Tuesday, May 24, 2022



21 May 2022,  Disputes on Place of Worship in India

In 1950 a civil suit was filed seeking injunction to offer puja (worship) at disputed site, called Babri Masjid (Mosque), where people of Muslim faith were offering prayer. This was alleged by people of Hindu  religion that this was ancient place of birth of Lord Rama. Lord Rama was born on 10th Jan. 5114 BC as per a Sciencetic Research on Vedas. Babur invaded India and founded Mughal dynastry in the 16th century after conquering northern India from his base in Kabul. According to mosque’s inscriptions, it was build in 1528-29 (935AH) by Mir Baqi, a commander of Mughal emperor Babur. According to Hindu, Baqi destroyed a pre-existing temple of Rama at the site. There are only a few historical documents which are not sufficient about the Mosque or temple at site.

Since law of limitation set 40 years as time limit to file suit or examine facts and take some judicial note on facts; so this historical facts are of no relevance to look into claim of Muslims or Hindus regarding title dispute. Republic of India came into existence in 1947 and law was enforced thereafter, there is also important in law.

Supreme Court of India in 2019, finally decided dispute of Muslims and Hindus – called Ayodhya Dispute; which is not entirely based on title of land, but a sort of mutual understanding to finally settle the dispute between two religious’ group. In this dispute, Hindu claimed that a Mosque was build on birth  place of Lord Ram in Ayodhya.

Now many more disputes are being raised in Courts in India. Recently a dispute of Gyanvapi Mosque in Varanasi has incited communal friction once again. It is alleged that this Gyanvapi Mosque was constructed by then ruler Aurangzeb in 1669 upon demolition of an old Shiva Temple.

Similarly in Mathura, there is dispute that a temple built at birth place of  Lord Krishna- called Krishna Janmasthan was destroyed multiple times, most recently by the Mughal emperor Aurangzeb in 1670 and build a Mosque- Shahi Idgarh.  Today both temple and mosque exist back to back in Mathura and both religious group offer prayers at their respective places.

There are many sites on which disputes are being raised. Even ancient monuments like Taj Mahal and Qutab Minar are alleged to have been constructed on remains of temple.

In India, about 80% population is Hindu and 15 % are Muslim.

To maintain harmony, in 1991, a Law- THE PLACES OF WORSHIP (SPECIAL PROVISIONS) ACT, 1991  was enacted in India  to prohibit changes and maintenance of religious character of place of worship as on 15th Aug. 1947, when Constitution of India came into existence.

Now I examine if these disputes are maintainable in view of this 1991 Act.

The relevant provision of 1991 are as follows:

3. Bar of conversion of places of worship.—No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.

4. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc.—

(1) It is hereby declared that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day. (2) If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority:

Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1).

(3) Nothing contained in sub-section (1) and sub-section (2) shall apply to,—

(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force;

(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act; (c) any dispute with respect to any such matter settled by the parties amongst themselves before such commencement; 1 (d) any conversion of any such place effected before commencement of this Act.

(c) any dispute with respect to any such matter settled by the parties amongst themselves before such commencement;

(d) any conversion of any such place effected before such commencement by acquiescence;

(e) any conversion of any such place effected before such commencement which is not liable to be challenged in any court, tribunal or other authority being barred by limitation under any law for the time being in force.

Bare reading of above provisions in Act, it is clear that no dispute with respect to place of worship is maintainable before any Court in India. Section 3 (a) provides some exceptions, which are applicable in case of ancient monuments which are covered by other law- Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958). There are different authorities and law regarding ancient monuments, which is not open for any litigation.

