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It happened in the middle of a particularly stressful assignment. There I was, sitting at my laptop, at the desolate hour of 2.20 AM, when I decided.

Enough. Nyet. Nimph. Nope. No More. I’d had it.

And before I knew it …. I was …..

Composing Poetry. 

Yes, you read that right.

I was spewing down line upon line of blank verse in the document where my taxation case comment was being typed out.

And that’s how it started. My inner poet awoke, and has refused to die out since then. While this is all very well, I’ve been compelled to find out more about this strange condition. Was there a nexus between law and poetry I wondered  - and set out on some research.

The results were …. surprising.  Starting with our own courts – 300 plus cite Tagore’s poetry to supplement their judgments – right down to the more adventurous US courts featuring a wealth of judgments with definitive portions composed as poetry.  Sample this verse  by a member of the Superior Court of Pennsylvania, about a premarital contract gone awry :

Conrad Busch filed a timely appeal,
Trying to avoid a premarital deal
Which says appellee need not pay him support,
He brings his case, properly, before this Court.
They wanted to marry, their lives to enhance,
Not for the dollars--it was for romance.
When they said "I do," had their wedding day kiss,
It was not about money--only marital bliss.
 But a deal's a deal, if fairly undertaken,
And we find disclosure was fair and unshaken.
Appellant may shun that made once upon a time,
But his appeal must fail, lacking reason (if not rhyme).

The propriety of such acts of verbal gymnastics in the traditionally ”solemn”  realm of court judgments has been the focus of debate. Criticism comes from quarters that find this an exercise which may trivialize the parties and decision itself. The supporting arguments  centre around how  such tactics often tend expand a judgment’s appeal, and audience.  Further, consider how it might stand for the poet-judge himself : the way a poem might break the monotony of legal writing, the manner in which the tight-knit structure of verse would reduce much of the rambling that has became the unfortunate stamp of legal writing.   

The U.S. Courts don’t stop at conventional poetry either : a large field of judgments even has them taking recourse to  song lyrics. Bob Dylan for instance,  manages citations in as many as 26 judicial opinions, while Simon and Garfunkel manage a  tally of 10.

And finally, we have (drumbeats) : the poet-lawyer !   The precision and sense of a good legal argument it seems is not unlike a good poem – quick, irrefutable and pressured by precedent.  As Tim Nolan, a law firm partner moonlighting as a poet notes : “Lawyers cite to state and federal appellate courts. Poets use the precedent of Walt Whitman or Rainer Maria Rilke. The mind -- sorting through history, memory, emotion, personal experience -- ought to inform both poetry and the practice of law. “

Famous poets who were also lawyers ? We have E.E.Cummings, Wallace Stevens, Goethe and Schiller to name a few. And it works the other way round too : many  poets have worked the theme of law into their poetry -  Chaucer, Shakespeare, Pope, Shelley – the list goes on.

It made me think, all of this. About how we often necessarily perceive the law has to be –  of structured-to-perfection briefs, of crisp black robes, of over-drafted statutes, of staid legal writing.

And then we have verse – blank verse, rhyming verse, transcribed-from music verse –  which has its haunting innate power.

I like the thought that the two can intersect. I like the idea  that lawyers can actually be poets, not just an occasional rhyming  couplet here and there. And I like the potential that legal writing has when coupled with the power of verse – the right verse, that is. This of course throws up its own set of questions : poetry itself is so subjective, one man’s Eliot is another man’s Klingon. Context is essential for verse to retain its power : I hark back to those 300 plus Tagore-citing-Indian-Court judgments that tend to arbitrarily throw in a profound-sounding line or two from the man just for a flourish.

At any rate, to end, I’ll leave you with my own composition, from that strange first night of inspiration :

“We need to talk”

No. We don’t.

I don’t need to hear you say

“Sure, but -“

“Yes, however –“

This is fine, really.

“We need to talk”

Not really.

I didn’t, I was happy all along

Really, dapper, fine.

We’re good.

“We need to talk”

Why though !

I’ve said the right things haven’t I ?

Did it by the book

Sealed the deal

So really, a little less conversation ?

“But we do”

Fine, let’s talk.

Can I put in a few good words for myself though ?

Not lavish praise mind you

Just the standard recommendation letter

“…..”

I help you make me a better person

I want to be ridiculous. With you. Around you. About you.

I want to be relevant to you

Learn a language (to converse with you in more ways than one)

Learn to let go (so I can hold on to you that bit more)

Learn you

“?”

See, friend.

If I see you better than you see yourself

That makes your life simpler

I’ll give you the answers before you ask the questions

And when that’s not good enough

I’ll give you the right questions.

“??”

And if I see you better than you see yourself

Then I have known you

I have known the joy of unbroken conversation

I have known the joy of conversation broken by a kiss

And a kiss broken by sleep where I dreamt of conversation with you

I have known you

“!”

So let’s talk then

And really, say what you’d like to say

And even if you say things that hurt

Its your voice.

And I could listen to it for ever.

That’s it then

“So now then, we can talk.

And since you’ve monologued on a bit

I suppose I’m entitled to my own little piece

Here, then, friend.”

Go ahead …

“I see why you might be a safe bet

I see why you may be right

And I know, I’ve held you

You’ve kept me warm, through the night”

Yes , and –

“And again you’re a safe bet. You’re nice.

You’re what makes sense.

You’re what should be right”

Here it comes …

“And yet. And though.

Safe may be good, and safe may be right

And yes, safe will get me through the night.

“But can’t you see, its got to be a bit wrong

Not becalmed seas

I need a dash – a hint- of a storm

You’re great, I’ll give you that

And yet ! – there … I just said that

You’ll keep me happy, and you’ll keep me well

And yet, you’ll never be enough

Just a decent bet”

 The first one dates back to the first date of hearing of the landmark decision of Kesavananda Bharati by the Hon'ble Supreme Court.

The legendary, Mr. Palkhiwala, who then was a young lawyer rose to argue the matter before the largest ever constituted Bench in the Supreme Court. Since thirteen Judges started shooting questions from one end to the other, Mr. Palkhiwala’s train of though was disturbed while he spent most of the first day answering the questions from the Bench and was rather perturbed.

He approached the giant C K Daphtary (fondly called CK), who was also appearing in the matter. CK was already aware of the manner in which the proceedings went on and is believed to have encouraged Palkhiwala to prepare and get ready for arguments the next morning and assured him uninterrupted audience.

The next morning, as the Bench assembled, CK got up and asked for an audience. Since he was a doyen and one of the most senior persons at the Bar, it was easier for him to seek audience.

CK is believed to have said “My Lords, yesterday, a young girl accompanied her father to this Hon’ble Court to witness the proceedings of what My Lords would be a landmark judgment of this Court for years ahead. The Judges were curious and asked him about the relevance of such a visit to the court’s proceedings.

CK continued, “and after the day’s session, the young girl asked her father “who was the young man trying to interrupt the thirteen well dressed gentlemen?”

