Negotiable Instruments Act, 1881 – Section 138, 141 – As far as the accused Nos.4 and 5 were concerned, they were whole-time directors and the assertion is that they were in charge of day to day business of the Company and all of them had with active connivance, mischievously and intentionally issued the cheques in question - The aforesaid averments, as we find, clearly meet the requisite test.
SUPREME COURT – 6TH APRIL, 2016
(2016)4 PLRSC 1
____________________________
Supreme Court puts Final Death Nail on Concepts of Ancestral Property & Joint Family Property,
March,3,2016: In a Landmark Judgment pronounced by Supreme Court of India yesterday in case titled Uttam vs Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has relaid the Law on to the Concept of Ancestral Property.
Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act, 1956, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
The suit was filed by a Son for partition, in Devas, Madhya Pradesh, against his father and his father’s three brothers. He claimed a 1/8th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance with the Mitakshara Law. It was ruled by SC that on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable.
Concept of Ancestral Property
Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.
Any property acquired by the Hindu great grand father, which then passes undivided down the next three generations up to the present generation of great grand son/daughter.
1. This property should be four generation old.
2. It should not have been divided by the users in the joint Hindu family as once a division of the property takes place, the share or portion which each Coparcener gets after the division becomes his or her self acquired property.
3. The right to a share in ancestral or coparcenary property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner.
4. The rights in ancestral property are determined per stripes and not per capita. Share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
5. Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties.
6.Self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common.
In Mulla’s Principles of Hindu Law (15th Edition), it is stated at page 289 :
“………. if A inherits property, whether movable or immovable, from his father or father’s father, or father’s father’s father, it is ancestral property as regards his male issue. If A has no son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases ………. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons’ sons and sons’ sons’ sons’ but as regards other relations he holds it and is entitled to hold it, as his absolute property.”
In case titled Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, it was held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956.
This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
Thus in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
Classification of property under Hindu Law
The property under Hindu Law can be classified under two heads:-
(i) Coparcenary property; and
(ii) Separate property.
Coparcenary property is again divisible into-
(i) ancestral property and
(ii) joint family property which is not ancestral.
This latter kind of property consists of property acquired with the aid of ancestral property and property acquired by the individual coparcener without such aid but treated by them as property of the whole family.
Law laid by Delhi High Court
In case titled Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided on 18th January, 2016 Hon’ble Mr. J. Valmiki Mehta of Delhi High Court ruled-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits ‘ancestral’ property i.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual’s property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated.
Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property.
Law laid by Supreme Court now
The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that .
____________________________
Exhibiting documents not sufficient but contents have to be proved _ Some recent case laws
**************************************************************************
Exhibiting of document _ Proof of contents _ Document does not get proved unless the conditions enumerated in Sections 65 and 66 are complied with _ Mere exhibiting of the document does not imply that the document is admitted in the evidence and is required to be read as it is _ Giving of exhibit to a document is only ministerial act and the party is not relieved of the burden to prove the contents. (See 2009 (11) LJSOFT 12)
Mere production of documents or exhibition thereof in the Court does not amount to proof of documents and contents thereof _ It does not amount to proof of truthfulness of the contents of the documents. (See 2013 (8) LJSOFT 135)
Secondary evidence _ Court is obliged to examine the probative value of the document produced or their contents and decide the question of admissibility of a document in secondary evidence _ Also the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced _ Neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law _ Genuineness, correctness and existence of the document shall have to be established during the trial. (See 2015 (12) LJSOFT (SC) 25)
Test identification parade held by the Executive Magistrate in presence of panchas _ Neither the Executive Magistrate nor the panchas were examined by the prosecution _ Contents of the panchanama cannot be said to be duly proved _ Said document, though exhibited, can not be used against accused No.2. (See 2015 (8) LJSOFT 104)
Recovery of amount _ Report regarding value of the work done by respondents _ Maker of the report was not available for recording his evidence as he had expired _ Merely because the document is marked as an exhibit does not by itself prove the contents of such document and as such it was incumbent upon the appellant to adduce corroborative evidence to substantiate the disclosures made in such report. (See 2012 (8) LJSOFT 150)
Appointment of Court Commissioner _ Report of Court Commissioner can be made a part of the record and exhibited if report is not objected to by the parties to the suit _ However correctness of contents of the report can only be proved by examining writer/author of document _ Mere production of report and it being admitted in evidence by itself does not prove contents of document or as to what investigations were carried out by the court commissioner _ Courts below were justified in ignoring commissioner's report along with its map on the ground of non-examination of the court commissioner as a witness. (See 2010 (9) LJSOFT 71)
Proof of documents _ Merely because a document referred to in cross-examination is marked as an exhibit the same does not dispense with the proof of document in accordance with law of evidence. (See 2009 (2) LJSOFT 97)
Spot panchanama _ Appellants nowhere admitted contents of spot panchanama _ Endorsement was made to dispense with the formal proof of documents and exhibit number was put on the said document _ Such endorsement neither results in admission of the documents nor it dispenses with the necessity of proving the contents of the documents. (See 2007 (4) LJSOFT 75)
____________________________
Where are women judges in Indian Supreme Court?..... The Supreme Court on April 11 frowned upon the practice of barring women between the ages of 10 and 50 years from the Sabrimala shrine in Kerala, asserting that religious practice and tradition could not be allowed to dent constitutional principles and values.
