Amity Law Watch

House Journal of AIALS Institute of Advanced Legal Studies Amity University [Launched in September 2003]

Issue No. XXXV : 2021 – 18th Anniversary Issue

AIALS Faculty & Staff Contents of This Issue

Professor Tahir Mahmood Editorial … 2 Chairman Obituary

Professor Arun Upadhyay Amity Laments Loss of Godmother … 2

Deputy Director My Eighteen Years with Amity 2003-2021

Professor Sachin Rastogi -- Tahir Mahmood … 3 Member-Secretary, FRC (Law) Story of My Association with AIALS

--Justice TN Singh… 6 R. P. Singh Academic Programme Officer AIALS Activities Update : 2020-21 --R. P. Singh … 7 Ankita Shukla Assistant Professor Alumni Reminisce on their Days at AIALS

Justice Naima Haider, Attorney Joy S. Chambers Udai Pratap Singh KBS Rajan, Rakesh Gosain, Ramesh Parajuli Assistant Professor Fenela Nonglait, SR Khare, Kalivi Zhimomi ...8 Pratibha Jha Some Notable Supreme Court Decisions Assistant Librarian by DY Chandrachud, J : An Appraisal Kishan Pal Singh Office & Library Assistant -- Tahir Mahmood … 12

______Religion-State Relations and Family Rights

[A Festschrift for Professor Tahir Mahmood] Amity University Campus, Block D Sector 125, Noida- 201393 --Yogesh Bhardwaj … 17 Website : www.amity.edu/aials Gone with the Wind : Lamenting Loss of E-mail ID : [email protected] Some Legal Luminaries … 19

Editorial Obituary

AIALS Turns Major Amity Laments Loss of Godmother ______

AIALS was born on 9th of June 2003 and The outgoing month of May this year has, had the proud privilege of being the first unfortunately, been a month of bereavement Amity institution to launch a PhD program for the Amity campus. in any subject whatsoever, and a Master’s On the 9th of May this year passed away degree program in law. Beginning with a Amity’s grand old lady, Smt Lilawati, who humble student intake, it has now on its rolls had all along Amity’s existence been a great a sizable number of PhD scholars and nearly source of inspiration for all those who have three hundred students pursuing LLM in five been connected with this great institution in different specializations. any capacity.

The Amity Law Watch was launched in 2003 In a circular mail issued as the institution’s house journal. Print on 10th May our beloved editions were brought out until 2017 after Founder-President Dr. which it had to switch on to online mode. Ashok K. Chauhan This is the fourth online issue, and is being announced the tragedy in released on the occasion of the eighteenth the following emotional anniversary of AIALS. words under a spiritual caption “Invitation Like all other Amity institutions on the of God for Nani Ji of All” -- Noida campus, AIALS had been closed for a full calendar year since March 2020 due to “With deep sorrow and immense pain I have Covid 19 pandemic. It briefly reopened in to share with my people, near and dear ones, March this this year but due to a renewed that the respected Smt. Lilawati Ji, mother of our Chairperson Dr. Amita Chauhan Ji, upsurge of the virus had to be closed again my mother-in-law, and for the whole family after about six weeks. Since then, like all and for all Amitians the beloved Nani Ji, other Amity institutions in Noida, AIALS left for heavenly abode on Sunday 9th May has been functioning online, in full swing. 2021 at 5.11 pm at Kailash hospital…. She LLM classes in all the five specializations it was admitted there since 28 April 2021. She offers, meetings of Departmental Research successfully fought out with Covid but God Committee, Oral Defence Committee called her to Him with a cardiac arrest at the meetings for outgoing PhD students, and age of 95 on the Mother’s Day. The interviews for new incoming PhD students, cremation took place early forenoon today at all have been duly conducted online, Antim Niwas, near our campus in Noida.” regularly and on time. It was indeed a sad day for Amity. May the Hopefully we will resume functioning at the noble soul of our departed godmother be campus in a normal way in the forthcoming blessed with Heaven’s choicest blessings. new academic year. (2)

Story of My Eighteen Years with Amity On making up my mind in May 2003 not to 2003-2021 continue with the DU Law Faculty, where I could have retained my job for another three Tahir Mahmood years, I was exploring other possibilities. Distinguished Jurist, Professor of The Academy of Third World Studies at Eminence & Chairman, AIALS Chairman, FRC (Law), AUUP Jamia Millia Islamia headed by noted historian Professor Mushirul Hasan offered Once in mid-1999, as the Chairman of the me a Visiting Professorship. When I told Dr National Minorities Commission, I hosted to Chauhan about it he offered me a full-time a dinner at my house my good old friend – position at the Amity Law School affiliated classmate in AMU and colleague in Delhi with Delhi’s Indraprastha University. University -- Professor Madhava Menon of I was reluctant as I had always been opposed Kerala. During the conversation at dinner he to post-schooling 5-year law course, and as told me that a new law school had been set the Dean of the Delhi University Law up, with his academic assistance, by a Faculty had not agreed to introduce it there. reputed business house headed by Dr Ashok Just 12th class pass students were, in my Kumar Chauhan. Sometime later, on my opinion, too immature to study law, way to Jamia Millia Islamia in Okhla I especially since law was not taught as a noticed atop a huge building next to the humanity course at the school level. The Escorts Hospital a big sign board with trend, however, gained currency and law ‘Amity Law School’ written on it. Always schools offering 5-year LLB course began deeply interested in promoting high quality mushrooming in the country by the name legal education, I became inquisitive to National Law Universities – all given know about the new school teaching five- charters by local governments. year LLB courses. I failed to understand how a state-level law I and Dr. Chauhan corresponded for some school could be called a ‘national’ time to know about each other. We had our institution and how a school having about a first meeting at the AKC House in Defence hundred students being taught one particular Colony and I was impressed by his debonair subject by a handful of teachers could be disposition. He apprised me of his ambitious called a university. But today almost every plan to set up a private university in Delhi state in has a National Law University by the same name [Amity]. I promised all under hybrid names like National Law help in his mission and he designated me as School of India University -- giving a chance Honorary Chairman of the Amity Law to law teachers to be called vice-chancellor. School. We then kept meeting periodically, I, therefore, declined such a position of in academic events and at each other’s honour offered to me in two premier cities. home, and before too long developed a sort (3) of affectional relationship as brothers.

