Now happening – The Law Blog

Is it their duty as Supreme Court judges to protect the Constitution and also the citizen’s faith in the judiciary?

Posted on 13 Feb 2018 by The Law Blog

“The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.”

The questions revolve around Justice Deepak Mishra’s arbitrary appointments of benches for cases. A press conference is a grave step, must have taken excessive courage for those judges to come out of their way and set a precedent. This event had taken place on the 12^th of January at Justice Chelameswar’s residence. When questioned about the reason behind the gathering Hon’ble Justice Chelameswar said that the judges were “left with no choice” other than to communicate to the nation the many “less than desirable things” those have happened “in the last few months”. They said in their statement that “certain judicial orders passed by this court” have “adversely affected the overall functioning of the justice delivery system.” Justice Chelameswar said that all four of them are “convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country.”[1]

All the four judges who had participated in the press meet i.e. Justice J. Chelameswar, Justice Ranjan Gogoi, Justice MB Lokur and Justice Kurian Joseph have had a remarkable record of integrity, intellect, and impartiality. This step taken by them to inform the public about the lack of impartiality in deciding cases or in the appointment by the current CJI, Justice Deepak Mishra can be considered as their last resort. The replies given by them during the press conference can be recognized as their deep anguish and their urge to protect the democracy and the Supreme Court. They felt that it was important to educate the country about the absence of unbiasedness by the CJI in the administration of justice. They additionally said that they didn’t want the nation 20 years from now to feel that they had “sold their souls”.

The conference majorly highlighted the increasing rift between the Senior Judges and the CJI. Such a situation in the present scenario where there are a million controversial and landmark judgments which were given in the recent times and which are going to be reviewed will end up being questioned as they were given under the supervision of the current CJI, who is accused by the Senior Judges of being partial. The Adhaar card decision was opposed by Justice Chalameshwar. This is true and the linking of Adhaar has always been an issue of debate and also this was the same conclusion given by the committee appointed to look into the privacy matters when it comes to the draft policy on data.

We’ve been disappointed more often than not with the happenings of the Government and the Judiciary. There are a few people who also argue that when this took place the judiciary that is supposed to serve as a cornerstone to solidarity and justice has taken a downward spiral when it brazenly displayed disparities within itself. In my opinion, no rational or prudent person would have or will ever have such a utopic idea about one of the most hypocritical concepts that have ever sustained existence. The “fact” that an institution has disparities is but human and not news that has the shock factor it claims to have with it.

The four Judges were absolutely right when they took media as a platform to inform about the issue. The constitution has democracy as a concept enshrined in it. When the Judges informed them about the dangers which lie ahead to the public, they were well acting within their rights. If there is no democracy, there is no Constitution and no constitutional democracy. Needless to say, that independence and impartiality form the basic structure of the Constitution. A strong and united judiciary is the sine qua non for a strong and vibrant democracy. If the judiciary of a country is divided and polarized, it will have a direct effect on the very survival of democracy in that country.

Nobody is still aware of the reasons behind such a drastic step taken by the Senior Judges. The correctness can still be questioned and the issues should be sorted in a way they are supposed to be. The general public being completely unaware of the internal discrepancies will form its opinion on the matter and deal with it differently; such a thought process once initiated will definitely raise questions on the stability of the Judiciary.

[1] http://www.thehindu.com/opinion/op-ed/should-the-four-sc-judges-have-dissented-publicly/article22466399.ece

ABOUT THE AUTHOR

Deepa Karanam

Deepa Karanam is currently a third-year student at Symbiosis Law School, Hyderabad. She is currently working as the president of the Legal Aid Centre at Symbiosis Law School, Hyderabad. Social work and charity is something she always looks up to, and the famous JFK saying going by ‘If not us, who? If not now, when?’ fascinates her to keep going and never wait for anybody to bring about a change in the society. An aspiring bureaucrat, her pass time has always been music because of its healing power.

