC Directs States To Issue Notifications For Establishing Gram Nyayalayas Within Four Weeks

It is a matter of profound significance with far reaching implications that the Supreme Court just recently on January 29, 2020 in a notable judgment titled National Federation Of Societies For Fast Justice & Anr. Vs. Union of India & Ors. In Writ Petition(s) (Civil) No(s). 1067/2019 has directed the States which have not yet issued Notifications for establishing the Gram Nyayalayas to issue the same within four weeks. The Bench of Apex Court which delivered this notable judgment comprised of Justice NV Ramana, Justice Sanjiv Khanna and Justice Krishna Murari. It was considering a PIL filed by National Federation Of Societies For Fast Justice.

To start with, it is first and foremost observed in the opening para that, “At the commencement of hearing, Mr. Prashant Bhushan, learned counsel appearing on behalf of the petitioners has placed before us State-wise Administrative Units Information in tabular form, showing the steps taken by various States for establishing and functioning of Gram Nyayalayas under the Gram Nyayalayas Act, 2008.”

Going forward, the ball is then set rolling in the next para which states that, “Learned counsel for the petitioners submit that the State of Goa has issued Notification for establishing 2 Gram Nyayalayas under the Gram Nyayalayas Act, 2008 but none are functioning there; the State of Haryana has issued Notification for establishing 3 Gram Nyayalayas but only 2 are functioning; the State of Jharkhand has issued Notification for establishing 6 Gram Nyayalayas but only 1 is functioning there; the State of Karnataka has issued Notification for establishing 2 Gram Nyayalayas but none are functioning; the State of Kerala has issued Notification for establishing 30 Gram Nyayalayas and all are functioning there whereas the State had to establish 152 Gram Nyayalayas; the State of Madhya Pradesh has issued Notification for establishing 89 Gram Nyayalayas out of which 87 are functioning; the State of Maharashtra has issued Notification for establishing 25 Gram Nyayalayas out of which 23 are functioning whereas the State had to establish 351 Gram Nyayalayas; the State of Odisha has issued Notification for establishing 22 Gram Nyayalayas out of which 16 are functioning; the State of Punjab has issued Notification for establishing 2 Gram Nyayalayas, both of which are functioning; the State of Rajasthan has issued Notification for establishing 45 Gram Nyayalayas and all the 45 are functioning there and the State of Uttar Pradesh has issued Notification for establishing 113 Gram Nyayalayas out of which only 14 are functioning, whereas the State had to establish 822 Gram Nyayalayas.”

Going further ahead, it is then pointed out that, “Vide order dated 18.10.2019, this Court had directed various States to file their affidavits before 18.12.2019.”

To be sure, it is then revealed that, “Today, during the course of hearing, we have come to know that some of the States, such as the States of Chhattisgarh, Gujarat, Haryana, Telangana, West Bengal, Uttarakhand and Odisha have not yet filed their affidavits.”

Be it noted, the Bench then holds that, “We direct the aforementioned States to file their affidavits within one week from today, subject to deposit of Rs. 1,00,000/- (Rupees one lakh) by each of the above-mentioned States with the Registrar (Judicial) of the Supreme Court, who shall keep the same in a separate head.”

What’s more, the Bench then hastens to add that, “Learned counsel appearing on behalf of the States of Bihar, Jharkhand and Himachal Pradesh submit that there might be some conflict between the functioning of their local laws and the functioning of Gram Nyayalayas under the Gram Nyayalayas Act, 2008 which requires clarification. Learned counsel appearing on behalf of the State of Arunachal Pradesh submits that the said State may be granted exemption for establishing and functioning of Gram Nyayalayas under the Gram Nyayalayas Act, 2008. We shall decide the said issues on the next date of hearing.”

To put things in perspective, the Bench then points out that, “Taking into consideration the personal difficulty of the counsel appearing on behalf of the State of Kerala, we grant liberty to the counsel for the said State to file the affidavit during the course of the day.”

As it turned out, we then see that the Bench waxes eloquent to say that, “The prayer made on behalf of the learned counsel appearing on behalf of the State of Tripura is also accepted and he is directed to file affidavit during the course of the day.”

To put it succinctly, the Bench then also holds that, “At the request of learned counsel appearing on behalf of the States of Madhya Pradesh and Andhra Pradesh, we grant them liberty to file affidavit of their respective States on 30.01.2020.”

Furthermore, the Bench then observes that, “Learned counsel appearing on behalf of the States of Assam and Punjab are directed to file affidavits by 30.01.2020, failing which these States will have to pay the costs of Rs. 1,00,000/- (Rupees one lakh) each, as mentioned above.”

Not stopping here, the Bench also then makes it known that, “Having heard learned counsel for the parties and perusing the material placed before us, it appears to us that although some States have issued Notifications for establishing the Gram Nyayalayas, all the established Gram Nyayalayas are not functioning, except in the States of Kerala, Maharashtra and Rajasthan. It has been brought to our notice that in some of the States, the proposals for establishing the Gram Nyayalayas are pending before the High Court for consultation and some of the States have not yet initiated the process of issuing Notifications for establishing such Nyayalayas.”

Most significantly, it is then held by the Bench that, “In view of the above, we direct the States, who have not yet issued Notifications for establishing the Gram Nyayalayas, to issue the same within a period of four weeks from today and place copies of the same before us with an affidavit.”

In addition to the above, the Bench also then adds further that, “We also request the learned Chief Justices of the High Courts, where the constitution of Gram Nyayalayas and appointments of its members are pending, to expedite the process of consultation with the respective State Governments.”

To say the least, the Bench then also states that, “Learned counsel for the petitioners also brought to our attention the Evaluation Study of the Scheme of Establishing & Operationalising Gram Nyayalayas, which is pending consideration before the Government of India. In the said Report, it is observed as under:

“DOJ may consider increasing the Recurring Head to Rs. 15 lakhs per year for a minimum of 5 years with 50% State Govt. Contribution and revising the Non-recurring Head to Rs. 35 lakhs per Gram Nyayalaya because the present assistance is not sufficient and dates back to calculation approved in 2009.””

Lastly, it is then held that, “In view of the above, we direct the Union of India to consider the said proposal of increasing the Recurring Head to Rs. 15 lakhs per year for a minimum of 5 years with 50% State Government Contribution. By the next date of hearing, the counsel for the Union of India has to place before us the views of the Government on the said issue. List after four weeks. The Registry is directed to communicate the instant order to the Chief Justices of all the High Courts as also the Chief Secretaries of all the States through E-mail as also by speed post.”

No doubt, it is a very well reasoned, well timed and well founded judgment! The Apex Court in this latest, landmark and extremely laudable judgment very rightly directs States to issue notifications for establishing Gram Nyayalayas within four weeks! There can be no denying or disputing it that the Gram Nyayalayas are now the crying need of the hour as it will bring justice at the doorsteps of those living there and save them from so many inconveniences which they have to face severely mainly due to the absence of Gram Nyayalayas!

