Advocate PK Ibrahim

Right to Information Act (RTI Act): What the state information commissions should do ?

2010-02-01T18:19:00.000-08:00

Right to Information Act (RTI Act): What the state information commissions should do ?

BY
Advocate P.K.Ibrahim,
High Court of Kerala
President, Human Rights Defence Forum

    The operation of Right to Information Act in the State of Kerala over the last 4 years is yet to attain the ultimate object of transforming the administration transparent. The resistance to the application seeking information is still strong and the State Information Commission have not succeeded in overcoming the various hurdles placed before the citizens by vibrant orders causing fear in the mind of the State Public Information Officers and or the Appellate Authorities regarding the consequence of withholding information under different pretexts not recognized under the Act.

    The success of the State Information Commission is to be assessed not from the angle of supplying information at the fag end of the 30 days time of the disposal of the application. The success of the Commission is in ensuring information from the public authority on mere asking, that being the obligation of every public authority as declared under Section 4 of the Right to Information Act. The question of making an application for seeking information does arise when the public authority decline the disclosure. It is under such circumstance, the citizen is required to make an application in writing requesting for the information which was denied to him as a matter of course. Whether the non-disclosure was voluntary is a matter that can be judged by the scale of its resistance setting out the reasons for declining or from the circumstances of furnishing information at the fag end of the time limit. If the resistance is least, the informant would be furnished with the details sought by him within a reasonable time of his application. But such instances are very few indicating that at the administration are still reluctant to part informations to the public regarding its functions made “in public interest” and “as public servant”.

    The Act have taken care of ensuring information to the citizens on mere asking. It is in that context a time limit was prescribed requiring all public authorities to publish all matters concerning the organization, functions, duties and matters related to all its business within 120 days from the enactment of the Act from the date of 15.6.2005. Shockingly none of the State Information Commissions constituted under the Act across the country have taken any action against any department for non compliance of this mandatory provision. It is this breach of a statutory obligation cast on the public authority that has given raise to applications and or appeals before the designated Officers. Only when the State Information Commissions call upon the public authorities to discharge their obligations under Section 4, the State Information Commissions across the country will be managed to cope up with complaints and appeals, lest it will crumble down by the peril of mounting unmanageable arrears with its limited resources provided by the State stingingly.

    The State Information Commissions have a duty to minimize the efforts of the citizen seeking information. It is possible for the State Public Information Officers to put the citizens unnecessarily which tendency can be curbed only by making the Public Information Officers responsible for not only awarding cost and compensation to the citizens as a matter of course wherever the State Commission find that the denial of the information is not justified under Section 8(1) and 9 of the Act, the instances of awarding cost and compensation are now rare with the result the tendency to put the citizens to undergo Appeal and Second Appeal and further complaints will only increase.

    The State Information Commission and the Appellate bodies disposes of the cases with direction to comply by the application for information without ensuring its compliance. In such situations what happens is that the State Public Information Officers without complying with the order in full somehow make it appear its compliance thereby living the applicant in lurch again giving scope for another round of same procedure for obtaining information withheld. The Appellate Authorities and the State Information Commissions therefore have to bear in mind the compliance of its orders and the matter should be finally closed only after ensuring that the information has been duly provided to the citizen. In such event the State Public Information Officer under the fear of disciplinary action and other penalty will be force to comply by its directions within the specified time which in turn will bring down the number of cases by way of a second round.

    It is also seen that the Public Information Officers failed to appear before the State Information Commission on the date fixed for hearing. In such events, it is the duty of the State Information Commission to resort to the provisions of Civil Procedure Code for enforcing his attendance by way of issuing warrant. This would give a signal for all the State Public Information Officers to take the notice of State Information Commission seriously. This procedure however is not being resorted to. Many State Commissions including Kerala.

    It is submitted that the State Information Commissions quite often is seen disposing of cases without notice to the applicant. The applicant is not even served with copy of the orders at least some cases. May be by inadvertent omissions. Therefore the commissions have to ensure that the applicants are not only served with the copy of its orders but also its compliance before the file relating to the complaint or appeal is consigned to records finally.

   It is often seen that the orders of the State Information Commission being challenged under Article 226 of the Constitution of India before the Hon’ble High Court. High Court on entertaining this petitions even grant stay. The Commission is seen not showing any keenness to bring up these writ petitions for vacating the stay orders, with the result the relief granted to the applicant by the commission remains in suspended animation indefinitely defeating the very purpose of the object of the Act. Therefore it is highly necessary that the Commission bring up such matters for early hearing before the High Court and ensure its speedy disposal, assuming the role of a watch dog of the Act.

    The number of cases brought up before the State Commission is showing consistent increase on the one hand whereas its disposal rate is consistently going down. This trend if allowed to persist, that will lead to frustrating the object of the Act. In this circumstance, the State Information Commissions have to ensure not only the compliance of Section 4 of the Act but also attempt to revamp and rejuvenate the State Public Information Officers and its appellate authorities in effectively disposing the applications, rather than living them unaccountable for unnecessarily compelling the applicants to approach the State Information Commission for relief which otherwise could have been provided by diligent Officers. The Officers failing to discharge their obligation under the Act on different pretext not sanctioned under the Act have to be made accountable by personally making them liable for cost and compensations and even disciplinary actions for the injury caused to the citizen and public at large.

River Water treatment with Ferrous Chloride - A Hoax.The fact and myth behind the Hoax.

2009-12-31T00:23:00.000-08:00

Environment Impact Report
Submitted to the Government of Kerala
by the Peoples’ Environment Fact finding Panel
on the treatment of Njunangar Stream of Pampa River
using contaminated ferrous chloride.

1. A team consisting of environmental and human right activists, scientists and other experts on river system visited Pampa to study the pollution caused to the Njunangar stream of Pampa River by the entry of sewage waste from the septic tanks of the Travancore Devaswom Board and the impact of chemical treatment using contaminated ferrous chloride. Before undertaking such a trip, the samples of the River sediments of the chemical treatment of the previous year was taken from the pits near Njunagar stream on 15th December 2009, and on analyzing, the following heavy metals found in excess of the limits which circumstance compelled the team to take follow up action.

          Sl.No.   Parameters            Unit              Method                    Result
            1.       Lead as Pb          mg/kg       USEPA 3050 B                67.35
            2.       Cadmium as Cd   mg/kg       USEPA 3050 B                2.10
            3.       Zinc as Zn              mg/kg       USEPA 3050 B                97.80
            4.       Manganese as Mn mg/kg       USEPA 3050 B                158.79
            5.       Iron as Fe          mg/kg       USEPA 3050 B                 32016.98
            6.       Chromium as Cr    mg/kg       USEPA 3050 B                 85.81

2. The team comprising 1) Dr.N.Chandramohan Kumar, Head, the Department of Chemical Oceanography, Cochin University of Science and Technology (CUSAT), 2) Advocate P.K.Ibrahim, High Court of Kerala, Former Chairman of the Local Area Environment Committee-Eloor-Edayar 3) Purushan Eloor, Periyar Malineekarana Virudha Samithi and former member of the Local Area Environment Committee-Eloor-Edayar 4) Jacob V.Lazar, Treasurer, Peoples’ Union for Civil Liberties, 5) Dr.Thomas P.Thomas, Department of Botany, St.Thomas College, Kozhencherry 6) Dr.A.Latha, River Research Centre and 7) V.N.Gopinathan Pillai, Vice President, River Protection Council under the Convenorship of Mr.R.Ajayan, a prominent social and environmental activist reached Pampa at about 11 a.m. on 20-12-2009 and inspected Njunangar Stream, Sewage Treatment Plant at Pampa and collected river water samples and sludge of the previous year for being analyzed.

3. The 176 km long Pampa River, originates from Pulachimalai in the Western Ghats. Pampa is formed by the confluence of the Pampa Aar, Kakki Aar, Azhuthai Aar, Kakkad Aar and Kallar. The river mainly drains through Pathanamthita and Alappuzha districts before joining the Vembanad lake. The Sabarimala shrine is situated in the Pampa Aar catchment and Njunangar is a stream flowing near the Sabarimala shrine and joining Pampa Aar downstream . The stream called Njunangar joins at the point beyond Thriveni bathing ghat., All pilgrims are expected to take bath in the holy river before starting the long climb to the shrine. During the heavy pilgrimage season, the Pampa Aar turns into an open drain of night soil, garbage, sewage and other human waste. Pampa river has been identified as one of the most polluted rivers in Kerala beyond limits. Around 35 local self governments depend on this river for their drinking and irrigation needs.
4. According to people the tanks of the toilets and urinals at the Sabarimala get filled within two weeks in pilgrim seasons and the Njunangar stream virtually turn in to a sewage canal carrying human excreta causing air and water pollution. The scene is horrific. The water flow in the canal is very thin but the sewage discharge is overwhelming. The stream becomes a sewage canal causing serious water and air pollution all around its stretches. The only reason for such a sad state of affair is the absence of a Sewage Treatment Plant at Sabrimala. The septic tanks of the toilets and urinals, constructed in hundreds permanently and thousands for temporary use, become inadequate during season and thereby it overflows to the Njunangar water stream rendering the water body into a sewage canal. This is happening unabatedly over many years and all authorities concerned namely the Travancore Devaswom Board, The Department of Irrigation, Kerala Water Authority, The Health Department, Forest department, The Pollution Control Board and the District Administration unfortunately did nothing to find a permanent solution to this seasonal phenomenon. The authorities have shown interest only in short term measures exploiting the short memory of the people and lack of their collective action. The short term measure over the last two years under the recommendations of the Kerala State Pollution Control Board was to treat the Njunangar stream using contaminate ferrous chloride obtained from Cochin Minerals and Rutiles Ltd. as flocculent for sedimentation purpose.

5. What is shocking is the use of this contaminated ferrous chloride under the recommendation of the Pollution Control Board which has the information about its potential imminent damage to the environment. The concern of the people increased multifold on seeing various reports appeared in the Press and electronic media. It is in this background the panel visited Pampa to place the facts and myth before the public and concerned authorities for a permanent solution to the problem.

6. Contaminated ferrous chloride is a waste effluent of the Cochin Minerals and Rutiles Ltd., Edayar. The raw effluent was being discharged into Periyar River causing massive fish kill. The effluent is bluish, greenish or reddish. The change of colour from blue to green and to red shows different chemical forms of iron which include the oxidation of ferrous to ferric states and various complexes of ferrous and ferric in different pH ranges. The ferrous salts are highly reducing and when discharged into the water, the ferrous iron salts undergo oxidation absorbing dissolved Oxygen from river water and thereby decrease the dissolved Oxygen level in the water. The raw effluent from CMRL contains toxic heavy metals such as Zinc, Lead, Mercury, Cadmium, Copper, Nickel, Manganese, Hexavalant Chromium etc, along with a high concentration of ferrous chloride. These heavy metals were found in the samples of the river sediments taken from the outlet of CMRL in Periyar. The Local Area Environment Committee appointed by the Pollution Control Board on the directions of the Supreme Court Monitoring Committee on hazardous waste and management were able to bell the cat and Cochin Minerals and Rutiles Ltd was booked for violating the provisions of the hazardous waste (Management and Handling) Rules 1989 and Water (Prevention and Control of Pollution) Act, 1974. The Committee recommended for closure of the unit, but it was allowed to function only on the undertaking that the unit shall not discharge the raw effluents to the Periyar.

7. The Cochin Minerals and Rutiles Ltd. was the supplier of this raw effluent namely contaminated ferrous chloride to the Cochin Chemicals Ltd. of Dr.Sivasankara Pillai who is said to be the Godfather of the environmental scientists and Engineers of the Pollution Control Board and other consultants elsewhere. This unit had obtained authorization under hazardous waste (Management and Handling) Rules 1989, for 5 years from 30.3.2002, but found no hazardous waste disposal facility. The unit had no consent under Water (Prevention and Control of Pollution) Act, 1974. It was found not complying with any conditions of authorization issued under the hazardous waste (Management and Handling) Rules, 1989. The premises of the unit and adjacent land are found as hazardous waste disposal site. Trade effluents of other companies were found discharged in this unit. The unit had not filed any return to the Pollution Control Board as required under the authorization issued under hazardous waste (Management and Handling) Rules , 1989. Under the circumstance, Local Area Environment Committee ordered the closure of the unit and even recommended to cancel the accreditation given to Dr.P.Sivasankaran Pillai as an accredited environmental consultant.
8. The sewage treatment system at Sabarimala cannot be treated as a seasonal affair. It has to be a permanent ongoing process having due regard to the number of devotees visiting every month. The devotees at Sannidhanam on the first week days of every month are around 50000. On other days there are devotees and other staff. The sewage generated at Sabarimala Sannidhanam including the sewage of the seasonal generation should go for a biological treatment of permanent nature at Sabarimala itself by establishing a sewage treatment plant of adequate capacity. Such a plant once installed and stabilized will run without any interruption and can treat the sewage of fluctuating quantities including the quantity during the peak season. This simple mode of sewage treatment is economical and environmental friendly. It does not even remotely cause any environmental pollution and it can easily be maintained efficiently without any failure. One fails to understand why this time tested environmental friendly technology is not insisted to overcome the problem of pollution of such a magnitude of biological waste at Sabarimala. It is this aspect which needs to be probed to find out the vested interest of those who advocate chemical treatment of sewage using contaminated ferrous chloride.

9. The sediments of the sewage treatment plant are manure by itself. It can be flushed out to the forest without the fear of causing any environmental damage to the forest. There cannot be any dispute in the scientific community or for that matter among any environment activist that biological sewage treatment technology is not practical having regard to the volume of waste in particular seasons.

10. The process that takes place in biological treatment needs to be understood to appreciate its merit and advantages. It is a simple method of treatment with anaerobic digestion followed by aerobic reactions to achieve the prescribed standard for discharge. A sewage treatment plant before putting it to use required to get stabilized which now by the advance of technology requires only less than a week. In olden days for a biological treatment to stabilize the number of days taken was 45 but that was by using cow dung as nutrient for bacteria growth. Now bacteria are readily available in the market which can stabilize the biological treatment units in 5 days time. The fact that once the biological treatment is started and stabilized it runs without any hindrance on an un-assumable minimum cost and it operates faultlessly giving the required result. This being the merits of the biological treatment system, one fails to understand why the Pollution Control Board is not eager to insist the Travancore Devaswom Board to establish Biological Sewage Treatment Plant/Plants of adequate capacity.

11. It is a matter of common knowledge that prior to the invention of biological treatment technology the chemical treatment was in use which is called as Chemically Enhanced Primary Treatment (CEPT). In this treatment the sediments contained many environmental pollutants which had raised serious concern owing to the damage it caused to the environment. As the concern for the environment protection grew, the countries made the standard for discharge more and more strict which ultimately resulted in going for biological treatment system, as it is observed that in biological treatment system no additional pollutants are generated than what is contained in the sewage namely the Phosphates, Nitrates etc. The Pollution Control Board being an expert body cannot be said to be ignorant of these facts. However why the Pollution Control Board still remains a spokesperson of chemical treatment? This question raises serious doubt on the integrity of the persons who recommend chemical treatment using contaminated ferrous chloride in every season rather than insisting for a permanent sewage treatment plant which can take care of the sewage treatment irrespective of the seasonal variation.

12. Before coming to the issue in relation to the prose and cones of the use of contaminated Ferrous chloride for water treatment, it is profitable to understand the very nature of contaminated ferrous chloride supplied for water treatment by Dr.Sivasankara Pillai of Cochin Chemicals. The contaminated Ferrous chloride is an industrial waste of the CMRL, Edayar. This industrial waste is purchased by Cochin chemicals and is marketed in the name of Envirofloc which is technically called as ferrous chloride by the Pollution Control Board. The contaminated ferrous chloride contain heavy metals such as zinc, iron, led, mercury, cadmium, copper, nickel, total chromium, manganese, Hexavalant chromium etc. The Cochin Chemicals, without removing its heavy metals contents, market the same as en Envirofloc/ferric chloride. The contaminated ferrous chloride/Envirofloc/ is a hazardous waste being a chemical in the class E category of the Schedule 2 of the Hazardous Waste (Management, Handling and Transboundary) Rules 2008, and required in law to be dealt with as per the provisions of the Hazardous Waste (Management, Handling and Transboundary) Rules 2008. It is a Hazardous Waste under E3 and E4 having regard to its corrosive and toxic character regardless of concentration limit. Class E 3and E4 category of the Schedule 2 of the Hazardous Waste (Management, Handling and Transboundary) Rules 2008 waste is explained thus:
“Corrosive
Wastes which may be corrosive, by chemical action, will cause severe damage when in contact with living tissue.
Toxic
Waste containing or contaminated with established toxic and or eco-toxic constituents.”

13. The contaminated Ferrous Chloride has above 20% acidity and hence corrosive .Further it is toxic and cannot qualify the Toxicity Characteristic Leaching Procedure (TCLP Test). The use of ferrous chloride is therefore a serious violation of environmental law and permitting the use of contaminated ferrous chloride in violation of Hazardous Waste Management Handling and Transboundary Rules 2008 by the Pollution Control Board amounts to the fence eating away the crops by itself.

14. It is this Hazardous Waste that is used directly in Njunangar stream under the guise of water treatment. This chemical is used as a coagulant for settling the Phosphatic and Nitrogenous contents of the sewage as settled solids. But in the process, the heavy metal contents of the contaminated ferrous chloride such as zinc, iron, led, mercury, cadmium, copper, nickel, total chromium, manganese, Hexavalant chromium etc. also get settled as solids with Phosphatic and Nitrogenous contents of the sewage. The solids thus settled which contain heavy metals is discharged to the open environment causing serious damage to the living organisms. Discharge of sediments containing heavy metals cannot be legally allowed to be discharged into the open environment when it has the characteristics of a hazardous waste. Unfortunately, unmindful of this serious infraction of law, Pollution Control Board is permitting to pump the settled solids containing heavy metals periodically to the nearby forest. Why this illegal and prohibited activity is being allowed to take place, who is the beneficiary and at what cost are questions that Mr.Jayaprasad, the Chairman and the last word in Pollution Control Board has to answer.

15. The Chairman of the Board characterized the sewage sludge after chemical treatment as “manure as such” (compost) and “a soil conditioner” and therefore found no fault with its disposal to the forest. He however made a caveat when Dr.Viswas Mehta who was the Ex-Chairman of the Pollution Control Board challenged the claim of Mr.Jayaprasad that sludge after chemical treatment is as such a manure. He clarified that if there is any difficulty for marketing the sludge as manure; the same can be subjected to aerobic/anaerobic digestion and then disposed as manure and soil conditioner. Dr.Viswas Mehta then posed a question that if sewage sludge is manure as such, why the sludge should be treated again “if it already is a stable manure/soil conditioner”. This and other question that where does the sludge analyzed by the Board etc. remains still unanswered. On enquiry it is learnt that the Pollution Control Board in fact have not conducted Toxicity Characteristic Leaching Procedure (TCLP) test nor sludge analysis to come to a finding that the sediments after chemical treatment does not pose any environmental damage. The Board however permitted the use of contaminated ferrous chloride for water treatment and the disposal of waste generated there from into forest and other open areas. The use of contaminated ferrous chloride and disposal of the solid waste after the treatment into the land and water will find its way ultimately to the human being and other living organisms. The toxicity effect of excess Zinc is gastro intestinal distress, diarrhea, pancreatic damage and anemia. The excess Nickel is a carcinogenic and dangerous to aquatic life. Cadmium is a highly toxic both to plants and animals. Cadmium toxicity causes kidney damages. Chromium is a carcinogenic and it damages kidney and liver. Exposure to Copper will affect the fertility and embryonic sensitivity in the living organism. Lead is highly toxic substance, which can cause reduced IQ, attention deficit disorders, impaired hearing, kidney damage, increase in BP, fertility problem, nerves disorders etc. The toxic effect of exposure to iron leads to abdominal discomfort, lethargy, fatigue and shrinkage of liver followed by fibrosis and cirrhosis. When these heavy metals enter into the food chain, a very serious and hazardous phenomena called ‘Biological magnification or amplification’ of these toxic chemicals take place in the end consumers of the food chain. This is the beginning of such disastrous cycle in the ecosystem that cannot be allowed in any case for the sake of public health.
16. The sewage pollution from Sabarimala is mainly that of coliform bacteria count in the water. Coliform count is expressed as either total coliform or faecal coliform per 100 millilitre of water. Faecal coliform count is nearly half of total coliform count. Coliforms are present in the faeces of warm blooded creatures. Once it is discharged by the warm blooded creatures like animals and human beings, it does not survive beyond 48 hours. It is bound to die by exposure to air and sunlight. The coliform bacteria cause diarrhea, septicemia, thrombotic microangiopathy and urinary tract infection. The presence of coliform in water is indicated by the presence of pathogens and the various pathogens/bacteria is the cause for diseases such as Nematode worms, Anthrax, Dysentery, Tuberculosis, Paratyphoid fever, Typhoid fever, Food poisoning, Bacillary dysentery, Tapeworms, Cholera, Poliomyelitis, hepatitis. The total coliform count permissible in water for public bathing is 2500 per 100 ml. The coliform count has to be however zero in drinking water. The use of contaminated ferrous chloride cannot remove pathogens and therefore the diseases that pathogens causes cannot be prevented. Ferrous chloride is a coagulant that only helps in the settling of the suspended particles in the sewage and it is not effective in reducing the coliform count in the stream. The coliform count can be reduced only by disinfection process. The discharge of water after biological treatment cannot cause any BOD problem and therefore there is no threat to aquatic life. The best solution to treat the biological waste is the technology of biological treatment only compared to the threat of diseases that can be caused to human beings by heavy metals.