The Court, it is believed to have given uninterrupted audience to Mr. Palkhiwala to complete his arguments and the rest as well know is reported in AIR 1973 SC 1461.

Legends of CK’s wit is/was famous.

Fali Nariman recalls one as a student of the Government Law College in Bombay, where he saw Chagla , J preside in the constitutional challenge to the Bombay Prohibition Act -- a case which excited great attention. The courtroom was packed to over-flowing on almost every single day of the hearing which lasted two weeks. He remembers seeing there for the first time C.K, the state's advocate-general, who was ably defending the case on behalf of the government. When Chagla asked him in the course of arguments about the nature of the intoxicants which were declared prohibited under the Act. Daphtary described them and, with a mischievous twinkle in his eye, added: ``And then, My Lords, there are substances other than liquid refreshments which also intoxicate -- and power is one of them''.

Please see http://www.expressindia.com/news/ie/daily/20001130/ied30029.html for the whole of Fali’s article.

 And then ofocurse the famous remark “A Republic without a PUB is a mere RELIC”

 One of the stories which reached our generation is where CK was waiting in the corridor of the Bombay High Court waiting for his matter to reach the Board. His friends were getting anxious since they had planned to visit the nearby Brabourne Stadium to witness a crucial India England test.(these were the times before TV )

They asked CK how long he would take. CK is believed to have said “I will take two minutes but I don’t know about him”

In another case, CK was arguing some transporters’ case before Justice Hidayatullah. Since the Hon’ble Judge was aware of CK’s penchant for wit, he was rather cautious, but at one point of time during the hearing, the Judge is believed to have remarked “Mr. Daphtary, buses run on permits” and CK was quick to reply “but My Lord, so far as in know , buses run on fuel.”

“When CK and his wife celebrated their fiftieth wedding anniversary at which friends and admirers were invited. After the evening became convi-vial we all called for a speech. CK, with a chuckle, said, ``You know, Cicily has been my wife for fifty long years. She has been a good wife but in a married life of thislength I must frankly confess that the first forty-nine years have been themost difficult''. Glares from Cicily” Please see http://www.indianexpress.com/ie/daily/20000331/ied31070.html for the whole article.

In another matter, the great SS Ray was arguing his matter before the Court and apparently he was out of sail for a while. His instructing counsel was briefing him while the tall counsel kept on pulling his Senior’s long sleeves. (Believed to be his habit in moments of anxiety).The Court, losing its patience, asked “What are you doing Mr. Ray?”

Quick came the reply, “Trying to make both ends meet My Lords”.

Sudden bursts of laughter spread in the Court room completely changing both the mood of the Court and the Courtroom while Sen resumed control over his arguments.

Another legend, Mr.Ashok Sen. His legacy is equally amazing, if not more. Sen’s rare acclaim, among others, is being part of the Nehru Cabinet and continue till Rajiv Gandhi’s  until he resigned in 1987 after his party's debacle in state elections in West Bengal.

Barrister Sen was believed to be so sought after that there are legends of him being auctioned at the airport. He would fly to the highest bidder’s destination.

There is also a tale of a young Calcutta Advocate who fixed up a conference with him in Delhi at 10 pm. His IA flight was delayed and he could reach Sen’s residence only at 12 midnight. He had to wait for his turn till 4 am. He was astonished to find Sen immaculately dressed at 9.30 am in the Supreme Court as if he had straight 8 hours sleep while the young Advoacte was having a tough time keeping his eyes open.

There is a tale of another solicitor evincing Sen’s Eidetic memory.

According to him, he once visited Sen for an opinion in a matter pending before the High Court. He was not in a position to afford his appearance and thus simply wanted his opinion on the issues involved and the proposed line of argument. Sen opined.

When the matter finally cane up to the Supreme Court around 5 years later, he went to Sen again, this time to brief him for appearance in the matter. Sen read the impugned order and remarked that two points which he had mentioned in so and so paragraphs of his opinion were not argued before the High Court and that according to him was the reason he believed they were before the Supreme Court.

The Solicitor, in all his confidence, believed that he had argued all the points identified by Sen but was dumbstruck when Sen’s trusted Clerk fished out the opinion rendered years ago and the identified paragraphs were the just as Sen had pointed out.

In his last few practicing years, Sen was brief by a Senior Colleague of mine who tells us a story of how they went to him because according to them the issue involved was res integra. Sen surprised them by saying that the issue was not res integra.. nd much to their disbelief, pulled out a commonwealth Court precedent of the Australian Supreme Court passed a few months resolving the exact same issue.He is known to have possessed the largest private law library.

Another colleague told a tale where Sen was at pains to convince the Court regarding the legislative intent behind certain a certain provision. After a lot of deliberation, the Judges asked Sen as to how could he be so confident regarding the interpretation and the legislative intent, when Sen is believed to have said “Cause My Lords, I was the one who drafted it”.

Many may say that this is nothing but nostalgia but sledging , personal attacks and most commonly among others , shouting down the opposition appears to be the order of the day in High Courts and the Supreme Court, is not unaffected by such decibel duels. The kind of gesture mentioned above from a senior member of the Bar to a junior is almost unheard of in today’s times.

 A friend of mine suggested a meter recording the decibel level in court so that Advocates exceeding the same in riotous passion could be promptly brought back to their civilized senses. Another one said that in that case, all we would hear continually is the meter and neither the Judge nor the Advocates.

All the above incidents are stories which have essentially travelled down the corridors and /or lighter moments shared by the legal luminaries with their juniors/client and the author is just passing them on conscious  about the possible inconsistencies and inaccuracies and wishes to be corrected where gone awry and pardoned for his pitfalls.

NALSAR, like any other  law school worth its salt, comes with its own bundle of ridiculous neuroses. What would be special about a place where the machinery gears towards making things convenient for you ?

Of course, there's inconvenience, and then there's evil. The college's system of surprise tests, then,  makes a case for the banality of evil.  Life you see,  is short. Way too short for surprise tests.

Life is long enough for :
1) Cigarette shack afternoons and ciggarette shack evenings  
2) Hot Chocolate Fudge with Chocolate Ice cream
3) Lazy Confessions/ Crazy Suggestions
4) The last bell on Friday
5) A few other unmentionables

Point being, there are a couple of things that can exist without making life seem pointless and unmeaningful. Surprise Tests aren't among them. The trouble begins four days before the tests. That's when the sinking feel begins to creep; that's when you realize the one-subject-a-day target ain't happening. Of course, every day after that is mounting panic.
This then escalates on the night before the test. Of course there's some big chunk left, and of course that's the one everyone's predicting will be tested on the next day. Nevermind, there is the morning.

Except there isn't. Stupid, stupid alarm bell.