Sanjeev Sirohi

ICJ Directs Myanmar To Take Measures To Prevent Rohingya Suicide.

                                                   It is most heartening to note that the International Court of Justice (ICJ) most recently on 23 January, 2020 in The Gambia v. Myanmar in General List No. 178 has clearly and categorically directed Myanmar to take measures to prevent Rohingya suicide as they are committing suicide in large numbers. The ICJ found that there was prima facie evidence to believe that the estimated 600,000 Rohingya remaining in Myanmar are “extremely vulnerable” to violence at the hands of the military. No doubt, this is a matter of grave concern and even the ICJ has taken a serious note of it!

                                               In no uncertain terms, the ICJ has clearly and convincingly observed that it has prima facie jurisdiction to adjudicate on the allegations of acts of genocide committed against Rohingya Muslims in Myanmar. It deserves to be mentioned here that the ICJ said so in this case that was brought by The Gambia against Myanmar invoking the 1948 Genocide Convention. The ICJ made it clear that any State party can invoke the jurisdiction under the Convention even though it is not specially affected by alleged genocidal acts. This is because of ‘erga omnes’ (universal) nature of obligations under the Genocide Convention.

                                    Gently put, it is observed right at the outset of this latest, landmark and extremely laudable judgment of ICJ authored by President Abdulqawi Ahmed Yusuf and others that, “The International Court of Justice, Composed as above, After deliberation, Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court makes the following order” and consequent to this then points out in para 1 that, “On 11 November 2019, the Republic of The Gambia (hereinafter “The Gambia”) filed in the Registry of the Court an Application instituting proceedings against the Republic of the Union of Myanmar (hereinafter “Myanmar”) concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Genocide Convention” or “the Convention”).”

                                     Without mincing any words, the ICJ seeks to make its point absolutely clear on the provisional measures requested by The Gambia in para 78 by stating unambiguously that, “In the present case, having considered the terms of the provisional measures requested by The Gambia and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.”

                     While reminding Myanmar of its obligations, it is then enjoined upon in para 79 that, “Bearing in mind Myanmar’s duty to comply with its obligations under the Genocide Convention, the Court considers that, with regard to the situation described above, Myanmar must, in accordance with its obligations under the Convention in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.”

                              To be sure, the ICJ then further embarks in calling upon Myanmar to do what is mentioned explicitly in para 80 that, “Myanmar must also, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit acts of genocide, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide.”

                                      Not stopping here, it is then further held in para 81 that, “The Court is also of the view that Myanmar must take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of Article II of the Genocide Convention.”

                                 While fortifying the impact of its order, the ICJ then holds in para 84 that, “The Court reaffirms that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (La Grand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para 109) and thus create international legal obligations for any party to whom the provisional measures are addressed.”

                                        Going forward, it is then envisaged in para 85 that, “The Court further reaffirms that the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the right of the Government of The Gambia and Myanmar to submit arguments and evidence in respect of those questions.”

                          Finally and most importantly, the sum and substance of this landmark ruling is then encapsulated in para 86 which envisages that, “For these reasons,

THE COURT,

Indicates the following provisional measures:

(1) Unanimously,

The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

(a)          killing members of the group;

(b)         causing serious bodily or mental harm to the members of the group;

(c)           deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and

(d)         imposing measures intended to prevent births within the group;

(2) Unanimously,

The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;

(3) Unanimously,

The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide.

(4) Unanimously,

The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of every six months, until a final decision on this case is rendered by the Court.”

                                                It certainly goes without saying that Myanmar must abide and adhere to what has been held by the ICJ in this noteworthy case so elegantly and explicitly! No doubt, the Court has very rightly ruled that there was prima facie evidence to believe that the estimated 600,000 Rohingya remaining in Myanmar are “extremely vulnerable” to violence at the hands of the military. It also very rightly ruled that a fit case was made out for ordering provisional measures to avoid “irreparable prejudice” to Rohingyas who continue to be vulnerable. It also made it absolutely clear that these are provisional measures and that the same cannot be regarded as final opinion on the merits of the case! Very rightly so!

Sanjeev Sirohi

Enact Law To Stop Blocking Of Roads Under Any Circumstances.

 

                            No matter how sacred the cause may be, there can be no justification for blocking roads under any circumstances. To exercise one’s own fundamental right to protest peacefully does not give anyone the unfettered right to block road under any circumstances thereby causing maximum inconvenience to others. It is high time and now a law needs to be enacted which would make it obligatory that under no circumstances can anyone be allowed to block roads or block any rail route or any route which would cause maximum inconvenience to others!

What has happened in Shaheen Bagh is most disgraceful and cannot be justified under any circumstances! Since last more than 50 days the route connecting Delhi and Noida has been blocked by protesters from Shaheen Bagh who are seeking the removal of Citizenship Amendment Act as they feel that it is discriminatory and are determined that this would not be allowed under any circumstances! Why has Centre allowed this to happen at the first place?

Why PM Narendra Modi along with UP CM Yogi Adityanath are busy launching scathing attacks on the Opposition for planning the blockade of Shaheen Bagh but are themselves doing nothing to clear the blockade? One can understand that Yogi is the CM of UP and not of Delhi but Narendra Modi is the PM of India and when he is seeing that Delhi government is doing nothing to clear the blockade then why is he himself not doing anything to clear it at all? Blockade of roads, national highways, rail routes etc cannot be justified under any circumstances!

What trend has PM Modi set by not doing anything on this till now? Why will others also not follow the same route as we see in Shaheen Bagh? Will it not lead our country on the surest path to anarchy?

Should we be proud of it? Should we clap when PM Modi says in election rallies that the real faces of many are getting exposed but himself doing nothing to clear the road? Why has Centre not acted at all since last more than 50 days?

Why even our Courts keep watching all this like a mute spectator? Why Courts and especially our Supreme Court which is the highest court of the land not ready to direct the clearing of road forthwith as it is the common man who suffers the maximum inconvenience due to such blockades? Why don’t the long term interests of the people at large placed on the highest priority even by Centre who is watching everything and making it a part of mud-slinging exercise with Opposition party leaders?

To hell with CAA and NRC if Centre is determined to allow anti-India slogans right in our national capital itself! To hell with CAA and NRC if Centre fails to enact a law whereby those who chant anti-India slogans are just booked for sedition and not expelled from India permanently and their citizenship rights are not promptly terminated! To hell with CAA and NRC if Centre allows “rogues and scoundrels” to occupy roads and public places as we are now seeing in Shaheen Bagh just to safeguard their own political interests and be fully satisfied by just indulging in futile “blame game exercise” as we are seeing this happen right in front of our eyes!

