Shayara Bano v. Union of India

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Shayara Bano v. Union of India | Judgment | Law on Tips

Sl. Divisions Contents Para-grap No. hs 1. Part-1 The petitioner’s marital discord, and the 1- 10 petitioner’s prayers 2. Part-2 The practiced modes of ‘talaq’ amongst 11- 16 Muslims 3. Part-3 The Holy Quran – with reference to ‘talaq’ 17- 21 4. Part-4 Legislation in India, in the field of Muslim 22- 27 ‘personal law’ 5. Part-5 Abrogation of the practice of ‘talaq-e-biddat’ by 28- 29 legislation, the world over, in Islamic, as well as, non-Islamic States A. Laws of Arab States (i) – (xiii) B. Laws of Southeast Asian States (i) – (iii) C. Laws of Sub-continental States (i) – (ii) 6. Part-6 Judicial pronouncements, on the subject of 30 - 34 ‘talaq-e-biddat’ 7. Part-7 The petitioner’s and the interveners’ 35 – 78 contentions: 8. Part-8 The rebuttal of the petitioners’ contentions 79 - 111 9. Part-9 Consideration of the rival contentions, and our 112- 114 conclusions I. Does the judgment of the Privy Council in the 115-120 Rashid Ahmad case, upholding ‘talaq-e-biddat’, require a relook? II. Has ‘talaq-e-biddat’, which is concededly 121-127 sinful, sanction of law? III. Is the practice of ‘talaq-e-biddat’, 128-139 approved/disapproved by “hadiths”? IV. Is the practice of ‘talaq-e-biddat’, a matter of 140-145 faith for Muslims? If yes, whether it is a constituent of their ‘personal law’? V. Did the Muslim Personal Law (Shariat) 146-157 Application Act, 1937 confer statutory status to the subjects regulated by the said legislation? VI. Does ‘talaq-e-biddat’, violate the parameters 158-165 expressed in Article 25 of the Constitution? VII. Constitutional morality and ‘talaq-e-biddat’. 166-174

this the Petitioner during the time of marriage had made arrangements beyond their capacity. But soon after the marriage the Respondent husband started demanding for additional dowry and made unreasonable demands for a car and cash. 2.4 The Petitioner who rightfully denied the demands of the Respondent was tortured and physically abused by the Respondent and his family. She was often beaten and kept hungry in a closed room for days. The family of the Respondent administered her with medicines that caused her memory to fade. Due to the medicines she remained unconscious for long hours. Xxx xxx xxx 2.6 On 09.04.2015, the Respondent attempted to kill the Petitioner by administering medicines. These medicines on inspection by a doctor on a later date were revealed to cause loss of mental balance after regular consumption. The Respondent brought the Petitioner to Moradabad in a critical near-death condition with the intention of abandoning her if his dowry demands were not fulfilled. 2.7. Thereafter on 10.04.2015 the Respondent called the parents of the Petitioner to Moradabad to take their daughter. The parents of the Petitioner requested him to come to Kashipur to meet and settle the issue. He refused to go to Kashipur and said that they should come and take their daughter or fulfil his demands for more dowry. He demanded Rs.5,00,000/- (Rupees Five Lakh Only). 2.8. Due to the unreasonable demands and the torturous behaviour of the Respondent husband, the Petitioner’s parents came to Moradabad to take her and she was forced to stay with her parents after 10.04.2015. xxx xxx xxx 2.13 The Respondent has filed for restitution despite the fact that he himself had asked the Petitioner wife’s father to either fulfil his dowry demands or to take the Petitioner back to her maternal home and in pursuance of the same had drugged the Petitioner and had left her in Moradabad.”

med with a serious accident before marriage. I for the sake of my children and you tolerated that. I became despondent from your persistent demand of living at your parental house and your being of stubborn nature, your giving threat of implicating in false case and threat of inflicting injury to yourself and of consuming poison and implicating me in false case on that count given on daily basis and complained about the same to your paternal uncle but your father replied that whenever you do such acts sleeping pills be given to you. I found this very baffling, upon asking your father told that since the time before your marriage you had been under treatment for mental ailment. I ignored such a big incident and the information received about you. Resultantly you became audacious in your behavior. When reported all these things to your father, your father told me that this is the time of children’s holidays you be sent to your parents’ house with children. You take them back after the atmosphere is changed and summer vacations are over. Acting on the words of your father I left you at your parents’ place along with children and while going, you took away gold jewelry given by me including a gold neck set of two Tolas, gold bangles of one and a half Tola, two gold rings of half Tola and cash Rs.15,000/-. I continued to visit you enquiring your wellbeing and giving you expenses from time to time. That in the month of May and June when I tried to bring you then you gave excuses and pleas. I continued to make repeated attempts between May to July to bring you back but ultimately on 03.07.2015 you clearly refused to return and on 07.07.2015 you father brought both the children at Allahabad Railway Station and left them there informing me and gave threat on phone that either you will come here and live or shall perform the role of father and mother of both the children. In this regard when I enquired from you then you also refused to return in clear words and said to the extent that you raise the children and forget me or separate from me to bring another mother for the children. On this also I could not satisfy myself, whereupon I filed a suit for bringing you back. After receiving notice, out of the blues you threatened me on phone that I will soon file a case and will tell you how a son in law is kept at the in-laws house. Being fed up with your unreasonable conduct and against Sharaih acts I found it better to separate from you, therefore, I on 8.10.2015 applied for dismissal of the suit for bringing you back and now I, in my full senses and in 10