On knowing of my disinclination to join the Advance Legal Studies [AIALS] – a name Amity Law School, Dr Chauhan asked me to that I had borrowed from my alma mater in suggest how else I could join his educational England – for imparting Master’s and network which he fondly wanted. I proposed Doctoral level programs in law. Once again to set up for him an Amity School of Dr Chauhan hailed my proposal and ASRAL Religion and Law [ASRAL] to conduct was quickly elevated as AIALS retaining research in religion, state and law relations ‘Religion and Law Studies’ as one of its worldwide. Dr Chauhan hailed the proposal special-interest disciplines. I worked as its and the proposed school was started, on 9th Honorary Chairman until 30th September June 2003, on Amity’s Yasho Bhawan 2003 and, on demitting office at Delhi premises which then housed the Amity law University on that date, began devoting all School and Amity School of Physiology. my time to developing AIALS, for which Dr Chauhan had set up some more Dr. Chauhan offered me unfettered freedom institutions as well to teach various subjects and necessary financial support. and was trying to get statutory back up for I launched a house journal for AIALS, to be setting up a private university as an umbrella known as the Amity Law Watch, and its organization for all his institutions. The maiden issue was soon released at the AKC newly created State, following House in Defence Colony by Dr Chauhan’s the world-wide trend of privatization of wife Dr Mrs. Amita Chauhan, Chairperson education, enacted a Private Universities of the Amity International Schools network. (Establishment and Regulation) Act, to A little later the same year, with a handsome recognize as universities non-governmental personal donation of books I set up a library institutions of higher learning with their for AIALS, which Dr. Chauhan agreed to be headquarters in the State capital but having named after my late lawyer-father as the powers to open off-campus centers Hasan Law Library. It was anywhere in India and off-shore campuses inaugurated on my father’s 28th death anywhere in the world. This was a giant anniversary on 18 December 2003. step towards the long-awaited privatization On setting up AIALS I first launched an of education in the country. Dr Chauhan interdisciplinary PhD program, keeping it seized this opportunity by the forelock and open also to lawyers, judges and law officers the existence of a full-fledged Amity who did not have a Master’s in law but had, University [AUR] was proclaimed with an LLB degree, gained at least ten by a governmental notification in Raipur on years’ experience of legal or judicial work. 12 June 2003 – just three days after my My innovative initiative attracted many and ASRAL had come into existence. within a few weeks the enrolment to first I then met Dr Chauhan with a proposal to batch of PhD program shot up to fifteen. elevate the baby institution I had set up as Law Faculties at the universities teach about ‘ASRAL’ to a proper Amity Institute of (4)

twenty subjects to the LLM students making appointed me as Law Member of the newly them master of none and jack of all. Dr. set up Commission. As it Chauhan readily agreed to my proposal that did not require attending office daily, my we will offer specialization at Master’s level work at Amity was not affected. At the end in law in chosen subjects only. In July 2004 of this assignment in 2007 I was sent by the I then launched a two-year LLM program in PM to the 18th Law Commission of India as Human Rights.

its only full-time member. Dr. Chauhan then I personally guided full-time and part-time graciously made some special arrangements PhD students’ research work and also taught enabling me to take up my new assignment LLM classes. My invitation to Indian and without affecting my work at AIALS. foreign scholars to spend one or more My association with Amity never adversely semesters for non-degree research at AIALS affected my schedule of frequent visits to attracted a number of researchers from foreign countries to conduct short-term various countries. courses or attend global seminars. My Soon there was an unforeseen development. routine as a prolific author was also not On late Professor Yashpal’s petition the impeded in any way by my assignment at Chhatisgarh Private Universities Act was Amity. On the contrary, my thematic struck down by the Supreme Court, leaving autography was first published by the Amity in a lurch the institutions which had been University Press in 2005. Since then till date recognized under it as universities. Amity’s I have written as many as twelve new books. Founder-President was, however, not a man In my early years with Amity I managed all to concede defeat. Before too long Amity AIALS affairs independently with a fair was given a charter by the UP Legislative degree of autonomy. Soon, however, came Assembly and the university began building an era of intense centralization of university a sprawling campus in Noida where AIALS administration and its mechanical handling also got its new premises in 2006. of academic affairs with the use of modern In the coming years new LLM programs technology. There were anxious moments, were introduced and adoption of one-year but with the protective hands of Dr Chauhan duration for the course in 2013 resulted into and cooperation of my devoted colleagues I a dramatic increase in student intake. I had managed to adjust to the new system. been given also the onerous responsibility to Throughout my eighteen years with Amity, chair the Law Faculty Research Committee. along with all my other academic activities, Despite a terrible deficiency in faculty and I have nurtured AIALS to the best of my staff, I could successfully manage AIALS capabilities. Posterity will judge the worth affairs for long years. of my contribution, if any, to the promotion In 2005 the new Prime Minister of the of higher legal education in the country. country Dr Manmohan Singh, whom I had (5) known since his days in Delhi University,