To hell with CAA and NRC if those who are illegal immigrants are expelled from India even though they love India to the fullest but those Indians who have all valid documents proving Indian citizenship are given unlimited freedom to abuse India openly and vandalise public property! To hell with CAA and NRC if Centre feels proud to allow  few bunch of people who are citizens of India by birth to openly occupy public roads and public places as we are now seeing in Shaheen Bagh and take no action against them and be happy with just criticizing Opposition parties and apportioning all blame on them alone! To hell with CAA and NRC if Centre justifies this in the name of “right to dissent” and takes no action to evict them from illegally occupying public roads!

My anger against PM Narendra Damodardas Modi was brimming fully when he decided to invite Pakistani ISI agents to inspect Pathankot and went uninvited to Pakistan! My anger swelled when he further stupidly and shamelessly declared “Ramzan ka ceasefire” which I consider as the biggest insult of Muslims as this directly places terrorists and Muslims on same footing which can never be justified under any circumstances over which majority of Muslims maintain a conspicuous silence and which Pakistani Army and terrorists exploited to send Border Action Team (BAT) across the border to India so that they could behead Indian soldiers with sharp weapons and then take their heads to Pakistan to play with them like football! When Centre says that terrorists have no religion then why the hell this “Ramzan ka ceasefire”?

As if this was not enough , PM Modi has now given full unfettered freedom to traitors and “tukde tukde gang” to chant anti-India slogans right in the heart of India and in the capital of India with full freedom! Should I salute PM Modi for this like I did when surgical strikes were carried out in 2016 and air strikes were carried out to avenge Pulwama terror attack in which we lost more than 40 of our brave soldiers? Certainly not!

How can I appreciate PM Modi if he behaves so cowardly? Why police force was used against our brave ex-servicemen in removing them violently when they were protesting peacefully demanding “One Rank One Pension” in totality but now why he has no guts to act against those who are not only blocking roads to cause maximum inconvenience to public but also chanting anti-India slogans and stopping media from entering there and placing women and children ahead so that no action is taken? Why different laws for ex servicemen and for those residing in Shaheen Bagh? This is certainly most befuddling!

Why cheap politics is being played on this? Why are forces not ensuring that no person is allowed to block roads and public places as they like as per their own whims and fancies? Why Centre is not giving a free hand to forces so that illegal usurpation of roads and public places is removed at the earliest? Why Centre is allowing this national insult?

Why all parties in India very strongly believe that under no circumstances should citizenship be terminated of those Indians who behave like soldiers of Pakistan and vow to fulfil their agenda by burning Indian flags, abusing our Constitution and chanting slogans of “Azadi” and “Bharat tere tukde-tukde karenge hum? Why it took many decades to end ‘Most Favoured Nation’ to Pakistan which India most stupidly and most shamelessly conferred on it unilaterally in 1990s? Why we don’t follow Justice Markandey Katju who says that, “Pakistan and Bangladesh are fake countries and till 1947 integral part of India and when father Jawaharlal Nehru created one fake country called Pakistan then daughter Indira Gandhi stepped ahead and created another fake country called Bangladesh? But I am sure that in next few decades they both will be merged with India.” Now PM Modi has created Shaheen Bagh by taking no action and God knows what will be created in the coming days and  what will happen if this is replicated by anti-Indian agents all across the country?

What a complete mockery is being made of India! How can lawless people be allowed to hold the traffic of our country to ransom for more than 50 days? Why no action has been taken by Centre on this for such a long time till now?

When CAA does not take the citizenship of any Indian then why so much of brouhaha over it? Why can’t more tolerance be demonstrated on it? Who is behind all this also needs to be investigated now!

Why vote bank politics is being played and why our national interests are being gravely compromised on this? Why no political party is ready to make sure that public roads are never occupied under any circumstances by anyone on any ground whatsoever? Where is our nation heading for?

Why mobocracy is ruling in Shaheen Bagh and not rule of law? Why Centre is most astonishingly not doing anything on this and is happy by just blaming everything on Delhi Government where it is the Lieutenant Governor who calls the shot and who too dismally fails in doing anything decisive on it? Why even Supreme Court has failed to act decisively on this by suo motu taking cognizance and calling for immediately lifting the siege of roads and public places in Shaheen Bagh?

What precedent is being set? Will this not encourage others also to do similarly? Why is Pakistan being allowed to set India’s agenda through its proxies in India?

I can never support this under any circumstances no matter who does it! Even if Jats to which community I belong block roads and highways I will never support it under any circumstances! If Jats boycott me or even expel me for not supporting them then so be it but I can never be a party to anything which hurts our national interests under any circumstances! This can never be good in protecting the long term national interests of our country which are paramount and stands above everything else including me!

By any reckoning, Centre has certainly not covered itself with glory by not doing anything to ensure that the common man does not suffer because of a few lumpen people in Shaheen Bagh! This is no way to protest that you block roads for more than 50 days! Should we be very proud and excited about it?

No doubt, Centre has demonstrated quite explicitly that it is just interested only in expelling illegal immigrants even if they profess loyalty to nation as they don’t have valid documents but those Indians who have all documents are free to chant anti-India slogans and chalk out plans to divide India as long as they feel like as we are seeing right now over which there is a huge national outrage as anti national slogans are unacceptable under any circumstances and even eminent legal luminary and senior Apex Court lawyer Abhishek Manu Singhvi voiced his utmost concern on the repeated chanting of anti-national slogans and this is certainly not a good news for Centre led by PM Narendra Modi himself who is not doing anything to end this impasse! Centre is watching shamelessly in silence on what is happening in Shaheen Bagh and yet doing  absolutely nothing to stop it! Most disgusting!

On a departing note, it must be said unequivocally that Centre is to be squarely blamed for allowing things to turn for the worse in Shaheen Bagh! Protest is a fundamental right of every Indian but this cannot include right to abuse India and vowing to break India to pieces and blocking roads, rail routes etc! Strictest action must be taken promptly against anyone who blocks roads, rail routes and if a law is needed to do this, it must be done right now but we see nothing happening in Shaheen Bagh even as more than 50 days have passed! This is the real tragedy!

Sanjeev Sirohi

Citizenship (Amendment) Act 2019: Persecuting the Religious Minorities

Tanisha

Recently the government passed a bill with respect to the immigrants who have resided in the subcontinent since time immemorial. The amendment to the citizenship act 1955 known as the citizenship amendment act 2019 (CAA) provides that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Pakistan or Bangladesh, who have entered India on or before the 31st of December 2014 shall not be treated as illegal migrant for the purpose of this act.[1]

Provided the immigrant must have been in India not less than five years. Thus granting Indian citizenship to the immigrants. This impugned act has gained a lot of attention due to its alleged biasness towards the mentioned communities as it openly excludes the Muslims from the entire act.

CAA and the Assam Connect
Notwithstanding that the entire nation is on fire for this discrimination on the basis of religion, the plight of the people of Assam and the northeast is against the immigrants from Bangladesh irrespective of the community they belong to. The North-easterners claim that the immigrants are a threat to the cultural identity, a threat to their economy, making them the minority of their own state. The act makes an exception for certain states in the northeast.

