Posted in Career Tips

Should You Pursue a Trial or Appellate Career? A must-read guide for aspiring lawyers!

Do you want to pursue a legal career but are unsure about the area you should specialize in? Are you aware of your options but are facing difficulty in deciding?

Surely there may be a million questions running through your mind so let’s just sort it out first!

First of all, you need to explore your options. Ask yourself this: do you want to try cases, or do you want to argue appeals? In other words, do you want to be a trial lawyer or an appellate lawyer?

Pros and Cons of becoming a Trial Lawyer

The most significant motivating factor for trial lawyers is that they get to assemble and design their own cases. Some people believe this is where the real creativity is. Apart from this, if you want to remain in the spotlight, then trials are the way to go (unless you’re interested in singing or dancing; which can’t really happen in the courtroom). It’s like the courtroom is your stage, and you’re the lead performer.

But that comes with immense pressure.

Sure, building a record on your own may be interesting and fun, but it has its drawbacks too: creating a record from scratch can be quite tedious and time-consuming. Not only this, but it is also hard to assemble a record without enduring the flipside — discovery — which can be quite a drawback itself.

Not only this, some trial lawyers actually become machines. They have to work day and night, without a break – even if they really need one. As per a lawyer, trials are incredibly stressful and leave you sleep-deprived. So it can be said that trials have a thrill only if you’re willing to take on all this pressure!

Therefore, we wouldn’t recommend doing this in the long run. We believe that you can instead channel this time and energy into something more useful; let’s say in arguing an appeal?

What is so special about Appellate Practice?

Becoming an Appellate Lawyer has several advantages. To be among the Appellate attorneys, you do not have to spend days, or even months, going through hundreds of documents or listening to testimonies (all of which may turn out to be useless in the end), or play incasilly games that pretrial work requires – someone else would have already done all of that for you.

Some people may argue that it is a tedious job – a job which does not encourage you to think on your own – however, that is not true. Best Appellate attorneys consider the importance of designation and work to craft an adequate appellate argument, which is an art in itself. Crafting those arguments may involve sifting through a smaller sandbox than creating the entire trial court record, but it’s not necessarily a boring sandbox. It includes many interesting tasks such as thinking about the standard of review; selecting arguments that are worth making; identifying obscure legal issues, and preparing and delivering a persuasive oral argument.  Appellate work may offer plenty of stuff which requires creative skills. Appellate attorneys get their facts straight –they offer you more than the surface analysis of the situation.

Let’s also not forget the peaceful work environment – appellate work does not require many hands. Therefore, lawyers work in small groups which helps them develop interpersonal skills and focus on the small details. Some people believe that due to this reason, appellate lawyers do not make big; but we tend to disagree. Our team consists of professionals that have had their big break quite a few times!

Becoming a trial lawyer has its pros, sure, but are you more interested in working as a machine all your life, or do you want a life where you look forward to enjoying work every day? Think wisely!


ABOUT THE AUTHOR

William Ward

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William Ward is the chief content editor and copywriter at Brown Stone Law Firm. He is best known for his informative law-related blogs and articles about the trends of the law industry and how one cope up various law challenges. He has been regularly publishing various blogs on multiple law-related topics which are frequently asked.

Posted in Technology

Climate Change and ICT: Interconnections and Solutions

“It is now clear to most observers that ICTs have a very important role to play here. Recognition of this at the international level will provide countries with a solid argument to roll out climate change strategies with a strong ICT element.”

Hamadoun Toure, ITU Secretary-General (2011)[1]

Numerous documents, policy papers, and research symposiums have called for the need for recognition of the value of Information and Communication Technologies (ICTs) in monitoring deforestation, crop patterns, and other related matters that call for environmental concern. Answering with common prudence, with Information and Communications Technologies (ICTs) having penetrated so deep into our day to day personal as well as professional lives, it is highly unlikely that it wouldn’t pose a solution to the climate change issue, alongside a number of possible threats.

