April 2021 The Verdict Issue #4

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ISSUE HIGHLIGHTS

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INTERNATIONAL WOMEN’S DAY

Key issues taken up and discussed at the event __

RETIREMENT: JUSTICE INDU MALHOTRA

Her life and career, along with key decisions and judgement by her

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NEW ABORTION LAW

Presidential Assent given to the Medical Termination of Pregnancy (Amendment) Act, 2021

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This Edition of The Verdict covers Female Empowerment in Law and the milestones in that respect.

The Verdict | April 2021

Plea for Uniform Succession Laws - By Shrishti

The apex court in response to a Petition Filed by Advocate Ashwini Kumar Upadhyay, has asked the government to respond to the plea of uniform succession laws, as well as Presidential Assent given to laws on maintenance and alimony in all religions.

New Abortion Law The petition stated that the - By Rimjhim Mishra various laws on succession are rather complicated and The law brings with it key changes into Indian abortion laws and tedious. That gender helps unmarried women attain abortions for contraceptive failure and neutral and laws that are not also beyond the 20 weeks gestational limit. Specifically, Section 3 of based on the tenants of any the Act deals with termination of pregnancies by registered medical religion are the only way out to promote gender justice practitioners. The first change in this Section is that pregnancy can and diminish the effect of be terminated within 20 weeks (earlier 12 weeks) if (i) the patriarchy. continuation of the pregnancy would result in grave injury to the The petition also aimed at woman’s physical or mental health and (ii) if the foetus would suffer reducing the classification from physical or mental abnormality. Consultation with a registered of female heirs in the Hindu medical practitioner is mandatory. Succession Act and stated 70 years since Secondly, pregnancies between the gestational period of 20-24 Independence and no weeks can also be terminated with the opinion of 2 registered move in securing this medical practitioners. Earlier, the women would need to approach gender justice has been taken despite the promise courts and file writ petitions if they needed to abort beyond 20 weeks. of Uniform Civil Code in the Other key changes are treating contraceptive failure as ‘grave injury’ Indian Constitution. for both married and unmarried women and prohibition on registered medical practitioners to disclose any details of a woman who has undergone an abortion. Supreme Court against Patriarchal Reasoning in Cases - By Shrishti In a recent set of directives issued by the Supreme Court , the apex court has aimed at reducing the stereotypes and biases pertaining to Gender that seep into Judicial reasoning by preparing a checklist for all the judges.

The judgement was authored by Justice Bhat and one of the key directives in this context is the trivialisation of the survivors’ experiences or her character assassination based on past relationships, dress code etc.:

“Thus, the following conduct, actions or situations are hereby deemed irrelevant, e.g. to say that the survivor had in the past consented to such or similar acts or that she behaved

promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or “Indian” women, or that she had called upon the situation by her behaviour, etc.,” the bench said. The court has further suggested to avoid using instances and illustrations that are aimed at defining what a stereotypical Indian should be, words such as good woman, chaste, or using instances such as that of smoking, drinking should wholly be avoided. Lastly the most important takeaway from the judgement is that a course on gender sensitization has been mandated as a foundation of course work of being a judge. The apex court acknowledged that women face discrimination not only on the basis of their gender but also it’s intersectionality with their religion, caste, colour, economic status etc. and judgements such as those suggesting marriage between the Rape survivor and perpetrator or tying rakhi are all a blow to the fight against gender justice.

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The Verdict | April 2021 UCC bridging Muslim “Virtual Canteen” Women’s Fundamental organized to celebrate Female Rights success in litigation - By Rimjhim Mishra - By Rimjhim Mishra

The Bombay A petition has been filed in the Supreme In earlier March, six women Court against a “blatant attempt” being made to take away lawyers, namely Deepika Marwaha, the fundamental right of Muslim women to practice their Garima Prashad, Neelima Tripathi, religion, all in the guise of providing a “uniform law” Nitya Ramakrishnan, Suruchi across all faiths. Amina Sherwani, the petitioner, says that Aggarwal and Malvika Trivedi were their personal law provides Muslim women with certain conferred the ‘Senior Advocate’ rights that will not be available under the UCC or any gown by the Delhi High Court and other law. The Muslim personal law provides a Muslim the Virtual Canteen was organised woman various options to divorce her husband. in celebration of that.

They include Talak-e-Tafweez (the wife’s right to divorce Six of these women, from a list of her husband is like that of the husband if the same has fifty-five, were promoted to the been incorporated in the nikahnama or where such a Senior Advocate designation and delegation has been made by the husband on a are hopeful it will be at least 50% subsequent date); Khula — the wife can get her marriage the next time. One of the topics dissolved through Darul Kaza (Shariat Court); Talak-e- that came up for discussion were Mubarrah — divorce by mutual consent; Fask — the wife the Senior Advocate designation can get an annulment of marriage through Darul Kaza; system vide the Designation of and finally, via the Dissolution of Muslim Marriages Act Senior Advocate Rules, 2018. of 1939. ‘Mehr’, which is “considered to be a symbol of Through which, a committee is set up which would evaluate the respect to the wife and as such it is meant to be proposals. They also shared their substantial”, such dues must also be paid by the husband views on the importance of otherwise the wife is entitled to her husband’s property or networking in the field of litigation. maintenance if living separately.