Questioning the validity of tradition which has been under attack from feminists and others, a bench of Justices Dipak Misra, V Gopala Gowda and Kurian Joseph said temple was a public religious place and it must observe the constitutional values of gender equality.
The judges said that the issue involved the question whether tradition could override the Constitution which prohibited gender discrimination. "Why this kind of classification for devotees to visit the temple? We are on constitutional principles. Gender discrimination in such matters is untenable. You cannot create corrosion or erosion in constitutional values," the benchsaid.
Such strong statements by the learned judges prompted the author to visit the websites of the Supreme and five key high courts to ascertain the extent of gender equality in the judiciary. Here is the status as on April 12, 2016.

Of the select courts, the percentage of women judges in Delhi High Court is the highest. Could the collegium system of the Apex Court find one only competent woman to be a judge? Did you know that from "1950 to November 2015 only six women became Supreme Court judges out of a total 229 judges appointed?"
India has had a woman prime minister and president but never a woman chief justice.
A November 2015 India Todayreport shares some interesting facts, "There are just 62 (9.2 per cent) women judges compared to 611 male judges (in high courts) in the entire country. In 24 state high courts, nine HCs did not have a single woman judge. Three high courts had only one woman judge." Is this a case of gender discrimination or does it imply that only male judges possess the best legal brains and women are incompetent?
Look at the number of women doctors in our country and compare them with the number of women judges. Some might argue that women have taken to education recently in larger numbers. This is not true. Women in this country began taking to modern education even before independence and the pace picked up thereafter in virtually all fields, for example, the author's mother and mother-in-law became doctors in the mid-1950s in Punjab and Madhya Pradesh respectively.
It can be argued that in the medical discipline, women doctors succeeded because they ran their own clinics or worked in hospitals where they did not need to navigate organisational politics. Fair point. All the more reason why India needs more women judges. Since they are grossly under-represented in terms of numbers, there is a clear case for affirmative action (not reservation). Certainly, there are enough women lawyers in all high courts who can be elevated to the bench.
According to a November 2015Mail Today report, when a five-judge Constitution bench headed by Justice Khehar was in the process of inviting suggestions to improve the collegium system for the appointment of judges, a large number of female lawyers complained of "gender discrimination" in appointment of judges to higher judiciary.
When faced with such complaints, the respected Justice Khehar asked, "We would first like to know what the ratio of female advocates to male advocates is. That is very important. The ratio of female judges to male judges must be in the same ratio."
I am inclined to respectfully disagree with this line of questioning. When under-representation of women in the judiciary is universally accepted, is it correct to compare the ratio of female to male advocates? Was the percentage reservation for schedules castes and tribes based on their population numbers or supposed backwardness?
Further, women lawyers told the court that would not be a fair criteria. "Please do not compare the number of women lawyers at bar and juxtapose it with the ratio of female and male judges. Women were allowed to practise in court only in 1922. Women face a lot of problems in practising in court. Despite that, they are coming out in large numbers to practice," said senior lawyer Mahalakshmi Pavani representing the Supreme Court Women Lawyers Association (SCWLA).