““There is no proviso in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India. The Hanafi Jurists however, have clearly laid down that in cases in which the application of Hanafi Law causes hardship, it is permissible to apply the provisions of the “Maliki, Shafii or Hambali Law”. Acting on this principle the Ulemas have issued fatwas to the effect that in cases enumerated in clause 3, Part A of this Bill (now see section 2 of the Act), a married Muslim woman may obtain a decree dissolving her marriage. A lucid exposition of this principle can be found in the book called “Heelatun Najeza” published by Maulana Ashraf Ali Sahib who has made an exhaustive study of the provisions of Maliki Law which under the circumstances prevailing in India may be applied to such cases. This has been approved by a large number of Ulemas who have put their seals of approval on the book. As the Courts are sure to hesitate to apply the Maliki Law to the case of a Muslim woman, legislation recognizing and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women. One more point remains in connection with the dissolution of marriages. It is this. The Courts in British India have held in a number of cases that the apostasy of a married Muslim woman ipso facto dissolves her marriage. This view has been repeatedly challenged at the bar, but the Courts continue to stick to precedents created by rulings based on an erroneous view of the Muslim Law. The Ulemas have issued Fatwas supporting non-dissolution of marriage by reason of wife’s apostasy. The Muslim community has, again and again, given expression to its supreme dissatisfaction with the view held by the Courts. Any number of articles have been appearing in the press demanding legislation to rectify the mistake committed by

Code of Personal Status 1956 Law 13-8 of 1956 as amended by Law 7 of 1981 “Article 31.(1) A decree of divorce shall be given: (i) with the mutual consent of the parties; or (ii) at the instance of either party on the ground of injury; or (iii) if the husband insists on divorce or the wife demands it. The party causing material or mental injury by the fact of divorce under clauses (ii) and (iii) shall be directed to indemnify the aggrieved spouse. (2) As regards the woman to be indemnified for material injury in terms of money, the same shall be paid to her after the expiry of Iddat and may be in the form of retention of the matrimonial home. This indemnity will be subject to revision, increase or decrease in accordance with the changes in the circumstances of the divorced wife until she is alive or until she changes her marital status by marrying again. If the former husband dies, this indemnity will be a charge on his estate and will have to be met by his heirs if they consent to it and will be decided by the court if they disagree. They may pay her in a lump sum within one year from the former husband’s death the indemnity claimable by her. Article 32 (1) No divorce shall be decreed except after the court has made an overall inquiry into the causes of rift and failed to effect reconciliation. (2) Where no reconciliation is possible the court shall provide, even if not asked to, for all important matters relating to the residence of the spouses, maintenance and custody of children and meeting the children, except when the parties specifically agree to forgo all or any of these rights. The court shall fix the maintenance on the basis of all those facts which it comes to know while attempting reconciliation. All important matters shall be provided for in the decree, which shall be non-appealable but can be reviewed for making additional provisions. (3) The court of first instance shall pass orders in the matters of divorce and all concerning matters including the compensation money to which the divorced wife may be entitled after the expiry of Iddat. The portions of the decree relating to custody, maintenance, compensation, residence and right to visit children shall be executed immediately.”

(12) No advocate and solicitor shall appear or act for any party in any proceeding before a Conciliatory Committee and no party shall be represented by any person other than a member of his or her family without the leave of the Conciliatory Committee. (13) Where the Committee reports to the court that reconciliation has been effected and the parties have resumed their conjugal relationship, the court shall dismiss the application for divorce. (14) Where the Committee submits to the court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the court shall advise the husband to pronounce one Talaq before the court, and where the court is unable to procure the presence of the husband before the court to pronounce one Talaq, or where the husband refuses to pronounce one Talaq, the court shall refer the case to the Hakams [arbitrators] for action according to section 48. (15) The requirement of sub-section (5) as to reference to a Conciliatory Committee shall not apply in any case (a) where the applicant alleges that he or she has been deserted by an does not know the whereabouts of the other party; (b) where the other party is residing outside West Malaysia and it is unlikely that he or she will be within the jurisdiction of the court within six months after the date of the application; (c) where the other party is imprisoned for a term of three years or more; (d) where the applicant alleges that the other party is suffering from incurable mental illness; or (e) where the court is satisfied that there are exceptional circumstances which make reference to a Conciliatory Committee impracticable. (16) Save as provided in sub-section (17), a Talaq pronounced by the husband or an order made by the court shall not be effective until the expiry of the Iddat. (17) If the wife is pregnant at the time the Talaq is pronounced or the order is made, the Talaq or the order shall not be effective until the pregnancy ends.”