Monday, April 27, 2020

26th April 2020
Survival of the fittest- Pandemic of Nobel Coronavirus (Covid19):
"Survival of the fittest" is a phrase that originated in 1868 from Darwinian evolutionary theory as a way of describing the mechanism of natural selection -a natural process that results in the survival and reproductive success of individuals or groups best adjusted to their environment and that leads to the perpetuation of genetic qualities best suited to that particular environment.
In Dec. 2019, Chinese city of Wuhan first reported an outbreak of atypical pneumonia caused by the 2019 novel coronavirus (2019-nCoV). From there, virus spread to 213 countries and as on 24th April 2020, 2 724 809 were tested infected; 187 847 died of this; numbers of infected people and deaths are rising as so far there is no vaccine or cure from infection. Many research institutions are working to invent vaccine for virus. Many patients have survived the infection without treatment as their own immunity saved them.
The genomic data for COVID-19 show that its spike protein contains some unique adaptations. One of these adaptations provides special ability of this coronavirus to bind to a specific protein on human cells called angiotensin converting enzyme (ACE2).
Wide range of symptoms may appear 2-14 days after exposure to the virus: Fever, Cough, Shortness of breath or difficulty breathing, Chills, Repeated shaking with chills, Muscle pain, Headache, Sore throat, New loss of taste or smell.
COVID-19 is a respiratory disease. That means, for most patients, the virus will start and end with the lungs. In the early days of infection, the virus invades lung cells. Specifically, this can damage the cilia, the hair like projections that move around to keep airways clear of mucus and debris. When cells get infected, they die and shed off, adding to the debris and hindering your body's ability to keep stuff out of the lungs and trachea. The inflammation causes damage, and damage causes more inflammation, and this cycle could continue until there's no healthy tissue left. And inflammation might explain why a dry cough is one of the most common symptoms. Same goes for shortness of breath and phlegm production.
For some severe and critical cases, though, symptoms can escalate into acute respiratory distress syndrome (ARDS) that happens when fluid builds up in the lungs. Inflammation triggers a flood of immune cells that are meant to target the infection. They're usually isolated to infected areas, but sometimes the body goes overboard, which is when the immune cells start killing anything in their path, including healthy cells. ARDS is often fatal. In critical cases, it can lead to respiratory failure, requiring advanced life support. ARDS treatment includes supplemental oxygen and mechanical ventilation. The goal is to get more oxygen into the bloodstream since the lungs can't. When this treatment doesn't work, the lungs are basically too flooded to get any oxygen into your bloodstream. That's the cause of most COVID-19 deaths. And even when a patient survives this phase, they could be left with permanent lung damage. Most people who die of the disease will do so within 14 to 19 days of infection.
As of now, there is no vaccine for the virus. The best way to avoid getting sick is to avoid being exposed. COVID-19 is contagious, spreads easily from person to person through coughing and sneezing. To avoid, wash your hands often and avoid close contact with people who are sick and clean and disinfect surfaces that you use daily. COVID-19 should be taken seriously, but most cases are survivable, so stay home, stay clean.
Asymptomatic persons are those who probably have a mild form of the disease but don’t show any symptoms. These people become carriers and pose a risk to vulnerable person with low immunity.
If spread of the virus is not contained, then it can spread by community transmission which occurs when the source of the disease is untraceable and the virus is spread through a large number of people.
A very low proportion of the population has developed antibody response to Covid-19.
While people who have recovered from the infection have antibodies against the virus, some of them have very low levels of neutralising antibodies in their blood, “suggesting that cellular immunity may also be critical for recovery”.