At the same meeting SCWLA alsorepresented, "It is submitted that keeping the Article 14 (right to equality) and Article 15(3) (the power of the State to make special provisions for women and children) of the Constitution Of "India is a signatory to Conventions on Elimination of Discrimination Against Women (CEDAW), 1979, which envisaged removal of obstacles of women's public participation in all spheres of public and private lives." The source of Article 14 lies in the American and Irish constitutions. Before we get into the question of gender equality, we have to answer some fundamental issues on the Justice system and fundamental flaws relating to its practice in India.
1. How adapted is a British system of justice to an Indian culture, ethos, identity and practice? Is the understanding of gender equality the same in Indian and Western societies? Let me elaborate. It is a long term fundamental flaw in our system, which has not been addressed or has perhaps not even entered the consciousness of our western educated judicial practitioners. While all humans are created equal, it does not mean they are the same. Same and equal are two completely different concepts.
Equality in the Hindu system does not mean we have one toilet for men and women, one set of dresses for men and women.
Why India? It is the same worldwide. In Hindu philosophy, we say the soul of men and women does not have gender in its spiritual state. But for practical purposes, two sexes are created based on physical differences by the Gods. These differences at times have to be respected and catered to just like there are separate toilets for men and women. By doing so it does not mean we are disrespecting and abusing the notion of equality.
2. Now coming to the issue before the Apex Court on whether the current practice at the Sabrimala shrine, of barring women between the ages of 10 and 50 years, should be changed. Hindu Goddesses have a wider following than Hindu male gods in many parts of the country. In the same vein there are certain religious places that are men exclusive and in equal breath there are certain temples that are women exclusive.
There exists a women-only templein Kerala. While 95 per cent of the temples are common to both sexes please understand that Hinduism treats both equally, and that does not mean that each and every function on earth has to be the same. At times for reasons of tradition, certain things are male specific and equally certain things have to be reserved for women. This is a fundamental difference between Indian and western thought.
If courts want to still force the issue of gender equality despite the arguments above they should do so. But keep in mind that the courts have to apply the law equally to all religions. That then would be real justice. The suggestion is either create a level playing field, or if the argument is that every community has its uniqueness, then let them cherish their uniqueness. You cannot have different rules for different people in the eyes of the law. We are repeating the mistakes made earlier by using British concepts of secularism and minorityism!
Are we willing to look within and change?
PS The author admires the judiciary for its role in exposing corruption and has full faith in its abilities to address issues in a fair and balanced way.
SUPREME COURT – 6TH APRIL, 2016
(2016)4 PLRSC 1
____________________________
Supreme Court puts Final Death Nail on Concepts of Ancestral Property & Joint Family Property,
March,3,2016: In a Landmark Judgment pronounced by Supreme Court of India yesterday in case titled Uttam vs Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has relaid the Law on to the Concept of Ancestral Property.
Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act, 1956, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
The suit was filed by a Son for partition, in Devas, Madhya Pradesh, against his father and his father’s three brothers. He claimed a 1/8th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance with the Mitakshara Law. It was ruled by SC that on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable.
Concept of Ancestral Property
Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.
Any property acquired by the Hindu great grand father, which then passes undivided down the next three generations up to the present generation of great grand son/daughter.
1. This property should be four generation old.
2. It should not have been divided by the users in the joint Hindu family as once a division of the property takes place, the share or portion which each Coparcener gets after the division becomes his or her self acquired property.
3. The right to a share in ancestral or coparcenary property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner.
4. The rights in ancestral property are determined per stripes and not per capita. Share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
5. Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties.
6.Self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common.
In Mulla’s Principles of Hindu Law (15th Edition), it is stated at page 289 :
“………. if A inherits property, whether movable or immovable, from his father or father’s father, or father’s father’s father, it is ancestral property as regards his male issue. If A has no son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases ………. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons’ sons and sons’ sons’ sons’ but as regards other relations he holds it and is entitled to hold it, as his absolute property.”
In case titled Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, it was held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956.
This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
Thus in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
Classification of property under Hindu Law
The property under Hindu Law can be classified under two heads:-
(i) Coparcenary property; and
(ii) Separate property.
Coparcenary property is again divisible into-
(i) ancestral property and
(ii) joint family property which is not ancestral.
This latter kind of property consists of property acquired with the aid of ancestral property and property acquired by the individual coparcener without such aid but treated by them as property of the whole family.