17. The justification of the Pollution Control Board for recommending chemical treatment is that it is an effective measure to treat water in short time. Recent studies in the water treatment field suggest that the use of titanium dioxide as semi conductors can be subjected to photo catalysis and this process can be used for water purification. Titanium dioxide being not present in the waste ferrous chloride, the photo catalysis is not possible by the use of ferrous chloride. Adding titanium dioxide in to the ferrous chloride will not help the process of photo catalysis since the application of titanium dioxide in the form of a powder suspended in water to be purified requires additional operation for separation of two phases, and requires immobilization of photo catalysts. Deposition of fine titanium dioxide powder on glass surfaces is the most common solution.

18. Water purification by the use of titanium dioxide does not require ferrous chloride as it is not a coagulant for this purpose. The direction of the Chairman to use titania also along with Ferrous chloride is a strange science. The stand of the Chairman, some how to use ferrous chloride under one pretext or the other, and for that a new chemicals combination not used elsewhere is also directed to be applied is totally unacceptable without any proof. In fact Water purification by the use of titanium dioxide does not require ferrous chloride as it is not a coagulant for this purpose.

19. If at all treatment with Ferric chloride is the only method of water treatment, the same can be done with industrial grade ferric chloride. Industrial grade ferric chloride is freely available in the market and is cheap and that does not have heavy metal contents as seen in the Ferric chloride of Dr. Sivasankara Pillai. This aspect is completely brushed aside obviously with vested interest at the cost of environment and health hazard.

20. In short, the chemical treatment using contaminated ferrous chloride is an act inviting an environmental calamity making the proverb “burning the house to kill the rat” literally true when there are effective technology in vogue for combating the menace of coliform bacteria with time tested proved technology. The Pollution Control Board unfortunately at the earnest indulgence of its Chairman has thrown to winds all the provisions of the environmental laws. The chairman of the Board has virtually made the environmental laws an onlooker. By doing so he has acted against public interest and directions of law which he is statutorily bound to give effect. This state of affair cannot be allowed to go even for a moment.

In the above circumstance, the people’s environmental fact finding panel recommends the following measures before the Government.

a)   Direct the Pollution Control Board to ban river water treatment in the state whether it be in Pampa or elsewhere using contaminated ferrous/ferric chloride/Envirofloc.
b)   Direct to remove the temporary bund constructed across the Njunangar stream and allow the stream to have its natural flow so that the air pollution and water pollution by retaining the polluted water in bund can be reduced
c)   Direct the Travancore Devaswom Board to establish biological sewage treatment plant/plants at Sabarimala Sannidhanam of adequate quantity for treatment of sewage from the toilets and urinals and make it functional throughout.

d)   Direct the Travancore Devaswom Board to ensure the sewage treatment plant at Pampa operational by curing all its defects.

e)   There are pits filled with sludge after the chemical treatment in river bunks and forest areas.Direct the Travancore Devaswom Board to remove these sludges of the chemical treatment of the previous years to a Temporary Storage Disposal Facility (TSDF)

f)   Issue order banning septic tank overflow to Njunangar stream and prosecute the persons including the officials of the Pollution Control Board for abetting the pollution in the Njunangar stream.

g)   Issue a direction to the Pollution Control Board not to permit the use Envirofloc/contaminated ferrous chloride except for treatment of industrial waste and ensure its solid waste for disposal at TSDF.

h)   Direct to assess the environmental impact consequent to the use of contaminated ferrous chloride/Envirofloc by the Department of chemical oceanography and department of Toxicology and Department of Environment of the Cochin University of Science and Technology.

Dated this the 25 December 2009.

Convenor       Mr.R.Ajayan.
Members       Dr.N.Chandramohan Kumar.
                      Advocate P.K.Ibrahim,
                      Purushan Eloor,
                      Jacob V.Lazar,
                      Dr.A.Latha
                      Dr.Thomas P.Thomas,
                      V.N.Gopinathan Pillai,

Investigation in Love Jihad case stayed by High Court of Kerala.

2009-12-17T06:24:00.000-08:00

“Conduct of the Investigating Officer shocks the judicial Conscience.” Says High Court.

Read the interim order.

M.Sasidharan Nambiar,J.
Crl.M.C.Nos.3836 &3837 of 2009.

Common Order

1. On going through the case diary , conduct of the Investigating Officer shocks the judicial Conscience. Under section 162 of the Code of Criminal Procedure , no statement made by any person to a police officer in the course of an investigation under this chapter, shall if produced to writing be signed by the person making it. It is strange to note that in the statements of the two victims recorded by a senior police officer not only their signatures, but also their thump impressions were taken in every page of their statements, in flagrant violation of the mandatory provisions of the code. It cannot be believed that the police officer is ignorant of the mandatory provisions of the code. It is not a fact to be ignored. Criminal Justice system cannot be taken for a ride.
2. In such circumstances, Assistant Commissioner of Police , Cantonment Police Station is directed to file an affidavit by 23.12.2009, under what circumstances and what authority in the statements of the two ladies , who are educated up to MBA recorded under 161 of the Code of Criminal Procedure, their signatures and thump impressions were obtained in every page of their statements. Interim stay of further investigation in the case until further orders. Post on 6.1.2010.

See the old post "Human Right aspects of "Love Jihad": A phrase coined by the Hindu Fanatics to advance hate politics: A barbaric and shameful acts" Published on Tuesday December 2009 to read the Crl.M.C filed for quashing the FIR.

Kerala High Court Judgement on Love Jihad, Romio Jihad.

2009-12-14T09:15:00.000-08:00

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
WEDNESDAY, THE 9TH DECEMBER 2009/18TH AGRAHAYANA 1931
Bail Appl..No.5288 of 2009
CRIME NO: 1102 OF 2009 OF TRIPUNITHURA HILL PALACE POLICE STATION

PETITIONERS: ACCUSED 1 & 2:

1. SHAHAN SHA A., AGED 23,

S/O. AKBAR SHA,

KEECHERIYIL HOUSE, PETTA,

PATHANAMTHITTA.

2. SIRAJUDEEN M., AGED 27,

S/O MEERA SAHIB, KOTHUVAL VEEDU,

PETTA, PATHANAMTHITTA.

BY ADV. SRI.K.S.MADHUSOODANAN

SRI.T.V.JAYAKUMAR NAMBOODIRI

SRI.THUSHAR NIRMAL SARATHY

SRI.M.M.VINOD KUMAR

SMT.K.M.RAMYA

RESPONDENT: COMPLAINANT & FORMAL PARTY:

STATE OF KERALA,

REP. BY ASSISTANT COMMISSIONER OF POLICE,

CANTONMENT SUB DIVISION,

THIRUVANANTHAPURAM CITY.

DIRECTOR GENERAL OF PROSECUTION SRI V.G.GOVINDAN NAIR

PUBLIC PROSECUTOR SRI.C.K.SURESH

PUBLIC PROSECUTOR SRI.M.S.BREEZ

SRI.T.P.M.IBRAHIM KHAN (ASST.SOLICITOR)

SRI.MANJERI SUNDERRAJ

SMT.K.K.PREETHA

THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09/12/2009, ALONG WITH BA NO.5289 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

K.T.SANKARAN, J.
B.A.NOS. 5288 & 5289 OF 2009
Dated this the 9th day of December, 2009

O R D E R

   When these Bail Applications came up for hearing on 29th September, 2009, the following order was passed:

   “These Bail Applications are filed by Shahan Sha and Sirajudeen, the accused persons in Crime Nos.1102 of 2009 of Tripujnithura Hill Palace Police Station and Crime No.451 of 2009 of Peroorkada Police Station, for anticipatory bail under Section 438 of the Code of Criminal Procedure. The offences alleged against them are under Sections 120-B, 295-A and 377 read with Section 34 of the Indian Penal Code.

   2. In this order, the names of the victim girls are not disclosed. No person, including the media, should disclose their names. For the sake of convenience, I would refer to the victim girls as the “Hindu girl” and the ‘Christian girl”.

   3. It would appear that the Hindu girl fell in love with Shahan Sha, the first petitioner in these Bail Applications. Shahan Sha is a Muslim. The victim girls were studying for MBA course. They are friends. Shahan Sha was their senior student in the college. At one point of time, he was expelled from the college. It would appear that the relationship between the Hindu girl and Shahan Sha started as a result of a telephone call. The intimacy developed. From the inception onwards, it is alleged that Shahan Sha spoke ill about Hindu religion and its tenets, beliefs and traditions. The Hindu girl was taken to Shahan Sha’s house. She was taught the custom of the Muslim community, the mode of prayers and what should be done by a person in the normal life as a Muslim. Shahan Sha’s mother was there in the house and she co-operated with Shahan Sha. Shahan Sha was constantly compelling the girl to convert to Islam. She was in utter confusion. It is alleged that Shahan Sha stated to the girl that unless she converted into Islam immediately, their relationship would come to an end. At last, she agreed.

   4. In the meanwhile, Shahan sha and the Hindu girl had contact with one Shaji, who was running a DTP Centre. Shahan Sha and the girl used to go there for taking copies of documents. It is alleged that Shaji used to speak ill about Hindu and Christian religions. The Hindu girl and the Christian girl used to go to the shop of Shaji. The girls were also told that their respective religion is not good and the only way to attain salvation is to embrace Islam.

   5. Without the knowledge of the Christian girl, the Hindu girl was once taken to Ponnani by Shahan Sha. They stayed in a room. It would appear that Shahan Sha made some sexual advances towards her. However, it did not culminate in sexual intercourse.
   6. The pressure mounted on the two girls to convert to Islam. They were directed to meet a person in a mosque. He also pressurized them to immediately convert to Islam. The girls were directed to come out of their house. Planning was made and the girls were instructed to comply with the directions given by Shahan Sha and his associates.

   7. Accordingly, at about 3 AM on 18.7.2009, the Hindu girl was ready to come out of her residence. After some time, one Yasin gave her a missed call, which was the indication to come out of the house. She came out of the house with the help of Yasin. She was taken in a Scorpio car. Two ladies wearing Pardah were there in the car. After the Hindu girl entered into the car, she was compelled to wear Pardah. She obeyed.

   8. While traveling in the car, the compact discs of Popular Front, an alleged extremist organization, was being played. They proceeded to Ernakulam.

   9. The Christian girl also came out of her residence in the early house in a similar manner. The persons who took the Christian girl met the Hindu girl at Ernakulam. The Hindu girl was taken to a house at Ernakulam in a different car. In that car, one Ali and Nishad, stated to be the activists of Popular Front, were traveling. The Christian girl was also brought to that house.

   10. The girls were directed to contact their parents over mobile phone from a place different from the place where they were taken, in order to avoid locating them by ascertaining the mobile tower station. Accordingly, from a different place, they contacted their parents and as directed, they stated to their parents that they were going to Ponnani to convert to Islam. The telephone call was snapped thereafter. The two girls stayed in the house at Ernakulam till the next day. On the next day, they were taken by one Khadeeja, who is stated to be the organizer of the Women Wing of Popular Front. One Nishad was also there with her. They took the girls in a Lancer car to Malappuram. They reached the residence of Haneefa Haji. After ten minutes, they were taken to another house at Kondotty. They were made to stay there for two weeks. Thereafter, they were taken to the house of Haneefa Haji, where they stayed for two weeks. The girls were visited by the members of Popular Front regularly.

   11. There is no case that the Christian girl was in love with anybody. But when the girls were staying at the house of Haneefa Haji, several persons were brought to that house to see the Christian girl. Though a Dentist who came to see the Christian girl was willing to marry her, his parents were not willing. It is alleged that the proposal was to give in marriage the girls to somebody else. On 6.8.2009, Shahan Sha and one Shiraj met the Hindu girl and asked her whether she was willing to marry Shahan Sha. The girls came to know that the plan was to take them to Bangalore and to give them in marriage to somebody else. Two or three persons came there to see the Christian girl and to marry her. At last, Shahan Sha brought his friend Sirajudeen, (the second petitioner) a K.S.R.T.C. Bus conductor to the scene.
   12. Meanwhile, a Habeas Corpus petition was filed by the parents of the missing girls. A direction was issued by a Division Bench of this Court to find the whereabouts of the missing girls. On 12.8.2009, the girls were taken by Shahan Sha and Shiraj to an Advocate’s Office at Calicut. Two “deeds of agreements to marry” were executed. The girls were made to sign the documents. One agreement was between Shahan Sha and the Hindu girl and the other was between Sirajudeen and the Christian girl. They were brought back to Haneefa Haji’s house, During night, Shahan Sha stayed with the Hindu girl and Sirajudeen stayed with the Christian girl. On that night, the Christian girl was subjected to unnatural sex. It is alleged that an offence under Section 377 of the Indian Penal Code was committed.

   13. Later, Shahan Sha and Sirajudeen appeared before the High Court along with the girls. The girls were not willing to go with their parents. The court persuaded them. At last, they agreed. It was with certain conditions that they were prepared to go with their parents. Those conditions were stipulated by Shahan Sha and Sirajudeen. After a few days, the girls appeared before court and stated that they were not willing to go with Shahan Sha and Shirajudeen. The Division Bench permitted the girls to go with their parents. However, the articles belong to the girls were with Shahan Sha and Shirajudeen. It would appear that they “gracefully” agreed to return the articles to the girls. The Divisio Bench was also pleased to pass an order not to arrest Shahan Sha and Sirajudeen for a limited period. The Division Bench made an attempt to settle the matter between the parties. The parents of the girls stated that they were not wiling for a settlement. Their view was that let the law take its own course. The Habeous Corpus petition is stated to be pending.

   14. The case diary would further reveal that several compact discs were given by Shahan Sha to the girls. Most of them were obscene films. Several books were also given to them to persuade them to convert to Islam.

   15. The girls stated to the police that Shahan Sha and Shaji specifically directed them not to disclose to the police that the activists belonging to Popular Front were assisting Shahan Sha and Sirajudeen for implementing the idea of converting the girls to Islam. The girls are of the view that in the whole episode, their religious faith was questioned and Shahan Sha, Shaji and Sirajudeen insulted the religious faith and tenets of the respective religion of the girls with deliberate and malicious intention of outraging their religious feelings.

   16. I have perused the case diary file. There are indications that several similar instances took place in the State of Kerala. It is stated that there is a movement of project which is called “Romeo Jihad” or “Love Jihad” conceived by a section of the Muslims. The idea appears to be to convert girls belonging to other religions to Islam. It is stated that Muslim boys are directed to pretend love to girls of other religion and get them converted to Islam. Lot of money is available for executing the project. There are men whose help is available at any time. Organizations are also there to implement the project.

   17. Before disposing of these Bail Applications, I am of the view that some additional information with regard to the number of similar cases which occurred during the last three years in the State of Kerala is required. The Director General of Police shall file a statement within a period of three weeks from today, touching upon the following aspects: (1) whether there is a movement called “Romeo Jihad” or “Love Jihad” working in the State of Kerala? (2) If so, what are their plans and projects? (3) Which organizations are involved in such activities? (4) Where does the money come from for all these activities? (5) How many school and college students and youngsters were thus converted into Islam during the last three years? (6) Does the alleged project involve an all India basis and magnitude? (7) Has it got financial support from abroad? (8) Is there any connection between the “Love Jihad” movement and counterfeiting, smuggling, drug trafficking and terrorist activities?

   18. Every citizen of India is entitled to freedom of conscience and the right freely to profess, practice and propagate religion as enshrined in Article 25 of the Constitution of India. This right does not extend to the right to compel a person professing a religion to convert to another religion. Compulsion is alien to the right conferred under Article 25 of the Constitution of India. The freedom of one man should not entitle him to encroach upon the freedom of another.

   19. In the facts and circumstances, I think the views of the Central Government are also material in deciding the questions involved in the case. Issue notice to the Assistant Solicitor General of India. Registry shall furnish a copy of the Bail Applications and a copy of this order to the Assistant Solicitor General of India. A copy of this order shall also be communicated by a Registry to the Secretary, Home Affairs, New Delhi. A statement shall be filed by the appropriate person on behalf of the Central government pointing out their views in the matter of combating the activities of compulsive conversion of religion. The statement shall also indicate all the necessary information regarding “Romeo Jihad” or “Love Jihad”. The statement shall be filed within three weeks.

   20. Learned counsel for the petitioners submitted that the Division Bench was pleased to issue an order not to arrest the petitioners till 30.9.2009, pending disposal of the Habeas Corpus Petition. The counsel submitted that there may be an interim direction not to arrest the petitioners. I am not inclined to pass any such order in the facts and circumstances of the case.

   21. Learned counsel for the petitioners submitted that the Division Bench was convinced that no offence was committed by Shahan Sha and Sirajudeen and, therefore, there is no ground on which anticipatory bail should be refused to the petitioners. I am not inclined to accept the contention of the learned counsel for the petitioners. The question whether Shahan Sha and Shirajudeen were guilty of any offence was not in issue before the Division Bench. Therefore, there was no opportunity for the Division Bench to pronounce upon such matters. In fact, the Division Bench has not stated anything, in the various orders passed by them, on that aspect.

   22. The counsel argued that the victim girls were present before the High Court on three occasions and the Honourable Judges of the Division Bench had occasion to interact with the girls. The counsel points out that the girls did not state to the Honourable Judges that they (the girls) were compelled to convert to Islam or that the offence alleged was committed by Shahan Sha and Sirajudeen. I do not think that this is a material fact while considering the application for anticipatory bail. The questions which came up for consideration before the Division Bench were entirely different. The orders passed by the Division Bench do not, in my view, affect the investigation of the case or the arrest of the petitioners. Post after two weeks”.

   2. The Director General of Police, Kerala, filed a statement dated 18th October 2009, the relevant portion of which is extracted below:

   “2. It is submitted that on receipt of the order dated 29.10.2009, enquiries were made to ascertain whether any such compulsive religious conversion in the manner referred to in the order is taking place in the State of Kerala. The enquiries thus conducted have yielded the following information with regard to the questions raised by this Hon’ble Court in respect of compulsive conversion.

Qn. (1) Whether there is a movement called “Romeo Jihad” or “Love Jihad” working in the State of Kerala?

Ans. No organization or movement called “Love Jihad” or “Romeo Jihad” is so far identified as working in Kerala.

Qn. (2) If so, what are their plans and projects?

Ans. As stated above, there is no clear evidence regarding the operation of such an organization.

Qn.(3) Which organizations are involved in such activities?

Ans. It is not established that any particular organization is actively engaged in such compulsive religious conversions.

Qn.(4) Where does the money come from for all these activities?
Ans. No reliable evidence is so far available in this regard.

Qn.(5) How many School and College students and youngsters were thus converted into Islam during the last three years?
Ans. Except for the two cases under consideration now, no specific complaints have been received regarding such compulsive love based conversions. In the two case under consideration before the Hon’ble Court, Police have registered cases and are actively investigating the matter.

Qn.(6) Does the alleged project involve an all India basis and magnitude?
Ans. There is no clear evidence so far regarding this aspect.

Qn.(7) Has it got financial support from abroad?
Ans. There is no reliable evidence so far regarding financial support from abroad.

Qn.(8) Is there any connection between the ‘Love Jihad’ Movement and counterfeiting, smuggling, drug trafficking and terrorist activities?
Ans. There is no concrete information regarding this.

   3. Further, it is humbly submitted that certain allegations have recently cropped up indicating that some organizations have devised plans for compulsive or deceitful religious conversions by willing over girls. The police is seriously looking into these allegations and appropriate legal action would be initiated if the allegations are found to be true in any particular instance. No actionable information has been received by the Police so far to confirm the fact that any organizations is indulging in such activities.

   4. However, it is understood that a very large number of inter-religious marriages are taking place every year and that many conversions are taking place on that basis. The exact details or the exact numbers of such marriages are not readily available with any police agency. At the same time, there are reasons to suspect that there are concerted attempts to persuade girls to change their religion after they fall in love with Muslim boys. There is also unconfirmed source information received by the department that some groups are actively working among youngsters encouraging conversions by such techniques; that young men who are engaged in such pursuits are said to be receiving funds from abroad directly or indirectly for purchasing clothes and vehicles and for availing legal help etc; that they have links with other places in India also.

   5. In view of the existence of such complaints, allegations and source information, the Police are now actively trying to collect maximum information in this regard and to specifically identify actionable instances. The fact is that hardly anybody comes forward with any complaint to the Police in these matters. However, the Police will remain pro actively vigilant and take action in all instances where any reasonable suspicion exists that undesirable illegal liaisons are being attempted with any ulterior purpose of compulsive conversion.

   6. It is humbly submitted that police would take stern lawful action against compulsive or deceitful religious conversions whenever and wherever such incidents are discovered. The intelligence agencies of the Kerala Police are also being tasked to monitor the activities of any organizations and groups alleged to be indulging in compulsive religious conversion”.

   3. When the Bail Applications came up for hearing, it was noticed that some of the answers furnished in the Statement filed by the Director General of Police are vague and that many of the statements do not reconcile with each other. The Director General of Police was directed to produce in a sealed cover the reports which he received from the District Superintendents of Police and/or any other subordinate officers and all other materials on the basis of which the statement was prepared. It was also observed that the Director General of Police may also file an additional statement, if found necessary by him.

   4. Accordingly, the Director General of Police filed another statement dated 9th November 2009. For the sake of completeness and convenience, the statement is extracted below:

   “It is submitted that this Hon’ble Court, by order dated 29.09.2009, had directed me to file a statement and to give answers to eight questions specified in the order. Accordingly, I had submitted a statement before this Hon’ble Court based on information available from subordinate units. After perusing my statement, this Hon’ble Court vide order dated 26.10.2009 directed me to produce the reports and materials based on which my statement was submitted and also to file an additional statement, if felt necessary. Accordingly, this statement is filed.

   2. I submit that the separate answers to the eight specific questions raised by this Hon’ble Court were made on the basis of the contents of the reports received from various subordinate officers, through written reports and oral submissions from them. The confirmation of the oral submissions also were subsequently received in writing. Such information indicated that no concrete and sustainable evidence was available to establish that an organized movement called ‘Love Jihad’ was operating in the State of Kerala. There was no reliable evidence in such reports to indicate a specific positive or definitive answer to many of the questions posed by the Hon’ble Court.

