Write and tweet ‘party right’

Shahi Tharoor tweeted ‘Cattle Class’ and the holy cows sulked. And then hit back with the claws in their hooves. Obviously, Mr. Tharoor had not anticipated such a backlash from what appeared to him a docile species capable of baying but never biting or clawing. And then he realized his folly.

But one thing they got bang right. Mr. Tharoor has little, if any, understanding of Indian political scene. He doesn’t know that those who climb the political ladder land up on the side of the ‘classes’. Masses, he might know, the political ‘class’ doesn’t have the first idea about. Cattle don’t take offence of being called cattle. It is those who see themselves as non-cattle who would fume. Tharoor should take heart in the fact that the classes are blissfully nonchalant about his tweet (the majority doesn’t know what it is in the first place).

Take a peek at the General compartment of any train run by Indian railways and there would be no doubt, if you ever had any, that Tharoor has better understanding of Indian conditions and the ‘cattle class’ status of the masses than most of the leaders would admit having. So, the Holy Cows are simply insecure about the stupor they engineered over the decades patting the ‘cattle class’ and telling us cattle that we were mighty lions, and we feigned our sleep and kept nodding sleepily. Trying to roar was a waste of energy. So, we let them believe that we believed them.

The actual ‘cattle class’ was least bit offended because finally there was a minister who had uttered the truth, and he found his political brethren holding him by his neck for calling the bluff. And poor, bewildered Tharoor twittered an apology. Interesting, indeed. And we have a collective grin on our collective face.

Just a little while ago Tharoor was caught on the wrong political foot when in apparent contravention of the ‘austerity drive’ launched by Congress, he was found living in a five star hotel while his official residence was under renovation. Of course, he was footing his own bills, but that’s immaterial. He was spending loads, which he is not supposed to in ‘solidarity with the Holy Cows’. All members of the party must conform to one thought, one way of life and one history. And they should have just one view on all things and all men – the one approved and endorsed by the party. Live modest and write only such books that help party propaganda. Did we ever trust our leaders? Okay. So, this doesn’t make much difference anyway. All we have to do is modify our understanding a little. So far we did not believe what they said. Now, we would not believe what they write as well because what they write – and tweet – would be ‘party right’, and thus questionable and untrustworthy.

Raj ‘Tyson’ Spears does it again

Raj Thackeray always manages to come up with some very ‘innovative’ ideas when it comes to his favourite sport of North Indian Bashing, which he continues to enjoy enormously and practices tirelessly. Of course, like all sportsmen, he too wishes to make a professional career out of it, and by some estimation he is already half way on the road. So, one could easily picture a ‘Bihari’ or a ‘Bhaiya’ hanging upside down in the specially designed gymnasium, wherein this great Maratha warrior, Raj ‘Tyson’, would practice his art and science of Maratha elevation through elimination of every thing ‘North’. I am not sure if I would be surprised to hear ‘Tyson’ demand that North be altogether dropped and there be only three directions instead of four.

This time the fellow has come up with his own theory of development. No, it does not tell you how to do about it, but points out what has been wrong all this while. The only thing that has ever gone wrong with the Maratha-land is the North Indians in Tyson’s opinion. He says that Maharashtra has been lagging behind its neighbouring states because of the North Indian population. It would be relevant to point out that all this while when Maharashtra was developing North Indian were there all along. And even if they did not contribute to its development, which is hard to digest, they did nothing to retard it. How come they suddenly started pulling the cart the other way? Of course, Tyson has no concept of economic saturation. There are times when a developing region would undergo a slowdown. It is natural and singling out any one factor to blame it on is – for want of a more appropriate word – stupid.

As for the security agencies employing North Indians more than the Marathi people, it is inconceivable that these agencies have a regional bias. They are in business and they would things that and employ people who make the business work better. They simply do not have the luxury of biases. They might be more inclined to employ people from North India because these people have migrated to Maharashtra in search of opportunity and would want to make the most of it. So, they would naturally be hardworking and dedicated because work and money are the sole purpose they are there. They do not have big egos and they are there as absolute ‘nobodys’ and they know it. As for the residents of the place – any place actually – tend to have a sense of pride and belonging, which prevents them from working as hard and as dedicatedly as the outsiders. And this is not simply about Maharashtra. So, if there is a bias in favour of North Indians it is fueled by the well-founded belief that they make a better and more dedicated work force. And that’s a commercial, and not regional, decision.

But Tyson would obviously not want to admit that for the simple reason that he cannot commit a political suicide by preaching to those who he purportedly represents because politics is about pointing fingers at the opponent. Soul-searching is not the name of the game.

Finally, my apologies to Mike Tyson and Britney Spears.

Section 377: Questionable exercise of Judicial Review

Delhi High Court’s ‘decriminalizing’ homosexuality has been an interesting event because the ‘relief’ that High Court granted does not really enable two consenting adults to do behind the closed doors anything that they could not do earlier.