If the whole climate change solution regime were to be divided into two broad segments for the convenience of intellectual discourses, the first one would be preventive measures, and the second segment would be measures towards mitigation and adaptation. ICTs play a significant role in both the segments, starting from creating awareness aimed towards preventing environmental degradation to mitigating and adapting using remote sensing and telecommunication systems.

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APPLICATION OF ICTs TO FIGHT CLIMATE CHANGE

Information and Communication Technologies (ICTs) can in many ways be used to fight, prevent, and defend climate change as well as its effects. Following subheadings attempt at exploring some of the ways in which ICTs can be proved helpful in doing so.

Transformational innovation

Information Technology can help us a great deal in enabling transformational innovation. In a contextual note, the IoT (Internet of Things) will help us transform our lives, social and economic, in ways as dramatic as the Internet did over the past two decades. The development of the Internet of Things and related technologies mean almost limitless possibilities for incorporating smart and eco-friendlier technologies into human lives that could not have been imagined a few years ago.

Innovations like smart cities, smart households, and smart transportation, inter alia, will help the human beings to raise their standard of living in the social set up while minimizing their footprint on the planet Earth and its climatic setting. Smarter technologies and equipment will mean a proportionate increase in the effectiveness of resource consumption, meaning less and less resource will have to be consumed to sustain more and more number of lives.

Smarter urban planning using ICTs

Smarter urban planning using Information and Communication Technologies (ICTs) goes a long way in ensuring energy efficiencies in the planned urban societies. A few recent projects feature this as their primary focus and are working on reducing the impact of climate change by applying information technologies and measures for improving energy efficiency in urban planning.[2]

Adaptation using information dissemination technologies

Information and Communication Technologies (ICTs) provide users with a large range of options to collect, process, and disseminate information at any point of time. More importantly, they also provide us with the option to easily broadcast any sort of information to a selected audience irrespective of the nature and volume of the information. This feature of ICTs helps us a great deal in disseminating information to large audiences, for example via mobile phones. This can help governments and other relevant stakeholders address major adaptation risks such as food and water shortages through the making of provisions for early warning systems and related facilities.

Capacity Building

Capacity Building is basically a UN terminology that essentially means access to information and increasing knowledge among policymakers and the general population. In the context of telecommunication networks, capacity building has the contextual meaning of expansion of telecommunication networks to serve a greater number of populations.

Greater access to information by the general population essentially implies increasing potential for dissemination of weather-related information through mobile phone networks. Increased dissemination of weather-related information amongst the general masses will not only help the building of community awareness regarding the growing impacts of climate change but also will make sure a more effective warning and adaptation system.

Asset management for Water Distribution Networks

Monitoring, controlling, and managing water distribution networks form a large part of the climate change adaptation system. Information and Communication Technology (ICT) can make this job easier by helping with buried asset identification and electronic tagging. It can also help with the instalment of smart pipes which will ensure the efficient use of water resource. It’ll also help a lot in just in time repairs and real-time risk assessment.

Smart transport systems

Transport represents 23% of global energy-related CO2 emissions. However, leave alone human development, even human existence cannot be imagined without transport. Information technology comes to rescue over here, by providing for smart transport. ICTs provide us with ways to easily implement alternative ways of powering vehicles, such as with electricity. Smart transport also makes efficient use of routes and traffic data that is available through satellites, to make transport a less burdensome activity.

Awareness and education

This century has been officially proclaimed as the information era, and the role that Information and Communication Technologies (ICTs) play in spreading awareness amongst the general public cannot be ignored. ICTs do an awesome job in spreading awareness and educating the mass. This feature of the ICTs can be very well utilised to spread awareness among the general population regarding the drastic effects of climate change, and also educate the masses regarding mitigation and adaptation strategies.