   3. I submit that, at the same time as part of the above reports, I had received some information from some units based on source inputs, which suggested the clandestine designs of certain groups aimed at religious conversion through deceitful means, inter alia, under the guise of love. These inputs form part of reports marked No.16 to 18 in the sealed cover. The contents of these reports were relevant to the questions posed by this Hon’ble Court but were at variance with the contents of the other 15 reports. At the same time, the contents of these three reports also were not backed up with supportive evidence to come to a positive finding. Mention was made of these aspects also in the latter part of the statement dated 18.10.09 submitted before this Hon’ble Court to give a complete picture of the matter. The information contained in the three reports, though not substantiated, was relevant in the consideration of the questions put to me by this Hon’ble Court and hence I had submitted those aspects also.

   4. It was specifically submitted in para 4 of my report dated 18.10.09 that this part was based on source information. Source reports are often based on hearsay. They are usually not supported by any direct evidence. Such reports often require to be clarified and substantiated by sustainable evidence. They also cannot be asserted as true unless there is supporting material. It may be noted that no cogent and coherent materials were available in the three reports mentioned above to make an unambiguous statement regarding the truth of the allegation of compulsive religious conversion. However, the contents of the said reports warranted further enquiries which I had caused to be made, as already submitted in Para 05 of my report dated 18.10.2009.

   5. It is further submitted that my separate answers to the specific questions are based on such set of facts which could be substantiated by reliable evidence. However, the substance of the source information based on which enquires were taking place were also brought to the notice of this Hon’ble Court. It is respectfully submitted that I could not come to a definite all-inclusive finding due to the divergence which existed in the contents of reports received from different subordinate units which formed the basis of my report to this Hon’ble Court. The reports so received are submitted herewith in a sealed cover, numbered as 1 to 18 as mentioned earlier, in obedience to the direction of this Hon’ble Court”.

   5. I have examined the eighteen numbers of reports produced in the sealed cover. Fourteen out of the eighteen reports are cryptic. One report says” “I am herewith forwarding a NIL report favour of information and further necessary action”. The other thirteen reports generally answer question No.1 as “not detected in the ……..District”, “the activities of ‘Romeo Jihad’ or ‘Love Jihad’ has not been noticed so far in the District”, “not working in the District”, there is no such organization working in the District” etc. The rest of the questions are answered as “NA” or “not applicable”. No useful information, either way, is disclosed in the aforesaid fourteen reports. It is also not stated in the reports on what materials or information or enquiry those reports were prepared.

   6. One out of the eighteen reports mentions about the religious conversion centres run by Muslims and Hindus in Kozhikode city.

   7. Three out of eighteen reports, provide some details. One report says about the functioning of an organization called “Smart Front” in two colleges.

   8. Another report says that the enquiry by the Special Branch reveals that “fundamental outfits like NDF, PFI, Campus Front has roots in the college campuses” in the City referred to therein. Referring to Campus Front, it is stated in the report thus: “As per the available information, the plan of this organization is to trap brilliant upper caste Hindu and Christian girls from the well to do family, especially those who are studying for professional courses and employed in IT sectors”. It is also stated in the report thus:

   “3. It is believed that Muslim Organisation like Muslim Youth Forum and Muslim Women’s organization like Thasreen Millat, Shaheen Force, Popular Front of India, National Democratic Front and its students organizations like Campus Front are the organizations behind the so called Love Jihad movement.

   4. There is no concrete evidence to show the financial status of the organization. But it is known that they get support and financial assistance from National Democratic Front and Popular Front of India. Some other Muslim fundamental organizations are also arranging money from some foreign countries in Gulf. But the veracity of this information has to be ascertained”.

   9. The aforesaid report also says that more than 100 instances of religious conversion took place in Thiruvananthapuram District with the help of the activists of the organizations referred to above. The names and address of the boys and girls in 31 such cases are shown in the report. The report further says:

   “6. So far there is no evidence to show that the love jihad organizations have operations in all over India. But it is said that the programme was started during 1996 with the blessings of Muslim Organisations.

   7. No reliable information has been received with regard to the financial assistance from aboard for the so called love jihad activities. But during the enquiry it was found that some active sympathizers had gone to Gulf and they are giving financial support to their supporters. But the veracity of this is yet to be ascertained”.

   10. The last out of the eighteen reports contains the following details. There is no information that any organization under the name and style “Love Jihad” or “Romeo Jihad” is functioning in Kerala. However, the students’ wing of NDF and PFI, known as Campus Front is known to be promoting religious conversion in educational institutions and professional colleges. This report also mentions about the involvement of Muslim Youth Forum, Shaheen Force etc. in these activities. Certain organizations in Saudi Abrabia are providing financial assistance to these activities under the head “scholarship” to the youth. Accurate number of religious conversions are not available. As per one statistics, during the last four years, a total number of about 3000 to 4000 religious conversions after love affairs have taken place. Another statistics is that 2800 girls were thus converted into another religion. In Kasargod, Kannur, Kozhikode and Malappuram Districts, 1600 incidents of such conversions have taken place. The report also indicates about similar activities in Uttar Pradesh, Pune in Maharasthtra, Bangalore in Karnataka where it is learnt that several Hindu girls were converted to Islam. The report concludes by saying that the intelligence Wing is of the view that such love marriages may invite frictions in the society.

   11. It is interesting to note that though the last mentioned report shows that 1600 incidents of conversions had taken place in Kasargod, Kannur, Kozhikode and Malappuram Districts, the reports received from the District Superintendents of those Districts do not indicate the same. It is also interesting to note that though the Superintendents of Police state that no incidents of such conversions were noticed, some of the superior officers have reported otherwise.

   12. On 26.10.2009, the Assistant Solicitor General of India submitted that he had received oral instructions in the matter. He sought for further time to file a statement signed by a responsible person. Time was granted till 11th November 2009. On that date also, two weeks’ further time was prayed for and it was granted. The case was posted to 1st December, 2009. On that date, the Assistant Solicitor General submitted that a statement was being filed. A copy of the statement was handed over in open court. The copy handed over was a letter dated 18th November 2009 sent by Sri Y.K.Baweja, Director (NIC), Ministry of Home Affairs to the Assistant Solicitor General of India (enclosing the statement to be filed before High Court) and a copy of the statement. However, it was later reported by the Registry that no statement was filed in Court. The copy handed over in open court is taken on record. The submissions made by the Assistant Solicitor General of India were also in tune with the statement. The statement is not signed by anybody. In the statement submitted on behalf of the Ministry of Home Affairs (referred to above), it is stated that secularism is a basic principle of the Indian Constitution. After quoting Article 25 of the Constitution of India, it is stated thus:

   “2. The freedom guaranteed by the Constitution is to profess, practice and propagate religion. The act of practice is concerned primarily with religious worship, ritual and observations. Propagation is concerned with right to communicate beliefs to another person or to expand the tenets of one’s religion but does not include a right to forcible or compulsive conversion. Any use of force or allurement for propagation of religion is illegal and may cause law and order problems. ‘Public Order’ and ‘Police’ are the State subjects as per the Constitution of India and hence prevention, detection, registration, investigation and prosecution of crimes are primarily the concerns of the State Governments/UT Administrations.

   3. The State Governments can enact legislations providing for prohibition of conversions from one religion to another by use of force or by allurement/inducement or fraudulent means. The State Governments of Arunacdhal Pradesh, Gujarat, Himachal Pradesh, Madhya Pradesh and Orissa, by exercising their powers in this behalf, have enacted legislations to prohibit any person to convert or attempt to convert, either directly or otherwise, any person from one religious faith to any other religious faith by the use of force or by inducement or by any fraudulent means, which are the measures to maintain public order. The Centre is not contemplating any move to make a centralized law on the issue”.

   13. Meanwhile, on 21st October 2009, the petitioners filed petition in each case to withdraw the Bail Applications. The relinquishment letter issued by the counsel appearing for the petitioners was also attached with the petitions. The Registry noted defect in the application. Instead of re-presenting the same, the petitioners sent the applications to the Registrar, High Court of Kerala, by registered post. The procedure adopted by the petitioners was not proper.

   14. In the petition dated 21st October 2009, the petitioners have narrated the various incidents and how they happened to take the girls out of their homes to rescue them from the alleged illegal confinement of their parents. It is also stated in the petition thus:

   “5. Considering the feeling of insecurity, the 1st petitioner offered to marry Ms……….(name omitted). The 2nd petitioner who had close acquaintance with the 2nd petitioner for nearly 2 years decided to marry Ms………………(name omitted). Petitioners were advised to swear to an affidavit before the Notary to be shown before the police officials that they are together living as husband and wife and that there is no compulsion in their relationship and that they embraced Islam voluntarily without any force or coercion. The said affidavit was sworn on 12.8.09. On the same day evening, the petitioners married Ms……….and Ms…………respectively as per Islamic rites at the house of Haneefa Haji at Kozhikkode. Since the marriage was taken place not at the instance of any Mahal, no certificate could be obtained for proving marriage”.

   15. In paragraph 16 of the petition sent by the petitions it is stated thus:

   “This Hon’ble Court by Order dated 29.9.09 was pleased to pass an elaborate order that has totally shattered the petitioners’ faith in the impartiality of this Hon’ble Court. The use of Terminologies like Hindu Girl, Christian Girl and Muslim in the order virtually caused communal polarization across Kerala and even beyond Kerala Territory. Though the court, out of concern for the future of the “victim girls” preferred to keep their name in anonymity and preferred to call them as Hindu girl and Christian girl, not appreciating its consequence of causing communal division in the society. The Court not satisfied by taking the name of the petitioner, even described him as Muslim lest people may miss the religious identity of the petitioner. The court just allowed it to be a ploy in the hands of the communal forces that laid the trap of dividing the society on communal grounds. What happened is unfortunate not only for the petitioners but also for the institution as well. The damage it has done is colossal. The media also followed suit”.

   16. In the petition, there are several other insinuations as well against the Court. After quoting several sentences in the order dated 29.9.2009, the petitioners have made comments which border on contempt of court. I have no doubt that the petition was prepared by somebody else not by the petitioners. The intention of making a scathing attack on Court is also obvious. However, I do not propose to proceed further in the matter. I am inclined to forget and forgive. The petitioners conclude the petition by quoting from the Holy Quraan. I quote the statement:

   “In the circumstance petitioners pray that the above petition for anticipatory bail may be allowed to be withdrawn as not pressed and we may be left to our fate allowing the law to take its own course for the petitioners believe that “if Allah afflicts you with evil, none can remove it but HE: And if HE blesses you with good fortune, none can prevent it: Know that HE has power over all things” (Quraan. Sura – 6 Verse 17)”

   17. I leave it at that. But, in the facts and circumstances of the case, I am not inclined to allow the petitioners to withdraw the applications for Anticipatory Bail.

   18. The “Association for Human Rights (AHR) has filed Criminal Miscellaneous Application No.6651 of 2009 for the following reliefs:

“(A) ORDERS directing the respondent State of Kerala, Kerala Police Department, the Media persons, Print and visual to refrain from and to avoid further deployment of the usage “LOVE JIHAD” OR “Romeo Jihad” in relation to investigations of love trap cases conducted in Kerala: AND

(B) to pass such other or further orders as are in all the circumstances of the case deemed fit, just and necessary to restore sanity in public/civic life in the State of Kerala”.

Since the affected parties are not parties to the application and the subject matter dealt with in the application is beyond the scope of the matters involved in the case, I am not inclined to entertain the Application. Leaving open the right of the petitioner in the application to seek appropriate remedy, Crl.Misc. Appln.No.6651 of 2009 is dismissed.

   19. Our nation consists of citizen belonging to different religions, communities, castes and creeds. All are citizens of India. All have equal rights. All the citizens have the fundamental rights enshrined in our Constitution. A citizen of India is entitled to freedom of conscience and the right freely to profess, practice and propagate religion as enshrined in Article 25 of the Constitution of India. Our laws do not prohibit inter religious or inter-caste marriages. True, religions have their own sanctions, faith and culture. When pitted against the Constitution and the laws, the religious sanctions cannot override the former. Our constitution and the laws take care of religious faith, traditions and custom.

   20. Inter religious marriages, arising out of love affairs or otherwise, are to recognized and promoted. To solemnize such marriages, there need necessarily be any conversion of one party to the marriage from one religion to another. If a boy or girl believes that a marital union is not possible without the other party to love converting to his or her religion, it is his or her faith. But in such cases, it is not love that is prominent, but religion. Forcible, compulsive or deceitful conversion take place in such case. Nobody would say that it is a healthy trend. Love is divine. It has no barriers of religion, caste or creed. But under the pretext of love, there cannot be any forcible, compulsive or deceitful conversion. It destroys the divine and sublime love.

   21. The Honourable Supreme Court in Lata Singh V. State of U.P. and another: (2006) 5 SCC 476 has emphasized the need for protecting the parties to inter caste and inter religious marriages. It was held: “This is a free and democratic country, and once a person becomes major he or she can marry whosoever he/she likes”.

   22. From some of the reports submitted by the police officers concerned to the Director General of Police, it is clear that there is a concerted effort to convert girls belonging to particular religions to another religion. It is also clear that this is being done with the blessings of some outfits mentioned in the reports. This should be of great concern to the people at large and to the Government. The Government is bound to protect the fundamental rights and civil rights of citizens. Article 25 of the Constitution of India does not entitle a person to indulge in activities for compulsive religious conversion. Compulsion is alien to the right conferred under Article 25 of the Constitution of India. The freedom of one should not entitle him to grab the freedom of another.

   23. The rights of the parents to bring up their children in the way all of them like, also cannot be lost sight of. Simply because a boy or girl has become major, that does not mean that the parents have no say in the matter of their future and their career. The parents are entitled to protect their children. The parents are entitled to advise their children and mould their career. The right conferred under Article 25 of the Constitution does not enable a stranger to deny the rights of the parents of the girls. Article 25 is aimed at protecting individual freedom. It is not aimed at destroying the family set up and culture. In our country, there are laws for protecting the rights of parents. There are also laws compelling the parents to provide for even major children, in certain circumstances. The laws in our country are aimed at protecting the rights of our citizens and protecting the culture and traditions of our citizens.

   24. The fundamental right enshrined under Article 25 of the Constitution of India that “all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion” is subject to “public order, morality and health and to the other provisions of Part III of the Constitutions of India. Educational institutions, professional colleges and other institutions where the young people are engaged in their pursuit for learning and acquiring knowledge are not certainly the breeding grounds for propagating religion. The framers of the Constitution would not have thought of converting educational institutions as the venue for propagating religion and for promoting religious conversion.
   25. As rightly pointed out in the statement submitted on behalf of the Ministry of Home Affairs, Government of India, the act of practice of religion is concerned primarily with religious worship, ritual and observations. Propagation takes in the right to communicate beliefs to another person or to expand the tenets of one’s religion. It does not include a right to forcible or compulsive conversion. Any use of force or allurement for propagation of religion is illegal and may cause law and order problems.

   26. The statement submitted on behalf of the Ministry of Home Affairs, Government of India, is also relevant on another aspect. Some of the State Government have enacted legislations to prohibit any person to convert or attempt to convert, either directly or otherwise, any person from one religious faith to any other religious faith by the use of force or by inducement or by any fraudulent means. In the scenario in the State of Kerala, it is for the people of the State, the Government and the legislators to consider whether any such law should be enacted for the State of Kerala. Let not our people fight against each other in the name of religion and faith. Let not our children be compelled to deviate from their path of pursuit of knowledge and learning. Let our children turn out to be the best citizens of our nation. Let them live freely in the joyous atmosphere of educational institutions. Let love be sublime, divine and free from any other consideration. If some of the students want to become religious scholars, let them do so, but not at the peril of other students.

   27. Considering the facts and circumstances of the case and the nature and gravity of the offence alleged against the petitioners, I am not inclined to grant the discretionary relief under Section 438 of the Code of Criminal Procedure in their favour. The petitioners are not entitled to the discretionary relief under Section 438 of the Code of Civil Procedure.

   28. For the aforesaid reasons, the Bail Applications are dismissed.

   The Registry will send a copy of this Order to the Chief Secretary to the Government, Government of Kerala.

                               (K.T.SANKARAN)
                                        Judge

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2009-12-10T09:17:00.000-08:00

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Human Right Aspects of ‘Love Jihad’: A phrase coined by the Hindu Fanatics to advance hate politics: A barbaric and shameful act.

2009-12-01T05:54:00.000-08:00

A Hindu boy married a Muslim girl which created an uproar in the local communities, which is of course nothing unusual, in the prevailing social scenario. The police tried to dislodge and undo even the Marital-tie between the two of them. The issue came up before the Allahabad High Court. Justice V. M. SAHAI AND BARKAT ALI ZAIDI heard the matter and frowned upon the Police thus:
“In cases like these, the Law Enforcement Authorities usually buy peace at the cost of the constitutional rights and privileges of citizens of this country. They pander to the sentiments of the illiterate masses which comprised the major part of our communities in order to maintain peace. They fail to realize that they are thereby rendering the constitutional rights of individuals nugatory and redundant. The real role of the Law Enforcing Agencies is to protect and preserve the rights of individuals guaranteed by our paramount parchment, and, to deal with an iron hand all those persons, who want to decimate and demolish those privileges.”
The Court expressed its dissatisfaction thus:
“As usual, this is not happened in this case, and the police is trying to dislodge and undo even the Marital-tie between the two of them. The police must be emphatically asked to refrain their doing so. They are free citizens of this country and they have a right to marry according to their own wishes, of course if they have attained the age of majority. Their sacrosanct privileges should not be allowed to be rendered non-functional.”
The Court being satisfied by the submission of the Boys and Girls who unequivocally stated that, they are major and have married to their own free will, the court directed the police not to interfere in the matrimonial life of the petitioners, and to provide protection as and when necessary. This case is reported in AIR 2006 ALLAHABAD 60 "Pooja Arya v. State of U. P."
In yet another case a young woman aged about 27 years who is a graduate and at the relevant time was pursuing her Masters course in Hindi in the Lucknow University left her brother's house of her own free will and got married at Arya Samaj Mandir, Delhi to one Bramha Nand Gupta who has business in Delhi and other places. The peti-tioner's brother lodged a missing person report at Sarojini Nagar Police Station, Lucknow and consequently the police arrested two sisters of the petitioner's husband along with the husband of one of the sisters and the cousin of the petitioner's husband. Petitioner's brothers Ajay Pratap Singh, Shashi Pratap Singh and Anand Pratap Singh were furious because the petitioner underwent an inter-caste marriage. One brother of the petitioner's husband was locked in a room by the petitioner's brothers for four or five days without meals and water. They also lodged a false police report alleging kidnapping of the petitioner against her husband and his relatives at Police Station Sarojini Nagar, Lucknow. The petitioner's brothers also threatened to kill the petitioner's husband and his relatives. The Gupta family members are afraid of going to Lucknow out of fear of violence by the petitioner's brothers, who are of a criminal bent.
A final report was submitted by the SHO, Police Station Sarojini Nagar, Lucknow before the learned Judicial Magistrate inter alia mentioning that no offence was committed by any of the accused persons and consequently the accused were enlarged on on bail on furnishing a personal bond on 16-5-2001 by observing that neither was there any offence nor were the accused involved in any offence. Thereafter the Investigating Officer recorded the statement of the petitioner Lata Gupta @ Lata Singh on 28-5-2001 and for this purpose armed security was provided to her. The learned Chief Judicial Magistrate, Lucknow recorded the statement of the petitioner under Section 164, Cr.P.C. on 29-5-2001. In that statement the petitioner stated that she married Bramha Nand Gupta of her own free will. Despite this statement, the learned Chief Judicial Magistrate, Lucknow passed the committal order on 5-10-2001 ignoring the fact that the Police had already filed a final report in the matter.
The case was taken up under Article 32 of the Constitution of India for quashing the Sessions Trial No. 1201 of 2001 under sections 366 and 368 of the Indian Penal Code arising out of FIR No. 336 of 2000 registered at Police Station Sarojini Nagar, Lucknow. The Supreme Court spoke thus:
“ This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband's relatives.”
“We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner's brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner's husband and his relatives.”
The Court further held that “Since several such instances are coming to our knowledge of harassment,threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.”
“The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.”
The Apex Court even ridiculed the instances of 'honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will.It held thus:
“We sometimes hear of 'honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.”

The Supreme Court allowed the Writ Petitions and quashed the proceedings and directed that the police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner's husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned. The Court also directed to initiate criminal proceedings against the petitioner's brothers and others involved in accordance with law.
Universal Declaration of Human Rights, 1948, expressly envisages that men and women of full age without limitations due to race, nationality or religion, have "the right to marry and found a family".
Article 16(1) . Men and women of full age, without limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 18. – Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Now let us examine our Constitutional Provisions. Article 21 deals with Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 25 deals with Freedom of conscience and free profession, practice and propagation of religion.Article 25.(1) : Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
Against this background, let us now examine the facts of the infamous case of Love Jihad, as disclosed in their Petition filed for Quashing the Crimes registered against them.

BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
Crl. M.C.No. of 2009

(Against the Crime No.1102/2009 Thripunithura Hill Palace Police Station.)

Petitioners:
1. Shahansha A, aged 23 years, S/o. Dr. Akbar Sha, Keecheriyil (House),
Petta, Pathanamthitta.

2. Sirajudeen M., aged 27 years, S/o. Meera Sahib, Kothuval Veedu, Petta,
Pathanamthitta.

Vs.
Respondents:
1. The Assistant Commissioner of Police (K.S.Gopakumar),Cantonment Sub
Division,Thiruvananthapuram City.