No person can be prosecuted without evidence and to gather evidence to support a charge of unnatural sex between two consenting adults, the authorities would necessarily have to breach right to privacy in one way or the other, which is impermissible in law, as right to privacy is a fundamental right. Therefore, it is virtually impossible to invoke Section 377 against homosexuals. This explains why there has been no prosecution of consenting homosexuals under the said provision.

Possible or actual misuse of a legal provision or an apprehension of the provision’s violating a fundamental right are no grounds for the court to declare the impugned provision unconstitutional. It is upon those who assail a legal provision on constitutional grounds to show an instance of the actual violation of a fundamental right. The court is a place where legal provisions are enforced and in case of violation of any right, relief is granted. It is no place to hold an academic debate about the desirability or dangers of legal provisions. Since the petitioners did not have a single instance of the prosecution of a person for consensual homosexual act, the High Court could not have entertained the petition in the first place.

Furthermore, in this case the provision had stood since 1860 and in over 60 years, Parliament did not find it fit to interfere with it. Therefore, there has to be a very strong presumption in favour of its constitutional validity.

It was also argued that the term ‘sex’ used under Article 15 should be read to include ‘sexual orientation’ thus extending the protection of Article 15 to the homosexuals against Section 377. The term ‘sex’ under Article 15 refers to a status and not an act, and so does the expression ‘sexual orientation’. Section 377 does not punish one for one’s sexual orientation.

Therefore, the police cannot haul someone for ‘being’ homosexual, but only for specific acts of unnatural sex. Even if the person shows up in a police station and declares that he is ‘gay’, the state still cannot prosecute the person in absence of evidence to support at least one act of ‘unnatural sex’. The same goes even for a murderer. It is not enough for one to confess to having killed. If the police fail to ascertain who has been killed, even a confession before a magistrate would not get them a conviction. That’s because it is the act of killing, and not one’s status as a murderer, that makes one liable for punishment. This might appear to be a very fine distinction, but it is this distinction that disallows the state from prosecuting one for simply ‘being’ gay. The protection of Article 15, even if ‘sexual orientation’ is included within the meaning of ‘sex’, does not extend to Section 377 simply because it would be illogical and absurd to say that Article 15 prohibits the State from doing under Section 377 what it was never doing and could not have done anyway, which is to punish someone for his or her sexual orientation. This is an inherent limitation in Section 377 with respect to its enforceability against the homosexuals. The ‘reading down’ was not required, at least not as urgently.

The “persons who demonstrate a propensity or intent to engage in homosexual acts” are prohibited from serving in the armed forces of the United States. It is this kind of discrimination that could attract the protection of Article 15 because this is a discrimination based on ‘sexual orientation’, which is why if one proclaims to be a homosexual while serving in the US armed forces, he or she would be discharged without the authorities having to show that he or she actually engaged in homosexual act. And that is demonstrably not the case with Section 377.

The manner in which Section 377 has been selectively struck down is also questionable. Doctrine of severability provides that a part of the legal provision may be struck down for being ultra virus the Constitution if it is severable from the rest, and if not, the whole of the provision must go. It is only in exceptional cases that on account of the inseverability of the part, its enforcement is restricted on constitutional grounds.

Exercise of Judicial Review to restrict enforcement of a provision can only be done in situations wherein both striking down the impugned provision and enforcing it in totality result in ‘actual’ violation of a fundamental right. Such exercise of Judicial Review must be strictly and clearly in the interest of justice, as it strains the Separation of Powers inbuilt in our Constitution because ‘reading down’ a provision means virtually rewriting it, which lies in the exclusive domain of the legislature. Separation of Powers is part of the Basic Structure of the Constitution, which no arm of the state, including the Judiciary, can offend.

Therefore, such exercise of Judicial Review that treads the borderline of the Separation of Powers must be occasioned by urgent and compelling need. Section 377, having stood for nearly a century and a half without a single homosexual prosecuted under the provision in at least the last 60 years, certainly did not warrant the exercise of Judicial Review in its extraordinary mode.

Therefore, it appears that the High Court exercised the power of Judicial Review improperly in an inappropriate case, which makes the judgment legally infirm and constitutionally questionable, and, therefore, prone to judicial reversal on legal grounds, its progressive spirit notwithstanding.

Originally written for and published in LAWYERS UPDATE [August 2009 Issue; Vol. XV, Part 8]

Firaaq: The scarred human face of Gujarat pogrom

Hatred is an effective long-term political tool because emotions are not resolvable issues. It sets the ball rolling down the slope with the ball gathering momentum on its own without requiring any more impetus till the time it hits a dead end, which is almost always a long way down the dark alley. Hatred wedges in a virtually indissoluble divide on the basis of perceived wrong and imaginary subjugation. It is a self-fueling machine that needs nothing more than a little push every now and then. It gives rise to new overzealous leaders, who just need to have a fiery tongue and a combative stand to exist regardless of whether or not they know the first thing about combat of any kind whatsoever. And, of course, the real issues can be put on the backburner to be attended to at leisure.

