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ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India),
R.V.R. Chandrasekhara Rao (Politics Professor), K. Subba Rao (Senior Advocate, Bangalore),
Umesh Chandra (Sr. Advt., Lucknow), Ravi Kiran Jain (Sr. Advt., Allahabad), K. Pratap Reddy (Sr. Advt., Hyderabad),
Sagar Dhara (Engineer, Hyderabad), Kuchelar (Lawyer & labor leader, Madras), Dr. Koenraad Elst (Indologist, Belgium)

Volume 13: Part 2 15 September 2017 No. 17

CONTENTS
1. The Rohingya Wrangle 1
2. Historical inevitability or 2,
Electoral corruption? (68) [IMS] 99
3. Political Trouble in India :
1910-1917, J.C. Ker (24) 3-5
4. An Appeal from
Friends of FRONTIER 6 Myanmar before the 201617 crisis - the majority Muslim; minority Hindu. one of
5. Kulbhushan Jadhav &
Terrible History of
Paki Justice, S.M. Burfat 7-12
6. Z & Ors. v. The United 13-30,
Kingdom [ECHR-Strasbourg] 71-88
7. Shayara Bano v. Union of
of India & Ors. [IND-SC] (2)
(Triple Talaq case judgment) 31-70
8. International Court to
preserve life on Earth, PCR 89-90
9. Solving 9/11: Deception
that changed the World (16),
Christopher Bollyn 91-97
10. BRICS Summit Xiamen 98
11. Poems, Mao Zedong 100
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NOTE: The opinions and comments in the editorials are exclusively the Editors and
need not necessarily reflect the approval or consent of all or any of the
editorial advisors or of the publisher even - IMS.
THE ROHINGYA WRANGLE
Wailing Rohingya refugee Refugee woman with dead baby Suu Kyi Kofi Annan Suu Kyi Modi
Wikipedia informs us - The Rohingya people (Arakanese Indians) are a stateless Indo-
Aryan people from Rakhine State, Myanmar. 1 million Rohingya were living in
the most persecuted minorities in the world (UN), the Rohingyas are denied citizenship
under the 1982 Myanmar nationality law(s). They are also restricted from freedom of
movement, state education and civil service jobs, facing [legal conditions comparable to]
apartheid; faced military crackdowns in 1978, 19911992, 2012, 2015 and 20162017.
Myanmar's persecution of the Rohingya [described by UN] as ethnic cleansing. The UN
human rights envoy to Myanmar reported "the long history of discrimination and
persecution against the Rohingya community... could amount to crimes against
humanity," and there have been warnings of an unfolding genocide. More than
100,000 Rohingyas in Myanmar are confined in camps for internally displaced persons.
Following a Rohingya rebel attack that killed 12 security forces, August 25, 2017, the
military launched "clearance operations" that left 400-3000 dead, many more injured,
tortured or raped, villages burned, and over 400,000 Rohingya fleeing to
Bangladesh. Well, no denying the sad state of Rohingyas but the problem is
their illegal immigration to our country also and forceful demands by many
Muslims of India and some/many liberals, leftists, etc. to take them. But we
have our own serious headaches with such foreign refugees who often contain
some/several fanatic elements too and anyway when we could not care for our
own internal refugees like Kashmiri Pandits even, it is highly burdensome for
us to be called to shelter these doubtful elements, especially keeping in view
that the most recent phase of Rohingya crisis started after armed attacks by
terrorist/armed forces among them under the banner of Arakan Rohingya
Salvation Army and their atrocities against not only Buddhists but also Hindus
of the region. Better we recognize them as temporary illegal immigrants, group
them together in some detention camps in central India providing basic
facilities and sooner than later deport them to their homeland or to
Bangladesh and if possible render some meaningful financial aid to care for
them. Already we are suffering with the dangerous explosion of illegal
Bangladeshi Muslim immigrants to the tune of many millions, and in this
editors opinion those among them who sneaked into India from 1991 at least
have to be identified, and expeditious steps taken to deport them too. And then,
we can talk to and pressurize the Burmese Government also to heed the wise
recommendations made by the Kofi Annan Foundation Report on the matter,
the inquiry by which was sought by the Burmese State Counselor, Minister of
Everything, the Nobel Peace Laureate Aung San Suu Kyi herself, and exert all
efforts to defuse the crisis and solve the problem.
1
2 (2017) 2 LAW
HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?
[Tracing the history of Andhra, Visalandhra and separate Telangana movements]
As already underscored more than once earlier,
the creation of a separate Andhra Provincial
Congress Committee with the hegemony of the
Congress leaders over the Andhra (or Andhrajana)
Mahasabhas which from 1913 onward were striving
for a linguistic, cultural renaissance of, as also for a
separate state for, Andhras, the importance of
Andhrajana Mahasabha, which ought to have acted
as a separate umbrella organization taking in its
embrace various political and social bodies and
struggled to achieve its ideal of a separate state for
Andhras, has begun to wane and the virtual
immersion in the national movement by Andhras
under the Congress leadership had for the time
being relegated the aspirations and demands for a
separate state to the backlines. As such though a
very important event in the annals of Andhra land
was going to happen toward the end of 1923 with
the annual session of the Indian National Congress
to be held at Kakinada, the first time ever in Andhra
region, from 28-29 December onward, there was
absolutely no identity politics or demands on behalf
of Andhras in that session. It is doubtful whether a
separate Andhrajana Mahasabha was held anywhere
in Andhra in that year and we only hear of various
meetings and functions of the Andhra Provincial
Committee and its various efforts to hold the
forthcoming Kakinada Congress in a grand and
successful manner.
But one salient development in the political
arena was that the Madras City [District] Congress
Committee had passed a resolution by overwhelming
majority to make it also an independent provincial [State]
Congress Committee similar in line to the Bombay State
Committee. It was reported in Andhra Patrika, 15
December 1923 issue that a meeting (perhaps general
body) of the Madras City Congress was held in the
evening of 12 December 1923 at Mahajanasabha
Mandir, Madras, presided over by Sri S. Srinivasa
Iyengar, in which the following resolution was
proposed by Sri M.S. Subramanya Iyer:
Continued from Law Animated World, 31 July 2017 issue;
we regret at our inability of having missed to publish this article
in the two previous issues; emphases in bold ours - IMS.
Law Animated World, 15 September 2017
- I. Mallikarjuna Sharma
As Madras City is one comprising of several
communities speaking various languages just like
Bombay City, and in the present arrangements
there are no sufficient freedom and financial
resources and other facilities to actively carry out
the Congress work, this meeting request the All
India Congress Committee to declare Madras City
as a separate State, just like Bombay State, so that
better and more intense Congress propaganda can
be carried out thereby. [free translation from Telugu]
It was explained that as Madras Congress
Committee was under the Tamilnadu Provincial
Committee shifted its headquarters to Tiruchi, and
rarely ever the provincial committee conducts
sessions in Madras, and, moreover, as Andhra and
Ghurjara provincial committees are also based in
Madras a better harmonious cooperation with them
will be possible if Madras Committee were to be a
separate one, it would be instructive to declare and make
Madras City as a separate province in line with Bombay
City which has a separate provincial congress committee.
Only Sri N.S. Varadachari opposed the resolution
saying he also in principle did not oppose a separate
provincial committee for Madras City but first
wanted that the Andhra and Ghurjara (Gujarati)
Congress Committees may also be consulted in this
regard. However, this postponement was not agreed
to and when put to vote, the above resolution was
passed with overwhelming majority, with only 4
delegates opposing. But, this proposal for a separate
Madras Province, when put before the Subjects
Committee of the Kakinada Congress session on 27
December 1923 by Sri Abdul Hameed Khan and
supported by Sri S. Srinivasa Iyengar, was rejected
outright. Whereas allegations were leveled against
the Tamilnadu Congress Committee for shifting the
headquarters from Madras, counter allegations were
leveled against Madras Congress Committee for
misusing Congress funds for conducting hartals and
not for Congress propaganda, and the Andhra
delegates limited to their own concerns in Madras.
Even an amendment to the proposal moved by Sri
C. Rajagopalachari that this proposal be sent to the
Andhra and Tamil Nadu provincial Congress Committees
to elicit their opinions thereon was also rejected by the
Subjects Committee.
(Go to p. 99)
2
 POLITICAL TROUBLE IN INDIA, 1907-
1907-1917
1917
CHAPTER V:
THE MANIKTOLLA BOMB CONSPIRACY
RULES OF THE GARDEN CONSPIRACY
B. Special training of Missionaries
1. Religious.
2. Political (advanced course).
3. Knowledge of Sanskrit, Hindi and English
(Compulsory).
4. Thorough knowledge of Indian History,
Geography and Revolutionary History of
other countries. Good Library.
Factory work. Library Technical.
Only for specialists, students and general
assistants.
[149] Under the head Political Courses was noted
as follows:
Means and methods (to obtain)1.
Criticism of their methods.2
(a) Colonial
(b) Passive resistance.
Philosophy or Revolution:
(1) Requisites, men, arms and money.
How to get these three things.
The Modern Art of War.
Geography. Junior class thorough
knowledge of Bengal and general knowledge
of India.
Adv. Class thorough knowledge of India.
The garden was therefore just such a place of
worship of Bhawani as is described in the
Bhawani Mandir, except that it was not in the
hills but in a secluded garden in the suburbs of
Calcutta. This fact by itself does not of course
establish Arabindos connection with the criminal
side of the movement, but makes it on the whole
improbable that he should not have known what
was going on.
Continued from Law Animated World, 31 August 2017
issue; photos and emphases in bold ours - IMS.
1
(Note. This sentence was incomplete.)
2
(Note. This means the methods of the Moderates.)
3 Law Animated World, 15 September 2017
James Campbell Ker
THE SWEETS LETTER
The next point against him was the celebrated
sweets letter. Among his belongings when his
house was searched was found the following
notes:-
BENGAL CAMP, NEAR AJITS,
27th December, 1907.
Dear Brother,
Now is the time. Please try and make them meet
for our conference. We must have sweets all over
India ready made for imergencies (sic.). I wait for
your answer.
Your affectionate,
Barindra K. Ghose
[150] The 27th December, 1907, was a day of
great excitement at Surat, in the Bombay
presidency, where the Congress was meeting at
the time. An account of the proceedings is given
elsewhere; briefly what happened was that the
Extremists attempted to dominate the Congress
and failed. The Ajit refered to in the note is, no
doubt, Ajit Singh, who had been deported from
the Punjab in June, 1907, for sedition and was
consequently an extremist hero, but this point
need not be pressed. The important word is
"sweets" seeing that this was one of the figurative
expressions used by the Bengali revolutionary
party for bombs (in Bengali rasgoli). In his
judgment acquitting the accused the learned
judge, after referring to the evidence regarding
the discovery of the letter, said "It is suggested
that the document is a forgery and it is argued
that Sarat Dass is a forger. In fact Sarat Dass
denies that he is a forger; for the purposes of the
argument it is not a matter of much moment
whether he is or not. From his previous history,
whether a forger himself or not, he doubtless
would have no difficulty in getting hold of one.
But to my mind the letter could not have been
written to Arabindo by Barin. I don't take account
of the argument that if both were at the same
place one would probably not write to the other,
4 (2017) 2 LAW

or that the other would not have preserved the the heading 11th January and onwards. Under
letter; explanations can easily be found for both the same heading there were also the following
these points. But I judge from the internal amongst other notes:-
evidence of the letter. Barin is the youngest of 1. J.B. to be informed of A. Gs movements.
five brothers, Arabindo is the third. The assessors 2. A.Gs rules to be got out of him.
say that in such a case Barin could not have
3. Dr. Dhade to be kept in the garden and Ullas
intended Arabindo by Dear Brother that and A.G. and B.G. informed.
expression could only mean the eldest brother. If
it meant Arabindo it would have been "Dear The most obvious interpretation of these
Sejda." That is a point on which I cannot question initials is that A.G. stands for Arabindo Ghose,
their opinions. But speaking for myself I cannot B.G. for Barin Ghose and J.B. for Jotin Banerji of
understand Barin signing his name in full if whom something will be said later; if this is
writing to Arabindo. In letters between Arabindo correct it indicates Arabindo was a very
and other relations Barin is spoken of as Bari. important member of the conspiracy.
The brothers were on friendly terms, they must ARABINDOS CONNECTION WITH ABINASH
have been if the prosecution theory is to be In the early part of 1908 Arabindo had been
accepted that the visits to No. 23 were to living at 23, Scotts Lane, Calcutta, but five or six
Arabindo, and it is highly improbable that Barin days before the arrests took place he moved to the
would sign in this way writing to Arabindo. He office of the Navasakti newspaper at 48, Grey
might write to some one else and use the phrase Street. At both places Abinash Chandra
"Dear Brother" corresponding to the use of "bhai" Bhattacharji lived in the same house, employed,
in the vernacular [151]. In such a case if it was according to the defence, as a servant [152].
intended to reach Arabindo the question suggests Abinash was found guilty in the conspiracy case
itself, if both brothers were at Surat why did not and sentenced to transportation for seven years;
Barin write to Arabindo direct. That the word he had started the Yugantar newspaper along with
"emergercies" is spelt "imergencies" is nothing, Barin Ghose and Bhupendra Dutt, and he was the
for in ex. 667 Barin spells "philosophy" publisher of Bartaman Rananiti (The Modern Art
"phylosophy." Though then I find that the of War) and Mukti kon pathe? (Which way lies
document was in fact in Arabindo's house on the Salvation?), two of the favourite text-books of the
2nd May, it is of so suspicious a character that I hesitate anarchist [revolutionary] gang. It was certainly
to accept it. Experience tells us that in cases when spies
are employed documents do find their way into the unfortunate that Arabindo employed him as a servant,
houses of suspected persons in a mranner which cannot and incredible that he should not know what he was
be explained by the accused." about.
If both the brothers had had only a Bengali ARABINDOS DEPARTURE FOR PONDICHERRY
education the opinion of the assessors would have As Arabindo was acquitted it is useless to
deserved the greatest respect, but when it is pursue further the evidence against him. After his
remembered that Arabindo was much more at home release in May, 1909, he published it abroad that
in English than in Bengali and that Barin was himself
he had a vision of Sri Krishna in jail, and had
no mean English scholar the improbability of the whole
received advice and consolation from the god. He
thing is considerably diminished. (Compare also the
started a newspaper in English called the
last extract on page 86).
Karmayogin (Devotee of Action) which, as might
EVIDENCE FROM THE NOTE BOOK have been expected, eventually overstepped the
Reference has already been made to the limits of law, and in April, 1910, proceedings
notebook found in the Garden containing entries were instituted under Section 124A of the Indian
about Hem Chandra Das and Ullaskar Dutt under Penal Code against him and his printer

Law Animated World, 15 September 2017 4

(2017) 2 LAW Political Trouble in India : 1907-1917 (J.C. Ker) 5

Monmohan Ghose. Before the warrant could be similarity of the career of this militant monk
executed he absconded to Pondicherry and has with that of Upendra Nath Banerji, the preceptor
lived there since, devoting himself, according to of the Maniktolla Institution, is very striking, and
his own account, principally to religious it illustrates well the combination of religion and
meditation. politics on which the revolutionary movement
centred in the Maniktolla Garden was based. It
JOTIN BANERJI AND BARODA
also indicates the extent to which the Calcutta
There remains explanation of the note J.B. to conspirators were indebted to Baroda.
be informed of A.Gs movements found in the CENTRE OF CONSPIRACY SHIFTED TO DACCA
garden. Jotindranath Banerji, the person intended,
The success of the Maniktolla Conspiracy
was born about 1878 and belonged to Channa in
Case broke up the Calcutta branch of the
the Burdwan District. He was educated at
revolutionary movement for the time, and the
Bankipore and at Allahabad University.
centre of interest was shifted to Dacca where the
Thereafter he travelled about as a Brahmin
Anushilan Samiti was becoming active and
Sanyasi (ascetic) visiting many of the sacred
dangerous.
places in India. In 1899 he came to Baroda and
*****
enlisted in the 4th Baroda Infantry, and after a
year he was transferred to the Cavalry branch and Read and subscribe to:
put into the Gaekwars Bodyguard. Here he
became a great friend of Madhava B. Jadhav, the Analytical
Adjutant of the Bodyguard, and also of Arabindo MONTHLY REVIEW
Ghose who lived in M.B. Jadhavs house, and he
claims to have been the first person to inspire Arabindo Editor: SUBHAS AIKAT
with his political views. He says: We had [153] Annual subscription : Rs. 350/-
many discussions as to how we could best secure Contact for details:
for India a more suitable Government than the CORNERSTONE PUBLICATIONS,
present one, and I convinced Arabindo that it was Ramesh Dutta Sarani, P.O. Hijli Cooperative,
only by force that such a Government could be KHARAGPUR - 721 306 (W.B.)
obtained. After two years at Baroda he resigned
the Bodyguard and went to Calcutta, where he
put his ideas into practice by setting up a school

for Physical Culture and Bicycle Riding in
     
Circular Road, and while engaged in this he gave
his pupils the benefit of his political views. On
his fathers death in 1903 he became a sanyasi,
adopting the name Niralamba Brahmachari, and
went round the holy places in the Himalayas,
Nepal, Tibet and Garhwal, ending up in 1906 at
Almorah in the United Provinces. He then
wandered on to the Punjab, Peshawar and
Kashmir returning home to Channa in December,
1907. There was some evidence connecting him During 1980-82 when I had interviewed several veteran
with the Maniktolla Conspiracy, amongst other
things a drill-book found in the Garden bearing
the name and date M.B. Jadhav, 17-1-97, and
he was put on his trial but was discharged. The

!" #" $%&'
() *+(,"-
./01
23456 789: ; <=>?
@A(,BCDE
6 FBC" 8 4GH IJ
$%&'K LMH&N /M  O P(, Q4 ST&UH
MARXIST STUDY FORUM,
6-3-1243/116, M.S. Makta, Opposite
Raj Bhavan, HYDERABAD - 500 082.
Ph: 040 - 23300284; E-mail: mani.bal44@gmail.com
revolutionaries in Calcutta, I was informed by some
veteran Anushilan revolutionaries that this Jotindra Nath
Banerji was revered greatly in their circles as the
Brahma of the Bengali revolutionary movement. - IMS.
(to be continued)
5 Law Animated World, 15 September 2017
6 (2017) 2 LAW

Law Animated World, 15 September 2017 6

 KULBHUSHAN JADHAV & TERRIBLE HISTORY OF
PAKISTANI JUDICIAL AND MILITARY JUSTICE
An open letter to the United Nations Commission on
Human Rights and International law, The International
Court of Justice, Amnesty International, Human Rights
Watch, European Parliament, European External Action
Service, All the head of Democratic countries of the world
and other International Human Rights Organizations.
Subject: Kalbhushan Jadhav and the terrible history
of Pakistani Judicial and Military justice
Honorable United Nations Human Rights
Commissioners, the President and the Members
of International Court of Justice,
I want to seek your attention towards the most
crucial issue which is not only related to the Human
Rights situation but with the entire scenario of ongoing
political, economic and military tensions in South Asia.
It is the sole responsible factor in the decades-
long history of bloodshed, genocides, injustices,
barbarism, fascism, religious extremism,
sponsorship of terrorism and the humiliating
subjugation of the historic natural nations. This is
a view inside the blood-soaked history of South
Asia with a perspective like which, perhaps, you
would have never known it before this. This is the
perspective of the subjugated, persecuted and oppressed
masses of the region whose voice has never had a chance
to reach your hearings.
Honorable UN HR High Commissioner,
and President ICJ,
Today, you have been dealing with the case of
Kalbhushan [sic - Kulbhushan] Jadhav, contended
by Pakistan and India; an unjust case of innocent
Indian commoner, around whom Pakistani State has
hurled a fake and fabricated tale of espionage to justify
its allegation of Indian involvement in its affairs
Courtesy: Shafi Muhammad Burfat, at https://shafiburfat.
com/; Chairman, Jeay Sindh Muttahida Mahaz, Frankfort,
Germany; dt. 3 June 2017; emphases in bold ours - IMS.
7 Law Animated World, 15 September 2017
- Shafi Muhammad Burfat
in front of the world and to take it as a justification
to sponsor its religious proxy terrorism against India
and brutally silence the unheard voices of the oppressed
historic nations chained in its forced federation. He has
been said to be tried by a military court in secret
and sentenced to death and if persecuted unjustly
by Pakistan, this case will trigger unfading hate,
continuous political unrest and military tensions
in the region as well, which I am concerned, will
haunt the entire world for upcoming decades.
This is such a conspiracy, fraud, and fabricated lie
which Pakistani state wants to keep repeating to be
believed as a truth in accordance with Goebbels
formula.
When, it (Kalbhushan Case) was first revealed
by Pakistani state in the media, had astonished
the media persons and serious political circles
and had left many questions regarding it being
factual.
The fabricated story narrated by the Pakistani
state about the Kalbhushan was to portray him as
an Indian spy, linked to separatist movements in
Pakistan while testified against the facts by the
Pakistani media figures on the ground turned to
be a complete lie. There are two main stories
investigated about this case spread all over in the
electronic as well as social media of Pakistan,
revealing Kalbhushan to be the one of the many
Indian officials working on Chabahar Project in
Iran, which is an Iranian port some 75 km away
from the Balochistans Gwadar Port and some 15
km from Pakistan-Iran international border. India,
Iran and Afghanistan are jointly working on Chabahar
project as it is the Golden Gate to the Central Asian
countries. In fact, Kalbhushan was abducted by the
Pakistani smugglers and human traffickers implanted
by the Pakistani intelligence agencies in the region.
Human trafficking and drug smuggling are some of the
dirty portfolios managed Pakistani military.
The people of the localities in the neighboring
regions of Iranian and Pakistani Baluchistan
living across the border have confirmed
intelligence that this whole Kalbhushan case plan was
8 Kulbhushan Jadhav & Terrible History of Pakistani Justice (S.M. Burfat)
hatched to sabotage the Indian projects of developing
Chabahar and building and economic corridor to
Afghanistan and other central Asian countries. As
India is considered as an archenemy of Pakistan,
it was aimed to stop Chabahar Project as it affects the
success of Gwadar project and China Pakistan
Economic corridor. Gwadar Chabahar rivalry has
been much written and discussed in Pakistani
news media. The other story that was a bit more
complicated revealed that Pakistani supported
Afghan Taliban were assigned to abduct the
Indian officials working on India-Iran-
Afghanistan Trade Corridor linking them through
Chabahar port, and Kalbhushan was abducted
from Kandahar, Afghanistan by the Afghan
Taliban and delivered to Pakistani military
authorities.
This too is aimed at sabotaging the
development projects and political influence of
India in Afghanistan and Iran. Hence both the
stories confirm the abduction plan of Pakistani
military institutions to topple Indias political and
economic influence beyond the North Western
South Asian regions adjoining the Pakistani
borders and formerly influenced by Pakistani
covert strategic plans since the Afghan war and
Afghan Taliban Rule. As the Pakistani narrative of
espionage was fake and fabricated hence there were no
factual and evident proofs and Kalbhushan was tried by
military court in secret, without following specific legal
procedure, in absence of any chance of his legal defense
and was hurriedly sentenced to be executed as soon as
possible to bury every possibility of the revelation
of truth about him after his execution.
It is not a hidden fact on the ground now,
which keeps circulating widely in Pakistani
serious social media circles that Pakistan has
adopted every possible means to sabotage the
Indian political and economic influence in
western South Asia and Central Asian region in
which she is also being assisted by Chinese
Satellite surveillance and spying technology.
Therefore, fact is that, Kalbhushan Jadev Plan
is deeply associated with the success of China
Pak Economic Corridor (CPEC) and hence is an
evident effort to harm the reputation of India
Law Animated World, 15 September 2017
(2017) 2 LAW
being a responsible democratic state and
emerging economic power of the South Asia and
justify the Pakistans efforts to destabilize it by
sponsoring terrorism on one hand and brutally
silence the voices of the oppressed historic
nations striving to quit its forced federation. It is
not an espionage case at all, and this can also be verified
by the using the modern technology like google Earth,
as the Baluchistan Area, said to be the hideout of
the Kalbhushan, is a barren mountainous land on
the borders of Iran, Pakistan and Afghanistan is
short of the water and other resources for
survival, and even the native Baloch population
living in there is devoid of any basic facilities,
travelling miles every day to fetch water and
survive, with a culture and language completely
alien to the Indians would be a suitable area for a
country to use it for espionage. Thats not more
than a suicidal mission if someone is fool enough
to launch it.
Therefore, Pakistani espionage tale about
Kalbhushan is a nefarious conspiracy, cheap strategic
design and nothing but a fabricated lie. This is not the
one and only case fabricated by the Pakistani
agencies there are various other including the
case of most wanted Karachi Gangster Uzair
Balochs tale too, who was openly arrested from
Dubai by the Interpol authorities and news was
widespread on the media was shown arrested
from Karachi in another incident by the Pakistani
state Six months later. The later story about Uzair
Baloch was fabricated while everyone knew that
he was arrested from Dubai, UAE some Six
months earlier. There are hundreds of such
fabricated politically motivated cases in Pakistan.
The Kalbhushan case is only one of them.
UN and ICJ must take these facts in to account
to look inside the means and the ends of the
South Asian conflicts and state rivalries to reach a
just and conclusive intellectual decision among
the nations combating each other.
Honorable High Commissioner UNHRC
and Members of ICJ,
Now I want to seek your precious attention
towards the terrible history of Judiciary and Military
justice in Pakistan. The ideologue of separate homeland
8
(2017) 2 LAW Kulbhushan Jadhav & Terrible History of Pakistani Justice (S.M. Burfat)
for Sindhi nation independent from Pakistani chains,
Sain GM Syed who was titled Prisoner of
Conscience (ASA 33/WU02/94) by Amnesty
International and Human Rights International
(HRI/GA/04/95) spent 33 years of his life in
imprisonments and house arrests but he was never
presented to court. Today, we the followers of his
ideology of Syed are presenting this appeal with
the hope of being heard by the international
community.
1. The Islamic Theocratic State of Pakistan,
since its birth, has a magnificent history of
military coups, derailment of legal
constitutional frame work creating militarily
indoctrinated socio-political dynamics and an
engineered version of democracy which has no
parallel example in the history of the world. It
is the forced federation which remained
as a constitution-less country for nine
years after its creation in 1947 and an
Islamized Objective Resolution was
enough as an amendment to the British
Government of India Act 1935 to execute
constitutional affairs, only if needed. And
the so-called constitution passed in 1956
was toppled after only the months of its
adoption leading to one and a half decade
long military dictatorship of Gen. Ayub
Khan, ending up in a mess in 1969, yet
not replaced by democracy, but another
military dictator Gen. Yahya Khan. None
was summoned in any court of law either civil
or Martial about the abrogation of constitution
and derailing the democratic process.
2. First General Elections were held in the year
1970 under Gen. Yahyas military rule, first
time in the history of Pakistan, after 24 years
of its creation and ended up in a military
operation in East Pakistan (Bengal) to topple
the To be installed government of Shaikh
Mujeeb-ur-Rehman of Awami League which
had swept the majority seats in the election.
Bengalis under the leadership of Mujeeb-
ur-Rehman were struggling for their
democratic rights and Mujeebs Awami
League had won majority electoral seats
on its 6 points program which offered
9 Law Animated World, 15 September 2017
9
economic reforms and autonomy for
federating units of Pakistan. These
political agendas and reforms were only
opposed by Punjab province of Pakistan
which possessed the entire military and
governing elite of Pakistan thus a
transition to democracy was stopped by a
fascist military operation against Awami
League in early 1971, by banning AL and
imprisoning its leader Shaikh Mujeeb-ur-
Rehman. Three million Bengalis were
massacred, a million women were raped in six
months in a holocaust which was in neither way
less terrible than the Hitlers holocaust of Jews.
The entire world was shocked by the
news reports and condemned this until
India interfered militarily to end this
bloodshed. But most interestingly, the only
difference between these two holocausts was
that Pakistani military went unpunished for
these heinous crimes against humanity and not
a single person was held responsible or ever
tried. No one in this world asked them
about the millions of humans they had
slaughtered. This is the first example of
Pakistans military and civil judicial system.
3. Pakistans first Prime Minister Liaquat Ali
Khan was assassinated in a covert plot by
Pakistani secret agencies in October 1951 but
the culprits have never been unveiled and
brought to justice; even the investigation
officer investigating his case was also
killed but no enquiry has been ever
conducted to investigate the Liaquat
assassination case, till date. This has been
a black scar on the face of the Pakistani Civil
and Criminal Judicial system.
4. The Democratic Government of renowned
Pakistani leader and elected Pakistani
Prime Minister, Zulfiqar Ali Bhutto, was
toppled by a Military coup on June 5,
1977 led by the then Army Chief Gen.
Zia-ul-Haq. Mr. Bhutto was imprisoned after
the coup and was tried on fake charges of
murder. His case was faked in every regard
from fake charges to fake witnesses and
evidence. He was sentenced to death and
10 Kulbhushan Jadhav & Terrible History of Pakistani Justice (S.M. Burfat)
hanged till death on April 4, 1979. His sole
crime was being a common civilian
statesman hailing from Sindh and after
Bangladesh Crisis and India Pakistan war
of 1971, the Punjabi elite and military
establishment never wanted a powerful
leader from any subordinate nation like
Sindhi to have an opportunity to attain
power and question their hegemonic
fascist authority. It is an astonishing fact
that despite everyone knowing the truth about
his unlawful execution none has been able to
bring the perpetrators to justice.
5. Four years after the execution of Mr.
Bhutto by military, a massive political
movement for the rights of oppressed classes
and nations, restoration of democracy against
the brutal pan-Islamic military dictatorship
erupted in the entire Pakistan, especially in
Sindh (though such movements
demanding civil, political, economic,
human rights and balance of power in its
federating nations in Pakistan have never
been fruitful). This movement caused
ruthless brutality of Punjabi Army towards
Sindhis, villages were bombed and towns were
ransacked, hundreds of common men were shot
dead, thousands lashed publically and
imprisoned in a military operation to silence
this civil disobedience. But no one was tried
after the end of Zias military dictatorship.
This was a massive violation of the civil
liberties and human rights on the part of
Pakistan Army but culprits went unpunished.
6. A caravan of hundreds of Sindhi students
from University of Sindh, Liaquat
Medical College and Mehran Engineering
college heading towards Larkana to attend
a seminar at Mohen Jo Daro was
intercepted by Pakistan Army at Thori
Phatak Area of district Jamshoro, on 17
October 1984. The students were fired at
without warning, leaving five dead on the spot
and tens injured. More than two hundred
students were taken into custody. This
incident was witnessed by the Sindhi
journalists who were travelling with the
Law Animated World, 15 September 2017
(2017) 2 LAW
students. All the culprits involved were
identified but no one has been tried ever. This
is the history of military justice in
Pakistan.
7. A Sindhi Professor Ashok Kumar was
abducted by Pakistani Military Agencies in
broad daylight from University of Sindh in
late 1970s but no one still knows his
whereabouts.
8. A prominent Sindhi leader Nazeer Abbasi was
abducted and inhumanly tortured to death by
Pakistani Military Agencies in 1980. No one
has been allowed to lodge a law suit
against the identified military butchers.
9. Mir Murtaza Bhutto, a prominent Sindhi
political leader, the son of former Pakistani PM
Zulfiqar Bhutto (himself a victim), a Sindh
Provincial Assembly member, was assassinated
by Police and Army cops on 19 October 1996 in
Karachi. But his murderers were acquitted
from the courts just because the assassins
were army men and supported by army.
10. Benazir Bhutto, prominent Sindhi leader and
former Pakistani PM, daughter of slain
Pakistani PM Zulfiqar Bhutto, was
assassinated by a covert plot by Pakistani
Army in Liaquat Bagh (Punjab) on December
27, 2007. She had earlier alleged Pakistani
Military Dictator Parvez Musharaf for
plotting assassination against her but no one
was held responsible or tried in her case.
11. Nawab Akber Khan Bugti, the nonagenarian
prominent Baloch leader was assassinated by
Pakistani Army. Pakistani dictator Gen.
Pervez Musharaf was held responsible
for his assassination but was acquitted by
the court.
12. Sindhi Nationalist leader Samiullah Kalhoro
(Senior Vice Chairman of my Party
JSMM) was abducted by Pakistani Military
Agency cops from his office in Sindh
University, Jamshoro and was tortured half-
dead. He recorded his statement in his last
interview after his escape from the
custody and unveiled his captors. He
succumbed to his injuries after a brief
10
(2017) 2 LAW Kulbhushan Jadhav & Terrible History of Pakistani Justice (S.M. Burfat)
period in hospital in March 2006. No one
has been punished.
13. Sindhi Nationalist leader Muzafar Bhutto
(Secretary General of my party JSMM)
was abducted by Pakistani Army cops in front
of his wife Saima Bhutto and brother
Shahnawaz Bhutto while they were
travelling to their home in Hyderabad on
February 24, 2011 and was shot dead after
15 months of extra-judicial custody on May 22,
2012. US Congressmen Dan Burton, Brad
Sherman and intellectual Noam Chomsky
also wrote to Pakistani Authorities to
release Muzafar Bhutto and other Sindhi
missing persons. His case was also
acknowledged by UNs working group
on Enforced disappearances during its
visit to Pakistan in September 2012 but
no one has been held responsible so far and
punished or tried in any court of law.
14. Sindhi nationalist leaders Sirai Qurban
Khuhawar (Sr. Vice Chairman JSMM), Abdul
Jabbar alias Rooplo Choliyani (Joint Secretary
JSMM) and Noorullah Tunio were shot in
their car and set ablaze on April 21, 2011.
Noorullah Tunio survived the shot and
burn injuries and recorded his final
statement in front of the local and
international media unveiling the
brutality of Army cops. He succumbed to
his injuries after a week. But no one has
been held responsible or punished for this
brutal inhuman act of shooting humans and
setting them ablaze. No one can lodge a
law suit against the military as everyone
is harassed and knows their immunity
above law.
15. Prominent Sindhi Nationalist leader Bashir
Khan Qureshi (Chairman JSQM) was
poisoned by ISI shortly after a freedom march
on March 23, 2012 attended by millions of
Sindhi people for the independence of
Sindh from Pakistan in Karachi. No
investigations have been conducted and
no law suit has been allowed to be lodged
against the known perpetrators. Bashir
11
11
Khan Qureshis brother Maqsood Khan
Qureshi (Co-Chairman JSQM) was shot dead
and set ablaze by the army cops along with
student leader Salman Wadho two days before
another million March on March 23, 2014 in
Karachi. Consequences are the same as in
the majority cases discussed above. No
one is held responsible or punished.
16. Human Rights Activist and social worker
Sabeen Mahmud was shot dead by an
identified target killer linked with Pakistani
army, on April 24, 2015 the day she
hosted a debate on Balochistan conflict
and war crimes of Pakistan Army in
Balochistan including armys covert
death squads, abductions, state torture,
extra-judicial killings and dumping
mutilated, bullet riddled, acid-dipped
bodies of hundreds of Baloch political
activists. No independent investigations
and progress has been made in her case.
17. Prominent Journalist and Geo TV
anchor-person Mr. Hamid Mir was shot
(luckily survived) after openly criticizing
Pakistani Armys human rights violations
and war crimes in Balochistan. The Geo
TV and Hamid alleged Pakistani Army to
be the perpetrators of the plot and were
silenced by series of attacks on Geo TV
reporters followed by cancellation of
license and 15 days ban on Geos
transmission in Pakistan.
Honorable High Commissioner UNHRC
and Members of ICJ,
These are just few leaves from the book of the
brutal history of judicial and military injustices in
Pakistan. Thousands of Sindhi and Baloch youth,
political activists and commons have been
abducted, tortured, extra-judicially killed and
assassinated by Pakistani military. Even a larger
number have borne the torment of long term
imprisonments and torture in illegal detention
centers. Even Nazi Gestapo would be ashamed of
its incompetence [compared] with its Pakistani
counterpart, the ISI.
Law Animated World, 15 September 2017
12 Kulbhushan Jadhav & Terrible History of Pakistani Justice (S.M. Burfat)
Pakistan has topped the list of the worst countries
for the freedom of speech and press. Several
politicians, journalists, Sindhi and Baloch
nationalist activists have been killed for their
criticism of the state but none of the culprits have
ever been tried in any court of law. Pakistan is such
an unnatural, rogue, fascist, Islamic theocratic, terrorist
state which has been the womb, vector, sponsor,
launchpad and the epicenter of Islamic extremist
terrorism. In fact, shes the ideological mother of the
concept of Islamic terrorism and the creation of Islamic
State. It follows the same military doctrine as
ISIL. Pakistani ISIs covert terrorist attacks in its
neighboring countries Afghanistan and India are
the evident of the above-mentioned fact. It has
been the hideout and safe havens of the world
declared terrorists like Osama Ben Laden, Mulla
Omar, Mulla Akhtar Mansoor, Ayman Al-
Zawahri, Khalid Sheikh Mohammed, Adnan Al-
Shukriijuma, Qari Yasin, Ilyas Kashmiri, Hafiz
Mohammad Saeed, Masood Azhar and countless
others.
It is an attested fact that Pakistan has been an
irresponsible state and threat to world peace since
it has been a nuclear proliferator and state sponsor of
global jihadism. It also has an established history of
giving nuclear technology to countries like Iran and
North Korea.
The oppressed nations Sindhi, Baloch, Pashtun,
Kashmiri, and Saraikis, have been victims of worst
oppression and cultural as well as human genocide since
its creation. These natural nations chained in the
forced federation of Pakistan seek attention of the
World and UN to seek independence from their
humiliating slavery and justice from the decades of
plunder, operation and genocide by Punjabi fascism
ruling over Pakistan in the shape of Punjabi elite, civil
military bureaucracy and military establishment.
Honorable High Commissioner UNHRC and
Members of ICJ,
We, the oppressed nations of Indian subcontinent,
want to make our voice heard in the international
community that the theocratic fascist state of Pakistan
has a long history of injustices and deceptions. The
only legacy of Pakistan in this world is nothing but
terrorism and destruction, sabotaging the peace and
tranquility of entire humanity.
Law Animated World, 15 September 2017
(2017) 2 LAW
Therefore, [we appeal to] the International
Court of Justice that while deciding the fate of
Kalbhushan it must consider [and take] the
above-mentioned history of politically motivated
strategic deceptions, conspiracies, frauds, fascist
holocausts, genocides, bloodshed, torture and
heinous crimes against humanity into account. It
will be completely inhuman and unjust to believe
Pakistani fabricated tale against Kalbhushan Jadhav
who himself is a victim of torture.
Hence, we appeal to the International court of
Justice and the Ns Commission on Human
Rights to not to believe Pakistani deception and
fabricated fake tale of Kalbhushan which is nothing
but a politically motivated nefarious strategic
design of Pakistan to sabotage Indian influence
and development projects in Iran and
Afghanistan.
We also appeal to the International Court of
Justice, UNs Commission on Human Rights,
Amnesty International, Human Rights Watch and
other International Human Rights Organizations
to investigate the role of Pakistan in assassinating,
enforcedly disappearing, ilegally detaining, inhumanly
torturing, extra-judicially killing political leaders and
activists and persecuting the religious minorities
Sindhi Hindus, Christians, Shiietes, Ahmedis, Sikhs and
Hazaras.
SHAFI MUHAMMAD BURFAT
Chairman
Jeay Sindh Muttahida Mahaz
shafiburfat1@gmail.com
shafiburfat.com
June 3, 2017
Frankfort, Germany
*****
12
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg] F-113