The harried walk to the mess, people shouting alarmingly large bits of alarmingly meaningless information across the table. Realizing the extent of screwed one is when one is unable to figure out even the concerned subject being discussed, one proceeds to the next step. The trudge to the class, which brings us to possibly the worst thing about surprise tests. The last 5 minutes before. Oh those last 5 minutes. Packed with every sort of human emotion possible, from delirious fear to delirious giggling to plain delirium. All the 5 subjects screamed out in quick succession. Groans, moans, laughs, sneers.

Of course, you'd think once the first few tests get over, its all smooth sailing. Its not. Then comes the surprise test burnout. This comes from the complacent position of having a couple of subjects past the scanner, and not many left to study from. Inertia. Listlessness. Unproductivity.

Finally, finally, the last disastrous one inches past you. And begins the process of making up for the rest of the semester .....

Honestly. Life. Way too short for this.

Only three more days to bash out prize-winning fiction for the NUJS fiction writing competition, which closes on Sunday midnight (18 April).

The theme for this year: "Choose one of the five famous fiction novels (Dr. Jekyll and Mr. Hyde/Robinson Crusoe/Five Point Someone/The Hitchhikers’ Guide to the Galaxy/A Christmas Carol) and base your story around it, borrowing any identifiable character(s) or theme or concept or event (or even a combination of these), such that it is obvious which story you’ve borrowed from."

The judge in the competition is Kolkata writer and advertising consultant Anjana Basu, who has written two novels and several collections of short stories and poems.

Last year's winners were absolutely brilliant and surprising.

Have a read of the stories, guaranteed to enjoy and inspire.

I know that this post comes slightly late in the day but do not let deadlines stand in the way of literary greatness, if you have not yet completed your (3,000-word) magnum opus.

I'm NOT suggesting you hit the benzedrine like Jack Kerouac and spend days and nights abusing a typewriter (On the Road was like totally overrated anyway), but lawyers thrive under time pressure, nah?

Great training for Indian/US/UK BigLaw all-nighters.

I digress.

Very much looking forward to reading the winning entries. Good luck!

Photo by alancleaver

The human right to food has its contemporary origin within the U.N. Universal Human Rights framework. The main reference point is located within the Universal Declaration Of Human Rights (UDHR) (U.N. 1948), Article 25, which states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food.” It provided a reference point for human rights legislation that followed but is not itself a binding international legal instrument

According to the Special Report- Right To Food Is A Basic Human Right

This is a special Hunger Notes report on the right to food. Why shouldn't people have enough food, earned in the usual case by working,  to keep themselves alive and alert?  A very reasonable goal, but one which is far from being met, though there has been significant progress in the past 10 years.  This report examines both the progress and the frustrations. 

Under-nutrition,haunts the lives of millions of Indian .The magnitude and severity of the nutritional crisis facing the country.Over a million deaths can be attributed to under-nutrition and hunger.Most of the times, child deaths and suffering because of poor nutrition go unnoticed.India reports among the highest levels of child under-nutrition has been rightly termed by Prime Minister Manmohan Singh as a “national shame”.According to a recent United Nations Children’s Fund (UNICEF) estimate, India accounts for 31 per cent of the developing world’s children who are stunted and 42 per cent of those who are underweight.There are various reasons why India should do something about food security specially child under-nutrition. Being well-nourished is the right of every child, and the state has the obligation to ensure proper nutrition for all children. Undernourished children have significantly lower chances of survival than children who are well-nourished. They are much more prone to serious infections and to die from common childhood illnesses such as diarrhoea, measles, malaria, pneumonia, and HIV and AIDS. The risk of dying increases with the severity of the under-nutrition. If recent indicators are anything to go by – the failure to keep food prices down, the proposed national food security Act, the failure to ensure even minimum wages to construction workers at projects for the upcoming Commonwealth Games in New Delhi, to recount a few – it seems the country has given up even the pretence of caring about its children or their crippling, unbudging state of malnutrition.

The state of women’s health and food security is similarly symbolised by an equally recalcitrant and even more widespread nutritional anaemia. This is a failure in itself as far as women’s rights are concerned, but it is also the root cause of low birthweight, subsequent malnutrition and poor child survival. 

How serious is the United Progressive Alliance government about enacting food security legislation that gives every citizen in the country the right to adequate food? On the face of it, the government appears to be extremely serious. After all, ensuring the right to food was a major election promise of the Congress party that leads the UPA; it has been frequently mentioned in various official pronouncements of this government; and it was mentioned prominently in the latest Budget speech of the Finance Minister.

Most recently, a draft Food Security Bill that has purportedly been prepared for consideration by the Empowered Group of Ministers has been doing the rounds unofficially. While the authenticity of this document is not clear, it is nevertheless worth examining, just in case it provides any pointers to the current thinking of the government on this crucial matter.Thus, the “Preamble” declares that this is an Act “to provide statutory framework for assured food security to all citizens of India to promote their active and healthy life thereby enabling them to contribute productively to nation building”. This sweeping statement is clearly not legally tenable, since none of the important terms and concepts are defined, such as “assured food security”, nor is it clarified how it will be determined that citizens “contribute productively to nation building”!

The proposed Food Security Bill adopts Three pronged strategy that constitutes -

(i)  a universal public distribution system for all,

(ii) low cost food grains to the needy

(iii) convergence in the delivery of nutrition safety net programmes. 

Based on article,21 of the Constitution, the  Supreme Court has regarded the right to food as a fundamental  and basic human requirements for the right of life.In the spirit of the numerous measures and programmes, the number of persons who are undernourished has increased from 210 million in 1990- 92 to 252 million in 2004-05. The Food Security Bill, when enacted, will become the most important step taken after 1947.

In other words, the population as a whole is supposed to be given food security as a legal entitlement (although how this is to be done is not clear) but public provision of foodgrains is only for a targeted section defined as poor. The rest of the document makes it clear that the purpose is really to abandon a comprehensive and universal system of public food distribution and then replace it with a targeted system. In that system, only those defined as poor by State governments on the basis of total numbers to be determined by the Centre, will have access to publicly distributed food grains, presumably at a subsidised rate.  

The entire focus of the operational part of the proposed Act is on the targeted public distribution system [TPDS], which will provide foodgrains to households identified as living below the poverty line (BPL). The total number of such households is to be determined by the Central Ministry of Food and Public Distribution on the basis of the latest available poverty estimates notified by the Planning Commission, with such estimates remaining valid for a period of five years.

CONCLUSION

The most significant direct intervention designed by India to tackle under-nutrition is the Integrated Child Development Services (ICDS) programme. Most reviews and assessments have established that the more than 30-year-old programme has not succeeded in delivering the desired result of preventing and eliminating under-nutrition. This is what prompted the Prime Minister in his Independence Day address in 2008 to remark: “The problem of malnutrition is a curse that we must remove.

I would like to edit this once more to add some thing new, but what I can say right now is that the question on food security and the failure of the pragammes and measures lies in the same question only.    