But then, the ‘installation’ of a divide is a painful process. So, when hatred is used as a political tool it has another side to it – the heart rending human side. Loss and tragedy is fodder to hatred, which keeps the masses divided. Firaaq focuses on this side of the story and tries to demonstrate how the ripple effect of hate-mongering touches all shores across the spectrum of economic prosperity and social status.

The movie begins with a roaring truck with an unmistakable lotus painted on the front of the hood dumping a huge load of bodies to be buried in what appears to be a mass grave reminiscent of Nazi Germany. Among the dead there is a Hindu woman. The very sight of the body enrages the middle aged grave-digger, who lunges on with a spade to kill the dead woman a second time. His younger companion holds him back as the older fellow breaks down in tears. That’s just the start of the harrowing journey into the lives of those who suddenly found themselves in the midst of a mindless massacre with little help in sight. They felt helpless and suspicious and desperately looked for someone whose collar they could hold and ask as to why they were made to go through blazing hell for not fault of theirs. And all through this the state stood by the sidelines and watched, disinclined to intervene. It wasn’t powerless; it never is. The state is always powerful enough to contain at will a bunch – no matter how large – of unruly hooligans. But it chose not to.

Firaaq zooms into the lives of five different people living their lives separately bound together only by common place and circumstances. Their stories just brush against each other. One thing common is that all of them have to deal with their circumstances against a violent backdrop in their own different ways. They are all baffled by the human tragedy that suddenly barges into their lives and they are left to fend for themselves. And this is just after the fire subsided with the after-heat very much present and perceptible.

A Muslim couple returns back to their house from safety to find their humble abode burnt and ravaged. What lay there in tatters was the home they had built bit by bit for years. Who could have done this to them? Which of the neighbours? Nobody is above suspicion. Not even the wife’s closest friend, Jyoti, who comes to her with offer of work for her on her return. She must know who did this, the wife thinks and keep pestering her for answers while her husband is out looking for a gun to take revenge on one Mehul whose involvement the couple suspects because there was a dispute with him earlier. Of course, the suspicion is ill-founded and towards the end of the movie the quest for revenge would come to nothing with the couple realizing that they need to come to terms with their life as it exists.

A housewife (Deepti Naval) in a typical Gujarati family is feels forever guilty about not having sheltered some of those who came knocking fervently at their door begging to be protected from the bloodthirsty mob of killers. The rest of the family, however, goes about the business of living guiltlessly.

Then there is little Mohsin, a small orphaned child all of six or seven years of age who has run away from the ‘camp’ to look for his father. He learns from experience that when they ask your name, they want to know a little more than just the name. He also realizes that somehow Mohsin and Mohan were not just ‘two’ names, but were two ‘different’ names. And ‘Mohan’ was somehow ‘safer’ than ‘Mohsin’. That’s tragic and shameful for us as a nation.

There is an old musician, Jageer Khan (brilliantly essayed by Naseeruddin Shah) who lives with his servant (Raghuveer Yadav’s effortless marvel). The musician refuses to accept the communal divide and considers it a human problem. Towards the end he almost loses hope for a little while and feels that everything, including music, was powerless to subdue such hatred. But then, the next day he is back to his polished notes. Hope refuses to sink.

A Hindu-Muslim couple decides to leave for Delhi after their store is robbed during the riots. But the husband, Sameer Sheikh (Sanjay Suri), despite being scared is uncomfortable with the fact that he has to leave. He also realizes to his utter discomfort that going to Delhi was not the solution because no matter where he goes, Delhi or Delaware, he remains Sameer Sheikh and would be looked upon with suspicion on account of his religious identity. So, at the end he decides to stay where he belongs.

The movie ends on hope. Yes, there is hope. There is hope that the life can still continue. But that is not enough. We are still to glimpse the hope that burnt bridges could and would be rebuilt.

The more worrisome side of Gujarat pogrom has been the state complicity, which is undeniable. It was not a failure of law and order machinery, but a misuse of it for political mileage. Secularism is part of the basic structure of the Constitution and of our collective aspirations set out in the Preamble itself

A flagrant violation of a fundamental constitutional principle by a political entity that has sworn allegiance to the Constitution it later chooses to violate and subvert, cannot be taken lightly. And if, for any reason whatsoever, we as a nation fail to hold such an entity accountable, it is a collective failure of the people. And failures of such humungous proportions have unbearable consequences.

Originally written for and published in LAWYERS UPDATE (June Issue; Vol. XV, Part 6)

Sharad Yadav and Socrates: The obvious disconnect

Sharad Yadav is against women reservation bill and declared that he would consume poison if the bill was passed in its present form. Later, in order to wriggle out of the suicide statement, which could in part be politically suicidal, he referred to Socrates’ cup of hemlock in his defence and apparently likened himself to the great Greek philosopher.