Story of my Association with AIALS of India Mohammad Hidayatullah, had been

cited in a Supreme Court case by Justice V. Justice Dr T. N. Singh R. Krishna Iyer, and Chief Justice Y. V. Ex-Judge, Assam & Madhya Chandrachud had reproduced several Pradesh High Courts passages from his books in his judgment in the celebrated Shah Bano case of 1985. [The learned judge has been a research programs advisor to AIALS and has instituted Yogita Mehta Annual In 2003, after leaving Delhi University and Scholarship for Girl students of AIALS…Ed] setting up an Institute of Advanced Legal Studies at Amity University, Professor In December 1990 I had a chance to decide Mahmood contacted me through the as a judge of the High Court of Madhya Registrar of High Court. Pradesh a complicated case under Muslim On being informed that I had demitted office law. In search of supporting materials I and was living in Delhi he met me looked up the literature available. Mulla and personally and told me that he wanted to Fyzee did not help. I could then lay my associate me with his Institute at Amity in hands on a book captioned Muslim Law of an advisory capacity. During the India. conversation we discovered, to our pleasant surprise, that both of us had pursued our The title attracted my attention and, as I doctoral research at different times in the began reading it, the progressive same renowned institution – the School of interpretation of Muslim law found on every Oriental and African Studies in London. page of the book aroused feelings of deep Since then Professor Mahmood and I have appreciation. It became the source for my been good friends, and I am an eye witness judgment which I began writing with the to the phenomenal growth of the words: postgraduate education and research in law “A forsaken bride’s pride and honour is at Amity University owing to his tireless put at stake by her father. A challenging efforts and academic contacts worldwide. problem of gender justice of a rare kind begs solution in this appeal” Professor Mahmood has written a lot on I cited in my judgment some passages from various branches of law. Family law has that extraordinary book. The author of the been his lifelong passion and he has made book I am referring to was Professor Tahir strenuous efforts to offer progressive Mahmood, then a Professor of Law in Delhi interpretations of traditional Hindu and University, and this was my first Muslim laws with a view to ensuring justice acquaintance with him and his academic to litigants. In his long career he has work. Out of curiosity I looked up for his produced a large army of lawyers and judges credentials and found that he had won the all of whom have read his books during their admiration of former Chief Justice (6)

legal education days. In 2012, I was present AIALS Activities Update : 2020-21 at the function where Chief Justice , releasing his new book on Muslim R. P Singh Academic Programme Officer, AIALS law, paid glowing tributes to his scholarship and revealed that as a law student in Lamented Professor RL Kaul

Calcutta University even he had read his On 27th May 2021 Amity University Law books. Former Chief Justice Faculty lost one of its ablest teachers Professor Ratan Lal Kaul. In his condolence , who was his classmate message AIALS Chairman wrote: in University Law Faculty, had once said in a public function “Tahir used to “The news of our very dear colleague study hard, he became a scholar, I took it Professor Ratan Lal Kaul's sudden demise lightly and became a judge.” A few months is extremely shocking. A gareat emotional setback to all those who, like me, loved earlier Anand had relied on his opinion to him for his exceptional qualities of head resolve the misconception in legal circles and heart. May his noble soul rest in about a misunderstood provision of the peace.” controversial Muslim Women (Protection of Rights on Divorce) Act 1986. Departmental Research Committee

The Departmental Research Committee of In 2013 when I decided to publish my AIALS has been re-constituted inducting memoirs, describing my experiences as a into it two new external members. The third judge and incorporating parts of my doctoral external member – Director of the Indian thesis prepared in London, I requested Law Institute Professor Manoj Kumar Sinha Professor Mahmood to organize and edit the – continues to be on the Committee for stray papers that I had prepared for this another term. purpose. He readily agreed, and this is how came out my book Quest for Justice; AIALS puts on record its deep appreciation Miscellany of An Academic Judge, published of the valuable services rendered by the in 2014 by Universal Law Publishers. Our outgoing external members of its DRC -- mutual respect for each other made him Justice Jaspal Singh, former judge of Delhi write about me in his book Reminiscing on High Court, and Supreme Court Advocate Law Brains published in 2016. Dr. M. P. Raju -- both of whom have had high academic credentials and have written a Professor Mahmood continues to write, and large number of well-reputed books on the courts continue to benefit by his works various branches of law. and cite them in their judgments. The apex The new external members of the DRC are court’s long judgment of 2017 on the Professor Kiran Gupta of Delhi University concept of triple divorce in Muslim law is Law Faculty and Dr. Manish Arora, Director full of references to his books. The number of Universal law Institute and a leading of High Court decisions relying on his views publisher of law books in India. is almost countless. (7)

New Faculty Alumni Reminisce about Days at AIALS

AIALS Professor Asha Verma left Amity (a) General Research Program during the current academic year. One Udai Pratap Singh, holding a Master’s degree in Naima Haider Judge, Supreme Court of Bangladesh law and pursuing PhD, has been appointed as an Assistant Professor. The number of Professor Tahir Mahmood, a great legal faculty at the moment stands at four. scholar of India, was known to me through

PhD Degree Recipients his books which I read as a law student in Dhaka and Columbia, and later as the Five PhD students registered with AIALS Deputy Attorney General for my country. It completed their research work during the was a pleasant moment of life for me when I academic year 2020-21 as detailed below met him during an international human and have since been awarded the degree: rights conference in Malaysia.

Astha Mehta Limited Liability Partnerships in India: A Before too long I travelled to Delhi to Comparative Analysis with Special Reference to become his student at AIALS to work on the the Law in Singapore problems of refugee law in Bangladesh. On Lipika Sharma several visits I had long learning sessions Traditional Knowledge: A Tool to Mitigate with him and enjoyed the excellence Climate Change and Need for Legal Framework hospitality of his colleagues. The Nirmal Rallan atmosphere at the institute was exceptionally Impact of Information Technology on the Legal congenial. Concept of Obscenity

Parul Yadav Now, as a judge, I make full use of his Need of Gender Neutrality in Indian Criminal Law and books, especially when I have a chance to Procedure – A Study in the Light of Moral Trends decide a case under Islamic law. His Worldwide progressive interpretation of the classical Smita Tyagi Shariah law is seen with deep appreciation Competition Law in India : A Comparative Analysis of Emerging Legal Issues at the Bench and Bar in my country. It was a proud moment for me when he invited me to The viva voce examination of another PhD India in 2014 to jointly chair, with an student Bhupal Singh, who had submitted American and an Indian judge, the inaugural his thesis in January this year, is slated to session of an International Law and Religion be held soon. Conference that he had organized in Delhi.