(2017) 2 LAW F-113 (ECHR-Strasbourg) By 15 votes to two, that there had been a
violation of Article 13 (right to an effective
EUROPEAN COURT remedy) of the Convention.
OF HUMAN RIGHTS Under Article 41 (just satisfaction) of the
AT STRASBOURG Convention, the Court awarded in respect of
Thursday, 10 May 2001 pecuniary damage 8,000 pounds sterling (GBP) to
(Application No. 29392/1995) Z., GBP 100,000 to A., GBP 80,000 to B., and GBP
4,000 to C. The Court also awarded GBP 32,000 to
each applicant for non-pecuniary damage and a
total of GBP 39,000 for costs and expenses.
1. PRINCIPAL FACTS
The applicants, four siblings, Z, a girl born in
BETWEEN: 1982, A, a boy born in 1984, B, a boy born in 1986
Z & OTHERS Petitioners and C, a girl born in 1988 are all British nationals.
v.
THE UNITED KINGDOM Respondent.
In October 1987, the applicants family was
referred to the social services by its health visitor
Citation: Case of Z & Others v. The United Kingdom because of concerns about the children, including
(2017) 2 LAW F-113 (ECHR-Strasbourg-GC) reports that Z was stealing food.
*** Over the next four-and-a-half years, the social
services monitored the family and provided various
JUDGMENT IN THE CASE OF forms of support to the parents. During this period,
Z. & OTHERS v. THE UNITED KINGDOM problems continued. In October 1989, when
PRESS RELEASE investigating a burglary, the police found the
issued by the Registrar of the Court childrens rooms in a filthy state, the mattresses
being soaked with urine. In March 1990, it was
ECHR 342 (2016) 10.05.2001 reported that Z and A were stealing food from bins
The European Court of Human Rights has today in the school. In September 1990, A and B were
delivered a Grand Chamber judgment in the case reported as having bruises on their faces. On a
of Z. and others v. the United Kingdom (application number of occasions, it was reported that the
no. 29392/95): children were locked in their rooms and were
The Court held: smearing excrement on the windows. Finally, on 10
June 1992, the children were placed in emergency
Unanimously, that there had been a violation of foster care on the demand of their mother who said
Article 3 (prohibition of inhuman or degrading
that, if they were not removed from her care, she
treatment) of the European Convention on
would batter them. The consultant psychologist
Human Rights;
who examined the children found that the older
Unanimously, that no separate issues arose three were showing signs of serious psychological
under Article 8 (right to respect for family life) disturbance and noted that it was the worst case of
of the Convention;
neglect and emotional abuse she had seen.
By 12 votes to five, that there had been no
violation of Article 6 (right to a fair trial) of
The Official Solicitor, acting for the applicants,
the Convention; commenced proceedings against the local authority
claiming damages for negligence on the basis that

Courtesy: ECHR at http://www.echr.coe.int/ - The press the authority had failed to have proper regard for
release by the Registry does not bind the Court. Grand the childrens welfare and to take effective steps to
Chamber judgments are final (Article 44 of the Convention). protect them. Following proceedings which
Emphases in bold ours - IMS. terminated in the House of Lords, the applicants

13 Law Animated World, 15 September 2017

F-114 Z & Others v. The United Kingdom [ECHR-Strasbourg]
claims were struck out. In the judgment given on 29
June 1995, which concerned three cases, Lord
Browne-Wilkinson held, among other things, that
public policy considerations were such that local
authorities should not be held liable in negligence in
respect of the exercise of their statutory duties
safeguarding the welfare of children.
2. PROCEDURE
The case was lodged with the European
Commission of Human Rights on 9 October 1995
and declared admissible on 26 May 1998. In its
report (available on HUDOC on the Courts
Internet site www.echr.coe.int), the Commission
expressed the opinion, unanimously, that there had
been violations of Articles 3 and 6 of the
Convention and that no separate issues arose under
Articles 8 or 13. The case was referred to the Court
by the Commission on 25 October 1999. A public
hearing in the case was held on 28 June 2000.
3. COMPOSITION OF THE COURT
Judgment was given by the Grand Chamber of
17 judges, composed as follows:
Luzius Wildhaber (Swiss), President,
Elisabeth Palm (Swedish),
Christos Rozakis (Greek),
Jean-Paul Costa (French),
Luigi Ferrari Bravo1(Italian),
Lucius Caflisch2(Swiss),
Pranas Kris (Lithuanian),
Josep Casadevall (Andorran),
Botjan Zupani (Slovenian),
Nina Vaji (Croatian),
John Hedigan (Irish),
Wilhelmina Thomassen (Dutch),
Margarita Tsatsa-
Nikolovska (FYROMacedonia),
Egils Levits (Latvian),
Kristaq Traja (Albanian),
Anatoly Kovler (Russian), judges,
Lady Justice Arden (British) ad hoc judge,
and also Paul Mahoney, Deputy Registrar.
1
Judge elected in respect of San Marino.
2 appalling neglect over an extended period and suffered
Judge elected in respect of Liechtenstein.
Law Animated World, 15 September 2017
(2017) 2 LAW
4. COMPLAINTS
The applicants alleged that the local authority had
failed to take adequate protective measures in respect of
the severe neglect and abuse which they were known to be
suffering due to their ill-treatment by their parents and
that they had no access to court or to an effective
remedy in respect of this. They invoked Articles 3, 6, 8
and 13 of the Convention.
5. DECISION OF THE COURT
Article 3
The Court reiterated that Article 3 enshrined one of
the most fundamental values of a democratic society,
prohibiting in absolute terms torture or inhuman or
degrading treatment or punishment. States which had
ratified the European Convention on Human Rights
were bound to ensure that individuals within their
jurisdiction were not subjected to inhuman or
degrading treatment, including such ill-treatment
administered by private individuals. These
measures should provide effective protection, in
particular, of children and other vulnerable people
and include reasonable steps to prevent ill-treatment
of which the authorities had or ought to have had
knowledge.
There was no dispute that the neglect and abuse
suffered by the four child applicants reached the threshold
of inhuman and degrading treatment. The Government
did not contest the Commissions finding that the
treatment suffered by the four applicants reached
the level of severity prohibited by Article 3 and that
the State failed in its positive obligation under
Article 3 of the Convention to provide the
applicants with adequate protection against
inhuman and degrading treatment. This treatment
was brought to the attention of the local authority,
at the earliest in October 1987, which was under a
statutory duty to protect the children and had a
range of powers available to it, including removing
them from their home. The children were however
only taken into emergency care, at the insistence of
their mother, on 30 April 1992.
Over the intervening period of four-and-a-half years,
they had been subjected in their home to what the child
consultant psychiatrist who examined them referred to as
horrific experiences. The Criminal Injuries Compensation
Board had also found that the children had been subject to
physical and psychological injury directly attributable to a
14
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
crime of violence. The Court acknowledged the
difficult and sensitive decisions facing social
services and the important countervailing principle
of respecting and preserving family life. The
present case however left no doubt as to the failure
of the system to protect the applicants from serious, long-
term neglect and abuse. Accordingly, there had been a
violation of Article 3.
ARTICLE 8
Having regard to its finding of a violation of
Article 3, the Court considered that no separate issue
arose under Article 8.
ARTICLE 6
Concerning the applicability of Article 6, the
Court was satisfied that, at the outset of the
proceedings, there was a serious and genuine dispute
about the existence of the right asserted by the applicants
under the domestic law of negligence and that the
applicants had, on at least arguable grounds, a claim under
domestic law. Article 6 was therefore applicable to the
proceedings brought by the applicants alleging
negligence by the local authority.
Concerning compliance with Article 6, the Court
found that the outcome of the domestic proceedings
brought was that the applicants, and any children
with complaints such as theirs, could not sue a local
authority in negligence for compensation, however
foreseeable and severe - the harm suffered and
however unreasonable the conduct of the local
authority in failing to take steps to prevent that
harm. However, this did not result from any
procedural bar or from the operation of any
immunity which restricted access to court. The
striking out of the applicants claim resulted from
the application by the domestic courts of
substantive law principles and it was not for this
Court to rule on the appropriate content of domestic
law. Nonetheless, the applicants were correct in their
assertions that the gap they had identified in domestic law
was one that gave rise to an issue under the Convention,
but in the Courts view it was an issue under Article 13, not
Article 6 1. The applicants complaints were
essentially that that they had not been afforded a remedy
in the courts for the failure to ensure them the level of
protection against abuse to which they were entitled under
Article 3. Considering that it was under Article 13 that the
applicants right to a remedy should be examined, the
Court found no violation of Article 6.
15
F-115
ARTICLE 13
In deciding whether there had been a violation of
Article 13, the Court observed that where alleged
failure by the authorities to protect people from the acts of
others was concerned, there should be available to the
victim or the victims family a mechanism for establishing
any liability of State officials or bodies for acts or omissions
involving the breach of their rights under the Convention.
Furthermore, in the case of a breach of Articles 2
and 3, which ranked as the most fundamental
provisions of the Convention, compensation for the
non-pecuniary damage flowing from the breach
should in principle be available as part of the range
of redress.
The applicants had argued that, in their case, an
effective remedy could only be provided by adversarial
court proceedings against the public body responsible for
the breach. The Court noted that the Government
had conceded that the range of remedies at the
disposal of the applicants was insufficiently
effective and that, in the future, under the Human
Rights Act 1998, victims of human rights breaches would
be able to bring proceedings in courts empowered to award
damages.
The Court found that the applicants did not have
available to them an appropriate means of obtaining
a determination of their allegations that the local
authority had failed to protect them from inhuman
and degrading treatment or the possibility of
obtaining an enforceable award of compensation for
the damage suffered thereby. Consequently, they
were not afforded an effective remedy in respect of the
breach of Article 3 and there had, accordingly, been a
violation of Article 13.
Judges Rozakis, Palm, Thomassen, Casadevall
and Kovler expressed partly dissenting opinions and
Lady Justice Arden and Judge Kovler expressed
concurring opinions, all of which are annexed to the
judgment.
***
The European Court of Human Rights was set up
in Strasbourg in 1959 to deal with alleged violations
of the 1950 European Convention on Human Rights.
On 1 November 1998 a full-time Court was established,
replacing the original two-tier system of a part-time
Commission and Court.
*****
Law Animated World, 15 September 2017
F-116 Z & Others v. The United Kingdom [ECHR-Strasbourg] (2017) 2 LAW

PROCEDURE
1. The case was referred to the Court, in
GRAND CHAMBER accordance with the provisions applicable prior to
the entry into force of Protocol No. 11 to the
CASE OF Z AND OTHERS v. Convention for the Protection of Human Rights
THE UNITED KINGDOM and Fundamental Freedoms (the Convention),
(Application no. 29392/1995) by the European Commission of Human Rights
(the Commission) on 25 October 1999 (Article
JUDGMENT 5 4 of Protocol No. 11 and former Articles 47
STRASBOURG and 48 of the Convention).
10 May 2001 2. The case originated in an application
(no. 29392/95) against the United Kingdom of
This judgment is final but it may be Great Britain and Northern Ireland lodged with
subject to editorial revision. the Commission under former Article 25 of the
In the case of Z and Others v. Convention by the applicants, Z, A, B, C and D,
the United Kingdom, five British nationals, on 9 October 1995.
The European Court of Human Rights, sitting as 3. The applicants alleged that the local authority had
a Grand Chamber composed of the following failed to take adequate protective measures in respect of
the severe neglect and abuse which they were known to
judges:
be suffering due to their ill-treatment by their parents
Mr L. WILDHABER, President, and that they had no access to a court or effective
Mrs E. PALM, remedy in respect of this. They relied on Articles 3, 6, 8
Mr C.L. ROZAKIS, and 13 of the Convention.
Mr J.-P. COSTA, 4. The Commission declared the application
Mr L. FERRARI BRAVO, admissible on 26 May 1998. On 6 September
Mr L. CAFLISCH, 1999, pursuant to the express wishes of D's
adoptive parents, the Commission decided that D
Mr P. KRIS,
should no longer be an applicant. In its report of
Mr J. CASADEVALL, 10 September 1999 (former Article 31 of the
Mr B. ZUPANI, Convention) [Note by the Registry. The report is
Mrs N. VAJI, obtainable from the Registry], it expressed the
Mr J. HEDIGAN, unanimous opinion that there had been a violation
Mrs W. THOMASSEN, of Article 3 of the Convention, that no separate
Mrs M. TSATSA-NIKOLOVSKA, issue arose under Article 8, that there had been a
violation of Article 6 and that no separate issue
Mr E. LEVITS,
arose under Article 13.
Mr K. TRAJA,
5. Before the Court the applicants had been
Mr A. KOVLER, granted legal aid. The President of the Court
Lady Justice ARDEN, ad hoc judge, acceded to their request not to have their names
and also of Mr P.J. MAHONEY, Deputy Registrar, disclosed (Rule 47 3 of the Rules of Court).
Having deliberated in private on 28 June and 6. On 6 December 1999 a panel of the Grand Chamber
11 October 2000 and on 4 April 2001, determined that the case should be decided by the
Grand Chamber (Rule 100 1). The composition
Delivers the following judgment, which was of the Grand Chamber was determined according
adopted on the last-mentioned date: to the provisions of Article 27 2 and 3 of the