Muslim Women’s Rights and Media Coverage

Posted on 17 Jan 201817 Jan 2018 by The Law Blog

This is an issue covered by an article by Flavia Agnes, which addresses the issue of how the Indian Media refuses to acknowledge the variety of rights that Muslim Women have gained [in the field of divorce] through various judgements and legislations. [1]

The author uses the case of Shayaro Bano, who suffered abuse at the hands of her husband and finally gave her a talaqnama. Now, any woman in this situation has two choices. The first option she has is she can claim that the talaqnama was invalid and remain as his wife. She can rely on many precedents like Shamim Ara v State of U.P[2] and claim that the arbitrary talaq was invalid. Alternatively, she can also accept the talaqnama, thus ending her abusive marriage while also netting a settlement amount through the Muslim Women (Protection of Rights upon Divorce) Act, 1986.

However, we can see that Shayaro Bano chooses to file a PIL instead in the Supreme Court which challenged triple talaq on the ground that it violates the fundamental rights of a woman. This choice is an interesting one since Muslim women already have countless cases like Shamim Ara and Danial Latifi[3], who have clearly set down a number of rules to be followed before declaring a triple talaq valid.

The author argues that the Indian media portrays a Muslim Woman as an entity who is completely stripped off of her rights. Shayara Bano has been placed on the same level as Shah Bano by the media despite the fact that legal recourses already existed in her case.

Experts like Syeda S Hameed believe that a judgement on the Triple Talaq issue (which has come out) will only provide further ammunition to the media for targeting Muslims. This will, in turn, help right-wing nationalist groups such as the RSS to use this to fuel their hate rhetoric. This will only strengthen the cycle of hate with the media as a facilitator and can in no way serve the higher purpose of the unity of the country.

Thus, it is the author’s argument that a declaration by the Supreme Court on this issue will only serve to destroy the average Muslim’s public image and provide no substantial legal benefit.

This is an intriguing stance taken by the author, but I believe it is not without fault. Sanjukta Basu in a critique of Agnes’s article points out that the entire practice of triple talaq is unilateral and at the option of the husband. [4]Thus, any defence of the same would be futile. Basu also questions the reason why Agnes criticizes such a move taken by Shayara Bano. She believes that a court order is a massive endorsement for women’s rights and the fact that Muslim women are reaching out to the Supreme Court to seek their constitutional rights is something that the author should respect.

[1] Agnes, F. (2016, May 14) Muslim Women’s Rights and Media Coverage. Retrieved from http://www.epw.in/journal/2016/20/web-exclusives/muslim-womens-rights-and-media-coverage.html

[2] Shamim Ara v. State Of U.P., KLT 2002(3) (SC) 537

[3] Danial Latifi v. Union of India (2001) 7 SCC 740

[4] Basu, S. (2016, September 19) Triple talaq: Why Flavia Agnes’ position on Shayara Bano’s SC petition is anti-women. Retrieved from http://www.firstpost.com/india/triple-talaq-why-flavia-agnes-position-on-shayara-banos-sc-petition-is-anti-women-3010878.html

ABOUT THE AUTHOR

Ashwin Ajimsha

Ashwin is currently in the second year of B.A.L.L.B. in Jindal Global Law School, Haryana. Interested in research/writing and loves movies, especially if they are law related.

Constitutional Law, Now happening

And now, who will defend us?

Posted on 11 May 201711 May 2017 by The Law Blog

Laws were created to regulate the coexistence of man within a society. Each country has a Supreme law, usually called Carta Magna or Constitution that establishes the foundations and principles by which it will be governed. It set down the main rights and obligations, as well as the guarantees that serve as a limit, to avoid abuse of power.

These constitutions were created by man, and modified by man as well, generally preceded by events that impact the country and the society to which they belong. This indicates that there is some degree of vulnerability because of the endowment. Mechanisms for their modification are also established.

In Paraguay, there are two ways: the Reformation and the Amendment. The first has a more demanding process, in which once the need for reform it´s declared, it should be called to elections for the conventional constituents who will be in charge of modifying the constitution without any limits regarding the modifications that can be made.