NEED FOR UPDATING THE LEGAL REGIME

While the ICTs without a single strand of doubt can perform wonders in monitoring, preventing, and fighting climate change and its effects, they have often proved to be birds without wings in the absence of an equally strong legal framework. An accompanying strong legal framework will not only help protect the confidentiality, integrity, and authenticity of the relevant data and information but also help in the effective administration of such systems.

Confidentiality, integrity, and authenticity of the relevant data and information must be protected without any exceptions whatsoever so as to successfully prevent climate change and fight the consequences thereof. A strong legal framework can go a long way in ensuring the same.

CONCLUSION

Accompanied by a strong legal framework, and adequate policy support, Information and Communication Technologies (ICTs) hold immense potential in preventing, monitoring, and fighting climate change successfully. Recognising this at the national and international level will go a long way in framing technologically-efficient climate control strategies with a strong ICT element therein. Lobby and policy support at local levels to include ICTs in climate control strategies will also be immensely helpful.

[1] In a symposium, organized by the UN International Telecommunications Union (ITU) and hosted by Ghana’s ministry of Communications in Accra in July 2011.

[2] Energy and Buildings, Volume 115, 1 March 2016, Pages 102-111


Note: This post first appeared here.


ABOUT THE AUTHOR

ANSHUMAN SAHOO

Seminar address

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at www.anshumansahoo.com.

Posted in Critical Analysis, Personal Laws

A case for a BAN ON POLYGAMY in India after the Landmark Triple Talaq Judgement

The Supreme Court of India on March 22, 2017, made a mark in history by declaring the practice of Triple Talaq as unconstitutional by 3:2 majority. The court said that it violates the fundamental rights of Muslim women as it irrevocably ends a marriage and is against the basic tenets of Qur’an. This judgement opens the door for challenging Polygamy on the basis of its being arbitrary, unilateral, and unconstitutional.

Sec 494 of the Indian Penal Code, 1860 outlaws polygamy but since the examination of personal laws is a pre-requisite to the applicability of this section, it is legal in the Muslim community as Islamic law allows polygamy for men (only in exceptional conditions) and imposes monogamy on women. Verse 4:3 of the Quran says that,

“And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]

In the pre-Islamic era, men were entitled to have more than one wife. One must not forget the significance of the period and the circumstances in which verse 4:3 was revealed allowing men to marry up to four wives; the battle of Uhud took a heavy toll on men, leaving a large number of widows and orphans. The multiplicity of wives became a social necessity and in verse 4:3 which was revealed after this great battle, the Holy Prophet, allowed polygyny but under the strict injunction that all the wives must be treated with perfect equality. Many Classical jurists interpret the last portion of the verse to mean that polygamy should be restricted as The Quran states in the same chapter that it is not possible to be equitable and fair in these situations; “Ye are never able to do justice between wives even if it is your ardent desire

It is a well-known jurisprudential rule in Islam, that “verses in the Qur’an explain each other,” i.e., the Qur’an is an integral whole and thus the full and proper meaning of any verse cannot be understood in isolation from other verses in the rest of the Qur’an. We can thus logically conclude that a man should marry only one wife. Therefore, the general belief that under Muslim Law, a husband has an unfettered right to marry again even where his earlier marriage is subsisting is egregious and baseless. This is clearly a manifestation of how patriarchal interpretation can prevail over reason and gender equity.

Polygamy clearly violates Article 21 of the Indian constitution as the Right to Life also includes the right to live with dignity. As far as Indian Judiciary is concerned, a catena of Indian case laws suggests that the touchstone of judging laws on polygamy can be our own constitution. In Javed v. The State of Haryana, the court held that “Polygamy is injurious to public morals and can be superseded by the state just as the practice of Sati.”