JUSTICE INDU MALHOTRA BIDS ADIEU TO

THE SUPREME COURT By Abhishek Ranjan

and completed her bachelor’s degree in On 13th March, Justice Indu Malhotra Law from in 1983. retired from the Supreme Court of . She was the first woman elevated directly from the bar. Her judgments are known for their brevity, clarity and thoroughness. In CAREER this article we take a look at her exceptional journey which has been an Post obtaining her law degree, Justice Malhotra was enrolled as an Advocate on inspiration to the legal fraternity and January 12, 1983 with Bar Council of women alike. Delhi. She qualified the EARLY LIFE AND Advocate-on-Record Examination in EDUCATION 1988. She specialized in the law of Arbitration and appeared as Counsel in Justice Malhotra was born on March 14, various domestic and international 1956 in Bengaluru (then known as commercial arbitrations both in India, and Bangalore), to Om Prakash Malhotra abroad. She also obtained certificate of the (former Senior Supreme Court advocate) Diploma Course in International and Satya Malhotra. She did her schooling Commercial Arbitration by Chartered from Carmel Convent School, Delhi and Institute of Arbitrators (CIArb), England. obtained her bachelor’s degree in Political Science from in She was appointed as the Standing 1975, and then master’s degree in Political Counsel for the State of Haryana in the Science in 1977 from Delhi University. She Supreme Court from 1991 to 1996. She also obtained a post-graduate Diploma in represented various statutory Corporate Laws & Secretarial Practice corporations before the Supreme Court, from the Indian Law Institute in 1978-79 including the Securities Exchange Board of

India (SEBI), Delhi Development January 10, 2018, along with the then Authority (DDA), Council for Scientific Chief Justice of Uttarakhand High Court, and Industrial Research (CSIR), KM Joseph (now an SC judge). She was and Indian Council for Agricultural formally appointed only on April 28, 2018, Research (ICAR). In 2007, she was after the Centre sat over the Collegium’s designated senior advocate by the recommendation for more than three . She became the months. Even then, it only appointed her second woman to be designated by the and held back the appointment of Justice Supreme Court after a gap of over 30 years. Joseph. In the history of Supreme Court of She has been appointed amicus curiae by India, this was the third occasion when it different benches of the Supreme Court in had two sitting women judges together – some matters. Recently, she was the first being Gyan Sudha Misra and appointed as an amicus for restoration of Ranjana Prakash, Desai, JJ., then Ranjana Jaipur as a heritage city. Prakash Desai and R. Banumathi, JJ., and then R. Banumathi and Indu Malhotra, JJ. Justice Malhotra specializes in the law of arbitration and has appeared in various IMPORTANT CASES domestic and international commercial arbitrations. In December 2016, she was Justice Malhotra was on the Constitution made a member of the High-Level Bench that unanimously decriminalised Committee (HLC) in the Ministry of Law homosexuality between adults. In Navtej and Justice to review institutionalization Singh Johar v. Union of India1, the of the arbitration mechanism in India. Supreme Court read down Section 377 of the to decriminalise Elevated to the Supreme Court on 27 April, same-sex relations between consenting 2018, the judge demitted office, after a adults. It also expanded aspirational short tenure of less than three years. She principles such as transformative was a practising advocate in the Supreme constitutionalism and constitutional Court prior to her being appointed as a morality. Her judgment particularly noted judge. The Supreme Court that 'History owes an apology to the Collegium recommended her name on

1 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

members of this community and their maintenance and the date from which it families, for the delay in providing should be awarded. redressal for the ignominy and ostracism Justice Malhotra wrote the sole dissenting that they have suffered through the opinion in the Temple Entry centuries. The members of this community case, Indian Young Lawyers’ Association were compelled to live a life full of fear of v. State of Kerala4. She held that the right reprisal and persecution.' to equality under Article 14 does not In Joseph Shine v. Union of India2, the override the fundamental right to religion Court struck down Section 497 of the under Article 25, irrespective of whether Indian Penal Code which criminalised the religious practice falling under Article adultery. It was held unconstitutional for 25 is rational. She questioned the violating Articles 14, 15 and 21 of the entertainment of the writ petition since the Constitution. Justice Malhotra’s petitioners were not worshippers of the concurring opinion noted that while Sabarimala temple and lacked standing. adultery is a morally wrong civil offence, it Justice Malhotra also led the in-house does not negatively impact society to the panel to investigate the claims of sexual extent that it needs to remain a criminal harassment against Rajya Sabha MP offence. Ranjan Gogoi, who was then the Chief Justice Malhotra’s judgment in Justice. The panel concluded that there the Rajnesh v Neha3 case issued detailed was no substance in the claim without any guidelines on maintenance for women and public procedure. children. It streamlined the multiple legislative schemes and provides detailed FACTS procedures to ensure speedy trials, At the farewell function of the SC Bar disclosure of information and enforcement Association (SCBA), she revealed that of orders. It also laid down the factors before accepting the judgeship in SC in relevant to calculating the quantum of 2018, she had declined the offer for

2 Joseph Shine v. Union of India, 2018 SCC OnLine SC 3 Rajnesh v Neha, Criminal Appeal No. 730 of 2020. 1676. 4 Indian Young Lawyers’ Association v. State of Kerala, 2018 SCC OnLine SC 1690.

judgeship in Gujarat HC during Justice A Justice is the only woman M Ahmadi's tenure as CJI (1994-97) and judge now in the apex court. With Justice had also declined offer for judgeship in Malhotra’s retirement, the number of Delhi HC made by CJI A S Aanand (1998- judges in the court will reduce to 29. The 2001) and S P Bharucha (2001-02) sanctioned strength is 34. because of "personal reasons".

