Preservation of Biodiversity & Jallikattu

Readers would be well aware of the recent massive protests in Tamil Nadu regarding the banning of Jallikattu and the subsequent events consequential to the protests, such as the promulgation of the Ordinance allowing Jallikattu and the Tamil Nadu Legislative Assembly passing of a Bill replacing the Jallikattu Ordinance. News reports indicate that certain petitioners have approached the Supreme Court seeking relief against the Ordinance and the Bill. 

One of the threads of arguments put forth by certain experts well-versed with Jallikattu and breeding of animals seems to be that Jallikattu promotes native breeding of cows and also leads to preservation of animal biodiversity. The argument seems to be that the bull which “wins” in the Jallikattu is considered as the strongest among bulls and is treated as the common heritage of the village. It also appears that the said bull is allowed to mate with cows in the village thereby producing healthy second generation of those cows. Whether this is true or not is a matter for experts on veterinary science and village socio cultural practices to comment upon. On paper, this argument seems compelling. A few recent news reports dealing with this aspect can be found here here and here.

From a perusal of the 2014 [Animal Welfare Board of India v. A. Nagaraja & Ors. (2014) 7 SCC 547] and the 2016 [Chief Secretary to the Govt., Chennai Tamilnadu and Ors. v. Animal Welfare Board and Ors. 2016 (12) SCALE 334] judgements of the Supreme Court on Jallikattu ban, it appears that the said argument (preservation of native cow breeds) was never brought to the Hon’ble Court’s attention. As to why, there could be several reasons. One of the reasons cited has been the lack of awareness of this aspect of rural practices among the mainstream population and the lack of available scientific studies documenting it. Further, it has also been argued that those who are aware of these practices could neither approach the High Court/ Supreme Court nor create awareness among others owing to their lack of economic strength.

The lack of detailed arguments before the Supreme Court (going by the judgements) on the issue is surprising considering news reports on the subject even as early as in 2014 (see here). There were a few reports even before the 2016 judgements (See the BBC report cited above and this news report)

Whether these arguments are actually true or not is for the Supreme Court to determine. Nevertheless, when far-reaching issues such as preservation of biodiversity, rural economic, socio-cultural practices, access to justice are raised, Hon’ble Supreme Court ought to deeply delve on the issues and pass judgements.

Another aspect of the matter is the statistics cited in the 2014 judgement relating to cruelty towards animals. It is well known to those well-versed with statistics is that the numbers game is dangerous in that it is extraordinarily difficult to examine the correctness of statistical data. Therefore, it is humbly submitted that whenever such studies and statistical data are relied upon, it is important to the said data to be made public and invite comments on the correctness thereof. Statistical data might, prima facie, appear forceful but there are innumerable possibilities that the statistical data and the inferences may be erroneous. [See, for instance the "elegantly” titled article by Paul F. Velleman “Truth, Damn Truth, and Statistics”, Journal of Statistics Education Volume 16, Number 2 (2008)] on the issue. Judges have to be careful about statistical data. The inferences sought to be made in statistical studies produced in courts should not only satisfy judges but should satisfy rigorous statistical standards of replication, randomization, proper sampling and others. 

Taking this issue in a larger context, it could be explored if data and studies submitted in litigation having large-scale impact on the country (such as the Jallikattu ban judgements and other PILs) represent only one side of the story or tend obfuscate truth. Unlike in typical adversarial litigation, it is possible that in PILs, studies presenting comprehensive facts / data may not be forthcoming, especially if comprehensive facts/ data are not available with the Government, in which case, the courts should tread with extreme caution. For instance, this blogger does not think that Secretaries of the State of Tamil Nadu or the Union of India was very well aware of the biodiversity related issues associates with Jallikattu (assuming this aspect was not brought to the court's knowledge).

In the context of Jallikattu, if the native breeding of cows arguments is true, then it would be in the interest of the country that the native breeds are preserved. For this purpose, it could make sense to allow Jallikattu albeit in a heavily regulated form. the larger challenge is, however, ensuring preservation of the local biodiversity.