The flag bearers of Polygamy have contended that banning polygamy would be in violation of Article 25 of the Indian Constitution which guarantees Freedom of conscience and free profession, practice, and propagation of religion. While interpreting the right to Religious freedom, Judiciary takes into consideration the essential religious practices and not the non-essential ones.  Judicial decisions have made an attempt to make a distinction between ‘essential’ and ‘non-essential’ religious practices. In the recent judgement of the Supreme Court in the case of Khursheed Ahmed Khan v. State Of U.P. & Ors , the honourable court reproduced the 1952 judicial precedent in the Narasu Appa Mali case;

“Sharp distinction must be drawn between religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give away before the good of the people as the State as a whole”

There can be no denying of the fact that Polygamy is an anathema to women’s economic, social and emotional well-being and hence, it is clearly opposed to Public order and morality. It is, therefore, safe to conclude that any law in favour of monogamy does not interfere with to right to profess, practice, and propagate religion and does not involve any violation of Article 25 of the Constitution.

Indian Judiciary through its various judgements has made it clear that Polygamy is an inhumane practice which should be eradicated from the society to restore the dignity of Muslim women and achieve the goal of gender justice. The legal reform in personal laws has been one of the critical and yet neglected areas in the Indian Democracy. Muslim women are denied their legal rights in the personal realm despite various rulings of The Supreme Court and various high courts which have declared the practice of Polygamy as unconstitutional. Practices such as polygamy persist in our society despite there being no sanction on these in the Quran.

It is extremely significant to note that a large no. of Muslim countries or countries with a large Muslim population have undertaken significant reforms in marriage and divorce laws. As per the Indian Law Commission’s report, bigamy has been fully abolished or severely controlled by law in most Muslim countries of the world. Turkey and Tunisia have completely outlawed it while in Egypt, Syria, Jordan, Iraq, Yemen, Morocco, Pakistan and Bangladesh; it has been subjected to administrative or judicial control. It is now India’s turn as the World’s largest democracy to put a complete ban on polygamy, thereby ensuring dignity and gender equality to women.


ABOUT THE AUTHOR

Rashi Rawat

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Rashi Rawat is a second-year student from Gujarat National Law University, Gandhinagar pursuing B.A. LLB (Hons.). She has a keen interest in Competition law, Intellectual Property Rights, Family Law, Public International law and Human Rights law. She is also a member of the Editorial Board of the GNLU Journal of Law and Economics and keeps herself updated with the role that law and economics play in improving the efficiency of laws. Being a staunch feminist, she loves to read and research about contemporary issues revolving around women empowerment.  She’s a huge Potterhead and firmly believes in the saying, “It is our choices that show what we truly are, far more than our abilities.”

Posted in Editorial

Democratising the Blogosphere, one blog at a time

So, blogging can aid in social transformation. It helps in building an online identity. It can propel my professional development. But, why me? Aren’t there millions of blogs already? Why particularly should I ‘plus one’ to this vast existing number?

Well, the answer is, because even a single voice does matter, a lot!

Let’s start with an analogy. Suppose, on a lazy summer afternoon, you aren’t particularly happy about how your room is smelling. What do you do? You simply open the windows, and let the fresh air from outside come in – with the hope that the room will freshen up eventually.

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The same applies to the cyberspace. We obviously aren’t happy with the biased and baseless opinions ruling the blogosphere, the fake news circulating the cyberspace, and the hatred being spread through online media – what do we do? We encourage the competent and the young to enter the blogosphere, and make their voice heard.

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The concept is simple – the more diverse the writers base gets, the more the number of people involved ‘consciously’ in the cyberspace, the more inclusive and democratic the cyberspace gets. Tired of reading biased opinions? Get argumentative writers do more writing. Tired of discrimination and hate-speech? Let the discriminated writers reach a wider audience. Tired of shallow speeches? Let the reasoned and wise do the talking. As simple as that.

Sounds good? I bet that is!


ABOUT THE AUTHOR

ANSHUMAN SAHOO

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‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at http://www.anshumansahoo.com.

Posted in International Law

Chemical Attacks on Syria: a blot on Principles of International Law

‘To really change the world we have to change the way people see the world.’