Socrates agreed to consume poison simply because he believed that irrespective of his own beliefs and regardless of his disagreement with his accusers he was morally and legally obliged to drink poison in obedience of the law because having stayed in the territory despite having the option of leaving anytime he wished, he had implicitly agreed to obey the law of the land and also bear the consequences if he was ever found in violation of the law. So, when he was found guilty and sentenced to death, he had no option but to die as stipulated not only in accordance with the law but also in conformity with his own intellectual beliefs and convictions. This is what makes Socrates one of the very, very few strictly ‘intellectual’ martyrs.

Amusingly, Sharad Yadav says that if the Bill was passed in the present form he would consume poison, which means if it became law through constitutional means he would oppose it illegally by committing suicide. Socrates consumed poison in obedience to the law whereas Mr. Yadav threatens to do the same in violation of it.

One can resist the enactment of a law through legitimate means like peaceful demonstrations, dialogue and Parliamentary debate is permissible, but to employ means like damaging public property, disrupting normal everyday life and threatening to commit suicide are certainly impermissible and illegal. Once means to persuade and convince fail and the legislature enacts a law, the law so enacted has to be accepted as the will of the people. Socrates died for the principle that one might disagree with the law but must obey.

So, Sharad Yadav can disagree with and resist the Bill while it is in the process of being passed and may continue opposing it with all the means at his disposal after it becomes the law, but not in the name of Socrates because the great Greek would not have the law defied or the consequences of its violation evaded.

To be Socrates, Mr. Yadav, you need to consume poison in obedience and not in defiance of the law. So, correct your course or find a better ally among the dead Greeks.

Irretrievable breakdown: Supreme Court in breach of ’stare decisis’?

When a two-judge Bench of the Supreme Court ruled that irretrievable breakdown of marriage was not a ground for divorce, it not only ran contrary to the spirit of the law but also breached the principle of ’stare decisis’.

In the recent case of Vishnu Dutt Sharma v. Manju Sharma (Civil Appeal no. 1330 of 2009; decided on February 27, 2009), the Supreme Court dealt with a plea of ‘irretrievable breakdown of marriage’ and the two-judge Bench of Justice Markandey Katju and Justice V.S. Sirpurkar denied divorce for the reason that the ground pleaded was not available under Hindu Marriage Act. While subjective satisfaction of the court is above and beyond question, the interpretation of law and its applicability can always be examined.

The Bench said:

On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

It is a settled principle of law that if there is a lacuna in a law that causes hardship or there is no law that could take care of a certain situation, the courts can step in to save the day by laying down the law and thus filling the vacuum. Simply because the legislators failed to foresee a situation is no reason for the courts to send a suffering petitioner back to wait until the legislature is not only cognizant of the kind of situation he is in but also does something about it. Courts of law are courts of justice and are, therefore, empowered to use all legitimate means at the disposal of the state to meet the ends of justice and provide due relief. And that’s because the law exists for the sole purpose of securing justice. It naturally follows that if and when the law falls short of doing that, its deficiency has to be promptly remedied. Therefore, when a court lays down a law, it does not usurp the essential function of the legislature, but supplements it in the interest of justice so long as the spirit of the law is not compromised.

Reading irretrievable breakdown into the Hindu Marriage Act as an independent, standalone ground for divorce is consistent with the scheme of the Act and is pursuant to the legislative intent because irretrievable breakdown of marriage supplies the sole justification for the divorce law to exist. But for irretrievable breakdown, divorce law would not be required. Therefore, denying divorce despite irretrievable breakdown of marriage is contrary to the legislative intent and defeats the very object of the enactment. The legislative intent behind the Act is to allow divorce in case of an irretrievable breakdown and not to artificially ‘preserve’ marriage. (Also see: Divorce: Irretrievable breakdown needs no legislative reaffirmation)

The Court further says:

Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent.

The subjectivity introduced through the expression ‘in our opinion’ stands good and unquestionable provided the opinion drawn could be logically drawn on the basis of the relevant material or in a given set of circumstances.

In Naveen Kohli v. Neelu Kohli (Civil Appeal no. 812 of 2004; Decided on March 21, 2006), a three-judge Bench of Justice B.N. Agrawal, Justice A.K. Mathur and Justice Dalveer Bhandari considered irretrievable breakdown separately and specifically, and begins by saying:

Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.

Interestingly, the legal position considered is exactly the same legal position that the Bench in Vishnu Dutt Sharma case says was ‘not taken into consideration’.

The Court in Naveen Kohli case mentions with approval the 71st Report of the Law Commission of India, wherein the Commission strongly recommends irretrievable breakdown of marriage as a ground for the dissolution of marriage. The Bench further considers the legal position in the foreign countries like New Zealand where irretrievable breakdown works as a valid ground for divorce. The Bench also cites the Report of Moral and Social Welfare Board accepted by the General Assembly of the Church of Scotland on May 22, 1969, wherein the breakdown of marriage has been considered to be a ground good enough to grant divorce. The Bench further says:

We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties.