married another, who had died or divorced her, and that Ghiyas-ud-din had married her again, and that it was for the appellants to displace that presumption. In support of this contention, they founded on certain dicta in the judgment of this Board in Habibur Rahman Chowdhury v. Altaf Ali Chowdhury L.R. 48 I.A. 114. Their Lordships find it difficult to regard this contention as a serious one, for these dicta directly negative it. The passage relied on, which related to indirect proof of Mahomedan marriage by acknowledgment of a son as a legitimate son is as follows: “It must not be impossible upon the face of it, i.e., it must not be made when the ages are such that it is impossible in nature for the acknowledgor to be the father of the acknowledgee, or when the mother spoken to in an acknowledgment, being the wife of another, or within prohibited degrees of the acknowledgor, it would be apparent that the issue would be the issue of adultery or incest. The acknowledgment may be repudiated by the acknowledgee. But if none of these objections occur, then the acknowledgment has more than evidential value. It raises a presumption of marriage – a presumption which may be taken advantage of either by a wife-claimant or a son-claimant. Being, however, a presumption of fact, and not juris et de jure, it is, like every other presumption of fact capable of being set aside by contrary proof. 18. The legal bar to re-marriage created by the divorce in the present case would equally prevent the raising of the presumption. If the respondents had proved the removal of that bar by proving the marriage of Anisa Fatima to another after the divorce and the death of the latter or his divorce of her prior to the birth of the children and their acknowledgment as legitimate, the respondents might then have had the benefit of the presumption, but not otherwise. 19. Their Lordships are, therefore, of opinion that the appeal should be allowed, that the decree of the High Court should be reversed, and that the decree of the Subordinate Judge should be restored, the appellants to have the costs of his appeal and their costs in the High Court. Their Lordships will humbly advise His Majesty accordingly.”

to reconciliation open at many stages. Even after divorce a suggestion of reconciliation is made, subject to certain precautions against thoughtless action. A period of waiting (Iddat) for three monthly courses is prescribed, in order to see if the marriage conditionally dissolved is likely to result in issue. But this is not necessary where the divorced woman is a virgin. It is definitely declared that women and men shall have similar rights against each other. Yusuf Ali has further observed: "Where divorce for mutual incompatibility is allowed, there is danger that the parties might act hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is prescribed. Two divorces (with a reconciliation between) are allowed. After that the parties must unitedly make up their minds, either to dissolve their union permanently, or to live honourable lives together in mutual love and for- bearance to 'hold together on equitable terms, 'neither party worrying the other nor grumbling nor evading the duties and responsibilities of marriage''. Yusuf Ali proceeds: "All the prohibitions and limits prescribed here are in the interests of good and honourable lives for both sides, and in the interests of a clean and honourable social life, without public or private scandals..." * * * * "Two divorces followed by re-union are permissible; the third time the divorce becomes irrevocable, until the woman marries some other man and he divorces her. This is to set an almost impossible condition. The lesson is: if a man loves a woman he should not allow a sudden gust of temper or anger to induce him to take hasty action... If the man takes back his wife after two divorces, he must do so only on equitable terms, i.e. he must not put pressure on the woman to prejudice her rights in any way, and they must live clean and honourable lives, respecting each other's personalities..." The learned Commentator further observes : "The termination of a marriage bond is a most serious matter for family and social life. An every lawful device is approved which can equitably bring back those who have lived together, provided only there is mutual love and they can live on honourable terms with each other. If these conditions are fulfilled, it is no right for outsiders to prevent or hinder re-union. They may be swayed by property or other considerations."

the Verses. It will be sufficient if we refer to only one of them, which is Sura IV verse 35. It reads: “If ye fear a breach Between them twain, Appoint two arbiters One from his family, And the other from hers; If they wish for peace, God will cause Their reconciliation: For God hath full knowledge, And is acquainted With all things.” From the verse quoted above, it appears that there is a condition precedent which must be complied with before the talaq is effected. The condition precedent if when the relationship between the husband and the wife is strained and the husband intends to give 'talaq' to his wife he must chose an arbiter from his side and the wife an arbiter from her side, and the arbiters must attempt at reconciliation, with a time gap so that the passions of the parties may call down and reconciliation may be possible. If ultimately conciliation is not possible, the husband will be entitled to give 'talaq'. The 'talaq' must be for good cause and must not be at the mere desire, sweet will, whim and caprice of the husband. It must not be secret. Maulana Mohammad Ali, an eminent Muslim jurist, in his Religion of Islam, after referring to, and considering, the relevant verses on the subject has observed: From what has been said above, it is clear that not only must there be a good cause for divorce, but that all means to effect reconciliation must have been exhausted before resort is had to this extreme measure. The impression that a Muslim husband may put away his wife at his mere caprice, is a grave distortion of the Islamic institution of divorce.” The learned Jurist also has observed: “Divorce must always follow when one of the parties finds it impossible to continue the marriage agreement and is compelled to break it off.” 9. Costello, J. in ILR 59 Calcutta 833 (supra) considered the judgments of Munro and Abdur Rahim, JJ. in ILR 33 Mad. 22 (supra) and of the Privy Council in ILR 5, Rangoon 18, (supra) but he preferred the opinions of Machaghten and Batchalor, JJ. in ILR 30 Bombay 537 (supra). The reason perhaps is, as observed by Krishna Ayer, J. (now of the Supreme Court) in the case of A. Yusuf Rowther v. Sowramma, reported in AIR 1971 Kerala 261: “Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a Culture law is largely the formalised and enforceable expression of a community's culture norms-cannot be fully understood by alien minds.” 66