(Edited after posting)

The Debate on the Law Commission's Questionnaire on the Uniform Civil Code: Some Comments

This post pertains to Questionnaire published by the Law Commission of India about reforming personal laws and the uniform civil code. The post is in two parts (both published in this post). The first part of the post attempts to answer the questionnaire. The second part of the post discusses a more serious aspect about the role of the Law Commission of India.

I: Responses to Law Commission's Questionnaire

[Disclaimer: This post represents the author's, and not the blog's view, on the questionnaire. The lead co-author, who is an expert in constitutional law (and this author is neither an expert on constitutional law nor on personal laws), we're sure, has a more nuanced perspective to the entire issue.]

The questions in the Commission's questionnaire are in italics.

1. Are you aware that Article 44 of the Constitution of India provides that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”? 

Yes. This matter requires further initiatives for the following reason:

The Directive Principles of State Policy (hereinafter “Directive Principles”) have been enshrined in the Indian Constitution primarily in order to promote social and economic justice. As per Article 37, these Principles shall be “fundamental in the governance of the country” and the Constitution of India has mandated “the State to apply these principles in making laws.” In the course of the Constituent Assembly debates, several members opposed to the idea of a uniform civil code, it was observed that a uniform law applicable to all would promote national unity and, at the same time, no legislature would forcibly amend personal law if people were opposed to it. 

At this juncture in Indian polity, considering the opposition to a complete disregard to personal laws and bringing in a uniform civil code it its stead, a civil code on aspects hitherto covered by personal laws may be a drastic move and may lack legitimacy. As noted by the Constituent Assembly, ultimately, the citizens should be subjected to one civil code. Hence, introduction of a Uniform Civil Code should be a gradual process. At the same time, personal laws are being regarded as biased, especially against gender. Many a time, personal laws operate harshly against a particular gender, which is against the Constitution of India. These realities must be kept in mind in a debate on the subject. 

Broadly, the reforms towards a Uniform Civil Code should be a two-step process. The first step should be bring about comprehensive reforms to personal laws thereby eliminating all aspects which discriminate against a particular gender and bringing them in line with the fundamental rights and the Constitution of India. The first step includes codification of customary practices in each personal laws and ensuring a uniform code under each personal law. Once sufficient reforms are achieved, the second step is to introduce a Uniform Civil Code.

Q. No. 2 regarding the ambit of a Uniform Civil Code does not arise in view of Answer to Q. No. 1. However, if introduced it should cover all aspects presently covered by personal laws. 

3. Do you think the existing personal laws and customary practices need codification? 

Personal laws and customary practices should be codified to bring clarity in them and prevent uncertainty in application. Codification will be very helpful in bringing such practices in line with the Constitution.

4. Will the Uniform Civil Code or the codification of personal laws and customary practices bring about gender equality?

Yes. Both per se cannot strictly bring about gender equality. But a UCC or codification will help bring certainty to these laws and practices and will enable ease of testing them for constitutional consonance. 

5. Should the Uniform Civil Code be optional?

As stated in answer to Q. No.1, in the two-step process, neither should be optional. The first step in codifying and reforming personal laws and the second step in bringing about a Uniform Civil Code. 

6. Polygamy, polyandry and similar customary practices should be banned as they are not in tune with the current circumstances. 

Reforming personal laws should include these aspects as well.

7. Triple talaq operates harshly against women and should be abolished in toto.

8. Do you think that steps should be taken to ensure that Hindu women are better able to exercise their right to property, which is often bequeathed to sons under customary practices?

None of the three options suggested by the Commission are appropriate. Following are the measures that could be adopted:

It is true that in many families, the testator bequeaths immovable property to sons rather than daughters. This author had the opportunity to deal with a similar case. While it is acknowledged that this is predominantly a social issue, a few safeguards in law could be taken: A provision should be introduced in the Indian Succession Act, 1925 to the effect that any bequest denied to a female heir but made to a male heir on the ground that the testator spent money and resources in getting her married or such similar reason should be void.

Another measure that could be adopted is that wills which deny benefit to a female heir but which grant the benefit to a male heir should be viewed as a suspicious circumstance per se. This would be rule of evidence than a substantive legal rule. This principle should be statutorily recognized so that the burden lies on the propounder to establish that there were sufficient reasons to deny the female heir of the bequest. 