2. The Sub Inspector of Police, Hill Palace Police Station, Tripunithura.
3. Bino Jacob, Karingottu Banglow, Pallikkal Post, Kottarakkara.

4. Anu, D/o Philip, Mookkancheril House, Kannankulangara, Nadama
Village, Tripunithura.

5. Jacob Thomas, S/o. late K.C. Thomas, Karingottu Banglow, Pallikkal
Post, Kottarakkara.

6. State, represented by Director of Prosecution,High Court of Kerala,
Ernakulam.

MEMORANDUM OF CRIMINAL MISCELLANEOUS CASE FILED UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE
STATEMENT OF FACTS
1. The petitioners are accused in the crime no. 1102/09 registered by Station House Officer, Tripunithura Hill Palace Police, under the caption “Man missing. A copy of the FIR in Crime No. 1102/2009 is produced and marked as Annexure A1. It is a complaint lodged by the 4th respondent , Mrs. Anu Philip, who claimed to be the Aunty of the 3rd respondent Bino Jacob, alleging that on 18-7-09 her niece Bino Jacob was missing. A copy of the FI Statement made before police by the informant is marked as Annexure A2. The Assistant Commissioner of Police Cantonment Sub Division, Thiruvananthapuram City, filed a report before Additional Chief Judicial Magistrate Court, Ernakulam, alleging that he is investigating the Crime No. 1102/2009 registered under the “caption man missing” and that in the course of investigation he learnt that the petitioners are reported to have committed the offences punishable under Section 120B, 295A, 377 r/w Section 34 IPC and that the investigation is in progress. A true copy of the report is marked as Annexure A3. Annexure A3 report is totally false, deliberately concocted obviously ill-motivated as can be see from the following facts and circumstances.

2. The 3rd respondent Bino Jacob and her friend Mithula V are students for MBA Course in St. Johns College, Prakkanam, Pathanamthitta. The 1st petitioner also was a senior student in the same college. He was a student activist and popular senior student. He was also the District President of Muslim Students Federation. His father is a doctor. He completed his course in March 2008.

3. The friend of 3rd respondent Mithula developed a genuine interest in religion of Islam and read a lot of religious literature with the assistance of 1st petitioner which has enlightened her intellect, influenced her thought and ultimately impelled her to live as a devout Muslim, perform the daily prayers (Namas)according to Islam. Her family also knew about her interest in Islam as they perceived in her total indifference in visiting temples. There was also telephonic communications between the families of Mithula and the 1st petitioner. The Press Statement of Dr.Akbar Sha, the father of the petitioner, published in Kala Kawmudi weekly is produced and marked as Annexure A4. The relation ship of the 1st Petitioner and Mithula ultimately blossomed into a tender warm and impeccable love affair. Mithula declared her intense love and desire to be the consort of the 1st petitioner through a valid marriage .She send numerous messages through internet and mobile phone. The English translation of one of the early love messages, sent in e-mail ( e mail dated 5.3.2008 in Malayalam but written in English alphabets) reads as follows:

“Dearest Sha Chettan,

You may be surprised why suddenly E-mail like this. Mostly I send those matters in E-mail, which cannot be directly put to Sha Chettan. Are there not problems in every one’s life. Like wise my problem in my house began of even on my very 1st birthday. There after nobody hither to had celebrated my birthday and nobody remembered it often. Did you not ask me today why there is problem in talking to my father. There is problem you need not know for the time being. Is it possible for me to tell them to you now from my house when my mother is with me. I will have to tell about it one day. Kindly show that, much patience. Is it possible for me to tell them from her or in a message. For heavens sake kindly be patient till I reach the hostel. My problems will end only with me. When you know my problems Sha Chettan’s mind also will be pained unnecessarily. I do not like Sha Chettan getting mentally troubled. ……………… Did you not tell me not to talk with my father if you do not like………………….. In that pretext, you would not attend my phone for 3 days. I have nothing to say as I cannot afford to compel. Now I have problems only. My eyes are tearful and my heart pain is suffering. However, for any problem of mine you are my instant cure my friend. Do me a favour if possible till I reach the hostel please talk to me in normal mood”.
A true photocopy of the print out of E-mail message in Malayalam written in English alphabets and its transliteration are produced and marked as Annexure A5 and A6. One more similar message of expressing genuine love dated 12-5-2008 and its English transliteration are produced herewith and marked as Annexure A7 and A8.

4. There is umpteen numbers of sweet messages sent by Mithula to the 1st petitioner, which also contain Quranic Versus and Sayings of Prophet the details of which in a consolidated form is produced and marked as Annexure A9.

5. It is respectfully submitted that the 3rd respondent Bino Jacob, and Mithula were roommates in the college hostel. The 3rd respondent also got influenced by her friend Mithula and both went through religious literature together and decided to lead a way of life visualized by Holy Quran and precepts of prophet. They started performing compulsory daily prayers and even the optional mid night prayers (Thahjud) regularly and secretly from their room. But unfortunately the hostel mates of these students who noticed them performing the prayers conveyed the information to the Principal of the college and the family members of the 3rd respondent. There was no love affair between the 1st petitioner and 3rd respondent Bino Jacob. The 2nd petitioner being a close friend of the 1st petitioner was also aware of these developments and the 2nd petitioner was thus intimately known to the 3rd respondent as a friend of the 1st petitioner.

6. The respondents 4 and 5 and the family of Mithula having got information about the secret conversion of their daughters in to the religion of Islam, promptly removed them from the hostel in June 2009. The 3rd respondent Bino Jacob was compelled to stay in Tripunithura with her Aunty and Mithula at her house in Perurkkada. They were always escorted by their parents or other relations whenever they go out to ensure that they do not revive any contact with the petitioners. The telephone numbers of the petitioners were erased from the sim card but unfortunately could not do so from their heart and mind.

7. In the second week of July 2009 the 3rd respondent called the 1st petitioner and complained that she was being obstructed by her parents from performing her daily prayers and that their parents were planning to sent abroad and get married with some other persons of their choice and that unless something is done, it would be difficult for her to live as Muslim and that she has lost all contact with Ms.Midula ever since June 2009 and she is making efforts to get in touch with her. She also informed that all her contact numbers in the mobile has been deleted by the parents and she is making this call to the 1st Petitioner only because she knew the number by heart. Ms.Bino Jacob later managed to contact the Ms.Midula and pass the message that she could revive contact with the 1st petitioner and to share the trauma of confinement. Ms.Midula after about two days phoned the 1st petitioner and informed that her marriage is being arranged and it is likely to be fixed immediately after the Chovvadosham which will be over by September 2009. She asked for his help to escape from the illegal confinement of her parents. The 1st petitioner expressed his helplessness to do anything in the matter as his parents are still not agreeable for marriage. Ms.Midula then pleaded to help her at least to go to Ponnani for Islamic study and proclaim openly that she is a Muslim and live without the fear of interference of parents. The 1st petitioner could not assure any help even for that suggestion. However Ms.Mithula and the 3rd respondent Ms.Bino Jacob persuaded him to explore possibility for taking them out of their illegal confinement and to arrange for reaching Ponnani. (The telephonic conversation to which the investigating agency has access can verify these facts).Pressurized by the frequent plea for help, the 1st petitioner with the help of his friends gave shelter to the 3rd respondent and Mithula on their escape from their residence on 18-7-2009. This resulted in Annexure A1, FIR and A2, FI Statements.

8. Considering the insecurity and the anxiety of the 3rd respondent and Ms.Mithula, and taking stock of their commitment to Islam, and resolution to live as Muslim, the 1st petitioner against the will of his parents decided to marry Ms.Mithula and the 2nd petitioner to marry the 3rd respondent. The resolution of the parties got reduced into writing in a stamped paper attested by a Notary. True copies of the agreement executed on 12.8.09 by the 2nd petitioner with the 3rd respondent is produced and marked for reference as Annexure A10. Similar agreement was executed by the 1st petitioner with Mithula on the same day. This was followed by a Nikah on the same day at the house of Haneefa Haji at Kozhikkode. The nikhah was performed by Janab AbdulSalam Maulavi in the presence of Melechelari Hanafa Haji and Mohammed Sahib from Edavannapara. Janab Mohammed Kutty sahib was the authorized person to perform nikhah on behalf of the 3rd respondent and Mithula. The Petitioners thereafter lived with their spouses in the house of the Haneefa Haji for 2 days and conducted valima (marriage reception) in the same house itself.

9. It is submitted that on 13.8.2009, Mithula received a soothing message from his brother Sri.Mithun, in E-mail, a copy of which is produced and marked as Annexure A11. He wrote as follows:-

“If you had atleast indicated me about your intentions I would have talked with parents and found out a solution. I know that you were looking for freedom from our parents as you do not like to get married from our caste or religion. I had a lot of plan for you. Even if I changed the job it was for you only. I never thought of my wife or am other alliance. My main aim was your better future which I was unable to achieve……………… I would like to be in touch with you. Think about my relation with you in the past. Please provide your contact details. I will not disclose this to any body. I want to know your safety even if you are in somebody’s hands.”

Sri. Mithun concluded his message with brotherly love and affection as below:
“I want to talk with you, My dear”.

10. It is submitted that the 5th respondent, the father of Bino Jacob and the father of Ms.Midula filed Habeous Corpus before the Hon’ble High Court as W.P.(Crl)No.317/2009. The allegation in the Habeas Corpus petition is that their daughters are missing from 18-7-2009 and that their daughters are in the illegal confinement of the 1st petitioner. The petitioners appeared before the Division Bench in Habeas Corpus Petition on 21-8-09 along with their spouses.

11. Before the Hon’ble High Court Ms.Midula and Bino Jacob submitted that they have embraced Islam without any coercion or force and that they are not interested to go with their parents as they have got married as per Islamic law with the petitioners and they have lived as husband and wife and that they should be sent with their husbands. The 3rd respondent and Mithula declined to talk to their parents much less to interact with them. The Division Bench has recorded this aspect in its order dated 26-8-09:

“The alleged detenues who are aged about 23 years had stated before us that they are in love with the 4th respondent and Sirajudhin and that they had voluntarily and willingly decided to get married to those two youngmen. One of them was their senior in College (R4) whereas the other (Sirajudhin) was known to them”. Referring to the attitude of the 3rd respondent and Mithula towards their parents, the court records thus:

“Initially they were reluctant to speak to their parents and it is only with much persuasion exercised by us in the interest of harmony that they agreed to speak to their parents and go with them”.

12. The Hon’ble Division Bench while directing the 3rd respondent and Mithula to go with their parents issued the following orders:

“4. After 1.45 p.m. we met both the alleged detenues in the chamber and interacted with them separately initially and later jointly. We subsequently had interactions with the parents of the alleged detenues as also the 4th respondent and the said Sirajudheen in the presence of their counsel as also the learned Government Pleader. Such interactions at he chamber, we are happy to note, has resulted in broad agreement between the parties. They agreed on the following terms:

i) That the alleged detenues shall today go with their parents.
ii) The parents shall take them to their residences at Kottarakkara and Thiruvananthapuram for residence and shall not take the alleged detenues to any other place.
iii) At their houses, the alleged detenues shall be given absolute freedom regarding prayers, food etc. of their choice.
iv) They shall be permitted to be in contact over telephone with the 4th respondent and the said Sirajudheen during this period.
5. The alleged detenues, along with their parents, shall appear before this court on 28-8-2009. The parents agreed that they shall respect the wishes of their children, who are more than 22 years old now, regarding their religious preferences and their decisions regarding marriage.
Appropriate further directions shall be issued on 28-8-2009.”

13. The 3rd respondent and Mithula were thus allowed to be taken by their parents but the parents flouted the condition directing them to allow the girls to contact the petitioners till 28.8.09. The 1st petitioner though had contact for 2 days, it was thereafter severed. 1st petitioner during this period came to know from Ms.Mithula that she was taken not to her home but to the house of the grandmother and lots of visitors had come home for 2 days to convince her for reversion to Hinduism. She also sent an SMS to the 1st petitioner on 22-8-09 which reads thus:
.
“This is send by advocate.Check my mail also.Then cal me.mithula_v@yahoo.co.in.”

The E-mail sent by the Advocate of the 5th respondent in the Habeas Corpus Case contained the list of friends of the 1st petitioner in the Orkut. Ms.Mithula was aware of these friends as she has been accessing these messages sent to the 1st petitioner using his pass words. This indicates that there was concerted efforts to brain wash her with misinformation with a view to break the relation and hook the Petitioners in false cases. The 1st petitioner thereafter could not talk to Mithula. A true copy of the E mail send by Advocate Santhosh Mathew to Midthula on 22-8-09 is produced herewith and marked for reference as Annexure.A 12.

14. The 2nd petitioner however was not allowed even once to contact the 3rd respondent. The petitioners under the circumstance filed a petition in the Habeas Corpus matter to advance the case and to recall the order dated 21-8-09. The Hon’ble High Court advanced the case to 26-8-09. The 5th respondent, Jacob Thomas did not appear on 26-8-2009. He was alleged to have been hospitalized. On that day the 3rd respondent and Mithula declined to talk to the Petitioners. The petitioners reasonably infer that during the brief custody enforced by Hon’ble High Court from 21-8-2009 to 26-8-2009, the 3rd respondent and Mithula would have been tortured, threatened and coerced to decline to speak to the petitioners and to forsake them. The Division Bench unfortunately declined to probe into the mystery of the sudden and unexpected volte-face of the alleged detenues in their attitude towards the petitioners. The Division Bench solaced itself with a veiled apology:
“The reasons that prompt the alleged detenue to change their stand and assert that they do not want to do anything with 4th respondent or Sirajudheen is of course a little confusing”.

15. It is submitted that considering the volte-face stand of the 3rd respondent and Mithula, the Division Bench ought to have kept them in a hostel or other safe place for introspection to know their stand at least for resolving the judicial “confusion” and the real reason for their sudden change of attitude could have been known. However the Division Bench did not entertain the plea for such an exercise. The Hon’ble Division Bench justified its reluctance to clear this confusion professing that they have “to respect the wishes and desires of alleged detenues who have crossed the age of 22 years.”

16. It is submitted that on 8-9-09 the petitioners asserted before the Hon’ble Division Bench that the 3rd respondent and Mithula are under the spell of influence of their parents and they are not speaking their mind voluntarily. They humbly requested the court that the alleged detenues may at least be asked to explain and state before the Court what wrong they have committed to the alleged detenues. They submitted that because of their relationship with the alleged detenues, they have been reduced to “laughing stock and are obliged to face public ridicule. They have done nothing to deserve such response”. The Division Bench recorded that the Ms.Midula and Bino Jacob “ remained silent and did not utter a single word implicating” the petitioners in any offence.

17. It is submitted that the Division Bench however was pleased to appreciate the gracious conduct of the petitioners who returned the personal effects of the 3rd respondent and Mithula and consoled them with a specific direction to the police, not to arrest till 8-9-2009 which order was further extended till 30.9.2009. The Habeas Corpus was closed on 30.9.2009 stating that no further directions are necessary in the writ petition. The orders dated 21.8.2009, 26.8.2009, 8.9.2009 and 30.9.2009 are produced herewith and marked for reference as Annexure A13(a), (b), (c) and (d) respectively.

18. It is respectfully submitted senior police officers having family relationship with the Ms.Midula and Bino Jacob, despite knowing the fact that the Ms.Midula and Bino Jacob had in fact left home by their own volition , to embrace Islam and become Muslims (which choice was not possible while living with the parents) wanted to give a mischievous twist to the incident and managed to cook up a story after “love jihad” an offending terminology used by Hindu fundamentalist against Muslims and framed a story that love jihad is a concerted move of Muslim extremists to convert people to Islam pretending love. The Crime No.1102/09 and 451/09 registered with Hill Palace Station, Tripunithura and Peroorkada Police Station respectively for man missing was later modified and booked the petitioners for offences under Section 295 A and 377 read with Section 120 B of the Indian Penal Code.The Investigating Officers used Hindu and Christian communal elements in the state to support their case and justify the report before the Court.

19. It is significant to note that though the 3rd respondent and Mithula had appeared before the Division Bench and had occasion to complain about those alleged unusual offences committed by the petitioners while living as husband and wife after execution of agreement of marriage and solemnization of marriage under Muslim Law, did not make any statement to sustain the new charge laid by the police. Unfortunately the report of the Police Officers, who are interested in Bino Jacob and Mithula and known to be related to them fabricated false statements of others who had no chance to witness the alleged offences and deliberately mislead the Hon’ble Court by way of vengeance and malice, when the application for anticipatory bail filed by the petitioners as B.A.No.5288/2009 was considered by a Single Bench of this Hon’ble Court.

20. The Hon’ble Single Bench simply swallowed the false statements of the Police Officers and ignored the entire facts especially what transpired before the Division Bench and refused to grant the anticipatory bail to the petitioners at least with stringent conditions. The Hon’ble Single Judge accepted the fairy tale narrated by the police in their case diary and held that there are indications that several similar instances took place in the State of Kerala. The Single Judge observed as follows:

“I have perused the case diary file. There are indications that several similar instances took place in the State of Kerala. It is stated that there is a movement or project, which is called “Romeo Jihad” or “Love Jihad” conceived by a section of the Muslims. The idea appears to be to convert girls belonging to other religions to Islam. It is stated that Muslim boys are directed to pretend love to girls of other religion and get them converted to Islam. Lot of money is available for executing the project. There are men whose help is available at any time. Organizations are also there to implement the project…………..Before disposing of these Bail Applications, I am of the view that some additional information with regard to the number of similar cases which occurred during the last three years in the State of Kerala is required. The Director General of Police shall file a statement within a period of three weeks from today, touching upon the following aspects:
(1) Whether there is a movement called “Romeo Jihad” or Love Jihad” working in the State of Kerala?
(2) If so, what are their plans and projects?
(3) Which organizations are involved in such activities?
(4) Where does the money come from for all these activities?

(5) How many school and college students and youngsters were thus converted into Islam during the last three years?
(6) Does the alleged project involve an all India basis and magnitude?
(7) Has it got financial support from abroad?
(8) Is there any connection between the “Love Jihad” movement and counterfeiting, smuggling, drug trafficking and terrorist activities? ”

21. The repeated argument of petitioner’s counsel that the alleged detenues did not give hint to the Hon’ble Judges that they were compelled to convert to Islam or subjected to unnatural sexual crimes the offences alleged in the case diary, the Hon’ble Single Bench parried the issue by twisting the implication of the order of Division Bench and virtually superseded the direction not to arrest the petitioners in the following words:
“I do not think that this is a material fact while considering the application for anticipatory bail. The question which came up for consideration before the Division Bench was entirely different. The orders passed by Division Bench do not in my view effect the investigation of the case or the arrest of the petitioner.” A true copy of the Order in Bail Application No.5288/2009 dated 29.9.09 is produced herewith and marked for reference as Annexure.A14.

22. The petitioners respectfully submits that in the pretext of probing into thousands of such cases as ordered by Hon’ble High Court, the petitioners are kept beneath the dangling Democlesian sword of disgraceful arrest and pretrial detention . The scope of the above sprawling enquiry is too wide to be completed soon, too comprehensive to wind up, because it assumed magnitude of a global enquiry, while these two petitioners are ordained to languish in the fear of being arrested, detained, and tortured by the police for no offence made out against them in the FIR and in the subsequent report filed by the 1st respondent.

23. It is submitted that the 1st respondent seized certain books under a seizure mahzer, a true copy of the seizure mahzer prepared by the investigating officer after searching the hostel room occupied by the 3rd respondent and Bino Jacob is marked as Annexure A.15. The following are the books seized under Annexure.A15.