LLM Programs It was like home-coming for me and an

Second semester examinations for the opportunity for reviving my contacts with outgoing LLM batches are in progress. my learned teacher, research guide, and Admissions for the academic year 2021-22 advisor on academic issues. May God have started and the intake this year is Almighty bless him with a long life. likely to touch 300 mark. (8)

Joy S. Chambers I have been his PhD student at Amity Attorney at Law, Alexandria, USA University where my research subject was socio-legal study of the caste system.. His In January 2005 I was at the National Law first instruction was the seriousness with School of in India, where I which I should take up the course and it put attended a few classes on Islamic inheritance me in the right track. When my thesis was law. It aroused my interest in the subject and from my side complete and I was under the I decided to do a short course in it with some proud feeling that the same is perfect in all reputed scholar. aspects, he pointed many shortcomings. Thanks to his continuous guidance, cautions Everyone I spoke to at the NLS told me that and even admonitions, I eventually got my Dr Tahir Mahmood of the Delhi was the degree in 2006. scholar I was looking for. Before too long I reached Delhi. Fortunately for me he had just Whenever I think of him all that comes to launched a four-month course on Islamic law my mind are the golden words of Oliver for which postgraduate students and Goldsmith in his unique poem ‘The Village researchers of various institutions in Delhi had School Master’ found in The Deserted registered, and I lost to time to become one of Village : them. Indeed I could not have made a better Yet he was kind or if severe in aught; investment of my time in India. It goes The love he bore to learning was in fault; without saying that the substantive knowledge And still they gazed and still the wonder grew; of Islamic law I gained from his lectures That one small head could carry all he knew. immeasurably enriched my knowledge and **** equipped me for handling Muslim law cases in Rakesh Gosain my country. Advocate,

Professor Tahir Mahmood is an ideal Years later Dr. Mahmood informed me that he motivational teacher and an exceptional was in Washington DC. I was thrilled and human being with superlative qualities of an drive to DC all the way from Alexandria to inspiring and fearless leader wedded to the meet him and revive my sweet memories of noble cause of perfect and accurate legal being with him in India. education. My association with him extends

(b) PhD Program over three decades as his devoted student at

KBS Rajan different levels. There would hardly be any Advocate, Supreme Court of India & Former Judicial lawyer who has not read his books. On several Member, Central Administrative Tribunal occasions I have cited them in the courts with a matter of pride.

“Great men are always exceptional” said I was his PhD student in Amity University Samuel Smiles. Professor Tahir Mahmood, a where I always found him either glued to versatile and erudite scholar, a legal books or teaching in the class. He is known for luminary and internationally known (9) academic figure fits in fully the this statement.

his phenomenal work on the family laws but I During the long preparatory exercises for a found him equally well-versed in other new democratic and secular Constitution for branches of law. My research topic was my country Tahir Sir organized two judicial approach to commercial frauds and it international constitutional law conferences was amazing to find his deep insight also in in Kathmandu and brought to our doors this subject. many world experts in constitution-making.

I can say that he has chiseled me not only for It was a pleasant discovery for me to find my profession but also for understanding that he commanded great respect among the humanism. He is one of the few who guide high dignitaries in my country. people regarding their duties to the society at large. I revere him from the core of my heart. If **** God has any plan to give a next life to me, I

Ramesh Parajuli would pray to be Tahir Sir’s protégé.

Assistant Professor of Law, Tribhuvan University, **** Kathmandu, Nepal (c) LLM Programs The Law Faculty of Tribhuvan University in my home country has on its teaching staff Fenela Lyngdoh Nonglait many former students of the Delhi Former Chairperson, State Commission for Women & Vice-Chairperson, State Law Commission, Meghalaya University Law Faculty in India. Among them is Professor Ambar Pant who had In 2004 I got a rare distinction which I had finished his PhD in Delhi University when never even dreamt of. On hearing that Amity Professor Tahir Mahmood, Sir, was the University in Delhi had launched an LLM Dean of the Faculty. course in human rights, I felt deeply interested and travelled to Delhi to seek Barely after I finished my Master’s in law, admission. The unique course had been lady luck smiled on me and through started by the legendary legal scholar Professor Pant’s courtesy I met Tahir Sir in Professor Tahir Mahmood, Sir, who had Kathmandu during an international moved from Delhi University to Amity and conference. I told him of my desire of doing had set up there an Institute of Advanced PhD under him and he readily agreed, Legal Studies. I met him there – and lo, Within a few weeks I was enrolled as his became his very first student of the human PhD student at Amity University. rights program.

Enamoured by his profound learning and My research topic was medical negligence personal charm, on completing my two-year in India and Nepal, and I was amazed to LLM course I decided to stay on at Amity as discover that, internationally renowned for his PhD student. Gosh, what a journey ahead his expertise in the disciplines of family law I had, knowing him in person and getting the and laws relating to religion, Tahir Sir had a deep insight also into this subject. privilege of sharing experiences with him.

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He is a Muslim and I a Presbyterian remain deeply indebted to him till date. It Christian but, and yet side-stepping all these has been his constant encouragement and differences, a special Platonic relationship inspiring guidance even after finishing my developed between us. He directed me to a education Amity that enabled me to earn a new level of professional success and PhD in law and enter the field of legal enabled me to tackle even most difficult practice. encounters in life with ease. **** Kalivi Zhimomi I had heard of the Interfaith Summer School Assistant Professor, City Law College, Dimapur, Nagaland on Human Rights which Sir was conducting I have known Professor Tahir Mahmood Sir biannually at the St. Gabriel Institute in since 2006 when I had taken admission to Vienna, and dreamt of someday LLM (Human Rights) course in Amity participating in it. Sir made it a reality too University. From day one he was very kind soon. In July 2006 I travelled with him to and affectionate and gave special attention Vienna and had a lifetime experience of to my study requirements. After completing being with him there for that extremely LLM I decided to practice in Delhi and on rewarding course. About fifty students from my request he sent me to his friend Dr. MP fifteen countries attended the program and Raju for professional practice. Sir gave lectures, in his inimitable style, on human rights in a religious harmony Later I was admitted to PhD program in perspective. Amity to do research work under his

I remain in touch with him, seek his guidance on Christian laws in India. guidance on my personal and professional Gradually we developed a family matters whenever necessary, and never miss relationship, which was indeed a great visiting him whenever I am in Delhi. honour for me. I have travelled with Sir to Undoubtedly, I owe my entire career to Sir. Austria for attending a Summer School on In the name of our Lord Jesus Christ I pray interfaith studies and have attended with him for his long life. a conference on constitutional law he had organized in Nepal.