The following is a hilarious story of a legal proceeding initiated against one of the greatest ruling super heroes of our times on a question as ancient as the one which arose in the second century with Clement of Alexandria ( whether Apostle Peter and Cephas of Antioch were the same person?)

The Exposition

There is this Lady, who is a resident of Hipparga (Kopdeo), tq. Ahmedpur, dist. Latur. and a mother of five daughters by name Taherabi, Wahedbi, Laila, Madina and Hussainbi and two sons by name Dulekhan and Alasab. All daughters of the lady and eldest son Dulekhan are married.

However, the protagonist of the present story is her youngest son Alasab, who was born to her on 12-6-1965 at Hipparga (Kopdeo). Alasab was admitted in school at Hipparga (Kopdeo), but Alasab was not really keen on studies. He dropped out of school in the year 1983. Alasab was in the third standard when he left school.

Since the Lady had no source of income she moved to Bombay alongwith her children in search of livelihood and managed to get work at a construction site at Vashi. Since Asalab had no school to attend, he used to wander here and there and frequented the front stalls to watch movies. One fine day in the year 1984, Alasab disappeared without informing her mother and ostensibly went alongwith a Circus which had performed at Bandra at that time. Despite searching, Alasab could not be traced. Ultimately, the Lady returned to Hipparga (Kopdeo).

The Rising Action

Mohammed, son of Wadhebi (one of the married daughters of the Lady mentioned above) watched the movie "Raju Ban Gaya Gentleman" at a theatre in Ahmedpur and immediately identified Alasab. He rushed to his mother Wahedbi and informed her that he has recognized his maternal uncle Alasab. Wahedbi also went to watch the movie "Raju Ban Gaya Gentleman" to ascertain the truth behind her son’s claims and she too immediately identified Alasab. Wahedbi and her son Mohammed then went to Hipparga (Kopdeo) and informed the Lady that Alasab has been traced.They told the Lady that Alasab has changed his name to Shah Rukh Khan and has become a film star. Thereafter all of them arrived at King Khan’s the then residence in Bombay and requested SRK to acknowledge the Lady and maintain her. They had also contacted well known film stars like Dilip Kumar, Big B and Rekha and tried to collect information from them with regard to antecedents of SRK(then ‘Raju’ who according to the Lady, was pretending to be  the ‘Gentleman’ ).

The Climax

The Lady startled SRK by initiating action for maintenance, under section 125 of the Code of Criminal Procedure (Cr. P.C) in the Court of Judicial Magistrate, First Class, Ahmedpur, dist. Latur. The Lady proclaimed herself as mother of SRK and alleged in her application for maintenance that even though SRK recognized her and acknowledged her as his mother, he refused to maintain her. She claimed monthly allowance at the rate of Rs. 500/- (Rupees five hundred only) for her maintenance.

Following Cr. P.C. by the book, the Magistrate issued summons to SRK and called him to appear in the Court. SRK must have received a serious jolt when he received the summons, but however, he sought legal advice and quickly filed a petition under section 482 of the Cr.P.C. for quashing the proceedings initiated by the Lady.

SRK presented his case, proof of his parentage, death certificates of his parents,  certificates of schooling, awards won and letters and certificates establishing his schooling and college and more importantly, several proofs of his birth, passport and other such legally accepted documents to basically establish the fact that he was Shah Rukh Khan, a permanent resident of Delhi(at that relevant point of time) and son of Late Mir Taj Mohammed Late Fatima Latif. SRK went on to state that after completion of his post graduation in Arts, he shifted to Bombay to try his luck in Bollywood and later struck gold. He obviously denied that the Lady is his mother and that the application filed by her was a false, frivolous and vexatious proceeding for maintenance against him to extract money and accordingly sought quashing of the proceedings as against him.

The classic evidence

The Lady produced the Birth Certificate and school leaving certificate of Alasab. The certificate, issued by She Deputy Sarpanch of village Hipparga (Kopdeo) and copy of the photograph of Alasab, with his brother, an important piece of evidence. Besides these documentary evidence, she filed her own affidavit and produced affidavits of her daughter, her son-in-law and affidavits of other witnesses.

Most importantly, the classic piece of evidence.

She submitted a certificate issued by the Deputy Sarpanch of village Hipparga (Kopdeo) certifying that film star Shah Rukh Khan was a permanent resident of village Hipparga (Kopdeo). The Deputy Sarpanch further certified that SRK had left village about few years back and was residing with her mother in Bombay and thereafter, disappeared and later acquired tremendous publicity and fame as film star, and then conveniently declined to identify his mother, sisters and brother. The certificate also stated that whatever information was given therein was correct.

The Falling Action

This Court directed to hold the enquiry as to how and on what basis the Deputy Sarpanch of village Hipparga (Kopdeo) has issued such kind of certificate. The enquiry papers were made available for the Dy. Sarpanch’s perusal. The Deputy Sarpanch, in one breath denied to have issued such kind of certificate and in the next breath, he stated that someone had already brought the certificate and he had simply attested his signature. The High Court proposed to issue a Notice to the Deputy Sarpanch, as to why criminal prosecution should not be launched against him. The findings which led to the quashing of the proceedings:

·        The Lady was a self-proclaimed mother.

·        The mother contemplated under section 125(1)(d) of the Cr.P.C. does not include self-proclaimed mother.

·        The Lady was ill advised.

·        She had fallen prey to the busy brains of her relatives.

·        An application under section 125 of Cr.P.C. is not a complaint.

·        SRK could not have been equated with an accused.(significantly an “accused” is not defined in the Cr.P.C )

·        Ultimately, the order that would be passed in a 125 Cr.P.C. proceeding is not an order of conviction.

·        The Lady is a stranger to SRK.

The Dénouement

Interestingly, the Court also observed that “there is no specific provision in the Code of Criminal Procedure to combat such kind of unforseen circumstance. Nothing is provided in the Code of Criminal Procedure to meet or tackle such kind of false, frivolous and vexatious litigation. It cannot be, therefore, said that the present petitioner is required to prove the correctness of his claim in the trial Court, on the basis of the evidence and seek justice in that regard. In order to combat such false and frivolous litigation, it is required to truncate the very proceeding at the threshold to serve the ends of justice. The ends of justice are in jeopardy. The Court cannot shut the eyes, fold the hands and remain silent onlooker. Inherent powers, no doubt are required to be used sparingly, carefully and cautiously, but if there is an instance of abuse of process of law, with an intention to harass a citizen, it is legitimate on the part of this Court to snip the very proceeding at its commencement to serve the ends of justice.”

On the insinuation that the Court was tilting towards the filmstar, the Court observed  that “sympathy  was not being not shown to a film star…inherent powers were being invoked to scrap the false, frivolous and vexatious proceeding not because the petitioner is a film star but he is a star victim of false, frivolous and vexatious proceeding.