The second way, called Amendment, has a more simplified procedure, in which once it´s approved by both chambers of the congress, a referendum is carried out. By having a simpler procedure, there are some limitations. This can´t be used for changing …the provisions affecting the mode of election, composition, duration of mandates or attributions of any of the powers of the state…^[1], among other rights relating to life, liberty, environment, etc.

This controversy already a decade long, but more latent in these last months, next to the internal party elections that precede the presidential elections of 2018, is the one referring to the re-election. At this moment it is prohibited in the country by the article 229 of the National Constitution that establishes that the presidents “… may not be reelected in any case …” The article mentioned is under the title of “Duration of the mandate” So if it is intended to modify the constitution to allow re-election, this can´t be done with the amendment procedure, as is established in the article mentioned in the previous paragraph.

Opinions about the interpretation of these articles are divided. In one side, there are jurists and politicians who claims that “re-election doesn´t affect the duration of mandate. It doesn´t change the five years of duration that indicate the constitutions. It only establishes the possibility of having one more period”. Following this interpretation, attempts have been made to amend this provision, by being the fastest route.

In the other side, and according to the interpretation of some jurists, they affirm that “the purpose of the norm by prohibiting the re-election is that the duration of the mandate can be only for 5 years, without the possibility of its extension through a new election“^[2] Also taking into account the historical moment in which the present constitution was written, that was after the fall of the dictatorship of Stroessner[3], that lasted in the power 35 years. The purpose was to enable current presidents to perpetuate themselves in power througha legal dictatorship, establishing a more complex procedure to deal with the modifications of such delicate issues.

Not in vain Montesquieu said “Power ought to serve as a check to power”. The Constitution sets limits to power. The Judicial Power is the custodian of the Constitution. It interprets, fulfills and enforces the Constitution.^[4] However, the members of the Supreme Court of Justice are appointed by the Senate Chamber with the agreement of the President. This makes the “judicial independence” guaranteed in the Constitution^[5] vulnerable. In that way, there is a certain mistrust of what the Supreme Court of Justice can determine. So, the question now is, who will defend us?

It is worrying that the interpretations are made according to particular political interests, without taking into account the general interest^[6]. Although re-election is a figure that is used in several developed countries of the world, to include it in our law, we must use the legal way, respecting the Supreme Law. Because the violation of the constitution would imply the breaking of the rule of law.

[1] Article 290 of the National Constitution of Paraguay.

[2] Ramirez Candia, Manuel Dejesús; “Constitutional Law of Paraguay, Volume II”, Pag. 528, Intercolor S.R.L. editor, 2011”

[3] Alfredo Stroessner was a paraguayan military, politician and dictator. He was the 48th president of the Republic of Paraguay between August 15, 1954 and February 3, 1989, where he exercised a dictatorship that lasted 35 years.

[4]Article 247 of the National Constitutions of Paraguay.

[5] Article 248 of the National Constitutions of Paraguay.

[6] Article 128 of the National Constitutions of Paraguay.

ABOUT THE AUTHOR

ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university. She is host of a live TV program about analysis and debate of general interest topics.

Now happening

Idiocracy of Tamil Nadu Politics

Posted on 17 Feb 201717 Feb 2017 by The Law Blog

The demise of Jayalalithaa, the second-longest serving female chief minister in India, who was a popular film actress, a charismatic mass orator, a seasoned politician have not only shaken Chennai but also the power of Centre in New Delhi. It has opened a debate in the media, particularly in social networking sites leading to a drift in All India Anna Dravida Munnetra Kazhagam (AIADMK) .

As of now, O Paneerselvam has the support of only five of the party’s 134 legislators whereas currently, Sasikala claims to enjoy support of 129 of her party’s 134 legislators. Ms Sasikala, who was former Tamil Nadu chief minister Jayalalithaa’s close confidante, is not a legislator and will have to become one within six months if she is made chief minister. The Governor, as per the India today sources said, he has to make sure that the person he invites to form government can win an election within that time and also provide a stable government to the state.However, Strategy of O. Paneerselvam is gradually taking shape and Governor Vidhyasagar Rao is inclined to wait for Supreme Courts verdict in a corruption case against AIADMK chief VK Sasikala, before he invites her to form a government. The verdict is expected this week. If found guilty of having, along with Ms Jayalalithaa, amassed wealth disproportionate to their known sources of income, it could bar her from the chief minister’s office or any other public office thereto.