**** Sarvam Ritam Khare Advocate, High Court of Delhi Sir made me write articles on my research topic and published them in his journal, the I was an LLM (Human Rights) student at Amity Law Watch. This prompted me to give AIALS during 2006-08. Professor Tahir up practice and go into academic career. Mahmood’s vast knowledge of the subject Soon I was appointed on the faculty of a law and unique style of teaching created inside college in my hometown, and for years I me a sense of deep reverence for him. He kept taking telephonic lessons from him knows several languages and an untiring and before teaching my students. I remain under self-disciplined scholar. His special attention his affectionate guidance in all walks of life, and affection for me shaped my personality which is a divine blessing for me. and prepared me for future growth and I (11)

Some Notable Supreme Court Decisions by Justice in Allahabad and finally on the apex DY Chandrachud, J. -- An Appraisal court bench. There has been something more than the old Delhi University connection to Tahir Mahmood make me happy for his phenomenal rise. His Professor & Chairman, AIALS learned father, former A. Proactive Judge late Y. V. Chandrachud, and I were on friendly terms for long years. “If the State targets individuals, they must The Habeas Corpus case of the notorious realize that the apex court is there to protect Emergency days (ADM Jabalpur, 1976) had them.” been decided by a five-judge Bench of the This is what vacation judge Dhananjaya apex court headed by the then CJI, AN Ray, Chandrachud of the Supreme Court of India handpicked for the coveted post by Indira had said in November 2020 while hearing an Gandhi as Prime Minister by superseding appeal against the Bombay High Court three senior judges. decision in Arnab Goswani’s case. It was Among others on the Bench quietly incidentally the young judge’s birthday and supporting him were Hameedullah Beg and when a lawyer quipped that it was the Y. V. Chandrachud, JJ. The former was “worst way” to spend a birthday, he retorted: soon rewarded with the position of CJI, once “No, this is actually the best way to spend it. again out-of-turn, and on demitting office I am in court judging and it is my life, I love was succeeded by the latter in the order of it.” seniority.

Commendable, indeed. I am not concerned On becoming CJI, Chandrachud wiped out here with the facts of the case he was seized from his face the blot of having concurred of, but hail his highly promising words that with Ray in ADM Jabalpur by his own the apex court is there to protect the people commendable ruling in Minerva Mills against injustices inflicted by the custodians (1980) relating to the 42nd amendment of the of state authority. Constitution which had attempted to

Antecedents overrule Kesavananda Bharati (1973).

I have known Dhanajaya for over four Chandrachud had further built his reputation decades, beginning with his student days in by his ruling in Shah Bano case of 1985 on early1980s in Delhi University Law Faculty divorced Muslim women’s rights. He had which I had joined as a teacher seven years cited in it my appeal to the Muslims earlier. It was a pleasure for me to watch his reproduced from one of my books that “they growth through higher education at Harvard, should begin exploring how the true Islamic followed by years of vibrant practice at the laws, purged of their time-worn and Bar and eventual elevation to judiciary – anachronistic interpretations, can enrich the holding one after the other the posts of a emerging common civil code of India.” High Court judge in , the Chief (12)

Mourning Chandrachud’s demise in 2008, quest for liberty, are the foundational late Justice VR Krishna Iyer had said “his pillars of the Indian Constitution.” vision was progressive, judgments lucid, Overruling Sowmithri diction exquisite, and performance at the Bench perfect.” In the 2018 case of Joseph Shine Dhananjaya dissented from his learned When Shah Bano, believed in certain circles father’s thirty-three year old verdict on the to have been overruled by legislation, was constitutional validity of Section 497 of the reaffirmed and revived fifteen years later in Indian Penal Code relating to adultery Danial Latifi (2001), I had written in a (Sowmithri, 1985). Commenting on this media column that “the late Chief Justice development I had remarked in a media has been decisively vindicated.” column “this sea change in judicial approach to the disputed provision of the Penal Code Overruling ADM Jabalpur reflects the proverbial generation gap.” The notorious ADM Jabalpur ruling had Dhanajaya’s viewpoint that adultery by a tarnished India’s fair name as a democracy. married woman, being an issue of family Forty-seven years after it was pronounced, law, should not fall in the domain of with Chandrachud senior as one of its silent criminal law was in my opinion abundantly supporters on the Bench, it was pointedly logical and appealing to common sense. overruled by his son Dhananjaya in KS Putthuswamy (2017), saying: Terming dissent as the “safety valve of democracy” Dhananjaya has authored “When histories of nations are written and several judgments affirming people’s right critiqued, there are judicial decisions at the to freedom of speech. His assurance that if forefront to liberty. Yet others have to be consigned to the archives, reflective of the State targets individual citizens, the apex what was, but should never have been.” court is there to protect them is quite in keeping with his judicial philosophy. That What a commendable remorse indeed it was. certain cases have remained deprived of the Dhananjaya’s laudable judgment in what is impact of his zeal is a fact, unfortunate and generally known as the Privacy Case undeniable. It is high time they are revisited (Puttaswami, 2017), overruling contrary in the interest of justice at the first available decisions of six judge and eight-judge opportunity benches of the court pronounced during B. Triple Talaq Case

1954-62, was another feather in his cap “On a preliminary analysis it is clear that which he did uttering the following words: the appellant as the mother-in-law of the