Law Animated World, 15 September 2017 16

(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
Convention and Rule 24. The President of the
Court decided that in the interests of the proper
administration of justice, the case should be
assigned to the Grand Chamber that had been
constituted to hear the case of T.P. and K.M. v.
the United Kingdom ([GC], no. 28945/95, ECHR
2001-V) (Rules 24, 43 2, and 71). Sir Nicolas
Bratza, the judge elected in respect of the United
Kingdom, who had taken part in the
Commission's examination of the case, withdrew
from sitting in the Grand Chamber (Rule 28). The
United Kingdom Government (the Government)
accordingly appointed Lady Justice Arden to sit
as an ad hoc judge (Article 27 2 of the
Convention and Rule 29 1).
7. The applicants and the Government each filed
a memorial. Third-party comments were also
received from Professor G. Van Bueren, Director
of the Programme on International Rights of the
Child, University of London, who had been given
leave by the President to intervene in the written
procedure (Article 36 2 of the Convention and
Rule 61 3).
8. A hearing took place in public in the Human
Rights Building, Strasbourg, on 28 June 2000
(Rule 59 2).
There appeared before the Court:
(a) for the Government
Ms S. McGRORY, Foreign and Commonwealth
Office, Agent,
Mr D. ANDERSON QC, Foreign and
Commonwealth Office,
Ms J. STRATFORD, Foreign and
Commonwealth Office, Counsel,
Ms S. RYAN, Foreign and Commonwealth
Office,
Ms J. GRAY, Foreign and Commonwealth
Office,
Mr M. MURMANE, Foreign and
Commonwealth Office, Advisers;
(b) for the applicants
Mr B. EMMERSON QC, Counsel,
Ms P. WOOD, Solicitor,
17
F-117
Mrs M. MAUGHAN, Solicitor,
Ms E. GUMBEL QC,
Ms N. MOLE, of the AIRE Centre, Advisers.
The Court heard addresses by Mr Emmerson and
Mr Anderson.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicants are four full siblings:
Z, a girl born in 1982;
A, a boy born in 1984;
B, a boy born in 1986;
C, a girl born in 1988.
10. The applicants' parents were married in
November 1981.
11. The family was first referred to social services
in October 1987 by their health visitor due to
concerns about the children and marital problems.
Z was reported to be stealing food at night.
Following the referral, a professionals' meeting,
involving the relevant agencies, was held on 24
November 1987, at which it was decided that a
social worker and health visitor should visit. The
family were reviewed at a further meeting in
March 1988 and as it appeared that concerns had
diminished, the file was closed.
12. In September 1988 a neighbour reported that
the children were locked outside the house for
most of the day.
13. In April 1989 the police reported that the
children's bedrooms were filthy. The family's
general practitioner also reported that the
children's bedrooms were filthy and that their
doors were locked. The children's head-teacher,
Mrs Armstrong, expressed concern in May 1989
and requested a case conference. In June 1989 the
NSPCC (National Society for the Prevention of
Cruelty to Children) and the emergency team
made a referral after complaints by neighbours that
the house was filthy and that the children spent most of
the day in their bedrooms, rarely being allowed out to
play, and crying frequently. In August 1989 the
maternal grandmother complained to the social services
about the mother's care and discipline of the
children.
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F-118 Z & Others v. The United Kingdom [ECHR-Strasbourg]
14. At a professionals' meeting on 4 October
1989, at which the social services, the applicants'
head-teacher, the applicants' general practitioner
and health visitor attended, it was decided that no
social worker would be allocated to the family.
The school was to monitor the older children's
weight and the health visitor was to continue to
visit the family regularly. It was agreed that the
problem was one of limited and neglectful parenting
rather than a risk of physical abuse, and that the
parents should be assisted to manage their
responsibilities better.
15. In October 1989, whilst the applicants were
on holiday, their house was burgled. On entering,
the police found it in a filthy state. Used sanitary
towels and dirty nappies were discarded in a
cupboard and the children's mattresses were
sodden with urine. At a professionals' meeting on
13 December 1989, the health visitor requested
that the four older children be placed on the Child
Protection Register as she felt that their mother
could not offer consistent care. This suggestion
was rejected. However, a social-work assistant,
Ms M., was assigned to the family. It was not
considered appropriate to convene a case
conference at this stage. Prior to the meeting, Z
and A had mentioned to the head-teacher that A
had been hit with a poker. It was decided that this
statement would be investigated.
16. At a professionals' meeting on 23 March
1990, an improvement was noted in respect of the
cleanliness of the house, the children's bedding
being clean save on two occasions. However, it
was reported that Z and A were taking food from
bins at the school. There was still considered to
be cause for concern, especially since the birth of
another child was expected.
17. At a professionals' meeting on 11 July 1990,
the applicants' headmistress reported a
deterioration in the children's well-being; Z and A
were still taking food from bins and A was
soiling himself. Ms M. was visiting weekly at this
stage and said that she was checking the
children's bedrooms. She had noted that the
children ate at 4 or 4.30 p.m. and then did not eat
Law Animated World, 15 September 2017
(2017) 2 LAW
again until the morning. The children were also
sent to bed at 6 p.m. It was planned to give the
applicant's mother further assistance through a
voluntary agency.
18. In or about September 1990, A and B were
both reported to have bruising on their faces. The
police investigated after neighbours had reported
screaming at the applicants' home but apparently
found no signs of bruising. They reported to the
social services that the conditions of the house
were appalling and not fit for [the] children to
live in.
19. At a further professionals' meeting on
3 October 1990, the assistant social worker,
Ms M., stated that she was concerned about the
applicants' soiling and their mother's lack of
interest. Apparently, the children were defecating in
their bedroom and smearing excrement on their
windows. The head-teacher expressed concern,
particularly concerning the boys A and B, and
stated that the children had described blocks of
wood being placed against their bedroom doors.
It was decided to continue monitoring the
children.
20. At a professionals' meeting on 5 December
1990, a decision was made to arrange a case
conference for January 1991 as a result of
concern regarding the applicants' care and the
state of their bedroom. Ms M. considered that
standards in the boys' bedroom had dramatically
dropped. She found the room to be damp and
smelly. A's bed was broken and had a metal bar
protruding from it. The bedding was damp and
grubby with soil marks.
21. In a report dated 24 January 1991, the
headmistress stated that A was shabby, ill-kempt
and often dirty and that he had been raiding the
playground bins for apple cores. Z was pathetic,
lacking in vitality and frequently and inexplicably
tearful, becoming increasingly isolated from the
other girls in her peer group with unfortunate
incidents in which detrimental remarks were
made about her appearance. B presented as
withdrawn, pathetic and bedraggled. He regularly
arrived cold, was frequently tearful and craved
18
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
physical contact from adult helpers. He also
appeared to crave for food. She concluded that
they were still concerned that the children's needs
were not being adequately met and that home
conditions and family dynamics were giving
reasons for concern.
22. At the case conference held on 28 January
1991, Ms M. stated that the boys' bedroom had no
light, carpet or toys and that their bedding was
wet, smelly and soil-stained. Their mother did not
change the beds. Their head-teacher stated that Z
was tearful and withdrawn, A had been raiding
school bins and was often dirty, and B was very
withdrawn, craved attention and was ravenously
hungry. The chairman of the conference
concluded that, despite the many concerns about
the parenting of the applicants and the conditions
in the home, there was little evidence to support
going to court. It was felt that the parents were
not wilfully neglecting their children and, bearing
in mind their own poor upbringing, it was
considered that the applicants' parents were doing
what they could and that continued support was
required to try and improve the situation. It was
decided not to place the children on the Child
Protection Register.
23. On 5 March 1991 B was found to have
unusual bruises on his back.
24. At a later social services meeting in April
1991, no change to the children's living
conditions was noted. The head-teacher stated
that Z and A were still taking food from bins and
that A was becoming more withdrawn. Ms M.
reported that the mother had stated that the
children were taking food from the park bins on
the way to school.
25. In July 1991 the applicants' mother informed
social services that the children would be better
off living in care. On 12 August 1991 the social
services received a phone call from a neighbour
who stated that the children were frequently
locked outside in a filthy back garden, that they
constantly screamed and that they were kept for
long periods in their bedrooms where they
smeared faeces on their windows. The maternal
19
F-119
grandparents later told the guardian ad litem that
Z, who was treated by her mother as a little
servant, was expected to clean the excrement
from the windows.
26. From 19 to 28 August 1991, the three older
children spent some time with foster carers in
respite care. The foster carers reported that A did
not know how to wash, bathe or clean his teeth on
arrival. He wet his bed every night and stole food
from his brother. B was described as being very
frightened. He could not understand how he could
play in the garden and the door was left open for
him to come back in, he expected to be locked
out. He also had to be taught to use the toilet
properly and to clean himself.
27. At a professionals' meeting on 18 September
1991, Ms M. stated that the conditions in which
the boys were sleeping were deteriorating. The
mattresses in the boys' bedroom were ripped and
the springs were coming through. The boys were
stealing food, and C had also been seen to do this.
Their mother stated that she could not control
them. It was decided not to arrange a child-
protection meeting but to carry out a monthly
weight check on the three older children at
school, and for the health visitor to check the
weight of the two younger children. It was also
decided to arrange respite care for Z, A and B in
the holidays as well as on one weekend in four.
28. In November-December 1991 C was found to
have developed a squint. His mother failed to
keep appointments at the eye-clinic over the
following months.
29. At a professionals' meeting on 21 November
1991, it was reported that the applicants' mother
had said that she could not control the applicants'
behaviour which consisted of refusing to go to
bed when asked and stealing food. It was
considered that the home was in an acceptable
condition, though the boys' room still needed
attention. The children's weights were recorded. It
was noted that Z had put on 2 lb in the previous
two months whereas she had only put on 2.5 lb in
the preceding two years. A had only put on 3 lb in
a year. B had put on 0.5 lb in a year and was on
Law Animated World, 15 September 2017
F-120 Z & Others v. The United Kingdom [ECHR-Strasbourg]
the 50th centile for height. C was on the 25th
centile for weight. There was a discussion about
the three elder children being accommodated by
the local authority to allow the mother to get
back on her feet. The social services considered
a six-week period whilst the general practitioner
envisaged a period of eighteen to twenty-four
months.
30. In December 1991 a social worker was
introduced to the applicants' mother with a view
to assisting her with shopping, budgeting and
cooking.
31. Z, A and B were accommodated by
volunteers between January and March 1992, and
showed to have gained weight. In March and
again in April, their mother asked if the boys, A
and B, could be placed for adoption.
32. On 14 January 1992 C started to attend a
nursery group at a family centre. She was noted
to be unsocialised, lacking in confidence, unable
to share, and with poor speech.
33. At a further professionals' meeting on 9
March 1992, it was decided that further respite
care would be considered. The children's weights
were noted, increases being seen for Z, A and B.
34. The children's parents divorced in April 1992.
35. At another professionals' meeting on 30 April
1992 it was decided that the applicants' mother's
request that A and B be placed for adoption be
followed up. The headmistress voiced concern
over the fundamental pattern of the mother's care
of the children, in particular in relation to Z's role
in the home and the mothering role which she
played. Ms M. reported that conditions were
deteriorating for A and B.
36. On 10 June 1992 the applicants' mother
demanded that the children be placed in care as she
could not cope. She stated that if they were not
removed from her care she would batter them. The
applicants were placed in emergency foster care. The
applicants were entered onto the Child Protection
Register under the categories of neglect and
emotional abuse after a child-protection meeting
on 22 June 1992.
Law Animated World, 15 September 2017
(2017) 2 LAW
37. The applicants were all fostered separately.
Initially, Z was noted to have dirty, ill-fitting
clothes. She stated that she did not like living
with her siblings as she did not like having to
look after them all the time. A wet the bed every
night, shunned physical contact and suffered from
nightmares. B did not know how to use the toilet
or toilet paper. C bonded very quickly with her
foster parents.
38. On 8 October 1992 the local authority decided
to seek care orders in respect of the children.
Interim care orders were made on 7 December
1992.
39. A guardian ad litem, who was appointed on
18 January 1993, recommended that all the
applicants should be the subject of care orders in
order to protect them from further harm. She
stated that there was an abundance of evidence that
the children have been subjected to physical and mental
ill-treatment. She noted that their health had also
been neglected by their parents who frequently
missed appointments with opticians and doctors.
40. All the applicants were seen by Dr Dora
Black, a consultant child psychiatrist, in January
1993. Dr Black stated that the three older children
were all showing signs of psychological disturbance. Z
was exhibiting signs of serious depressive illness
and had assumed responsibility for her family and
for its breakdown. Her mother's behaviour towards
her was described as cruel and emotionally abusive.
A and B, who suffered from nightmares, were
both identified as showing signs of post-traumatic
stress disorder and A was also chronically under-
attached. Dr Black noted that all children had been
deprived of affection and physical care. She described
their experiences as to put it bluntly, horrific,
and added that the case was the worst case of neglect
and emotional abuse that she had seen in her
professional career. In her opinion, social services
had leaned over backwards to avoid putting
these children on the Child Protection Register
and had delayed too long, leaving at least three of
the children with serious psychological
disturbance as a result.
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(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
41. Full care orders were made in respect of the
applicants on 14 April 1993 by Judge Tyrer
sitting at Milton Keynes County Court.
42. In June 1993 the Official Solicitor, acting as
the applicants' next friend, commenced
proceedings against the local authority claiming
damages for negligence and/or breach of statutory
duty arguing that the authority had failed to have
regard to their welfare as was required by statute
and should have acted more quickly and more
effectively when apprised of their condition. It
was argued that the local authority's failure to act
had resulted in psychological damage. The
application was struck out as revealing no cause
of action, by Mr Justice Turner on 12 November
1993.
43. The applicants appealed to the Court of
Appeal, which, on 28 February 1994, upheld the
decision of Mr Justice Turner to strike out the
application.
44. The applicants appealed to the House of
Lords. On 29 June 1995 the House of Lords rejected
their appeal, finding that no action lay against the local
authority in negligence or breach of statutory duty
concerning the discharge of their duties relating to the
welfare of children under the Children Act 1989 in
respect of child care. The case is reported as X and
Others v. Bedfordshire County Council [1995] 3
All England Law Reports 353.
45. Lord Browne-Wilkinson gave the leading
judgment. In respect of claims for breach of
statutory duty, he stated, inter alia:
... My starting point is that the Acts in question are
all concerned to establish an administrative system
designed to promote the social welfare of the
community. The welfare sector involved is one of
peculiar sensitivity, involving very difficult decisions
how to strike the balance between protecting the child
from immediate feared harm and disrupting the
relationship between the child and its parents. In my
judgment in such a context it would require
exceptionally clear statutory language to show a
parliamentary intention that those responsible for
carrying out these difficult functions should be
liable in damages if, on subsequent investigation
with the benefit of hindsight, it was shown that
they had reached an erroneous conclusion and
21
F-121
therefore failed to discharge their statutory
duties. ...
When one turns to the actual words used in the
primary legislation to create the duties relied
upon in my judgment they are inconsistent with
any intention to create a private law cause of
action.
46. As regards the claims that the local authority
owed a duty of care to the applicants pursuant to the
tort of negligence, Lord Browne-Wilkinson
stated, inter alia:
I turn then to consider whether, in accordance
with the ordinary principles laid down in
Caparo [1990] 2 AC 605, the local authority ...
owed a direct duty of care to the plaintiffs. The local
authority accepts that they could foresee damage
to the plaintiffs if they carried out their statutory
duties negligently and that the relationship
between the authority and the plaintiffs is
sufficiently proximate. The third requirement
laid down in Caparo is that it must be just and
reasonable to impose a common law duty of care in all
the circumstances...
The Master of the Rolls took the view, with
which I agree, that the public policy
consideration that has first claim on the loyalty
of the law is that wrongs should be remedied and
that very potent counter considerations are
required to override that policy (see [1994] 4
AER 602 at 619). However, in my judgment
there are such considerations in this case.
First, in my judgment a common law duty of care
would cut across the whole statutory system set up for
the protection of children at risk. As a result of the
ministerial directions contained in 'Working
Together' the protection of such children is not
the exclusive territory of the local authority's
social services. The system is inter-disciplinary,
involving the participation of the police,
educational bodies, doctors and others. At all
stages the system involves joint discussions, joint
recommendations and joint decisions. The key
organisation is the Child Protection Conference,
a multi-disciplinary body which decides whether
to place the child on the Child Protection
Register. This procedure by way of joint action
takes place, not merely because it is good
practice, but because it is required by guidance
having statutory force binding on the local
Law Animated World, 15 September 2017
F-122 Z & Others v. The United Kingdom [ECHR-Strasbourg]
authority. The guidance is extremely detailed and
extensive: the current edition of 'Working
Together' runs to 126 pages. To introduce into
such a system a common law duty of care
enforceable against only one of the participant
bodies would be manifestly unfair. To impose
such liability on all the participant bodies would
lead to almost impossible problems of
disentangling as between the respective bodies
the liability, both primary and by way of
contribution, of each for reaching a decision
found to be negligent.
Second, the task of the local authority and its
servants in dealing with children at risk is
extraordinarily delicate. Legislation requires the
local authority to have regard not only to the
physical well-being of the child but also to the
advantages of not disrupting the child's family
environment. ... In one of the child abuse cases,
the local authority is blamed for removing the
child precipitately; in the other for failing to
remove the children from their mother. As the
Report of the Inquiry into Child Abuse in
Cleveland 1987 (Cmnd. 412) ('Cleveland Report
1987') said, at p. 244:
'... It is a delicate and difficult line to tread between
taking action too soon and not taking it soon enough.
Social services whilst putting the needs of the
child first must respect the rights of the parents;
they also must work if possible with the parents for
the benefit of the children. These parents
themselves are often in need of help. Inevitably a
degree of conflict develops between those
objectives.'
Next, if liability in damages were to be imposed, it
might well be that local authorities would adopt a more
cautious and defensive approach to their duties. For
example, as the Cleveland Report makes clear,
on occasions the speedy decision to remove the
child is sometimes vital. If the authority is to be
made liable in damages for a negligent decision
to remove a child (such negligence lying in the
failure properly first to investigate the
allegations) there would be a substantial
temptation to postpone making such a decision
until further inquiries have been made in the
hope of getting more concrete facts. Not only
would the child in fact being abused be
prejudiced by such delay, the increased workload
inherent in making such investigations would
Law Animated World, 15 September 2017
(2017) 2 LAW
reduce the time available to deal with other cases
and other children.
The relationship between the social worker and the
child's parents is frequently one of conflict, the parent
wishing to retain care of the child, the social
worker having to consider whether to remove it.
This is fertile ground in which to breed ill-feeling and
litigation, often hopeless, the cost of which both in terms
of money and human resources will be diverted from the
performance of the social service for which they were
provided. The spectre of vexatious and costly
litigation is often urged as a reason for not
imposing a legal duty. But the circumstances
surrounding cases of child abuse make the risk a
very high one which cannot be ignored.
If there were no other remedy for
maladministration of the statutory system for the
protection of children, it would provide
substantial argument for imposing a duty of care.
But the statutory complaints procedures
contained in section 76 of the 1980 Act and the
much fuller procedures now available under the
1989 Act provide a means to have grievances
investigated though not to recover compensation.
Further, it was submitted (and not controverted)
that the local authorities Ombudsman would
have power to investigate cases such as these.
Finally, your Lordships' decision in Caparo
[1990] 2 AC 605 lays down that in deciding
whether to develop novel categories of negligence the
court should proceed incrementally and by analogy with
decided categories. We were not referred to any
category of case in which a duty of care has been
held to exist which is in any way analogous to
the present cases. Here, for the first time, the
plaintiffs are seeking to erect a common law duty of care
in relation to the administration of a statutory social
welfare scheme. Such a scheme is designed to
protect weaker members of society (children)
from harm done to them by others. The scheme
involves the administrators in exercising
discretion and powers which could not exist in
the private sector and which in many cases bring
them into conflict with those who, under the
general law, are responsible for the child's
welfare. To my mind, the nearest analogies are the
cases where a common law duty of care has been sought
to be imposed upon the police (in seeking to protect
vulnerable members of society from wrongs
done to them by others) or statutory regulators of
financial dealing who are seeking to protect investors
22
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
from dishonesty. In neither of these cases has it been
thought appropriate to superimpose on a statutory
regime a common law duty of care giving rise to a claim
in damages for failure to protect the weak against the
wrongdoer. ... In my judgment, the courts should
proceed with great care before holding liable in
negligence those who have been charged by Parliament
with the task of protecting society from the wrong
doings of others.
47. Z and C, the two girls, were meanwhile
adopted. The boys, A and B, were initially in
foster care. Following the breakdown of B's
adoptive placement, he was placed in a
therapeutic residential placement in July 1995.
After two years, he was again placed with foster
parents where he remained, attending school in a
special-needs group. In January 1996, A was
placed in a therapeutic community, where he
stayed for two years. He apparently had a number
of foster placements which broke down. Records
indicated that he had been in twelve different
placements in eight years. He is currently in a
children's home.
48. In March 1996, applications were made to the
Criminal Injuries Compensation Board (CICB)
on behalf of all the children by the adoption
society to whom the local authority had delegated
certain responsibilities. It was claimed on behalf
of Z that she had suffered severe neglect and
chronic deprivation which rendered it likely that
specialist care would be necessary during her
adolescence, a time where emotional
repercussions of the abuse might become
apparent; on behalf of A that he had suffered
physical deprivation, emotional abuse, physical
abuse and possible sexual abuse he had suffered
permanent physical scarring and was still
receiving treatment from a child psychiatrist; on
behalf of B that he had suffered extreme physical
and emotional deprivation and shown signs of
sexual abuse he also had suffered permanent
physical scarring and was receiving therapy; and
on behalf of C that she had suffered extreme
physical and emotional deprivation, and in
addition that her need for eye treatment was not
being met by her parents.
23
F-123
49. In February 1997, the CICB awarded 1,000
pounds sterling (GBP) to Z, GBP 3,000 to A and
GBP 3,000 to B for injuries suffered between
1987 and 1992; it awarded GBP 2,000 to C for
injuries suffered between 1988 and 1992. In a
letter dated 20 May 1998 from the CICB to the
Official Solicitor, it was stated:
The Board Member who assessed these cases
recognised that the children were exposed to
appalling neglect over an extended period but
explained to their advisers that the Board could
not make an award unless it was satisfied on the
whole available evidence that an applicant had
suffered an injury physical or psychological
directly attributable to a crime of violence ... He
was nevertheless satisfied, that setting aside
'neglect' the children had some physical and
psychological injury inflicted upon them as
enabled him to make an award to each child ...
II. RELEVANT DOMESTIC LAW
A. Local authority's duties in respect of child care
50. Prior to the coming into force of the current
legislation, the Children Act 1989, on 14 October
1991, the local authority's duty in respect of
child care was governed by the Child Care Act
1980.
Sections 1 and 2 of the Child Care Act 1980
provided that:
1. It shall be the duty of every local authority to
make available such advice, guidance and
assistance as may promote the welfare of
children by diminishing the need to receive
or keep them in care.
2. (1) Where it appears to a local authority with
respect to a child in their area appearing to
them to be under the age of seventeen
(a) that he has neither parent nor guardian
or has been and remains abandoned by
his parents or guardian or is lost;
(b) that his parents or guardian are, for the
time being or permanently, prevented
by reason of mental or bodily disease
or infirmity or other incapacity or any
other circumstances from providing for
his proper accommodation, maintenance
and upbringing; and
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F-124 Z & Others v. The United Kingdom [ECHR-Strasbourg]
(c) in either case, that the intervention of
the local authority under this section is
necessary in the interests of the welfare
of the child, it shall be the duty of the
local authority to receive the child into
their care under this section.
51. Section 17 of the Children Act 1989 has since
provided, inter alia:
17. Provision of services for children in need,
their families and others
(1) It shall be the general duty of every local
authority (in addition to the other duties
imposed on them by this Part)
(a) to safeguard and promote the welfare of
children within their area who are in
need; and
(b) so far as is consistent with that duty, to
promote the upbringing of such
children by their families,
by providing a range and level of services
appropriate to those children's needs.
(2) For the purpose principally of facilitating the
discharge of their general duty under this
section, every local authority shall have the
specific duties and powers set out in Part I of
Schedule 2.
...
(10) For the purposes of this Part a child shall be
taken to be in need if
(a) he is unlikely to achieve or maintain, or
to have the opportunity of achieving or
maintaining a reasonable standard of
health or development without the
provision for him of services by a local
authority under this Part;
(b) his health or development is likely to be
significantly impaired or further
impaired, without the provision for him
of such services; or
(c) he is disabled ...
(11) ...; and in this Part
'development' means physical, intellectual,
emotional, social or behavioural development;
and 'health' means physical or mental health.
52. Part III of the Children Act 1989 deals with
local authority support for children and families.
The policy of the Act is made clear by paragraph
Law Animated World, 15 September 2017
(2017) 2 LAW
7 of Part I of Schedule 2, which requires local
authorities to take reasonable steps designed to
reduce the need to bring proceedings relating to
children.
53. Section 20 provides that
20(1) Every local authority shall provide
accommodation for any child in need within their
area who appears to them to require
accommodation as a result of
(a) there being no person who has parental
responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being
prevented (whether or not permanently, and for
whatever reason) from providing him with
suitable accommodation or care.
...
(4) A local authority may provide
accommodation for any child within their area
(even though a person who has parental
responsibility for him is able to provide him with
accommodation) if they consider that to do so
would safeguard or promote the child's welfare.
54. Part V of the Children Act 1989 deals with
the protection of children. Section 47 provides as
follows:
47(1) Where a local authority
...
(b) have reasonable cause to suspect that a child
who lives or is found, in their area is suffering, or
is likely to suffer, significant harm,
the authority shall make, or cause to be made,
such enquiries as they consider necessary to
enable them to decide whether they should take
any action to safeguard or promote the child's
welfare.
...
(8) Where, as a result of complying with this
section, a local authority conclude that they
should take action to safeguard or promote the
child's welfare they shall take action (so far as it
is within their power and reasonably practicable
for them to do so).
B. COMPLAINTS PROCEDURE
55. The complaints procedure is provided by
section 26 of the Children Act 1989:
24
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
Review of cases and inquiries into representations
...
(3) Every local authority shall establish a
procedure for considering any representations
(including any complaint) made to them by -
(a) any child ... who is not being looked after
by them but is in need;
(b) a parent of his;
...
(e) such other person as the authority consider
has a sufficient interest in the child's
welfare to warrant his representations
being considered by them,
about the discharge by the authority of any of
their functions under this Part in relation to the
child.
(4) The procedure shall ensure that at least one
person who is not a member or officer of the
authority takes part in -
(a) the consideration; and
(b) any discussions which are held by the
local authority about the action (if any) to
be taken in relation to the child in the
light of this consideration.
...
(7) Where any representation has been
considered under the procedure established by
the local authority under this section, the
authority shall
(a) have due regard to the findings of those
considering the representation; and
(b) take such steps as are reasonably
practicable to notify (in writing)
(i) the person making the representation;
(ii) the child (if the authority consider that
he has sufficient understanding); and
(iii) such other persons (if any) as appear to
the authority to be likely to be affected,
of the authority's decision in the matter and their
reasons for taking that decision and of any action
which they have taken, or propose to take.
(8) Every local authority shall give such
publicity to their procedure for considering
representations under this section as they
consider appropriate.
56. The powers of the Secretary of State to
investigate the actions of the local authority are
25
F-125
set out in sections 81 and 84 of the Children Act
1989.
81. (1) The Secretary of State may cause an
inquiry to be held into any matter connected with
-
(a) the function of the social services committee
of a local authority, in so far as those functions
relate to children;
...
84. Local authority failure to comply with
statutory duty: default power of Secretary of
State
(1) If the Secretary of State is satisfied that any
local authority has failed, without reasonable
excuse, to comply with any of the duties imposed
on them by or under this Act he may make an
order declaring that authority to be in default
with respect to that duty.
...
(3) Any order under subsection (1) may contain
such directions for the purpose of ensuring that
the duty is complied with, within such period as
may be specified in the order, as appears to the
Secretary of State to be necessary.
(4) Any such directions shall, on the application
of the Secretary of State, be enforceable by
mandamus.
C. Actions for damages against the local authority
57. In England and Wales there is no single tort
which imposes liability to pay compensation for civil
wrongs. Instead there is a series of separate torts,
for example, trespass, conversion, conspiracy,
negligence and defamation.
58. Negligence arises in specific categories of
situations. These categories are capable of being
extended. There are three elements to the tort of
negligence: a duty of care, breach of the duty of care,
and damage. The duty of care may be described as
the concept which defines the categories of
relationships in which the law may impose
liability on a defendant in damages if he or she is
shown to have acted carelessly. To show a duty
of care, the claimant must show that the situation
comes within an existing established category of
cases where a duty of care has been held to exist.
In novel situations, in order to show a duty of care,
Law Animated World, 15 September 2017
F-126 Z & Others v. The United Kingdom [ECHR-Strasbourg]
the claimant must satisfy a threefold test,
establishing:
that damage to the claimant was foreseeable;
that the claimant was in an appropriate
relationship of proximity to the defendant; and,
that it is fair, just and reasonable to impose
liability on the defendant.
These criteria apply to claims against private persons
as well as claims against public bodies. The leading
case is Caparo Industries plc v. Dickman ([1990]
2 Appeal Cases 605).
59. If the courts decide that as a matter of law
there is no duty of care owed in a particular
situation, that decision will (subject to the
doctrine of precedent) apply in future cases where
the parties are in the same relationship.
60. The decision in X and Others v. Bedfordshire
County Council ([1995] 3 All England Law
Reports 353) is the leading authority in the
United Kingdom in this area. It held that local
authorities could not be sued for negligence or for
breach of statutory duty in respect of the discharge of
their functions concerning the welfare of children. The
leading judgment is reported at length in the facts
above (see paragraphs 45-46 above).
61. Since X and Others v. Bedfordshire County
Council, there have been two further significant
judgments regarding the extent of liability of
local authorities in child care matters.
62. The Court of Appeal gave judgment in W. and
Others v. Essex County Council ([1998] 3 All
England Law Reports 111). This case concerned
the claims by a mother and father (first and
second plaintiffs), who had agreed to act as foster
parents, that the defendant local authority placed
G., a 15-year-old boy, in their home although
they knew that he was a suspect or known sexual
abuser. During G.'s stay in their home, the
plaintiffs' three children (fourth to sixth plaintiffs)
were all sexually abused and suffered psychiatric
illness. The plaintiffs brought an action against
the local authority and the social worker
involved, claiming damages for negligence and
for negligent misstatement. On the defendants'
Law Animated World, 15 September 2017
(2017) 2 LAW
application to strike out the statement of claim as
disclosing no reasonable cause of action, the
judges struck out the parents' claims but refused
to strike out the claims of the children. The Court
of Appeal upheld his decision. The headnote for
the judgment summarised the Court of Appeal's
findings as follows:
(1) Although no claim in damages lay in respect
of decisions by a local authority in the exercise
of a statutory discretion, if the decision complained
of was so unreasonable that it fell outside the ambit of
the discretion conferred, there was no a priori reason for
excluding common law liability. In the instant case,
the giving of information to the parents was part
and parcel of the defendants' performance of
their statutory powers and duties, and it had been
conceded that it was arguable that those
decisions fell outside the ambit of their
discretion. Accordingly, since it had also been
conceded that the damage to the children was
reasonably foreseeable and that there was sufficient
proximity, the question for the court was whether it was
just and reasonable to impose a duty of care on the
council or the social worker. Having regard to the
fact that common law duty of care would cut
across the whole statutory set up for the
protection of children at risk, that the task of the
local authority and its servants in dealing with
such children was extraordinarily difficult and
delicate, that local authorities might adopt a more
defensive approach to their duties if liability in
damages were imposed, that the relationship
between parents and social workers was
frequently one of conflict and that the plaintiff
children's injuries were compensatable under the
Criminal Injuries Compensation Scheme, it was
not just and reasonable to do so. It followed that
no duty of care was owed to the plaintiff parents who in
any event were secondary victims in respect of their
claim for psychiatric illness...
(2) (Stuart-Smith LJ dissenting) It was arguable
that the policy considerations against imposing a
common law duty of care on a local authority in
relation to the performance of its statutory duties
to protect children did not apply when the
children whose safety was under consideration
were those in respect of whom it was not
performing any statutory duty. Accordingly,
since in the instant case, the plaintiff children
26
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
were not children for whom the council had
carried out any immediate caring responsibilities
under the child welfare system but were living at
home with their parents, and express assurances
had been given that a sexual abuser would not be
placed in their home, their claim should proceed
...
63. On further appeal by the parents, the House of
Lords on 16 March 2000 held that it was
impossible to say that the psychiatric injury
allegedly suffered by the parents, flowing from a
feeling that they had brought the abuser and their
children together or from a feeling of
responsibility for not having detected the abuse
earlier, was outside the range of psychiatric injury
recognised by the law, nor was it unarguable that
the local authority had owed a duty of care to the
parents. The parents' claim could not be said to be
so certainly or clearly bad that they should be
barred from pursuing it to trial and their appeal
was allowed.
64. The House of Lords gave judgment on 17
June 1999 in Barrett v. London Borough of
Enfield ([1999] 3 Weekly Law Reports 79). That
case concerned the claims of the plaintiff, who
had been in care from the age of ten months to 17
years, that the local authority had negligently
failed to safeguard his welfare causing him deep-
seated psychiatric problems. The local authority
had applied to strike out the case as disclosing no
cause of action. The House of Lords, upholding
the plaintiff's appeal, unanimously held that the
judgment in X and Others v. Bedfordshire County
Council did not in the circumstances of this case
prevent a claim of negligence being brought
against a local authority by a child formerly in its
care.
65. Lord Browne-Wilkinson, in his judgment in
that case, commented as follows on the operation
of the duty of care:
(1) Although the word 'immunity' is sometimes
incorrectly used, a holding that it is not fair, just and
reasonable to hold liable a particular class of defendants
whether generally or in relation to a particular type of
activity is not to give immunity from a liability to which
the rest of the world is subject. It is a prerequisite to
27
F-127
there being any liability in negligence at all that as a
matter of policy it is fair, just and reasonable in those
circumstances to impose liability in negligence. (2) In a
wide range of cases public policy has led to the
decision that the imposition of liability would not
be fair and reasonable in the circumstances, e.g.
some activities of financial regulators, building
inspectors, ship surveyors, social workers dealing
with sex abuse cases. In all these cases and many
others the view has been taken that the proper
performance of the defendant's primary functions for
the benefit of society as a whole will be inhibited if they
are required to look over their shoulder to avoid
liability in negligence. In English law the decision as
to whether it is fair, just and reasonable to impose
a liability in negligence on a particular class of
would-be defendants depends on weighing in the
balance the total detriment to the public interest
in all cases from holding such class liable in
negligence as against the total loss to all would-
be plaintiffs if they are not to have a cause of
action in respect of the loss they have
individually suffered. (3) In English law, questions
of public policy and the question whether it is fair and
reasonable to impose liability in negligence are decided
as questions of law. Once the decision is taken that,
say, company auditors though liable to
shareholders for negligent auditing are not liable
to those proposing to invest in the company
(see Caparo Industries plc v. Dickman [1990] 1
All ER 568, [1990] 2 AC 605), that decision will
apply to all future cases of the same kind. The
decision does not depend on weighing the balance
between the extent of the damage to the plaintiff
and the damage to the public in each particular
case.
D. STRIKING-OUT PROCEDURE
66. At the relevant time, Order 18, Rule 19 of the
Rules of the Supreme Court provided that a claim
could be struck out if it disclosed no reasonable