1) ഇസ്ലാമിക ജിവിതം written by മുഹമ്മദ്‌ അമാനി മൌലവി
2) Mechanics of the Doomsday and life after death by S.Bashirurudhin Mohammed
3) Islam and Management by Dr.Naeeur Jabnoun
4) ഉമ്മുല്‍ മുഅമിനീന് ആയിശ written by സയ്യിദ് സുലൈമാന്‍ നദവി
5) ദൈവാസ്ഥിക്യതിന്റെ ഭൌതിക ദ്രഷ്ടാന്തങ്ങള്‍ written by ഇമാം ഗസ്സാല്‍
6)ഇസ്ലാമില്‍ സ്ത്രിയുടെ പദവി written by ബി. ആയിശ
7) അല്‍ഹിതായ കര്മസാസ്ത്രടര്സനം written by മൌലവി മുസ്തഫ ഇബ്രാഹിം കൊട്ടക്കര
8) മരണാനന്തരജീവിതമ് written by ഹസ്രത് മൌലാന മുഹമ്മദ്‌ ആശിഖ്‌
9) ഉത്തമ മുസ്ലീമ് നാമങ്ങള്‍ written by Moulavi K.T.Abdunazzar al Qasimy M.A.Paduppady
10) ഇസ്ലാം മതസിധാന്തസംഗ്രഹം written വക്കം അബ്ദുല്‍ ഖാദേര്‍ മൌലവി
11) തടവറയില്‍ നിന്നും പള്ളിയിലേക്ക് written by അബ്ദുള്ള അടിയാര്‍
12) രോഗവും ചികിത്സയും ഇസ്ലാമിക വിക്ഷണത്തില്‍ written by ഡോ :മുക്താര്‍ അഹമ്മദ്
13) സ്ത്രീ ഇസ്ലാമിക സമൂഹത്തില് written by അബ്ദുസലാം വാണിയമ്പലം
14) യേശുവിന്റെ പാത മുഹമ്മദിന്റെയും written by പ്രൊഫ്‌.ഷാഹുല്‍ ഹമീദ്
15) നബവീ നിമിഷങ്ങള്‍ written by മൌലാന മുഹമ്മദ്‌ ഇല്യാസ് നദവി
16) തൌബ യുടെ മഹത്വങ്ങള്‍ written by ഹസ്രത് ആശിഖ്‌ ഇലാഹി മദനി (ര )
17) റംസാന്‍ പുണ്ണ്യ ങ്ങളുടെ കലവറ written by അമ്പുല്‍ ആലിയ കൊല്ലയില്‍
18) മുഹമ്മദ്‌ നബി മാനുഷ്യകത്തിന്റെ മഹാചാര്യന്‍ written by ശൈഖ് മുഹമ്മദ്‌ കാരകുന്ന് , വാണിദാസ് ഇളയാവൂര്
19) ഖുറാന്റെ മുന്നില്‍ വിനയാന്വിതം written by വാണിദാസ് ഇളയാവൂര്
20) സുല്‍ത്താന്റെ സലാഹുദ്ദീന് അയൂബി written by സിദ്ദിഖ് ചേരൂര്‍ ഫൈസി
21) നിയമത്തിന്റെ അടയാളങ്ങള്‍ അഥവാ ഖിയാമം എപ്പോള്‍? written by മുഹമ്മദ്‌ ബഷിര്‍ ചിസ്തി
22)ഇസ്ലാമില്‍ കരാരുകളുറെ പ്രാധാന്യം written ബൈ മൌലാന അബ്ദുല്ലാഹില്‍ മാറുഫി
24) ഭാര്യാഭാര്ത്രബാധ്യതകള്‍ written by ടി.കെ.അബ്ദുള്ള മൌലവി
25)ഞാന്‍ സ്നേഹിക്കുന്ന ഇസ്ലാം written by അടിയാര്‍
26) ല ഇലാഹ ഇല്ലല്ലാഹു ആദര്‍ശം നിയമം ജീവിതവ്യവസ്ഥ written by മുഹമ്മദ്‌ ഖുത്ബ്
27) Masnoon Duaan – Prayers of the Prophet written by എം.അബ്ദുല്‍ ഹമീദ് സിദ്ദിഖ്
28) Six points of Tabligh written by Moulana Ashiq Elahi
29)ഹനഫി നമസ്കാര ക്രമം (മലയാളം അറബ് ഭാഷകളില്‍) written by കെ.എം.ജമാലുധിന്‍ മൌലവി
30) ഹനഫി നമസ്കാര ക്രമം (മലയാളം) written by കെ.എം.ജമാലുധിന്‍ മൌലവി

24. A casual survey of the books searched and seized by the investigating officer from the hostel room will reveal that the 3rd respondent and Mithula were studying Islam long before their alleged elopement. Those books written by the celebrated authors are available in the market and dwelling upon the various aspects of the religion. The description of those books by the investigating officer would also go to show that those books were being read by Mithula and 3rd respondent and that they were taking down notes of what they studied. Obviously those books were not banned nor they would generate any prejudice against any other religion. Even if those books were assumed to have been supplied by these petitioners it would not indicate any malafide on their part to commit any offence whatsoever. The only reasonable inference that can be drawn from the preservation of books by the 3rd respondent and Mithula is that they were earnestly reading them years before the alleged elopement. These books, are nothing but spiritual and religious treatises authored by eminent scholars and philosophers. None of those books are obnoxious, blasphemous or offensive to the religious sentiments of any person.

25. It is submitted that neither the allegations in the FI statement, other statements of any witnesses or the meterials seized or the additional report filed will hint that the petitioners have committed the offences under section 120B , 295A, and 377 I.P.C . The imputation of unnatural offence hurled against the petitioners by the investigating officer is most uncharitable, reprehensible and defamatory not only to the Petitioners but also to the innocent spouses of the petitioners. The remorseless imputation of sexual perversity invented by the investigation officer without an iota of materials is a gross affront to the honor of womanhood.

26. Petitioner submitted a representation to the Government complaining about the 1st respondent and the investigation that had made in the crime. In the said representation petitioners have pointed out that there is a concerted attempt to book the petitioners in false case at the behest of the police officers having family relations with Bino Jacob and Mithula and the 1st respondent and there is no investigation to matters which will disclose the true affairs. A true copy of the petition without its enclosures addressed to the Chief Minister, the Home Minister, the Chief Secretary and the Secretary, Department of Home is produced herewith and marked for reference as Annexure.A16.

27. A scrutiny and analysis of the allegations incorporated in the FIR, FI statement and mahzer shows that ingredients of offences alleged are not made out. Therefore, on the basis of the averments and allegations incorporated, the case will not lie.When the documents of unimpeachable character is taken into consideration for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused , it will lead in to an unresisteble conclution that the continuance of the criminal proceedings would amount to an abuse of the process of Court and allowing investigation will only serve one purpose namely to harass the petitioners. Further prosecution is unlikely to succeed in matter having regard to the facts of the case in hand. The parameters required to exercise of inherent power under Section 482 of the Code as laid down in State of Haryana and Ors. v. Bhajan Lal and Ors. (1992 Supp. (1) SCC 335) is therefore clearly made out.

The investigation in pursuance to the Crime registered is therefore a gross abuse of the process of the court and the petitioners having left with no other alternative effective remedy invoke the inherent jurisdiction of this Hon’ble Court under Section 482 of the Crl Procedure Code on the following among other.

G R O U N D S

A. The proceedings in pursuance of Crime No. 1102/09 of Tripunithura Hill Palace Police Station on the basis of Annexure No. 1 “missing report” registered by the police and magnified by Annexure A 2 report of the investigating officer charging the petitioners with offences under Section 295A and 377 IPC is patently illegal ,arbitrary and capricious and violative of all norms of decency and fair play. It is submitted that Annexure A 2 report submitted by the investigating officer before the Additional Chief Judicial Magistrate Ernakulam is a grotesque product of the fertile imagination of the 1st respondent which is too perverse even to be touched with a barged pole by a court of justice.

B. The orders dated 21.8.2009, 26.8.2009, 8.9.2009 and 30.9.2009 are produced herewith and marked for reference as Annexure A13(a), (b), (c) and (d) respectively. These orders of the Division Bench of Hon’ble High Court in Habeas Corpus petition will falsify the allegation that the petitioners committed the offences under Section 295 A and 377 IPC.

C. It is respectfully submit that in the light of land mark ruling of Hon’ble Supreme Court in Latha Singh Vs State of UP and another reported in 2006-SCC-475 the complaint not only deserve to be thrown over board but warrants exemplary penal action against those who are responsible for it.

D. Essential ingredients of unnatural offences or the deliberate condemnation of other religions and criminal conspiracy for the commission of the alleged offences are totally absent in the allegations.

E. In light of the voluntary statement of the 3rd respondent and Mithula before the Division Bench of Hon’ble High Court as well as the email and SMS messages send by Mithula and Bino Jacob , it is crystal clear that investigation is a gross abuse of the process of law which would tend to blight the career of the innocent petitioners and their beloved spouses.

Hon’ble Supreme Court in the ruling “Latha Sing Vs. State of UP and another” reported in 2006-SCC-465 frowned upon the evil tendency of the parents disgruntled by the intercaste and interreligious love marriages of their daughters to wean them out or punish them with false criminal complaints. In the said case the brothers of Latha Singh, Ajay Pratab Singh, Soshi Prathab Singh and Anand Prathab Singh who grew furious about the intercaste marriage undergone by Latha Singh, lodged false complaint against the relatives of her fiancée, trespassed into his land, and spoiled their crops . Latha Singh apprehended the danger to her life and the lives of her husband and small child because her brother assaulted, insulted and threatened to kill them. In para 14 of the judgment the Hon’ble Supreme Court observed as follows:
“This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was, at all relevant time a major. Hence she is free to marry any one she likes or live with any one she like. There is no bar to an intercaste marriage under Hindu Marriage Act or any other law.”
In para 15 of the judgment the Hon’ble Supreme Court emphasized that no offence was committed by any of the accused and that the whole criminal case in question is an abuse of process of court as well as the administrative machinery. The Hon;ble Supreme Court was “distressed to note that instead of taking action against the petitioner’s brothers for the unlawful and high handed act, (details of which have been set out above) the police instead, proceeded against the petitioner’s husband and relatives.”
In para 16 of the judgment the Hon’ble Supreme Court deplored as follows:
“Since several such instances are coming to our knowledge of harassment, threat, violence of young man and women who marry out side their case, we feel it necessary to make some general comments on the matter.”
In para 17 the Hon’ble Supreme Court exhorted the police and concerned administrative wing of the government.
“This is a free democratic country and once a person became major he or she can marry whomsoever he or she likes. If the parents of the boy or the girl do not approve of such intercaste or interreligious marriage, the maximum, they can do is that they can cut off social relation with their son or daughter. They cannot give threats or commit or instigate acts or violence and cannot harass a person who undergoes such intercaste or interreligious marriage. We therefore direct that the administration or police authorities through out the country will see to it that if any boy or girl who is a major undergoes intercaste or interreligious marriage with a woman or man who is a major, the couple is not harassed by any one nor subjected to any threat or action of violence and anyone who gives such threat, harasses or commits acts of violence either by himself or at his instigation is taken to task by instituting criminal proceedings by the police against such person and further stern action is taken against such person as provided by law.”
It is respectfully submitted that the mandate in the ruling is squarely applicable to the present case of the petitioners. Admittedly the petitioners as well as the alleged victims are educated, enlightened majors. The victims have no case before the Hon’ble Division Bench in the Writ Petition or before police who registered the crime that they were trapped into the fraudulent marriage by the petitioners with any evil motive. Obviously the 1st respondent would have concocted certain statement under Section 161 Cr.P.C. and foisted a false case of grave crimes under Section 377 and 295A of IPC to sustain the charge. One must be incredibly too credulous to believe such a cock and bull story that the alleged victims who were proved to have been in love with the petitioners long before the alleged complaints and who were kept in wrongful confinement by their parents before the alleged elopement and who continued to correspond with petitioners through internet and mobile phone whenever possible and escaped from the wrongful custody of their parents for leading a Muslim way of life and solemnizing their marriage, and living together for several days with petitioners as husband and wife , had complained of having been subjected to unnatural sexual intercourse as defined under Section 377 IPC. It is nothing but a ridiculous exercise in futility for the police to prove what is improbable. Equally absurd crusade against commonsense is that the alleged victims who embraced Islam decided to choose an Islamic way of life performing regular prayers according to Islam would complaint to the investigating officer that the petitioner insulted their forsaken religion.
F. It is more unfortunate that the Hon’ble Single Judge readily accepted and acted upon the false report of the police and directed the same police to make a roving Global enquiry into whether the intercaste marriage of the petitioners was for proselytization of the alleged victims into Islam and for engaging them into grave antinational offences like, counterfeiting, drug trafficking and terrorist action etc.

G. It is respectfully submitted that the Frontline well known India’s National Magazine narrated the origin and impact of the ugly phrase “Love Jihad” or “Romeo Jihad” misused by ruthless fenatists .The photocopy of the above article published in Frontline dated 20-11-2009 is produced and marked as Annexure No……..In the above Article frontline tried to trace the disgraceful origin and transmission of the ugly usage of “Love Jihad”:
“Many of the allegation of love jihad by rightwing organization have come from Dhakshina Kannada District which is well known as the laboratory of Hindutuva of the state”
“The student wing of Bharatiya Janata Party (BJP) Akhila Bharatiya Vidyarthy Parishath (ABVP) has been particularly active in the moral policing restricting the social space for meeting of the student from different community even from class rooms”.
“The allegation of love jihad in the region is not of recent origin only, the phrase is new and has caught on very fast. It was first used by a Kannada evening tabloid on September 7 while reporting on certain incidents in northern Kerala and linking them up with the incidents in Dhakshina Karnataka.”

For the foregoing reasons it is respectfully prayed that the Hon’ble High Court may be pleased to quash the investigation into the crime alleged against the petitioners in Annexure A1 to A3 and allow the Criminal M.C.

Dated this the 24th day of November, 2009.

Counsel for the Petitioners
Adv.P.K.Ibrahim

Prosecute the State Public Information Officer –Raj Bhavan.

2009-09-21T23:54:00.000-07:00

The action of the State Public Information Officer, RajBhavan supplying documents pertains to the sanction accorded by the Governor of the State to prosecute Mr Pinarai Vijayan , the General Secretary of the CPI(M) in SNC Lavellin case to the counsel of Mr.Pinarai Vijayan , while denying the very same documents to Mr.D.B.Binu,General Secretery -Human Rights Defence Forum has kicked off a new controversy in the Sate . Rather than the political discussion on this action, what is proposed to be focused in this write up is the legality of the action from the perspective of Right to Information Act 2005.

Right to Information Act is a tool that enables the citizen to gauge the performance of the Government and governmental bodies by allowing access to informations regarding their actions in discharge of public duties. As per law every public authority is accountable to its people for they are people destined to serve people for consideration they receive without fear and favour. Though the administration was supposed to be transparent, there was no enforceable right to gather information / documents from the public authorities with the result even if some body happened to possess information and supporting materials, he would be still handicapped to use them as they are matters legally not accessible to the public. The RTI Act has now trodden a new path through which now any citizen can, as a matter of enforceable right, can get information and supporting documents (subject to certain exceptions) from specified public authorities. Under Section 8(1) (h) of the RTI Act , there shall be no obligation to give to any citizen information “which would impede the process of investigation or apprehension or prosecution of offenders”. It is this exception that has been relied by the State public information Officer of the Raj Bhavan for denying information to Adv,D.B.Binu. But strangely this clause did not occur to the concerned officer when the accused in the case through his counsel requested for the same documents.

Now let us see the issue as it is placed before the State Information Commission by Mr.D.B.Binu in the complaint filed by him praying to prosecute the officer who denied information to him. Lat me reproduce the petition itself:

BEFORE THE HON’BLE STATE INFORMATION COMMISSION, KERALA, THIRUVANANTHAPURAM

Petitioner/Complainant:

D.B. Binu, Advocate, ‘Cochin Chamber of Lawyers’, Providence Road, Kochi - 18 (General Secretary, Human Rights Defence Forum, ‘The House of Lawyers’, I.S. Press Road, Kochi – 18). Mob: 9895135081.

Vs.
Respondent/Respondent:

The State Public Information Officer, Kerala Raj Bhavan, Thiruvananthapuram – 695 099.

COMPLAINT FILED UNDER SECTIONS 18(1), 20(1) & 19(8)(b) OF THE RIGHT TO INFORMATION ACT, 2005

The Petitioner/Complainant respectfully submits as follows:

1. Petitioner/Complainant is a General Secretary of the Human Rights Defence Forum and State Council Member of the Peoples Union for Civil Liberties (PUCL). He is a social and human right activist and a Lawyer by profession.

2. Petitioner under Section 6 of the Right to Information Act made an application dated 11.6.09 before the Respondent seeking the following informations:

1. A certified copy of the sanction accorded by the His Excellency Governor R.S. Gavai and other connected documents to the CBI for prosecuting the CPM State General Secretary Mr. Pinarayi Vijayan in S.N.C. Lavellin Case.
2. Certified copies of the documents/informations regarding the names of the Legal Experts with whom the Governor of the State sought the legal opinion in the matter and copies of their legal opinion, the legal fee if any paid for the legal opinion specifying the amount to each Lawyers and the receipt for such payment and the letter of the prosecution of the CBI seeking sanction for prosecution and their written submission justifying their request for sanction.
3. Certified copies of the all communications in the above matter done from the office of the Governor.
4. Copy of the document if any submitted to either the Government or the Ministry granting sanction to prosecute Mr. Pinarayi Vijayan.

3. The Respondent by communication dated 15.6.09 denied the above informations under Section 8(1)(h). The above complaint is filed against the order denying information under Section 8(1)(h). During the pendency of the above complaint Petitioner came to know that the above documents were however made available to another applicant who is said to be the counsel for Mr. Pinarayi Vijayan, the Secretary of the CPI(M) [as per the news item appeared in Deshabhimani, a mouth piece of CPI(M)] and those documents have been used by Mr. Pinarayi Vijayan for challenging the order granting sanction to prosecute him. A true copy of the news item appeared in Deshabhimani dated 11.9.09 is produced herewith and marked for reference as Annexure-A3.

4. It is submitted that as per Section 8(1) there shall be no obligation to give to any citizen information “which would impede the process of investigation or apprehension or prosecution of offenders”. The information sought by the Petitioner as a citizen and public spirited person was denied on the ground that the information if made available would “impede the process of investigation or apprehension or prosecution of offenders” whereas when the application by the Counsel for the Accused in the case requested, it was readily made available despite the imminent and possible danger of being using the document to “impede the process of investigation or apprehension or prosecution of offenders”. The stand of the Respondent denying information to the Petitioner was therefore without any bonafides and an action vitiated by malafides. The Respondent was acting virtually against the directions of the Right to Information Act and was using the provision to defeat the legal rights of the citizen. If the Respondent had any bonafide in the plea of denying information under Section 8(1)(h), he should have denied the same to the counsel for the accused or for that matter to all those who applied for the same documents. The discrimination made by the Respondent is an abuse of the power vested in him. By doing so he has malafideny denied information to the Petitioner despite his entitlement to have the document.

5. In the circumstance the Respondent is liable to be proceeded with disciplinary action for malafidely denying the request for information, and/or denying information without any reasonable cause. Further the Respondent is liable to be directed to pay penalty at the rate of Rs.250/- each day till the information is furnished to the Petitioner. The Respondent may also be directed to pay compensation to the Petitioner for the loss suffered by him which is quantified as Rs.1,500/- in prosecuting his application seeking information under the provisions of the Right to Information Act.

6. It is submitted that the information sought is very urgent especially having regard to the fact that those documents have been used for impeding the process of law, challenging the order granting sanction for prosecution. Therefore this complaint may be considered out of turn having regard to the large public interest involved in the matter. In the interest of justice it is therefore prayed that this Hon’ble Commission may pleased to grant the following reliefs:

1) order to take disciplinary proceedings under Service Rule for malafidely denying information or denying information without any reasonable cause that was sought by the Petitioner vide Ann-A1 application;

2) direct the Respondent to pay penalty at the rate of Rs.250/- each day till the information is furnished to the Petitioner;

3) award cost to the Petitioner quantified at Rs.1,500/- as compensation for the loss and injury suffered by him in the prosecution of his application under Section 6 of the Right to Information Act;
And
4) pass such other order that this Hon’ble Commission may pleased to pass in the facts and circumstance of the case.

Dated this the 18th day of September, 2009.

COMPLAINANT.
Adv. P.K. IBRAHIM,
COUNSEL FOR THE COMPLAINANT.

The above Petition is now pending and let us wait the law to take its course. Further discussion, after the Commission pass its orders. Till then …..Bye.

Expose corrupt judges to maintain probity in Judiciary.

2009-08-29T05:20:00.000-07:00

The decision to disclose the assets and liabilities in public by the Judges of the Supreme Court and High Courts will go long way in maintaining probity in Judiciary. Those who issue writs to others for public accountability and transparency must be first in setting example for other institutions and public men lest in due course of time , Judiciary which is the last hope for the people will submerge in corruption heralding the doom’s day for the nation.

Already instances of corruption and judges involving in big scams are reported in the media raising eyebrows of many. Unfortunately the Chief Justice of India, raising the bogy of harassment, opposed the ruling of the Central Information Commission and un-precedentedly went to Court challenging its order causing colossal damage to the reputation of the Judiciary. The Government‘s attempt to shield the Judges with legislation introducing the Judges (Declaration of Assets and Liabilities) Bill, 2009 in the Parliament embellished the cloud around the Judiciary. At least sensing the mood of the nation, the Chief Justice ought to have come out taking his colleges in to confidence, for disclosing the assets, as a damage control measure.

The lead however had to come from Justice Shylendra Kumar, Judge High Court of Karnataka. He defied the Chief Justice of India and spoke for the silent majority who suffered the embarrassment caused by the Chief Justice of India. Gathering strength, other Judges also joined Justice Shylendra Kumar. His appeal to all his brother and sister judges of the superior courts to disclose particulars of their assets for the information to the public forced the Chief Justice to reverse his stand on the issue. Justice Shylendra Kumar’s action thus will be remembered as long as Democracy and Rule of Law continue to govern our nation.

The apprehension of the Chief Justice that disclosure of assets will impair the independence of judges and affect their functioning is totally unfounded. The disclosure may put to trail those with unclean hands but that can cause little damage to the institution. Rather exposure of such dishonest and corrupt judges will serve best in maintaining probity in Judiciary. Sheltering the corrupt under the cover of contempt of court will blow up the institution itself.

The dress code of liberated women and the symbol of subjugation

2009-08-20T08:36:00.000-07:00

Well done Dr Seetharama Mayya . You have saved the Sri Venkatarama Swamy(SVS )Government College in Bantwal from a calamitous point. After all when our brethren are hurt by the scarf of Ayesha Ashmin, she must be either mended or be told to stay back home with her religion. The college is not the place to show her religious identity.

As principal, one can understand your concern to maintain law and order problem. Any attempt to create law and order problem has to be dealt with sternly. Ayesha Ashmin with her scarf became a potential threat to the institution. She failed to realize that in a progressive society, the scarf, burkha etc are symbols of subjugation of women by men. The liberated women’s dress acceptable for men is casual wears like short skirts, tight tops, , night gowns, and swim suits, in different gorgeous colour . She even does not know the limitations of liberated women. She must be told that the liberated women have no right to choose her own dress code much less head scarf. Why the hell she covers her head with scarf? Atrocious and highly offending.

The ideal place to begin such discipline is the Government College itself. Because these Muslim men and woman have a feeling that they have the fundamental right to profess, practice and propagate Islam notwithstanding the sentiments of others in the society and the Government and Government Institutions should suffer them. They understand least the irritation they make in others when appear in Burkha ands scarf. As a progressive man heading the Government College, You could not have shy away from the constitutional obligation when called upon to uphold the sentiments of the majority students who cry for action against Scarf menace. Your action is commendable for you dared with least concern for the consequences of being accused for discrimination on the basis of religion. How does that matter when the goal is to liberate the woman? It is only a humble start. Look, nobody dare such thing in Gujarat. And you set the ball running.