The large part of law consist of various behavioral perspectives in the form of 'Duty' that is, mode of conduct to which people must confirm and by which their actual behavior is judged. Thus, the very concept of 'is' law is composed of 'ought'. it is the ought that acquires the character of law, which has filtered through certain criteria of validity.  Natural lawyers would assert that a proposition is law not because it has pass through few formalities but for being a moral consideration and by virtue of  an additional moral content .

Now the point is what is moral is a debatable topic and that is why there is a provision of amendment in our constitution it self. The content of the morals keeps on changing. It changes with the time and changing needs of the society. Thus, the growth and development of the society is essential. Law emanates from the society and it differs from one to another. The needs of the society would fill the content of the 'morals' which later transforms into law.

Take the example of 'Right to Education' , the need of the hour is to educate people of India at large. But the question is how? Now the framers of the law have been looking into the matter since long and they have formulated many measures which will encourage the growth of literacy rate. Even  there were steps taken to improve the surroundings which in a way helps in the way of promoting education. There were many affirmative actions taken by the government. The right to education is a fundamental right under Article 21A was incorporated in 2002 and in the year of 2010 the Right to education Act has passed.

I am not taking the aspect of why being so late because that is different aspect alltogether. I am concerned with the point that the importance of sociological approach in the making of positive law.Thus, to sum up this point I must say that law is nothing but a compilation of every seeds of social, cultural and moral values which is presented to the people in a bunch of papers with a sanction attached to it.

In the case of S.K. Alagh Vs. State of U.P. and Ors. reported in (2008) 5 SCC 662 the Hon’ble Supreme Court, at paragraph 20 thereof, observed  as under:

“…  We may, in this regard, notice that the provisions of the Essential Commodities Act, Negotiable Instruments Act, Employees' Provident Fund (Miscellaneous Provision) Act, 1952 etc. have created such vicarious liability. It is interesting to note that Section 14A of the 1952 Act specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company.”

For easy reference, the said Section 14A of the Employees' Provident Fund (Miscellaneous Provision) Act, 1952 Act is extracted herein as under:

 14A. Offences by companies

(1) If the person committing an offence under this Act [,the Scheme or[the[Pension] Scheme or the Insurance Scheme]] is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under the Act[, the Scheme or[the[Pension] Scheme or the Insurance Scheme]] has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section,--

(a) "company" means any body corporate and includes a firm and other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.]

And since Section 405 of the Indian Penal Code defines 'criminal breach of trust' , the said provision is as under:

Section 405-Criminal breach of trust-

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

From the bare reading of section 14A of the Employees' Provident Fund (Miscellaneous Provision) Act, 1952 and Section 405 of the IPC,it is interesting to note that there is no semblance of any kind whatsoever between the two aforesaid provisions leading us to the humble conclusion , with due respect to the Hon'ble Supreme Court that its observation   that “It is interesting to note that Section 14A of the 1952 Act specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company” appears to be incorrect.

Section 14A of the 1952 Act  is a vicarious liability provision akin to provision similar to Section 141 of the Negotiable Instruments Act, 1881 ('NI Act') or Section  140 of the Customs Act, 1962 or Section 85 of the IT Act and does not create any independent offence. It simply extends the liability of such an offence committed by a company under the 1952 Act to every person, who at the time the offence was committed by the company, was in charge of, and was responsible to, the company for the conduct of the business of the company.

In view of art. 141 of the COI such observations have the potential of being  misused by mischievous lawyers and it also adversely affects the general undertstanding of the provision involved.

The forensic technology has played an integral role in solving criminal cases. D.N.A (Deoxyribonucleic Acid) tests, first discovered by Prof. Alec Jeffreys in 1985 in England has now become a credible source for identifying a person with the help of his blood, hair, sperm, muscle, nerve or tissue sample. Sometimes when the victims resist, they scratch their attackers, in such cases skin cells underneath the victim’s fingernails are extracted to identify the criminal. Compared to a blood test, the possibility of a D.N.A finger printing going wrong is one in 30,000 million.

D.N.A fingerprinting: – How is it done?

1. Specimens are collected from the crime scene.
2. The DNA is isolated and cut to match against other samples.
3. Subsequently, the strands are placed on a gel and an electric current passed through it
4. The samples are then matched with the existing records of offender, arrested people and suspects.

DNA profiling narrows the list of suspects that authorities need to work through. The FBI commented that DNA profiling allows them to dismiss one-third of rape suspects because the DNA samples do not match. Authorities recognize the possibility of specimens being planted at crime scenes, and therefore continue to investigate the crime based on motive, weapon, testimony, and other clues in order to more accurately solve the case.

Law Regarding D.N.A testing in India as compared to other countries :-

India has no specific legislation or provision related to D.N.A testing. There is no provision under the Hindu Marriage Act, Indian Evidence Act, CrPc or CPC which a party could be compelled to submit one’s blood sample for examination. In such cases the court is bound to invoke Section 151, C.P.C  for giving appropriate directions in the larger interest of Justice. Fortunately the courts have been instrumental in considering D.N.A tests as credible evidence from 1989.

However, countries like Australia, Canada and U.S.A have specific legislation related to DNA forensics.

The (Canada) D.N.A Identification Act, 1998 provides for the constitution of National D.N.A databanks. The act empowers judge to order persons for designated offences to provide D.N.A samples to derive D.N.A profile. The databanks help the investigative agencies in eliminating or identifying suspects or detecting serial offenders. U.K. Criminal Justice Act, 1995; provides that a blood sample for a D.N.A test may be taken forcibly by a court.

Loopholes in the present Legal System:-

1. It is on the discretion of the courts to consider D.N.A tests as a conclusive proof.

2. India has less number of D.N.A experts as compared to other developed countries. Moreover they are deprived of proper training, adequate laboratories, professional respect and perks.

3. The police is lacks the requisite knowledge of evidence collection from crime site. Most of the time the evidence is either ignored or destroyed.

4. The judges and lawyers lack forensic acumen and can be manipulated.

5. Even if evidence is send for D.N.A testing, the laboratories like F.S.L never produce the forensic reports on time.

6. Unlike Canada and Australia, we do not have a provision for National D.N.A Data bank.

7. Forcible blood test for D.N.A testing is not available in India.

8. It is often contended that the D.N.A testing violates the right to privacy of an individual.

9. Post-convict D.N.A tests are not recognized under the Indian law.

10. The power to issue directions for conducting D.N.A tests entirely rests on the court.

Recommendations

India definitely requires legislation in this regard. A D.N.A specialist must be given the status of an expert. They should be provided with adequate training and equipment. The number of laboratories must be increased. Moreover law students, lawyers, police and judges must obtain some official training and knowledge in D.N.A testing. The generation of forensic reports must be made time-bound. A D.N.A test must be not considered violation of individual’s right to privacy guaranteed under the constitution. There is a need for constitution of a National D.N.A data bank in the country. Before granting the right to D.N.A testing to post-convict, it must be ensured that the same is not misused by the prisoners.