The United Nations, as well as the International Committee of Red Cross, has sincerely initiated efforts to achieve international peace and global security. And success lies in the fact that today there are no conventional wars which devastated masses of lives.

However, the Gulf Crisis, War between Iran and Iraq, Palestine- Israel issue as well as Syrian Gulf War are incidences which throw light on circumstances where humanitarian grounds are actually criticized and international humanitarian law has failed to establish peace. Syrian Civil War is one amongst those armed conflicts which have actually ruined the peace of civilians. Moreover, lethal chemical weapon attacks are a blot, portraying the failure of international law.

Critical Analysis of Chemical Attacks in Syria: A Grave Threat to Human Rights

The recent chemical attacks by the USA on Bassad’s territory under the shelter of humanitarian intervention have actually brought severe criticisms in the international community. This is because the stand taken by the Trump government in support with the UK, France was without the permission of the UNSC and hence these attacks were termed as illegal. In the further pages, there will be a discussion on various international norms which are actually infringed by such stands by countries.

  • Jus ad bellum and jus in bello

The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law, therefore, addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just. Till 2015, the Syrian crisis were not termed as a humanitarian crisis and there was no step taken to rehabilitate or fight for justice of victims.

Moreover, the strikes did not fall within the exceptions to the overall prohibition on the use of force in Article 2 (4) of the UN Charter.  This is because Syria did not consent to the use of force on its territory; the strikes were not authorized by the UN Security Council; Syria’s alleged repeated use of chemical weapons on its own population did not constitute an armed attack that would trigger a right to self-defence for any of the three countries who carried out the strikes. Furthermore, to the extent the strikes should be perceived as a countermeasure in response to Syria’s unlawful use of prohibited weapons, and thus its violation of international law and it must be noted that armed countermeasures are prohibited under the jus ad bellum.

Thus, chemical weapons conflict with the International Humanitarian Law (IHL) principle of distinction that requires parties to a conflict not to use weapons that cannot distinguish between military and civilian objectives.  In the seminal Tadíc case, the International Criminal Tribunal for the former Yugoslavia (ICTY) used chemical weapons as an example of a weapon that is inherently inhumane[1].

  • Principle of Distinction

The principle of distinction specifies that combatants must distinguish themselves from civilians. As a result, combatants must neither deliberately target nor indiscriminately or disproportionally harm civilians. The definition of who falls within the categories of combatants or civilians is therefore of crucial importance in IHL. The concept of “civilian” is “defined in contra-distinction to combatants: civilians are those who are not combatants”. In essence, whoever does not fulfil the criteria of a combatant is considered as a civilian. However, the recent attack by the USA violates the principle of distinction because chemical weapon attack did not just devasted the peace of the Syrian government but also took the lives of many innocent civilians.

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A right to use force to deter the use of chemical weapons would only emerge in customary international law if there is a supportive general practice among states that is accepted as legally relevant (opinio juris). However, not all countries support this hence it is very difficult, at least now, to convert this practice as customary international law. Hence, the chemical attacks by the three governments are unlawful.

ICRC and UN: Hegemony of Big Powers

Although the main aim is peace, still the two organizations have at various times have been in conflict. This is because humanitarian laws and norms have at various times manipulated by UNSC. Although this report has never come out, their conflict is visible in their working. This is because UN is sometimes hegemony of big powers. The greatest example to the argument is US intervention in Iraq and even in Syrian civil war also. So, through these instances, the existence of relevance of laws comes to question – because justice needs to be equal for all.

Missile Strikes: Humanitarian Measures or Brutal Attack on Human Rights

The United Nations is established for ensuring peace and stability at the international level. However, the veto powers to the P5 nations is not always used to fulfil the objective of UN. This is evident from the recent Syrian issue. This is because whenever UNSC tries to take stand against Syrian government it is vetoed by Russia.  Recently UNSC 2554 RESOLUTION which urges all members to ceasefire has been revoked by Russia and Turkey and hence the problem continues.