The development of immunity to a virus through natural infection is a multi-step process that takes place over one to two weeks. The body responds to a viral infection immediately with a non-specific innate response in which macrophages, neutrophils, and dendritic cells slow the progress of the virus and may even prevent it from causing symptoms. This non-specific response is followed by an adaptive response, where the body makes antibodies called immunoglobulins that specifically bind to the virus.
The body also develops cellular immunity by making T-cells to eliminate other cells infected with the virus. This (cellular immunity) combined adaptive response may clear the virus from the body, and if the response is strong enough, may prevent progression to severe illness or reinfection by the same virus.
People capable of developing immunity against this virus are surviving and showing no symptoms, but they can spread infection.
Many countries across the world that have been forced to take the tough decision of locking down their populations at home to halt the spread of the pathogen. While crucial to break the chain of infections, these measures gravely threaten economic activity, with many likely to lose their jobs or have their pay cut as nations brace for a recessionary period. Residents in specified hot spots are not allowed to step out of their homes, with the authorities’ home-delivering essentials to their doorstep. People are advised to maintain social distancing.
This closure of economic activity or lock down cannot last long. Every production or manufacturing involves labor which is provided by human. In absence of labor, there cannot be any production or manufacturing. During lock down, people would consume the stock or inventories. Similarly, food production needs labor in sowing and harvesting; without this, people would feed on reserve or buffer of grains like wheat, rice. Crop also needs time in sowing and harvesting; in a season; without this future availability of food would be affected. When end of lock-down in not certain as cure / vaccine of virus yet not invented, Countries would have to accept loss of population at cost of economic activities till invention made in near future, say in months. If this last long, this would cause substantial loss of population and would damage supply chain of demand and supply of many necessities, would make people frustrated.
Homo sapiens is struggling for its survival. Population is divided into two, one who can resist infection and others who cannot. How would they co-exist? How long would lock-down and social distancing would continue? In this complex civilised world, social interaction and economic activities are essential and time is essence as people cannot remain locked-down for long.
“Necessity is mother of invention” said ancient Greek philosopher Plato. Professor of Psychology Barbara Fredrickson argues that HOPE comes into its own when crisis looms, opening us to new creative possibilities.
Let us hope for the best and adapt to new realities of existence on earth.

Friday, December 13, 2019

12th Dec. 2019
In India, The Citizenship (Amendment) Bill, 2019 amends the Citizenship Act of 1955 to give eligibility for Indian citizenship to illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, and who entered India on or before 31 December 2014. The bill does not include Muslims.
The passage of the bill caused protests in India. Internet was shut down in the north-eastern state of Assam and curfew declared in Assam and Tripura due to huge protests. However, the army had to be called in to deploy as protestors defied those curfews. Railway services were also suspended.
The main opposition to Bill is that it is against secular constitution of India. The Preamble serves as an introduction to the Constitution. The Preamble was amended by the 42nd Constitutional Amendment Act in 1976, which determined to constitute India into a Sovereign, Socialist, Secular, and Democratic republic. It secures justice, liberty, equality to all the citizens of India and promotes fraternity among the people. The term secular in the Constitution of India means that all the religions in India get equal respect, protection and support from the State. Articles 25 to 28 in Part III of the Constitution guarantee Freedom of Religion as a Fundamental Right.
In my view the bill does not violate the Constitution of India as these provisions are applicable to citizen of India and not for those who have yet to become citizen.
The illegal migrants from Bangladesh who are Muslim, living in border states of India are protecting most as they are likely to be deported and are not included in National Citizenship Register after their illegal entry in India since long ago.
The National Register of Citizens is a register maintained by the Government of India containing identification of Indian citizens of the Assam state. The register was initially, specifically made for Assam state of India. The register was first prepared after the 1951 Census of India and since then it has not been updated until recently. The process of updating of state's part of NRC in the state of Assam started in the year 2013 when the Supreme Court of India passed an order for its updating. Since then, the Supreme Court of India has been monitoring it continuously. This has created crisis of identity of citizenship in Assam.
The bill was also criticized by the United States Commission on International Religious Freedom. USCIRF is a U.S. federal government commission created by the International Religious Freedom Act (IRFA) of 1998. This is contradictory to the 2019 USCIRF report, the chairman Tenzin Dorjee disagreed with the commission's designation of India as a CPC citing having lived in India for 30 years as a religious refugee stating that "India is an open society with a robust democratic and judiciary system. India is a great civilization, and since ancient times she has been a country of multifaith, multilingual, and multicultural / diversity.
United State of America is also struggling with problem of illegal migration and so far not able to resolve this problem and taking small steps like erecting walls on border; Deferred Action. USA has not taken any legislative step to grant citizenship to illegal migrant or identify such illegal migrants in Census of 2020 as Court did not allow question on citizenship in US Census of 2020.