“12. This case only symptomize the harsh realities encountered by women belonging to Muslim community, especially of the lower strata. It is a reminder to the court unless the plight of sufferers is alleviated in a larger scheme through legislation by the State, justice will be a distant dream deflecting the promise of justice by the State "equality before the law". The State is constitutionally bound and committed to respect the promise of dignity and equality before law and it cannot shirk its responsibility by remaining mute spectator of the malady suffered by Muslim women in the name of religion and their inexorable quest for justice broke all the covenants of the divine law they professed to denigrate the believer and faithful. Therefore, the remainder of the judgment is a posit to the State and contribution for settlement of the 'legal vex' which remains unconcluded more than four decades after this court's reminder in Mohamed Haneefas' case (supra). 13. The State is constitutionally obliged to maintain coherent order in the society, foundation of which is laid by the family. Thus sustenance or purity of the marriage will lay a strong foundation for the society, without which there would be neither civilisation nor progress. My endeavour in this judgment would have been over with the laying of correct principles related to triple talaq in Qur'anic perspective to declare the law and to decide the matter. However, I find the dilemma in this context is not a singular problem arisen demanding a resolution of the dispute between the litigants by way of adjudication. But rather it require a State intervention by way of legislation to regulate triple talaq in India. Therefore, settlement of law relating to talaq is necessary and further discussion is to be treated as an allude for the State to consider for possible reforms of divorce Law of Muslim in this Country. The empirical research placed herein justifies such course of action to remind the State for action. It is to be noted, had the Muslim in India been governed by the true Islamic law, Penal law would have acted as deliverance to 73

therefore, is on a citizen to improve excellence and equal status and dignity of person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing, secularism has been held to be one of the basic features of the Constitution (Vide: S.R. Bommai v. Union of India, (1994) 3 SCC 1 and egalitarian social order is its foundation. Unless free mobility of the people is allowed transcending sectional, caste, religious or regional barriers, establishment of secular socialist order becomes difficult. In State of Karnataka v. Appu Balu Ingale & Ors., AIR (1993) SC 1126 this Court has held in paragraph 34 that judiciary acts as a bastion of the freedom and of the rights of the people. The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity and formlessness in the seemless web of life. Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future to decide objectively, disengaging himself/herself from every personal influence or predilections. The Judges should adapt purposive interpretation of the dynamic concepts under the Constitution and the act with its interpretive armoury to articulate the felt necessities of the time. Social legislation is not a document for fastidious dialects but means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable to expand freedom of the people and the legal order can weigh with utmost equal care to provide the underpinning of the highly inequitable social order. Judicial review must be exercised with insight into social values to supplement the changing social needs. The existing social inequalities or imbalances are required to be removed readjusting the social order through rule of law.…”

“21. The Constitution through its Preamble, Fundamental Rights and Directive Principles created secular State based on the principle of equality and non-discrimination striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order. Dr. K.M. Munshi contended on the floor of the Constituent Assembly that "we want to divorce religion from personal law, from what may be called social relations, or from the rights of parties as regards inheritance or succession. What have these things got to do with religion, I fail to understand? We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, in the past, religious practices have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation" (Vide: Constituent Assembly Debates, Vol. VII 356-8). 22. In the onward march of establishing an egalitarian secular social order based on equality and dignity of person, Article 15(1) prohibits discrimination on grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it. Indian culture is a product or blend of several strains or elements derived from various sources, in spite of inconsequential variety of forms and types. There is unity of spirit informing Indian culture throughout the ages. It is this underlying unity which is one of the most remarkable everlasting and enduring feature of Indian culture that fosters unity in diversity among different populace. This generates and fosters cordial spirit and toleration that make possible the unity and continuity of Indian traditions. Therefore, it would be the endeavour of everyone to develop several identities which constantly interact and overlap, and prove a meeting point for all members of different religious communities, castes, sections, sub-sections and regions to promote rational approach to life and society and would establish a national composite and cosmopolitan culture and way of life.”