It says that this act shall not apply to the tribal areas of Assam, Meghalaya, Mizoram or Tripura (as mentioned in the sixth schedule of the constitution) nor shall it be applied to the areas covered under the “the inner line”. The inner line covers the North-eastern states of Arunachal Pradesh, Nagaland and Mizoram where no citizen can overstay without permission unless he or she belongs to the place.

However, 26 districts of Assam are not under the sixth schedule and out of the total population of 26,655,528 (as per census 2001) of the state 23,346,958 people are not protected under the sixth schedule thus under the threat of immigrants. And once the immigrants from Bangladesh get the Indian citizenship, they are just like the people of Indian origin and will be able to settle and practice any trade or business, get jobs in the organic sector in the tribal areas that are covered under the sixth schedule of the constitution.

Therefore this provision in the act is redundant. Bangladesh shares 2217 km border with Meghalaya ,Mizoram and Tripura and is close to the rest of the North-eastern states, the influx from Bangladesh who have already entered India on or before 31st Dec 2014, i.e. 2.3 million ( as per census 2011) people are most likely to inhabit these states, endangering the lives of the native of north east.

The resources are limited, the jobs are limited, the properties are limited, and such a mass taking over the place will reduce the standard of living of the people of northeast, those who have been the citizen of this country since the beginning. Assam is a mixture of over 200 plus tribes and 50 plus dialects, such a diversity has its own cultural identity which will be jeopardized if the immigrants from another country get rights that of an Indian origin and start living within the community. It also remains to be seen what will happen if the illegal Muslim immigrants convert to Hindu to take the advantage of this citizenship under this act in view of absence of any clarity or preventing measure in the act.

This act is in clear violation of the Assam Accord that was signed in 1985. The clause 5 of the Accord states that after the date of March 25 1971 any immigrant from Bangladesh moving into the country will be subjected to deportation and will be expelled in accordance with the law. The act shifts the cut-off date from 25th March 1971 to 31st Dec 2014. I.e. 43 years 9 months and 7 days. The 5th clause also stated that all the migrants coming before 25th march 1971 can get registered in this country.

The state of Assam already taking the burden of such a huge population when the other developed states didn’t. Shifting the cut-off date is absurd, unreasonable and unfair for the indigenous people of Assam. The clause 6 of the Accord states that Constitutional, legislative and administrative safeguards, as may be appropriate, shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people.[1] The infiltration threatens the language, the tradition and the cultural identity of the people. This act will populate the place with Bengali speaking as the majority making the Assamese the minority in their own state. However, the Centre has setup a panel to implement clause 6 and constitutionalise it.[2]

CAA and Secularism
Another flaw of this disputed act is that it attacks the Secularism of the state. The act has been made on the basis of religious prosecution. But, the crux is how the secular fabric of the constitution be diluted on the basis of religion by excluding a category (Muslims) subjected to same type of sufferings as other minorities when the preamble of the constitution begins with the words- “we, the people of India…” (No mention of any community) Meaning that all the immigrants from Afghanistan Pakistan and Bangladesh of the faiths Hindu, Sikh, Buddhists, Jain, Christians and Parsi are exposed to religious prosecution. And as these countries are Islamic countries the centre assumes that these countries wouldn’t persecute the Muslims on the basis of religion.

The Ahmadiyyas and Shias of Pakistan and the atheists of Bangladesh even though born in Muslim families are at the receiving end of extremist violence.[3] These types of Muslims face religious persecution. So if an immigrant from these countries of such community has entered India for protection he wouldn’t receive the benefits of this act. Discriminating on the basis of religion violating one of the predominant features of the preamble.

CAA and Article 14
It also violates article 14 of the constitution. Article 14 provides that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. That directs that all the immigrants should be treated equally. Now any law must fulfill two conditions 1) the classification must be founded on an intelligible differentia 2) the differentia must have rational nexus. It simply means that the classification must be understood by all. That the reservation or the provision given is rational and has a valid base. The impugned act is differentiating among the equals as some of the communities are not included. Any classification must not be arbitrary.

The Honorable Supreme Court has ruled out many laws where the act is distinguishing unreasonably. In the case Maneka Gandhi v. Union of India it was held that no law can be arbitrary. The citizenship amendment act 2019, is allowing citizenship on the basis of religion and even then is arbitrarily excluding the Muslims and by doing this is this act is going against the essence of the constitution, the rule of law.

The legislature does have a power to make laws and this is a policy where the centre has selected three countries covering six religions and it is one such policy for the improvement of these particular religion and maybe the government might formulate some other act where they will include the excluded immigrants like the Tamils from Srilanka. But the reason of any act should be reasonable and if this is about all the immigrants who are persecuted on the basis of religion then the Ahmadiyyas and Shia Muslims should also be included. Because then the government can contrive a law where it will arbitrarily forbid the citizens from wearing western clothes or leaving the country on some invalid basis like religion or orthodox norms. This act is violating one such indispensable fundamental right, which is for everyone, the citizens and the immigrants.

CAA and NRC
The national register of citizens (NRC) which was conducted in the state of Assam had its own limitations. The government of India has implied and in many occasions voiced that it will implement NRC in the whole country. Which signifies that each one of us will have to prove we are the citizens of this country. The government has not disclosed how will that be or will it be like the way it was implemented in Assam or how many documents will a person have to bring in order to prove his citizenship.

However, in any manner the whole scenario will cost a fortune to this country and will be a living hell for the poor illiterate people and those who won’t have documents to back their claim of citizenship. In this context, this act is acting like a protection, an umbrella for the people of the mentioned faiths. All those who would not be able to prove their citizenship when a pan-India NRC is implemented, they will be termed as immigrants according to the law.

Nonetheless, if the so called immigrant is a Hindu, Sikh, Jain Parsi, Buddhist or Christian, the CAA will come into rescue as according to CAA any immigrant of these faiths will get citizenship provided all the provisions are met which most of the excluded will have. But the Muslims, the Indian origin Muslims who are either poor or do not have the documents will not be saved. All of the Muslims then will be deported or put into detention. This is how dangerous this act will be if implemented with NRC. Not to mention the 1.9 million who were termed as illegal immigrants when the NRC was conducted in Assam will benefit from this as they will also avail citizenship, most of them being Hindu Bangladeshis, making the whole operation a futile one.

CAA and Fraternity
Not only the fundamental rights of equality, life, and liberty are violated under CAA, but also the deepest constitutional commitments to dignity, fraternity and integrity that breathe life into our fundamental rights, are also violated.[4] Illegal immigrants are also human beings as any other citizens. They may be categorized separately for special treatment but not in a way that denies their inherent dignity as safeguarded under the constitution. The CAA, here proposes to sacrifice fraternity by segregating illegal immigrants based on religion which breaches the intrinsic relation between fraternity and secularism.