If you have a name that resemble to the Muslim ethnicity, the world police would frisk you.

2009-08-18T19:58:00.000-07:00

US sovereignty over the world is unquestionable. They police the world. Many countries may claim themselves as sovereign states but the real sovereignty is with US. The writ that runs across the globe is the writ of US and not that of the so called heads of States. If the world wants peace, serve US for they alone can assure peace.

In this scenario, why should Indians take exception to the US carrier Continental Airlines in frisking the former Indian president Mr.A.P.J.Abdul Kalam at New Delhi Airport? He may be VIP for Indians and must have been exempted from security check ups but for US he is Abdul Kalam, a Muslim and red alert personality that pose risk to their sovereignty over the world.

Poor Shah Rukh Khan. He thought he is a king khan for US also. May be for Indians but in US, he is Shah Rukh Khan , another Muslim and red alert personality. He may be a “global icon," but global icon for what? He is one of the 50 most influential men in the world. But in what respect? Look, we Americans have listed all Muslims in the world and our computer fails not to give alert signal when they pass through our line of control. That is sufficient for us to frisk him and strip him off.

This rule is made applicable throughout our territory. And our sovereignty is over the world. Nobody can pretend ignorance of this fact and if any one does so, he would feel humiliated when law takes its course. Blame US not for that.

The moral of these and other incidents: whether you are a Muslim or not, if you have a name that resemble to the Muslim ethnicity, you are in the check list of 9/11 and the world police would frisk you at any time, any place and from any where.

Why the name ‘Kerala’ cannot be used for commercial purpose?

2009-08-14T21:36:00.000-07:00

The writ Petition filed before the High Court Of Kerala challenging the Miss Kerala 2009 event held at Ernakulam has taken yet another new dimension by questioning the legal propriety of the use of name ‘Kerala’ to the title of the winner of the event as Miss Kerala which is purely a commercial venture of the organizers. According to Petitioner Lawyer P.K.Ibrahim, National council member , Peoples Union For Civil Liberties , Government or its machinery has absolutely no connection whatsoever with the conduct of such programme. The company is using the name ‘Kerala’ for the trade/business/calling/profession etc. after naming the event as Miss Kerala which is an act prohibited by the Emblems and Names (Prevention of improper use) Act, 1950. Section 3 of the Act reads thus:

“Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or, any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorised in this behalf by the Central Government”.

Miss Kerala Beauty contest organized by the company represented very little of Kerala tradition, culture and ethnicity. The contest in no manner is a means of testing the talent of contestants much less their intellect. There was hardly any entertainment programme that could be claimed as showing Kerala’s culture and ethnics. The dance and songs presented in between the various stages of the contest to say the least were vulgar. It is nothing but depiction of their physical body. No other talent like the talent of an orator, singer, dancer or any other performing artist was put to test. Neither the knowledge of the Kerala culture, tradition and its history were subject to any test in the contest. The beauty contests that are being hosted in our state and elsewhere are not that promote Kerala/Indian cultures or that advance our heritage. It is only a replica of the beauty contests that owes its origin to the promotion of the business rather than the talent of the contestants.

Lawyer P.K.Ibrahim, contents that the company cannot be allowed to use the name Kerala for naming the title of their commercial venture as Miss Kerala, for such title is bound to give a wrong impression in the minds of the people that it is a title conferred by the people of Kerala and may even leave an impression of Government participation or of the Government. Further to name of such events that essentially involve exploitation of youth and women for commercial purpose is to give social acceptance for such programmes. The people of the State by and large believing in various religious and other ideologies have great resentment against such events which is perceived as one demeaning the dignity and modesty of the womanhood. Private events conducted for commercial benefits either by individuals or in the name of public or private limited companies or in the name of other legal persons cannot misuse the name that has been put in the schedule of the Emblems and Names (Prevention of improper use) Act, 1950.

In the circumstance the following two additional reliefs were sought:

1. To issue a writ of mandamus or any other appropriate writ directing the Government of Kerala to take action against the Impresario Event Management India Ltd for the improper use of the name ‘Kerala’ to name their commercial beauty pageant event as Miss Kerala in accordance with the provisions of the Emblems and Names (Prevention of improper use) Act, 1950;
2.To declare that the Miss Kerala 2009 title conferred by the Impresario Event Management India Ltd on the winner of the Miss Kerala Beauty Pageant 2009 as illegal and issue consequential direction to the 4th Respondent to recall the title .

Read the writ Petition:
http://www.advocateibrahim.com/2009/08/judicial-remedy-sought-to-ban-events.html

Report submitted by Adv. P.K. Ibrahim , the observer appointed by the High Court of Kerala in the Writ Petition challenging the Miss Kerala Event

2009-08-11T03:32:00.000-07:00

Report submitted by Adv. P.K. Ibrahim , the observer appointed by the High Court of Kerala in the Writ Petition challenging the Miss Kerala Event 2009.

1. The Miss Kerala 2009 organized by the 4th respondent was held at hotel Le Meridian on 5th August 2009. The event started at 7.15 pm with the commercial announcement of sponsors of the programme. There were eight juries, 3 women and 5 men, to adjudge the event. The Juries were Mr. Priyadarshan (Film Director) Mrs. Pallavi Krishnan, (Dancer, Mohiniyattom) Mrs. Usha Uthup (Pop Singer) Mrs. Kayshyp Aurora (Actress), Mr. Rajeev (Business man), Mr. Rafeeq Mather (Metro products), Mr. Bala (Actor) and Mr. Naren (Actor).

2. The event consists of designer’s sari round, gown round, casual wear round, question round, and common question round. There were total twenty one contestants .Their names and age are given below

1 Malavika Wales 17*
2 Rose Mary 21
3 Anjusha Jayakumar 20
4 Primrose Pius 18**
5 Sruthi Sathyan 18**
6 Rubila V.P. 18**
7 Chinnu Joe 20
8 Tina Lincon 22
9 Bonny Mary Mathew 22
10 Bhavya CP 20
11 Shringa Sivanand 19**
12 Jaimy Raichel John 23
13 Priya Joby 22
14 Priyanka Rao 21
15 Ninin Kassim 23
16 Nileena Shibu 18**
17 Priyanka Sainath 18**
18 Amalda Joseph 21
19 Geethu Christy 20
20 Archana Nair 20
21 Amrutha Madhu 17*
* Minors being below the age of 18 years.
** Participants aged 18 and 19 years.

3. The participants came in ‘designer sari’ and introduced themselves and made a pageant style walk with a broad smile. The designer Shalini James and Groomer Mayoori Joshy were introduced thereafter. This was followed by a Cinematic dance as a filler of the gap for the contestants to change their dress for the next round. That was the gown round. Participants exhibited themselves in gown and paraded before the audience with an appealing smile. At the end of this round, it was announced that the contestants will be short listed to 16 eliminating the rest from the contest based on the result of the first 2 display rounds. The name of the contestants for the third round was announced. That was followed by yet another cinematic dance (Daddy – Mummy Vettil illa song) to fill the time gap required for the contestants to get ready for the casual wear round. 16 contestants paraded before the audience in casual wears. At the end of this round, 7 contestants out of 16 got eliminated. Now only nine contestants are left in the fray. The next round was question round. Contestants came wrapping Kerala style set and mundu and took position in line at the centre of the stage. The contestants picked up a slip from a container and that jury whose name is written in that slip will put question to that contestant. Each jury thus put one question to the each contestant. Some of the questions put to the contestants were some what like this:

1. If you lose this contest, how will you face tomorrow?
2. What is the concept of Kerala woman?
3. How would you describe love?
4. If God is good, why there is so much suffering in the world?
5. Three roles in woman’s life- daughter, wife, and mother. Who is more important?
6. So much criticism to reality shows. What is your view?
7. Imagine -You have a love from school days. He wants to marry you, but your parents who brought you up with love and care do not agree. If you do not marry, he will commit suicide? What will you do in such situation? Whether you will leave your parents or go with him?
8. Woman is the better half of man. Do you believe? Why?
9. Behind the success of every man, there is a woman. Behind the failure of man, who?

4. In this question answer round, the contestants did not show off in parade, though they came in set and mundu. Thereafter there was a cinematic dance and song. One of the Jury Mrs. Usha Uduppu also sang two songs in English. The lyrics of one song are almost like this. “Girls are lovely, but ladies of Kerala are sweeter, ladies of Kerala will steal your heart, Ladies of Kerala is the best you can see, etc… and one Malayalam song that goes some what like this: Palavattam Kandathannu, College maidanathu….

5. After this filler entertainment, the names of the 5 contestants were announced for the final round. In the final round, 5 contestants came and lined up in the stage positioning behind a podium. They are provided with paper and pen to write answer to a common question? The question was this:
Q. “You wanted to participate in a beauty contest, but your parents and the society object? How will you convince your parents and society?
The answers that I could scribe were somewhat like this:
“Beauty contest is a platform to succeed in life it is all about a passion.’ (Contestant No.5)
“To listen to heart. It is not beauty alone. It is beautiful internally.” (Contestant No.9)
“Girls are representative of the society. Grab the opportunity and come back to the society.” (Contestant No.14)
“According to me I will make them understand that it is the best platform to prove the talent.” (Contestant No.19)
“If you have the will there is a way. You can do it if you have the will.” (Contestant No.20)

6. With this the contest was over. Before the announcement of the result, there was a cinematic dance and a song that was followed by a parade of all contestants in Kerala style set and mundu, which was not part of the beauty contest, rather a show in finale. The girl after the parade was positioned at the background of the stage setting the stage for presenting the Miss Kerala title and other sub titles. First the announcement was made for the winners of sub titles and the contestants whose names were announced came and collected their prizes. Some of the sub titles conferred have titles such as Miss Beautiful smile, Miss beautiful hair, Miss beautiful skin, Miss beautiful eye, Miss beautiful voice, Miss beautiful style, Miss beautiful mind, Miss beautiful Photogenic etc. but no Miss brain. This was followed by the conferment of 2nd runner up and runner up and Miss Kerala title. The event that started at 7.15 pm ended at 11.45 pm.

7. The event passed peacefully. The costumes worn by the contestants were modest. It is understood that even the dress used for the swimming pool photography during the grooming session by the contestants were paijama, chudidar and duppatta which is a remarkable shift that could be brought in by the filing of the Writ Petition. But the dance and songs presented as filler during the show were, to say the least were vulgar. There was hardly any entertainment programme that could be claimed as showing Kerala’s culture and Ethnic. Even the cladding of set and mundu was not a costume prescribed for the contest, though it was used for the coronation ceremony.

8. On the whole, Miss Kerala Beauty Contest represented very little of Kerala tradition, culture and ethnicity. The contest in no manner is a means of testing the talent of the contestants much less their intellect. The first elimination of 5 contestants after the designer sari round and gown round was based on the costume the contestant worn. The credit for the winners in this round in fact should go to the costume, its design, its colour and appearance. The 2nd elimination after the casual round also in fact is based on the costume, its design, its colour and appearance. The role of the contestants is to display the costume. In the 3rd round which was a question round that allegedly is the round which tests the intelligence was only after the elimination of 12 contestants out of 21. That is to say the 12 contestants were eliminated based on their performance on displaying the costumes, its design, its colour and their appearance in artificial make ups. The only talent that determined in the elimination of 12 contestants till the 3rd round was based on their parade in different costumes and not on any intelligence test.

9. In the first question round, there were only 9 contestants. The contestants to the final common question round were selected from the answers given by the 9 contestants for one question put to each contestant by each Jury. The 12 contestants eliminated did not have any opportunity to show their intelligence for a place in the semi final and final round. Perhaps among those eliminated could have displayed better intelligence than those contestants who happened to be placed in the semi finals and finals. (which was on mere costume parade for the title of Miss Kerala). This indicates that the determining factor in beauty contest is not the intelligence of the contestants as the organizers and some of the winners claim. The intelligence test is done only in the semi final and final round that too only among those who have been selected to that round based on their display in different costumes. It is nothing but depiction of their physical body. No other talent like the talent of an orator, singer, dancer, or any other performing artists were put to test. Neither the knowledge of Kerala Culture, Tradition, its History were subject of any test to select the Miss Kerala Beauty. The winner of the contest therefore cannot claim, as the most talented or brainy among the contestants, not to speak of the people of Kerala as a whole. So the title of Miss Kerala is a misrepresentation of the true fact. Perhaps there would have been much strong contest and acceptance in the society had, the event tested the over all talent of the contestants in the field like oratory, song, dance and such other performing arts and knowledge of our culture , traditions, and achievements.

10. Tracing the history of Beauty Contests, we can see that it evolved from bathing-beauty contests in the early-twentieth-century, where women participated in swimsuit competitions in beach resort cities. In 1880, the first “Bathing Beauty Pageant" took place as part of a summer festival to promote business in Rehoboth Beach, Delaware. The Miss America pageant, began in 1921 in Atlantic City, New Jersy, as a promotional venture by the hotelier H. Conrad Eckholm which has later became the standard for American beauty pageants. In beauty pageants that ape the American beauty pageants, “unattractive” contestants are unlikely to win, no matter how talented, poised, intelligent, educated, resourceful or socially conscious they are. Such contests, rather than providing women with opportunities, it hurt the prospects of women who do not fit the current cultural ‘ideal of beauty’ which is nothing but appeal to sexism. Beauty contests of this class may appeal to woman who does not excel in other fields.

11. The first Miss World competition took place in 1951 was followed by pageants of every sort. Miss Teenage California Scholarship Pageant is one that stands distinct from others. It is one that has had no swimsuit competition in over 20 years. The program concentrates on Academic Achievement & Activities, Personality, and Poise and Appearance in Formal Attire. The program awards thousands in college scholarships and prizes. There are also beauty contests for children that are used to boost the confidence of the children and the youth and not mere walking on the ramp for showing the flesh. Beauty contests that make one obsessed with physical appearance, is ridiculous and demeaning the dignity of womanhood. Beauty contests are tolerable as long as a woman realizes that the looks are nice but they aren't everything nor are they the most important thing a woman can have. A woman can still be a valuable and important person even if she is not a stunningly beautiful.

12. The Beauty contests that are being hosted in our state and elsewhere are not that promote Kerala/Indian cultures or that advance our heritage. It is only a replica of the beauty contests that owes its origin to the promotion of the business rather than the talent of the contestants. Unless such contests are regulated or controlled, these events will trample down not only our culture but also the morality of our society. In this context, I remember the famous saying of Franklin D.Roosevell which I quote: “We can not always build the future for our youth but we can build our youth for the future”.

13. The beauty contests are also viewed as part of colonization. In the Book “Encyclopedia of Violence, Peace and Conflict “Volume 2, by Lester R. Kurtz, Jennifer E. Turpin, it is stated thus:
“Beauty contests are another concrete example of gender analysis of colonization and violence. Beauty has very different meanings from the society to the next. However, anthropological studies of beauty contests suggest that there is another level at which beauty operates and that it has important sociopolitical implications. Beauty contests predominantly (although not exclusively) focus on conceptions of female beauty. The international structure of beauty contests that have emerged in the last 40 years is not about a multicultural definition of beauty. These contests have come to represent the transference of White Western definitions of beauty. Regardless of local conceptions of beauty, these contests are often about looking like the Hollywoodized images of super models that help supply the images used to socially construct femininity and female beauty in places such as the United States. Images of beauty of these contests provide artificial and mostly unreachable goals and demand constant work on women’s part to maintain the status of beautiful. The mono-definition of beauty offered by contests such as Miss World and Miss Universe helps to perpetuate the marginalization and domination of cultures that are not White and Western. These contests reflect and reinforce through gender dichotomies the social inequalities of the global political economy. And perhaps more disturbing is the link between the international scope of these contests and the industry of sex tourism. The contests create a globally dominant definition of beauty that is white and western, protected and desexualized. Held in contrast to this is the ‘forbidden’ or ‘exotic’ sexualized beauty of indigenous women who would never win a contest but are fair game for commodification through sex tourism and as prostitutes around military bases. Representations of beauty become a link in the global chain of misogynistic violence. ”

14. This report is submitted with prayer to this Hon’ble Court to appreciate the impact of such events in the youth, our culture and heritage of which even the west envy. This court has a Constitutional obligation to protect our culture and morality securing a dignity to the children and women, as parent patria, rather than being a mute spectator against the actions and omissions of the guardians that exploit their children for peanuts by throwing them to the lustful eyes.

Dated this the 11th day of August, 2009.

Adv. P.K. IBRAHIM
OBSERVER cum PETITIONER.

High court of kerala intervene in the beauty contest and appoints observers

2009-08-04T04:42:00.000-07:00

Kerala High Court admits writ petition challenging ‘Miss Kerala Contest’ and constituted a panel of observers in the wake of allegation that rules may not be followed strictly .The Bench consisting of Hon’ble Mr.Chief Justice Bannurmath and Hon’ble Mr. Justice. Kurian Joseph passed the following order.

“Government Pleader takes notice on behalf of respondents 1 to 3.Shri Bechu Kurien Thomas takes notice on behalf of the 4th respondent. So far as the interim order is concerned we order that the Miss Kerala contest may go on subject to the result of the Writ Petition. However we find that in view of the allegations that the rules may not be followed strictly We appoint the following learned advocates as observers and they may submit a report within one week”.
1. Adv.P.K.Ibrahim
2. Adv.Benjamin Paul.P
3. Adv.Meera.K
4. Adv.T.B.Hood
5. Adv.Bechu Kurian Thomas

See News
Hindu
IndianExpress
Deepika

Judicial remedy sought to ban events that denigrate women.

2009-08-03T08:50:00.000-07:00

BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

W.P.(C) No. ___________ of 2009
PETITIONER:

P.K. Ibrahim, Advocate, aged 52 years, S/o. P.M. Kochu Mohammed, National Council Member, People’s Union for Civil Liberties, residing at ‘Al-Jannah’, I.S. Press Road, Ernakulam, Kochi – 18.
Vs.
RESPONDENTS:

1. The State of Kerala represented by its Chief Secretary, Government of Kerala
Secretariat, Thiruvanathapuram.

2. The District Collector, Ernakulam.

3. The Commissioner of Police, Ernakulam.

4. Impresario Event Management India Ltd., represented by its Managing Director,
5th Floor, Chaithanya Building, Kochi.

WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

The humble Petitioner above named most respectfully submits as follows:

1. Petitioner is the National Council Member of the People’s Union for Civil Liberties. It is an organization engaged in taking public issues concerning violation of civil liberties, human rights and other such issues affecting the public. He is also the President of the People’s Union for Civil Liberties Unit of the Ernakulam District. He is a Lawyer in the High Court of Kerala and a person actively involved in social, environmental and human right issues.

2. Petitioner came across a news item of the 4th Respondent announcing to hold Miss Kerala Pageant 2009 on 31-7-2009 at Hotel Le Meridian, Ernakulam. A true copy of the news item published in the online edition of the Hindu daily is produced herewith and marked for reference as Exhibit-P1. The date of the event was subsequently changed to 5th August 2009. The programme targets young girls and women of Malayalee origin. The Rules and Regulations applicable for the Miss Kerala Pageant 2009 stipulating the eligibility and other conditions of the contestants was also published in the web site of the Miss Kerala Pageant. A true copy of the Rules and Regulations published by the organizers of the programme in the web site www.misskeral.net is produced herewith and marked for reference as Exhibit-P2.

3. As per Ext P2, the programme targets young girls and women of Malayalee origin aged between 16 to 24 with minimum height of 5 feet 2 inches. Entries for the regional auditions have been scheduled at Thiruvananthapuram, Kochi and Kozhikode. The contestants are required to submit a no objection certificate from their parents/guardian to the organizers on their arrival for participation. As per the rules, they are prohibited from talking to any media before, during and after the contest without the prior permission of the organizers. The contestants will not be permitted to have guardian during grooming. They should make themselves available for all press meets and photo/video shoots arranged by the organizers. The contestants cannot opt out after being selected for the finals.

4. As per Ext.P2 Rules and Regulations, the contestants should not take up any other assignments during the pre event and main event and should strictly follow the rehearsals and the grooming sessions. The applicant if wins the pageant should agree to participate in the Miss India Pageant or any such suitable pageant advised by the organizer and abide by the rules and regulations governing the pageant. If the applicants win Miss Kerala she should agree that she will not participate in any other pageant during the time that title is held unless authorized in writing by the organizer. The company has absolute right to use the photographs, interviews and video footages of the contestants for the sales promotion, advertising and live/recording programming.

5. It is further stated in the Rules and Regulations that the organizations are not responsible if the sponsors do not make good the prizes promised by them. It also stated in the rules and regulations that the organizers will not be responsible for any loss and/or physical injury to the applicant during their participation in the pageant and their participation will be their own risk and without any claim against the organizers whatsoever. It is further provided that in the event of any dispute the organizer’s decision will be final and binding.

6. It is submitted that theme of the Miss Kerala Pageant 2009 is ‘Beauty with a purpose’. As name indicates itself, the pageant is for show of beauty with a purpose which they have made it known by stipulating a clause in the Rules and Regulations that “the company has absolute right to use the photographs, interviews and video footages of the contestants for the sales promotion, advertising and live/recording programming.”

7. It is an event organized for exploiting girls and young ones for using their photographs and video footages for sale promotion and for other commercial benefits of the organizers without any liability or obligation to the participants whatsoever. Hence it is nothing but abuse of persons for commercial purpose. The casualty in the programmes of this nature is the dignity, honor and morality of the participants in particular and the society in general.

8. It is the constitutional obligation of the State under Article 39(f) to protect the childhood and youth against exploitation and against moral and material abandonment. The State has got a further obligation under Article 39(e) to ensure that the tender age of children are not abused and the citizens are not forced by economic necessity to enter avocation unsuited to their age or strength. To aid and help the State in achieving these constitutional goals the constitution has made it as a fundamental duty on every citizen in Article 51A(f) to value and preserve the rich heritage of our composite culture and under Article.51A(e) to renounce practices derogatory to the dignity of women. What is going to happen is breach of these Constitutional obligations by the State and its citizens who organize the event.