“86. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Religion, therefore, cannot be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral or ethical principles regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion or matters of religion or religious belief or practice. 87. In pluralistic society like India, as stated earlier, there are numerous religious groups who practise diverse forms of worship or practise religions, rituals, rites etc., even among Hindus, different denominants and sects residing within the country or abroad profess different religious faiths, beliefs, practices. They seek to identify religion with what may in substance be mere facets of religion. It would, therefore, be difficult to devise a definition of religion which would be regarded as applicable to all religions or matters of religious practices. To one class of persons a mere dogma or precept or a doctrine may be predominant in the matter of religion; to others, rituals or ceremonies may be

“20. The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b). What Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices. We may refer in this connection to a few American and Australian cases, all of which arose out of the activities of persons connected with the religious association known as “Jehova's Witnesses”. This association of persons loosely organised throughout Australia, U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme authority of the Bible colours many of their political ideas. They refuse to take oath of allegiance to the king or other constituted human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of “Jehova's Witnesses” incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth and steps were taken against them under the National Security Regulations of the State. The legality of the action of the Government was questioned

“13. Coming now to the arguments as to the violation of the petitioners' fundamental rights, it will be convenient to take up first the complaint founded on Article 25(1). That article runs as follows: “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” After referring to the provisions of clause (2) which lays down certain exceptions which are not material for our present purpose this Court has, in Ratilal Panachand Gandhi v. The State of Bombay [(1954) SCR 1055, 1062-1063] explained the meaning and scope of this article thus: “Thus, subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and section also violates the fundamental rights of the petitioners ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.” What then, we inquire, are the materials placed before us to substantiate the claim that the sacrifice of a cow is enjoined or sanctioned by Islam? The materials before us are extremely meagre and it is surprising that on a matter of this description the allegations in the petition should be so vague. In the Bihar Petition No. 58 of 1956 are set out the following bald allegations: “That the petitioners further respectfully submit that the said impugned guaranteed under Article 25 of the Constitution in-as-much as on the

“i. Salmah bid Abi Salmah narrated to his father that when Hafs bin Mughaira resorted to Triple Talaq, the Prophet (Pbuh) held it as valid. All the three pronouncements were made with a single word so the Prophet (Pubh) separated her from him irrevocably. And it didn’t reach to us that the Prophet (Pubh) rebuked him for that (Daraqutni, Kitab Al-Talaq wa Al-Khula wa Al-Aiyla,5/23, Hadith number:3992) ii. Amas recpimts pm Muadh’s authority: “I heard the Prophet (Pbuh) sying : O Muadh, whoever resorts to bidaa divorce, be it one, two or three. We will make his divorce effective. (Daraqutni, 5/81. Kitab al-Talaq wa Al-Khulawa aI-Aiyala, Hadith number: 4020) iii. (When Abdullah Ibn Umar divorced his wife once while she was having menses. The Prophet (Pbuh) asked him to retain his wife saying, O Ibn e Umar, Allah Tabarak wa taala didn’t command like this: “You acted against Sunnah. And sunnah is that you wait for Tuhar then divorce at every purity period. He said so Prophet (Pbuh) Ordered me so I retained her. Then he said to me: When she becomes pure divorce at that time or keep (her) So Abdullah ibn Umar asked: “Had I resorted to Triple Talaq then, could I retain her?” The Prophet (Pbuh) replied: “No, she would be separated from you and such an ction oyour part would have been a sin” (Sunan Bayhaqi, 7/547, Hadith number: 14955). iv. Aishah Khathmiya was Hasan bin Ali’s wife. When Ali was killed and Hasan bin Ali was made caliph. Hasan bin Ali visited her and she congratulated him for the caliphate. Hasan bin Ali replied, “you have expressed happiness over the killing of Ali. So you are divorced thrice”. She covered herself with her cloth and said, “By Allah I did not mean this”. She stayed until her iddat lapsed and she departed. Hasan bin Ali sent her the remaining dower and a gift of twenty thousand dirhams. When the messenger reached her and she saw the money she said “this is a very small gift from the beloved from whom I have been separated”. 143