Law laid by Delhi High Court
In case titled Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided on 18th January, 2016 Hon’ble Mr. J. Valmiki Mehta of Delhi High Court ruled-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits ‘ancestral’ property i.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual’s property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated.
Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property.
Law laid by Supreme Court now
The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that .
____________________________
Exhibiting documents not sufficient but contents have to be proved _ Some recent case laws
**************************************************************************
Exhibiting of document _ Proof of contents _ Document does not get proved unless the conditions enumerated in Sections 65 and 66 are complied with _ Mere exhibiting of the document does not imply that the document is admitted in the evidence and is required to be read as it is _ Giving of exhibit to a document is only ministerial act and the party is not relieved of the burden to prove the contents. (See 2009 (11) LJSOFT 12)
Mere production of documents or exhibition thereof in the Court does not amount to proof of documents and contents thereof _ It does not amount to proof of truthfulness of the contents of the documents. (See 2013 (8) LJSOFT 135)
Secondary evidence _ Court is obliged to examine the probative value of the document produced or their contents and decide the question of admissibility of a document in secondary evidence _ Also the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced _ Neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law _ Genuineness, correctness and existence of the document shall have to be established during the trial. (See 2015 (12) LJSOFT (SC) 25)
Test identification parade held by the Executive Magistrate in presence of panchas _ Neither the Executive Magistrate nor the panchas were examined by the prosecution _ Contents of the panchanama cannot be said to be duly proved _ Said document, though exhibited, can not be used against accused No.2. (See 2015 (8) LJSOFT 104)
Recovery of amount _ Report regarding value of the work done by respondents _ Maker of the report was not available for recording his evidence as he had expired _ Merely because the document is marked as an exhibit does not by itself prove the contents of such document and as such it was incumbent upon the appellant to adduce corroborative evidence to substantiate the disclosures made in such report. (See 2012 (8) LJSOFT 150)
Appointment of Court Commissioner _ Report of Court Commissioner can be made a part of the record and exhibited if report is not objected to by the parties to the suit _ However correctness of contents of the report can only be proved by examining writer/author of document _ Mere production of report and it being admitted in evidence by itself does not prove contents of document or as to what investigations were carried out by the court commissioner _ Courts below were justified in ignoring commissioner's report along with its map on the ground of non-examination of the court commissioner as a witness. (See 2010 (9) LJSOFT 71)
Proof of documents _ Merely because a document referred to in cross-examination is marked as an exhibit the same does not dispense with the proof of document in accordance with law of evidence. (See 2009 (2) LJSOFT 97)
Spot panchanama _ Appellants nowhere admitted contents of spot panchanama _ Endorsement was made to dispense with the formal proof of documents and exhibit number was put on the said document _ Such endorsement neither results in admission of the documents nor it dispenses with the necessity of proving the contents of the documents. (See 2007 (4) LJSOFT 75)
____________________________
Where are women judges in Indian Supreme Court?..... The Supreme Court on April 11 frowned upon the practice of barring women between the ages of 10 and 50 years from the Sabrimala shrine in Kerala, asserting that religious practice and tradition could not be allowed to dent constitutional principles and values.
Questioning the validity of tradition which has been under attack from feminists and others, a bench of Justices Dipak Misra, V Gopala Gowda and Kurian Joseph said temple was a public religious place and it must observe the constitutional values of gender equality.
The judges said that the issue involved the question whether tradition could override the Constitution which prohibited gender discrimination. "Why this kind of classification for devotees to visit the temple? We are on constitutional principles. Gender discrimination in such matters is untenable. You cannot create corrosion or erosion in constitutional values," the benchsaid.
Such strong statements by the learned judges prompted the author to visit the websites of the Supreme and five key high courts to ascertain the extent of gender equality in the judiciary. Here is the status as on April 12, 2016.

Of the select courts, the percentage of women judges in Delhi High Court is the highest. Could the collegium system of the Apex Court find one only competent woman to be a judge? Did you know that from "1950 to November 2015 only six women became Supreme Court judges out of a total 229 judges appointed?"
India has had a woman prime minister and president but never a woman chief justice.
A November 2015 India Todayreport shares some interesting facts, "There are just 62 (9.2 per cent) women judges compared to 611 male judges (in high courts) in the entire country. In 24 state high courts, nine HCs did not have a single woman judge. Three high courts had only one woman judge." Is this a case of gender discrimination or does it imply that only male judges possess the best legal brains and women are incompetent?