She has had no firsthand political experience in managing the party and the government together. If Sasikala is able to beguile this diplomacy. It would be interesting to see if she has vision and time to bridge these gaps. With her lack of political experience, no one knows how she will take on the proven political mettle of MK Stalin, the DMK leader and M Karunanidhi’s son.On other hand, If the BJP plays its cards right in the post-Jayalalithaa era and backs the right horses, Tamil Nadu politics might be altered for good.

ABOUT THE AUTHOR

MAHAK PALIWAL

Mahak Paliwal is a student studying in Symbiosis Law School. Though, not a professional writer she has written few blogs and articles. Passionate about writing, this passion was a natural fit. With encouragement from family and friends, Mahak started writing some 3-4 years back. In her free time, she appraises reading various articles or blogs.

Now happening

An unbiased discussion on Jallikattu

Posted on 5 Feb 20177 Feb 2017 by The Law Blog

A Nation’s culture resides in the heart and soul of its people!

Culture shapes our values, belief, norms and, to a great extent, our attitudes and the way we perceive the world around us. And our motherland, the India is known for its unique blend of diverse culture. We take pride in our cultural practices, tradition, custom and we also feel an obligation for its preservence. Jallikattu is one among the prevalent Tamilian culture’s part. Jallikattu, Tamil Nadu’s version of ‘running of the bulls’ that has been banned by the Supreme Court, is back in the limelight once more.

All you need to know about the Jallikattu…

Jallikattu could be referred to as bull taming event typically practiced in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day, third day of the four-day Pongal festival. The term ‘jallikattu’ is derived from the tamil words ‘jalli’ and ‘kattu’. Jalli refers to gold or silver coins. Kattu means ‘tied’. Therefore, combined together it refers to coins being tied to the bulls’ horns, which is considered the prize for whoever tames the bull. The bull that wins is used to service numerous cows preserving the native breed. It is renowned as an ancient ‘sport’, believed to have been practised some 2500 years ago.

An Essential Role of Jallikattu…

Jallikattu events provide the opportunity for bulls to be exhibited. Male calves are kept only in regions with a tradition of sports like jallikattu. In other regions, male calves are sold and taken to slaughter in only a few days. With the reduced availability of males, farmers have to go for artificial insemination. That is indeed a problem. But the region where Jallikattu is in Practice, the male calves are nurtured as part of their family. “For thousands of years, the agrarian society of Tamils has considered cattle as family members. The sole purpose of rearing a bull is for Jallikattu. The sport is a scientific method to pass on the best of genes to the next generation. It’s a method to identify the robust of bulls and create a superior genepool.” There are also some people who depend on the hefty prize money on bull taming. In reality they pursue it as a profession. And that cannot be ignored.

Chronological events concerning animal rights with a reference to Jallikattu…

The bull fights, and bull races have been illegal since 1960 under the statute “Prevention of Cruelty to Animals Act. Further the bull performance was banned by the environment ministry itself in 2011, and the causing of unnecessary suffering that is inherent in Jallikattu.

In 2014, the court had banned Jallikattu on grounds of animal cruelty. The order, however, didn’t go down well with Tamil Nadu political parties.

Last year, SC had dismissed the plea of the state government seeking review of its 2014 judgement that banned bulls for Jallikattu in Tamil Nadu. The apex court had also earlier declared Tamil Nadu Regulation of Jallikattu Act, 2009 as constitutionally void, being violative or Article 254(1) of the Constitution.

On January 8, last year the Centre had issued a notification lifting ban on Jallikattu in Tamil Nadu with certain restrictions, which was challenged in the apex court by Animal Welfare Board of India, People for Ethical Treatment of Animals (PETA) India, a Bangalore-based NGO and other.