cause of action. This jurisdiction has been
described as being reserved for plain and
obvious cases, in which a claim was obviously
unsustainable.
67. In applications to strike out, the courts
proceeded on the basis that all the allegations set
Law Animated World, 15 September 2017
F-128 Z & Others v. The United Kingdom [ECHR-Strasbourg]
out in the claimant's pleadings were true. The
question for the courts was whether, assuming that
the claimant could substantiate all factual allegations at
trial, the claim disclosed a reasonable cause of action.
68. The striking out procedure, now contained in
Part 3.4(2) of the Civil Procedure Rules in force
since 1999, is regarded as an important feature of
English civil procedure, performing the function of
securing speedy and effective justice, inter alia, by
allowing a court to decide promptly which issues need
full investigation and trial, and disposing summarily of
the others. By means of this procedure, it can be
determined at an early stage, with minimal cost to
the parties, whether the facts as pleaded reveal a
claim existing in law.
THE LAW
I. ALLEGED VIOLATION OF
ARTICLE 3 OF THE CONVENTION
69. The applicants alleged that the local authority
had failed to protect them from inhuman and
degrading treatment contrary to Article 3 of the
Convention, which provides:
No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.
70. In its report the Commission expressed the
unanimous opinion that there had been a violation of
Article 3 of the Convention. It considered that there
was a positive obligation on the Government to protect
children from treatment contrary to this provision. The
authorities had been aware of the serious ill-
treatment and neglect suffered by the four
children over a period of years at the hands of
their parents and failed, despite the means
reasonably available to them, to take any
effective steps to bring it to an end.
71. The applicants requested the Court to confirm
this finding of a violation.
72. The Government did not contest the Commission's
finding that the treatment suffered by the four
applicants reached the level of severity prohibited by
Article 3 and that the State failed in its positive
obligation, under Article 3 of the Convention, to
provide the applicants with adequate protection against
inhuman and degrading treatment.
73. The Court reiterates that Article 3 enshrines one
of the most fundamental values of democratic society. It
prohibits in absolute terms torture or inhuman or
Law Animated World, 15 September 2017
(2017) 2 LAW
degrading treatment or punishment. The obligation on
High Contracting Parties under Article 1 of the
Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the
Convention, taken in conjunction with Article 3,
requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to
torture or inhuman or degrading treatment, including
such ill-treatment administered by private individuals (see
A. v. the United Kingdom, judgment of 23 September
1998, Reports of Judgments and Decisions 1998-VI,
p. 2699, 22). These measures should provide
effective protection, in particular, of children and other
vulnerable persons and include reasonable steps to
prevent ill-treatment of which the authorities had or
ought to have had knowledge (see, mutatis mutandis,
Osman v. the United Kingdom, judgment of 28 October
1998, Reports 1998-VIII, pp. 3159-60, 116).
74. There is no dispute in the present case that the
neglect and abuse suffered by the four applicant
children reached the threshold of inhuman and
degrading treatment (as recounted in paragraphs
11-36 above). This treatment was brought to the
local authority's attention, at the earliest in
October 1987. It was under a statutory duty to
protect the children and had a range of powers
available to them, including the removal of the
children from their home. These were, however,
only taken into emergency care, at the insistence
of the mother, on 30 April 1992. Over the
intervening period of four and a half years, they
had been subjected in their home to what the
consultant child psychiatrist who examined them
referred as horrific experiences (see paragraph 40
above). The Criminal Injuries Compensation Board
had also found that the children had been subject to
appalling neglect over an extended period and suffered
physical and psychological injury directly attributable
to a crime of violence (see paragraph 49 above). The
Court acknowledges the difficult and sensitive
decisions facing social services and the important
countervailing principle of respecting and
preserving family life. The present case, however,
leaves no doubt as to the failure of the system to
protect these applicant children from serious,
long-term neglect and abuse.
75. Accordingly, there has been a violation of Article
3 of the Convention.
28
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
II. ALLEGED VIOLATION OF
ARTICLE 8 OF THE CONVENTION
76. The applicants alleged, in the alternative to
their complaints under Article 3 of the
Convention, that the circumstances in which they
suffered ill-treatment, causing them physical and
psychological injury, disclosed a breach of
Article 8 of the Convention, which under the
principle of respect for private life, protected
physical and moral integrity.
77. Having regard to its finding of a violation of
Article 3, the Court considers that no separate issue
arises under Article 8 of the Convention.
III. ALLEGED VIOLATION OF
ARTICLE 6 OF THE CONVENTION
78. The applicants complained that they had been
denied access to a court to determine their claims
against the local authority in negligence. They
relied on Article 6 of the Convention.
79. Article 6 1 provides in its first sentence:
In the determination of his civil rights and
obligations or of any criminal charge against
him, everyone is entitled to a fair and public
hearing within a reasonable time by an
independent and impartial tribunal established by
law.
80. The Government denied that there was any
civil right in issue in the case or any restriction on
access, while the Commission found unanimously that
there had been a breach of Article 6, in that the House
of Lords had applied an exclusionary rule concerning
the liability of local authorities in child care matters
which constituted in the circumstances a
disproportionate restriction on the applicants' access to
a court.
A. SUBMISSIONS OF THE PARTIES
1. The applicants
81. The applicants submitted that their negligence
claim was plainly arguable as a matter of domestic law,
relying, inter alia, on Osman, cited above. The
right to sue in negligence, a cause of action framed
in general terms, was an established civil right in
domestic law. The local authority had conceded that
they could have foreseen damage to the applicants if
they carried out their duties negligently and that there
29
F-129
was a proximate relationship, thereby satisfying the
first two limbs of the test for the duty of care. There
was a strong argument that public policy considerations
required a duty of care to be imposed and there was no
prior decision excluding liability. The applicants also
pointed to the fact that the judge who made the
care orders specifically released the case papers
to the Official Solicitor so that he could
investigate and, if appropriate, pursue negligence
claims; that the Official Solicitor considered that
there were arguable claims in negligence; that the
Legal Aid Board granted legal aid to pursue the
claims to the House of Lords; and that the Court
of Appeal which rejected the claims by a majority
granted leave to appeal to the House of Lords, the
precondition for such leave being that the claim
was arguable in domestic law; that the Master of
the Rolls, in the Court of Appeal, found that there
was duty of care, stating the contrary to be an
affront to common sense; and that in previous
cases, local authorities had paid settlements in
negligence cases, on the basis that they were
potentially liable. There was a serious dispute in
domestic law, therefore, as to the existence of any
exclusionary principle, which has continued since,
and Article 6 was applicable.
82. The exclusionary rule applied by the House of
Lords permitted the applicants' claims to be struck out
without determining the facts and without a trial. This
applied regardless of the merits or the seriousness
of the harm suffered. Designed to protect local
authorities from wasting resources on having to
defend an action at all, this amounted in practical
effect to an immunity and acted as a restriction on access
to a court.
83. The application of a blanket rule which excluded
the determination of the applicants' claims irrespective
of the seriousness of the harm suffered, the nature and
extent of negligence involved, or the fundamental rights
which were at stake, constituted a disproportionate
restriction on their right of access to a court. They
emphasised the severity of the damage suffered
by them due to prolonged exposure to abuse and
neglect against which the public policy arguments
against imposition of liability had little weight,
namely, the alleged risk of frivolous litigation, the
Law Animated World, 15 September 2017
F-130 Z & Others v. The United Kingdom [ECHR-Strasbourg]
increased caution of social services in fulfilling
their functions or the difficulty or sensitivity of
the issues. Indeed, the requirement to investigate
effectively cases of treatment contrary to Article 3
pointed strongly to the recognition of a right of access to
a court where the State's responsibility had been
engaged for inhuman or degrading treatment of
vulnerable children. They referred to the Court's
finding in Osman (cited above, p. 3170, 151)
that the domestic courts should be able to
distinguish between degrees of negligence or
harm and give consideration to the justice of a
particular case. An exclusionary rule on that basis
should be capable of yielding to competing human
rights considerations on the facts of a particular case.
2. The Government
84. The Government submitted that Article 6
guaranteed a fair trial in the determination only of such
civil rights and obligations as are (at least arguably)
recognised in national law. It does not bear on the
substantive question of whether a right to
compensation exists in any given situation. The
proceedings brought by the applicants established
that no right existed. The decision to strike out
their claim touched on the scope of the domestic
law. By ruling that a right of action did not exist
in a particular set of circumstances, the courts
were applying substantive limits to tort liability,
as the legislature might do in statute (see, for
example, Powell and Rayner v. the United
Kingdom, judgment of 21 February 1990, Series
A no. 172, pp. 16-17, 36). There was no
established cause of action which was restricted.
Accordingly, they claimed that Article 6 1 was
not applicable.
85. The Government argued in the alternative that
there was no immunity applied which could be
regarded as a restriction on access to a court. Even
assuming that there was an arguable issue, there
could in their view be no doubt that the dispute
was subject to a fair and public hearing in
compliance with the guarantees of Article 6. The
striking-out procedure was an important way of
securing the speedy and cost-effective determination of
cases that were hopeless in law. It achieved those
aims without inhibiting claimants' rights to present any
Law Animated World, 15 September 2017
(2017) 2 LAW
arguments in their favour to a court. Thus, as factual
matters were assumed to be those pleaded, the
claimants were not prejudiced by the lack of
hearing of evidence, while they could put forward
any arguments in their favour to persuade the
court that their claim was sustainable as a matter
of law.
86. Assuming that their arguments on the above
failed, the Government argued that any restriction
on access to a court nonetheless pursued a legitimate
aim and was proportionate. It aimed to preserve the
efficiency of a vital sector of public service. The
exclusion of liability was strictly limited in scope
to the category of cases to which it applied,
actions for misfeasance, vicarious liability for
employees remaining unaffected. The domestic
courts had themselves weighed up the public
policy issues for and against liability in light of
the principles of English tort law and the social
and political philosophy underlying those
principles. A very substantial margin of appreciation
would therefore be appropriate in any international
adjudication.
B. THE COURT'S ASSESSMENT
1. Applicability of Article 6 of the Convention
87. The Court recalls its constant case-law to the
effect that Article 6 1 extends only to 'contestations'
(disputes) over (civil) 'rights and obligations' which
can be said, at least on arguable grounds, to be
recognised under domestic law; it does not itself
guarantee any particular content for (civil) 'rights
and obligations' in the substantive law of the
Contracting States (see James and Others v. the
United Kingdom, judgment of 21 February 1986,
Series A no. 98, pp. 46-47, 81; Lithgow and
Others v. the United Kingdom, judgment of 8 July
1986, Series A no. 102, p. 70, 192; and The
Holy Monasteries v. Greece, judgment of
9 December 1994, Series A no. 301-A, pp. 36-37,
80). It will however apply to disputes of a genuine
and serious nature concerning the actual existence of
the right as well as to the scope or manner in which it is
exercised (see Benthem v. the Netherlands,
judgment of 23 October 1985, Series A no. 97,
pp. 14-15, 32).
(Go to p. 71)
30
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
(2017) 2 LAW ISC-73 continued after ISC-88
((iv) JORDAN: Is a secular State. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
Code of Personal Status 1976
Law 61 of 1976
Article 88. (1) Talaq shall not be effective if
pronounced under intoxication, bewilderment,
compulsion, mental disorder, depression or
effect of sleep.
(2) Bewildered is one who has lost senses
due to anger or provocation, etc., and cannot
understand what he is saying.
*** *** *** ***
*** ***
Article 90. A divorce coupled with a number,
expressly or impliedly, as also a divorce repeated in
the same sitting, will not take effect except as a single
divorce.
*** *** *** ***
*** ***
Article 94. Every divorce shall be revocable
except the final third, one before
consummation and one with consideration.
*** *** *** ***
*** ***
Article 98. Where an irrevocable Talaq was
pronounced once or twice, renewal of
marriage with the consent of parties is not
prohibited.
(v) KUWAIT: Is a theocratic State, which declares
Islam to be the official religion. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has the following legislation in place:
Code of Personal Status 1984
Law 51 of 1984
Article 102. Talaq may be effected by major
and sane men acting by their free will and
understanding the implications of their action.
Therefore Talaq shall not take effect if the
husband is mentally handicapped, imbecile,
under coercion, mistake, intoxication, fear or
high anger affecting his speech and action.
*** *** *** ***
*** ***
31
ISC-89
Article 109. If a Talaq is pronounced with a
number (two, three) by words, signs or writing, only
one Talaq shall take effect.
(vi) LEBANON: is a secular State. Muslims
constitute its majority, which is estimated to be
54% (27% Shia, and 27% Sunni). On the issue in
hand, it has enacted the following legislation:
Family Rights Law 1962
Law of 16 July 1962
Article 104. A divorce by a drunk person
shall have no effect.
Article 105. A divorce pronounced under
coercion shall have no effect.
(vii) LIBYA: is a theocratic State, which declares
Islam to be its official religion. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
Family Law 1984
Law 10 of 1984 as amended by Law 15 of
1984
Article 28. Divorce is termination of the
marriage bond. No divorce will become
effective in any case except by a decree of a
competent court and subject to the provision
of Article 30.
Article 29. Divorce is of two kinds
revocable and irrevocable. Revocable divorce
does not terminate the marriage till the expiry
of Iddat. Irrevocable divorce terminates the
marriage forthwith.
Article 30. All divorces shall be revocable
except a third-time divorce, one before
consummation of marriage, one for a
consideration, and those specified in this law
to be irrevocable.
Article 31. A divorce shall be effective only if
pronounced in clear words showing intention
to dissolve the marriage. Symbolic or
metaphorical expression will not dissolve the
marriage.
Article 32. A divorce pronounced by a minor
or insane person, or if pronounced under
coercion, or with no clear intention to
dissolve the marriage, shall have no legal
effect.
Article 33. (1) A divorce meant to be effect
on some action or omission of the wife shall
have no legal effect.
Law Animated World, 15 September 2017
ISC-90 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
(2) A divorce given with a view to binding
the wife to an oath or restrain her from doing
something shall have no legal effect.
(3) A divorce to which a number is attached, by
express words or a gesture, shall effect only a single
revocable divorce, except when it is pronounced for
the third time.
*** *** *** ***
*** ***
Article 35. The marriage may be dissolved by
mutual consent of the parties. Such a divorce must
be registered with the court. If the parties cannot
agree on the terms of such a divorce, they shall
approach the court and it will appoint arbitrators to
settle the matter or reconcile them.
*** *** *** ***
*** ***
Article 47. A divorce must be pronounced in a
court and in the presence of the other party or his or
her representative. The court shall before giving
effect to a divorce exhaust all possibilities of
reconciliation.
((viii) MOROCCO: is a theocratic State, which
declares Islam to be its official religion. Muslims
of the Sunni sect constitute its majority. On the
issue in hand, it has enacted the following
legislation:
Code of Personal Status 2004
Law 70.03 of 2004
Article 79. Whoever divorces his wife by Talaq
must petition the court for permission to register it
with the Public Notaries of the area where the
matrimonial home is situate, or where the wife
resides, or where the marriage took place.
Article 80. The petition will mention the
identity of spouses, their professions,
addresses, number of children, if any, with
their age, health condition and educational
status. It must be supported by a copy of the
marriage agreement and a document stating
the husbands social status and financial
obligations.
Article 81. The court shall summon the spouses
and attempt reconciliation. If the husband
deliberately abstains, this will be deemed to be
withdrawal of the petition. If the wife abstains,
the court will notify her that if she does not
present herself the petition may be decided in
her absence. If the husband has fraudulently
Law Animated World, 15 September 2017
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given a wrong address for the wife, he may be
prosecuted at her instance.
Article 82. The court will hear the parties and
their witnesses in camera and take all possible steps
to reconcile them, including appointment of
arbitrators or a family reconciliation council, and if
there are children such efforts shall be exhausted
within thirty days. If reconciliation takes place, a
report will be filed with the court.
Article 83. If reconciliation attempts fail, the
court shall fix an amount to be deposited by
the husband in the court within thirty days
towards payment of the wifes post-divorce
dues and maintenance of children.
*** *** ***
Article 90. No divorce is permissible for a person
who is not in his senses or is under coercion or
provocation.
*** *** *** ***
*** ***
Article 92. Multiple expressions of divorce, oral or
written, shall have the effect of a single divorce only.
*** *** ***
Article 123. Every divorce pronounced by the
husband shall be revocable, except a third-time
divorce, divorce before consummation of
marriage, divorce by mutual consent, and
divorce by Khula or Talaq-e-Tafweez.
(ix) SUDAN: is a theocratic State, which declares
Islam to be its official religion. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has the following legislation in place:
Law on Talaq 1935
Judicial Proclamation No.4 of 1935
Article 1. A divorce uttered in a state of
intoxication or under duress shall be invalid
and ineffective.
Article 2. A contingent divorce which is not
meant to be effective immediately and is used
as an inducement or threat shall have not
effect.
Article 3. A formula of divorce coupled with a
number, expressly or impliedly, shall effect only one
divorce.
Article 4. Metaphorical expressions used for a
divorce shall have the effect of dissolving the
marriage only if the husband actually meant a
divorce.
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
(x) SYRIA: is a secular State. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
CCode of Personal Status 1953
Law 59 of 1953 as amended by Law 34 of
1975
Article 89. No divorce shall take place when
the man is drunk, out of his senses, or under
duress. A person is out of his senses when
due to anger, etc. he does not appreciate what
he says.
Article 90. A conditional divorce shall have
no effect if not actually intended and used
only as an inducement to do or abstain from
doing something or as an oath or persuasion.
*** *** ***
Article 92. If a divorce is coupled with a number,
expressly or impliedly, not more than one divorce
shall take place.
*** *** *** ***
*** ***
Article 94. Every divorce shall be revocable
except a third-time divorce, one before
consummation, a divorce with a court if they disagree. They may pay her in a
consideration, and a divorce stated in this
Code to be irrevocable.
*** *** ***
Article 117. Where a person divorces his wife
the court may, if satisfied that he has
arbitrarily done so without any reasonable
cause and that as a result of the divorce the
wife shall suffer damage and become
destitute, give a decision, with due regard to
the husbands financial condition and the
amount of wifes suffering, that he should pay
her compensation not exceeding three years
maintenance, in addition to maintenance
payable during the period of Iddat. It may be
directed to be paid either in a lump sum or in
instalments as the circumstances of a case
may require.
(xi) TUNISIA: is a theocratic State, which
declares Islam to be its official religion. Muslims
of the Sunni sect constitute its majority. On the
issue in hand, it has enacted the following
legislation:
33
ISC-91
Code of Personal Status 1956
Law 13-8 of 1956 as amended by Law 7 of
1981
Article 31: (1) A decree of divorce shall be
given: (i) with the mutual consent of the
parties; or (ii) at the instance of either party
on the ground of injury; or (iii) if the husband
insists on divorce or the wife demands it. The
party causing material or mental injury by the
fact of divorce under clauses (ii) and (iii)
shall be directed to indemnify the aggrieved
spouse.
(2) As regards the woman to be indemnified
for material injury in terms of money, the
same shall be paid to her after the expiry of
Iddat and may be in the form of retention of
the matrimonial home. This indemnity will be
subject to revision, increase or decrease in
accordance with the changes in the
circumstances of the divorced wife until she
is alive or until she changes her marital status
by marrying again. If the former husband
dies, this indemnity will be a charge on his
estate and will have to be met by his heirs if
they consent to it and will be decided by the
lump sum within one year from the former
husbands death the indemnity claimable by
her.
Article 32: (1) No divorce shall be decreed
except after the court has made an overall
inquiry into the causes of rift and failed to
effect reconciliation.
(2) Where no reconciliation is possible the
court shall provide, even if not asked to, for
all important matters relating to the residence
of the spouses, maintenance and custody of
children and meeting the children, except
when the parties specifically agree to forgo all
or any of these rights. The court shall fix the
maintenance on the basis of all those facts
which it comes to know while attempting
reconciliation. All important matters shall be
provided for in the decree, which shall be
non-appealable but can be reviewed for
making additional provisions.
(3) The court of first instance shall pass
orders in the matters of divorce and all
concerning matters including the compensation
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money to which the divorced wife may be
entitled after the expiry of Iddat. The portions
of the decree relating to custody, maintenance,
compensation, residence and right to visit
children shall be executed immediately.
(xii) UNITED ARAB EMIRATES: is a theocratic
State, as the Federal Constitution declares Islam
to be the official religion. The Constitution also
provides for freedom of religion, in accordance
with established customs. Muslims of the Shia
sect constitute its majority. On the issue in hand,
it has the following legislation in place:
Law of Personal Status 2005
Federal Law No.28 of 2005
Article 140: (1) If a husband divorces his
wife after consummation of a valid marriage
by his unilateral action and without any move
for divorce from her side, she will be entitled
to compensation besides maintenance for
Iddat. The amount of compensation will be
decided with due regard to the means of the
husband and the hardship suffered by the
wife, but it shall not exceed the amount of
one years maintenance payable in law to a
woman of her status.
(2) The Kazi may decree the compensation, to
be paid as a lump sum or in instalments,
according to the husbands ability to pay.
(xiii) YEMEN: is a theocratic State, which
declares Islam to be the official religion.
Muslims of the Sunni sect constitute its majority.
On the issue in hand, it has the following
legislation in place:
Decree on Personal Status 1992
Decree 20 of 1992
Article 61. A divorce shall not be effective if
pronounced by a man who is drunk, or has
lost his senses, or has no power of
discernment, if this is shown by his condition
and action.
*** *** ***
Article 64. A divorce to which a number is
attached, whatever be the number, will effect only a
single revocable divorce.
Article 65. The words saying that if the wife
did or failed to do something she will stand
divorced will not effect a divorce.
Law Animated World, 15 September 2017
34
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Article 66. The words that if an oath or vow is
broken it will effect a divorce will not
dissolve the marriage even if the said oath or
vow is broken.
Article 67. A divorce can be revoked by the
husband during the Iddat period. After the
expiry of Iddat, a direct remarriage between
them will be lawful.
*** *** ***
Article 71. If a man arbitrarily divorces his
wife without any reasonable ground and it
causes hardship to her, the court may grant
her compensation payable by the husband not
exceeding maintenance for one year in
accordance with her status. The court may
decide if the compensation will be paid as a
lump sum or in instalments.
B. Laws of Southeast Asian States
(i) INDONESIA: The Constitution of Indonesia
guarantees freedom of religion among
Indonesians. However, the Government
recognizes only six official religions Islam,
Protestantism, Catholicism, Hinduism,
Buddhism, and Confucianism. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has the following legislation in place:
(a) Law of Marriage 1974
Law 1 of 1974
Article 38. A divorce shall be effected only
in the court and the court shall not permit a
divorce before attempting reconciliation
between the parties. Divorce shall be
permissible only for sufficient reasons
indicating breakdown of marriage.
*** *** ***
Article 41. In the event of a divorce both the
parents shall continue to be responsible for
the maintenance of their children. As regards
custody of children, in case of a dispute
between them the court shall take a decision.
Expenses of maintenance and education shall
be primarily the fathers liability, but if he is
unable to discharge this liability the court
may transfer it to the mother. The court may
also direct the former husband to pay alimony
to the divorced wife.
(b) Marriage Regulations 1975
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Regulation 9 of 1975
Article 14. A man married under Islamic law
wanting to divorce his wife shall by a letter
notify his intention to the District Court
seeking proceedings for that purpose.
Article 15. On receiving a letter the court
shall, within thirty days, summon the parties
and gather from them all relevant facts.
Article 16. If the court is satisfied of the
existence of any of the grounds mentioned in
Article 19 below and is convinced that no
reconciliation between the parties is possible
it will allow a divorce.
Article 17. Immediately after allowing a
divorce as laid down in Article 16 above the
court shall issue a certificate of divorce and
send it to the Registrar for registration of the
divorce.
*** *** ***
Article 19. A divorce may be allowed on the
petition of either party if the other party:
(a) has committed adultery or become addict
to alcohol, drugs, gambling or another serious
vice;
(b) has deserted the aggrieved party for two
years or more without any legal ground and
against the said partys will;
(c) has been imprisoned for at least five years;
(d) has treated the aggrieved party with
cruelty of an injurious nature;
(e) has been suffering from a physical
deformity affecting conjugal duties, or where
relations between the spouses have become
too much strained making reconciliation
impossible.
(ii) MALAYSIA: Under the Constitution of
Malaysia, Islam is the official religion of the
country, but other religions are permitted to be
practiced in peace and harmony. Muslims of the
Sunni sect constitute its majority. On the issue in
hand, it has the following legislation in place:
Islamic Family Law Act 1984
Act 304 of 1984
Article 47. (1) A husband or a wife who desires a
divorce shall present an application for divorce to
the court in the prescribed form accompanied by a
statutory declaration containing (a) particulars of
the marriage and the name, ages and sex of
35
ISC-93
the children, if any, of the marriage; (b)
particulars of the facts giving the court
jurisdiction under Section 45; (c) particulars
of any previous matrimonial proceedings
between the parties, including the place of the
proceedings; (d) a statement as to the reasons for
desiring divorce; (e) a statement as to whether any,
and if so, what steps have been taken to effect
reconciliation; (f) the terms of any agreement
regarding maintenance and habitation of the
wife and the children of the marriage, if any,
and the division of any assets acquired
through the joint effort of the parties, if any,
or where no such agreement has been
reached, the applicants proposals regarding
those matters; and (g) particulars of the order
sought.
(2) Upon receiving an application for divorce, the
court shall cause summons to be served on the other
party together with a copy of the application and the
statutory declaration made by the applicant, and the
summons shall direct the other party to appear
before the court so as to enable it to inquire whether
or not the other party consents to the divorce.
(3) If the other party consents to the divorce
and the court is satisfied after due inquiry and
investigation that the marriage has
irretrievably broken down, the court shall
advise the husband to pronounce one Talaq
before the court.
(4) The court shall record the fact of the
pronouncement of one Talaq and shall send a
certified copy of the record to the appropriate
Registrar and to the Chief Registrar for registration.
(5) Where the other party does not consent to the
divorce or it appears to the court that there is
reasonable possibility of a reconciliation between the
parties, the court shall as soon as possible appoint a
Conciliatory Committee consisting of a religious
officer as Chairman and two other persons, one to
act for the husband and the other for the wife, and
refer the case to the Committee.
(6) In appointing the two persons under sub-
section (5) the court shall, where possible,
give preference to close relatives of the
parties having knowledge of the
circumstances of the case.
(7) The court may give directions to the
Conciliatory Committee as to the conduct of
the conciliation and it shall conduct it in
accordance with such directions.
Law Animated World, 15 September 2017
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(8) If the Committee is unable to agree or if
the court is not satisfied with its conduct of
the conciliation, the court may remove the
Committee and appoint another Committee in
its place.
(9) The Committee shall endeavour to effect
reconciliation within a period of six months
from the date of its being constituted or such
further period as may be allowed by the court.
(10) The Committee shall require the
attendance of the parties and shall give each
of them an opportunity of being heard and
may hear such other persons and make such
inquiries as it thinks fit and may, if it
considers it necessary, adjourn its
proceedings from time to time.
(11) If the Conciliatory Committee is unable
to effect reconciliation and is unable to
persuade the parties to resume their conjugal
relationship, it shall issue a certificate to that
effect and may append to the certificate such
recommendations as it thinks fit regarding
maintenance and custody of the minor
children of the marriage, if any, regarding
division of property and other matters related
to the marriage.
(12) No advocate and solicitor shall appear or
act for any party in any proceeding before a
Conciliatory Committee and no party shall be
represented by any person other than a
member of his or her family without the leave
of the Conciliatory Committee.
(13) Where the Committee reports to the court that
reconciliation has been effected and the parties have
resumed their conjugal relationship, the court shall
dismiss the application for divorce.
(14) Where the Committee submits to the court a
certificate that it is unable to effect reconciliation
and to persuade the parties to resume the conjugal
relationship, the court shall advise the husband to
pronounce one Talaq before the court, and where
the court is unable to procure the presence of the
husband before the court to pronounce one Talaq, or
where the husband refuses to pronounce one Talaq,
the court shall refer the case to the Hakams
[arbitrators] for action according to section 48.
(15) The requirement of sub-section (5) as to
reference to a Conciliatory Committee shall
not apply in any case (a) where the applicant
alleges that he or she has been deserted by
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36
(2017) 2 LAW
and does not know the whereabouts of the
other party; (b) where the other party is
residing outside West Malaysia and it is
unlikely that he or she will be within the
jurisdiction of the court within six months
after the date of the application; (c) where the
other party is imprisoned for a term of three
years or more; (d) where the applicant alleges
that the other party is suffering from incurable
mental illness; or (e) where the court is
satisfied that there are exceptional
circumstances which make reference to a
Conciliatory Committee impracticable.
(16) Save as provided in sub-section (17), a Talaq
pronounced by the husband or an order made by the
court shall not be effective until the expiry of the
Iddat.
(17) If the wife is pregnant at the time the Talaq is
pronounced or the order is made, the Talaq or the
order shall not be effective until the pregnancy
ends.
(iii) PHILIPPINES: is a secular State. Christians
constitute its majority. On the issue in hand, it
has the following legislation in place:
Code of Muslim Personal Law 1977
Decree No.1083 of 1977
Article 46. (1) A divorce by Talaq may be
effected by the husband in a single
repudiation of his wife during her Tuhr [non-
menstrual period] within which he has totally
abstained from carnal relations with her.
(2) Any number of repudiations made during one
Tuhr [non-menstrual period] shall constitute only
one repudiation and shall become irrevocable after
the expiration of the prescribed Iddat.
(3) A husband who repudiates his wife, either for
the first or second time, shall have the right to take
her back within the Iddat period by resumption of
cohabitation without need of a new contract of
marriage. Should he fail to do so, the repudiation
shall become irrevocable.
*** *** ***
Article 85. Within seven days after the
revocation of a divorce the husband shall,
with the wifes consent, send a statement
thereof to the Circuit Registrar in whose
records the divorce was previously entered.
*** *** ***
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Article 161. (1) A Muslim male who has
pronounced a Talaq shall, without delay, file with
the Clerk of the Sharia Circuit Court of the place
where his family resides a written notice of such fact
and the circumstances attending thereto, after
having served a copy to the wife concerned. The
Talaq pronounced shall not become irrevocable until
after the expiration of the prescribed Iddat.
(2) Within seven days from receipt of notice the
Clerk of the Court shall require each of the parties
to nominate a representative. The representatives
shall be appointed by the court to constitute, with
the Clerk of the Court as Chairman, an Agama
[religious scholars] Arbitration Council which shall
try and submit to the court a report on the result of
arbitration on the basis of which, and such other
evidence as may be allowed, the court will pass an
order.
(3) The provisions of this Article will be
observed if the wife exercises right to Talaq-
e-Tafweez.
*** *** ***
Article 183. A person who fails to comply with the
requirements of Article 85, 161 and 162 of this Code
shall be penalized by imprisonment or a fine of two
hundred to two thousand Pesos, or both.
C. Laws of Sub-continental States
(i) PAKISTAN & BANGLADESH: are both
theocratic States, wherein Islam is the official
religion. In both countries Muslims of the Sunni
sect constitute the majority. On the issue in hand,
it has the following legislation in place:
Muslim Family Laws Ordinance 1961
Ordinance VIII of 1961 amended in
Bangladesh by Ordinance 114 of 1985
(Bangladesh changes noted below relevant
provisions)
Section 7. (1) Any man who wishes to divorce his
wife shall, as soon as may be after the
pronouncement of Talaq in any form whatsoever,
give the Chairman a notice in writing of his having
done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provision of sub-
section (1) shall be punishable with simple
imprisonment for a term which may extend to one
year, or with fine which may extend to five thousand
rupees, or with both.
[Bangladesh: ten thousand taka]
(3) Save as provided in sub-section (5), a
Talaq unless revoked earlier, expressly or
37
ISC-95
otherwise, shall not be effective until the
expiration of ninety days from the day on
which notice under subsection (1) is delivered
to the Chairman.
(4) Within thirty days of the receipt of notice under
sub-section (1) the Chairman shall constitute an
Arbitration Council for the purpose of bringing
about reconciliation between the parties, and the
Arbitration council shall take all steps necessary to
bring about such reconciliation.
(5) If the wife be pregnant at the time Talaq is
pronounced, Talaq shall not be effective until the
period mentioned in sub-section (3) or of pregnancy,
whichever is later, ends.
(6) Nothing shall debar a wife whose
marriage has been terminated by Talaq
effective under this section from re-marrying
the same husband without any intervening
marriage with a third person, unless such
termination is for the third time so effective.
(ii) SRI LANKA: is a secular State. Buddhists
constitute its majority. On the issue in hand, it
has the following legislation in place:
Muslim Marriage and Divorce Act 1951
Act 6 of 1951 as amended by Act 40 of 2006
Section 17: (4) Save as otherwise hereinafter
expressly provided, every marriage contracted
between Muslims after the commencement of
this Act shall be registered, as hereinafter
provided, immediately upon the conclusion of
the Nikah ceremony connected therewith.
(5) In the case of each such marriage, the duty
of causing it to be registered is hereby
imposed upon the following persons
concerned in the marriage; (a) the
bridegroom, (b) the guardian of the bride, and
(c) the person who conducted the Nikah
ceremony connected with the marriage.
Section 27. Where a husband desires to
divorce his wife the procedure laid down in
Schedule II shall be followed.
(2) Where a wife desires to effect a divorce
from her husband on any ground not referred
to in sub-section (1), being a divorce of any
description permitted to a wife by the Muslim
law governing the sect to which the parties
belong, the procedure laid down in the
Schedule III shall be followed so far as the
nature of the divorce claimed in each case
Law Animated World, 15 September 2017
ISC-96 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
renders it possible or necessary to follow that
procedure.
***
29. Talaq-e-biddat is effective, the very moment it is
pronounced. It is irrevocable when it is pronounced.
***
PART-6
Judicial pronouncements, on the subject of
talaq-e-biddat:
30. Rashid Ahmad v. Anisa Khatun1:
(i) THE FACTS: The primary issue that came to be
adjudicated in the above case, pertained to the
validity of talaq-e-biddat pronounced by
Ghiyas-ud-din, a Sunni Mohomedan of the
Hanafi school, to his wife Anisa Khatun
respondent no. 1. The marriage of the respondent
with Ghiyas-ud-din had taken place on
28.08.1905. Ghiyas-ud-din divorced her on or
about 13.09.1905. Ghiyas-ud-din pronounced
triple talaq, in the presence of witnesses, though
in the absence of his wife Anisa Khatun.
Respondent no.1 Anisa Khatun received
Rs.1,000 in payment of dower on the same day,
which was confirmed by a registered receipt.
Thereafter, Ghiyas-ud-din executed a talaqnama
(decree of divorce) dated 17.09.1905, which
narrates the divorce. The talaqnama is alleged to
have been given to Anisa Khatun respondent
no. 1.
(ii) THE CHALLENGE: Anisa Khatun respondent
no. 1, challenged the validity of the divorce,
firstly, for the reason, that she was not present at
the time of pronouncement of divorce. And
secondly, that even after the afore-stated
pronouncement, cohabitation had continued and
subsisted for a further period of fifteen years, i.e., till
the death of Ghiyas-ud-din. In the interregnum, five
children were born to Ghiyas-ud-din and Anisa
Khatun. According to Anisa Khatun, Ghiyas-ud-
din continued to treat Anisa Khatun respondent
no. 1, as his wife, and the children born to her, as
his legitimate children. It was also the case of
1
AIR 1932 PC 25
Law Animated World, 15 September 2017
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(2017) 2 LAW
respondent no. 1, that the payment of Rs.1,000,
was a payment of prompt dower, and as such, not
payment in continuation of the talaq-e-biddat,
pronounced by Ghiyas-ud-din.
(iii) THE CONSIDERATION: While considering
the validity of the talaq-e-biddat pronounced on
13.09.1905, and the legitimacy of the children
born to Anisa Khatun, the Privy Council held as
under:
15. Their Lordships are of opinion that the
pronouncement of the triple talak by Ghiyas-ud-
din constituted an immediately effective divorce,
and, while they are satisfied that the High Court
were not justified in such a conclusion on the
evidence in the present case, they are of opinion
that the validity and effectiveness of the divorce
would not be affected by Ghiyas-ud-dins mental
intention that it should not be a genuine divorce,
as such a view is contrary to all authority. A talak
actually pronounced under compulsion or in jest is valid
nd
and effective: Baillies Digest, 2 edn., p. 208;
Ameer Ali's Mohammedan Law, 3rd edn., vol. ii,
p. 518; Hamilton's Hedaya, vol. i, p. 211.
16. The respondents sought to found on the
admitted fact that for about fifteen years after the
divorce Ghiyas-ud-din treated Anisa Fatima as
his wife and his children as legitimate, and on
certain admissions of their status said to have
been made by appellant No. 1 and respondent
pro forma No. 10, who are brothers of Ghiyas-
ud-din, but once the divorce is held proved such facts
could not undo its effect or confer such a status on the
respondents.
17. While admitting that, upon divorce by the
triple talak, Ghiyas-ud-din could not lawfully
remarry Anisa Fatima until she had married
another and the latter had divorced her or died,
the respondents maintained that the
acknowledgment of their legitimacy by Ghiyas-
ud-din, subsequent to the divorce, raised the
presumption that Anisa Fatima had in the
interval married another, who had died or
divorced her, and that Ghiyas-ud-din had married
her again, and that it was for the appellants to
displace that presumption. In support of this
In my opinion, the liberals and radicals among Muslims