The Bench then considers the conflicting viewpoints of the jurists and says:

The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely.

Thenceforth the court turns to the case in hand and points out the mutually belligerent approach of the couple and the sheer number of criminal and other proceedings initiated by the parties against each other, and observes:

Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.

Thus, a resistance to divorce by one party despite an undeniable breakdown may itself be looked upon as an instance of mental cruelty.

It is amply clear from the above discussion that that the legal position of irretrievable breakdown of marriage as a ground for divorce was very extensively considered by the Supreme Court in Naveen Kohli case and the facts of the case were also examined to ascertain if there was an irretrievable breakdown of marriage in this case. And it was only when the Bench arrived at the conclusion that the marriage had irretrievably broken down that the divorce was finally allowed. In this case it is very unlikely that the divorce could be granted without treating irretrievable breakdown as a ground for divorce. Therefore, it forms the ratio decidendi of the case by all means and is not obiter dicta. It was a three-judge Bench, which makes the decision binding on the two-judge Bench in Vishnu Dutt Sharma case by operation of the doctrine of precedent.

Hence, when the Bench in Vishnu Dutt Sharma case implies that ‘legal position’ was not considered or the decisions were ‘mere directions’ forming no precedents, it is difficult to agree with it. It was open for the Court to say without affecting the outcome of the case that in its opinion there was no breakdown. But the precedent value of a judgment is rarely open to a subjective take.

However, the greater problem now is that if the Bench erred in appreciating the precedent value of a previous judgment and consequently failed to apply the relevant legal position, it technically ended up applying the wrong law, which renders the judgment legally infirm.

The legal position of irretrievable breakdown remains unaffected by the Vishnu Dutt Sharma case, as the Naveen Kohli case retains its precedent value, being the judgment by a larger Bench.

Also see: Divorce: Irretrievable breakdown needs no legislative reaffirmation and The ‘breakdown’ story.

Divorce: Irretrievable breakdown needs no legislative reaffirmation

It is not the existence of a legally recognized ground but the occurrence of an irretrievable breakdown that is the indispensable prerequisite for the grant of divorce. Irretrievable breakdown is, thus, an inbuilt condition that needs no further affirmation from the legislature

Dead marriages need a ‘death certificate’ to be buried for good, which is what divorce actually is. Courts do not kill marriages. Most of the marriages that end up in divorce are actually ‘brought dead’. By granting divorce the courts simply concede that the marriage has broken down beyond repair and there is no point in keeping the two partners yoked together by doggedly denying dissolution. Therefore, in granting divorce under any ground whatsoever the court actually accords legal recognition to ‘irretrievable breakdown’ of a marriage, thus allowing the partners to carry on with their individual lives separately. In other words, the court allows the burial of the dead body of a marriage so as to relieve the couple of the compulsion to lug it around, particularly when neither of the parties is interested in attempting a revival.

Generally, in India a marriage comes to the doorsteps of a divorce court only after the couple has itself failed to make it work, and also after its family and relatives together with the rest of the society have already tried with little success all the means at their disposal to keep the duo married. Backed by several rulings of the Supreme Court, it is by now a settled principle of Indian divorce law that the courts are to try their level best to rescue the marriage before granting divorce. So, the court is the Intensive Care Unit where a dead or ‘almost dead’ marriage is brought for a final attempt at resuscitation at the option of the judge because the parties have already tried and failed.

The grounds for divorce provided under the Hindu Marriage Act are situations under which the law considers it justified for a person to seek divorce. Differently put, these are situations that the legislature could envisage as causes for the irretrievable breakdown of a marriage. However, breakdown of a marriage could occur for reasons other than those mentioned or might simply occur on account of insurmountable incompatibility. Besides, there can be any number of situations in which the party seeking divorce might find it too embarrassing or plainly inappropriate to cite the reasons for the breakdown of marriage even if the real cause may actually be a ground for divorce. And the court cannot insist on being privy to the private life of a married couple as a precondition for granting divorce.

The courts should not grant divorce for the asking, but neither should they be too slow in granting it where the marriage has already broken down completely. The ‘preservation of marriage’ must not be pushed too far. Once the court has tried its hands at reconciliation and revival, and finds that the marriage cannot be really rescued, it cannot deny divorce solely on the grounds that irretrievable breakdown of marriage is no ground for divorce under Hindu Marriage Act (HMA) because irretrievable breakdown need not be a ground at all. Grounds under the Hindu Marriage Act are the causes and ‘breakdown of marriage’ is the effect. So, even if the causes are not known or could not be fully established, it does not obliterate the effect. It is like a doctor refusing to accept the fact of a patient’s death in absence of a medically recognized cause of death.