This intervention was illegitimate because it was devoid of permission of UNSC. Using force for humanitarian purposes in the absence of UN authorization will be compatible with international law if ‘there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief’; ‘it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved’; and ‘the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim[2]. But the Missile strike aimed at curbing the atrocities in Syria didn’t do much good instead it was a brutal attack on human rights.

Conclusion and Suggestions

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It has become the obligation of the states to revive the international humanitarian law. Through diplomatic, economic, and political activities, states can push the parties to the conflict to comply with international humanitarian law and end the targeting of innocent Syrian civilians. Nationwide condemn to states involved in violence and economic blockades can pave a way to deter unlawful force internationally. The time has come when Syrian insurgencies and violence be termed crime against humanity and invoke universal jurisdiction in the matter because justice delayed is justice denied.

[1]  Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1 (2 October 1995), paras. 120-124.).

[2] International Humanitarian Law Sri Lanka Journal of International Law, Vol. 15, pp. 3-6.


ABOUT THE AUTHOR

Divyanshi Shrivastava

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Divyanshi Shrivastava is a second-year student of MNLU Nagpur. She has attended various national and international conferences on law and society. Recently she has been adjudged as the best speaker in a reputed conference. She loves reading and writing. She considers law as a tool to empowerment.

 

Posted in Critical Analysis

Conundrum of Modification and Application of Personal Law, Customs, and Religious Doctrines in Society

Personal Laws and Customs are integral to societal behaviour and norms. Invalidating them vide avenues of Legal Fiction often results in intruding into the lives of citizens, thereby eroding their faith in the system. Certain customs seem to be exemplary of alleged inequality; however, they are not always detrimental, especially when the said inequality may be a derivation of a religious sanction or historically accepted tradition. In this regard, would it not be appropriate to state that ‘To erode a man’s faith is perhaps a crime, even when facilitated by an institution of Justice.’

In Narasu Appa Mali v. State of Bombay[1], the Bombay High Court held that Personal Laws are not a part of Article 13, nor they are outside the ambit of Judicial Scrutiny. Justice Chandrachud in the Indian Young Lawyers Association v. The State of Kerala[2] overruled, by implication, the celebrated judgement, and presented refuting arguments on the same. The article presented herewith attempts to include additional arguments in the said matter, in addition to those stated in Narasu Appa.

Firstly, MP Jain emphasized that Personal Laws are not covered under Article 13. Courts deemed it prudent not to interfere with these laws on the touchstone of fundamental rights.[3] In the case of Krishna Singh v. Mathura Ahir[4] the Apex Court while considering the question whether a Sudra could be a Sanyasi or Yati held that Part III of the Constitution is not applicable to Personal Laws, and if the constitutional validity of such Personal Laws is to be verified, then the trail of study, research and application must be carried out with reference to all sources of the laws being considered. The same was upheld by the Hon’ble Supreme Court in the case of Madhu Kishwar & Ors v. State Of Bihar & Ors.[5] On the issue of constitutional validity, Chief Justice Khehar and Abdul Nazir J. held that Triple Talaq cannot be challenged as it had been in practice for over 1400 years, continues to be an accepted norm, and is also included in Sharia Law. They further held that Triple Talaq is not open to challenge on the grounds of violation of Fundamental Rights as it was a Personal Law.[6]