“Mr. Mohamad Ismail Sahib (Madras: Muslim): Sir, I move that the following proviso be added to article 35: "Provided that any group, section or community of people shall not be obliged to give up its own personal lawin case it has such a law." The right of a group or a community of people to followand adhere to its own personal law is among the fundamentalrights and this provision should really be made amongst thestatutory and justiciable fundamental rights. It is for thisreason that I along with other friends have given amendmentsto certain other articles going previous to this which I will move at the proper time. Now the right to follow personal law is part of the wayof life of those people who are following such laws; it ispart of their religion and part of their culture. Ifanything is done affecting the personal laws, it will betantamount to interference with the way of life of thosepeople who have been observing these laws for generationsand ages. This secular State which we are trying to createshould not do anything to interfere with theway of life and religion of the people. The matter ofretaining personal law is nothing new; we have precedents inEuropean countries. Yugoslavia, for instance, that is, thekingdom of the Serbs, Croats and Slovenes, is obliged undertreaty obligations to guarantee the rights of minorities.The clause regarding rights of Mussulmans reads as follows: "The Serb, Croat and Slovene State agrees to grant tothe Mussulmans in the matter of family law and personalstatus provisions suitable for regulating these matters inaccordance with the Mussulman usage." We find similar clauses in several other Europeanconstitutions also. But these refer to minorities while myamendment refers not to the minorities alone but to allpeople including the majority community, because it says,"Any group, section or community of people shall not beobliged" etc. Therefore it seeks to secure the rights of allpeople in regard to their existing personal law. Again this amendment does not seek to introduce anyinnovation or bring in a new set of laws for the people, butonly wants the maintenance of the personal law already existing among certain sections of people. Now why do peoplewant a uniform civil code, as in article 35? Their ideaevidently is to secure harmony through uniformity. But Imaintain that for that purpose it is not necessary toregiment the civil law of the people including the personallaw. Such regimentation will bring discontent and harmonywill be affected. But if people are allowed to follow theirown personal law there will be no discontent ordissatisfaction. Every section of the people, being free tofollow its own personal law will not really come in conflictwith others.

“Mr. Mohamed Ismail Sahib: Thank you very much, Sir, forgiving me another opportunity to put my views before the House on this very important matter. I beg to move: "That after clause (2) of article 19, the following new clause be added: ‘(3) Nothing in clause (2) of this article shall affect the right of any citizen to follow the personal law of the group or the community to which he belongs or professes to belong.'" Sir, this provision which I am suggesting would only recognise the age long right of the people to follow their own personal law, within the limits of their families and communities. This does not affect in any way the members of other communities. This does not encroach upon the rights of the members of other communities to follow their own personal law. It does not mean any sacrifice at all on the part of the members of any other community. Sir, here what we are concerned with is only the practice of the members of certain families coming under one community. It is a family practice and in such cases as succession, inheritance and disposal of properties by way of wakf and will, the personal law operates. It is only with such matters that we are concerned under personal law. In other matters, such as evidence, transfer of property, contracts and in innumerable other questions of this sort, the civil code will operate and will apply to every citizen of the land, to whatever community he may belong. Therefore, this will not in any way detract from the desirable amount of uniformity which the state may try to bring about, in the matter of the civil law. This practice of following personal law has been there amongst the people for ages. What I want under this amendment is that that practice should not be disturbed now and I want only the continuance of a practice that has been going on among the people for ages past. On a previous occasion Dr. Ambedkar spoke about certain enactments concerning Muslim personal law, enactments relating to Wakf, Shariat law and Muslim marriage law. Here there was no question of the abrogation of the Muslim personal law at all. There was no revision at all and in all those cases what was done was that the Muslim personal law was elucidated and it was made clear that these laws shall apply to the Muslims. They did not modify them at all. Therefore those enactments and legislations cannot be cited now as matters of precedents for us to do anything contravening the personal law of the people. Under this amendment what I want the House to accept is that when we speak of the State doing anything with reference to the secular aspect of religion, the question of the personal law shall not be brought in and it shall not be affected.

to go -at least in one Province, namely, the North-West Frontier Province. I submit this is a measure which has been long overdue. I have known cases where a widow who was enjoying life estate - and whose reversioners were waiting for her death - did not die but happened to have a very long life. There have been cases in the Northwest Frontier Province where people have taken the law into their own hands and in order to get the property they have murdered the widow. I can cite other cases before this Honourable House. There have been cases which I have come across in my legal and professional career where, when a man dies leaving a wife who by customary law has to enjoy the property till her death or remarriage, certain reversioners come forward and bring a suit to declare that the widow had married one of the reversioners with a view to proving that she was no longer a widow and with a view to terminate her life estate. There have been numerous cases where families have been ruined, murderers and stabbings have taken place because the dead hand of customary law stood in the way of the reversioners who were anxious to get what they could not get and in order to deprive the poor widow, false cases have been tromped up that she had remarried. There have been many other illegal tricks resorted to by people with a view to get hold of the property. I submit, Sir, that the dead hand of customary law must be removed. We are living in an age in which very important changes are taking place. After all this customary law is a thing of the past When many other things are going the way of all flesh, when even systems of Government have to change, when even mighty Empires have disappeared, when we see signs of softening even in the hearts of the Government of India, when we have got popular Congress Governments in seven Provinces - a thing which nobody would have believed six months ago or one year ago. I submit that it is high time that we got rid of this dead hand of custom. After all custom is a horrible thing as far as this particular matter is concerned, and by endorsing the principles of this Bill we would be doing justice to millions of Indian women who profess Muslim faith. I hope, Sir, the day is not far off when other communities will also bring similar measures and when in India women and men will be treated equally in the eyes of law in the matter of property, political rights, social rights and in all other respects. I have, therefore, great pleasure in supporting the principles of this Bill.”