That irretrievable breakdown of marriage is a prerequisite for grant of divorce irrespective of the grounds under which the dissolution is sought is further clarified by the fact that the courts do not grant divorce simply because the ground for divorce is shown to exist in a particular case. The law and the courts attempt a revival of marriage and try to effect reconciliation. It is only when the concerned court is certain that no revival is possible that the divorce is granted, which implies that the court seeks to establish to its satisfaction that an irretrievable breakdown of marriage has occurred before granting divorce. If a husband commits adultery, his wife can rightfully seek divorce invoking Section 13(1)(i) of the Hindu Marriage Act. However, if she chooses to forgive and forget, the courts cannot grant divorce simply because the ground exists. Even if the husband approaches the court admitting to adultery and asking the court to grant divorce to his wife because he feels that such a devoted wife and pious woman does not deserve to be with an adulterer like him and he doesn’t deserve a wife as good as she is, the court cannot grant divorce because the wife has forgiven and for that reason no breakdown of marriage occurred. Of course, nobody can be allowed to take the benefit of his or her own mistake. But that legal principle need not be pressed into service, as the Hindu Marriage Act effectively takes care of the situation here.

Therefore, it is not the existence of a legally recognized ground but the occurrence of an irretrievable breakdown that is the indispensable prerequisite for the grant of divorce. Irretrievable breakdown is, thus, an inbuilt condition that needs no further affirmation from the legislature, and, therefore, need not be sought as a specific ground for divorce by legislative stipulation.

It is also amply clear that breakdown of marriage has to be examined from the standpoint of the partners involved because whether a breakdown has occurred or not and whether the breakdown is irretrievable or not is primarily questions of fact, the answer to which can only be found in the way the partners involved perceive their marriage and its future. Thus, breakdown of marriage occurs in the mind of one or both of the partners much before its external manifestation is perceptible. And if no breakdown occurs in the mind, it doesn’t matter if all the grounds mentioned under the Hindu Marriage Act are indisputably available. So, if a husband has not been heard of for decades on end, but the wife considers herself his wife and their marriage good, there is no breakdown. A person might convert to any religion whatsoever, but if his or her spouse considers their marriage good, there is no breakdown. Ergo, there is a great deal of subjectivity involved in ‘breakdown of marriage’. It follows that in certain situations the breakdown may not have loud external manifestations and the reasons might also appear relatively trivial. But that doesn’t change the fact of the breakdown, lessen the severity of it or affect its permanence. The subjective aspects of a breakdown must not be overlooked. So, when one of the partners feels that his or her marriage has irretrievably broken down, what needs to be ‘established beyond doubt’ is the fact of the breakdown. And once irretrievable breakdown of marriage is established, the court can grant divorce on that ground alone because that is always the ultimate reason for the courts to grant divorce anyway, as discussed above. Denying divorce despite irretrievable breakdown is arbitrary, unjust and against the spirit of the law and the legislative intent.

Also see: Irretrievable breakdown: Supreme Court in breach of stare decisis? and The ‘breakdown’ story

The ‘breakdown’ story

A realistic hypothetical story closely resembling a number of cases and demonstrative of the tumultuous insides of a modern Indian marriage.

An educated, bright and ferociously independent girl is married to a successful young professional from an affluent and reputed business family. After two years of marriage and a baby boy, the wife finds herself unable to live with a husband who is perpetually distrustful. Every time she is on phone and he is around, he would keep hovering like a spy drone attempting to net a word or two. And when the conversation is over he might nosily inquire about the person on the other side and the details of the conversation. A text message on her phone is treated likewise. He would attempt a peek. If that’s not possible he would try guessing the content of the message from the expression of her face.

She finds herself caged, her privacy invaded and her personal space regularly and brazenly violated. Why should she keep explaining everything to her husband? Why shouldn’t she be allowed to just be? Why should she be made to feel like a criminal to be eyed with suspicion all the time? And why should she tolerate any of it? She felt deeply hurt and tormented. Having been brought up in a liberal modern family invasion of privacy was absolutely unacceptable to her. The husband having been brought in conventional Indian family failed to understand why there was this question of ‘space’ between husband and wife and why should he not know everything about his wife. “Why should he know everything?” is her furious contention on the other hand.

Early in the marriage he found that his wife hid something from him simply because she considered it ‘personal’ though it was trivial. The realization that she was capable of effortlessly ‘hiding’ things that need not even be hidden bothered him. He tried to take it lightly but could not help watching out for lies and deception howsoever minor. This compulsive urge to verify and know ‘the truth’ and to be aware of ‘everything’ about his wife made him very nosey and intrusive to the utter disgust of his wife. Conversation about ‘space’ and ‘privacy’ resulted in heated arguments. Why should she ‘hide’ anything from him? Her insistence on privacy made him further suspicious. What all is she hiding? Discussions only bred further distrust in him.