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In the case of Harvinder Kaur v. Harmendar Singh[7], the Delhi High Court was required to decide as to whether the provisions of Section 9 of the Hindu Marriage Act,1955 providing for restitution of conjugal rights is in violation of Article 14 and Article 21 of the Constitution. The court upheld the validity of the section and also held that ‘the introduction of Constitutional Law in the home is most inappropriate, and it could be a ruthless destroyer of the marriage institution and all that it stands for’. It was also held that in the privacy of the home, and in married life, neither Article 21 nor Article 14 are appropriate for application. Marriage is an integral part of every religion and hence in the case Sardar Sydena Taher Saifuddin Sahed v. State of Bombay[8] it was stated that the exception to the Freedom of Religion as provided in Article 25(2) enabling the state to frame laws for ‘social welfare and reform’ cannot permit the legislature to ‘reform’ a religion and transform its orignal existence or identity.  In this case, the Court elucidated that the intention of Article 25 (2) (b) is to cover only those laws that do not contravene the essentials of a religion, and a law which infringes such right cannot be permitted in the name of social reform because such action would place a religion out of existence. The expression ‘social reform’ doesn’t extend to the basic and essential practices of religion, which is guaranteed by Article 25(1) itself. In fact, it sanctions ‘social’ reform and not ‘religious’ reform.  It has been observed by H.M. Seervai in the case of Inayatullah v. Gobins Dayal[9] that, Hindu and Mohammedan Laws are so intimately connected with religion that they cannot readily be dissevered from it. Personal Law is intrinsic to Religion, and it should hence be the prerogative of the doctrines of religion, to decide what is a part of that particular religion.

In case of a conflict between religious practice and the need for social reform, religion must be the dominant force. [10]A similar viewpoint was observed in the Constitutional Assembly debate, where Naziruddin Ahmed pleaded that the abrogation of a Personal Law should not be treated as a regulation of secular affairs surrounding a religion or as a measure of social welfare and reform.[11]

Additionally, in the early years of British rule in India, there was a policy of non-interference in religion and laws of Muslims. A manifestation of such non-interference is The Hastings Plan of 1772 and Article xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims in all suits regarding inheritance, marriage, caste and other religious circumstances or institutions’. The Hastings Plan of 1772 provided for Maulvis (Muslim Priests) to help and advise the courts on matters of Muslim Personal Laws. Muslims continued to follow their un-codified personal laws in matters such as succession of property, marriage and divorce. There was no interference from the courts in the Personal Laws of people.

It is also said that Personal Laws form the immutable element of religion. This is because there is always, even above the constitutional law or a written transnational law, an immutable unwritten higher law rooted in nature or reason which is more precious and deserves to be zealously guarded against a passing law written by a particular legislature at a given time. Religious personal laws are divine and inviolable because such laws are deemed to be an ordinance by God or the Prophets. Law cannot become a fulcrum of change, if society is unwilling to accept them.[12] Similarly, Gudrun Kramer asserts that justice can be realized by various means, as long as they do not conflict with the immutable elements of divine law.[13] Now, if it is possible to amend Sharia law, the problem remains ‘who has the right to reform these laws?’[14]This is because what constitutes essential parts of religion, is determined in respect of the doctrines of that religion itself.[15] Any institution of state should not be given unchecked authority to decide upon the essence of religious denomination and the (un)essential practices thereof.[16] It is also submitted that in the exercise of the power to regulate, authorities cannot sit in judgment over the professed views of the adherents of the religion to determine whether the practice is warranted by the religion or not. This is not considered to be their function.[17]

For instance, as stated by the court in the Shirur Mutt case, if the tenets of any religious sect of the Hindus prescribe that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be recital of sacred texts in terms of marriage, all these would be regarded as parts of religion. Under the Hindu religion, marriage as a sacramental union implies that it is a sacrosanct union; such a marriage then cannot take place without rituals and ceremonies.[18] Under the Muslim law, however, accordance of marriage is not a sacrament but a civil contract hence consent of the parties is integral to a Muslim marriage.[19] Under the Parsi[20] and the Jew[21] laws their respective religious ceremonies, ashirbad and katuba are considered to be essential to the religions. It is important that all these different observations are respectively respected and not placed in a hierarchy, thereby pitting one religious approach against another.