should set aside this undesirable mandate of Quran as
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
contention, they founded on certain dicta in the
judgment of this Board in Habibur Rahman
Chowdhury v. Altaf Ali Chowdhury, L.R. 48 I.A.
114. Their Lordships find it difficult to regard
this contention as a serious one, for these dicta
directly negative it. The passage relied on, which
related to indirect proof of Mahomedan marriage
by acknowledgment of a son as a legitimate son
is as follows: It must not be impossible upon the
face of it, i.e., it must not be made when the ages
are such that it is impossible in nature for the
acknowledgor to be the father of the
acknowledgee, or when the mother spoken to in
an acknowledgment, being the wife of another,
or within prohibited degrees of the
acknowledgor, it would be apparent that the issue
would be the issue of adultery or incest. The
acknowledgment may be repudiated by the
acknowledgee. But if none of these objections
occur, then the acknowledgment has more than
evidential value. It raises a presumption of
marriage a presumption which may be taken
advantage of either by a wife-claimant or a son-
claimant. Being, however, a presumption of fact,
and not juris et de jure, it is, like every other
presumption of fact capable of being set aside by
contrary proof.
18. The legal bar to re-marriage created by the
divorce in the present case would equally prevent
the raising of the presumption. If the respondents
had proved the removal of that bar by proving
the marriage of Anisa Fatima to another after the
divorce and the death of the latter or his divorce
of her prior to the birth of the children and their
acknowledgment as legitimate, the respondents
might then have had the benefit of the
presumption, but not otherwise.
19. Their Lordships are, therefore, of opinion
that the appeal should be allowed, that the decree
basically unjust, and in modern times quite revolting, and
change their personal law at par with other communities.
For example, either in Hindu or Christian or any other
community there is no such repugnant restrictive mandate
and a man can remarry his divorced wife any time and
any number of times (if so many number of divorces be
granted) as both consent and wish. Until such bold
reformist sections appear and gain ascendancy among
Muslims of the world there is no real redemption to that
community either materially or spiritually. - IMS.
39
ISC-97
of the High Court should be reversed, and that
the decree of the Subordinate Judge should be
restored, the appellants to have the costs of his
appeal and their costs in the High Court. Their
Lordships will humbly advise His Majesty
accordingly.
(iv) THE CONCLUSION: The Privy Council,
upheld as valid, talaq-e-biddat triple talaq,
pronounced by the husband, in the absence and
without the knowledge of the wife, even though
the husband and wife continued to cohabit for 15
long years thereafter, wherefrom 5 offsprings
were born to them.
31. Jiauddin Ahmed v. Anwara Begum2 (Single
Judge judgment, authored by Baharul Islam, J., as
he then was):
(i) THE FACTS: The respondent Anwara Begum
had petitioned for maintenance, under Section
125 of the Code of Criminal Procedure. Her
contention was, that she had lived with her
husband for about 9 months, after her marriage.
During that period, her marriage was
consummated. Anwara Begum alleged, that after
the above period, her husband began to torture
her, and even used to beat her. It was therefore,
that she was compelled to leave his company, and
start living with her father, who was a day
labourer. Maintenance was duly granted, by the
First Class Magistrate, Tinsukia. Her husband,
the petitioner Jiauddin Ahmed, contested the
respondents claim for maintenance, before the
Gauhati High Court, on the ground that he had
divorced her, by pronouncing divorce by
adopting the procedure of talaq-e-biddat.
(ii) THE CHALLENGE: It is in the above
circumstances, that the validity of talaq-e-
biddat, and the wifes entitlement to
maintenance came to be considered by the
Guahati High Court, which examined the validity
of the concept of talaq-e-biddat.
(iii) THE CONSIDERATION: (a) The High Court
placed reliance on verses 128 to 130, contained
in section 19, of sura IV, and verses 229 to
2
(1981) 1 Gau.L.R. 358.
Law Animated World, 15 September 2017
ISC-98 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
232, contained in sections 29 and 30 of sura
II, and thereupon, referred to the commentary on
the above verses by scholars (Abdullah Yusuf Ali
and Maulana Mohammad Ali) and the views of
jurists (Ameer Ali and Fyzee), with pointed
reference to talaq, which was narrated as under:
Islam tried to maintain the married state as far
as possible, especially where children are
concerned, but it is against the restriction of the
liberty of men and women in such vitally
important matters as love and family life. It will
check hasty action as far as possible and leave
the door to reconciliation open at many stages.
Even after divorce a suggestion of reconciliation
is made, subject to certain precautions against
thoughtless action. A period of waiting (Iddat)
for three monthly courses is prescribed, in order
to see if the marriage conditionally dissolved is
likely to result in issue. But this is not necessary
where the divorced woman is a virgin. It is
definitely declared that women and men shall
have similar rights against each other.
Yusuf Ali has further observed:
"Where divorce for mutual incompatibility is
allowed, there is danger that the parties might act
hastily, then repent, and again wish to separate.
To prevent such capricious action repeatedly, a
limit is prescribed. Two divorces (with a
reconciliation between) are allowed. After that
the parties must unitedly make up their minds,
either to dissolve their union permanently, or to
live honourable lives together in mutual love and
forbearance to 'hold together on equitable terms,'
neither party worrying the other nor grumbling
nor evading the duties and responsibilities of
marriage''.
Yusuf Ali proceeds:
"All the prohibitions and limits prescribed here
are in the interests of good and honourable lives
for both sides, and in the interests of a clean and
honourable social life, without public or private
scandals..."
****
"Two divorces followed by re-union are
permissible; the third time the divorce becomes
irrevocable, until the woman marries some other
man and he divorces her. This is to set an almost
Law Animated World, 15 September 2017
40
(2017) 2 LAW
impossible condition. The lesson is: if a man
loves a woman he should not allow a sudden gust
of temper or anger to induce him to take hasty
action... If the man takes back his wife after two
divorces, he must do so only on equitable terms,
i.e. he must not put pressure on the woman to
prejudice her rights in any way, and they must
live clean and honourable lives, respecting each
other's personalities..."
The learned Commentator further observes :
"The termination of a marriage bond is a most
serious matter for family and social life. An
every lawful device is approved which can
equitably bring back those who have lived
together, provided only there is mutual love and
they can live on honourable terms with each
other. If these conditions are fulfilled, it is no
right for outsiders to prevent or hinder re-union.
They may be swayed by property or other
considerations."
(b) The High Court also placed reliance on
verse 35 contained in section 6, of sura IV,
and again referred to the commentary on the
above verse (by Abdullah Yusuf Ali), who had
interpreted the same as under:
"An excellent plan for settling family disputes,
without too much publicity or mud-throwing, or
resort to the chicaneries of the law. The Latin
countries recognise this plan in their legal
system. It is a pity that Muslims do not resort to
it universally, as they should. The arbiters from
each family would know the idiosyncrasies of
both parties, and would be able, with God's help,
[to] effect a real reconciliation."
Maulana Mohammad Ali has commented on the
above verse thus:
"This verse lays down the procedure to be
adopted when a case for divorce arises. It is not
for the husband to put away his wife; it is the business of
the judge to decide the case. Nor should the divorce case
be made too public. The Judge is required to
appoint two arbitrators, one belonging to the
wife's family and the other to the husband's.
These two arbitrators will find out the facts but
their objective must be to effect a reconciliation
between the parties. If all hopes of reconciliation fail,
a divorce is allowed. But the final decision rests with the
judge who is legally entitled to pronounce a divorce.
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Cases were decided in accordance with the
directions contained in this verse in the early
days of Islam.
The same learned author commenting on the
above verse (IV: 35) in his the Religion of Islam
has observed:
"From what has been said above, it is clear that
not only must there be a good cause for divorce, but that
all means to effect reconciliation must have been
exhausted before resort is had to this extreme measure.
The impression that a Muslim husband may put away
his wife at his mere caprice, is a grave distortion of the
Islamic institution of divorce."
Fyzee denounces talaq as "absurd and unjust".
Abdur Rahim says:
"I may remark that the interpretation of the law
of divorce by the jurists, specially of the Hanafi
School, is one flagrant instance where because of
literal adherence to mere words and a certain
tendency towards subtleties they have reached a
result in direct antagonism to the admitted policy
of the law on the subject."
12. Mohammad Ali has observed:-
"Divorce is thus discouraged: 'If you hate them
(i.e. your wives) it may be that you dislike a thing
while Allah has placed abundant good in it."
Remedies are also suggested to avoid divorce so
long as possible:
"And if you fear a breach between the two (i.e.
the husband and the wife), then appoint a judge
from his people and a judge from her people; if
they both desire agreement, Allah will effect
harmony between them. It was due to such
teachings of the Holy Quran that the Holy Prophet
declared divorce to be the most hateful of all things
permitted....The mentality of the Muslim is to face
the difficulties of the married life along with its
comforts and to avoid disturbing the disruption
of the family relations as long as possible,
turning to divorce only as a last resort."
The learned author has further observed:
"The principle of divorce spoken of in the Holy
Quran and which in fact includes to a greater or
less extent all causes, is the decision no longer to
live together as husband and wife. In fact,
marriage itself is nothing but an agreement to
live together as husband and wife and when
41
ISC-99
either of the parties finds him or herself unable to
agree to such a life, divorce must follow. It is
not, of course, meant that every disagreement
between them would lead to divorce; it is only
the disagreement to live any more as husband
and wife...
He then refers to the condition laid down in Sura
IV verse 35. The learned author proceeds:
"The 'shiqaq' or breach of the marriage
agreement may also arise from the conduct of
either party; for instance, if either of them
misconducts himself or herself, or either of them
is consistently cruel to the other, or, as may
sometimes happen there is incompatibility of
temperament to such an extent that they cannot
live together in marital agreement. The 'shiqaq'
in these cases is more express, but still it will
depend upon the parties whether they can pull on
or not. Divorce must always follow when one of
the parties finds it impossible to continue the
marriage agreement and is compelled to break it
off. At first sight it may look like giving too
much latitude to the parties to allow them to end
the marriage contract thus, even if there is no
reason except incompatibility of temperament,
but this much is certain that if there is such
disagreement that the husband and the wife
cannot pull together, it is better for themselves,
for their offspring and for society in general that
they should be separated than that they should be
compelled to live together. No home is worth the
name wherein instead of peace there is
wrangling; and marriage is meaningless if there
is no spark of love left between the husband and
the wife. It is an error to suppose that such
latitude tends to destroy the stability of marriage,
because marriage is entered into as a permanent
and sacred relation based on love between a man
and a woman, and divorce is only a remedy when
marriage fails to fulfill its object.''
With regard to the husband's right of pronouncing
divorce the learned author has found;
"Though the Holy Quran speaks of the divorce
being pronounced by the husband, yet a
limitation is placed upon the exercise of this
right."
He then refers to the procedure laid down in Sura
IV Verse 35 quoted above, and says :
Law Animated World, 15 September 2017
ISC-100 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
"It will be seen that in all disputes between the
husband and the wife, which it is feared will lead to a
breach, two judges are to be appointed from the
respective people of the two parties. These judges are
required first to try to reconcile the parties to each
other, failing which divorce is to be effected.
Therefore, though it is the husband who
pronounces the divorce, he is as much bound by
the decision of the judges, as is the wife. This
shows that the husband cannot repudiate the
marriage at will. The case must first be referred
to two judges and their decision is
binding......The Holy Prophet is reported to have
interfered and disallowed a divorce pronounced
by a husband, restoring the marital relations (Bu.
68: 2). It was no doubt matter of procedure, but it
shows that the authority constituted by law has
the right to interfere in matters of divorce."
The learned author has further observed:
"Divorce may be given orally, or in writing, but
it must take place in the presence of witnesses.
(iv) THE CONCLUSION: Based on the Quranic
verses referred to above, the High Court
concluded as under:
13. A perusal of the Quranic verses quoted
above and the commentaries thereon by well-
recognized Scholars of great eminence like
Mahammad Ali and Yusuf Ali and the
pronouncements of great jurists like Ameer Ali
and Fyzee completely rule out the observation of
Macnaghten that "there is no occasion for any
particular cause for divorce, and mere whim is
sufficient", and the observation of Batchelor, J.
(ILR 30 Bom. 537) that "the whimsical and
capricious divorce by the husband is good in law, though
bad in theology". These observations have been
based on the concept that women were chattel belonging
to men, which the Holy Quran does not brook.
Costello, J. In 59 Calcutta 833 has not, with
respect, laid down the correct law of talaq. In my
view the correct law of talaq as ordained by the Holy
Quran is that talaq must be for a reasonable cause and
be preceded by attempts at reconciliation between the
husband and the wife by two arbiters one from the
wife's family the other from the husband's. If the
attempts fail, talaq may be effected.
*** *** ***
16. In the instant case the petitioner merely
alleged in his written statement before the
Magistrate that he had pronounced talaq to the
Law Animated World, 15 September 2017
42
(2017) 2 LAW
opposite party; but he did not examine himself,
nor has he adduced any evidence worth the name
to prove 'talaq'. There is no proof of talaq, or its
registration. Registration of marriage and divorce
under the Assam Muslim Marriages and
Divorces Registration Act, 1935 is voluntary,
and unilateral. Mere registration of divorce (or
marriage) even if proved, will not render valid divorce
which is otherwise invalid under Muslim Law.
A perusal of the conclusion recorded by the High
Court, through the above observations, leaves no
room for any doubt, that the talaq-e-biddat
pronounced by the husband without reasonable cause,
and without being preceded by attempts of
reconciliation, and without the involvement of
arbitrators with due representation on behalf of the
husband and wife, would not lead to a valid divorce.
The High Court also concluded, that the
petitioner Jiauddin Ahmed, had mainly alleged
that he had pronounced talaq, but had not
established the factum of divorce by adducing
any cogent evidence. Having concluded that the
marriage between the parties was subsisting, the High
Court upheld the order awarding maintenance to the
wife Anwara Begum.
32. Must. Rukia Khatun v. Abdul Khalique Laskar3,
(Division Bench judgment, authored by Baharul
Islam, CJ., as he then was).
(i) THE FACTS: Rukia Khatun was married to
Abdul Khalique Laskar. The couple lived
together for about 3 months, after their marriage.
During that period, the marriage was
consummated. Rukia Khatun alleged, that after
the above period, her husband abandoned and
neglected her. She was allegedly not provided
with any maintenance, and as such, had been
living in penury, for a period of about 3 months,
before she moved an application for grant of
maintenance. The petitioners application for
maintenance filed under Section 125 of the Code
of Criminal Procedure, was rejected by the Sub-
Divisional Judicial Magistrate, Hailakandi. She
challenged the order rejecting her claim of
maintenance, before the Gauhati High Court. The
respondent-husband Abdul Khalique Laskar,
3
(1981) 1 Gau. L.R. 375
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
contested the claim for maintenance by asserting,
that even though he had married the petitioner,
but he had divorced her on 12.4.1972 by way of
talaq-e-biddat, and had thereafter even executed
a talaknama. The husband also asserted, that he
had paid dower to the petitioner. The claim of the
petitioner-wife for maintenance was declined on
the ground, that she had been divorced by the
respondent-husband.
(ii) THE CHALLENGE: It is in the above
circumstances, that the validity of the divorce
pronounced by the respondent-husband, by way
of talaq-e-biddat, and the wifes entitlement to
maintenance, came up for consideration.
(iii) THE CONSIDERATION: The Gauhati High
Court recorded the following observations in
respect of the validity of talaq pronounced by
the respondent-husband, on 12.4.1972.
7. The first point to be decided, therefore, is
whether the opposite party divorced the
Petitioner. The equivalent of the word 'divorce' is
'talaq' in Muslim Law. What is valid 'talaq' in
Muslim law was considered by one of us
(Baharul Islam, J. as he then was) sitting singly
in Criminal Revision No. 199/77 (supra). The
word 'talaq' carries the literal significance of 'freeing'
or 'the undoing of knot'. 'Talaq' means divorce of a
woman by her husband. Under the Muslim law
marriage is a civil contract. Yet the rights and
responsibilities consequent upon it are of such
importance to the welfare of the society that a high
degree of sanctity is attached to it. But in spite of the
sacredness of the character of the marriage, Islam
recognizes the necessity in exceptional
circumstances of keeping the way open for its
dissolution. There has been a good deal of
misconception of the institution of 'talaq' under
the Muslim law. From the Holy Quran and the
Hadis, it appears that though divorce was permitted,
yet the right could be exercised only under exceptional
circumstances. The Holy Prophet is reported to
have said: "Never did Allah allow anything more
hateful to Him than divorce. According to a
report of Ibn Umar, the Prophet said: "With
Allah the most detestable of all things permitted
is divorce". (See the Religion of Islam by
Maulana Muhammed Ali at page 671). In the
case of Ahmed Kasim Molla v. Khatun Bibi
43
ISC-101
reported in ILR Cal 833, which has so long been
regarded as a leading case on the law of divorce,
Justice Costello held:
Upon that point (divorce), there are a
number of authorities and I have carefully
considered this point as dealt with in the very
early authorities to see whether I am in
agreement with the mere recent decisions of
the Courts. I regret that I have to come to the
conclusion that at the law stands at present,
any Mohamedan may divorce his wife at his
mere whim and caprice.
Following Macnaghten, J. who held: "there is no
occasion for any particular cause for divorce, and
mere whim is sufficient,'' and Batchelor, J, in
case of Sarabai v. Babiabai (ILR 30 Bombay 537)
Costello, J. held:-
It is good in law, though bad in theology.
Ameer Ali, in his Treatise on Mahomedan Law
has observed:
The Prophet pronounced talaq to be a most
detestable thing before the Almighty God of
all permitted things. If 'talaq' is given without
any reason it is stupidity and ingratitude to
God.
The learned Author in the same book has also
observed :
The author of the Multeka (Ibrohim Halebi)
is more concise. He says - The law gives to
the man primarily the power of dissolving the
marriage, if the wife, by her indocility or her
bad character, renders the married life
unhappy; but in the absence of serious
reasons, no Musalman can justify a divorce
either in the eyes of the religion or the law. If
he abandons his wife or put her away from
simple caprice, he draws, upon himself the
divine anger, for 'the curse of God', said the
Prophet, 'rests on him who repudiates his wife
capriciously'.
In ILR Madras 22, a Division Bench of the
Madras High Court, consisting of Munro and
Abdur Rahim, JJ., held:
No doubt an arbitrary or unreasonable
exercise of the right to dissolve the marriage
is strongly condemned in the Quran and in the
reported saying of the Prophet (Hadith) and is
treated as a spiritual offence. But the
impropriety of the husband's conduct would in no
Law Animated World, 15 September 2017
ISC-102 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
way affect the legal validity of a divorce duly effected
by the husband.
What Munro and Abdur Rahmim, JJ. in ILR 30
Madras 22 precisely held was that impropriety of
the husband's conduct would in no way affect the
legal validity of a divorce duly effected by the
husband. The emphasis was that a talaq would be
valid only if it is effected in accordance with the
Muslim Law.
In ILR 5, Rangoon 18, their Lordships of the
Privy Council observed:
According to that law (the Muslim Law), a
husband can effect a divorce whenever he
desires.
But the Privy Council has not said that the
divorce need not be duly effected or that
procedure enjoined by the Quran need not be
followed.
8. It is needless to say that Holy Quran is the primary
source and is the weightiest authority on any subject
under the Muslim Law. The Single Judge in
Criminal Revision No. 199/77 in his judgment
quoted the relevant verses of the Quran, to deal
with divorce. We need not refer to all the Verses.
It will be sufficient if we refer to only one of
them, which is Sura IV verse 35. It reads:
If ye fear a breach
Between them twain,
Appoint two arbiters
One from his family,
And the other from hers;
If they wish for peace,
God will cause
Their reconciliation:
For God hath full knowledge,
And is acquainted
With all things.
From the verse quoted above, it appears that
there is a condition precedent which must be
complied with before the talaq is effected. The
condition precedent if when the relationship
between the husband and the wife is strained and
the husband intends to give 'talaq' to his wife he
must chose an arbiter from his side and the wife
an arbiter from her side, and the arbiters must
attempt at reconciliation, with a time gap so that
the passions of the parties may cool down and
reconciliation may be possible. If ultimately
conciliation is not possible, the husband will be
Law Animated World, 15 September 2017
44
(2017) 2 LAW
entitled to give 'talaq'. The 'talaq' must be for
good cause and must not be at the mere desire,
sweet will, whim and caprice of the husband. It
must not be secret.
Maulana Mohammad Ali, an eminent Muslim
jurist, in his Religion of Islam, after referring to,
and considering, the relevant verses on the
subject has observed:
From what has been said above, it is clear
that not only must there be a good cause for
divorce, but that all means to effect
reconciliation must have been exhausted
before resort is had to this extreme measure.
The impression that a Muslim husband may
put away his wife at his mere caprice, is a
grave distortion of the Islamic institution of
divorce.
The learned Jurist also has observed:
Divorce must always follow when one of the
parties finds it impossible to continue the
marriage agreement and is compelled to break
it off.
9. Costello, J. in ILR 59 Calcutta 833 (supra)
considered the judgments of Munro and Abdur
Rahim, JJ. in ILR 33 Mad. 22 (supra) and of the
Privy Council in ILR 5, Rangoon 18, (supra) but
he preferred the opinions of Machaghten and
Batchalor, JJ. in ILR 30 Bombay 537 (supra).
The reason perhaps is, as observed by Krishna
Ayer, J. (now of the Supreme Court) in the case
of A. Yusuf Rowther v. Sowramma, reported in
AIR 1971 Kerala 261:
Marginal distortions are inevitable when the
Judicial Committee in Downing Street has to
interpret Manu and Muhammad of India and
Arabia. The soul of a Culture law is largely
the formalised and enforceable expression of
a community's culture norms cannot be
fully understood by alien minds.
10. Krishna Ayer, J., in AIR 1971 Kerala 261
(supra) has further observed:
The view that the Muslim husband enjoys an
arbitrary, unilateral power to inflict instant
divorce does not accord with Islamic
injunctions... Indeed, a deeper study of the
subject disclosed a surprisingly rational,
realistic and modern law of divorce.... ..
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
The learned Judge has further observed:
It is a popular fallacy that a Muslim male
enjoys, under the Quranic law, Unbridled
Authority to liquidate the marriage. The
whole Quran expressly forbids a man to seek
pretexts for divorcing his wife, so long as she
remains faithful and obedient to him, 'if they
(namely, women) obey you, then do not seek
a way against them' (Quran IV: 34)
(iv) THE CONCLUSION: Based on the above
consideration above, the High Court recorded the
following conclusion:
11. In our opinion the correct law of 'talaq' as
ordained by Holy Quran is: (i) that 'talaq' must be for a
reasonable cause; and (ii) that it must be preceded by an
attempt at reconciliation between the husband and wife
by two arbiters, one chosen by the wife from her family
and the other by the husband from his. If their attempts
fail, 'talaq' may be effected. In our opinion the
Single Judge has correctly laid down the law in
Criminal Revision No. 199/77 (supra), and, with
respect the Calcutta High Court in ILR 59
Calcutta 833 and the Bombay High Court in ILR
30 Bombay 537 have not laid down the correct
law. (emphasis supplied by the Court)
A perusal of the consideration extracted above,
when examined closely, reveals that the High
Court listed the following essential ingredients of
a valid talaq under Muslim law. Firstly, talaq
has to be based on good cause, and must not be at the
mere desire, sweet will, whim and caprice of the
husband. Secondly, it must not be secret. Thirdly,
between the pronouncement and finality, there must be
a time gap, so that the passions of the parties may calm
down, and reconciliation may be possible. Fourthly,
there has to be a process of arbitration (as a means of
reconciliation), wherein the arbitrators are
representatives of both the husband and the wife. If the
above ingredients do not exist, talaq divorce would
be invalid. For the reason, that the talaq-e-biddat
triple talaq pronounced by the respondent-husband
Abdul Khalique Laskar, did not satisfy all the
ingredients for a valid divorce, the High Court
concluded that the marriage was subsisting, and
accordingly held the wife to be entitled to
maintenance.
45
ISC-103
33. Masroor Ahmed v. State (NCT of Delhi )4,
(Single Bench judgment, authored by
Badar Durrez Ahmed, J., as he then was).
(i) THE FACTS: Aisha Anjum was married to the
petitioner Masroor Ahmed, on 02.04.2004. The
marriage was duly consummated and a daughter
was born to the couple (- on 22.10.2005). It was
alleged by the wife Aisha Anjum, that the
husbands family threw her out of her
matrimonial home (- on 08.04.2005), on account
of non-fulfilment of dowry demands. While the
wife Aisha Anjum was at her maternal home,
the husband Masroor Ahmed filed a case for
restitution of conjugal rights (- on 23.03.2006),
before the Senior Civil Judge, Delhi. During the
course of the above proceedings, the wife
returned to the matrimonial home, to the
company of her husband (- on 13.04.2006),
whereupon, marital cohabitation was restored.
Once again there was discord between the couple,
and Masroor Ahmed pronounced talaq-e-biddat,
on 28.08.2006. The wife Aisha Anjum alleged,
that she later came to know that her husband
Masroor Ahmed, had divorced her by exercising
his right of talaq-e-biddat, in the presence of the
brothers of Aisha Anjum, in October 2006. And
that, the husband had lied to the Court, (and to
her, as well) when he had sought her restitution,
from the Court, by making out as if the marriage
was still subsisting. It was her claim, that she
would not have agreed to conjugal relations with
him, had she known of the divorce. And
therefore, her consent to have conjugal relations
with Masroor Ahmed, was based on fraud
committed by him, on her Aisha Anjum. She
therefore accused Masroor Ahmed, for having
committed the offence under Section 376 of the
Indian Penal Code, i.e., the offence of rape. She
also claimed maintenance from her husband,
under Section 125 of the Criminal Procedure
Code. During the pendency of the above
proceedings, the parties arrived at an amicable
settlement on 1.9.2007.
4
2008 (103) DRJ 137
Law Animated World, 15 September 2017
ISC-104 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
(ii) THE CHALLENGE: The position expressed by
the High Court in paragraph 12 of the judgment,
crystalises the challenge. Paragraph 12, is
reproduced below:
12. Several questions impinging upon Muslim
law concepts arise for consideration. They
are:-
(1) What is the legality and effect of a triple
talaq?
(2) Does a talaq given in anger result in
dissolution of marriage?
(3) What is the effect of non-communication
of the talaq to the wife?
(4) Was the purported talaq of October
2005 valid?
(5) What is the effect of the second nikah of
19.4.2006?
(iii) THE CONSIDERATION: While considering
the legality and effect of talaq-e-biddat, the
High Court recorded the following consideration:
Sanctity and effect of Talaq-e-bidaat or triple talaq.
24. There is no difficulty with ahsan talaq or
hasan talaq. Both have legal recognition under all
fiqh schools, sunni or shia. The difficulty lies
with triple talaq which is classed as bidaat (an
innovation). Generally speaking, the shia schools
do not recognise triple talaq as bringing about a
valid divorce5. There is, however, difference of
opinion even within the sunni schools as to whether the
triple talaq should be treated as three talaqs, irrevocably
bringing to an end the marital relationship or as one
6
rajai (revocable) talaq , operating in much the same way
as an ahsan talaq. (emphasis by the Court)
5
With regard to triple talaq, Fyzee comments: Such a talaq
is lawful, although sinful, in Hanafi law; but in Ithna
'Ashari and the Fatimid laws it is not permissible. p. 154.
Ameer Ali notes: The Shiahs and the Malikis do not recognise
the validity of the talak-ul-bid'at, whilst the Hanafi and the
Shaf'eis agree in holding that a divorce is effective, if
pronounced in the bid'at form, though in its commission the
man incurs a sin. p. 435. These statements may not be
accurate as to the views of Malikis and Shaf'eis, but it is
universally recognized that the above-mentioned Shi'a
schools do not find triple talaq to be a valid form of
divorce.
6 xxx
After footnote 5, no other footnotes were given in the SC
Judgment pdf copy, and so, whatever footnotes given hereafter
are solely ours. - IMS.
Law Animated World, 15 September 2017
46
(2017) 2 LAW
(iv) THE CONCLUSION: Based7 on8 the9
consideration recorded above, the High Court
arrived at the following conclusions:
26. It is accepted by all schools of law that talaq-e-
bidaat is sinful10. Yet some schools regard it as valid.
Courts in India have also held it to be valid. The
expression bad in theology but valid in law is often
used in this context. The fact remains that it is
considered to be sinful. It was deprecated by prophet
Muhammad11. It is definitely not recommended or even
approved by any school. It is not even considered to be a
valid divorce by shia schools. There are views even
amongst the sunni schools that the triple talaq
pronounced in one go would not be regarded as three
talaqs but only as one. Judicial notice can be taken of the
fact that the harsh abruptness of triple talaq has
brought about extreme misery to the divorced women
and even to the men who are left with no chance to undo
the wrong or any scope to bring about a reconciliation.
It is an innovation which may have served a purpose at a
particular point of time in history12 but, if it is rooted
out such a move would not be contrary to any basic
tenet of Islam or the Quran or any ruling of the Prophet
Muhammad.
27. In this background, I would hold that a triple talaq
(talaq-e-bidaat), even for sunni muslims be regarded as one
revocable talaq. This would enable the husband to have
time to think and to have ample opportunity to revoke
the same during the iddat period. All this while, family
members of the spouses could make sincere efforts at
bringing about a reconciliation. Moreover, even if the iddat
period expires and the talaq can no longer be revoked as
a consequence of it, the estranged couple still has an
opportunity to re-enter matrimony by contracting a fresh
nikah on fresh terms of mahr etc. (emphasis by Court)
A perusal of the conclusions recorded by the
High Court would reveal, that triple talaq
pronounced at the same time, is to be treated as a single
pronouncement of divorce. And therefore, for severing
matrimonial ties finally, the husband would have to
complete the prescribed procedure, and thereafter,
the parties would be treated as divorced.
7
xxx
8
xxx
9
xxx
10
11
xxx
12
xxx
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
34.13 14 15 16Nazeer v. Shemeema,17 (Single Bench
judgment, authored by A. Muhamed Mustaque, J.).
(i) THE FACTS: Through the above judgment, the
High Court disposed of a number of writ petitions,
including three writ petitions, wherein husbands
had terminated their matrimonial alliance with their
spouses, by pronouncing talaq-e-biddat triple
talaq. Their matrimonial relationship having come
to an end, one or the other or both (- this position is
unclear, from the judgment) spouses approached the
passport authorities, to delete the name of their
former spouse, from their respective passports. The
passport authorities declined to accept their request,
as the same was based on private actions of the
parties, which were only supported by
unauthenticated talaq-namas (deeds of divorce).
The stance adopted by the passport authorities was,
that in the absence of a formal decree of divorce,
the name of the spouse could not be deleted. By
passing interim directions, the High Court ordered
the passport authorities, to correct the spouse details
(as were sought), based on the admission of the
corresponding spouse, that their matrimonial
alliance had been dissolved.
(ii) THE CHALLENGE: Even though the
authenticity and/or the legality of talaq-e-biddat,
did not arise for consideration before the High
Court, it noticed .Though the issue related to
triple talaq does not directly crop up in these writ
petitions calling upon this Court to decide the
validity of triple talaq, this Court cannot ignore
while granting a relief based on admission, the fact
that direction of this Court would result in greater
or lesser extent of injustice if it remains oblivious to
the repercussions of the repudiation of marriage by
volition of individual... The High Court
therefore, embarked on the exercise of examining
the validity of talaq-e-biddat.
(iii) THE CONSIDERATION: The High Court took
into consideration texts by renowned scholars, as
for instance, from Sharia by Wael B. Hallaq,
13
xxx
14
xxx
15
xxx
16
xxx
17
2017 (1) ELT 300
47
ISC-105
Sharia Law, An Introduction by Mohammad
Hashim Kamali, Quran: The Living Truth by
Basheer Ahmad Mohyidin, Muslim Law in India
And Abroad by Dr. Tahir Mahmood, The
Lawful and the Prohibited in Islam by Sheikh
Yusuf al-Qaradawi, from the Urdu book
Hikmatul Islam by Moulana Wahidul Khan.
The High Court also took into consideration
Quranic verses (all of which have been, extracted
above). The High Court even took note of the two
judgments of the Gauhati High Court (referred to
above), besides other High Court judgments, and
thereupon, observed as under:
12. This case only symptomizes the harsh
realities encountered by women belonging to
Muslim community, especially of the lower
strata. It is a reminder to the court unless the
plight of sufferers is alleviated in a larger scheme
through legislation by the State, justice will be a
distant dream deflecting the promise of justice by
the State "equality before the law". The State is
constitutionally bound and committed to respect
the promise of dignity and equality before law
and it cannot shirk its responsibility by
remaining mute spectator of the malady suffered
by Muslim women in the name of religion and
their inexorable quest for justice broke all the
covenants of the divine law they professed to
denigrate the believer and faithful. Therefore, the
remainder of the judgment is a posit to the State
and contribution for settlement of the 'legal vex'
which remains unconcluded more than four
decades after this court's reminder in Mohamed
Haneefas' case (supra).
13. The State is constitutionally obliged to
maintain coherent order in the society,
foundation of which is laid by the family. Thus
sustenance or purity of the marriage will lay a
strong foundation for the society, without which
there would be neither civilisation nor progress.
My endeavour in this judgment would have been over
with the laying of correct principles related to triple
talaq in Qur'anic perspective to declare the law and to
decide the matter. However, I find the dilemma in this
context is not a singular problem arisen demanding a
resolution of the dispute between the litigants by way of
adjudication. But rather it require a State intervention
by way of legislation to regulate triple talaq in India.
Therefore, settlement of law relating to talaq is
necessary and further discussion is to be treated as an
allude for the State to consider for possible reforms of
Law Animated World, 15 September 2017
ISC-106 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
divorce Law of Muslims in this Country. The
empirical research placed herein justifies such
course of action to remind the State for action. It
is to be noted, had the Muslim in India been
governed by the true Islamic law, Penal law
would have acted as deliverance to sufferings of
Muslim women in India to deter arbitrary talaq in
violation of Qur'anic injunction.
*** *** ***
15. This takes me to the question why the State is so
hesitant to reforms. It appears from public debate that
resistance is from a small section of Ulemas (scholars
within the society) on the ground that Sharia is
immutable and any interference would amount to
negation of freedom of religion guaranteed under the
Constitution. I find this dilemma of Ulema is on a
conjecture of repugnancy of divine law and secular law.
The State also appears as reluctant on an assumption
that reforms of religious practice would offend religious
freedom guaranteed under the Constitution of India.
This leads me to discuss on facets of Islamic law.
I also find it equally important to discuss about
the reforms of personal law relating to triple
talaq within the constitutional polity, as the
ultimately value of its legality has to be tested
under the freedom of religious practices.
(iv) THE CONCLUSION: In the background of the
above consideration, the High Court held as
under:
The W.P.(C) 37436 of 2003 is filed by the
husband alleging that the triple talaq pronounced
by him is not valid in accordance with Islamic
law. Therefore, proceedings initiated before the
Magistrate under Section 3 of the Muslim
Women (Protection of Rights on Divorce) Act,
1986 and consequent order will have to be set
aside. This case depicts the misuse of triple talaq,
wife appears to have accepted the talaq and
moved the Magistrate court on a folly created by
husband. There are innumerable cases as
revealed from the empirical data referred in the
research in which neither party are aware of the
procedure of talaq according to the personal law.
This Court under Article 226 of the Constitution
of India is not expected to go into the disputed
questions of fact. The entire exercise in this
judgment is to alert the State that justice has
become elusive to the Muslim woman and the
remedy thereof lies in codification of law of
divorce. This court cannot grant any relief to the
Law Animated World, 15 September 2017
48
(2017) 2 LAW
writ petitioner as the true application of the law
to be considered in a given facts is upon the
Court trying the matter. It is for the subordinate
court to decide whether there was application of
Islamic law in effecting divorce by triple talaq.
Therefore, declining jurisdiction, this writ
petition is dismissed.
W.P.(C) Nos. 25318 & 26373 of 2015
and 11438 of 2016
In these Writ Petitions question of validity of
triple talaq does not arise. However this question
was considered in larger perspective for the
reason that if court grant any relief based on
admission of the parties as to the repudiation of
marriage by triple talaaq, that would amount to
recognition of a triple talaq effected not in
accordance with law, as this court has no
mechanism to find out the manner in which talaq
is effected. The Court cannot become a party to a
proceedings to recognize an ineffective divorce
in the guise of directions being given to passport
authorities to accept the divorce. The legal effect
of such divorce has to be probed by a fact finding
authority in accordance with the true Islamic law.
Stamp of approval being given by the court by
ordering passport authority to accept divorce
effected not in accordance with the law, will
create an impression that court transgressed its
limits while directing a public authority to
honour an act which was done not in accordance
with law. Though in these Writ Petitions,
considering the urgency of the matters, this court
granted interim order directing the passport
authorities to act upon the request of the
petitioners. Considering the large number of
similar reliefs sought before this court in various
Writ Petitions, this court is of the view that the
issue can be resolved only through a larger
remedy of codification of law in the light of the
discussion as above. In the light of interim order,
these Writ Petitions are disposed of.
Conclusion:
Courts interpret law and evolve justice on such
interpretation of law. It is in the domain of the
legislature to make law. Justice has become
elusive for Muslim women in India not because
of the religion they profess, but on account of
lack of legal formalism resulting in immunity
from law. Law required to be aligned with
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
justice. The search for solution to this
predicament lies in the hands of the law makers.
It is for the law makers to correlate law and
social phenomena relating to divorce through the
process of legislation to advance justice in
institutionalized form. It is imperative that to
advance justice, law must be formulated without
any repugnance to the religious freedom
guaranteed under the Constitution of India. It is
for the State to consider the formulation of
codified law to govern the matter. Therefore, I
conclude by drawing attention of those who
resist any form of reform of the divorce law of
Muslim community in India to the following
verses of Holy Quran. (Chapter 47:2)
"And those who believe and do good works and
believe in that which is revealed unto
Muhammad and it is the truth from their Lord
He riddeth them of their ill deeds and improveth
their state."
"Thus we display the revelations for people who
have sense" (Chapter 30:28)
The Registry shall forward the copy of this
judgment to Union Law Ministry and Law
Commission of India.
A perusal of the conclusions drawn by the High
Court reveals, that the practice of talaq-e-biddat,
was deprecated by the Court. The Court however
called upon the legislature, to codify the law on the
issue, as would result in the advancement of
justice, as a matter of institutional form.
***
PART-7
The petitioners and the interveners contentions:
35. On behalf of the petitioner, besides the
petitioner herself, submissions were initiated by
Mr. Amit Singh Chadha, Senior Advocate. He
invited this Courts attention to the legislative
history in the field of Muslim personal law (-