On July 26, last year the apex court had said that just because the bull-taming sport of Jallikattu was a centuries-old tradition, it could not be justified.

A Bird’s view on constitution of India in consonance with ongoing debate…

Article 48 and Article254(2) have been given reference on such debatable issues. Article 48 of the Constitution requires to the state to “endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”. The later one Article 254(2) talks at length about how in the matter mentioned in concurrent list if decision of state and central government are different then central government decision shall prevail. Both provisions cannot be overlooked. The state needs to build a way out that will be going through both places.

Democracy gives right to differ but definitely in reasonable manner…

Those who have batted for the “sport”, have usually done so saying it is part of the state’s culture much in the manner gory bull-fights and Pamplona’s running of the bulls are in Spain or rodeo is in parts of the US. We don’t need to take such defence like somebody powerful than you involves questionable short of activities doesn’t mean we should emulate. A bad will always be bad. Indian culture is inherently kind in nature. So these people should not say at least now the Jallikattu in recent version is brutal.

There is no doubt that jallikattu, translated as bull-hugging, is a cultural phenomenon singular to Tamil Nadu as is camel racing to Rajasthan or Gujarat or ritual animal sacrifice in Assam, none of the latter being banned practices. What kind of hugging happens by way pulling the tame of bull, exposing him to various torturous circumstances that disorient them?

We successfully banned child marriage, abolished Sati pratha, initiated widow remarriage, and numerous as such with the passing of time then why not the Jallikattu can be dealt in such manner? The blanket ban also won’t work as it worked in Sati Pratha and Child Marriage. The former two don’t have any kind of positive aspects and contribution in societal development and sustenance, but the Jallikattu is a need for the native person. It discovers the strongest breed of bull that would help in production of better breed and also the people who depends on the prize money of the sport. The one is environmental issue and another is social concern.

Social heritage and social adjustments are characteristics of culture. So we need to protect the heritage but we should also walk together towards a global culture where surely some kind of adjustment is required.

CONCLUSION

Choosing sides in the debate on Jallikattu is a Sisyphean task. Rather it should be dealt with the due dialogue. Dialogue is the basis of Indian culture. So the proper legislation should be made on Jallikattu so that there won’t be any kind of cruelty in practice and Animal Rights ought to be taken into consideration. Man has the capacity to learn from experience and devise ways of adjusting to the physical environment in order to ensure his survival. So they need to rethink their demand by a animal’s point of. But one thing that cannot be ignored is the kind of peaceful and proper protest at Marina Beach will be a paradigm in future. We are rationalist nation. Let’s go of the old, leave the nonsense kind of politics and make a room for the new proper legislation…

ABOUT THE AUTHOR

KOMAL

Komal has done her schooling from Jawahar Navodaya Vidyalaya , Birauli, Samastipur, Bihar. Currently, she is pursuing BA.LLB at Chanakya National Law University, Patna. Intrinsically passionate about News paper, Books and Basketball, her interest extends to understand the intricacies of the current legal issues. She yearns to be a renowned lawyer.

Now happening, Others, Social Issues, Suggestions

Uniting for peace as a solution to Syrian issue

Posted on 2 Jan 20172 Jan 2017 by The Law Blog

The image of Aleppo kid, bloodied and covered with dust, sitting silently in an ambulance awaiting help as another stark reminder of the toll of the war in Syria has not vanished from our minds. The UN Security Council has failed to bring peace in Syria. In almost six years of conflict, close to half a million people have been killed and eleven million have been forced to leave their homes. Most recently, the Syrian and Russian governments and their allies have carried out unlawful attacks on eastern Aleppo with scant regard for some 250,000 civilians trapped there. The article will give a brief overview of what the “uniting for peace” is and if this resolution will serve as a way out to this situation.

The creators of the United Nations Charter conceived that five countries namely China, France, USSR [which was succeeded in 1990 by the Russian Federation], the United Kingdom and the United States, because of their key roles in the establishment of the United Nations, would continue to play important roles in the maintenance of international peace and security. For this purpose the “power of veto” was introduced in Article 27 of the UN Charter by which it was agreed by the drafters that if any one of the five permanent members cast a negative vote in the 15-member Security Council, the resolution would not be approved.