This a duplication of the post on legal drift. It can be visited on 

http://www.legaldrift.com/decoding-the-d-n-a-legislation-in-india/

Imagine yourself dealing with a case where your client has been accused of murder. The Prosecution story states that your client was found with the murder weapon in his hand when the police arrived having been sitting calmly in front of the deceased for hours and showing no emotion whatsoever. Further, when the cops appeared, your client made no effort whatsoever to flee.

Now if you are wondering what plea you would take to get him out of the impending noose, and you have finally decided to do the ‘idiot’ argument, you may continue to read…

 Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.(Section 84 of the Indian Penal Code)

Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind but the Indian Penal Code does not go on to define "unsoundness of mind". The Courts have, however, essentially treated this expression equivalent to insanity, a term itself, which again has no precise definition but which is usually used to describe varying degrees of mental disorder. Thus, every person, who is mentally diseased, is not ipso facto exempted from criminal liability. There is a distinction between legal insanity and medical insanity. The Supreme Court in the case of Hari Singh Gond , reported in 2008(12)SCALE102, Court categorically states that  a court is concerned with legal insanity, and not with medical insanity. The Court was dealing with an Appeal from the High Court of Madhya Pradesh where Hari Singh Gond was accused of murdering his grandfather-in-law and in the trial he claimed innocence on the grounds of idiocy and sought protection under Section 84 of the Indian Penal Code. The Bench affirmed the lower court and High Court orders convicting Gond for the murder.

There are four kinds of persons who may be said to be not of sound mind (non compos mentis), i.e.,

(1) an idiot;

(2) one made non compos by illness

 (3) a lunatic or a mad man and

(4.) one who is drunk.

An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like,

A person made non compos mentis by illness is excused in criminal cases from such acts as are- committed while under the influence of his disorder.

 A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason.

Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity.

Under Section 84, IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing

 (a) the nature of the act, or

(b) that he is doing what is either wrong or contrary to law.

Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).

Stephen in `History of the Criminal Law of England, Vo. II, page 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section

Mere abnormality of mind or

partial delusion,

irresistible impulse or

compulsive behaviour of a psychopath

affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M Naughton's case (1843) 4 St. Tr. (NS) 847.

The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.

Short, crisp and definite as a decision should be.

 However, when it says “or the like” it does leave some room for  imagination and argument.

News Link from BBC : http://news.bbc.co.uk/2/hi/7132124.stm

Last Updated: Friday, 7 December 2007, 09:08 GMT  E-mail this to a friend Printable version

Hindu gods get summons from court

By Amarnath Tewary  Patna The gods have many temples in their name Pic: Vivek Raj A judge in India has summoned two Hindu gods, Ram and Hanuman, to help resolve a property dispute. Judge Sunil Kumar Singh in the eastern state of Jharkhand has issued adverts in newspapers asking the gods to "appear before the court personally". The gods have been asked to appear before the court on Tuesday, after the judge said that letters addressed to them had gone unanswered. Ram and Hanuman are among the most popular Indian Hindu gods. Judge Singh presides in a "fast track" court - designed to resolve disputes quickly - in the city of Dhanbad. The dispute is now 20 years old and revolves around the ownership of a 1.4 acre plot of land housing two temples.  You failed to appear in the court despite notices sent by a peon and post  Judge Sunil Kumar Singh in letter to Lord Ram and Hanuman The deities of Ram and Hanuman, the monkey god, are worshipped at the two temples on the land. Temple priest Manmohan Pathak claims the land belongs to him. Locals say it belongs to the two deities. The two sides first went to court in 1987. A few years ago, the dispute was settled in favour of the locals. Then Mr Pathak challenged the verdict in a fast track court. Gift Judge Singh sent out two notices to the deities, but they were returned as the addresses were found to be "incomplete". Local say the temple belongs to the gods Pic: Mahadeo Sen This prompted him to put out adverts in local newspapers summoning the gods. "You failed to appear in court despite notices sent by a peon and later through registered post. You are herby directed to appear before the court personally", Judge Singh's notice said. The two Hindu gods have been summoned as the defence claimed that they were owners of the disputed land. "Since the land has been donated to the gods, it is necessary to make them a party to the case," local lawyer Bijan Rawani said. Mr Pathak said the land was given to his grandfather by a former local king.

The two female suicide bombers who were responsible for the metro attacks in Moscow, were the widows of former terrorists. It is believed that about 30, “black widows” were trained by the Russian Bin Laden to carry more of such attacks in future.

The presence of suicide bombers has become a matter of grave concern through out the world. Suicide attackers are not driven by the motivation to die but  by the zeal to kill others.

These fearless  terrorists are often misconceived to be mentally retarded or abnormal, but the psychological studies have proved that they are perfectly normal people who are determined to do things differently.

In the modern era, suicide bombings were initiated in the Second World War by Japanese troops. The “Kamikaze” was used as a strategy to instill terror in the minds of the terror. Takijiro Onishi, who was leading the air force in Manila, used the technique of intentional crashing of aircraft by the inexperienced pilots.

1970’s witnessed the resurrection of suicide bomb attacks in Islamic Terror groups.  Hizb’allah used suicide bombings against  Israel.  Ayottah Khomeini (Iranian Spiritual Leader) re-interpreted the Shia Cult of martyrdom. And hence propagated the concept of suicide committed for religious causes. Hamas is another group operative in Palestine which has carried out numerous attacks including Gaza strip attack and Christmas Day Attack in Jerusalem.

Religion may not be the sole purpose of carrying out such attacks. L.T.T.E which was operative in Sri Lanka used the suicide attacks for accomplishing its political motives.

Reasons for becoming Suicide Bombers:

1. Poverty

2. Conditioning done by the terrorist groups that starts from the very early age of an individual.

3. The myth of martyrdom and the posthumous acclamation associated with it.

4. The manipulation jihad and other religious beliefs (like it would open the doors of heaven).

5. The assurance of the terrorist groups to support their families and promise to reward them with both cash and honor.

6. The internalization of terrorist ideology in the minds of the bombers.

7. Values of the cultural societies (in Lebanon and Palestine the suicide bombers are treated with the stature of martyrs). It is estimated that more than 30% of Palestinians support suicide bombers.

8. Revenge ( eg. Black Widows)

9. To bring attention to the demands of the terrorist groups.

10. The urge to follow the footsteps of a charismatic leader, friend or family member.

How is it carried out?

In Gaza, a game “shuhada” is staged by children on streets to offer mock funeral offerings to the suicide bombers (identified as martyrs by them). The children identify with them as their heros and ideals. Usually vulnerable children like them are carefully selected by a terrorist organization.

They are then divided into small groups which is presided by a teacher. Gradually the youngsters are transformed in to weapons of destruction. They are left with no sense of individualism and identity. The ultimate motive is to be an asset to the group. During their training, the candidates have to observe complete abstinence from women and sex. They are taught only selected religious texts from the Arabic Quran. No one; not even the parents of a bomber are informed about his missions.