Traditions and conventions of the family on one side and her prying husband on the other made her feel like a prisoner in an affluent household, and her own family looked at it as ‘teething trouble’ initially and later as ‘adjustment issues’ of their ‘pampered’ daughter. Incensed, she kept simmering internally. And soon she was a methodical, mechanical, dutiful, non-loving wife. Her heart was elsewhere, thought her husband. And he wanted to know where. His overt attempts at finding answers, no matter how friendly, were promptly spurned with disdain. And his covert attempts disgusted her to the core. His very presence was intrusive and repulsive to her. He was the very personification of violation. And she had her guards up shutting her husband out. Since the husband had never known his wife emotionally and knew little about how she looked at life and their ‘married life’, he had no inkling about how bad things had already gone until her younger sister, who was at far better terms with his wife than anyone else in the family, thrust a letter in his face in enraged disgust. The letter was written by his wife to her friend, a married woman herself, and made him realize that on his wife’s side their marriage was already in advanced stages of decomposition.

Articulate and imaginative, she had described in bright vividness as to how utterly miserable she felt in the marriage. How she felt like a maid, housekeeper, washerwoman, babysitter and then a mere female body at different times of the day and night. How she had to feign consent and pleasure on those nights when her husband would ‘lovingly’ came torturously close to her. How unbearably pretentious she found this pompous pride in the ‘family name’ and ‘family honour’. And how utterly fake her life was in ‘this marriage’ with ‘that man’ amidst the ‘circus’ of ‘his family’. She had vented her acidic anger in scathingly explicit terms. And it hurt. He was shocked to know that even in the most intimate moments she was simply deceiving him and that her ‘love’ disgusted her, and that she had nothing but contempt and ridicule for him and his family. The emotional gash was deep enough to take a lifetime to heal.

Confronted with the letter, she minced no words. The breakdown was complete. She was promptly sent to her parents.

The husband just doesn’t want to cast another glance at her anymore. The only thing he and his family want is to shut it for good sealed with a divorce. And on her part, she wants to allow nothing to them, not even divorce. To her mind ‘he’ and ‘his family’ had messed her life up and she would not allow them to mess the life of another woman. So, no divorce. 7 years pass. Nothing happens.

The marriage has irretrievably broken down because the partners involved cannot stand the sight of each other. But no ground for divorce is available to the husband. All that the husband has is a letter written to someone else, wherein she expresses how she feels. The letter makes him hate her. He is deeply hurt, but ‘mental cruelty’ cannot be argued, as the wife did not say or do anything to the husband or his family members that could be called ‘cruel’ by any stretch of imagination. The marriage is stone-dead for no legislatively recognized cause. It’s dead for want of compatibility. A minor cause can do major, irreparable damage. It’s not the size of the cause but the magnitude of the damage that needs to be considered.

Therefore, where the marriage is conclusively dead with no hope of revival, denying divorce is arbitrary and unjust.

Also see: Irretrievable breakdown: Supreme Court in breach of stare decisis? and Divorce: Irretrievable breakdown needs no legislative reaffirmation

How Bush helps Obama

When this ‘skinny kid with a funny name’, as he likes to describe himself, became the first African-American President of the United State amidst worldwide euphoria, it was clear that he had an enormous weight of expectation on his shoulders, which could make it difficult for him to perform as well as the world expected him to or as well as he would himself want to. It is possible for Barack Obama to disappoint loads of people across the globe simply because the expectations of Obama are somewhere between unrealistic and fantastical. He is the President of the United States and not the President of the World. So, he can be expected to push the interest of the US first and foremost, as he should, but cannot be expected to keep the world happy.

By virtue of the very nature of his job as President of the most powerful nation in the world, he can well be expected to ruffle some feathers in the international arena. But Obama would do as little of that ruffling as possible because he knows, as we all do, from the American experience that offensive actions come back to haunt in near or distant future.

However, he does have a few things going – in fact a little more than few things – going for him. One of them is his predecessor. Bush would help Obama in the job because he messed things up so badly that any improvement at all would shine like gold. And Obama knows how not to mess things. He is more of consensus-builder than a confrontationist. He believes in dialogue and peaceful negotiations, which takes care of the Middle East problem because the US has already shown the kind of havoc it could wreak and it’s time for a softer, reconciliatory approach with the memories of violence working in the background. He does not see the problem as an ‘axis of evil’ issue or as ‘clash of civilizations’, which is, again, a reasonable view of things. And the Middle East is likely to respond to a reasonable stand better than it responded to Bush’s arm-twisting. Not that the issues would be sorted out overnight, but a significant breakthrough is likely.

The other major challenge that the US faces is the current economic meltdown, and what Obama is doing is the best possible course in the current situation. That’s the best a government could do to help retard and reverse the slowdown.

So, Obama just has to stay the course and be himself, and will have already bettered the situation a great deal because any departure from Bush’s dangerously preposterous worldview is a mighty relief.

Ghajini: Can Sanjay Singhania be convicted?