9. The constitution has empowered the State under Article 15(3) of the Constitution of India to make special provisions for women and children so that this vulnerable class is not only protected from exploitation at the cost of their dignity, honor and moral values but also empower them for a dignified identity in the society. By Giving sanction to events such as Miss Kerala Pageant by the State and its machinery, the State would be failing not only in protecting the young women but also even the minor girls from being induced to participate in such programmes which expose them to a very vulnerable atmosphere where they may be or likely be forced or seduced to sexual exploitation. Therefore these events being immoral and an act of exploitation/abuse of women for commercial purposes, it is the constitutional obligation of the State to impose ban on such events by exercising its power under Article 15(3) of the Constitution of India.

10. In AIR 2002 SC 2235, the Supreme Court held that “Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other mode of sexual abuse.”

11. In AIR 1987 SUPREME COURT 656 "Sheela Barse v. Secretary, Children Aid Society", the Supreme Court has held thus:
“11. In recent years, children and their problems have been receiving attention both of the Government as also of the society but we must say that the problems are of such enormous magnitude that all that has been done till now is not sufficient. If there be no proper growth of children of today, the future of the country will be dark. It is the obligation of every generation to bring up children who will be citizens of tomorrow in a proper way. Today's children will be the leaders of tomorrow who will hold the country's banner high and maintain the prestige of the Nation, If a child goes wrong for want of proper attention, training and guidance, it will indeed be a deficiency of the society and of the Government of the day. A problem child is indeed a negative factor. Every society must, therefore, devote full attention to ensure that children are properly cared for and brought up in a proper atmosphere where they could receive adequate training, education and guidance in order that they may be able to have their rightful place in the society when they grow up.”

12. As per the Majority Act, 1875, every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. In the Juvenile Justice (Care and Protection of Children) Act, 2000, "juvenile" or "child" means a person who has not completed eighteenth year of age. According to this Act "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and "offence" means an offence punishable under any law for the time being in force. In the Immoral Traffic (Prevention)] Act, 1956, "minor" means a person who has completed the age of sixteen years but has not completed the age of eighteen years and the "prostitution" means the sexual exploitation or abuse of persons for commercial purposes, and the expression "prostitute" shall be construed accordingly. "Public place" under the said Act means any place intended for use by or accessible to, the public and includes any public conveyance. As per the Act “brothel" includes any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more. A scrutiny of these Acts and its provisions speaks itself about the gravity of the offence committed by the organizers of the Miss Kerala pageant and other such shows including modeling.

13. The Hon’ble Supreme Court has struck a note examining the apathy of the state in the case reported in AIR 1990 SUPREME COURT 1412 "Vishal Jeet v. Union of India" Constitution of India, thus:
“In spite of these stringent and rehabilitative provisions of law under various Acts, it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi-dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring most rational measures to weed out the vices of illicit trafficking. This malady is not only a social but also a socio-economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive.”

14. One of the most important features of the Indian Constitution is morality. The right of the State to impose such restrictions as are desired or found necessary on grounds of decency, public order, health and morality is inbuilt in Articles 19(2), and 23. The ordinary dictionary meaning of 'decency' indicates that the action must be in conformity with the current standards of behaviour or propriety, etc. In Knuller (Publishing, Printing and Promotions) Ltd., v. Director of Public Prosecutions, (1972) 2 All ER 898, the meaning of 'indecency' was indicated as under:
''......... Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking. Disgusting and revolting........''

15. The State and its machinery cannot brush aside events such as Miss Kerala Pageant without taking cognizance of the offence committed by the hosting of such events. Hosting of event like Miss Kerala Pageant itself is an offence punishable under Section 294 of the Indian Penal Code in as much as the parading of girls and young women in swim suits and other such costumes are obscene acts (actions offending accepted sexual morality of Indian ethos) and causing annoyance to the majority of the people who uphold morality due to their religious influence. Further the State is bound to take action against the organizations of such events who are inducing minor girls to participate in such events under the offer of attractive title such as Miss Kerala Pageant, with intent that such girls may be or knowing that it is likely to be forced or seduced to sexual exploitation, which is made punishable under the provisions of the Indian Penal Code.

16. The events such as Miss Kerala Pageant are the result of a criminal conspiracy to do an illegal act giving glamour to the event. It is an act that conceals the design of committing an offence punishable with imprisonment. The organizers of the Miss Kerala Pageant are guilty for abating offence punishable under Indian Penal Code. They abate an offence under Section 294 of the Indian Penal Code.

17. It is submitted that procuring or inducing or taking a person to exploit/abuse for commercial purpose is an offence punishable under the Immoral Traffic (Prevention) Act, 1956. The State has enacted Young Person – Harmful Publication Act, 1956 with a view to protect young persons from being corrupt. This being the policy of the State it is incomprehensible to see the State as a mute spectator against such events without taking cognizance of it .The organizers seize the opportunity in such events to photograph and make video footage of the young participants for sale promotions, advertising and live/recording programmes. In fact by permitting such events, the State is allowing its organizers to make wrongful gain causing wrongful lose. Such act / omission on the part of the State are highly reprehensible. Admittedly the organizers have to be booked under Section 292A of the Indian Penal Code.

18. It is submitted that the grooming session of the Miss Kerala Pageant have many sessions of parade in various costumes such as swim suits and evening gowns. The training include the contestant’s Poise and appearance, walking, standing, sitting, turning, entering and existing on the stage and off. These trainings are not aimed to enhance the dignity, honor and morale of the womanhood but acts of demeaning morals. The event takes place under an iron curtain and open only to selected few who confides the organizers.

19. The children are the future of the nation and their grooming should not be for show of bodies and its contours. Their grooming in an intellectual manner is necessary for building up a healthy nation imbibing qualities of morality and social values for preserving the pristine culture and heritage of this great nation. In the name of modernism, the younger generation of this country through organizing such events across the nation are being shown the western culture which is admittedly bereft of any social values and morality. The number of such events is increasing and the shows are going unchecked by the State, despite its constitutional obligation, with the result the young mind of the nation is now engulfed in Reality shows in the electronic media which has transcended all the limits posing great danger to the concept of family. To name one of such reality show, the reality shows now being telecasted in Star TV under the name ‘Such ka Samna’ is a classic example. It has recently triggered a controversy by the disclosure of high profiled celebrities proudly announcing in electronic media that they have sex outside the marriage and sex before the marriage. Such disclosures have even shocked their husbands and children. The glamorous title being a trap for the youngsters under the name of empowerment, it is the constitutional obligation of the state to ban such events that lead to exploitation of girls and young persons. Popularization of such events will even deprive the sense of morality that we have now and will accelerate the drifting of the society into sin/evil and will give way to a situation similar to the one leading to the scrapping of Section 377 IPC.

20. It is submitted that the public order, health and morality to which the constitution is committed is in doldrums and the majority of the Indian citizen finding helplessness to withstand the onslaught launched by the electronic media funded by the multinational companies. The State despite its constitutional obligations however is seen playing the role of a silent spectator without taking any effective measure .This justifies the intervention of the court.

In the circumstance, Petitioner, having regard to the importance of the issue involved, is compelled to approach this Hon’ble Court, in Public interest under Article 226 of the Constitution of India having left no other alternative remedy on the following among other:

GROUNDS

A. It is the constitutional obligation of the State under Article 39(f) to protect the childhood and youth against exploitation and against moral and material abandonment. The State has got a further obligation under Article 39(e) to ensure that the tender age of children are not abused and the citizens are not forced by economic necessity to enter avocation unsuited to their age or strength. As per the Majority Act, 1875, every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. Miss Kerala Pageant scheduled on 5-8--2009 at Hotel Le Meridian, Ernakulam by the 4th respondent targets young girls and women of Malayalee origin aged between 16 to 24 with minimum height of 5 feet 2 inches. The grooming session of the Miss Kerala Pageant have many sessions of parade in various costumes such as swim suits and evening gowns .The training include the contestant’s Poise and appearance , walking, standing, sitting, turning, entering and existing on the stage and off. These trainings are not aimed to enhance the dignity, honor and morale of the womanhood but acts of demeaning morals. The event takes place under an iron curtain and open only to selected few who confides the organizers. As per Ext P2 Rules and Regulations the contestants are required to submit a no objection certificate from their parents/guardian to the organizers on their arrival for participation. The contestants will not be permitted to have guardian during grooming. They are even prohibited from talking to any media before, during and after the contest without the prior permission of the organizers. They should make themselves available for all press meets and photo/video shoots arranged by the organizers and the company has absolute right to use the photographs, interviews and video footages of the contestants for the sales promotion, advertising and live/recording programming. The theme of the Miss Kerala Pageant 2009 is ‘Beauty with a purpose’. As name indicates itself, the pageant is for show of beauty with a purpose which they have made it known by stipulating a clause in Ext P2 Rules and Regulations that “the company has absolute right to use the photographs, interviews and video footages of the contestants for the sales promotion, advertising and live/recording programming.” It is an event organized for exploiting girls and young ones for using their photographs and video footages for sale promotion and for other commercial benefits of the organizers. Hence it is nothing but abuse of persons for commercial purpose. The organizers are guilty of abusing the children below the age of 18 years and young women for commercial purpose. Miss Kerala Pageant event is an act that conceals the design of committing an offence punishable with imprisonment under Section 294 of the Indian Penal Code. The respondents 1 to 3 are bound to take action against the 4th respondent.

B. The State and its machinery cannot brush aside events such as Miss Kerala Pageant without taking cognizance of the offence committed by the hosting of such events. Hosting of event like Miss Kerala Pageant itself is an offence punishable under Section 294 of the Indian Penal Code in as much as the parading of girls and young women in swim suits and other such costumes are obscene acts (actions offending accepted sexual morality of Indian ethos) and causing annoyance to the majority of the people who uphold morality due to their religious influence. Further the State is bound to take action against the organizations of such events who are inducing minor girls to participate in such events under the offer of attractive title such as Miss Kerala Pageant, with intent that such girls may be or knowing that it is likely to be forced or seduced to sexual exploitation, which is made punishable under the provisions of the Indian Penal Code.

C. Procuring or inducing or taking a person to exploit/abuse for commercial purpose is an offence punishable under the Immoral Traffic (Prevention) Act, 1956. The State has enacted Young Person – Harmful Publication Act, 1956 with a view to protect young persons from being corrupt. This being the policy of the State it is incomprehensible to see the State as a mute spectator against such events without taking cognizance of it .The organizers seize the opportunity in such events to photograph and make video footage of the young participants for sale promotions, advertising and live/recording programmes and is committing offence punishable under Section 292A of the Indian Penal Code. In fact by permitting such events, the State is allowing its organizers to make wrongful gain causing wrongful lose. Such act / omission on the part of the State are highly reprehensible.

D. The children are the future of the nation and their grooming should not be for show of bodies and its contours. Their grooming in an intellectual manner is necessary for building up a healthy nation imbibing qualities of morality and social values for preserving the pristine culture and heritage of this great nation. In the name of modernism, the younger generation of this country through organizing such events across the nation are being shown the western culture which is admittedly bereft of any social values and morality. The glamorous title being a trap for the youngsters under the name of empowerment, it is the constitutional obligation of the state to ban such events that lead to exploitation of girls and young persons. Popularization of such events will even deprive the sense of morality that we have now and that ‘we the people of India’ resolved to uphold while adopting a Constitution for our sovereign State.

E. The State has enacted Young Person – Harmful Publication Act, 1956 with a view to protect young persons from being corrupt. This being the policy of the State it is incomprehensible to see the State as a mute spectator against such events without taking cognizance of it The public order, health and morality to which the constitution is committed is in doldrums and the majority of the Indian citizen finding helplessness to withstand the onslaught launched by the electronic media funded by the multinational companies. One of the most important features of the Indian Constitution is morality. The right of the State to impose such restrictions as are desired or found necessary on grounds of decency, public order, health and morality is inbuilt in Articles 19(2), and 23. The constitution has empowered the State under Article 15(3) of the Constitution of India to make special provisions for women and children so that this vulnerable class is not only protected from exploitation at the cost of their dignity, honor and moral values but also empower them for a dignified identity in the society. Therefore these events being immoral and an act of exploitation/abuse of women for commercial purposes, it is the constitutional obligation of the State to impose ban on such events by exercising its power under Article 15(3) of the Constitution of India.

F. By Giving sanction to events such as Miss Kerala Pageant by the State and its machinery, the State would be failing not only in protecting the young women but also even the minor girls from being induced to participate in such programmes which expose them to a very vulnerable atmosphere where they may be or likely be forced or seduced to sexual exploitation. These are the sources that lead our girls and young ones to immoral trades and finally brand them as fallen women. The state may have rehabilitation programme for fallen women and for their progeny but the action is desired in the direction to plug the loop holes including banning of such events which are more often alleged accused being the recruitment agencies.

For these and other grounds that may be urged at the time of hearing, it is most humbly prayed that this Hon’ble Court may be pleased to:

i) to declare that events such as Miss Kerala, Reality shows and such other events involving girls and young women are against the decency , morality, health and public order therefore are illegal;

ii) direct the Respondents 1 to 3 to appoint a panel to study the nature of such events, its impact on the young girls and young women and recommend measures to be taken by the government for protecting children and young women from being exploited for commercial purposes in the name of empowerment and liberty;

iii) issue a writ of mandamus or any other appropriate writ directing the Respondents 1 to 3 to ban the hosting of Miss Kerala 2009 by the 4th Respondent;
and

iv) pass such other writ, direction or order deemed necessary in circumstances of the case.

Dated this the 30th day of July, 2009.

P E T I T I O N E R:

Save the nation before it is doomed to sexual anarchy.

2009-07-27T03:35:00.000-07:00

Save the nation before it is doomed to sexual anarchy.
By
Adv.P.K. Ibrahim, High Court Of Kerala.
Member, National Council, Peoples Union for Civil Liberties
advpkibrahim@yahoo.co.in
(Mob. 9447030386)

Impresario Event Management India Ltd has announced to hold Miss Kerala Pageant on 5th August, 2009 at Hotel Le Meridian, Ernakulam. The programme target young girls and women of Malayalee origin aged between 16 to 24 with minimum height of 5 feet 2 inches. Entries for the regional auditions have been scheduled at Thiruvananthapuram, Kochi and Kozhikode. The contestants are required to submit a no objection certificate from their parents/guardian to the organizers on their arrival for participation and that they should be make themselves available for all press meets and photo/video shoots arranged by the organizers. As per the rules and regulations the contestants will not be permitted to have guardian during grooming. They are prohibited from talking to any media before, during and after the contest without the prior permission of the organizers. The company has absolute right to use the photographs, interviews and video footages of the contestants for the sales promotion, advertising and live/recording programming.

Miss Kerala Pageant is an event under the banner ‘Beauty with a purpose’. As the name indicates itself, the pageant is for show of beauty with a purpose which they have made it known by stipulating a clause in the Rules and Regulations that “the company has absolute right to use the photographs, interviews and video footages of the contestants for the sales promotion, advertising and live/recording programming.” The event is preceded by a grooming session .It include a parade in swim suits and evening gowns .In grooming session the contestant’s are given training in Poise and appearance , walking, standing, sitting, turning, entering and existing on the stage and off. These trainings are not aimed to enhance the dignity, honor and morale of the womanhood but acts of demeaning morals. The event takes place under an iron curtain and open only to selected few who confides the organizers. Precisely, it is an event organized for exploiting girls and young ones for using their photographs and video footages for sale promotion and for other commercial benefits of the organizers without any liability or obligation to the participants. Hence it is nothing but abuse of persons for commercial purpose. The casualty in the programmes of this nature, is the dignity, honor and morality of the participants in particular and the society in general.

One of the most important features of the Indian Constitution is morality. The right to freedom of speech and expression, and to practice any profession or to carry on any occupation, trade or business though is a fundamental right, the power of the State to impose such restrictions as are desired or found necessary on grounds of public order, decency, health, morality or incitement to an offence is inbuilt in Articles 19(2) itself. The ordinary dictionary meaning of 'decency' indicates that the action must be in conformity with the current standards of behaviour or propriety, etc. In Knuller (Publishing, Printing and Promotions) Ltd., v. Director of Public Prosecutions, (1972) 2 All ER 898, the meaning of 'indecency' was indicated as under:
''......... Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting........''

The constitution has empowered the State to make special provisions for women and children so that this vulnerable class is not only protected from exploitation at the cost of their dignity, honor and moral values but also empower them for a dignified identity. [Article 15].It is the constitutional obligation of the State to protect the childhood and youth against exploitation and against moral and material abandonment. [Article 39(f)]. The State has got a further obligation to ensure that the tender age of children are not abused and the citizens are not forced by economic necessity to enter avocation unsuited to their age or strength.[See Article 39(e)]. To aid and help the State in achieving these constitutional goals the constitution has made it as a fundamental duty on every citizen to value and preserve the rich heritage of our composite culture [Article.51A(f)] and to renounce practices derogatory to the dignity of women.[Article.51A(e)] .

Apart from this, India being a party to the Declaration of all the rights of the child adopted by the General Assembly of the United Nations in 1959, and the International Covenant on Civil and Political Rights 1966, it is an obligation of the Government of India to implement its provisions in the proper way. The Children Act, 1948 has made elaborate provisions to cover all the rights of the child and if these provisions are properly translated into action and the authorities created under the Act become cognizant of their role, duties and obligation in the performance of the statutory mechanism created under the Act and they are properly motivated to meet the situations that arise in handling the problems, the situation would certainly be very much eased.
In "Sheela Barse v. Secretary, Children Aid Society"( AIR 1987 SUPREME COURT 656) the Supreme court has observed thus:
“It is the obligation of every generation to bring up children who will be citizens of tomorrow in a proper way. Today's children will be the leaders of tomorrow who will hold the country's banner high and maintain the prestige of the Nation, If a child goes wrong for want of proper attention, training and guidance, it will indeed be a deficiency of the society and of the Government of the day. A problem child is indeed a negative factor. Every society must, therefore, devote full attention to ensure that children are properly cared for and brought up in a proper atmosphere where they could receive adequate training, education and guidance in order that they may be able to have their rightful place in the society when they grow up.”

As per the Majority Act, 1875, every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. In the Juvenile Justice (Care and Protection of Children) Act, 2000, "juvenile" or "child" means a person who has not completed eighteenth year of age. According to this Act "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and "offence" means an offence punishable under any law for the time being in force. In the Immoral Traffic (Prevention)] Act, 1956, "minor" means a person who has completed the age of sixteen years but has not completed the age of eighteen years and the "prostitution" means the sexual exploitation or abuse of persons for commercial purposes, and the expression "prostitute" shall be construed accordingly. "Public place" under the said Act means any place intended for use by, or accessible to, the public and includes any public conveyance. As per the Act "brothel" includes any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more .

The State has enacted Young Person – Harmful Publication Act, 1956 with a view to protect young persons from being corrupt. This being the policy of the State it is incomprehensible to see the State as a mute spectator against such events without taking cognizance of it .The organizers seize the opportunity in such events to photograph and make video footage of the young participants for sale promotions, advertising and live/recording programmes.

A scrutiny of these Acts and its provisions speaks itself about the gravity of the offence committed by the organizers of the Miss Kerala pageant and other such shows. The Honble Supreme Court has struck the following note on the apathy of the state in the case reported in AIR 1990 SUPREME COURT 1412 "Vishal Jeet v. Union of India":
“In spite of these stringent and rehabilitative provisions of law under various Acts, it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi-dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring most rational measures to weed out the vices of illicit trafficking. This malady is not only a social but also a socio-economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive.”

The State and its machinery cannot brush aside such events without taking cognizance of the demoralization happening in the society. Hosting of events like Miss Kerala Pageant itself is an offence punishable under Section 294 of the Indian Penal Code in as much as the parading of girls and young women in swim suits, evening gowns and other such costumes are obscene acts (actions offending accepted sexual morality of Indian ethos) and causing annoyance to the majority of the people who uphold morality due to their religious influence. Further these events are the result of a criminal conspiracy to do an illegal act giving glamour to the event. It is an act that conceals the design of committing an offence punishable with imprisonment. In fact by permitting such events, the State is allowing its organizers to make wrongful gain causing wrongful lose. Such act / omission on the part of the State are highly reprehensible.

The children are the future of the nation and their grooming in an intellectual manner for building up a healthy nation imbibing qualities of morality and social values is fundamental for preserving the pristine culture and heritage of this great nation. In the name of modernism, the western culture which is admittedly bereft of any social values and morality is thrust on the younger generation of this country through organizing such events across the nation. The number of such events is increasing and the shows are going unchecked by the State, despite its constitutional obligation, with the result the young mind of the nation is now engulfed in Reality shows in the electronic media which has transcended all the limits of morality and social order posing great danger to the concept of family. To name one of such reality show , the reality shows that is being telecasted in Star TV under the name ‘Such ka Samna’ recently has triggered a controversy by telecasting the live disclosure of high profiled celebrities proudly announcing that they have sex outside the marriage and sex before the marriage. Such disclosures have even shocked their husbands and children. The glamorous title being a trap for the youngsters under the name of empowerment, it is the constitutional obligation of the state to ban such events that lead to exploitation of girls and young persons. Popularization of such events will even deprive the sense of morality that we have now and doom the whole nation in to sin and social evils creating a situation similar to the one happened by the Judgment of Delhi High Court in the matter of Section 377 of the I.P.C.