In S.R.Bomai’s case, the super court upheld this intrinsic link between fraternity and secularism when it stated- “India being a plural society with multi religious faiths, secularism is the bastion to build fraternity and amity with dignity of persons as its constitutional policy.”

CAA also is a source of humiliation to the legal migrants who must wait for seven years at least for citizenship by giving a message to them that they are less deserving than chosen illegal migrants who could get citizenship in just five years on the basis of specific religion and countries they belong to.[5]

Similarly Muslims in general have been made to believe unnecessarily how their religion is singled out as a means to select countries and individuals for citizenship of a country which they call their own. That means CAA undermines the value of community by violating the fraternal bonds between the communities- a public good recognized by Ambedkar and the Supreme Court in verdicts on secularism.

Conclusion
It is remarkable to see the whole country protesting and raising its voice and asking questions making the government feel that it is accountable to its people, although the protests should be peaceful and not turned into violent fulminations. The faith shall always reside on the Honorable Supreme Court for the justice shall prevail under any circumstance, under article 13 and a plausible violation of part three of the constitution ( fundamental rights), upholding the ethos and morals of the constitution of India. Let there be no such law which will bring in ill-feeling or seclusiveness within the community. India is a country of diverse ethnicity and religion and let that uniqueness triumph.

End-Motes:

Clause 6, Assam Accord, 1985.
Kaushik Deka, CAB done, over to clause 6 of Assam Accord now, India Today.( Dec. 24, 2019, 8:09 AM) https://www.indiatoday.in/india-today-insight/story/citizenship-amendment-bill-assam-accord-clause-6-1627922-2019-12-13.
Alok Prasanna Kumar, Citizenship (Amendment) Act: An unconstitutional Act.( Dec.24, 2019, 9:15 PM) https://www-deccanherald-com.cdn.ampproject.org/v/s/www.deccanherald.com/amp/specials/sunday-spotlight/citizenship-amendment-act-an-unconstitutional-act-785638.
Pritam Baruah, ‘Not just equality, the CAA betrays constitutional values of dignity, integrity’, The Wire ( Jan 10, 2020, 7:40 PM) https://www.google.com/amp/s/thewire.in/rights/caa-constitution-equality/amp/
Ibid
Citizenship (Amendment) bill, 2019.
Written By Tanisha Mishra, National Law University Assam,
Ph no.- 8144161387

Related Articles on CAA:

The Situation In Assam And The Threat Of Its Islamization
The situation of Bengal and Bengali Hindus
Historical Position of Indian Political Parties on the issue of CAA
Historical Backdrop of Partition and Nehru Liaquat Pact
A Brief Analysis of CAA And Its Impact on Citizens
Salient Points of Union Home Minister Shri Amit Shah’s Speech on Citizenship Amendment Bill in Lok Sabha

States Anurag Thakur “Who is the Ghaddar feeling Hurt?”

By Amba Charan Vashishth

The decision of the Election Commission (EC) of India to ban the Union Minister of State for Finance Anurag Thakur and BJP MP Parvesh Verma from campaigning for the current elections to Delhi Vidhan Sabha for 3 and 4 days, respectively, saying that it was not satisfied with the reply given by the two leaders. The EC further said that its earlier order to remove the two leaders from the list of star campaigners would also continue.

EC direction may be heartening to some sections of political parties but it does not stand the test of being rational. It has handed out two punishments for the same ‘offence’  of having made one single statement.

Further, EC issued the January 30 order finding having  been “not satisfied with their reply”. But the first order directing their party to remove their names from the list of “star campaigners” was issued in post haste and was arbitrary because it was done without seeking an explanation from the two leaders before issuing the first order.

“Goli maaro ghaddaaron ko” (kill the traitors) is a very common phrase in our day-today life and society. “Main tumhen goli maar doonga” is a phrase used even within a family when a child or wife/husband is going to commit something wrong which is not in tune with the family and society’s traditions. In cases where girls and infants have been murdered after rape, the victims and their families have always been demanding (goli maar do un gunahgaaron ko” (kill the guilty). In the notorious Nirbhaya rape and murder case, her mother has been running from pillar to post to get her daughter’s killers hanged at the earliest. Is it a crime?

In the instant case, Thakur demanded and Verma supported:”Goli maaro ghaddaron ko”. They have just demanded the killing of the traitors; they have not identified or named who are the traitors. Does the EC and the people feel that it is against law or Model Code of Conduct to demand traitors to be hanged? Identifying traitors is the function of the investigating agency and judiciary to punish the ‘traitor’.

To quote just a few cases, Maqbool Butt in J&K, Afzal Guru accused in the 2001 Parliament case, 26/11 Pakistani terrorist Ajmal Kasab, were tried and ordered to be hanged by the highest court of the country and not by the common man in the street.  It is a different matter that the common man did demand these traitors to be killed (goli maaro).  The common man is not guilty of any crime in demanding it.

A boy abducted an infant from his neighbourhood in Shimla for the purpose of ransom more than two years back. When failed, the boy killed the infant and dumped his body in a water storage tank. After a few months, the guilty boy was named and arrested. His mother was so dejected that before the Press she said: I will shoot him myself on the Mall road. Did she commit a crime by saying so?

The then Congress President while campaigning in 2019 elections to Parliament openly alleged repeatedly in a number of electoral rallies that “chaukidar chor hai” obviously meaning PM Narendra Modi who had been claiming to be a chaukidar of the nation. But, surprisingly, EC did neither take note of it and neither acted on it. Why?

Our law says that murder/rape/treason is a heinous crime and if anybody does commit such a crime he stands to be hanged or given some other punishment. Recently, a new law has been passed providing for a very high punishment or fine for breaking traffic laws. Doies our law threaten people? Our law does threaten the law-breaker but not the innocent law-abider. And so does the EC or the election law. If one is not a traitor, why should one lose one’s sleep?

There is another side of the story. The CBI has come out with a charge-sheet against former JNUSU president Kanhaiyya Kumar. But the AAP Delhi government is sitting over the matter of sanctioning his prosecution for the last about two years. A Delhi court also regretted this fact. The Delhi government should have taken a decision on merit by either sanctioning his prosecution or refusing it one way or the other. It should not have sat over the file for so long.  AAP CM knew that granting sanction or denying it will cost it losing electoral gain from one section of the people. It is a travesty of facts that this very government had been criticizing the Lt. Governor for sitting over some of its files.

In its anxiety to look impartial, EC itself has raised a question on its own image.  The EC should not only be fair and impartial, but should also appear to be so.

Author : Amba Charan Vashishtha

 

Properties And Rights Which Are Transferable And Which Are Non-Transferable.