and 26 in the context of a challenge made to abolition of hereditary right of Archaka, and reiterated the position as hereunder : (SCC p.21, paras 13-14) “13. This Court in Sardar Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 has summarized the position in law as follows (pp.531 and 532): ‘The content of Articles 25 and 26 of the Constitution came up for consideration before this Court in Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Mahant Jagannath Ramanuj Das v. State of Orissa, Venkataramana Devaru v. State of Mysore, Durgah Committee, Ajmer v. Syed Hussain Ali 15 and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.’ 14. Bearing these principles in mind, we have to approach the controversy in the present case.” 16. It is now well settled that Article 25 secures to every person, subject of course to public order, health and morality and other provisions of Part III, including Article 17 freedom to entertain and exhibit by outward acts as well as propagate and disseminate such religious belief according to his judgment and conscience for the edification of others. The right of the State to impose such restrictions as are desired or found necessary on grounds of public order, health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2)(b) ensures the right of the State to make a law providing for social welfare and reform besides throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus and any such rights of the Sate or of the communities or classes of society were also considered to need due regulation in the process of harmonizing the various rights. The vision of the founding fathers of the Constitution to liberate the society from blind and ritualistic adherence to mere traditional superstitious beliefs sans reason or rational basis has found expression in the form of Article 17. The legal position that the protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down.”

“15. The plea taken by Respondent 2 husband in his written statement may be renoticed. Respondent 2 vaguely makes certain generalized accusations against the appellant wife and states that ever since the marriage he found his wife to be sharp, shrewd and mischievous. Accusing the wife of having brought disgrace to the family, Respondent 2 proceeds to state, vide para 12 (translated into English) — “The answering respondent, feeling fed up with all such activities unbecoming of the petitioner wife, has divorced her on 11-7-1987.” The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and Respondent 2, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11-7-1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq. 16. We are also of the opinion that the talaq to be effective has to be pronounced. The term “pronounce” means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate (see Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent 2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, 210

court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For, in whatever measure be the concern of the court, it compulsively needs to apply, motion, described in judicial parlance as self-restraint. We agree therefore with brother K. Ramaswamy, J. as summed up by him in the paragraph ending on p.36 (para 46) of his judgment that under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 45 and 21 of the Constitution and each case must be examined when full facts are placed before the court. With regard to the statutory provisions of the Act, he has proposed to the reading down of Sections 7 and 8 in order to preserve their constitutionality. This approach is available from p.36 (paras 47, 48) onwards of his judgment. The words "male descendant wherever occurring , would include "female descendants". It is also proposed that even though the provisions of the Hindu Succession Act, 1925 in terms would not apply to the Schedule Tribes, their general principles composing of justice, equity and fair play would apply to them. On this basis it has been proposed to take the view that the Scheduled Tribe women would succeed to the estate of paternal parent, brother or husband as heirs by intestate succession and inherit the property in equal shares with the male heir with absolute rights as per the principles of the Hindu Succession Act as also the Indian Succession Act. However, much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the court's entering the thicket, it would follow a beeline for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the line with the systems of law in line with the Hindu Succession Act and the Indian Succession Act as models. Rules of succession are, indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all events violate Article 14. Judge-made amendments to provisions, should normally be avoided. We are thus constrained to take this view. even though it may appear to be conservative for adopting a cautious approach, and the one proposed by our learned brother is, regretfully not acceptable to us.”

law, from what may be called social relations, or from the rights of parties as regards inheritance or succession. What have these things got to do with religion, I fail to understand? We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, in the past, religious practices have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation” [Vide: Constituent Assembly Debates, Vol. VII, pp. 356-58]. xxx xxx xxx 26. Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth — cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Convention for Elimination of all forms of Discrimination Against Women (for short, “CEDAW”) was ratified by the UNO on 18-12-1979 and the Government of India had ratified as an active participant on 19-6-1993 acceded to CEDAW and reiterated that discrimination against women violates the principles of equality of rights and respect for human dignity and it is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; it hampers the growth of the personality from society and family, making more difficult for the full development of potentialities of women in the service of the respective countries and of humanity.”

(c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff: Provided that divorce shall not be granted on this ground, unless: (1) the plaintiff was at the time of the marriage ignorant of the fact alleged, (2) the suit has been filed within two years of the date of marriage, and (3) marital intercourse has not taken place after the plaintiff came to know of the fact; (d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence: Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact; (dd) that the defendant has since the solemnization of the marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to compel the plaintiff to live with the defendant: Provided that in every suit for divorce on this ground it shall be in the discretion of the Court whether it should grant a decree for divorce or for judicial separation only; (e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution: Provided that divorce shall not be granted on this ground if the suit has been filed more than two years (i) after the infliction of the grievous hurt, or (ii) after the plaintiff came to know of the infection, or (iii) after the last act of compulsory prostitution; (f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860): Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing of the suit undergone at least one year's imprisonment out of the said period; (g) that the defendant has deserted the plaintiff for at least two years; (h) that an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for one year or more since such decree or order; (j) that the defendant has ceased to be a Parsi by conversion to another religion; Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact.