for details, refer to Part-4 Legislation in India,
in the field of Muslim personal law). It was
submitted, that all fundamental rights contained
in Part III of the Constitution were justiciable. It
was therefore pointed out, that the petitioners
cause before this Court, was akin to such rights as
were considered justiciable. The practice of
49
ISC-107
talaq-e-biddat, according to learned counsel,
permitted a male spouse an unqualified right, to
severe the matrimonial tie. It was pointed out,
that the right to divorce a wife, by way of triple
talaq, could be exercised without the disclosure of
any reason, and in fact, even in the absence of
reasons. It was submitted, that a female spouse
had no say in the matter, inasmuch as, talaq-e-
biddat could be pronounced in the absence of the
wife, and even without her knowledge. It was
submitted, that divorce pronounced by way of
triple talaq was final and binding, between the
parties. These actions, according to learned
counsel, vested an arbitrary right in the husband,
and as such, violated the equality clause
enshrined in Article 14 of the Constitution. It was
submitted, that the Constitution postulates
through the above article, equality before the law
and equal protection of the laws. This right,
according to learned counsel, was clearly denied
to the female spouse in the matter of
pronouncement of divorce by the husband by
adopting the procedure of talaq-e-biddat.
Further more, it was submitted, the Constitution
postulates through Article 15, a clear restraint on
discrimination, on the ground of sex. It was
submitted, that talaq-e-biddat violated the
aforesaid fundamental right, which postulates
equality between men and women. Learned
counsel relied on the decisions of this Court in
Kesavananda Bharati v. State of Kerala , and
18
19
Minerva Mills Ltd. v. Union of India to contend,
that it was the duty of courts to intervene in case
of violation of any individuals fundamental
right, and to render justice. It was also submitted,
that the rights of the female partner in a
matrimonial alliance amongst Muslims, had
resulted in severe gender discrimination, which
amounted to violating their human rights under
Article 21 of the Constitution. Learned counsel
accordingly sought intervention, for grave
injustice practiced against Muslim wives.
18
(1973) 4 SCC 225
19
AIR 1980 SC 1789
Law Animated World, 15 September 2017
ISC-108 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
36. Mr. Amit Singh Chadha, learned senior
counsel, then placed reliance on the Jiauddin
Ahmed2, and the Rukia Khatun3 cases (- for
details, refer to Part-6 Judicial pronouncements,
on the subject of talaq-e-biddat). Based on the
above judgments, it was submitted, that courts of
this country had not found favour with the
practice of triple talaq, in the manner prevalent in
India. It was contended, that talaq-e-biddat should
not be confused with the profession, practice and
propagation of Islam. It was pointed out, that talaq-
e-biddat was not sacrosanctal to the profession of the
Muslim religion. It was accordingly submitted, that
this Court had an indefeasible right, to intervene
and render justice. In order to press his claim
based on constitutional morality, wherein the
petitioners were claiming not only gender
equality, but also the progression of their
matrimonial life with dignity, learned senior
counsel placed reliance on Manoj Narula v. Union
20
of India , wherein this Court observed as under:
The Constitution of India is a living instrument
with capabilities of enormous dynamism. It is a
Constitution made for a progressive society.
Working of such a Constitution depends upon
the prevalent atmosphere and conditions. Dr
Ambedkar had, throughout the debate, felt that
the Constitution can live and grow on the
bedrock of constitutional morality. Speaking on
the same, he said:
Constitutional morality is not a natural
sentiment. It has to be cultivated. We must
realise that our people have yet to learn it.
Democracy in India is only a top-dressing on
an Indian soil, which is essentially
undemocratic. [Constituent Assembly
Debates, 1948, Vol. VII, 38.]
The principle of constitutional morality basically
means to bow down to the norms of the
Constitution and not to act in a manner which
would become violative of the rule of law or
reflectible of action in an arbitrary manner. It
actually works at the fulcrum and guides as a
laser beam in institution building. The traditions
and conventions have to grow to sustain the
20
(2014) 9 SCC 1
Law Animated World, 15 September 2017
50
(2017) 2 LAW
value of such a morality. The democratic values
survive and become successful where the people
at large and the persons in charge of the
institution are strictly guided by the
constitutional parameters without paving the path
of deviancy and reflecting in action the primary
concern to maintain institutional integrity and the
requisite constitutional restraints. Commitment
to the Constitution is a face t of constitutional
morality
In continuation with the instant submission, it
was also the contention of learned senior counsel,
that Articles 25, 26 and 29 of the Constitution,
did not in any manner, impair the jurisdiction of
this Court, to set right the apparent breach of
constitutional morality. In this behalf, the Courts
attention was invited to the fact, that Article 25
itself postulates, that the freedoms contemplated
thereunder, were subject to the overriding
principles enshrined in Part III Fundamental
Rights, of the Constitution. This position, it was
submitted, was affirmed through judgments
rendered by this Court in John Vallamattom v.
21 22
Union of India , Javed v. State of Haryana , and
23
Khursheed Ahmad Khan v. State of Uttar Pradesh .
37. Learned senior counsel also drew our
attention to the fact, that a number of countries had,
by way of express legislations, done away with the
practice of talaq-e-biddat. It was submitted, that
even when talaq was pronounced thrice
simultaneously, the same has, by legislation, been
treated as a single pronouncement, in a number of
countries, including countries which have
declared Islam as their official State religion. It
was accordingly contended, that had talaq-e-
biddat been an essential part of religion, i.e., if it
constituted a core belief, on which Muslim
religion was founded, it could not have been
interfered with, by such legislative intervention. It
was accordingly suggested, that this Court should
have no difficulty whatsoever in remedying the
cause with which the petitioners had approached
21
(2003) 6 SCC 611
22
AIR 2003 SC 3057
23
AIR 2015 SC 1429.
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
this Court, as the same was not only violative of
the fundamental rights enshrined in the
Constitution, but was also in contravention of the
principle of constitutional morality emerging
therefrom.
38. Last of all, it was contended, that it is nobodys
case before this Court, that talaq-e-biddat is a part of
an edict flowing out of the Quran. It was submitted,
that triple talaq is not recognized by many schools of
Islam. According to learned counsel, all
concerned acknowledge, that talaq-e-biddat has
all along been treated irregular, patriarchal and
even sinful. It was pointed out, that it is accepted
by all schools even of Sunni Muslims, that
talaq-e-biddat is bad in theology but good in
law. In addition, it was pointed out, that even the
Union of India had affirmed before this Court, the
position expressed above. In such situation, it was
prayed, that this Court being a constitutional court,
was obliged to perform its constitutional responsibility
under Article 32 of the Constitution, as a protector,
enforcer, and guardian of citizens rights under Articles
14, 15 and 21 of the Constitution. It was submitted,
that in discharge of the above constitutional obligation,
this Court ought to strike down, the practice of talaq-e-
biddat, as violative of the fundamental rights and
constitutional morality contemplated by the provisions
of the Constitution. It was commended, that the
instant practice of talaq-e-biddat should be done
away with, in the same manner as the practice of
Sati, Devadasi and Polygamy, which were
components of Hindu religion, and faith. Learned
counsel concluded his submissions by quoting
from the Constitutional Law of India, by H.M.
Seervai (fourth edition, Volume 2, published by
N.M. Tripathi Private Ltd., Bombay), wherein in
clause 12.60, at page 1281, the author has
expressed the following view:
12.60 I am aware that the enforcement of laws
which are violated is the duty of Govt., and in a
number of recent cases that duty has not been
discharged. Again, in the last instance, blatant
violation of religious freedom by the arbitrary
action of religious heads has to be dealt with
firmly by our highest Court. This duty has
resolutely discharged by our High Courts and the
Privy Council before our Constitution. No
ISC-109
greater service can be done to our country than
by the Sup. Ct. and the High Courts discharging
that duty resolutely, disregarding popular
clamour and disregarding personal predilections.
I am not unaware of the present political and
judicial climate. But I would like to conclude
with the words of very great man never despair,
for when evil reaches a particular point, the
antidote of that evil is near at hand.
39. Mr. Anand Grover, Senior Advocate,
represented Zakia Soman respondent no. 10.
Respondent no. 10 was added as a party
respondent on 29.6.2016, on the strength of an
interlocutory application filed by her. Learned
senior advocate, in the first instance, invited our
attention to the various kinds of talaq practiced
amongst Muslims (- for details, refer to Part-2
The practiced modes of talaq amongst
Muslims). It was submitted, that talaq-e-ahsan
and talaq-e-hasan were approved by the Quran and
the hadith. It was submitted, that talaq-e-biddat is
neither recognized by the Quran, nor approved by the
hadith. With reference to talaq-e-biddat, it was
asserted, that the same was contrary to Quranic
prescriptions. It was submitted, that the practice of
talaq-e-biddat was traceable to the second century,
after the advent of Islam. It was asserted, that talaq-
e-biddat is recognized only by a few Sunni
schools, including the Hanafi school. In this
behalf, it was also brought to our notice, that
most of the Muslims in India belonged to the
Hanafi school of Sunni Muslims. It was
submitted, that even the Hanafi school acknowledges,
that talaq-e-biddat is a sinful form of divorce, but
seeks to justify it on the ground that though bad in
theology, it is good in law. In India talaq-e-biddat,
according to learned counsel, gained validity
based on the acceptance of the same by the
British courts, prior to independence. It was
submitted, that the judgments rendered by the
British courts were finally crystallized, in the
authoritative pronouncement by the Privy
Council in the Rashid Ahmad case1. It was pointed
out, that thereafter, talaq-e-biddat has been
consistently practised in India.
40. The first contention advanced at the hands of
learned senior counsel was, that after the adoption
Law Animated World, 15 September 2017
51
ISC-110 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
of the Constitution, various High Courts in India had
the occasion to consider the validity of talaq-e-biddat,
exercised by Muslim men to divorce their wives. And
all the High Courts (which had the occasion to deal
with the issue) unanimously arrived at the conclusion,
that the same could not muster support either from the
Quran or the hadith. In this behalf, the Courts
attention was drawn to the various judgments of
High Courts including the High Court of Gauhati
in the Jiauddin Ahmed case2 by a Single Bench,
and by the same High Court in the Rukia Khatun
case3 by a Division Bench. By the Delhi High
Court in the Masroor Ahmed case4 by a Single
Bench, and finally by the Kerala High Court in
the Nazeer case5 by a Single Bench (- for details,
refer to Part-6 Judicial pronouncements, on the
subject of talaq-e-biddat). It was submitted, that
the High Courts were fully justified in their
opinions and their conclusions. It was pointed
out, that despite the aforesaid judgments, Muslim
husbands continued to divorce their wives by
talaq-e-biddat, and therefore, an authoritative
pronouncement on the matter was required to be
delivered, by this Court. Based on the decisions
relied upon, it was submitted, that a Muslim
husband, could not enjoy arbitrary or unilateral power
to proclaim a divorce, as the same does not accord with
Islamic traditions. It was also contended, that the
proclamation of talaq must be for a demonstrated
reasonable cause, and must proceed by an attempt at
reconciliation by two arbiters (one each, from the side of
the rival parties). In order to affirm the aforesaid
position, learned counsel placed reliance on
24
Shamim Ara v. State of U.P. , to assert, that this
Court approved the judgments referred to above.
It was accordingly asserted, that this Court has
already recognized, the Quranic position as
recorded in verses 128 to 130 of sura IV and
verses 229-232 of sura II, and also, verse 35
of sura IV. These verses, according to learned
senior counsel, declare the true Quranic position
on the subject of divorce (- for details, refer to
Part-3 The Holy Quran with reference to
talaq). Learned counsel heavily relied on the
decision rendered by the Delhi High Court in the
24
(2002) 7 SCC 518
Law Animated World, 15 September 2017
52
(2017) 2 LAW
4
Masroor Ahmed case , and by the Kerala High
Court in the Nazeer case5 to bring home his
contention, that talaq-e-biddat was wholly
unjustified and could not be recognized as a valid
means of divorce in the Muslim community. It
was the vehement submission of learned counsel,
that the legal position being canvassed on behalf
of the petitioners, clearly emerged from the
judgments referred to above, and should be
treated as the foundation, for adoption and
declaration by this Court. It was therefore prayed,
that triple talaq as was being practiced in India,
be declared unsustainable in law.
41. It was also contended by learned senior
counsel, that the settled principles applicable in
all common law jurisdictions including India was
that courts do not test the constitutionality of laws
and procedures, if the issue arising between the
parties can be decided on other grounds. It was
submitted, that only when the relief being sought,
cannot be granted without going into the
constitutionality of the law, only then courts need
to enter the thicket of its constitutional validity.
Learned counsel invited the Courts attention, to
the judgment of this Court in State of Bihar v. Rai
25
Bahadur Hurdut Roy Moti Lal Jute Mills , wherein
this Court refused to test the constitutional validity
of certain provisions, by holding as under:
7. On behalf of the appellant Mr Lal Narain
Sinha has contended that the High Court was in
error in holding that the proviso to Section 14A
violates either Article 20(1) or Article 31(2) of
the Constitution. He has addressed us at length in
support of his case that neither of the two articles
is violated by the impuged proviso. On the other
hand, the learned Solicitor-General has sought to
support the findings of the High Court on the
said two constitutional points; and he has pressed
before us as a preliminary point his argument
that on a fair and reasonable construction, the
proviso cannot be applied to the case of the first
respondent. We would, therefore, first deal with this
preliminary point. In cases where the vires of statutory
provisions are challenged on constitutional grounds, it is
essential that the material facts should first be clarified
25
AIR 1960 SC 378
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
and ascertained with a view to determine whether the
impugned statutory provisions are attracted; if they are,
the constitutional challenge to their validity must be
examined and decided. If, however, the facts admitted or
proved do not attract the impugned provisions there is
no occasion to decide the issue about the vires of the said
provisions. Any decision on the said question would in
such a case be purely academic. Courts are and should
be reluctant to decide constitutional points merely as
matters of academic importance. (emphasis by the Court)
*** *** ***
19. In view of this conclusion it is unnecessary to
consider the objections raised by the first
respondent against the validity of the proviso on
the ground that it contravenes Articles 20(1) and
31(2) of the Constitution
In the context of personal law, it was submitted,
that in Shabnam Hashmi v. Union of India2626, the
Court had recently refused to examine the
constitutional validity of personal laws, when
the issue could be plainly decided on the
interpretation of the concerned statute. It was
therefore contended, that through a purely
interpretative exercise, this Court should declare talaq-
e-biddat as illegal, ineffective and having no force in
law, in the same manner as the Gauhati High
Court and the Delhi High Court, have previously
so held. It was submitted, that the same
declaration be given by this Court, by an
interpretation of personal law, as would
incorporate the ingredients of the permissible and
acceptable modes of talaq into talaq-e-biddat.
42. In the present determination, learned senior
counsel submitted, that it would be essential to
recognize the existence of distortions in the
hadiths. It was pointed out, that it was by now
well settled, that there were various degrees of
reliability and/or authenticity of different
hadiths (reference in this behalf was made to
Principles of Mohomedan Law by Sir Dinshaw
Fardunji Mulla, LexisNexis, Butterworths
Wadhwa, Nagpur, 20th edition). It was the
contention of learned senior counsel, that the All
India Muslim Personal Law Board (hereinafter referred
to as, the AIMPLB), had relied on hadiths, that were
26
(2014) 4 SCC 1
53
ISC-111
far removed from the time of the Prophet. It was
submitted, that they were therefore far less
credible and authentic, and also distorted and
unreliable, as against the hadiths taken into
consideration in the judgments rendered by the
High Courts (- for details, refer to Part-6
Judicial pronouncements, on the subject of talaq-
e-biddat). It was pointed out, that the AIMPLB
had relied upon a later hadith (that is, Sunan
Bayhaqi 7/547). It was pointed out, that when
compared to the hadith of Bhukahri (published
by Darussalam, Saudi Arabia), the hadith relied
upon by the AIMPLB appeared to be a clear
distortion. It was also submitted, that the hadith
relied upon by the AIMPLB, was not found in the
Al Bukhari Hadiths, and as such, it would be
inappropriate to place reliance on the same. As
against the submissions advanced on behalf of
AIMPLB, it was pointed out (in rejoinder), that
Sahih Muslims believe, that during the Prophets
time, and that of the First Caliph Abu Baqhr and
the Second Caliph Umar, pronouncements of
talaq by three consecutive utterances were
treated as one. Reference in this behalf was made
to Sahih Muslim compiled by Al-Hafiz
Zakiuddin Abdul-Azim Al-Mundhiri, and
published by Darussalam. Learned senior counsel
also invited this Courts attention to The lawful
and the prohibited in Islam by Al-Halal Wal
Haram Fil Islam (edition August 2009), which
was of Egyptian origin. It was pointed out, that
Egypt was primarily a Sunni Hanafi nation. It was
submitted, that the text of the above publication, clearly
showed, that the practice of instant talaq was described
sinful, and was to be abhorred. Reference was also
made to Woman in Islamic Shariah by Maulana
Wahiduddin Khan (published by Goodword
Books, reprinted in 2014), wherein it is opined,
that triple talaq pronounced on a singular
occasion, would be treated as a single
pronouncement of talaq, in terms of the hadith
of Imam Abu Dawud in Fath al-bari 9/27. It was
submitted, that the views of the above author,
were also relied upon by the Delhi High Court in
the Masroor Ahmed case4. Reference was also
made to Marriage and family life in Islam by
Law Animated World, 15 September 2017
ISC-112 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Prof. (Dr.) A. Rahman (Adam Publishers and
Distributors, New Delhi, 2013 edition), wherein
by placing reliance on a Hanafi Muslim scholar,
it was expressed that triple talaq was not in
consonance with Quranic verses. Reliance was
also placed on Imam Abu Hanifa Life and
Work by Allamah Shiblinumanis of Azamgarh,
who founded the Shibli College in the 19th
century. It was submitted, that Abu Hanifa himself
ruled, that it was forbidden to give three divorces at the
same time, and whoever did so was a sinner. Based on
the aforestated submissions, it was the pointed
contention of learned senior counsel, that there
was no credibility in the position adopted by the
AIMPLB, in its pleadings to demonstrate the validity of
the practice of talaq-e-biddat.
43. Based on the above submissions, it was
contended, that the judgment rendered by the
Privy Council in the Rashid Ahmad case1 with
reference to the validity of talaq-e-biddat
needed to be overruled. Since talaq-e-biddat
cannot be traced to the Quran, and since the
Prophet himself deprecated it, and since talaq-e-biddat
was considered sinful by all schools of Sunni Muslims,
and as invalid by all the Shia Muslim schools, it could
not be treated to be a part of Muslim personal law. It
was asserted, that triple talaq was not in tune with
the prevailing social conditions, as Muslim
women were vociferously protesting against the
practice. Learned senior counsel solicited, that
this Court in order to resolve the present dispute,
declare that the pronouncement of triple talaq by
a Muslim husband, in order to divorce his wife,
would be treated as a single pronouncement of
talaq, and would have to follow the procedure of
talaq-e-ahsan (or, talaq-e-hasan) in accordance
with the Quran, so as to conclude a binding
dissolution of marriage by way of talaq, in
terms of Muslim personal law.
44. Ms. Indira Jaising, Senior Advocate, was the
third counsel to represent the cause of the
petitioners. She entered appearance on behalf of
respondent no.7 Centre for Study of Society
and Secularism, which came to be added as a
party respondent vide an order dated 29.6.2016. It
was the contention of learned senior counsel, that
Law Animated World, 15 September 2017
54
(2017) 2 LAW
the term personal laws had not been defined in
the Constitution, although there was reference to
the same in entry 5 of the Concurrent List of the
Seventh Schedule. Learned counsel referred to
Article 372 of the Constitution which mandates,
that all laws in force, in the territory of India
immediately before the commencement of the
Constitution, shall continue in force until
altered or repealed or amended by a competent
legislature (or other competent authority). It was
submitted, that on personal issues, Muslims were
governed by the Muslim personal law Shariat.
It was contended, that even before, the
commencement of the Constitution, the Muslim
Personal Law (Shariat) Application Act, 1937
enforced Muslim personal law, and as such, the
Muslim personal law should be considered as a
law in force, within the meaning of Article
13(3) (b). It was pointed out, that the instant
position made the legal position separate and
distinct from what ordinarily falls in the realm of
personal law. It was also highlighted, that a
reading of entry 5 in the Concurrent List of the
Seventh Schedule, leaves no room for any doubt, that
personal law necessarily has to have nexus, to issues
such as marriage and divorce, infants and minors,
adoptions, wills, intestacy and succession, joint family
property and partition, etc. It was contented, that
personal law could therefore conveniently be
described as family law, namely, disputes relating to
issues concerning the family. It was pointed out, that
such family law disputes, were ordinarily
adjudicated upon by the Family Courts, set up
under the Family Courts Act, 1984. The matters
which arise for consideration before the Family
Courts are disputes of marriage (namely,
restitution of conjugal rights, or judicial
separation, or dissolution of marriage), and the
like. Based on the above backdrop, it was
submitted, that it could be safely accepted that
personal law deals with family laws and law of
succession such as marriage, divorce, child custody,
inheritance, etc.
45. Based on the foundation recorded in the
preceding paragraph, it was submitted, that the
question in the present controversy was, whether
rule of decision (the term used in Section 2, of the
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Shariat Act) could be challenged, on the ground that
the same was violative of the fundamental rights
postulated in Part III of the Constitution? It was the
pointed contention of learned counsel, that no
rule of decision can be violative of Part III of
the Constitution. It was acknowledged (we would
say fairly), that personal law which pertained
to disputes between the family and private
individuals (wherein the State has no role),
cannot be subject to a challenge, on the ground of
being violative of the fundamental rights
enshrined in Part III of the Constitution. It was
submitted, that insofar as Muslim personal law
is concerned, it could no longer be treated as
personal law, because it had been statutorily
declared as rule of decision by Section 2 of the
Shariat Act. It was therefore asserted, that all
questions pertaining to Muslims, personal law
having been described as rule of decision could
no longer be treated as private matters between
parties, nor can they be treated as matters of mere
personal law. It was therefore contended, that
consequent upon the inclusion/subject of the
question of dissolution of marriage, including
talaq, ila, zihar, lian, khula and mubaraat,,
amongst Muslims in the statute book, the same
did not remain a private matter between the
parties. And as such, all questions/matters, falling
within the scope of Section 2 aforementioned,
were liable to be considered as matters of public
law. Learned senior counsel therefore asserted,
that no one could contest the legitimacy of a
challenge to public law on the ground of being
violative of the provisions of the Constitution. In
support of the aforesaid foundational premise,
learned senior counsel placed reliance on Charu
27
Khurana v. Union of India , to contend that
talaq-e-biddat should be considered as arbitrary
and discriminatory, under Articles 14 and 15, in
the same manner as the rule prohibiting women
make-up artists and hair dressers from becoming
members of registered make-up artists and hair
dressers association, was so declared. It was also
pointed out, that discrimination based on sex was
27
(2015) 1 SCC 192
55
ISC-113
opposed to gender justice, which position was
clearly applicable to the controversy in hand.
Insofar as the instant aspect of the matter is
concerned, learned counsel placed reliance on the
following observations recorded in the above
judgment:
46. These bye-laws have been certified by the
Registrar of Trade Unions in exercise of the
statutory power. Clause 4, as is demonstrable,
violates Section 21 of the Act, for the Act has not
made any distinction between men and women.
Had it made a bald distinction it would have
been indubitably unconstitutional. The
legislature, by way of amendment in Section 21-
A, has only fixed the age. It is clear to us that the
clause, apart from violating the statutory command, also
violates the constitutional mandate which postulates that
there cannot be any discrimination on the ground of sex.
Such discrimination in the access of employment and to
be considered for the employment unless some
justifiable riders are attached to it, cannot withstand
scrutiny. When the access or entry is denied, Article 21
which deals with livelihood is offended. It also works
against the fundamental human rights. Such kind of
debarment creates a concavity in her capacity to earn
her livelihood. (emphases by the Court)
*** *** *** ***
50. From the aforesaid enunciation of law, the
signification of right to livelihood gets clearly
spelt out. A clause in the bye-laws of a trade union,
which calls itself an Association, which is accepted by
the statutory authority, cannot play foul of Article 21.
46. Learned senior counsel, thereupon attempted
to express the same position, through a different
reasoning. It is necessary to recall, that the
question posed for consideration is, whether this
Court should accept rule of decision under
Section 2 of the Shariat Act as laws in force
within the meaning of Article 13 of the
Constitution, and thereby, test the validity
thereof, on the touchstone of the fundamental
rights enshrined in Part III of the Constitution? It
was the fervent contention of learned senior
counsel, that all questions falling for consideration
within the meaning of the term rule of decision had
necessarily to be treated as laws in force. Thus, it
was submitted, that such laws were to be in
consonance with the provisions of Part III
Law Animated World, 15 September 2017
ISC-114 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Fundamental Rights, of the Constitution. Insofar
as the challenge to the constitutional validity of
talaq-e-biddat is concerned, learned senior
counsel, adopted the submissions advanced by
other learned counsel.
47. Learned senior counsel, then placed reliance
on the Universal Declaration of Human Rights
adopted by the United Nations General Assembly
on 10.12.1948, to contend that the preamble
thereof recognised the inherent dignity of the
entire human family, as equal and inalienable. It
was submitted, that the charter provides for equal
rights to men and women. It was submitted, that
Article 1 thereof provides, that all human beings
were born free and equal, in dignity and rights.
Referring to Article 2, it was submitted, that there
could be no distinction/discrimination on the
basis inter alia of sex and/or religion. It was
submitted, that it was this Courts responsibility
to widen, and not to narrow, the right of equality
contained in the aforestated Declaration. The
Courts attention was also drawn to the
International Convention on Economic, Social
and Cultural Rights (ICESCR), which provided
for elimination of all forms of discrimination
against women. The instant convention was
adopted by the United Nations General Assembly
on 10.04.1979. It was submitted, that the
International Convention bill of rights for
women, was instituted on 3.9.1981, and had been
ratified by 189 States. It was pointed out, that
India had also endorsed the same. It was
submitted, that Article 1 thereof defines
discrimination, as discrimination against
women on the basis of sex. Referring to Article 2,
it was submitted, that all State parties who
ratified the above convention, condemned
discrimination against women in all its forms, and
agreed to eliminate discrimination against women
by following the principle of equality amongst
men and women, in their national Constitutions,
as well as, other legislations. It was submitted,
that Article 2 of the convention mandates, that all
States would take all steps to eliminate
discrimination against women by any person,
organisation or enterprise. It was submitted, that
Law Animated World, 15 September 2017
56
(2017) 2 LAW
insofar as the present controversy is concerned,
the provisions of the above declarations and
conventions can be relied upon, to test the
validity of talaq-e-biddat, by treating it as rule
of decision and for that matter, as law in force
(on the touchstone of Articles 14, 15 and 21 of
the Constitution). It was further submitted, that in
any case, the practice of talaq-e-biddat, clearly
violated the norms adopted by the declaration, and
conventions.
48. It was acknowledged, by learned senior
counsel, that India recognises a plural legal
system, wherein different religious communities
are permitted to be governed by different
personal laws, applicable to them. It was
submitted, that there could be no dispute, that
different religious communities can have
different laws, but the laws of each religious
community must meet the test of constitutional
validity and/or constitutional morality, inasmuch
as, they cannot be violative of Articles 14 and 15
of the Constitution. Viewed in the above context,
it was submitted, that even though matters of
faith and belief are protected by Article 25 of the
Constitution, yet law relating to marriage and
divorce were matters of faith and belief, were
also liable to be tested on grounds of public order,
morality and health, as well as, on the touchstone
of the other provisions of Part III of the
Constitution. Therefore, on a plain reading of
Article 25, according to learned senior counsel,
the right to freedom of conscience was subject to
public order, morality, health, and the other
provisions contained in Part III of the
Constitution. And as such, according to learned
counsel, the said rights must be so interpreted,
that no personal law negates any of the
postulated conditions contained in Article 25 of
the Constitution itself. It was submitted, that
Articles 14 and 15 of the Constitution were not
subject to any restrictions, including any
restriction under Article 25 or 26 of the
Constitution. It was contended, that the cardinal
principle of interpretation of the Constitution was, that
all provisions of the Constitution must be harmoniously
construed, so that there remained no conflict between
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
them. It was therefore submitted, that Articles 14
and 15 on the one hand, and Articles 25 and 26
on the other, must be harmoniously construed
with each other, to prevent discrimination against
women, in a manner as would give effect to
equality, irrespective of gender. It was contended,
that it was totally irrelevant whether personal law was
founded on custom or religion, or was codified or
uncodified, if it is law and rule of decision, it can be
challenged under Part III of the Constitution.
49. Learned senior counsel, also expressed a
personal view on the matter, namely, that divorce
altered the status of married women, which can
leave her destitute. It was asserted, that for all
other communities in India, divorce could only be
obtained from a judicial forum. And, a judgment and
decree of divorce, was a decision in rem, which alters the
legal status of the concerned person, as against the
whole world. It was submitted, that for all other
communities in India, divorce was not a matter between
the private parties, to be settled on their own. Nor
could any fatwa be issued, recognising
unilateral talaq. It was submitted, that for one
party alone, the right to annul a marriage, by a
unilateral private talaq, was clearly against public
policy, and required to be declared as impermissible in
law, and even unconstitutional. In this behalf, it was
contended, that no persons status could be
adversely altered so as to suffer civil
consequences (for the concerned person the
wife in this case) by a private declaration. It was
submitted, that annulment of the matrimonial bond
was essentially a judicial function, which must be
exercised by a judicial forum. Any divorce granted
by way of a private action, could not be
considered as legally sustainable in law. And for
the instant additional reason, it was submitted,
that unilateral talaq in the nature of talaq-e-
biddat, whereby, a Muslim womans status was
associated with adverse civil consequences, on
the unilateral determination of the male spouse,
by way of a private declaration, must be
considered (- and therefore, be held) as clearly
unsustainable in law.
50. Mr. Salman Khurshid, Senior Advocate,
appearing as an intervener, submitted, that for
searching a solution to a conflict, or for the
57
ISC-115
resolution of a concern under Islamic law,
reference had first to be made to the Quran. The
availability of an answer to the disagreement,
from the text of the Quran, has to be treated as a
final pronouncement on the issue. When there is
no clear guidance from the Quran, reference must
be made to the traditions of the Prophet
Muhammad sunna, as recorded in the
hadiths. If no guidance is available on the issue,
even from the hadiths, reference must then be
made to the general consensus of opinion
ijma. If a resolution to the dispute is found in
ijma, it should be considered as a final view on
the conflicting issue, under Islamic law. It was
submitted, that the precaution that needed to be
adopted while referring to hadiths or ijma was, that
neither of the two can derogate from the position
depicted in the Quran.
51. Learned senior counsel, then invited our
attention to different kinds of talaq, including
ila, zihar, khula and mubaarat. It was
emphasised, that the concept of talaq-e-biddat
(also described as irregular talaq), was based on
the limit of three talaqs available to a man,
namely, that a man can divorce the same wife
(woman) three times in his life time. The first two
are revocable within the period of iddat,
whereas, the third talaq was irrevocable. Learned
senior counsel, then invited the Courts attention
to verses from the Quran (- for details, refer to
Part-3 The Holy Quran, with reference to
talaq). However, during the course of his
submissions, learned senior counsel emphasized the
fact, that mere repetition of divorce thrice in one sitting,
would not result in a final severance of the matrimonial
relationship between spouses. In order to support his
above contention, reliance was placed on the
following traditions, from Sunna Muslim:
i. [3652] 1 (1471) It was narrated from Ibn Umar
that he divorced his wife while she was
menstruating, at the time of the Messenger of Allah
Umar bin Al-Khattb asked the Messenger of
Allah about that and the Messenger of Allah said to
him: Tell him to take her back, then wait until she
has become pure, then menstruated again, then
become pure again. Then if he wishes he may keep
her, or if he wishes he may divorce her before he
has intercourse with her. That is the Iddah
Law Animated World, 15 September 2017
ISC-116 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
(prescribed periods) for which Allah has
enjoined the divorce of women.
ii. [3673] 15 (1472) It was narrated that Ibn
Abbs said: During the time of the Messenger of
Allah it, Ab Bakr and the first two years of
Umars Khjlfah, a threefold divorce (giving
divorce thrice in one sitting) was counted as one.
Then Umar bin Al-Khattb said : People
have become hasty in a matter in which they
should take their time. I am thinking of
holding them to it. So he made it binding
upon them.
iii. [3674] 16 () Ibn Taws narrated from his
father that Ab As-Sahb said to Ibn Abbs: Do
you know that the threefold divorce was regarded
as one at the time of the Messenger of Allah iW and
Ab Bakr, and for three years of Umars
leadership? He said: Yes.
iv. [3675] 17 () It was narrated from Taws
that AN As-Sahb said to Ibn Abbs: Tell
us of something interesting that you know.
Wasnt the threefold divorce counted as one at the
time of the Messenger of Allah and Ab Bakr? He
said: That was so, then at the time of Umar the
people began to issue divorces frequently, so he
made it binding upon them.
v. Mahmud-b, Labeed reported that the
Messenger of Allah was informed about a
man who gave three divorces at a time to his
wife. Then he got up enraged and said, Are
you playing with the Book of Allah who is
great and glorious while I am still amongst
you? So much so that a man got up and said;
shall I not kill him.
vi. According to an Hadith quoted by M.
Mohammed Ali in Manual of Hadeth p. 2861
from Masnad of Imam Ahmad bin Hanbul 1:34,
the procedure during the time of Prophet and the
caliphate of Abu Bakr, and the first two years of
Hazrat Umar was that divorce uttered thrice was
considered as one divorce. The Umar said,
people had made haste in a matter in which
that was moderation for them, so we may
make it take effect with regard to them. So he
made it take effect to them. The Holy Quran is
however very clear on the point that such a divorce
must be deemed to be a single divorce.
vii. There is another tradition reported by
Rokanah-b. Abu Yazid that he gave his wife
Sahalmash an irrevocable divorce, and he
conveyed it to the Messenger of Allah and
Law Animated World, 15 September 2017
58
(2017) 2 LAW
said: by Allah, I have not intended but one
divorce. Then messenger of Allah asked
Have you not intended but one (divorce)?
Rokana said: By Allah, I did not intend but
one divorce. The Messenger of Allah then
returned her back to him. Afterwards he
divorced her for second time at the time of
Hadrat Omar and third time at the time of
Hadrat Osman.
viii. The Quranic philosophy of divorce is further
buttressed by the Hadith of the Prophet
wherein he warned, of all things which have
been permitted, divorce is the most hated by Allah.
The Prophet told his people: Al-Talaqu indallah-I
abghad al-mubahat, meaning Divorce is most
detestable in the sight of God; abstain from it.
ix. [2005] 43 (867) It was narrated that Jbir
bin Abdullh said: When the Messenger of
Allah delivered a Khutbah, his eyes would
turn red, his voice would become loud, and
his anger would increase, until it was as if he
was warning of an attacking army, saying:
The enemy will attack in the morning or in
the evening. He said: The Hour and I have
been sent like these two, and he held his
index finger and middle finger up together.
And he would say: The best of speech is the
Book of Allah, the best of guidance is the
guidance of Muhammad, and the worst of
matters are those which are newly-invented,
and every innovation is a going astray. Then
he would say: I am closer to every believer
than his own self. Whoever leaves behind
wealth, it is for his family; whoever leaves
behind a debt or dependants, then the
responsibility of paying it off and of caring
for them rests upon me.
x. [2006] 44 () Jbir bin Abdullh said: In
the Khutbah of the Prophet on Friday, he
would praise Allah, then he would say other
things, raising his voice a similar Hadith
(as no. 2005).
xi. [4796] 59 (1852) It was narrated that Ziyd
bin Ilqah said: I heard Arfajah say: I
heard the Messenger of Allah say: There
will be Fitnah and innovations. Whoever
wants to divide this Ummah when it is
united, strike him with the sword, no matter
who he is.
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
xii. [4797] () A similar report (as no. 2796)
was narrated from Arfajah from the Prophet,
except that in their Hadith it says: kill
him. (emphases by the Court)
Based on the above, it was submitted, that in
terms of the clear message in the Quran, the acts
and sayings of the Prophet Muhammad are to be
obeyed. Therefore, when the aforementioned
hadiths are available stating in clear terms, that
the Prophet Muhammad, considered the
pronouncement of three divorces in one sitting as
one, that should be given due expression. It was
the contention of learned senior counsel, that it is
reported, that when once news was brought to the
Prophet Muhammad, that one of his disciples had
divorced his wife, by pronouncing three talaqs at one
and the same time, the Prophet Muhammad stood up in
anger and declared that the man was making a
plaything of the words of God, and made him take back
his wife. The instance, which is supported by
authentic support through available text,
according to learned senior counsel, was sufficient
by itself, to dispose of the present controversy.
52. It was also submitted, that even if one
examines the deeds of the Prophet Muhammads
companions, it was quite clear from the hadiths,
that the same were followed during Caliph Abu
Bakrs time, and also during the first two years of
Caliph Umar. But thereafter, only to meet an
exigency, Caliph Umar started accepting the
practice of pronouncing three divorces in one
sitting, as final and irrevocable. Insofar as the
instant aspect of the matter is concerned, learned
senior counsel narrated the following
background:
(a) Caliph Umar, finding that the checks
imposed by the Prophet on the facility of
repudiation interfered with the indulgence
of their caprice, endeavoured to find an
escape from the strictness of the law, and
found in the pliability of the jurists a
loophole to effect their purpose.
(b) When the Arabs conquered Syria, Egypt,
Perisa, etc. they found women there much
better in appearance as compared to
Arabian women and hence they wanted to
marry them. But the Egyptian and Syrian
59
ISC-117
women insisted that in order to marry them,
they should divorce their existing wives
instantaneously, by pronouncing three
divorces in one sitting.
(c) The condition was readily acceptable to the
Arabs, because they knew that in Islam
divorce was permissible only twice in two
separate period of tuhr and its repetition in
one sitting was considered un-Islamic, void
and not effective. In this way, they could
not only marry these women, but also retain
their existing wives. This fact was reported
to the second Caliph Hazrat Umar.
(d) The Caliph Umar then, in order to prevent
misuse of the religion by the unscrupulous
husbands decreed, that even repetition of
the word talaq, talaq, talaq at one sitting,