Suicide Terrorism requires a very few means and little preparation. A determined perpetrator and an effective explosive is all that is needed. It is both cost-effective and more impact-oriented.

Impact of Suicide Terrorism:-

Places like embassies, shopping malls, railway stations, restaurants, buses, parks and posh streets are the most common targets of such attacks. It serves three purposes of the terrorists i.e.

1. Greater chances of causing more damage and causalities.

2. The probability of being caught is comparatively less.

3. A much greater impact of the general public. The terrorized people usually think, “If I’m not safe here, then where can I expect security?”

A terror attack is generally accompanied with two counter-responses by the masses. Most of the people express patriotic sentiments on the advent of such grave happening. Contrary to this, people also doubt the ability of their governments to protect them. Russia and Israel face suicide terrorism on continuous basis. The people in these countries not only possess hostile feelings for the minorities but also advocate stringent governmental action against the terrorists.

The mass public response after such heinous attacks has often empowered the government to take harsh steps. The American Patriot Act being one such example. Sri Lanka also enacted a legislation in 1979 through which it could hold any person under arrest  for 18 months without trial.

One of the major problems with regard to suicide bombers is that since they target civilians, in most of the western countries they are tackled by the police and not by the military. To prevent such attacks more and more public places must be guarded. The victims and their families must be provided with immediate medical help. The reconstruction of normal life is very important. The government must take initiatives to regain the trust of the masses.

The article  is the duplication of the post published on authors blog. It can be reviewed on 

http://www.legaldrift.com/suicide-bombers-married-to-death/

The High Courts in India are Courts of records.

A Court of record generally has the following attributes:

     1.  generally has a seal

     2.  power to fine or imprison for contempt

     3.  keeps a record of the proceedings

     4.  proceeds according to the common law (not statutes or codes)

     5.  is independent of the magistrate (judge)

The bold highlight on top among others, means that whatever you happen to file in court is preserved
 by the court, including original documents, if any.

However, curiously, in our legal system, the court files habitually disappear.Usually after an interim
 order/injunction has been granted by the Court.

In local parlance the Kolkata attorneys refer to this extra judicial redressal mechanism as the
 ‘Ganges service’ meaning that after a party has obtained an interim order in its favour and
does not want such order to be set aside or varied or the matter to be heard in the near future,
 the court file is illegally obtained by allegedly masquerading the court staff for a few ‘Gandhis’
and immersed in the holy Ganges.

In the northern states, it is known as ‘file gayab ho jana’.

In the South, I am certain there are suitable phrases for the same.

What follows is a very tedious procedure of ‘reconstruction of court file’. Letters are usually
written to the Court Registrar/Registry for reconstruction followed by repeated mentioning

before the Court, issuance of notices to parties to produce their records of the matter
and then removal of objections and finally a reconstructed file on which the proceedings
may continue.

Time span – safely 2-3 years

And the injunction continues.

Now, if the court of record fails to preserve it own record, why should the litigant suffer?

Who pays for such suffering?

The answer obviously is that the Court or the department of the court being responsible for such
‘disappearance’, should be answerable.

The officer in charge or the keeper of the records, if hauled up, may be able to reveal the
 truth and more importantly, the costs of such reconstruction, judicial time wasted and
 suffering to the litigant are if, made to be paid out of his salary, such a nuisance may
 perhaps be deterred. An inquiry into the affairs of the Court, suspension pending inquiry,
a quick decision, suitable exemplary punishment to the wrong doers may also create an
 example for non-repetition of such tricks.

And looking forward, ofcourse, e-filing.

Any thoughts as to how the Courts ought to preserve its own records, keep it away from gnawing

 animals , fire, flood, an occasional tsunami , unruly protests and vandalism and such similar
 stuff apart from the greasy palms removing the files for its final immersion in the nearby rivers?

The Controversy

 

When the two sports stars (Sania Mirza and Shoaib Malik) would tie the knot, it is believed that the two countries India and Pakistan would also share a common-bond. But the marriage between the Indian tennis star and former Pakistani Cricket Captain, scheduled on April 15, 2010 has already witnessed a lot of controversies. After Shiv Sena’s threat to Sania and her family with the performance of marriage. It is now alleged that the prospective groom, Shoaib Malik has been already married to Ayesha Siddhiqui alias Maha Siddhiqui since June, 2002.

Mohammed Siddiqui, the father of Ayesha has already lodged a complaint against Shoaib Malik in Hyderabad under Sections 420 (cheating), 498-A (dowry harassment) and 506 (criminal intimidation). On the other hand Malik and his family have denied the subsistence of any such marriage.

Two sides of the same story

In their interviews, Malik and Ayesha have presented different versions of the story. Shoaib Malik contends that he had never met Ayesha in person before the alleged marriage took place. Maha, had send him the photographs of some other woman who he presumed to be Ayesha. He was deceived by her and at a tender age of 20. When he figured out the fraud in 2005 he immediately broke all his associations with Ayesha.

He said,” I walked out of my house one morning in June 2002, and went to my friend’s shop and called from there. I got a nikahnama, signed it, thinking the girl I was marrying was the one in the photographs.

In Muslim law, this arrangement doesn’t work no matter what paper may or may not be there simply because, when the proposal was made, the image in my head was the girl in the photographs, but the girl, who was accepting the proposal was someone else. That’s cheating.”

Whereas Ayesha said that they had met in Dubai in 2000 and were in constant touch since then. The internet facilities were unavailable that time and therefore there was no question only exchanging photographs. She further said that Malik was disappointed with her being fat and thus avoided her company at public functions. The growing popularity of Malik amongst the girls led to a drift between the two. She proclaimed that a telephonic marriage in Islam was perfectly legal and valid according to the sharia. Ayesha’s family has also released a the nikahnama in public.

Main Elements of a Muslim Marriage :-

1-Free Consent of the Parties

2-Payment of dower

3-Witnesses

4-May be terminated by either of the parties any time

A telephonic marriage in Sharia is valid if witnesses are present from both the sides. In the present case, the marriage claim by the Siddhiqui’s is dubious until and unless, the witnesses from both the sides are produced. Moreover, Shoaib’s argues that the consent given by him was under the misconception that the girl he is marrying was the one in the photographs and not Maha Siddhiqui, further weakens the case. As in a Muslim marriage, free consent of the parties is a pre-requisite.

Under the Indian Muslim Act, a Muslim male can enter a second marriage while the first marriage is already subsisting. Thus, Siddhiqui would not be able to prevent Sania and Shoaib’s marriages even if the alleged marriage is legally valid.

If tried under the Indian Laws the cricketer can be punished with both imprisonment and fine. The contradictory statements issued by the cricketer time and again have also diluted the veracity of his claims. If Ayesha’s claims are valid then the victim has been harassed by her celebrity husband. Calling a wife fat or public harassment amounts to mental cruelty under the Indian Law. It would be to early to jump into any conclusions as of now, I think the truth will reveal itself in due course of time.