“Life and personal liberty are inalienable second respondent (wife) cannot be rights. These are rights which are accused of the offence of pronouncement inseparable from a dignified human rights of triple talaq under the Act as the offence existence. The dignity of the individual, can only be committed by a Muslim man.” equality between human beings and the (13)

A Supreme Court Bench led by Dhananjaya. Country after country in Asia and Africa, so observed in a case decided in January then, gradually abolished by legislation the 2021 under the Muslim Women (Protection detestable practice of triple talaq. of Rights on Marriage) Act of 2019, popularly known as the anti-triple talaq law. Concerns in India The facts of the case show that the Act is India took a much longer time to follow suit. being as gravely misunderstood as was, and During the British rule the courts had still is, the true Islamic law on divorce. accepted and enforced that “sinful but Triple Talaq Tradition effective” form of divorce calling it a concept “bad in theology but good in law.” The background of the anti-triple talaq law In the early years after independence some needs to be explained. The blatantly anti- High Court judges – VR Krishna Iyer of women divorce customs prevalent in pre- Kerala and Baharul Islam of Assam among Islamic Arabia had been given a severe blow them -- tried to awaken the custodians of by the teachings of Prophet Muhammad who state authority to the need for its abolition. A was, indeed, a great social reformer. Muslim judge of Kerala bemoaned: Demonstrating the truth of ‘old habits die “Should Muslim wives suffer this tyranny hard’ unscrupulous men had innovated, in for all times? Should their personal law the course of time, ways and means to remain so cruel towards these unfortunate circumvent his noble teachings in that wives? Can it not be amended suitably to regard. One of these was the practice of alleviate their sufferings?” ‘triple talaq, – repeating the word talaq Shayera Bano Case thrice -- which was believed to effect instant dissolution of marriage leaving no room for Social reformers also demanded that what any reconsideration or reconciliation. was bad in theology should be bad in law too. Finding that legislation required for it Instead of nipping into the bud that was nowhere in sight, the apex court of the abominable innovation, law men of the time country tried in some cases to indirectly called it talaq-ul-bidat and declared it to be curb the archaic practice and eventually “sinful but effective.” This self- outlawed it in Shayera Bano case of 2017. contradictory concept remained in vogue for The anti-triple talaq Act of 2019 was the centuries in the Muslim societies across the outcome of this judicial reform. globe. Provision for Bail Reforms Abroad Section 498A of the Indian Penal Code Twentieth century reformers in some [cruelty to a woman by her husband or his Muslim-dominated lands at last woke up to relatives] is often misused. This undeniable the need to save families from devastation fact was once acknowledged by the apex and demanded that what was “sinful” by court, though it had to withdraw under religion must not be enforced by law. (14)

feminist pressure the measures it had “Parliament has not overridden the directed to be taken for curbing the trend. provisions of Section 438 of the CrPC. Like the said provision of the Penal Code There is no specific provision in Section the anti-triple talaq law of 2019 is also prone 7(c), or elsewhere in the Act, making to misuse and their dishonest combination Section 438 inapplicable to an offence punishable under the Act.” may play havoc with families.

The verdict is a significant step towards the In the triple talaq case under reference, need to prevent misuse of the anti-triple lawyers of a Kerala woman had included her divorce law. husband’s mother in the FIR filed against him under the 2019 Act by vaguely alluding C. C. Covid 19 Case to the said IPC provision. For understanding Another recent case decided by a Supreme the commonsense fact that this Act is meant Court Bench led by Dhananjaya that attracted to discipline erring husbands only, the my attention is the one relating to the Covid learned lawyers needed a learning session vaccine situation in the country of which the with the apex court. court took suo moto cognizance. The provision for bail to be granted to the At the outset the learned judge clarified that accused husband under Section 7 of the the court was not breaching the principle of 2019 Act has been particularly separation of powers between the three misunderstood. Many lawyers misbelieve organs of the State – legislature, executive that it overrides the general provision for and judiciary – but had an obligation to anticipatory bail under Section 438 of the perform its rightful role as assigned by the Criminal Procedure Code. Soon after the Constitution. Note these very meaningful enactment of the Act a man accused of observations: committing the offence it had created sought "Our Constitution does not envisage anticipatory bail in the Bombay High Court. courts to be silent spectators when His wife’s lawyers argued that the non- constitutional rights of citizens are obstante clause in Section 7 of the Act had infringed by executive policies." rendered the CrPC provision inapplicable to "Judicial review and soliciting cases under its provisions. Rightly rejecting constitutional justification for policies the argument, the court had granted bail. formulated by the executive is an essential function, which the courts are On the contrary, in the case under reference entrusted to perform." the Kerala High Court had accepted the same faulty argument to refuse bail to the Emphasizing the fact that the judiciary accused husband’s mother, who then had to across the globe does respond to knock at the apex court’s doors. Explaining constitutional challenges to executive the position under the Act, the court policies that directly or indirectly violate emphatically held: fundamental rights and liberties of the (15)

citizens, the learned judge said: the auspices of an open court judicial process, conduct deliberations with the executive "The courts have often reiterated the where justifications for existing policies would expertise of the executive in managing be elicited and evaluated to assess whether a public health crisis, but have also they survive constitutional scrutiny". warned against arbitrary and irrational policies being excused in the garb of These observations of the judge will always be the wide latitude to the executive that remembered by the students and scholars of is necessitated to battle a pandemic." ever-growing constitutional .