would dissolve the marriage irrevocably. It
was, however, a mere administrative
measure of Caliph Umar, to meet an
emergency situation, and not to make it a
legally binding precedent permanently.
53. It was also the contention of learned senior
counsel, that Hanafi jurists who considered three
pronouncements at one sitting, as amounting to a
final divorce explained, that in those days people
did not actually mean three divorces but meant
only one divorce, and other two pronouncements
were meant merely to emphasise the first
pronouncement. But in the contemporary era,
three pronouncements were made with the
intention to effect three separate and distinct
declarations, and hence, they were not to be
counted as a singular announcement. This
interpretation of the Hanafi jurists, it was
submitted, was generally not acceptable, as it
went against the very spirit of the Quran, as well
as, the hadith which enjoin, that in case of
breach between husband and wife, it should be
referred to the arbitration, and failing an amicable
settlement, a divorce was permissible, subject to a
period of waiting or idaat, during which a
reconciliation was also to be attempted, and if
successful, the husband could take back his wife.
The main idea in the procedure for divorce, as laid
down by Islam, it was submitted, was to give the
parties an opportunity for rapprochement. If three
Law Animated World, 15 September 2017
ISC-118 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
pronouncements are treated as a mughallazah
divorce, then no opportunity is available to the
spouses, to retrieve a decision taken in haste. The
rule of talaq-e-biddat, it was pointed out, was
introduced long after the time of the Prophet. It was
submitted, that it renders the measures provided for
in the Quran against hasty action ineffective, and
thereby deprives people of a chance to change their
minds, to retrieve their mistakes and retain their wives.
54. Based on the above submissions, it was
contended, that though matters of religion have
periodically come before courts in India, and the
issues have been decided in the context of
Articles 25 and 26 of the Constitution. Raising
concerns over issues of empowerment of all
citizens and gender justice, it was submitted, had
increased the demand on courts to respond to new
challenges. The present slew of cases, it was
pointed out, was a part of that trend. It was
submitted, that the Supreme Court could not
refuse to engage itself, on the ground that the
issues involved have political overtones or
motives, and also because, they might pertain to a
narrow constitutional permissibility. It was
contended, that to refuse an invitation to examine
broader issues such as whether personal laws
were part of laws in force under Article 13, and
therefore, subject to judicial review, or whether a
uniform civil code should be enforced, would not
be appropriate. It was submitted, if the immediate
concern about triple talaq could be addressed, by
endorsing a more acceptable alternate interpretation,
based on a pluralistic reading of the sources of Islam,
i.e., by taking a holistic view of the Quran and the
hadith as indicated by various schools of thought (not
just the Hanafi school), it would be sufficient for the
purpose of ensuring justice to the petitioners, and others
similarly positioned as them.
55. In support of his above submissions, learned
senior counsel placed reliance on legislative
changes with reference to talaq-e-biddat all over
the world (- for details, refer to Part-5
Abrogation of the practice of talaq-e-biddat by
legislation, the world over, in Islamic, as well as,
non-Islamic States). Reliance was also placed on
judicial pronouncements, rendered by different
High Courts with reference to talaq-e-biddat
Law Animated World, 15 September 2017
60
(2017) 2 LAW
(- for details, refer to Part-6 Judicial
pronouncements, on the subject of talaq-e-
biddat), so as to conclude, that triple talaq
pronounced at the same time should be treated as
a single pronouncement of divorce, and
thereafter, for severing matrimonial ties, the
husband would have to complete the prescribed
procedure provided for talaq-e-ahsan/talaq-e-
hasan, and only thereafter, the parties would be
treated as divorced.
56. While advancing his aforesaid contention,
there was also a note of caution expressed by learned
senior counsel. It was pointed out, that it was not
the role of a court, to interpret Muslim personal law
Shariat. It was asserted, that under Muslim
personal law, the religious head the Imam
would be called upon, to decipher the teachings
of the Quran and the hadiths in case of a
conflict. And thereupon, the Imam had the
responsibility to resolve issues of conflict, not on
the basis of his own views, but by reading the
verses, namely, the Quran and the hadiths, and
to determine therefrom, the correct interpretation.
It was submitted, that the role of a court, not being a
body well versed in the intricacies of faith, would not
extend to an interpretation of either the Quran or the
hadiths, and therefore, talaq-e-biddat should also be
interpreted on the touchstone of reasonableness, in tune
with the prevailing societal outlook.
57. Ms. Nitya Ramakrishna, Advocate, appeared
on behalf of respondent no. 11 (in Writ Petition
(C) No.118 of 2016) - Dr. Noorjehan Safia Niaz,
who was impleaded as such, by an order dated
29.6.2016. It was submitted by learned counsel,
that talaq-e-biddat was a mode of divorce that
operated instantaneously. It was contended, that
the practice of talaq-e-biddat, was absolutely
invalid even in terms of Muslim personal law
Shariat. It was submitted, that it was not required
of this Court to strike down the practice of talaq-e-
biddat, it was submitted, that it would suffice if this
Court merely upholds the order passed by the Delhi
4
High Court in the Masroor Ahmed case , by giving a
meaningful interpretation to talaq-e-biddat,
which would be in consonance with the verses of
the Quran and the relevant hadiths.
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
58. It was also asserted by learned counsel, that
Islam from its very inception recognized rights of
women, which were not available to women of
other communities. It was pointed out, that the
right of divorce was conferred on Muslim women, far
before this right was conferred on women belonging to
other communities. It was asserted, that even in the
7th century, Islam granted women the right of
divorce and remarriage. The aforesaid legal right,
according to learned counsel, was recognized by
the British, when it promulgated the Shariat Act
in 1937. It was submitted, that through the above
legislation all customs and usages contrary to the
Muslim personal law Shariat, were
unequivocally annulled. It was therefore
contended, that while evaluating the validity of
talaq-e-biddat, this Court should be conscious
of the fact, that the Muslim personal law Shariat,
was a forward looking code of conduct, regulating
various features in the lives of those who
professed the Muslim religion.
59. It was also submitted, that the Quran did not
recognize talaq-e-biddat. It was pointed out, that
the Prophet Muhammad considered only two
forms of divorce to be valid, namely, talaq-e-
ahsan and talaq-e-hasan. Despite there being
numerous schools of Muslim jurisprudence, only
two schools recognized talaq-e-biddat as a
mode of divorce. It was submitted, that none of
the Shia schools recognized triple talaq, as a valid
process of divorce between spouses. Insofar as
talaq-e-biddat is concerned, it was asserted, that
the Quran does not approve instantaneous talaq.
During the process of initiation of divorce and its
finalization, it is necessarily to have a time lag
and a timeline. It cannot be instantaneous. It was
pointed out, that the time lag is the period of
iddat for determining whether the wife is
pregnant or not, i.e., for ascertaining the wifes
purity. But the time line, is for adopting
arbitration, to probe the possibility of
reconciliation. Talaq-e-biddat, according to
learned counsel, was a subsequent improvisation,
that had crept into the Hanafi school of Sunnis. It
was asserted, that the British judges prior to
independence, made a huge blunder by upholding
ISC-119
talaq-e-biddat triple talaq. Learned counsel
placed reliance on a number of judgments
rendered by different High Courts, culminating in
the recent judgments of three High Courts (- for
details, refer to Part-6 Judicial pronouncements,
on the subject of talaq-e-biddat).
60. Based on the above, it was asserted, that talaq-
e-biddat could not be considered as a valid mode for
severing matrimonial ties under the Muslim personal
law Shariat. In view of the above submissions,
and on a reiteration of the submissions advanced
by learned counsel who had entered appearance
prior to her, it was submitted, that the clear
preponderance of judicial opinion after
independence of India has been, that Muslim
personal law, does not approve talaq-e-biddat,
and therefore, in terms of the Muslim personal law,
this Court should declare talaq-e-biddat, as
unacceptable in law, and should also declare it as
unconstitutional.
61. Dr. Rajan Chandra and Mr. Arif Mohd. Khan,
Advocates, appeared on behalf of the Muslim
Women Personal Law Board. It was their
contention, that it has been acknowledged by all
concerned, including the AIMPLB, that talaq-e-biddat
was derogatory to the dignity of women, and that, it
breaches the concept of gender equality. It was
submitted, that the above position could easily be
remedied through judicial intervention. In this
behalf, our attention was drawn to Article 13 of
the Constitution, which mandates, that all laws in
force in the territory of India (immediately before
the commencement of the Constitution), as were
inconsistent with the Fundamental Rights
contained in Part III of the Constitution, were to
the extent of such inconsistency, to be treated as
void. The above declaration, it was pointed out,
had to be expressed through legislation, by the
Parliament, and in case the Parliament was
reluctant in bringing out such a legislation (-
presumably, for political considerations), it was
the bounden duty of this Court, to declare such
existing laws which were derogatory to the
dignity of women, and which violated the concept
of gender equality, as void, on account of their
being in conflict with the fundamental rights
Law Animated World, 15 September 2017
61
ISC-120 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
contained in Part III of the Constitution. Both
learned counsel, invited our attention to the
legislative march of events commencing from the
enactment of the Shariat Act in 1937, by the
British rulers of India, who took upon
themselves, extreme cudgels to initiate the grant
of appropriate rights to women. As also, the
enactment of the Dissolution of Muslim
Marriages Act, 1939 (again during the British
regime), whereby, Muslim women were
conferred with a right to divorce their husbands,
on eight distinct grounds. It was submitted, that
the protection of Muslim womens rights, which
needed to have continued even after
independence, had remained stagnant, resulting in
insurmountable sufferings to the Muslim women,
specially in comparison with women of other
faiths. One of the grounds of such suffering, it
was pointed out, was surely talaq-e-biddat
triple talaq, which has been a matter of
substantial furore and outcry at the hands of
Muslim women. During the course of hearing,
our attention was drawn to fundamentals of Islam
from the Quran (- for details, refer to Part-3 The
Holy Quran with reference to talaq), and
hadiths. Views of Imams on fiqh and hadith
and other relevant texts were referred to (as were
also relied upon by learned counsel who appeared
before them and have been duly referred to
above), to contend that triple talaq had never been
accepted as a valid means of divorce, even under the
Muslim personal law. Adopting the submissions of
learned counsel, who had already assisted this
Court on behalf of the petitioners, it was
submitted, that this Court should declare talaq-e-
biddat, as unconstitutional and violative of Articles 14
and 15 of the Constitution.
62. The learned Attorney General for India Mr.
Mukul Rohatgi commenced his submissions by
contending, that in this case, this Court has been
called upon to determine, whether the practice of
talaq-e-biddat was compatible with contemporary
constitutional morality and the principles of gender
equality and gender equity guaranteed under the
Constitution. In the context of the above debate, it
was submitted, that the pivotal issue that needed
Law Animated World, 15 September 2017
(2017) 2 LAW
to be answered was, whether under a secular
Constitution, Muslim women could be
discriminated against, merely by virtue of their
religious identity. And/or whether Muslim
women, could be relegated to a status
significantly more vulnerable than their
counterparts who professed other faiths - Hindu,
Christian, Zoroastrian, Buddhist, Sikh, Jain, etc..
In other words, the fundamental question for
determination by this Court, according to learned
Attorney General was, whether in a secular
democracy, religion can be a reason to deny equal status
and dignity, to Muslim women.
63. In the above context, it was pointed out, that
the fundamental right to equality guaranteed
under Article 14 of the Constitution, manifested
within its fold, equality of status. Gender
equality, gender equity and gender justice, it was
submitted, were values intrinsically entwined in
the guarantee of equality, under Article 14. The
conferment of a social status based on patriarchal
values, or a social status based on the mercy of
the men-folk, it was contended, were absolutely
incompatible with the letter and spirit of Articles
14 and 15 of the Constitution. The rights of a
Muslim woman to human dignity, social esteem
and self-worth, it was submitted, were vital facets
of a womans right to life with dignity, under
Article 21 of the Constitution. It was submitted,
that gender justice was a constitutional goal of
overwhelming importance and magnitude, without
accomplishing the same, half of the countrys citizenry,
would not be able to enjoy to the fullest - their rights,
status and opportunities. Reference was also made
to clause (e) of Article 51-A of the Constitution,
which is extracted below:
(e) to promote harmony and the spirit of common
brotherhood amongst all the people of India
transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to
the dignity of women; (emphasis by the Court)
It was accordingly asserted, that Muslim women
could not be subjected to arbitrary and unilateral
whims of their husbands, as in the case of divorce
by triple talaq amongst Shia [sic - Sunni] Muslims
belonging to the Hanafi school.
62
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
64. It was submitted, that gender equality and the
dignity of women, were non-negotiable. These rights
were necessary, not only to realize the aspirations of
every individual woman, who is an equal citizen of this
country, but also, for the larger well being of society and
the progress of the nation, one half of which is made up
by women. It was submitted, that women deserved
to be equal participants in the development and
advancement of the worlds largest democracy,
and any practice which denudes the status of an
inhabitant of India, merely by virtue of the
religion he/she happens to profess, must be
considered as an impediment to that larger goal.
In this behalf, reliance was placed on C. Masilamani
Mudaliar v. Idol of Sri Swaminathaswami
28
Thirukoil , wherein a 3-Judge Bench of this
Court observed as under:
15. It is seen that if after the Constitution came into
force, the right to equality and dignity of person
enshrined in the Preamble of the Constitution,
Fundamental Rights and Directive Principles which are
a trinity intended to remove discrimination or disability
on grounds only of social status or gender, removed the
pre-existing impediments that stood in the way of female
or weaker segments of the society. In S.R. Bommai v.
Union of India [(1994) 3 SCC 1] this Court held
that the Preamble is part of the basic structure of
the Constitution. Handicaps should be removed
only under rule of law to enliven the trinity of
justice, equality and liberty with dignity of
person. The basic structure permeates equality of
status and opportunity. The personal laws conferring
inferior status on women is anathema to equality.
Personal laws are derived not from the Constitution but
from the religious scriptures. The laws thus derived must
be consistent with the Constitution lest they become void
under Article 13 if they violate fundamental rights.
Right to equality is a fundamental right.
16. The General Assembly of the United Nations
adopted a declaration on 4-12-1986 on The
Development of the Right to Development in which
India played a crusading role for its adoption and
ratified the same. Its preamble recognises that all
human rights and fundamental freedoms are indivisible
and interdependent. All Nation States are
concerned at the existence of serious obstacles to
development and complete fulfilment of human
beings, denial of civil, political, economic, social
28
AIR 1996 SC 1697
63
ISC-121
and cultural rights. In order to promote
development, equal attention should be given to
the implementation, promotion and protection of
civil, political, economic, social and political
rights.
17. Article 1(1) assures right to development an
inalienable human right, by virtue of which every
person and all people are entitled to participate
in, contribute to, and enjoy economic, social,
cultural and political development in which all
human rights and fundamental freedoms can be
fully realised. Article 6(1) obligates the State to
observance of all human rights and fundamental
freedoms for all without any discrimination as to
race, sex, language or religion. Sub-article (2)
enjoins that equal attention and urgent
consideration should be given to implement,
promotion and protection of civil, political,
economic, social and political rights. Sub-article
(3) thereof enjoins that:
State should take steps to eliminate obstacle to
development, resulting from failure to observe
civil and political rights as well as economic,
social and economic rights. Article 8 casts duty
on the State to undertake, necessary measures
for the realisation of right to development and
ensure, inter alia, equality of opportunity for all
in their access to basic resources and
distribution of income.
Effective measures should be undertaken to
ensure that women have an active role in the
development process. Appropriate economic and
social reforms should be carried out with a view
to eradicate all social injustice.
18. Human rights are derived from the dignity
and worth inherent in the human person. Human
rights and fundamental freedom have been
reiterated by the Universal Declaration of Human
Rights. Democracy, development and respect for
human rights and fundamental freedoms are
interdependent and have mutual reinforcement.
The human rights for women, including girl child are,
therefore, inalienable, integral and indivisible part of
universal human rights. The full development of
personality and fundamental freedoms and equal
participation by women in political, social, economic and
cultural life are concomitants for national development,
social and family stability and growth, culturally,
socially and economically. All forms of discrimination on
grounds of gender is violative of fundamental freedoms
and human rights.
Law Animated World, 15 September 2017
ISC-122 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
Reference was also made to Anuj Garg v. Hotel
29
Association of India , wherein it was submitted,
that this Court had emphasized on the value of
gender equality, and the need to discard
patriarchal mindset. For arriving at the above
conclusion, it was submitted, that this Court had
relied upon international jurisprudence, to strike
down a law which debarred women from
employment on the pretext that the object of the
law was, to afford them protection. The Court
held that it is for the court to review that the
majoritarian impulses rooted in moralistic
tradition do not impinge upon individual
autonomy (of the women). The Court also
quoted from a judgment of the U.S. Supreme
Court where discrimination was rationalized by
an attitude of romantic paternalism which, in
practical effect, put women, not on a pedestal, but
in a cage. Reference was also made to Vishaka
30
v. State of Rajasthan , wherein, in the context of
protection of women against sexual harassment at
the workplace, this Court underlined the right of
women to a life with dignity. Additionally, our
attention was drawn to the Charu Khurana case15,
wherein it was concluded, that the sustenance of
gender justice is the cultivated achievement of
intrinsic human rights and that there cannot be
any discrimination solely on the ground of
gender. The learned Attorney General also cited,
31
Githa Hariharan v. Reserve Bank of India ,
wherein this Court had the occasion to interpret
the provisions of the Hindu Minority and
Guardianship Act, 1956. It was submitted, that
this Court in the above judgment emphasized the
necessity to take measures to bring domestic law
in line with international conventions, so as to
eradicate discrimination of all forms, against
women. It was submitted, that Articles 14, 15 and 21
constituted an inseparable part of the basic structure of
the Constitution. These values the right to equality,
non-discrimination and the right to live life with dignity,
it was emphasized, formed the bedrock of the
29
AIR 2008 SC 663
30
AIR 1997 SC 3011
31
AIR 1999 SC 1149
Law Animated World, 15 September 2017
64
(2017) 2 LAW
Constitution. Gender equality and dignity for women, it
was pointed out, was an inalienable and inseparable
part of the basic structure of the Constitution. Since
women transcend all social barriers, it was
submitted, that the most fundamental facet of equality
under the Constitution was gender equality, and gender
equity.
65. The learned Attorney General also pointed
out, that a large number of Islamic theocratic
countries and countries with overwhelmingly
large Muslim populations, had undertaken
significant reforms including the practice of triple
talaq. These societies had accepted reform, as
being consistent with the practice of Islam (- for
details, refer to Part-5 Abrogation of the
practice of talaq-e-biddat by legislation, the
world over, in Islamic, as well as, non-Islamic
States). The paradox was that, Muslim women in
India, were more vulnerable in their social status as
against women even in predominantly Islamic States,
even though India is a secular country. It was
submitted, that the position of Indian Muslim women
was much worst, than Muslim women who live in
theocratic societies, or countries where Islam is the State
religion. It was contended, that the impugned
practice was repugnant to the guarantee of secularism,
which it was pointed out, was an essential feature of the
Constitution. Perpetuation of regressive or unjust
practices in the name of religion, it was submitted,
was anathema to a secular Constitution, which
guarantees non-discrimination on grounds of religion. It
was also submitted, that in the context of gender
equality and gender equity, the larger goal of the
State was, to strive towards the establishment of a
social democracy, where each one was equal to
all others. Reference in this behalf was made to
the closing speech on the draft Constitution on
25th November, 1949, of Dr. Ambedkar who had
stated: What we must do is not to be attained
with mere political democracy; we must make out
political democracy and a social democracy as
well. Political democracy cannot last unless there
lies on the base of it a social democracy. A
social democracy has been described as A way
of life which recognizes liberty, equality and
fraternity as principles of life. It was therefore
submitted, that in order to achieve social democracy,
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
and in order to provide social and economic justice
(envisaged in the preamble), namely, goals articulated
in the fundamental rights and directive principles, and
in particular, Articles 14, 15, 16, 21, 38, 39 and 46, had
to be given effect to. In the instant context, the
learned Attorney General placed reliance on
32
Valsamma Paul v. Cochin University32 , and drew
the Courts attention to the following:
16. The Constitution seeks to establish secular socialist
democratic republic in which every citizen has equality
of status and of opportunity, to promote among the
people dignity of the individual, unity and integrity of
the nation transcending them from caste, sectional,
religious barriers fostering fraternity among them in an
integrated Bharat. The emphasis, therefore, is on a
citizen to improve excellence and equal status
and dignity of person. With the advancement of
human rights and constitutional philosophy of
social and economic democracy in a democratic
polity to all the citizens on equal footing,
secularism has been held to be one of the basic
features of the Constitution (Vide: S.R. Bommai v.
Union of India, (1994) 3 SCC 1 and egalitarian
social order is its foundation. Unless free mobility of
the people is allowed transcending sectional, caste,
religious or regional barriers, establishment of secular
socialist order becomes difficult. In State of Karnataka
v. Appu Balu Ingale & Ors., AIR (1993) SC 1126,
this Court has held in paragraph 34 that judiciary
acts as a bastion of the freedom and of the rights
of the people. The Judges are participants in the living
stream of national life, steering the law between the
dangers of rigidity and formlessness in the seemless web
of life. Judge must be a jurist endowed with the
legislator's wisdom, historian's search for truth,
prophet's vision, capacity to respond to the needs of the
present, resilience to cope with the demands of the
future to decide objectively, disengaging himself/herself
from every personal influence or predilections. The
Judges should adapt purposive interpretation of
the dynamic concepts under the Constitution and
the act with its interpretive armoury to articulate
the felt necessities of the time. Social legislation
is not a document for fastidious dialects but
means of ordering the life of the people. To
construe law one must enter into its spirit, its setting and
history. Law should be capable to expand freedom of the
people and the legal order can weigh with utmost equal
care to provide the underpinning of the highly
inequitable social order. Judicial review must be
32
AIR 1996 SC 1011
65
ISC-123
exercised with insight into social values to supplement
the changing social needs. The existing social inequalities
or imbalances are required to be removed readjusting the
social order through rule of law. (Courts emphasis)
The learned Attorney General then submitted,
that in paragraph 20 of the Valsamma Paul case20,
it was noted, that various Hindu practices which
were not in tune with the times, had been done
away with, in the interest of promoting equality
and fraternity. In paragraph 21 of the above
judgment, this Court had emphasized the need to
divorce religion from personal law. And in
paragraph 22, a mention was made about the need
to foster a national identity, which would not deny
pluralism of Indian culture, but would rather preserve
it. Relevant extracts of the aforesaid judgment
relied upon during the course of hearing, are
reproduced herein below:
21. The Constitution through its Preamble,
Fundamental Rights and Directive Principles created
secular State based on the principle of equality and non-
discrimination striking a balance between the rights of
the individuals and the duty and commitment of the
State to establish an egalitarian social order. Dr. K.M.
Munshi contended on the floor of the Constituent
Assembly that "we want to divorce religion from
personal law, from what may be called social
relations, or from the rights of parties as regards
inheritance or succession. What have these
things got to do with religion, I fail to
understand? We are in a stage where we must
unify and consolidate the nation by every means
without interfering with religious practices. If,
however, in the past, religious practices have been so
construed as to cover the whole field of life, we have
reached a point when we must put our foot down and
say that these matters are not religion, they are purely
matters for secular legislation. Religion must be
restricted to spheres which legitimately appertain to
religion, and the rest of life must be regulated, unified
and modified in such a manner that we may evolve, as
early as possible, a strong and consolidated nation"
(Vide: Constituent Assembly Debates, Vol. VII
356-8).
22. In the onward march of establishing an
egalitarian secular social order based on equality
and dignity of person, Article 15(1) prohibits
discrimination on grounds of religion or caste
identities so as to foster national identity which
does not deny pluralism of Indian culture but
rather to preserve it. Indian culture is a product
Law Animated World, 15 September 2017
ISC-124 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
or blend of several strains or elements derived
from various sources, in spite of inconsequential
variety of forms and types. There is unity of spirit
informing Indian culture throughout the ages. It is this
underlying unity which is one of the most remarkable
everlasting and enduring feature of Indian culture that
fosters unity in diversity among different populace. This
generates and fosters cordial spirit and toleration that
make possible the unity and continuity of Indian
traditions. Therefore, it would be the endeavour of
everyone to develop several identities which constantly
interact and overlap, and prove a meeting point for all
members of different religious communities, castes,
sections, sub-sections and regions to promote rational
approach to life and society and would establish a
national composite and cosmopolitan culture and way of
life. (emphasis by the Court)
66. It was also asserted, that patriarchal values and
traditional notions about the role of women in society,
were an impediment to the goal for achieving social
democracy. In this behalf it was contended, that
gender inequity impacts not only women, but had a
ripple effect on the rest of the community, preventing it
from shaking out of backwardness and partaking to the
full, liberties guaranteed under the Constitution.
Citizens from all communities, it was submitted,
had the right to the enjoyment of all the
constitutional guarantees, and if some sections of
society were held back, it was likely to hold back
the community at large, resulting in a lopsided
development, with pockets of social
backwardness. According to the learned Attorney
General, this kind of lopsided development was
not in the larger interest of the integrity and
development of the nation. It was submitted, that
secularism, equality and fraternity being the overarching
guiding principles of all communities, must be given
effect to. This would move the entire citizenry
forward, guaranteeing to women equal rights, and
at the same time, preserving diversity and
plurality.
67. It was the emphatic assertion of the learned
Attorney General, that freedom of religion was
subservient to fundamental rights. It was contended
in this behalf, that the words employed in Article
25(1) of the Constitution, which conferred the
right to practice, preach and propagate religion
were subject to the provisions of this Part,
which meant that the above rights are subject to
Articles 14 and 15, which guarantee equality and
Law Animated World, 15 September 2017
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(2017) 2 LAW
non-discrimination. In other words, under Indias
secular Constitution, the right to freedom of
religion was subject to, and in that sense,
subservient to other fundamental rights such as
the right to equality, the right to non-
discrimination, and the right to life with dignity.
In this behalf reference was made to Sri
33
Venkataramana Devaru v. State of Mysore . In this
judgment, it was submitted, that this Court
considered the meaning of the phrase subject to
the provisions of this Part in Article 25(1) to
conclude, that the other provisions of the Part
would prevail over and would control the right
conferred by Article 25(1).
68. In the above context it was also submitted,
that the freedom of religion, expressed in Article
25 of the Constitution was, not confined to the
male gender. Article 25 is extracted below:
25. Freedom of conscience and free profession, practice
and propagation of religion.
(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.
(2) Nothing in this article shall affect the
operation of any existing law or prevent the
State from making any law
(a) regulating or restricting any economic,
financial, political or other secular
activity which may be associated with
religious practice;
(b) providing for social welfare and reform
or the throwing open of Hindu religious
institutions of a public character to all
classes and sections of Hindus.
Explanation I. The wearing and carrying of
kirpans shall be deemed to be included in the
profession of the Sikh religion.
Explanation II. In sub-clause (b) of clause
reference to Hindus shall be construed as
including a reference to persons professing the
Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall be
construed accordingly.
33
AIR 1958 SC 255
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
It was highlighted, that it was also necessary to
note, that Article 25(1) provides that all persons
were equally entitled to the freedom of
conscience, and the right to profess, practice and
propagate religion. This, according to the learned
Attorney General, should be understood to mean,
that the rights conferred by this article were equally
available to women, and were not confined to men
alone. Therefore, it was contended, that any
patriarchal or one sided interpretation of religion (or a
practice of religion), ought not to be countenanced.
69. It was emphasised by the learned Attorney
General, that it was necessary to draw a line between
religion per se, and religious practices. It was
submitted, that the latter were not protected under
Article 25. Religion, according to the learned
Attorney General, has been explained by this
Court in A.S. Narayana Deekshitulu v. State of
34
A.P.34 , as under:
86. A religion undoubtedly has its basis in a system of
beliefs and doctrine which are regarded by those who
profess religion to be conducive to their spiritual well-
being. A religion is not merely an opinion, doctrine or
belief. It has outward expression in acts as well. It is not
every aspect of religion that has been safeguarded by
Articles 25 and 26 nor has the Constitution provided
that every religious activity cannot be interfered with.
Religion, therefore, cannot be construed in the context of
Articles 25 and 26 in its strict and etymological sense.
Every religion must believe in a conscience and ethical
and moral precepts. Therefore, whatever binds a man to
his own conscience and whatever moral or ethical
principles regulate the lives of men believing in that
theistic, conscience or religious belief that alone can
constitute religion as understood in the Constitution
which fosters feeling of brotherhood, amity, fraternity
and equality of all persons which find their foothold in
secular aspect of the Constitution. Secular activities
and aspects do not constitute religion which
brings under its own cloak every human activity.
There is nothing which a man can do, whether in
the way of wearing clothes or food or drink,
which is not considered a religious activity.
Every mundane or human activity was not
intended to be protected by the Constitution
under the guise of religion. The approach to
construe the protection of religion or matters of religion
or religious practices guaranteed by Articles 25 and 26
34
AIR 1996 SC 1765
67
ISC-125
must be viewed with pragmatism since by the very
nature of things, it would be extremely difficult, if not
impossible, to define the expression religion or matters
of religion or religious belief or practice.
87. In pluralistic society like India, as stated
earlier, there are numerous religious groups who
practise diverse forms of worship or practise
religions, rituals, rites etc., even among Hindus,
different denominants and sects residing within
the country or abroad profess different religious
faiths, beliefs, practices. They seek to identify
religion with what may in substance be mere
facets of religion. It would, therefore, be difficult to
devise a definition of religion which would be regarded
as applicable to all religions or matters of religious
practices. To one class of persons a mere dogma or
precept or a doctrine may be predominant in the matter
of religion; to others, rituals or ceremonies may be
predominant facets of religion; and to yet another class
or persons a code of conduct or a mode of life may
constitute religion. Even to different persons
professing the same religious faith some of the
facets or religion may have varying significance.
It may not be possible, therefore, to devise a
precise definition of universal application as to
what is religion and what are matters of religious
belief or religious practice. That is far from
saying that it is not possible to state with
reasonable certainty the limits within which the
Constitution conferred a right to profess religion.
Therefore, the right to religion guaranteed under Article
25 or 26 is not an absolute or unfettered right to
propagating religion which is subject to legislation by
the State limiting or regulating any activity economic,
financial, political or secular which are associated with
religious belief, faith, practice or custom. They are
subject to reform on social welfare by appropriate
legislation by the State. Though religious practices
and performances of acts in pursuance of religious belief
are as much a part of religion as faith or belief in a
particular doctrine, that by itself is not conclusive or
decisive. What are essential parts of religion or religious
belief or matters or religion and religious practice is
essentially a question of fact to be considered in the
context in which the question has arisen and the
evidence factual or legislative or historic presented in
that context is required to be considered and a decision
reached. (emphasis by Court)
In order to support the above view, the Courts
attention was also drawn to the Javed case10,
wherein this Court observed as under:
Law Animated World, 15 September 2017
ISC-126 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
49. In State of Bombay v. Narasu Appa Mali [AIR
1952 Bom 84:53 Cri LJ 354] the constitutional
validity of the Bombay Prevention of Hindu
Bigamous Marriages Act (25 of 1946) was
challenged on the ground of violation of Articles
14, 15 and 25 of the Constitution. A Division
Bench, consisting of Chief Justice Chagla and
Justice Gajendragadkar (as His Lordship then
was), held:
A sharp distinction must be drawn between
religious faith and belief and religious practices.
What the State protects is religious faith and belief.
If religious practices run counter to public order,
morality or health or a policy of social welfare upon
which the State has embarked, then the religious
practices must give way before the good of the
people of the State as a whole.
50. Their Lordships quoted from American
decisions that the laws are made for the
governance of actions, and while they cannot
interfere with mere religious beliefs and
opinions, they may with practices. Their
Lordships found it difficult to accept the
proposition that polygamy is an integral part of
Hindu religion though Hindu religion recognizes
the necessity of a son for religious efficacy and
spiritual salvation. However, proceeding on an
assumption that polygamy is a recognized
institution according to Hindu religious practice,
Their Lordships stated in no uncertain terms:
The right of the State to legislate on
questions relating to marriage cannot be
disputed. Marriage is undoubtedly a social
institution an institution in which the State is
vitally interested. Although there may not be
universal recognition of the fact, still a very
large volume of opinion in the world today
admits that monogamy is a very desirable and
praiseworthy institution. If, therefore, the
State of Bombay compels Hindus to become
monogamists, it is a measure of social reform,
and if it is a measure of social reform then the
State is empowered to legislate with regard to
social reform under Article 25(2)(b)
notwithstanding the fact that it may interfere
with the right of a citizen freely to profess,
practise and propagate religion.
It was further submitted, that practices such as
polygamy cannot be described as being sanctioned
by religion, inasmuch as, historically polygamy
Law Animated World, 15 September 2017
68
(2017) 2 LAW
prevailed across communities for several centuries,
including the ancient Greeks and Romans, Hindus,
Jews and Zoroastrians. It was pointed out, that
polygamy had less to do with religion, and more to
do with social norms of that time. In the Quran as
well, it was contended, it appears that the
prevalence (or perhaps, rampant practice) of
polygamy in pre-Islamic society, was sought to be
regulated and restricted, so as to treat women better
than they were treated in pre-Islamic times. It was
submitted, that the practice of polygamy was a
social practice rather than a religious one, and
therefore, would not be protected under Article 25.
It was sought to be explained, that talaq-e-biddat
was similarly a practice never clearly recognized,
nor was it seen with favour, and needed to be
examined in the background of the above narrated
historic position.
70. In order to be able to seek interference, with
reference to the issue canvassed, and in order to
surmount the legal object in advancing his
contentions, the learned Attorney General pointed
out, that there was an apparent misconstruction,
which had led to the conclusions drawn by the
Bombay High Court, in State of Bombay v. Narasu
Appa Mali3535. It was submitted, that personal
laws ought to be examined, in the light of the
overarching goal of gender justice, and dignity of
women. The underlying idea behind the
preservation of personal laws was, to safeguard
the plurality and diversity among the people of
India. However, the sustenance of such diverse
identities, according to the learned Attorney
General, cannot be a pretext for denying women
their rightful status and gender equality. It was
submitted, that personal law was a part and parcel of
law within the meaning of Article 13. And therefore,
any such law (personal law) which was
inconsistent with fundamental rights, would have to
be considered void. It was further submitted, that
the interpretation of the Bombay High Court in the
Narasu Appa Mali case23, to the effect that Article 13 of
the Constitution, would not cover personal laws
warranted reconsideration. Firstly, it was contended,
that a reading of the plain language adopted in Article 13
would clearly establish that personal law, as well as
35
AIR 1952 Bombay 84
(2017) 2 LAW Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
customs and usages, were covered within the scope of
law. Article 13 reads as under:
13. Laws inconsistent with or in derogation of
the fundamental rights.
(1) All laws in force in the territory of India
immediately before the commencement of this
Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the
extent of such inconsistency, be void.
(2) The State shall not make any law which takes
away or abridges the rights conferred by this Part
and any law made in contravention of this clause
shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,
(a) law includes any Ordinance, order, bye law,
rule, regulation, notification, custom or usage
having in the territory of India the force of
law;
(b) laws in force includes laws passed or made
by a Legislature or other competent authority
in the territory of India before the
commencement of this Constitution and not
previously repealed, notwithstanding that any
such law or any part thereof may not be then
in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any
amendment of this Constitution made under
article 368.
It was submitted, that the meaning of law as defined in
clauses (2) and (3) of Article 13 is not exhaustive, and
should be read as if it encompassed within its scope,
personal law as well. It was submitted, that under
clause (2) of Article 246 of the Constitution,
Parliament and State Legislatures had the power to
make laws, also on the subject enumerated in entry
5 of the Concurrent List in the Seventh Schedule,
pertaining to Marriage and divorce; infants and
minors; adoption; wills; intestacy and succession;
joint family and partition; all matters in respect of
which parties in judicial proceedings were
immediately before the commencement of this
Constitution subject to their personal law. Since