INTERNATIONAL WOMEN’S DAY EVENT

By Shantanu Anand

On International Women's Day in an more suited to women, sensitivity among online event organised by the Kerala State judges and early challenges they faced” Unit of the Indian Law Institute along with and “On the impact of pandemic”. the Kerala Federation of Women Lawyers In her opening remarks, Chief Justice hosted Chief Justice Hima Kohli of the Kohli's observed that the United Nations Telangana High Court and Justice Anu had declared the theme for this year's Sivaraman of the Kerala High Court, and Women's Day to be 'Choose to Challenge'. Advocate Geeta Rameseshan of the She then remarked that women have Madras High Court to delivered the always had challenges thrown at them, women's day message, which was followed wherever they were. There would have to by a discussion among Chief Justice Kohli, be challenges before triumphs, she Justice Sivaraman and Advocate continued. Rameseshan on challenges facing women in the legal profession. Expounding upon this theme, she They dwelled into the questions on “Sexual explained that women juggled multiple Harassment and the Legal Profession”, roles as mothers, daughters, wives, sisters, “On Maternity, Family and Childcare, and members of the family and others. It was Rates of Attrition among Female these women who in turn went out into the Lawyers”, “On mentorship”, “On world into to face the challenges of the perception of some areas of law being legal profession.

Justice Sivaraman spoke of how despite Prior to International Women's Day, the systems in place after the Vishaka The Bench comprising of Justice J. B. judgment and the Sexual Harassment of Pardiwala and Justice Ilesh J. Vora of the Women at Workplace (Prevention, Gujrat High Court, while hearing public Prohibition and Redressal) Act, 2013, interest litigation (PIL) filed in connection there was still reluctance to present with an unfortunate incident wherein, complaints. over 60 girls in a hostel of Shree Sahjanand Girls Institute in Bhuj town of Kutch, Advocate Rameseshan later added that ordered to prohibit social exclusion of where the complaints were between women based on their menstrual status at lawyers, women would hesitate all private and public place sets out the approaching the Bar Councils and would ways in which Menstruation has been instead go to the police. There they could understood by the Society and across face threats by lawyers' groups, and they religions. might even be afraid of becoming unpopular and no other office willing to It was specifically submitted before the take her on, the lawyer explained. A great Court that the practice which is being vested interest structure is very much followed and encouraged of exclusion of there", Advocate Rameseshan pointed out. women on the basis of their menstrual On Maternity, Family and Childcare, and status is violative of human, legal and Rates of Attrition among Female Lawyers fundamental rights of women, more Chief Justice Kohli recalled that the rates particularly, those as enshrined under of dropping out between the 80s and the Articles 14, 15, 17, 19, and 21 respectively of 90s were much higher than they are the Constitution. The court observed presently. Remarking that the situation Menstruation has been stigmatized in our has changed drastically now, with the society and that the stigma has built up advent of law firms, Chief Justice Kohli due to the traditional beliefs in the noted that women were more focussed on impurity of menstruating women and our merging the two – continuing practice unwillingness to discuss it normally. while getting married.

the Court noted that as long as the general Ladies’ toilet in police station. hygiene measures are taken into account, A Division Bench comprising of Justices no scientific test has shown menstruation Sanjay Yadav and Jayant Banerji told the as the reason for spoilage of any food in State counsel that in case an affidavit is not making. "Such taboos about menstruation filed, the Secretary should personally present in many societies impact on girls' remain present before the Court on the and women's emotional state, mentality next date of hearing. and lifestyle and most importantly, health. Then the development comes few days Large numbers of girls in many less after when the Court had expressed economically developed countries drop displeasure at the fact no immediate steps out of school when they begin begin have been taken by the UP Government for menstruating", the Court noted. availability of toilets/washrooms and ------other essential amenities for female police personnel at different police stations. The Gender Sensitisation & Internal Then on next Monday On, the counsel Complaints Committee Of Supreme Court appearing for the State of Uttar Pradesh Organized a Virtual Symposium On informed the Bench that effective steps International Women's Day on 17th have been taken by fixing the agency for March, to observe International Women's construction of women's toilets at various Day. In which The Chief Guest at the police stations. occasion was Dr. Phumzile Mlambo Ngcuka, Under Secretary-General of the United Nations and Executive Director of UN Women.

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In a recent PIL Allahabad High Court passed an order on March 16th the hon’ble court had asked UP Home Secretary To File Affidavit Or Remain Personally Present Before Court pertaining the issue

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