Renuka Mishra

Symbiosis

The Transfer of Property Act (hereinafter mentioned as TOPA, 1882) was enacted in the year 1882 to regulate the process of transferring of property and various other conditions associated with it. Before the enactment of TOPA, 1882 these procedures were governed by the principles of English Law and equity. The term property hasn’t been clearly defined but the Act gives it a very wide scope and ambit.[1]

Property and its types
The word ‘property’ has not been specifically defined by the legislature. The judiciary has however interpreted it to be of widest amplitude and most generic in legal sense Property is not only something which is subject to ownership but also includes dominium or right or ownership or partial ownership and is indicative of every possible interest that the party may have.[2] The Act specifically encompasses two types of property namely (i) movable and (ii) immovable.

Movable Property – movable property shall mean property of every description, except immovable property;[3]

Immovable Property – immoveable property does not include standing timber, growing crops or grass; instrument , means a non-testamentary instrument;[4] immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth; [5] The capacity in a thing of suffering alteration vis-a-vis surface is its movability whereas immovability pertains to such alteration.[6]

Transfer of Property
Transfer of Property has been defined under Section 5 of the Act. As per the aforementioned provision the transfer of property is an act by which a living person conveys property in present or future, to –
One or more other living persons; or
To himself; or
To himself and one or more other living person
The word living person are also said to include-
A company, or
An association or body of individual, whether incorporated or not, but nothing in this Act affects any law relating to transfer of property to or by companies, associations or bodies of individuals.[7]
The word himself mentioned herein implies that an owner of a property, in one capacity, may transfer it to himself to hold as owner in other capacity.[8] The word living person only includes within its ambit alive human beings, a person disposing off his property by will does not amount to living person as the transfer takes place only after his death. The provisions expressly mentions company or association to include them under it. [9] In ordinary circumstances transfer implies change of ownership and implies the presence of two persons namely, transferor and transferee.

The word ‘transfer’ is defined in Section 5 through ‘conveyancing’ implying transfer of right in property inter vivos. [10] Act includes five modes of conveyances namely, sale, gift, exchange, mortgage and lease. The first two convey absolute interest and the latter three limited interest.[11] The transfer of property may be done immediately or on a future date.

What may be transferred
Section 6 of the Act reads as, Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force-,[12]
Therefore, this provision of the Act deals with the demarcation between transferable and non- transferable property. The section has 9 sub clauses, each of which explains the different kinds of transfer of property that. Everything else according to the Act can be legally transferred in various means and forms.[13]

The different exceptions are summarized as follows:
Section 6(A): Spes Succession Is
This clause provides that the following cannot be transferred:
The chance of an heir-apparent succeeding to an estate;
The chance of a relation obtaining a legacy on the death of kinsman;
Any other mere possibility of a like nature.
These restrictions are based on Public Policy. Rights falling in this category are uncertain and are not vested or contingent interests.

Illustration: A owns a property. If A passes away, B will get the property, because he is A’s legal heir. However, if B during the lifetime of A decides to transfer his chance to gain a right over the property to X, it will be deemed to be an invalid transfer. This is because one cannot transfer his chance of succeeding to an estate.

However, this does not meant that in case a widow who has an interest in her husband’s property, cannot transfer such interest that she has already inherited owing to her incidental right of survivorship. Widows are allowed to validly partition the properties and allot separate partitions to each.

When an heir received advantage for giving up his future right to property, it was held that he could not be allowed benefit of the doctrine of spes successionis. He became estopped from claiming his share from the property – Sheshammal v Hasan Khani Rawther, AIR 2011 SC 3609.[14]

In Suryaprabhakar Rau v. Gummudu[15] it was held that: when the parties entered into a contract, there was no certainty that the land could be enfranchised, although he was expecting it to be so done, and agreed to transfer his interest in the property when the event had taken place. It was held, this could not be more than a transfer of expectation and, as such, offended this section, and the agreement was void.

Section 6(B): Right of Re-entry
As per this clause, a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. The right of re-entry being a mere incident of the rights of the owner in leased premises, its transfer is prohibited by Law.

Illustration: Where X grants a lease of land to Y for 5 years. At the expiry of 5 years he transferred the right of re-entry to Z. This transfer shall be valid.

In Vaguram v. Rangayynagar, (31 All 304)[16], the lessee committed a breach of the convenant to pay rent and incurred forfeiture. Thereupon, the lessor leased the lands to another to take possession of the land from the tenant in default. The transfer was held to be invalid.

Section: 6(c): Easement
An easement is a right to use or restrict the use of another over a property in some way or the other. It has been defined as the liberty, privilege or advantage one may have in the lands of another. An easement cannot be transferred apart from the dominant heritage. Its scope is limited to easement which exist for the benefit of the dominant tenement and has no applications to easement not connected with possession or ownership of dominant heritage.[17]

Illustration: If A, the owner of a house, has a right of way over the adjoining land of B. A cannot transfer this right without transferring the house.

In the case of Satyanarayana v Lakshmayya , AIR 1929 Mad 79., it was stated that this clause contemplates transfer of existing easement and not the creation of one. [18]

Section 6(d): Restricted interest
According to this clause, a person cannot transfer an interest that has been restricted in its enjoyment of him. This is because a transfer of such an interest will defeat the purpose of the restriction. Various kinds of interests have been held to be restricted under this clause, such as;[19]
A religious office
Emoluments to a priestly office
A right of pre-emption
Service tenures

Illustration: X has an exclusive right of conducting priestly ceremonies in a temple. He is the sole owner of the right and cannot transfer that right to his friend B who is a mechanic by profession.

S. Rathinam v LS Mariappan,[20] AIR 2007 SC 2134 merely because donor mother has reserved to herself possession and enjoyment of property gifted did not render gift deed in favor of minor ineffective.

Section 6(dd): right to future maintenance
As per this provision inserted in the year Amending Act of 1929, a right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred. Maintenance being for the personal benefit of a person, therefore cannot be transferred.

In the case of Ashfaq Mohammad Khan v Nazir Banu,[21] AIR 1942 Oudh 410 it was held that right to future maintenance whether acquired under a deed cannot be attached in execution of decree.

Section 6(e): Right to Sue:
This clause provides that a mere right to sue cannot be transferred. The word mere implies that the transferee acquires no interest in the subject of transfer other than the right to sue as an ostensible owner of the property claimed of which, it may be, the real owner is somebody else[22]. However, property with an incidental right to sue for damages may be transferred[23].

Illustration: If A publishes libel of B. B can sue A as defamatory statements have been published. However, B cannot transfer this right to C and allow him to recover damages.

In Palani Goudhan v. Nallapa Goundan[24], an ex-minor transfers property that has without authority been sold by his guardian during his minority, he transfer not a mere right to sue but his interest on the property.

Section 6(f) Public office
A Public office is held for qualities personal to the incumbent, having a public duty attached to it. Person being chosen due to his qualities, cannot substitute another in his place. The office confers an interest which is restricted in its enjoyment to the incumbent person.

Illustration: A police officer cannot transfer his job to his friend who is a salesman. He can however attach his salary within certain limits as has been provided under section 60 of the Code of Civil Procedure, 1908.