By giving sanction to events such as Miss Kerala Pageant, the State and its machinery, would be accused of lacking political will in protecting not only the minor girls but the young women from being induced to participate in such programmes which expose them to a very vulnerable atmosphere where they may be or likely be forced or seduced to sexual exploitation, fearing the wrath of electronic Media and its Multi national business magnets. Therefore the Government should stand steadfastly in discharging its constitutional obligations and ban the events that lead to exploitation/abuse of women for commercial purposes, exercising its power under Article 15(3) of the Constitution of India.

Before the matter goes worse through the medium of Miss Kerala, Miss India , reality shows etc., let the Government act in the interest of the nation for upholding its constitutional obligation in protecting the dignity and honour of the individuals especially the children and women .Save the nation before it is doomed to sexual anarchy.

Meaning of Summa Ameen

2009-07-20T07:21:00.000-07:00

Meaning of Summa Ameen is re-iteration of the first Ameen.
The effect of which is more than saying Ameen twise .
For details see Summa Ameen.

Media trial – an assault on human rights

2009-07-17T21:04:00.000-07:00

Media trial – an assault on human rights
By
P.K. Ibrahim, Advocate, High Court Of Kerala.
Member, National Council, Peoples Union for Civil Liberties
advpkibrahim(at)yahoo(dot)co(dot)in
(Mob. 9447030386)

Media trial, both print and electronic, is an act designed to create a perception in the mind of the public, regarding the guilt of a person alleged to have committed a crime, which has the potentiality of influencing even the competent court adjudicating the matter in accordance with the procedure established by law. It is nothing but a pretrial by the media based on materials collected by it, without scrutinizing its evidentiary value required under law for its acceptance, and pronouncing judgment before the law takes its course. Such trials inflict irreparable injury not only to the person subjected to trial but also to the institution administering justice. One of the principles of natural justice is that the adjudicating authority must be impartial and must act without any kind of bias. The said rule has its origin from the maxim known as 'Debet Esse Judex in Propria Causa', which means that justice not only be done but should manifestly be seen to be done. This could be possible only when a Judge or an adjudicating authority decides the matter impartially and without any prejudice or bias about the case. In media trial, even the lawyers and judges get influenced and they approach the case with a preconceived notion thereby the principle that justice is not only be done but should manifestly be seen to have been done is observed in breach and the case is being tried in a hostile atmosphere.

Presumption of innocence is a human right. (See para-31, AIR 2004 SUPREME COURT 3249 "Narendra Singh v. State of M. P.”) In the media trial this human right find no place as it proceed to establish quilt determinedly. Right after the incident, the media begins its trial and the story is presented as if the accused is the real culprit. The news is celebrated and the price of the time slot for advertisement shoots up and media harvest money at the cost of one’s dignity, honour and right to life and liberty as guaranteed under Article 21 of the Constitution of India.

In our administration of criminal justice the primary burden is on the prosecution to prove accused guilty save when a statute displaces the presumption of innocence. An accused is presumed to be innocent unless the prosecution by producing evidence proves him guilty of the offence with which he is charged. Benefit of doubt belonged to the accused. Suspicion, howsoever grave may be, cannot take place of a proof. In "Valson v. State of Kerala", Supreme Court has held that a person has, therefore, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt( 2008 AIR SCW 5203 Para-33). Doubts must be actual and substantial .A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. Doubts would be called reasonable if they are free from a zest for abstract speculation. It must be free from an overemotional response. ("Valson v. State of Kerala" supra Para 34). In media trial, even the evidence not admissible in a court of law is given prominence, out of overemotional response to hold the accused quilty. There is thus travesty of justice in all fronts

“No person shall be deprived of his life and liberty except according to procedure prescribed by law” is a constitutional guarantee extended to all persons without any exception. The state prosecuting a person has therefore a constitutional obligation to ensure fair trial and make its procedure meaning full rather than reducing it as a mere mockery. This essentially means creation of an atmosphere that inspires confidence in the administering justice system. In the cases of media trial, the presumption innocence is overturned, and the person accused of an offence is made to stand for trial as convict. In such a state, what confidence it will inspire in the judicial system is a matter for any one to guess.

The role of the media in a democracy is to present facts or news and raise public issues to bring about public awareness to ensure good governance. Transparency and accountability is therefore applicable to all including the media which is said to be the fourth estate. The media being a watch dog of the society cannot afford to assume the role of an executioner. Unfortunately, whether deliberately or otherwise, in media trial, it is assuming the role of an executioner. The reason for such perception is its lack of sensitivity to the rights of the accused in reporting news about the crime and the accused, unmindful of its consequences in the administration of justice system.

The media plays significant role in the formation of public opinion. More credibility is given to printed and visual materials by the common man without realizing for a moment that the information supplied by the media is potential to cover up the true facts by misguiding and misleading them. In such traps even judicially trained people fell pray. On the face of a public opinion formed against an accused, it would be rather difficult to a judge to pronounce judgment, without staking the credibility of the institution.

Media trial at times have even resulted in denial of legal assistance to the accused. The public opinion generated by news coverage, have inhibited even lawyers to accept brief, much less a brief by way of legal aid, at the instance of the court. Thus an accused person is compelled to face trial without a competent lawyer of his choice to prove his innocence, thereby making the trial a farce and the finding of guilty in default thereof. Justice is made causality by non other than the media, which is supposed to stand for equity, justice and fair play.

Right to speech and expression, no doubt is a guaranteed fundamental right under Article 19(1) (a) of the Constitution of India but what is to be remembered is that that right is not absolute and unqualified. It is subject to reasonable restriction under Article 19 (2) of the Constitution. Contempt of Court Act is a legislation that imposes restriction upon the right to speech and expression. As per section 2 of the Contempt of Court Act, any act that interferes with administration of justice is a criminal contempt. Therefore, publications which interfere or tend to interfere with the administration of justice amount to criminal contempt under the contempt of court Act. But under section 3(2) of the Contempt of Court Act, 1971 read with explanation, a judicial proceeding is said to be pending only if charge sheet or challan is filed or summons or warrant are issued by the Court .Therefore publications made prior to the filing of charge sheet and or issue of summons by the court, cannot be called in question for contempt being a matter not sub-judice. The media making use of this loophole complete its trial simultaneously as the investigation progress and finally pronounce judgment on the day the prosecuting agency files its charge sheet. That is to say before the actual trial begins as contemplated in law, the media completes its trial leaving in real sense, to the court of law to pronounce the punishment. By any chance the court acquit the accused, the media will rise up in arms and exhort all to bombard the Institution for the “failure of justice”. Should this be allowed? If not what is the remedy?

It is not that the seriousness of the issue has not been brought to the notice of the Government. The government is well aware of the implications of media trial and its prejudicial impact on the suspects, accused, witnesses and even Judges and in general, on the administration of justice. In the 200th report of the Law Commission on Trial by Media, the Commission recommended to amend Explanation to sec. 3 prescribing the starting point of judicial proceeding in relation to the commission of an offence from the date of ‘arrest’ instead of the date of filing of charge sheet. This will do away with the media trial. But alas, like many other reports, this report of the law commission is also kept in cold storage. The apathy of the government indicates its insensitivity and lack of concern to the human right of the person unfortunately becoming victim to such high profiled cases of media coverage.

This inaction must be exposed and all human right activists and social groups having concern in the flow of pristine justice must collectively enforce the demand for an amendment to the Contempt of Court Act 1971 in the line proposed by the Law commission headed by Justice Jagannatha Rao.
************

Why polygamy in Islam

2009-07-17T10:31:00.000-07:00

Why polygamy (in the sense of polygyny) in Islam.
By
Adv.P.K.Ibrahim
High Court of Kerala
advpkibrahim(at)yahoo(dot)co(dot)in
Mobile.9447030386.

Islam enjoins marriage on its followers. Marriage is regarded as a religious duty and a moral safeguard. The word "zawj" used in Qur'an refers to mate or companion to mean a wife in the wedlock. The general purpose of marriage is to provide company to one another, love to one another, procreate children and live in peace and tranquility. Quran says:
“And of His Signs is this that He has created for you mates from your own species that you may find peace with them, and created love and mercy between you. Surely in this there are many Signs for those who reflect.”(30:22)

“Marry those of you that are single, (whether men or women) and those of your male and female slaves that are righteous. If they are poor, Allah will enrich them out of His Bounty. Allah is infinite in His resources and All-Knowing. Let those who cannot afford to marry keep themselves chaste until Allah enriches them out of His Bounty.”(Qura’n Annoor 24:32)

Prophet claimed marriage as his tradition and said:“He, who does not follow my tradition in religion, is not from me (not one of my followers)." Volume 7, Book 62, Number 1 Translation of Sahih Bukhari.

Prophet exhorted: "O young man those among you who can support a wife should marry, for it restrains eyes from casting (evil glances), and preserves one from immorality". Sahih Muslim, Ch. (The Book of Marriage) Hadith No.3213, p.703. See also Hadith Nos.3232 to 3235.

In the pre-Islamic era, a man could have as many wives as he chose and the women were treated like chattel without any right whatsoever. Polygamy was practiced, without limitations. It was there before and continues even after Islam. It is not a by product of Islam. Rather its attempt is to limit its scope, make it more humane and ensure equal rights and equal status for all wives in polygamy. Islam provides certain legal requirements and insulates polygamy from its abuse. The Quranic decrees, taken together, demonstrate this aspect.

The practice of a male having more than one wife is known as polygyny and the practice of a female having more than one spouse is called polyandry. The practice of spouses having multiple partners is referred to as polygamy. Here reference to polygamy is used in the sense of polygyny.

The reason for not prohibiting polygamy is due to the fact that there are certain conditions which face individuals and societies in different places at different times, which make the limited practice of polygamy a better solution than either divorce or the hypocritical pretence of morality.When one analyzes the reasons and results of the allowance of polygamy, rather than its explicit prohibition, it will be found that indeed the rulings of the religion of Islam are truly those which suits all times and places.

The approach of men and women differ in their desire for sex. These differences are universal. Men everywhere - whether single or married – is inclined for more sexual partners than women do. According to David Schmitt, a psychologist in Bradley University “Islamic solution provides the only responsible alternative to the naturally ingrained desire in men” (Source: Journal of Personality and Social Psychology. The study involved 16,288 college students from 50 countries in the Americas, Europe, Africa, Asia, and, Australia. ).

While there are individuals who could be monogamous, there is no human society that is strictly monogamous. Western society has long conceded that monogamy can only exist if supplemented by chains of mistresses and affairs. We have also seen what celibacy is all about. It is not only about mistresses and affairs but also child abuse, sodomy and what not? The west has been in trouble simply because they only seek to enjoy the benefits without taking the responsibilities that went with it.

Islam knows that human society is not monogamous. It bravely faces the realities and regulates it with stringent conditions so that justice and fairness is ensured and society is saved from aftermath of its evil effects.

The Verse approving polygamy but limiting its practice was revealed after the battle of Uhud in which many Muslims were killed, leaving widows and orphans for whom due care was incumbent upon the Muslim survivors. The issue of polygamy in Islam is therefore understood in the light of community obligations towards orphans and widows. It is tolerated as a compelling social obligation to meet varied situations confronting human beings. The permission itself is given subject to satisfying certain conditions as is clear from the following verses in the Quraan(4:3):

"If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly (with them), then (marry) only one…"

From this verse it is clear that polygamy is neither made mandatory, nor encouraged, but merely permitted and that too out of compassion towards widows and orphans, a matter that is confirmed by the context in which the verse was revealed. But even in such a situation, the permission is restricted with a condition not known to the normal practice that existed till then.

To deal justly with one’s wives is an obligation fastened by the above verse, failure of which negates one’s right to claim the benefit the provision. The above verse, when read with another verse in the same chapter, (that: "You are never able to be fair and just between women even if it is your ardent desire…" Qur’an 4:129.), it is clear that polygamy is not a rule for normal practice but for a use, sparingly. If one is not sure of being able to deal justly with wives, the writ then applicable is: "then (marry) only one." (Qur’an 4:3).

The command to deal justly however does not mean justness in all counts. The verse provides a guideline as to the mischief it sought to remedy by such condition. The word ‘justly’ applies to housing, food, clothing, kind treatment…etc. and exhorts “not to incline too much to one of them (by giving her more of your time and provision) so as to leave the other hanging”.

This approach of Islam rules out the concept of any secondary position to any in the polygamous marriage, for all wives has exactly the same status and identical rights and claims over their husband. It also implies, according to the Islamic Law, that should the husband fail to provide enough support for any of his wives, she can go to court and enforce their right or ask for a divorce.

Marriage in Islam is a civil contract which is not valid unless both contracting parties consent to it. As to the first wife she may be barren or ill and to her polygamy may be a better solution than divorce. She may however has a right to go to court and ask for a divorce if there is evidence of mistreatment or injustice inflicted upon her. When polygamy is loaded with such constraints, Is it possible to content that it would have been better if Islam had foreboded it? To answer this question, we may have to find answer to another question: Is Polygamy a better solution in some cases? Take the following incidences.

A man desires to have children and heir but find his wife barren. In a situation like this, that man would either have to suffer without fulfilling this desire for life or divorce his barren wife to get married to another woman. In many cases, neither solution can be considered as the best alternative. There the answer is Polygamy which has the advantage of not only preserving the marital relationship with the barren woman but also fulfilling the desire of fathering children of his own.

Likewise a man whose wife becomes chronically ill has to either suppress his instinctive sexual needs for the rest of his life or he may divorce his sick wife and get married to another woman, thus legally satisfying his instinctive needs or he may keep his sick wife, and secretly take for himself one or more illicit sex partners. Let us discuss these alternatives from the stand point of view of Islamic Teaching. The first alternative is against human nature. Islam recognizes sex and sexual needs and provides legitimate means for their satisfaction. The second alternative is less compassionate and bereft of human considerations especially where there is love between two parties. The last solution is plainly against the Islamic teaching which forbids illicit sexual relationships in any form. Polygamy is the only alternative to address such marital problems. Instead of divorcing a sick or infertile wife, Islam permits a man to marry another woman while taking care of the first if she chooses to stay with him.

To sum up, Islam being against immorality, hypocritical pretence of morality and against divorce provides for a better alternative which is consistent with human nature and with the preservation of pure and legitimate sex relationships.

Polygamy is also an alternative for a man who desires to satisfy his natural sexual relations within the bounds of marriage, but whose wife may be averse to sex due to age or sickness. Moreover, Islam prohibits sexual relations during a woman’s monthly cycles. Therefore, the prolonged menstrual period of the woman which prevents the husband from having sex with her, or a man whose sexual urge is not satisfied by one wife, may marry another. Islam permits such men to realize their desire within a legal framework, making them responsible for their sexuality.

Let us consider its societal effect. The number of unmarried women and widows exceed the number of men consequent to men dying in wars, violent crimes, and women outliving men. The upsurge in homosexuality further increases the problem. Bertrand Russell wrote:

“And in all countries where there is an excess of women, it is an obvious injustice that those women who, by arithmetical necessity, must remain unmarried and should be wholly debarred from sexual experience.”(Marriage and Morals, p. 47.)

The instinctive needs of human beings unless legitimately satisfied, will lead to corruption and immorality. The women will become tools for men’s pleasures, without any personal, financial or emotional security or rights whatsoever. Should they become pregnant, it is their burden alone. But even if such women are allowed to pay the price personally, the price that cost to the society is colossal. The increasing number of illegitimate children born today under such conditions provides a potential base for criminals. Furthermore it is inhuman, humiliating for those children to grow p without knowing who their fathers were. Polygamy, then, is the only responsible solution for this predicament.

Islam thus goes deeper into the problems of individuals and societies, and provides for legitimate and clean solutions that are far more beneficial than the hypocritical stand against polygamy. Islam finds in polygamy a practical solution to deal with problems that may be confronted in marital relations.

There is no doubt that the second wife legally married and treated kindly is better off than a mistress without any legal rights or security. There is also no doubt that the legitimate child of a polygamous father, enjoys better rights and privileges than the illegitimate child (especially if it is a girl) born in an extra marital relation.

Venereal diseases spread in promiscuous societies where extra-marital affairs and prostitution are widespread. This may be due to a husband’s bringing back the diseases he is infected with in an extramarital affair when he returns back to his ‘monogamous’ relationship with his wife. Institutional polygamy controls the spread of sexually transmitted diseases.

One should appreciate the fact that in Islam monogamy is the rule and polygamy is an exception. Islam allows it under strict conditions and when no better alternative is available. Marriage being a contract in Islam, the contracting parties can opt out off polygamy in their contract, if they want to remain monogamous. Muslim women or men who feel outrageous by the provision for polygamy can opt out of polygamy in their contract as Islam permit one to include such conditions and remain still within the fold of Islam.

Islam, by its nature, is a universal religion revealed by God to guide people in all places at all times. This guidance can hardly be secured by avoiding issues and problems which are real, even as they are relevant to human life on earth with its diversity. Hypocrisy, apology, or burying one’s head in the sand are hardly realistic means of achieving righteous human life. They are not effective in achieving moral upliftment either. Polygamy in Islam plugs the hole towards promiscuity.

What is the situation in countries that banned polygamy? Do they have sincere and faithful "monogamy”? Whether infidelity and secret extramarital sexual relationships exceeds the legitimate, legally protected husband-wife relationships? Which of the two situations is best? What is the degree of cohesion of the family?

Let us take US for analyzing polygamy. According to Laurel Richardson “What makes this state of affairs (extramarital affairs) possible, of course, is a supply of willing women. Most are single, both because of the growing numbers of unmarried women (there are 34 million in the United States today) and because single women generally have more free time and energy than do their married counterparts. Consider these statistics: One out of every five women today has no potential mate because there are simply not enough single men to go around. A 25-year-old single woman faces a serious undersupply of available men to start with, and the situation gets worse the older a woman gets. Divorced men are much more likely than divorced women to remarry (and they tend to marry younger women), so that there are more than twice as many single women as there are single men in their 40s. Indeed, a woman who divorces at 35 today is likely to remain single for the rest of her life. Caught in a demographic bind while seeking greater autonomy, more and more single women are opting for involvement with married men.” (Laurel Richardson “Another World; More and More Single Women Are Opting for Affairs with Married Men, and the Trend Is Diminishing Feminist Progress,” Psychology Today, vol. 20, February 1986.)

These people, who object to polygamy, accept polygamous life as a form of human behaviour. Many eyebrows are raised at having a second wife, but to have as many 'mistresses' or 'girlfriends' as one likes is accepted in good grace. The contradiction between these two attitudes is conveniently ignored. It may be instructive to quote Mrs. Annie Besant on this point. Mrs. Besant says:

"There is pretended monogamy in the West, but there is really polygamy without responsibility; the mistress is cast off when the man is weary of her, and sinks gradually to the 'woman of the street, for the first lover has no responsibility for her future and she is a hundred times worse off than the sheltered wife and mother in the polygamous home. When we see thousands of miserable women who crowd the streets of Western towns during the night, we must surely feel that it does not lie within western mouth to reproach Islam for polygamy. It is better for woman, happier for woman, more respectable for woman, to live in polygamy, united to one man only with the legitimate child in her arms, and surrounded with respect, than to be seduced, cast out in the Street - perhaps with an illegitimate child outside the pale of the law -unsheltered and uncared for, to become the victim of any passerby, night after night, rendered incapable of motherhood despised by all." -- Annie Besant, The Life and Teachings of Muhammad, Madras, 1932, p.3.

Due to modern restrictions placed on polygamy many societal ills are created and left untreated. The opposition to Islam on polygamy is not because it is immoral or unethical but because it is divine and its acceptance would make men accountable for their extra marital sexuality once for all burying the trend of ‘hire and fire’. The woman who is victims of poverty, widows, and divorcees etc will refuse to become public property when they have scope for finding shelter in some secured homes. It will thus affect the tourism industry that thrives on sex for want of women destitutes.

It is often stated that though it has some advantages, the best option to check its misuse is to prohibit. This principle, if accepted as sound means for an orderly society, it will not only lead to complete anarchy but also lawlessness. The application of such principle will results in scrapping of many laws enacted by the parliament leaving the problem, to multiply without any solution. It is like burning the hut to kill the rat. Just examine the case of one single legislation brought about to meet the menace of dowry deaths. The object for which Section 498A IPC was amended was to combat the menace of dowry death and cruelty. Hence when the amendment was challenged, Supreme Court rejecting the plea for holding the provision as unconstitutional held thus: (seeAIR 2005 SUPREME COURT 3100 "Sushil Kumar Sharma v. Union of India”)

“13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, "action" and not the "section" is questionable. The court or such other authority may when such actions are questioned as of a misuse, the court or appropriate authority may set aside the action and grant appropriate relief to the person aggrieved.

14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. (1997 (5) SCC 536), a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed :

"The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity." It was said in State of Rajasthan v. Union of India (1977 (3) SCC 592) "it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief."

Dealing with another issue on misuse of TADA, in AIR 2004 SUPREME COURT 456 "People's Union for Civil Liberties v. Union of India", Hon’ble Supreme Court held thus:

“this Court cannot go into and examine the 'need' of POTA. It is a matter of policy. Once legislation is passed the Government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, we would like to point out that this Court has repeatedly held that mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional”.

From the aforesaid decisions, the following principles may be taken as well settled in Law.

1. The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.

2. If a statutory provision is otherwise valid, mere possibility of abuse of power in a given case would not make it objectionable, In such cases, "action" and not the "section" is bad. The courts set aside the action and grant appropriate relief to the person aggrieved.

3. The wisdom of man has not yet been able to conceive of a Law sufficient to answer all its legitimate needs and at the same time incapable of mischief.

In Islam monogamy is the rule and polygamy is an exception. Islam allows it under strict conditions and when no better alternative is available .What remedial measures can be taken to prevent abuse of the well-intentioned provision is a matter to be dealt with by devising a vibrant mechanism for which all can contribute their might but not nullifying its very purpose and intention, with a pragmatic holistic approach. Islamic scholars all over the world can make a beginning in this direction to prevent the misuse of polygyny.

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