All five permanent members have exercised the right of veto at one time or another^{^[1]}. Over the last 20 years out of a total of 24 vetoes, 15 have been used by the USA to protect Israel^{^[2]}. The UK used the veto unilaterally seven times because of Rhodesia later to become Zimbabwe. France subsequently used the threat of a veto to support Morocco’s position in the Western Sahara conflict. The representative of the government of the Republic of China used the veto to block the Mongolian People’s Republic’s application for membership in 1955 because the ROC considered Mongolia to be a part of China. This postponed the admission of Mongolia until 1960^{^[3]}. The above practices of the permanent members show that they have used the power of veto in accordance with their national interest, more often resulting in a deadlock making the Security Council unable to fulfill its responsibility.

In 1950, the most pressing issue on the international agenda was the war in Korea. The Soviet Union, using its veto power, repeatedly blocked action by the Security Council, thus preventing the Council from taking any measures to protect the Republic of Korea against the aggression launched against it by military forces from North Korea. It was against this backdrop that the United Nations General Assembly adopted a historic resolution, 377 A (V), titled “Uniting for Peace” in November 1950^{^[4]}. Resolution 377 (A) read:

“if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to make the appropriate recommendations to Members for collective measures, including in the case of a breach of the peace, or act of aggression to use armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within 24 hours of the request thereof. Such emergency special session shall be called if requested by the Security Council on a vote of any seven (now nine) members, or by a majority of the United Nations^{^[5]}. Therefore, when the permanent members of the Security Council find themselves at odds and fail to reach unanimity on a matter that appears to be a threat to international peace and security, this resolution authorizes the General Assembly to immediately consider that matter and issue its own “appropriate recommendations” to the Member States “for collective measures”. Those collective measures can include “the use of armed force when necessary.”

On April 18, 2016, Mr. Monzer Makhous, member of the Syrian National Council and High Negotiations Committee (HNC) spokesperson told Asharq Al-Awsat that “current events confirm that the ‘uniting for peace’ resolution is the most effective solution for a serious settlement for the Syria crisis. Mr. Makhous added that the world will not stand idle before Russia’s continuous exploitation of its right to veto^{^[6]}”.

The “Uniting for Peace” procedure is unquestionably a legally valid alternative for the deadlock at the Security Council with respect to the Syrian issue. The “Uniting for Peace” procedure would allow the Assembly to recommend a range of other coercive measures, including sanctions. Beyond enforcing the ban on the use of chemical weapons, this would empower the General Assembly to back up its numerous calls for a political solution to the conflict and for better humanitarian access with more tangible and enforceable measures. Although these measures would remain nonbinding, and their implementation depend on the good will of member states, it would equip them with the legality and international legitimacy that is lacking absent a strong resolution by the Security Council.

[1] United Nations, Security Council viewed at http://www.un.org/en/sc/

[2] Sahar Okhovat, The United Nations Security Council: Its Veto Power and Its Reform, December (2011)

[3] Aleksandra Czajka, The analysis of the Veto Power in the United Nations Security Council, Pompeu Fabra University Barcelona, November, (2011)

[4] Aaron Jacob, Unilateral Declaration Of An Independent Palestinian State And The Procedure Of ‘Uniting For Peace’, September (2011)

[5] The General Assembly Res. 377A(V), 3 November (1950)

[6]Fatah Al-Rahman Youssef, Syria’s HNC to Resort to U.N. Resolution ‘Uniting for Peace’, 16 October (2016)

About the author

Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University. She is deeply passionate about law. She strongly believes that the legal profession has the power and the responsibility to effect changes to the on-ground realities and difficulties that multiple communities face. Miracline’s keen interest in social works is evident from her service at SASTRA Legal Aid Society. She believes that the knowledge in law is vital for all and sundry who is bound by it. Her writing skills may be confirmed from her articles in Kerala High Court Journal, Taxmann and International Journal of Enviro Legal Research.