Thirdly, the acclaimed jurist H.M. Seervai has observed that it is not uncommon in a Constitution to make express provisions for matters to which its makers attach great importance, instead of leaving them to the dilatory and hazardous process of litigation.[22] Hence, if personal laws are not mentioned specifically in Article 13 of the Constitution one cannot presume the fact the personal laws come under the ambit of laws under Article 13.

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Fourthly, bringing Personal Laws under the wide umbrella of Judicial Scrutiny goes against Art. 29 of the Indian Constitution. Article 29 protects the interests of minorities by making a provision that any citizen/section of citizens having a distinct language, script or culture have the right to conserve the same.[23] While framing a law it has to be borne in mind that cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for a threat to the territorial integrity of the nation.[24] The Supreme Court in T.M.A Pai Foundation v. State of Karnataka and Ors.[25] reiterated that: The essence of secularism in India is recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole united India.

Therefore, a harmonious construction is very much required between Religion and Society, by delving deep again into this issue. Law would never be able to become the Fulcrum of Change, if it is not accepted by society.

[1] State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.

[2] Indian Young Lawyers Association v. The State of Kerala 2018 SCC OnLine SC 1690.

[3] 1 MP Jain, Indian Constitutional Law 990 (5th ed. 2003).

[4] Krishna Singh v. Mathura Ahir, (1981) 4 S.C.C. 421

[5] Madhu Kishwar  v. State Of Bihar, (1996) 5 S.C.C.  125.

[6] Shayara Bano v. Union of India, A.I.R. 2017 S.C. 4609

[7] Harvinder Kaur v. Harmendar Singh, A.I.R. 1984 Del. 66.

[8] Sardar Sydena Taher Saifuddin Sahed v. State of Bombay 1962 AIR 853.

[9] Inayatullah v. Gobins Dayal, (1885) I.L.R. 7 ALL. 775.

[10] Khursheed Ahmad Khan v. State of Uttar Pradesh, A.I.R. 2015 S.C. 1429.

[11] VII Constitutional Assembly Debates, 540-41 (1948)

[12] Justice D.M. Dharmadhikari, Law: Fulcrum of Change?,(2013) 4 SCC J-44

[13] Rudolph C. Barnes, Jr., Religion, Law and Conflicting Concepts of Legitimacy (2016).

[14] Myriam Sfeir, Round Table Personal Status Laws 21 (2006).

[15] The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others (1983) 4 SCC 522

[16] Mohammad Ghouse, Freedom of Religion and Judicial Review: A Critique of the Canon of Adjudication,  The Indian  Law Institute (Dec. 22, 2016), http://14.139.60.114:8080/jspui/bitstream/123456789/712/31/Freedom%20of%20Religion%20and%20Judicia l%20Review%20.pdf.

[17] Jesse Cantwell v. State of Connecticut J., 310 U.S. 296 (1940)

[18] Paras Diwan, Law of Marriage and Divorce 18 (7th ed. Universal Law Publishing)

[19] Ghulam Kubra v. M. Shaf, A.I.R. 1941 Oudh. 284.

[20] Parsi Marriage and Divorce Act, 1936 § 3 cl. b

[21] Benjamin v. Benjamin, I.L.R. 50 Bom. 359.

[22] 1 H.M. Seervai, Constitutional Law of India  (4th  ed. Universal Law Publishers 1991)

[23] Indian Const. art. 29

[24] Law commission of India Consultation Paper on reform of family law, 9 (31 Aug. 2018)

[25] T.M.A. Pai Foundation v. State of Karnataka, (1994) 2 S.C.C. 195


ABOUT THE AUTHOR

Deeksha Sharma

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Deeksha Sharma is currently a second-year student at Dr. Ram Manohar Lohiya National University, Lucknow. Her areas of interest are Constitutional Law, Arbitration Law and Criminal Law. She has written many papers, especially areas covering women and her rights. She has won “Best Memorial” (Petitioner) at M.C Chagla Memorial Moot, GLC Mumbai.