The article is a duplication of author's post on her blog. The same can be viewed on 

http://www.legaldrift.com/the-legal-controversy-surrounding-sania-shoaibs-marriage/

National Judicial Service has been one of the most political-legal contentious issues in the judicial history of India. The debate has continued for years. On one hand the law ministry and the legislature intends to introduce the National Judicial Service in the country where as on the other hand the judiciary intends to postpone the same.

Why do judges oppose the commission of All India Judicial Service?

There are four basic ways of judicial appointments:-

1. By political institutions (Partially practiced in Italy and South Korea)

2. By judges themselves (Japan, Iraq and India)

3. By non-judge members (Brazil and Most American States)

4. Through Election (Some American States like Washington)

Presently in India, the appointment of district judges is done by the governor on consultation with High Court Judges by the purview Article 233(1) of the Indian Constitution. The Chief Justice of a High Court is consulted by the President before the appointment of any High Court Judge. These appointments are highly politicized and partial in many respects. The lower judiciary is under the dominance and control of the High Court. The district judges have to please the Chief Justice for their promotion as a High Court Judge. The commencement of Indian Judicial Service would surely decrease the power of High Court judges with reference to appointment and recruitment of judges.

When did it start?

The clause related to All India Judicial Service was incorporated in Article 312 (which deals with ALL INDIA SERVICES) by the 42nd Amendment, 1976. The clause specifically provides that Parliament in national interest may create judicial service for one or more states on request of the council of states. The provision clearly states that any post subordinate to district judge would not be included in the All India Judicial Service.

The creation of National Judicial Service is objected on three grounds:-

1.  Impairment of Independence of Judiciary

2.  Lack of regional language proficiency would affect the delivery of justice.

3.  It would be deterrent to the interest of those who have already entered the service.

All the three contentions do not hold water. Appointments and recruitment would not affect the independence of judiciary rather it would ensure the autonomy of lower judiciary. Secondly, it is suggested that the issue of inadequate language knowledge can be easily addressed with proper allotment of states or study of multiple languages can be included as a part of judge-training. Lastly, since it is suggested that only 25% of judges in each state would be drawn from the All-India cadre; the same would not be detrimental to those already in service.

National Judicial System vis-a-vis Civil Services

The judiciary is not considered a lucrative career by most of the lawyers. The profession fails to attract a large number of competent lawyers. This adversely affects the quality of justice in the courts, which further results in delay of justice. In 2009 there were about 53,000 cases pending in SC, 40 lakh with High Courts and about 2.7 Crore in lower courts. The two main reasons for this high pendency of cases are High vacancy in courts and low judges-to-population ratio.  In India the current judge-population ratio is 12.5 per million people where as in U.S. it is 114 per million. Presently 23% of sanctioned strength of the Supreme Court, 26% High Courts and 18% of Lower Courts is vacant.

Each year about 200,000 youngsters compete through an examination to enter services like I.A.S or I.P.S. The candidates are selected on merits and competency for a rigorous training of two years. If a similar system is also incorporated in the judicial services, well-qualified and competent lawyers could be attracted to the posts of judges. It would not only increase the judge-population ratio but would also improve the quality of justice.

The article can also be viewed on authors blog  

http://www.legaldrift.com/will-the-quality-of-justice-improve-by-the-creation-of-national-judicial-service/

 “There is a moment that comes in your life, if you’re queer. It’s a moment of utter loneliness, when you realize that the world isn’t exactly designed for people like us. At this point, we scavenged. We took the novels we read and changed the pronouns of the protagonists. We saw films and changed the gender of the hero or heroine. We read between lines, we found spaces between cracks, we desperately looked at any gesture of affection : anything to know that  somewhere, in someone, there was a mirror to our reality, a name to our desire, or simply, a companion to our confusion.”

-          Gautam Bhan, “Because I Have a Voice”

A film-by-film account of the recently held Bangalore Queer Film Festival 2010, with its heady mix of documentaries, feature length films, and shorts wouldn’t quite do it justice. Instead,  I’ll get to the part where, for me, this 3 day affair of screenings, panel discussions, cultural performances, and a photography exhibition, transcended its film festival trappings, and became something bigger. When is a film festival not just a film festival ?  I was about to find out.

Noontime, on the second day, and the documentary feature, Edie and Thea : A Very Long Engagement was playing. This is  a disarming, moving story of a lesbian couple  finding their way through battles both personal and political, to finally come together in matrimony after a 42 year long relationship. As Edie and Thea exchanged their wedding vows on camera for us all to see, something quite wonderful happened. The audience in the Alliance Francaise auditorium, caught up in the onscreen celebration, cheered and applauded, even louder than the characters on screen : a heartwarming moment transcended the screen and enfolded the crowd in a wonderful shared experience.

Stories, Realities, about love, loss, hope, struggle, violence.  A night out cruising goes hilariously wrong – A near-broken marriage rights itself in an unpredictable manner  –  A chance encounter at an airport with metaphysical hues  –  a documentary tracing the unique, sexually diverse community of the Zapotec  Indians  –  a bleak, phantasmagoric short engaging with the stories (or rather, experiences) of a young actress and a hustler  - A brave, albeit amateurish Egyptian feature based on actual Human Rights Watch reports. And of course, “ A Single Man” – the BQFF event film . In a particularly enterprising move, the organizers tied up with PVR Pictures to position the festival as the premiere for  this Colin Firth starring Oscar nominated film. While I found the film curiously lacking in heart, it more than makes up in its looks. Designer Tom Ford’s directorial debut is an absolute stunner to look at : every frame is immaculately tailored,  art directed to perfection, the designer frames combining with a haunting score to  powerful effect.

Also on display were a double bill of panel discussions and cultural performances : first, a  panel discussion on the Naz Foundation case and its implications that gave the audience immensely entertaining food for thought, with Lawrence Liang drawing linkages between Plato’s Symposium and the “litigation on love” to compelling effect, and co-panelist Arvind Narrain detailing the challenges to the case before the Supreme Court, mining much laughter from the outrageously worded  petitions.  The second discussion focussing on  Queer Women’s Histories and Voices followed the next day, with the Bangalore-based panelists, Christy Raj and Sumathi talking about queer women and female-to-male transgender experiences in the city, while Apphia Kumar delivered an account of bisexual identities.

So when is a film festival not just a film festival ?

The Naz Foundation appeal stands listed for final arguments this month. Whether the appeal is allowed or not, we can be sure of one thing : Our fights will not be won just in the courtroom or the legislature. Our fights are in the spaces where people’s lives are directly impacted, in  spreading awareness, in furthering advocacy. Queer cinema is an important strategy both in increasing awareness and in ongoing advocacy efforts to bring the concerns  of queer people to the Indian public.

And, as an audience discovered during the 3 days of the Bangalore Queer Film Festival, it’s a wonderful mirror to our collective realities.