In Divisional Accounts Officer v Radha Kissen,[25] AIR 1959 Cal 666 – the abovementioned clause does not apply to arrears of a family.

Section 6(g): Stipends and Pensions:
The clause lays down:
Stipends allowed to military, naval, air force and civil pensioners of Government
Political pensions,
Cannot be transferred. The object is to confer benefit of the stipend or pension to the recipients in the capacity of a pensioner.

The term political pension has a wider import than the term pension . depending on whether the pension is granted or continued by Government on political considerations. It is also exempted from attachment in execution of decree against the pension holder under the Code of Civil Procedure, 1908.

In Sundariya Bai Chaudhary v UOI,[26] AIR 2008 MP 227 (DB)—Stipends allowed to officers and political pensions cannot be transferred.

Section 6 (h): Nature of interest, Unlawful Object, Disqualification of Transferee:
According to this sub-section, transfer of any property that can lead to an act that is (1)Against the interest affected thereby, or (2) For committing an act that is for an unlawful object or consideration, or, (3) When is transferred to someone who is legally disqualified to be a transferee, then such transfer shall be deemed to be invalid.

Illustration: A, B and C enter into an agreement for the division among them of gains acquired by fraud. The agreement is void, as the consideration for it is lawful.

Joydev Sen v State of West Bengal, [27]AIR 2010 (NOC) 256 Cal—the petitioners were not entitled to obtain a stamp vending license on the basis that their father held such license.

Section 6(i): Untransferable Interests:
This clause was added in the year 1885 to remove incongruity in the non- transferability of occupancy rights. Any tenant having an untransferable right of occupancy cannot transfer his interest.

Illustration: A farmer cannot give up his interest in a holding to pay his debt to a creditor.

In Jagat Narain v, Laljee[28], the Allahabad High Court has held that where a Sridhar transfers his holding and subsequently becomes a Bhumidar of the holding, the transfer becomes effective with the aid of Section 43and is not hot by this clause.

End-Notes:
Mata Din v Kazim Husain (1891 ILR 13 All 432, p 473; Bansigopal vs K Banerji AIR 1949 All 433.
Jones v Skinner (1835) 5 IJ 546
General clauses Act, section 3(38)
Section 3, Transfer of Property Act, 1882.
General clauses Act, section 3(26)
Sukry Kurdepa v Goondakull (1872) 6 Mad 71.
Transfer of Property Act, Sanjiva Row, Volume 1, Edition 7th.
Naranbhai Dahyabhai v Suleman Isujbi, (1975) 16 GLR 289 (294) (Guj).
Weavers Mills. Ltd. v. Balkis Ammal, AIR 1969 Mad 462.
Official Assignee v T.D. Tehrani, AIR 1972 Mad 187 (188).
Law of Properties, S.R. Myneni.
Transfer of Property Act, Section 6, 1882.
H.R. Khanna and P.M. Bakshi, Mulla, The Transfer of Property Act ,7th ed.,Universal Law Publishing, (1985).
Sheshammal v Hasan Khani Rawther
Suryaprabhakar Rau v. Gummudu, AIR1925Mad 885.
Vaguram v. Rangayynagar, 31 All 304
Satyanarayana v Lakshmayya, AIR 1929 Mad 79.
Satyanarayana v Lakshmayya , AIR 1929 Mad 79
Avtar Singh, Textbook on The Transfer Of Property Act, 1882, Universal Law Publishing, 2nd Edition, 2011, (page44).
S. Rathinam v LS Mariappan, AIR 2007 SC 2134
Ashfaq Mohammad Khan v Nazir Banu,[21] AIR 1942 Oudh 410
Rushi Behera v. Poncha Behera, 1976 Cut LT 330
New Central Jute Mill Co. v. Rovers Steam Navigation Co, AIR 1959 Cal 352.
Palani Goudhan v. Nallapa GoundanAIR 1951 Mad 817
Divisional Accounts Officer v Radha Kissen, AIR 1959 Cal 666
Sundariya Bai Chaudhary v UOI, AIR 2008 MP 227
Joydev Sen v State of West Bengal, [27]AIR 2010 (NOC) 256 Cal
Jagat Narain v, Laljee , AIR 1965 All 504.

State Has Solemn Constitutional Duty To Assist Court In Dispensation Of Justice; Cannot Behave Like Private Litigant: SC

        It must be said right at the outset before saying anything else that the Supreme Court most recently in a recent and notable judgment titled M/S Granules India Ltd. Vs Union Of India And Others in Civil Appeal No(s). 593-594 of 2020 (Arising out of SLP (Civil) No(s). 30371-30372 of 2017) in exercise of its civil appellate jurisdiction has minced just no words to remark most unequivocally and unambiguously that, “State, as a litigant, cannot behave as a private litigant, and it has solemn and constitutional duty to assist the court in dispensation of justice.” The Apex Court was considering an appeal against the High Court order which had dismissed a writ petition challenging denial of exemption from Customs duty on the ground that the authorities of the State were also unaware of the clarificatory notification and neither did the petitioner bring it on record. No doubt, it is high time and the State must now without fail certainly pay heed to what the top court of our country has said so clearly and convincingly which has lot of merit in it and therefore must be adhered to in totality!

To begin with, this latest, landmark and laudable judgment authored by Justice Navin Sinha for himself and Justice Krishna Murari of the Apex Court Bench sets the ball rolling in para 2 by first and foremost observing that, “The appellant is aggrieved by orders dated 07.12.2016 and 14.06.2017, rejecting the writ petition as also the review application arising from the same.”

While elaborating in detail, the Bench then observes aptly in para 3 that, “The appellant, during the year 1993 imported 96 tons of the chemical “Acetic Anhydride” under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 through the Inland Water Container Depot (ICD), Hyderabad under the Advance Licence Scheme. It claimed clearance of the consignment free of import duty in terms of Customs Notification nos. 203/1992, 204/1992, both dated 19.05.1992. The notification contained a scheme permitting import without payment of customs duty subject to fulfillment of certain norms and conditions. The Notification nos. 203/1992 and 204/1992 were amended by a Notification no. 183/1993 dated 25.11.1993, by which the subject imports became liable for duty, the exemption having been withdrawn. The Notification dated 25.11.1993 was further amended by another clarificatory Notification no. 105/1994 dated 18.03.1994 permitting the import of the chemical without customs duty subject to certain terms and conditions. The clarificatory notification was necessitated to obviate the difficulties faced by the importers like the appellant, who had imported the chemical under the advance licence issued by the Director General of Foreign Trade prior to the amendment Notification no. 183/1993 dated 25.11.1993.”