Reference was also made to the court’s D. Future CJI observation in Gujarat Mazdoor Sabha case of 2020 that: Dhananjaya has already been on the court for over five years and has the making of a dynamic "The policies to counteract a pandemic Chief Justice to serve the nation from November must continue to be evaluated from a next year for about two years. I have a pious threshold of proportionality to hope that his deep commitment to the primacy determine if they, inter alia, have a rational connection with the object that of citizens’ fundamental rights under the is sought to be achieved and are will extend equally to all necessary to achieve them". justice-seekers in each and every case and that several other wrongs of the past that need to be Summarizing the gist of the opinions expressed duly corrected will get his attention. on the official policies relating to Covid vaccine the judge said: References

"In grappling with the second wave of the pandemic, this Court does not intend to ADM Jabalpur v Shivkant Shukla (1976) 2 SCC 521 second-guess the wisdom of the executive Arnab Manoranjan Goswami v State of when it chooses between two competing 2020 SCC OnLine SC 964 and efficacious policy measures. Gujarat Mazdoor Sabha v State of Gujarat (October 2020) However, it continues to exercise jurisdiction to determine if the chosen In Re Distribution of Essential Supplies and Services policy measure conforms to the standards During Pandemic (Suo Motu petition 2021) of reasonableness, militates against manifest arbitrariness and protects the Joseph Shine v Union of India 2018 SCC OnLine SC 1676 right to life of all persons." Keshwananda Bharti v State of Kerala AIR 1973 SC 1661

Minerva Mills v Union of India AIR 1980 SC 1789 Concluding the arguments to justify taking suo motu cognizance the matter the judge said: Mohd. Ahmad Khan v Shah Bano Begum AIR 1985 SC 945 Rehana Jalal v State of Kerala 2020 SCC OnLine SC "This court is presently assuming a dialogic 1061 jurisdiction where various stakeholders are Sowmitri Vishnu v Union of India AIR 1985 SC 1618 provided a forum to raise constitutional grievances with respect to the management of (16) the pandemic. Hence, this court would, under

Religion-State Relations and Family Rights 3. Dr. KBS Rajan

[A Festschrift for Professor Tahir Mahmood] Advocate, Supreme Court & Former Judicial Member of CAT

Yogesh Bhardwaj 4. Dr. Rakesh Gosain Head, Publications Division, Satyam Law International Advocate, Supreme Court of India

The book opens with a message from the Published as festschrift former Vice- saying “This in honour of India’s volume is a tribute both to Professor Tahir highly reputed scholar Mahmood’s academic excellence and to his Professor Tahir contributions in a difficult and contentious Mahmood, this book area of public service.” contains scholarly articles by foreign and Writing the Foreword to the book former Indian authors on the Chief Justice of Jammu and Kashmir High dual themes of the book (i) religion-state Court Badar Durrez Ahmad, a former relations and (ii) family rights. It also student of Professor Mahmood, says: “The includes a number of celebratory pieces contribution of Professor Mahmood in the written by the Professor’s Indian and foreign field of law, through his decades of learning, admirers, friends and former students. The scholarship, writing and teaching, is book ends with a selection of his own recent immense and is deserving of the greatest of media pieces on its dual themes. respect for a true ustad that he is.”

The 300-page book has been edited by In his Preface Editor-in-Chief of the book Justice Jaspal Singh who has been a judge of Justice Jaspal Singh has said: “I feel the Delhi High Court during 1990-98 and Professor Mahmood comes out tall not as an after demitting office was designated as author of scholarly books, not as a law Senior Advocate of the Supreme Court of scholar but as a teacher telling his students India. He is author of a large number of that they only are to author their lives. That books on various laws and has been closely what they need to do is to think, and not to associated with the PhD program of the applaud mindlessly.”

Institute of Advanced Legal Studies at The first Part of the book contains scholarly Amity University. articles by the following foreign authors:

1. Professor Werner Menski : UK Justice Singh as the Editor-in-Chief was 2. Professor Silvio Ferrari : Italy assisted in the editing work on the book by 3. Professor Rik Torfs : Belgium the following former students of Professor 4. Professor Gerhard Robbers : Germany Mahmood now holding high academic or 5. Professor Carolyn M. Evans : Australia professional positions: 6. Prof. Asher Maoz : Israel 7. Professor Navarro J. Floria : Argentina 1. Prof. Manoj Kumar Sinha 8. Professor Hashim Kamali : Malaysia Director, 9. Dr. M. Khalid Masood : Pakistan 2. Dr. Kiran Gupta 10. Dr. Kamal Hossain : Bangladesh Professor of Law, Delhi University 11. Professor KB Thapa : Nepal (17)

Three thematic articles by Indian authors 2. Syed Shahid Mahdi included in this part have been written by Former Jamia Millia Vice-Chancellor

Supreme Court Advocate Dr. MP Raju 3. Bollywood Lyricist Javed Akhtar Madras High Court Advocate Sriram 4. Dr. SY Quraishi Panchu, Professor Kiran Gupta of Delhi Former Chief Election Commissioner University Law Faculty. The total number of 5. Dr. Mohini Giri scholarly articles on the dual themes of the Former Chairperson, Women’s Commission book is fourteen, and each of these pieces is academically excellent and extremely 6. Advocate Indira Jaising Former Additional Solicitor General of India informative 7. Advocate AS Chandhiok Celebratory articles Former Additional Solicitor General of India

The second Part in the book contains the 8. Dr. Zeenat Shaukat Ali following five celebratory five articles about St. Xavier’s College, Bombay

Professor Mahmood’s personality and 9. Journalist Zia Us Salam academic work: Editor, Frontline Magazine, Delhi

1. Prof. Imtiaz Ahmed In a separate section in this Part glowing Former Law Dean, Calcutta University tributes have been paid to Professor

2. Prof. Manoj Kumar Sinha Mahmood by some of his former students. Director, Indian Law Institute Among them are his three PhD students at Delhi University Law Faculty -- Nimal 3. Prof. SM Afzal Qadri Former Law Dean, Kashmir University Samarasundera of Sri Lanka, Aliyar Arshadi of Iran, and Kiran Gupta 4. Dr. Manish Arora Director, Universal Law Institute AIALS alumni who have written for this

5. Dr. Saif Mahmood section are Attorney Joy S. Chambers of Advocate, Supreme Court of India USA, Justice Naima Haider of Bangladesh

Part II of the book also includes appraisals and Ramesh Parajuli of Nepal. With them of Professor Mahmood’s academic work by: are KBS Rajan of Delhi and Fenela Nonglait of Meghalaya. 1. Professor W. Cole Durham Brigham Young University in the Unites States The Supplement to the book contains Professor Mahmood’s nineteen media 2. Professor Liviu Olteanu columns of 2019-20 on the current social Secretary-General of International Association for and legal issues, published in leading dailies. Defense of Civil Liberty in Switzerland

3. Journalist Hasan Suroor of London We at Satyam Law International are indeed proud to be the publishers of this very Appraisal notes by Indian authors include valuable anthology consisting of eminent those of: Indian and foreign scholar’s articles.