9. Do you think that a two-year wait period for Christians violates Christian women’s right to equality?

Yes, it does. The wait period should be made uniform across all religions. The present two-year wait period operates as a source of corruption. Judges at their option apply decisions of certain High Courts (Kerala, the Karnataka and Bombay [Nagpur Bench] High courts) reading the two year waiting period as one year. 

10. Do you think that there should be a uniform consent age for marriage across all personal laws?

Yes. Consent is a matter of body and mind and has very little to do with which religion a person belongs to.

11. Do you agree that all religious denominations should have common grounds for divorce?

c. Not necessarily, However, the grounds should be the same for men and women. 

12. Would a uniform civil code address the problems of insufficient maintenance?

Yes it would. Even if the (suggested) first step to codify and reform personal laws is implemented as a first step, the law on maintenance should be able to adequately address the problem of insufficient maintenance. This is because maintenance is more a matter of economic security to ensure that the woman leads a dignified life and is not at all a matter of religion. 

13. How can compulsory registration of marriages be implemented better?

a. Temples, churches, mosques and other religious places which conduct marriages should be obligated to counsel the parties to the marriage to get their marriage registered.

b. Before issuing identity cards such as Aadhar Card, licence, ration card or documents such as passports, etc., the husband or the wife or the parent, as the case may be, applying for the said document, should furnish proof of marriage registration irrespective of the religion. 

14. What measures should be taken to protect couples who enter into inter-religious and inter-case marriages?

a. Special Marriage Act should be made simpler. Registration offices should not insist on producing marriage cards or receipts of proof of marriage, which they do in case of such marriages, even though the Act does not strictly mandate it. The Registration offices should, instead be offices where marriage is conducted in the presence of sufficient witnesses.

b. Where such marriages take place or registrations take place, the same should be adequately videographed and documented.

c. Special Protection Homes should be introduced in such cases where the bride and the groom fear their safety. Suitable counselors should be appointed. Special training should be given in trades and crafts to them and suitable economic opportunities such as jobs in self-help groups, etc. should be facilitated. 

15. Would a uniform civil code infringe an individual’s right to freedom of religion?

No, it would not. If a uniform criminal law does not infringe an individual right’s to freedom, a uniform code will not infringe on an individual right to freedom of religion. Further, Constitution of India is supreme and anything that conflicts with the Constitution cannot remain above the Constitution. However, as stated in response to question no. 1, this is not the appopriate time for bringing about a uniform civil code. 

16. What measures should be taken to sensitise the society towards a common code or a codification of personal law?

Firstly, the codification and reforms to be brought out should be from the specific communities themselves. Such codes should come from the communities themselves. Secondly, Law Commission should assess each such code for their constitutional compatibility with jurists and experts well-versed with each personal law and thrash out all outstanding issues and thereby reform and codify personal laws. 

Once these reformed and codified personal laws are implemented and their success gauged, introduction of a Uniform Civil Code will become a legitimate exercise.

Part II: Shouldn't Law Commission be Made an Independent Statutory Body?

The recent attack by certain sections of certain religions vehemently attacked the Law Commission's questionnaire. Among other allegations, the prominent one was that the questionnaire was an attempt by the Government-in-power to target certain religious communities. Irrespective of the validity of such a criticism, such comments reflect poorly on the Law Commission. The Commission is supposed to be a prestigitous body instrumental in initiating, discussing and suggesting reforms in law. Such allegations lower the image of the Commission. Another aspect is that the task of the Commission inherently involves the possibility of criticising the Government-in-power's laws and testing their effectiveness. Often the views of the Commission can (and at times, should) be in contradiction with the Government's views. For these reasons, the Law Commission must be an independent statutory body. It is time for a suitable legislation for making the Law Commission a statutory body and ensuring its independence and competence by a suitable process constituting it and laying down its framework. 