While continuing in the same vein, the Bench then further very rightly points out in para 4 that, “The appellant was allowed to clear the consignments under the aforesaid three Bills of Entry without payment of duty. Subsequently the respondents issued show cause notice under Section 28 (1) of the Customs Act, 1962 with regard to the same consignments as having been imported after 25.11.1993. The appellant made a representation on 20.11.1997 seeking exemption. It was considered favourably in respect of three other consignments under Bill of Entry No. 312 dated 12.09.1993, Bill of Entry No. 28 dated 10.02.1994 and Bill of Entry No. 27 dated 09.02.1994. The entire consignments were imported under the same advance licence. In pursuance of the show cause notice the appellant was held liable to duty by order dated 12.2.1998 with regard to the consignment under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 respectively though these were also under the same advance licence. The respondents while considering the reply to the show cause notice and fixing liability for payment of customs duty did not make any reference to their notification dated 18.03.1994. The Commissioner (Appeals) on the same reasoning rejected the appeal leading to the institution of the writ application.”

Interestingly enough, it is then disclosed in para 5 that, “Dismissing the writ application, the High Court opined that no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief.”

On the one hand, it is pointed out in para 6 that, “Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No. 14288 of 2004 (CC No. 5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary.”

On the other hand, it is then just aptly pointed out in para 7 that, “Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified.”

On the whole, the Bench then observes rightly after listening to both the sides in para 8 that, “We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfillment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption.”

Most remarkably, it is then very rightly held in para 9 that, “It is unfortunate that the High Court failed to follow its own order in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.”

No doubt, it is a brief but brilliantly written judgment. Before concluding, it holds in the last para 11 that, “The impugned orders are therefore held to be unsustainable and are set aside. The appeals are allowed.” Also, it ably cites the relevant case law titled National Insurance Co. Ltd. vs. Jugal Kishore (1988) 1 SCC 626 in para 10 and briefly stated very rightly holds that, “This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.” There has not even an iota of doubt been left by the Apex Court Bench in this leading case to hold most clearly, convincingly and categorically that, “State, as a litigant, cannot behave as a private litigant, and it has solemn and constitutional duty to assist the court in dispensation of justice.”

Sanjeev Sirohi

Impact of Increasing Women in Indian law firms.

To some extent it’s understandable: for years, the Indian legal profession – particularly litigation – has been dominated by men, and most of the new law firms that rose in the nineties and noughties were headed by men. The (generally) male managing partners would often be busy trying to capture market share and executing the work; worrying about whether female lawyers were given the same opportunities as the men was for many an afterthought, if that.

The average percentage of women making up the partnership at 30 top Indian law firms, for which data was available, currently stands at 30%. At only 23% out of those 30 firms is that senior gender ratio above 40%; at a third of firms it’s below 20%. And amongst our Top 100 Corporate Dealmakers, only around 25% are women.

Samvad Partners stands out amongst all the larger firms with a gender balance of 64% in favour of women in its partnership of 14. “It just worked out that way, it was not planned that we had more women becoming partners,” explains partner Vineetha MG. “It is completely based on performance,” she adds, but agrees that it does help that the firm’s senior leadership has women in it. “It brings some sort of sensitivity to certain issues.”

Other larger firms with more balanced gender ratios include S&R Associates (46% are women out of 13 partners) and Rajani Associates (45% out of 13). And AZB & Partners, Shardul Amarchand Mangaldas and Cyril Amarchand Mangaldas are also above the average, with between 35% and 37%, out of more than 100 partners being women.

MG says that at most firms the gender imbalance is not necessarily intentional: “It depends on policies within the firm itself, how they look at development. I don’t see any firm in the market today actively trying to make some sort of discrimination. It has just resulted in that way, but it is also dependent on the environment: if you provide more opportunities, then women come out in a good way in those opportunities.”

Some of the firms that have struggled the most to increase diversity at the top, have also been making strides recently to address the deeper issues. At Khaitan & Co, only 9% of its partnership are women, but in its most recent promotion round in April 2019, more than half of the 11 new partners were women.

At IndusLaw, all four of its new partners made in April 2019 were women – in probably a first in the industry – increasing its ratio to 33%. At Cyril Amarchand Mangaldas and AZB & Partners this year, respectively 42% and 40% of new partners were women.

While a charge may occasionally be whispered by male colleagues that women are getting unfairly advantaged these days by firms trying to be more diverse, it is highly unlikely that firms which primarily value profitability and quality above most other factors would dilute their quality at the top. The fact is that many law firms have actively worked at improving their internal systems, which allows high performers, many of whom happen to be women, to shine and be recognised.

“The firm actively encourages diversity in all its avatars, especially gender,” explains Khaitan & Co executive director for HR, Amar Sinhji. “Towards making our firm more inclusive and supportive of women, a host of policies, including flexi time, work from home and truncated hours for returning mothers have recently been introduced. The firm is also introducing a structured mentoring programme beginning with our principal associates.”

With 50% of incoming campus recruits being women (“selected based strictly on merit”), Sinhji says that this would, “over the next couple of years positively skew the gender balance in the firm”.

Other firms at the lower-end in terms of gender balance, such as J Sagar Associates (JSA), which stands at 22% of its women being partners (dropping to 14% at the equity partner level), are also doing more. Joint managing partners Vivek Chandy and Amit Kapur explain in a statement that the firm now offered six months of maternity leave, in accordance with statutory requirements, had introduced creche facilities for working mothers, and has a flexible timings system to allow lawyers to “balance both work and needs of a young family”. And the leadership at JSA has historically also included two female joint-managing partners as well as female partners represented in “important decision-making committees” at the firm.

But, not everything is about getting systems in place either. A large part may simply be a new-found awareness, sensitivity and practical attitudes of some issues by male senior partners, of which they may have previously been (blissfully) ignorant.

“I think policies don’t always work,” says AZB Mumbai managing partner Zia Mody. “I’m a big believer in bespoke solutions, and that’s still possible for Indian law firms because of their size.”

“Not all our women get married and get pregnant at the same time,” she notes. “It’s possible for management to have bespoke conversations to understand the need of every woman separately. [When women ask for maternity leave or flexible working] there will be common concerns about time, ability, ‘will I lose out in the race?’, ‘will my career be affected?’

“At this time it’s very easy for partners or the team, to basically get irritated, etc, and that negativity feeds down to the woman in question, which then becomes a circle of diffidence and lack of confidence, and then she just quietly leaves. If you dive into that, it’s a problem, it’s a reality: there will be some disruption and unexpected availability, and therefore you need a backup that you bring in the beginning. You understand that a client won’t pay for an extra hand, but as an organisation you’re allowing the gap to be filled in and providing for limited redundancy for the period.”

“It’s an outlook change as well that’s required,” agrees Samvad’s MG about how the profession can increase participation of women at senior levels. But she adds: “As compared to other Asian countries, India is ahead.”

That is likely true: countries such as Japan, for instance, are well known for their dearth of women in corporate leadership positions, and the female partnerships at some of India’s largest firms are far more gender diverse than nearly all international firms.

So, as India’s top firms become more secure in their market position, with the most rapid growth behind them, many of are taking promising steps in the right direction.

However, it’s clear that no change will come without deliberate efforts.