All he has is a terrifying moment frozen in time like a fossilized drop of blood as evidence of a heart-rendingly cruel crime committed in distant past. Every other moment that entered his life made a 15-minute stopover before a quick exit. The nightmare is all that he has to live by, and to annihilate the architects of his sordid past is what he lives for. And to assist his ever-failing memory he has what is carved on his soul tattooed on his body lest he should forget that Kalpana, the light of his life, was mercilessly killed by a monster called GHAJINI. This is Sanjay Singhania (the eight-pack-abbed, freshly body-built Aamir).

And he goes out to kill Ghajini and in the process kills many other. Naturally, with his 15-minute memory, he could easily forget why he killed right after killing. Then he would dig deep in his pockets and come up with a picture to match the face of the slain. He has already done a man in, and he doesn’t even know who he has killed or why. To know that he has to consult some photographic documents in his pocket.

Where does the law stand on this? A natural question, isn’t it? The mind of a criminal lawyer would start running different configurations of mens rea (guilty mind) and actus reus like a calculator works numbers. And the question can indeed be a complicated one to answer.

So, much so that if, for instance, Sanjay Singhania killed five people, it is possible that he is found guilty only for 2 or 3 murders despite having lost his memory at different stages during each of these murders. Sounds complex and baffling? No, it is not. It’s actually pretty simple. The law demands a clear presence of guilty mind when a criminal act is committed for the perpetrator of the crime to be convicted. And what is guilty mind? One should be aware of the nature and consequences of the criminal act, and that’s enough. The understanding of the relevant law or any law or even the existence of law, for that matter, is of no relevance.

In one situation Sanjay Singhania is on the very verge of killing the guy. The next move could dispatch the guy to heaven or hell (to be decided after dispatch). The guy lies right there – defenseless, motionless, horror-struck. And the memory slips. Mr. Singhania digs a picture out of his pocket to do a match. Now, the picture matches and Mr. Singhania proceeds with his ‘operation termination’. Verdict? Guilty, of course. And the reason is also very plain for anyone to see. At the time of murder the killer knows what he is doing.

Now, alter the situation a bit. Mr. Singhania is about to kill when his memory does the trick. He softens wondering what he is doing with a butcher’s knife in hand. His victim, in a last ditch effort to rescue himself, picks an iron rod lying nearby, and attacks Mr. Singhania. The only thing Mr. Singhania can now do is defend himself. And he does and in doing so ends up killing the person. In this case, at the time Mr. Singhania kills, he is simply acting in self-defence though he was the aggressor in the first place. In a normal situation, an aggressor cannot plead self-defence because no right to self-defence accrues against a preexisting right to self-defence. But in this case Mr. Singhania can, in all probability, successfully plead self-defence because his situation is much similar to that of a person who suddenly wakes up to an attack on his life and starts defending himself instinctively without thinking.

In another situation, Mr. Singhania throws a man off the building with the intention to kill, but somehow the man manages to hang on to a protruding iron rod, and Mr. Singhania’s memory fails him again. He finds himself standing atop a tall building with a man hanging on a thin iron rod. He instinctively extends a hand to pull the man up. The man gets to hold the hand but fails to take a good, life-saving grip, and descends to his death. It’s not all that complicated. The situation is the same as a person with the intention to kill lethally stabs a man and then regrets. He takes him to the hospital and does everything in his power to save his life, but fails. The man dies. That the assailant tried to save the life of the victim after delivering the death blow does nothing to dilute the intention to kill or the act of killing.

The court may consider the killer’s effort to save the life of his victim and may also take into account his remorse at the sentencing stage. However, the conviction is very certain. So, in this case Mr. Singhania’s ever-failing memory would not come to his rescue.

However, the most complicated legal question in case of Mr. Singhania would arise when the law considers that the man undergoing trial is someone who has no memory of what he has done and by virtue of his lost memory he may be legally unfit to stand trial. Only the same person who has committed the crime must be punished and no other. And a person is not body alone, which is why a person who goes insane after committing an offence is unfit for trial till the time his sanity is restored.

This case is slightly different than that of an insane person in that Mr. Singhania would readily understand the nature of killing someone and its legal consequences, but this is not the same Sanjay Singhania who killed. He is a new one, a clean slate. If he is told what he did, he may or may not feel remorse, but he is still in the position of a third person who considers the murders, the killer and the situation and then judges for himself if what the killer did was justified in his situation or not.

A person who has lost his memory cannot be convicted for the crimes he committed before the loss of memory because he is not the same person. Therefore, Sanjay Singhania, despite his sanity at the time of trial, would, in all probability, be found unfit to stand trial. And that position may remain unchanged for the rest of his life. However, he might still be considered too dangerous to be let out. Would it be just to incarcerate a man who is innocent in law? I would leave that question open.

Originally written for and published in LAWYERS UPDATE (April 2009 issue; Vol. XV, Part 4)