Look at the number of women doctors in our country and compare them with the number of women judges. Some might argue that women have taken to education recently in larger numbers. This is not true. Women in this country began taking to modern education even before independence and the pace picked up thereafter in virtually all fields, for example, the author's mother and mother-in-law became doctors in the mid-1950s in Punjab and Madhya Pradesh respectively.
It can be argued that in the medical discipline, women doctors succeeded because they ran their own clinics or worked in hospitals where they did not need to navigate organisational politics. Fair point. All the more reason why India needs more women judges. Since they are grossly under-represented in terms of numbers, there is a clear case for affirmative action (not reservation). Certainly, there are enough women lawyers in all high courts who can be elevated to the bench.
According to a November 2015Mail Today report, when a five-judge Constitution bench headed by Justice Khehar was in the process of inviting suggestions to improve the collegium system for the appointment of judges, a large number of female lawyers complained of "gender discrimination" in appointment of judges to higher judiciary.
When faced with such complaints, the respected Justice Khehar asked, "We would first like to know what the ratio of female advocates to male advocates is. That is very important. The ratio of female judges to male judges must be in the same ratio."
I am inclined to respectfully disagree with this line of questioning. When under-representation of women in the judiciary is universally accepted, is it correct to compare the ratio of female to male advocates? Was the percentage reservation for schedules castes and tribes based on their population numbers or supposed backwardness?
Further, women lawyers told the court that would not be a fair criteria. "Please do not compare the number of women lawyers at bar and juxtapose it with the ratio of female and male judges. Women were allowed to practise in court only in 1922. Women face a lot of problems in practising in court. Despite that, they are coming out in large numbers to practice," said senior lawyer Mahalakshmi Pavani representing the Supreme Court Women Lawyers Association (SCWLA).
At the same meeting SCWLA alsorepresented, "It is submitted that keeping the Article 14 (right to equality) and Article 15(3) (the power of the State to make special provisions for women and children) of the Constitution Of "India is a signatory to Conventions on Elimination of Discrimination Against Women (CEDAW), 1979, which envisaged removal of obstacles of women's public participation in all spheres of public and private lives." The source of Article 14 lies in the American and Irish constitutions. Before we get into the question of gender equality, we have to answer some fundamental issues on the Justice system and fundamental flaws relating to its practice in India.
1. How adapted is a British system of justice to an Indian culture, ethos, identity and practice? Is the understanding of gender equality the same in Indian and Western societies? Let me elaborate. It is a long term fundamental flaw in our system, which has not been addressed or has perhaps not even entered the consciousness of our western educated judicial practitioners. While all humans are created equal, it does not mean they are the same. Same and equal are two completely different concepts.
Equality in the Hindu system does not mean we have one toilet for men and women, one set of dresses for men and women.
Why India? It is the same worldwide. In Hindu philosophy, we say the soul of men and women does not have gender in its spiritual state. But for practical purposes, two sexes are created based on physical differences by the Gods. These differences at times have to be respected and catered to just like there are separate toilets for men and women. By doing so it does not mean we are disrespecting and abusing the notion of equality.
2. Now coming to the issue before the Apex Court on whether the current practice at the Sabrimala shrine, of barring women between the ages of 10 and 50 years, should be changed. Hindu Goddesses have a wider following than Hindu male gods in many parts of the country. In the same vein there are certain religious places that are men exclusive and in equal breath there are certain temples that are women exclusive.
There exists a women-only templein Kerala. While 95 per cent of the temples are common to both sexes please understand that Hinduism treats both equally, and that does not mean that each and every function on earth has to be the same. At times for reasons of tradition, certain things are male specific and equally certain things have to be reserved for women. This is a fundamental difference between Indian and western thought.
If courts want to still force the issue of gender equality despite the arguments above they should do so. But keep in mind that the courts have to apply the law equally to all religions. That then would be real justice. The suggestion is either create a level playing field, or if the argument is that every community has its uniqueness, then let them cherish their uniqueness. You cannot have different rules for different people in the eyes of the law. We are repeating the mistakes made earlier by using British concepts of secularism and minorityism!
Are we willing to look within and change?
PS The author admires the judiciary for its role in exposing corruption and has full faith in its abilities to address issues in a fair and balanced way.