Wednesday, April 24, 2019

24th April 2019

Sexual Harassment at workplace – Supreme Court of India
A woman working as assistant in apex court in India, on oath in details, accused the present Chief Justice of India Mr. Justice Ranjan Gogoi of sexual harassment. She further in details accused Judge for orchestrated a campaign of retaliation against her and her family when she refused his advances last October 2018. Judge has denied the charges against him, saying there were forces at work to “deactivate” the position of chief justice. The complainant woman and his other family members were dismissed from their respective jobs as victimization. The Supreme Court Bar Association and the Supreme Court Advocates on Record Association, representing lawyers practicing in the Supreme Court of India, have been critical of the Chief Justice’s handling of the case against him; when Judge himself is judging cause against himself. One lawyer subsequently has alleged on oath that there is conspiracy against Judges. Bench of judges is examining this affidavit on conspiracy and summoned chiefs of the Central Bureau of Investigation, Intelligence Bureau and Delhi Police in chamber to talk about conspiracy theory. Union minister Arun Jaitley on Sunday in his Facebook post said lending shoulder to Judge “completely unverified allegations coming from a disgruntled person with a not-so-glorious track record is aiding the process of destabilization of the institution of the Chief Justice of India.
The events and views expressed above, shows an inquisitive fact about what is cooking up in apex court. The allegation of woman cannot be ignored and must be examined without any biased. Judge is a human being who can be susceptible to wrong doings. The allegations of sexual harassment against Judge holding such high court is not new. Earlier a Law intern alleged sexual harassment by Justice AK Ganguly, a Judge in Supreme Court of India which Judge refuted. A three-member panel of SC judges had indicted Justice AK Ganguly on December 6, 2013 saying 'prima facie' found the allegations correct.
The complainant’s affidavit raises serious allegations of sexual harassment and abuse of power of the office of CJI. The CJI must also explain the larger conspiracy angle he attached to the allegations – who would attack the judiciary and why?

The Supreme Court cannot continue in silence and wish away the complaint. The Internal Complaints Committee set up to deal with sexual harassment must look into the issue immediately. It is incumbent on the senior-most judges to ensure fair and transparent proceedings in the matter.
There is need to revive The Judicial Standards and Accountability Bill which 15th Parliament of India in 2014 could not pass, which tries to lay down enforceable standards of conduct for judges.  It also requires judges to declare details of their and their family members' assets and liabilities.  Importantly, it creates mechanisms to allow any person to complain against judges on grounds of misbehavior or incapacity and subsequent discharge from the office. At present, even if allegations against a Judge are found to be true, Judge cannot be removed from office without impeachment proceedings in Parliament of India. Impeachment is a difficult process when parliamentarian are divided in fractions. Since independence in 1947, I do not think if any judge was ever impeached. I cannot believe that all Judges are morally correct and are competent to hold public office till retirement when society is full of corrupt practices.

Sunday, October 7, 2018

Supreme Court of India on Benefit of doubt when given in criminal trial

Supreme Court of India in Jose @ Pappachan v. The Sub- Inspector of Police, Koyilandy (2016) 10 SCC 519 in the following words:
"53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused.
Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."

Supreme Court of India on consideration of circumstantial evidence in criminal trial

Supreme Court of India in Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, the Supreme Court made the following observations, when considering convictions made on the basis of circumstantial evidence:
"Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between 'may be true' and 'must be true'. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively."

Friday, September 28, 2018

Adultery under Section 497 IPC is no longer a crime, could be a ground for divorce

On 27th Sept. 2018, Supreme Court of India in case Joseph Shine Vs. Union of India WP Criminal 194/2017 held that adultery u/s 497 Indian Penal Code is not an offense. Adultery could be a ground for divorce. Section 497 reads: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery." Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married woman in adulterous relationship to file a complaint. But same right was not available to an aggrieved wife if her husband was found to be in an adulterous relationship. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary. It is discernible that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution
We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere.
To treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We may also usefully note here that adultery as a crime is no more prevalent in People‘s Republic of China, Japan, Australia, Brazil and many western European countries The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party.