1. Professor Upendra Baxi Former Vice-Chancellor, Delhi University (18)

Gone with the Wind: Lamenting Loss of On Soli’s death glowing tributes were paid to Some Legal Luminaries him in the same newspaper by a number of academic and professional lawyers. My In the second quarter of 2021 the world of classmate in London and a dear friend, former law has lost several legal luminaries with Additional Solicitor General of India Indira some of whom I have had very special Jaising, wrote: relations. With a heavy heart I pay my “Soli was a man of multiple talents. He was humble tributes to them. …. T. M. known not only as a lawyer, but also as a A. Soli J. Sorabjee jazz lover, art critic, and his columns in the Indian Express were widely read. Despite Soli sitting with one of his multiple successes, he never lost my books in his hands contact with ordinary members of the bar -- along with Chief Justice Altamas Kabir, and was often found in the Supreme Court Justice Badar Durrez bar room interacting with all of us. His was Ahmed, myself, and a time when the bar was not politicized. He Justice BA Khan did not participate in party politics nor the politics of the bar. Today, it would be Eminent jurist and Supreme Court lawyer almost impossible to find such a person, for Padma Bhushan Soli Jehangir Sorabjee died on success is almost impossible without 30 April. A Parsi Zoroastrian by faith, he had political alignments.” served as the Solicitor General of India during Former Law Professor and Vice-Chancellor of 1977-80 and, in later years, twice as the Delhi University Brother Upendra Baxi wrote: Attorney General for India. I had known him since long and had published some of his “I shared a warm and cordial friendship with brilliant legal articles in my two journals – this votary for human rights and multi- Islamic and Comparative Law Quarterly and faceted personality. He not only protected Religion and Law Review. the freedom to dissent but practised remarkable hospitality to public criticism. Later during my days as the Chairman of Mildness was a virtue of Soli as I knew him. National Commission for Minorities I and he In public life, he was not given to had become good friends. He launched my two expressions even of just indignation. I have books – Politics of Minority Educational witnessed moments of great irritation and Institutions in 2007 and Muslim Law in India even flashes of exasperation, but never fits of temper. Soli believed in (as eminent and Abroad in 2012. I wrote a short piece about philosopher Ludwig Wittgenstein said once our friendship in my book Reminiscing on Law about the task of philosophy) ‘showing the Brains (2015). fly the way out of the fly bottle.’ He

Soli used to regularly write in the Indian believed in the basic principles of law and justice, but all his life regarded principled Express, often with a bit of humour. In one of pragmatism as a virtue of democratic his recent articles, describing an incident in the lawyering and justicing.”

court he wrote:

“There are judges and judges and lawyers Soli’s contribution to the development of Indian and lawyers, and as Charles Dickens wrote, law and human rights jurisprudence is indeed “if the law supposes that the law is an ass” I unforgettable. He will remain alive, always, wonder what would be Dickens’ reaction to through his monumental legal works. this incident.” [18 May 2020] (19)

II. Two Bright Law Scholars III. My Elderly Friend in Austria

Riyaz I with Father Punjabi Andreas Bsteh, _____ Professor & Autar Director, St Krishen Gabriel Institute, Koul Vienna

Half a century ago I had started my law teaching In 1996 when I was serving as Chairman of the career at the Aligarh Muslim University. There National Minorities Commission I received an was no law department then in Kashmir invitation from an unexpected quarter for University and students from the valley used to attending an inter-religious dialogue conference come to either Delhi or Aligarh to study law. in the Austrian capital city of Vienna. The organizer was Father Andreas Bsteh, Professor In the first batch of LLB students I taught there of Ecclesiastical Law and Director of St Gabriel were several Kashmiri boys, two exceptionally Institute for the Study of Religion and Theology bright among whom were Riyaz Punjabi and in a suburb near Vienna. Autar Krishen Koul. Both completed their two- year postgraduate LLB course from AMU. I I attended the conference in 1997, and this was then left Aligarh and they too went elsewhere the beginning of a long fraternal relationship for higher education. with a noble soul whose qualities of head and heart attracted me towards him more and more Riyaz grew as an eminent legal scholar, taught each time I met him. We became brothers and law in Kashmir and JNU and finally rose to comrades in arms to work for inter-religious become the Vice-Chancellor of his alma mater, peace around the world. Together we edited the University of Kashmir. Autar was, in later proceedings of several conferences he organized years, my colleague first at the Indian Law in Vienna. Soon came into existence a Vienna Institute and then at Delhi University Law Inter-Religious Dialogue Foundation and I was Faculty. Finally he served as Vice-Chancellor of put on its five-member International Steering the National Law Universities of Jodhpur and Committee.

Ranchi, one after the other. Both of them wrote In 2006 the Foundation started a very attractive many popular books and achieved high program of bi-annual summer schools at which I reputation in the academic world. taught with several other world scholars. Year after year I sent student-participants from India, In recent years Riyaz was struck by cancer and including two from Jamia Millia Islamia and after boldly facing the dreaded decease for long three from the AIALS. years died on 8 April this year. His wife Tarannum Riyaz, a popular writer and poetess, I had my last meeting with my dear friend in could not bear the loss and breathed her last 2013 when he had organized in Vienna a barely six weeks later, on 20 May. valedictory conference to wind up his enormous work. We remained in touch till his Autar was keeping bad health for some time and sad demise on 9th June this year. May he be passed away at his Delhi residence on 21 April. granted heaven’s choicest blessings. May both the departed souls rest in peace. (20)