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or (f) has been suffering from venereal disease in a communicable form; or (g)has been suffering from leprosy, the disease not having been contacted from the petitioner; or (h)has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; Explanation.—In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly; (1A)A wife may also present a petition for divorce to the district court on the ground,— (i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; (ii)that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. (2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground— (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii)that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.”

“Statement of objects and reasons This Bill seeks to implement the Twenty-third Report of the Law Commission on the law relating to foreign marriages. There is, at present considerable uncertainty as to the law on the subject, as the existing legislation touches only the fringes of the subject and the matter is governed by principles of private international law which are by no means well-settled, and which cannot readily be applied to a country such as ours in which different marriage laws apply to different communities. The Special Marriage Act, 1954 sought to remove the uncertainty to some extent by providing that marriages abroad between citizens of India who are domiciled in India might be solemnized under it. In the course of the debates in relation to that Act in Parliament, it was urged that a provision should be made for marriages abroad where one of the parties alone is an Indian citizen. In this context, an assurance was given that Government would, after careful consideration, introduce comprehensive legislation on the subject of foreign marriages. The present Bill is the outcome of that assurance. (2) The Bill is modelled on the Special Marriage Act, 1954, and the existing English and Australian Legislation on the subject of foreign marriages, subject to certain important modifications rendered necessary by the peculiar conditions obtaining in our country. The following are the salient features of the Bill:— (i) It provides for an enabling form of marriage more or less on the same lines as the Special Marriage Act, 1954 which can be availed of outside India where one of the parties to the marriage is an Indian citizen; the form of marriage thus provided being not in supersession of, but only in addition to or as an alternative to, any other form that might be permissible to the parties. (ii) It seeks to lay down certain rules in respect of capacity of parties and conditions of validity of marriage and also provides for registration of marriage on lines similar to those in the Special Marriage Act, 1954. (iii) The provisions of the Special Marriage Act, 1954, in regard to matrimonial reliefs are sought to be made applicable, with suitable modifications, not only to marriages solemnized or registered under the

harassment of women at the workplace was a form of “gender discrimination against women”. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage — Prem Shankar Shukla v. Delhi Admn. Mackinnon Mackenzie and Co. Ltd. v. Audrey D’ Costa; Sheela Barse v. Secy., Children’s Aid Society SCC at p. 54; Vishaka v. State of Rajasthan People’s Union for Civil Liberties v. Union of India and D.K. Basu v. State of W.B. SCC at p. 438.) 27. In cases involving violation of human rights, the courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the international conventions and norms while dealing with the case.”

“44. The presumption of innocence is a human right. (See Narendra Singh v. State of M.P., Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Rajesh Ranjan Yadav v. CBI.) Article 6(2) of the European Convention on Human Rights provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused’s rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasised. It is not suggested that a negative can never be proved but there are cases where such difficulties are faced by the accused e.g. honest and reasonable mistake of fact. In a recent article The Presumption of Innocence and Reverse Burdens: A Balancing Duty published in 2007 CLJ (March Part) 142 it has been stated: “In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice—where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment.” 45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates 268

regulations, insofar as they satisfy the needs of these populations and do not hinder their economic and social development. 2. Arrangements shall be made to prevent persons who are not members of the populations concerned from taking advantage of these customs or of lack of understanding of the laws on the part of the members of these populations to secure the ownership or use of the lands belonging to such members.” Thus, removal of the population, by way of an exceptional measure, is not ruled out. It is only subject to the condition that lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. We may, however, notice that this Convention has not been ratified by many countries in the Convention held in 1989. Those who have ratified the 1989 Convention are not bound by it. 106. Furthermore, the United Nations adopted a Declaration on the Rights of Indigenous People in September 2007. Articles 3 to 5 thereof read as under: “3. Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 4. Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. 5. Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.” 107. It is now accepted that the Panchasheel doctrine which provided that the tribes could flourish and develop only if the State interfered minimally and functioned chiefly as a support system in view of passage of time is no longer valid. Even the notion of autonomy contained in the 1989 Convention has been rejected by India. However, India appears to have softened its stand against autonomy for tribal people and it has voted in favour of the United Nations Declaration on the Rights of Indigenous People which affirms various rights to autonomy that are inherent in the tribal peoples of the world. This declaration, however, is not binding.”

“16. Apart from the provisions of the Constitution, there are various international conventions and covenants to which India is a party, which proscribe the inhuman practice of manual scavenging. These are the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The relevant provisions of UDHR, CERD and CEDAW are hereunder: Article 1 of UDHR “1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Article 2 of UDHR “2. Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 23(3) of UDHR “23. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Article 5(a) of CEDAW “5. States parties shall take all appropriate measures— (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;” Article 2 of CERD “2. (1) States parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end— * * * (c) each State party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

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