(P.S. Forgive us readers for not posting Part II of Sasan Power. We are in the process of completing the second part (Part II will deal with the MP High Court decision) and we will also post the concluding part hopefully by next week. Lots to post on, especially the recent decision of the Supreme Court on arbitrability of disputes involving allegations of fraud. )

Major Commercial Law Reforms Introduced in India

The President of India has promulgated two ordianances bringing into force sweeping amendments to the Arbitration and Conciliation Act, 1996 and introducing Commercial Courts (see our previous post on the previous Commercial Divisions Bill) in every District in India. The Ordinances can be accessed from here and here. If these amendments are passed subsequently in the Winter Session of the Parliament, these developments are likely to go a long way in reforming commercial dispute resolution in India. Once reforms on procedural law are in place and effective, India can look at reforming its substantive contract law. An extremely interesting period for Indian commercial law.

Thinking Aloud: Indian Contract Act and the English Contract Law

The Indian Contract Act, 1872, primarily drafted by the Third Law Commission of India, is primarily a codification of English Law subject to certain changes. The Act also heavily drew from the draft Civil Code of New York (drafting attributed to David Dudley Field), although Pollock, the renowned commentator on the Indian Contract Act, was of the opinion that the said Civil Code was “about the worst piece of codification ever produced". [Sir Fredrick Pollock & Sir Dinshaw Fardunji Mulla, The Indian Contract Act, p. vii (1909)].

The Third Law Commission of India is said to have produced the first draft of the Contract Act. The said draft was circulated to all the local governments, judges and practitioners for their comments. The draft was discussed at least before three committees of the Legislative Council of the Governor-General of India. The Legislative Council conducted a minute study of the Act and differed with the Law Commission primarily on two issues: (1) Treatment of all penalties as Liquidated Damages, and (2) Acquisition of ownership in goods by a buyer in good faith.

Due to the differences between the Law Commission and the Legislative Council, two members of the Law Commission resigned and the work on the Indian Contract Bill was given to Sir James Stephen. [BK Acharyya, Tagore Law Lectures 1912: Codification in British India]. The Bill was finally passed in 1872. Considering the British origins of our contract law system, questions have arisen before the courts as to whether it is correct to rely on the English Law for answers to questions. For obvious reasons, English precedents are not binding in India. That much is clear and uncontroversial.

The second point is that there are certain departures in the Indian Contract Act, 1872 from the then existing English Law. In Satyabrata Ghose v Mugneeram Bangur AIR 1954 SC 44, the Supreme Court held:

"It must be held also that to the extent that the Indian Contract Act deals with a particular subject, it is exhaustive upon the same and it is not permissible to import the principles of English law dehors these statutory provisions. The decisions of the English courts possess only a persuasive value and may be helpful in showing how the courts in England have decided cases under circumstances similar to those which have come before our courts."

In Krishnan Murgai AIR 1980 SC 1717, the Supreme Court went further and stated that even if a provision in the Act is based on English Law on a particular aspect, the extent and scope of the provision must be governed by the statute itself and not by the English doctrine.

However, in Forosal v ONGC AIR 1984 SC 241, the Supreme Court held that since our contract law is based on English Law, it would do good to rely on English decisions for aiding the courts decide such issues where there was no Indian decision on the point. Thus, according to the court, when a statute (such as the Negotiable Instruments Act, Indian Evidence Act etc) is based on English law, it would do good to refer to the English Law for assistance provided such a question has not been previously decided by an Indian Court and is binding.

Reliance on English law may not be problematic in such cases, but wholly disregarding the Indian law does not bode well for the legal system. The Supreme Court held in Cotton Corporation of India v United Industrial Bank AIR 1983 SC 1272:

"[I]gnoring all the relevant considerations, one cannot bodily import English decisions in our system to develop a hybrid legal system and one cannot be so hypnotised by English decisions to overlook legislative changes introduced in Indian Law."

The court provided indications of when reliance of an English decision would be apt. Following are the aspects that must be taken into consideration while taking aid of an English decision:

• Similar provisions in the English and the Indian statutes
• Absence of material difference in conditions prevailing in India and in UK
• Consistency with Indian jurisprudence
• Consistency with Indian social conditions.

An unwarranted practice of Indian Courts is to cite English decisions even without citing past Indian decisions on the same point. See, for example, Trimex v Vedanta, where the Supreme Court did not cite even a single Indian decision related to the case when there were at least three to four Indian decisions relating to the issue. Such practices make us wonder if there is any “Indian jurisprudence” of contract law, barring the deviations from English law that were made in the 19th Century.