the subjects expressed in entry 5 aforementioned,
were relatable to personal law, therefore,
personal law, according to the learned Attorney
General, was liable to include law within the
meaning of sub-clause (a) of clause (3) of Article
13 of the Constitution. The observations of the
Bombay High Court in the Narasu Appa Mali case23,
it was contended, were contrary to the plain
69
ISC-127
language of Article 13. Secondly, it was submitted,
the plain language of Article 13(3)(a) which defines law
as including anycustom or usage having in the territory
of India the force of law, left no room for any doubt, on
the issue. It was pointed out, that the observations in
23
the Narasu Appa Mali case , were in the nature of
obiter, and could not be considered as the ratio of the
judgment. Further more, the said judgment, being a
judgment of a High Court, was not binding on this
Court. Without prejudice to the above, according to
the learned Attorney General, the said practices under
challenge had been incorporated into the Muslim personal
law by the Shariat Act. It was reasoned, that the
Shariat Act, was clearly a law in force, within the
meaning of Article 13(3)(b). It was submitted, that the
petitioner has challenged Section 2 of the aforesaid
Act, insofar as it recognises and validates the
practices of triple talaq or talaq-e-biddat (nikah
halala and polygamy). Therefore, even assuming
(for the sake of argument), that these practices do
not constitute customs, the same were nonetheless
manifestly covered by Article 13.
71. It was acknowledged, that the legal position
expressed in the Narasu Appa Mali case23 had been
affirmed by this Court, on various occasions. Rather
than recording the learned Attorney Generals
submissions in our words, we would extract the
position acknowledged in the written submissions
filed on behalf of the Union of India, in this matter,
below:
(e) Pertinently, despite this ruling that was later
followed in Krishna Singh v. Mathura Ahir, (1981) 3
SCC 689 and Maharshi Avdhesh v. Union of India,
(1994) Supp (1) SCC 713, the Supreme Court has
actively tested personal laws on the touchstone of
fundamental rights in cases such as Daniel Latifi v.
Union of India, (2001) 7 SCC 740 (5-Judge Bench),
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2
SCC 556 (5-Judge Bench), John Vallamatom v.
Union of India, (2003) 6 SCC 611 (3-Judge Bench)
etc. Furher, in Masilamani Mudaliar v. Idol of Sri
Swaminathaswami Thirukoil, (1996) 8 SCC 525, ..
However, reference was nevertheless made to the
16
Masilamani Mudaliar case , wherein, it was
submitted, that this Court had adopted a contrary
position to the Narasu Appa Mali case23 and had
held, But the right to equality, removing
handicaps and discrimination against a Hindu
female by reason of operation of existing law
Law Animated World, 15 September 2017
ISC-128 Shayara Bano v. Union of India & Ors. [IND-SC: per J.C. Khehar, CJI]
should be in conformity with the right to equality
enshrined in the Constitution and the personal
law also needs to be in conformity with the
constitutional goal. It was also asserted, that this
Court had further held, Personal laws are derived
not from the Constitution but from the religious
scriptures. The laws thus derived must be consistent
with the Constitution lest they become void under
Article 13 if they violate fundamental rights. It is
significant to note, that this case concerned the
inheritance rights of Hindu women. In view of
the aforesaid, it was submitted, that the
observations in the Narasu Appa Mali case23, that
personal law was not covered under Article 13,
was incorrect and not binding upon this Court.
72. It was also contended, that the Constitution
undoubtedly accords guarantee of faith and belief to
every citizen, but every practice of faith could not be
held to be an integral part of religion and belief. It was
therefore submitted, that every sustainable (and
enforceable) religious practice, must satisfy the
overarching constitutional goal, of gender
equality, gender justice and dignity. It was
asserted, that the practice of talaq-e-biddat,
could not be regarded as a part of any essential
religious practice, and as such, could not be
entitled to the protection of Article 25. The test of
what amounts to an essential religious practice, it
was submitted, was laid down in a catena of
judgments including Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra
36
Thirtha Swamiar of Shirur Mutt , wherein this
Court held as under:
20. The contention formulated in such broad
terms cannot, we think, be supported. In the first
place, what constitutes the essential part of a
religion is primarily to be ascertained with
reference to the doctrines of that religion itself. If
the tenets of any religious sect of the Hindus prescribe
that offerings of food should be given to the idol at
particular hours of the day, that periodical ceremonies
should be performed in a certain way at certain periods
of the year or that there should be daily recital of sacred
texts or oblations to the sacred fire, all these would be
36
AIR 1954 SC 282
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(2017) 2 LAW
regarded as parts of religion and the mere fact that they
involve expenditure of money or employment of priests
and servants or the use of marketable commodities
would not make them secular activities partaking of a
commercial or economic character; all of them are
religious practices and should be regarded as matters of
religion within the meaning of Article 26(b). What
Article 25(2)(a) contemplates is not regulation by
the State of religious practices as such, the
freedom of which is guaranteed by the
Constitution except when they run counter to
public order, health and morality but regulation
of activities which are economic, commercial or
political in their character though they are
associated with religious practices. We may refer
in this connection to a few American and Australian
cases, all of which arose out of the activities of persons
connected with the religious association known as
Jehova's Witnesses. This association of persons loosely
organised throughout Australia, U.S.A. and other
countries regard the literal interpretation of the Bible as
fundamental to proper religious beliefs. This belief in
the supreme authority of the Bible colours many of their
political ideas. They refuse to take oath of allegiance to
the king or other constituted human authority and even
to show respect to the national flag, and they decry all
wars between nations and all kinds of war activities. In
1941 a company of Jehova's Witnesses incorporated
in Australia commenced proclaiming and teaching
matters which were prejudicial to war activities and the
defence of the Commonwealth and steps were taken
against them under the National Security Regulations of
the State. The legality of the action of the Government
was questioned by means of a writ petition before the
High Court and the High Court held that the action of
the Government was justified and that Section 116,
which guaranteed freedom of religion under the
Australian Constitution, was not in any way infringed
by the National Security Regulations (Vide Adelaide
Company v. Commonwealth, 67 CLR 116, 127).
These were undoubtedly political activities
though arising out of religious belief entertained
by a particular community. In such cases, as Chief
Justice Latham pointed out, the provision for protection
of religion was not an absolute protection to be
interpreted and applied independently of other
provisions of the Constitution. These privileges must be
reconciled with the right of the State to employ the
sovereign power to ensure peace, security and orderly
living without which constitutional guarantee of civil
liberty would be a mockery. (emphasis by the Court)
(to be continued)
***
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
(Carried from p. 30)
88. In the present case, the applicants were
claiming damages on the basis of alleged
negligence, a tort in English law which is largely
developed through the case-law of the domestic
courts. It is agreed by the parties that there was no
previous court decision which indicated that
liability existed in respect of damage caused
negligently by a local authority in carrying out its
child protection duties. It was in the applicants'
case that the domestic courts were called on to
rule whether this situation fell within one of the
existing categories of negligence liability, or
whether any of the categories should be extended
to this situation (see paragraphs 57-65 above).
89. The Court is satisfied that at the outset of the
proceedings there was a serious and genuine dispute
about the existence of the right asserted by the
applicants under the domestic law of negligence as
shown, inter alia, by the grant of legal aid to the
applicants and the decision of the Court of
Appeal that their claims merited leave to appeal
to the House of Lords. The Government's
submission that there was no arguable (civil)
right for the purposes of Article 6 once the
House of Lords had ruled that no duty of care
arose has relevance rather to any claims which
were lodged or pursued subsequently by other
plaintiffs. The House of Lords' decision did not
remove, retrospectively, the arguability of the
applicants' claims (see Le Calvez v. France,
judgment of 29 July 1998, Reports 1998-V, pp.
1899-900, 56). In such circumstances, the Court
finds that the applicants had, on at least arguable
grounds, a claim under domestic law.
90. Article 6 was, therefore, applicable to the
proceedings brought by these applicants alleging
negligence by the local authority. The Court must,
therefore, examine whether the requirements of
Article 6 were complied with in those
proceedings.
2. Compliance with Article 6 of the Convention
91. The Court, in Golder v. the United Kingdom
(judgment of 21 February 1975, Series A no. 18,
pp. 13-18, 28-36), held that the procedural
guarantees laid down in Article 6 concerning fairness,
publicity and expeditiousness would be meaningless if
71
F-131
there were no protection of the pre-condition for the
enjoyment of those guarantees, namely, access to a
court. It established this as an inherent aspect of
the safeguards enshrined in Article 6, referring to
the principles of the rule of law and the avoidance
of arbitrary power which underlie much of the
Convention.
92. Article 6 1 may ... be relied on by anyone
who considers that an interference with the
exercise of one of his (civil) rights is unlawful
and complains that he has not had the possibility
of submitting that claim to a tribunal meeting the
requirements of Article 6 1 (see Le Compte,
Van Leuven and De Meyere v. Belgium, judgment
of 23 June 1981, Series A no. 43, p. 20, 44).
Where there is a serious and genuine dispute as to
the lawfulness of such an interference, going
either to the very existence or the scope of the
asserted civil right, Article 6 1 entitles the
individual to have this question of domestic law
determined by a tribunal (see Sporrong and
Lnnroth v. Sweden, judgment of 23 September
1982, Series A no. 52, p. 30, 81; see also Tre
Traktrer AB v. Sweden, judgment of 7 July
1989, Series A no. 159, p. 18, 40).
93. The right is not absolute, however. It may be
subject to legitimate restrictions such as statutory
limitation periods, security for costs orders,
regulations concerning minors and persons of
unsound mind (see Stubbings and Others v. the
United Kingdom, judgment of 22 October
1996, Reports 1996-IV, pp. 1502-03, 51-
52; Tolstoy Miloslavsky v. the United Kingdom,
judgment of 13 July 1995, Series A no. 316-B,
pp. 80-81, 62-67; and Golder, cited above, p.
19, 39). Where the individual's access is limited
either by operation of law or in fact, the Court will
examine whether the limitation imposed impaired the
essence of the right and, in particular, whether it
pursued a legitimate aim and there was a reasonable
relationship of proportionality between the means
employed and the aim sought to be achieved
(see Ashingdane v. the United Kingdom,
judgment of 28 May 1985, Series A no. 93, pp.
24-25, 57). If the restriction is compatible with these
principles, no violation of Article 6 will arise.
Law Animated World, 15 September 2017
F-132 Z & Others v. The United Kingdom [ECHR-Strasbourg]
94. It is contended by the applicants in this case
that the decision of the House of Lords, finding
that the local authority owed no duty of care,
deprived them of access to a court as it was
effectively an exclusionary rule, or an immunity
from liability, which prevented their claims from
being decided on the facts.
95. The Court observes, firstly, that the applicants
were not prevented in any practical manner from
bringing their claims before the domestic courts.
Indeed, the case was litigated with vigour up to
the House of Lords, the applicants being provided
with legal aid for that purpose. Nor is it that any
procedural rules or limitation periods had been
relied on. The domestic courts were concerned
with the application brought by the defendants to
have the case struck out as disclosing no
reasonable cause of action. This involved the pre-
trial determination of whether, assuming the facts
of the applicants' case as pleaded were true, there
was a sustainable claim in law. The arguments
before the courts were, therefore, concentrated on the
legal issues, primarily whether a duty of care in
negligence was owed to the applicants by the local
authority.
96. Moreover, the Court is not persuaded that the
House of Lords' decision that, as a matter of law, there
was no duty of care in the applicants' case may be
characterised as either an exclusionary rule or an
immunity which deprived them of access to a court. As
Lord Browne-Wilkinson explained in his leading
speech, the House of Lords was concerned with
the issue whether a novel category of negligence,
that is a category of cases in which a duty of care
had not previously been held to exist, should be
developed by the courts in their law-making role
under the common law (see paragraph 46 above).
The House of Lords, after weighing in the
balance the competing considerations of public
policy, decided not to extend liability in
negligence into a new area. In so doing, it
circumscribed the range of liability under tort
law.
97. That decision did end the case, without the
factual matters being determined on the evidence.
However, if as a matter of law, there was no basis
Law Animated World, 15 September 2017
(2017) 2 LAW
for the claim, the hearing of evidence would have
been an expensive and time-consuming process
which would not have provided the applicants
with any remedy at its conclusion. There is no
reason to consider the striking-out procedure
which rules on the existence of sustainable causes
of action as per se offending the principle of
access to a court. In such a procedure, the
plaintiff is generally able to submit to the court
the arguments supporting his or her claims on the
law and the court will rule on those issues at the
conclusion of an adversarial procedure (see
paragraphs 66-68 above).
98. Nor is the Court persuaded by the suggestion
that, irrespective of the position in domestic law,
the decision disclosed an immunity in fact or
practical effect due to its allegedly sweeping or
blanket nature. That decision concerned only one
aspect of the exercise of local authorities' powers
and duties and cannot be regarded as an arbitrary
removal of the courts' jurisdiction to determine a
whole range of civil claims (see Fayed v. the
United Kingdom, judgment of 21 September
1994, Series A no. 294-B, pp. 49-50, 65). As it
has recalled above in paragraph 87, it is a
principle of Convention case-law that Article 6
does not in itself guarantee any particular content for
civil rights and obligations in national law, although
other Articles such as those protecting the right to
respect for family life (Article 8) and the right to
property (Article 1 of Protocol No. 1) may do so.
It is not enough to bring Article 6 1 into play
that the non-existence of a cause of action under
domestic law may be described as having the
same effect as an immunity, in the sense of not
enabling the applicant to sue for a given category
of harm.
99. Furthermore, it cannot be said that the House
of Lords came to its conclusion without carefully
balancing the policy reasons for and against the
imposition of liability on the local authority in the
circumstances of the applicants' case. Lord
Browne-Wilkinson, in his leading judgment in
the House of Lords, acknowledged that the public
policy principle that wrongs should be remedied required
very potent counter-considerations to be overridden
72
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
(see paragraph 46 above). He weighed that
principle against the other public policy concerns
in reaching the conclusion that it was not fair, just
or reasonable to impose a duty of care on the
local authority in the applicants' case. It may be
noted that in subsequent cases the domestic courts
have further defined this area of law concerning
the liability of local authorities in child-care
matters, holding that a duty of care may arise in
other factual situations, where, for example, a
child has suffered harm once in local authority
care, or a foster family has suffered harm as a
result of the placement in their home by the local
authority of an adolescent with a history of
abusing younger children (see W. and Others v.
Essex County Council and Barrett, both cited
above, paragraphs 62-65 above).
100. The applicants, and the Commission in its
report, relied on Osman (cited above) as indicating
that the exclusion of liability in negligence, in
that case concerning the acts or omissions of the
police in the investigation and prevention of
crime, acted as a restriction on access to a court.
The Court considers that its reasoning in
Osman was based on an understanding of the law
of negligence (see, in particular, Osman, cited
above, pp. 3166-67, 138-39) which has to be
reviewed in the light of the clarifications
subsequently made by the domestic courts and
notably by the House of Lords. The Court is
satisfied that the law of negligence as developed
in the domestic courts since the case of Caparo
Industries plc (cited above) and as recently
analysed in the case of Barrett (cited above, loc.
cit.) includes the fair, just and reasonable criterion
as an intrinsic element of the duty of care and that
the ruling of law concerning that element in this
case does not disclose the operation of an
immunity. In the present case, the Court is led to
the conclusion that the inability of the applicants to
sue the local authority flowed not from an immunity but
from the applicable principles governing the substantive
right of action in domestic law. There was no
restriction on access to a court of the kind
contemplated in Ashingdane (cited above, loc.
cit.).
73
F-133
101. The applicants may not, therefore, claim that
they were deprived of any right to a
determination on the merits of their negligence
claims. Their claims were properly and fairly
examined in light of the applicable domestic legal
principles concerning the tort of negligence. Once
the House of Lords had ruled on the arguable
legal issues that brought into play the
applicability of Article 6 1 of the Convention
(see paragraphs 87-89 above), the applicants
could no longer claim any entitlement under
Article 6 1 to obtain any hearing concerning the
facts. As pointed out above, such a hearing would
have served no purpose, unless a duty of care in
negligence had been held to exist in their case. It
is not for this Court to find that this should have
been the outcome of the striking-out proceedings
since this would effectively involve substituting
its own views as to the proper interpretation and
content of domestic law.
102. It is nonetheless the case that the interpretation of
domestic law by the House of Lords resulted in the
applicants' case being struck out. The tort of
negligence was held not to impose a duty of care
on the local authority in the exercise of its
statutory powers. Their experiences were
described as horrific by a psychiatrist (see
paragraph 40 above) and the Court has found that
they were victims of a violation of Article 3 (see
paragraph 74 above). Yet the outcome of the
domestic proceedings they brought is that they, and any
children with complaints such as theirs, cannot sue the
local authority in negligence for compensation,
however foreseeable and severe the harm
suffered and however unreasonable the conduct
of the local authority in failing to take steps to
prevent that harm. The applicants are correct in their
assertions that the gap they have identified in domestic
law is one that gives rise to an issue under the
Convention, but in the Court's view it is an issue
under Article 13, not Article 6 1.
103. The Court emphasises that the object and
purpose underlying the Convention, as set out in Article
1, is that the rights and freedoms should be secured by
the Contracting State within its jurisdiction. It is
fundamental to the machinery of protection established
by the Convention that the national systems themselves
Law Animated World, 15 September 2017
F-134 Z & Others v. The United Kingdom [ECHR-Strasbourg]
provide redress for breaches of its provisions, the Court
exerting its supervisory role subject to the principle of
subsidiarity. In that context, Article 13, which
requires an effective remedy in respect of
violations of the Convention, takes on a crucial
function. The applicants' complaints are
essentially that that they have not been afforded a
remedy in the courts for the failure to ensure them
the level of protection against abuse to which
they were entitled under Article 3 of the
Convention. The domestic courts referred to the
public-policy consideration that has first claim on
the loyalty of the law as being that wrongs
should be remedied (see paragraph 46 above).
As far as Convention wrongs are concerned, that
principle is embodied in Article 13 (see, inter
alia, Kuda v. Poland [GC], no. 30210/96, 152,
ECHR 2000-XI). It is under Article 13 that the
applicants' right to a remedy should be examined and, if
appropriate, vindicated.
104. Accordingly, the Court finds that there has
been no violation of Article 6 of the Convention.
IV. ALLEGED VIOLATION OF
ARTICLE 13 OF THE CONVENTION
105. The applicants submitted that they had not
been afforded any remedy for the damage which
they had suffered as a result of the failure of the
local authority to protect them, relying on Article
13 of the Convention, which provides:
Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have
an effective remedy before a national authority
notwithstanding that the violation has been
committed by persons acting in an official
capacity.
106. The applicants argued that the exclusionary
rule established by the House of Lords in their case
deprived them of any effective remedy within the
national legal system for the violation of Article 3 which
they suffered. While the remedy required by
Article 13 need not always be judicial in
character, in their case a judicial determination
was required. This was because the tort of
negligence was the only remedy in national law
capable of determining the substance of their
complaint and which (but for the alleged
Law Animated World, 15 September 2017
(2017) 2 LAW
immunity) would closely match the requirements
of the Convention. Also the accountability of
public officials, central to both Articles 3 and 13,
required a right of access to a court whereby the
individual could hold the responsible officials to
account in adversarial proceedings and obtain an
enforceable order for compensation if the claim
was substantiated. The wording of Article 13 also
prohibited the creation of immunities for public officials
and any such immunity must be regarded as contrary to
the object and purpose of the Convention.
107. The Government pointed out that there were
a number of remedies available to the applicants which
went some way towards providing effective redress.
This included the payment of compensation from the
Criminal Injuries Compensation Board (CICB), the
possibility of complaining to the Local Government
Ombudsman, and the complaints procedure under the
Children Act 1989. However, the Government
accepted that in the particular circumstances of this
case, the remedies were insufficient, alone or
cumulatively, to satisfy the requirements of Article 13.
They conceded that there had been a serious violation
of one of the most important Convention rights, that the
CICB could only award compensation for criminal acts,
not for the consequences of neglect, and that any
recommendation by the Ombudsman would not have
been legally enforceable. They had been under the
obligation, in this case, to ensure that some form
of compensation was made available for damage
caused by the breach of Article 3, whether by a
broader statutory compensation scheme, an
enforceable Ombudsman's award, or through the
courts. They pointed out that from October 2000,
when the Human Rights Act 1998 came into
force, a victim would be able to bring
proceedings in the courts against a public
authority for a breach of a substantive right, and
the courts would be empowered to award
damages.
108. As the Court has stated on many occasions,
Article 13 of the Convention guarantees the
availability at the national level of a remedy to
enforce the substance of the Convention rights
and freedoms in whatever form they might
happen to be secured in the domestic legal order.
Article 13 thus requires the provision of a domestic
74
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
remedy to deal with the substance of an arguable
complaint under the Convention and to grant
appropriate relief, although the Contracting States
are afforded some discretion as to the manner in
which they conform to their Convention
obligations under this provision. The scope of the
obligation under Article 13 also varies depending
on the nature of the applicant's complaint under
the Convention. Nevertheless, the remedy required
by Article 13 must be effective in practice as well as in
law (see, among other authorities, Aydn v.
Turkey, judgment of 25 September
1997, Reports 1997-VI, pp. 1895-96, 103).
109. The Court has previously held that where a
right with as fundamental an importance as the right to
life or the prohibition against torture, inhuman and
degrading treatment is at stake, Article 13 requires, in
addition to the payment of compensation where
appropriate, a thorough and effective investigation
capable of leading to the identification and punishment
of those responsible, including effective access for the
complainant to the investigation procedure (see Kaya
v. Turkey, judgment of 19 February
1998, Reports 1998-I, pp. 330-31, 107). These
cases, however, concerned alleged killings or
infliction of treatment contrary to Article 3
involving potential criminal responsibility on the
part of security force officials. Where alleged
failure by the authorities to protect persons from
the acts of others is concerned, Article 13 may
not always require that the authorities undertake
the responsibility for investigating the allegations.
There should, however, be available to the victim
or the victim's family a mechanism for
establishing any liability of State officials or
bodies for acts or omissions involving the breach
of their rights under the Convention.
Furthermore, in the case of a breach of Articles 2
and 3 of the Convention, which rank as the most
fundamental provisions of the Convention,
compensation for the non-pecuniary damage
flowing from the breach should in principle be
part of the range of available remedies.
110. The applicants have argued that in their case
an effective remedy could only be provided by
adversarial court proceedings against the public body
responsible for the breach. The Court notes that the
75
F-135
Government have conceded that the range of
remedies at the disposal of the applicants was
insufficiently effective. They have pointed out
that in the future, under the Human Rights Act
1998, victims of human rights breaches will be
able to bring proceedings in courts empowered to
award damages. The Court does not consider it
appropriate in this case to make any findings as to
whether only court proceedings could have
furnished effective redress, though judicial
remedies indeed furnish strong guarantees of
independence, access for the victim and family,
and enforceability of awards in compliance with
the requirements of Article 13 (see, mutatis
mutandis, Klass and Others v. Germany, judgment of 6
September 1978, Series A no. 28, p. 30, 67).
111. The Court finds that in this case the applicants
did not have available to them an appropriate means of
obtaining a determination of their allegations that the
local authority failed to protect them from inhuman and
degrading treatment and the possibility of obtaining an
enforceable award of compensation for the damage
suffered thereby. Consequently, they were not
afforded an effective remedy in respect of the breach of
Article 3 and there has, accordingly, been a violation
of Article 13 of the Convention.
V. APPLICATION OF ARTICLE 41
OF THE CONVENTION
112. Article 41 of the Convention provides:
If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if
the internal law of the High Contracting Party
concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just
satisfaction to the injured party.
A. PECUNIARY DAMAGE
1. The applicants
113. The applicants submitted that they should be
compensated for loss of future earnings and the costs of
future medical expenses. Their experiences have, in
different ways and to differing extents, blighted
their lives. A substantial award should be made to
enable them to enter life with a modicum of financial
security, the potential to build an independent existence
and the means to pay for therapeutic treatment and
support.
Law Animated World, 15 September 2017
F-136 Z & Others v. The United Kingdom [ECHR-Strasbourg]
114. The applicants provided updated medical
reports dated 16 May 2000 by Dr Jean Harris-
Hendriks concerning their progress and prognosis
for the future.
(i) Z was described as having made a recovery
from the serious depressive illness suffered at
the time of her removal into care. While she
was no longer suffering from any psychiatric
illness, she had emotional, social and
practical difficulties far beyond those
normally affecting a girl of her age and was
statistically vulnerable to anxiety and perhaps
depressive illness in adult life. Her problems
were classified as being of moderate severity.
It was estimated that she would need
psychotherapeutic treatment, outside the National
Health Service, estimated at 60 to 100 sessions
costing 70 to 90 pounds sterling (GBP) per session,
to cope with her vulnerability, particularly at
periods of transition. She was likely to remain
vulnerable on the labour market, though it was
anticipated that she would be able to take on
further education, sustain her own mental
health and enter the workforce. On her
behalf, her representatives claimed GBP 9,000
for the cost of future psychiatric treatment, and
GBP 40,000 to offset her handicap on the labour
market, a total of GBP 49,000.
(ii) A had failed to appear for an interview with
Dr Harris-Hendriks, who also commented on
the lack of detailed information concerning
periods spent by A in care. She had, however,
interviewed him on behalf of the local
authority in May 1993 and had some records
concerning his past treatment and problems.
On that basis, she concluded that he was
suffering from long-term psychiatric illness and had
a poor prognosis for recovery. His chances of
fitting into the normal school system
remained very poor. He was prone to
aggressiveness and had difficulty with
everyday tasks. He was currently suffering
from a reactive attachment disorder, resulting
directly from severe parental neglect and
abuse. The prognosis for the future was extremely
bleak and he was likely to require intermittent
hospitalisation. He was seriously handicapped on
the labour market and was unlikely ever to be able
to hold down a job. Assuming that he might
otherwise have been able to obtain low-paid
manual employment earning GBP 15,000 per
Law Animated World, 15 September 2017
(2017) 2 LAW
year, and a normal working life to age 65,
and taking into account uncertainties and
early settlement, he claimed GBP 150,000 in loss
of future earnings. As he had a substantial and
continuing need for psychiatric treatment
outside the National Health Service (NHS),
he claimed GBP 50,000 as a minimum estimate for
future treatment. This made a total of GBP
200,000.
(iii) B was still suffering from untreated post-
traumatic stress disorder and a chronic, generalised
anxiety disorder. He had horrific nightmares
and, if left untreated, was likely to continue
in the same disturbed emotional state. He
required open-ended psychiatric treatment into
adult life, outside the limited provision of the NHS.
This was estimated at a cost of GBP 50,000
minimum. He is vulnerable in terms of both
schooling and employment opportunities
because of a chronic psychiatric disorder and
limited social skills. His prospects of future
employment were not as bleak as those of A,
but he was likely to have substantial
interruptions in his employment. On the
assumption of six gaps of one year, on an
average labourer's wage of GBP 15,000 per
year, he claimed GBP 90,000. This made a total of
GBP 140,000.
(iv) C was described as happy in her adoptive
home, though carrying a substantial burden
about her origins and reminders of them. She
was recurrently angry and anxious about her
natural mother. She had some remaining
behavioural problems which were likely to
be containable with good substitute
parenting. She was, however, more liable
than other children to anxiety and there was a
statistical risk of depression in adult life. She
did not currently require psychiatric treatment
although provision should be made for
treatment in adolescence and adulthood. At a
recommended 30 to 50 sessions at GBP 70 to
90, a claim was made for GBP 4,500 for future
psychiatric treatment. GBP 10,000 was claimed for
loss of future earnings, making a total of GBP
14,500.
The reports commented that all the children
would have benefited from compensation for
their claims in 1994 as this would have allowed
additional psychotherapeutic help, improving
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(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
their prognosis. In A's case, his difficulties had
been exacerbated by this lack of help while
appropriate psychiatric, educational and
environmental help might have substantially
improved his prognosis. In B's case, more
psychotherapeutic help could have reduced his
current vulnerability and given a less gloomy
prognosis. The reports also deplored that the
psychotherapeutic referrals recommended for A
and B in 1993 (for both) and 1998 (for B) had not
been pursued by the local authority on their
behalf, and noted that one of the social workers
had been told that there was no time or money for
this work to be done.
2. The Government
115. The Government submitted that it was
wrong to rely on domestic case-law and scales of
assessment in just-satisfaction claims under
Article 41 as the Court made its own assessment
in accordance with principles in its own case-law.
They emphasised that it must also be taken into
account that the ill-treatment and neglect suffered by
the applicants was not inflicted by the local authority
but by their parents. It was also relevant that the
breach of Article 3 arose only after there had been
a failure to take effective steps when the situation
in the home failed to show significant
improvement there was no ground for assuming
that the children should have been removed from
their home immediately. Nor should any award
be made in respect of any alleged violation of
Article 13 as that damage would be compensated
by the award made under Article 3. In assessing
what compensation would be equitable, it should
also be taken into account that a number of
compensatory remedies were available to the applicant,
in particular, they received awards from the CICB.
116. As regards the recent medical reports, the
Government considered that these were framed in
largely identical terms with no attempt to
distinguish the children's condition by reference
This is quite valid. Actually the childrens parents are the
real culprits and should be/should have been taken to task
and strictly punished, though there may be lapses in the
taking care measures of the local authority too - IMS.
77
F-137
to their age at the time of the violation, their sex
and the duration of the treatment. No
consideration was given either to what part was
played by the temperament of the applicants, and
by environmental factors including the care
which they had received since 1992. Nor was any
regard given to any harm which they might have
suffered since being taken into care.
117. Turning to the specific claims made, the
Government noted that Z had recovered from her
depressive illness and had been doing remarkably
well during her schooling, with no significant
problems. There was nothing to substantiate the
asserted claim for 60 to 100 sessions of
psychotherapeutic treatment. Given her positive
progress, the claim of statistical vulnerability to
future anxiety and depressive illness was not
substantiated either.
The report on A was in their view particularly
unsatisfactory as it was issued without A having
appeared for interview and without full
information about his history. While he was not
referred to a special clinic as suggested, he did
receive therapeutic work in the community where
he lived between 1996 and 1998. There was no or
little basis for the assumption that his difficulties
were exacerbated by the failure of his earlier
compensation claim.
The report on B was similarly highly speculative
and unsubstantiated, with regard to the alleged
adverse impact of the lack of compensation. Its
comments on his educational difficulties were
inconsistent.
The report on C indicated that she was not
psychiatrically ill and was coping well, rendering
the conclusion that she had emotional and
practical difficulties beyond the average girl of
her age difficult to understand. The statements
concerning likely future need and alleged impact
of the failure of the compensation claim were
unsupported by the evidence.
118. The Government submitted that in light of
these considerations a reasonable sum of GBP 20,000
for Z, GBP 40,000 for A, GBP 30,000 for B, and GBP
10,000 for C would afford the applicants just satisfaction
for both pecuniary and non-pecuniary damage.
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F-138 Z & Others v. The United Kingdom [ECHR-Strasbourg]
3. The Court's assessment
119. As regards the applicants' claims for
pecuniary loss, the Court's case-law establishes
that there must be a clear causal connection between
the damage claimed by the applicant and the violation
of the Convention and that this may, in the appropriate
case, include compensation in respect of loss of earnings
(see, among other authorities, Barber, Messegu and
Jabardo v. Spain (Article 50), judgment of 13 June
1994, Series A no. 285-C, pp. 57-58, 16-20,
and akc v. Turkey [GC], no. 23657/94, 127,
ECHR 1999-IV).
120. A precise calculation of the sums necessary
to make complete reparation (restitutio in
integrum) in respect of the pecuniary losses
suffered by the applicants may be prevented by
the inherently uncertain character of the damage
flowing from the violation (see Young, James and
Webster v. the United Kingdom (Article 50),
judgment of 18 October 1982, Series A no. 55,
pp. 6-7, 11). An award may still be made
notwithstanding the large number of imponderables
involved in the assessment of future losses, though the
greater the lapse of time involved, the more
uncertain the link becomes between the breach
and the damage. The question to be decided in
such cases is the level of just satisfaction, in
respect of both past and future pecuniary losses,
which it is necessary to award each applicant, the
matter to be determined by the Court at its discretion,
having regard to what is equitable (see The Sunday
Times v. the United Kingdom (no. 1) (Article 50),
judgment of 6 November 1980, Series A no. 38,
p. 9, 15, and Smith and Grady v. the United
Kingdom (just satisfaction), nos.33985/96 and
33986/96, 18-19, ECHR 2000-IX). In that
determination, the awards made in comparable
domestic cases is a relevant but not decisive
consideration.
121. Turning to the present case, the Court recalls
that all four children suffered psychological and
physical damage resulting from the abuse and neglect of
their parents over a period of more than four years (see
paragraphs 11-40 above). The breach of Article 3
concerned the failure of the local authority to take
reasonable steps available to them to protect them
Law Animated World, 15 September 2017
(2017) 2 LAW
from that damage. There is a direct causal link,
therefore, between the breach and the damage
suffered by the children. While it is correct, as
asserted by the Government, that there is no
finding that the children should have immediately
been taken into care and that they might have
suffered damage even if effective steps had been
taken at an earlier stage, the Court notes that the
severity of the damage suffered by the children is
inextricably linked to the long period of time over
which the abuse persisted, which factor is also at
the heart of the violation of Article 3 in this case.
122. The Court has taken into consideration the
points made by the Government concerning the
medical reports provided by the applicants, in
particular, the lack of any attempt to compare the
children's prospects in education and employment
prior to their being taken into care. It cannot be
excluded, for example, that A and B, who were
identified as having educational difficulties,
would have experienced some problems in any
event. However, such assessments would
inevitably be imprecise and based on some degree
of speculation, as were the views expressed by Dr
Harris-Hendriks concerning the future prognosis
and effect on the educational and employment
prospects. It may also be noted that the medical
reports have not been tested in adversarial
proceedings.
123. It is nonetheless possible, on the basis of the
information available to the Court, to conclude that
the four children will, in all probability, suffer from the
effects of their experiences for the rest of their lives.
Their capacity to cope with this past trauma will
depend on their own personal abilities and the
support to which they may have access.
124. It is clear that Z has made an excellent
recovery from her depressive illness and,
receiving support from her new family, is
expected to do well at school and in the future in
general. C, who, due to her young age, was less
damaged by events, has also successfully
integrated into a new family and is attending
school without problem. In their case, the Court
finds that it is not possible with any degree of
78
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
certainty to draw conclusions as to future
difficulties in the employment sphere.
Notwithstanding their current positive prognosis,
it may be considered as reasonably possible that
in the future they will have some need of
professional help in coping with problems which
may arise as they grow older and in coming to
terms with their childhood experience. An award
to cover future psychotherapeutic care will assist
in providing them with the support necessary to
that process.
125. A was the most severely damaged of the
children and suffers an ongoing psychiatric
illness. Therapeutic care would help him now and
will be necessary in the future. The Court is
satisfied that the medical report may be relied on
in this respect, Dr Harris-Hendriks having
previously examined A and having access to
sufficient information to support her opinion.
Having integrated neither into a family nor into
the education system, the prognosis for A may
reasonably be described as bleak. In his case, it
may be claimed that the damage suffered from
the abuse will in all probability affect his
prospects of gaining employment in the future.
An award is appropriate to reflect this loss.
126. B is suffering from post-traumatic stress and
anxiety disorders, which are likely to continue to
affect him for some time to come. He requires
both current and future psychiatric treatment. He
is attending school, in a special-needs group. It is
also probable, though to a lesser extent than A,
that he will have problems in obtaining and
sustaining employment in later life. An award is
appropriate to reflect this.
127. Bearing in mind the uncertainties of the
applicants' situations, and making an assessment
on an equitable basis, the Court awards Z the sum of
GBP 8,000 for future medical costs; A the sum of GBP
50,000 for future medical costs and GBP 50,000 for loss
of employment opportunities; B the sum of GBP 50,000
for future medical costs and GBP 30,000 for loss of
employment opportunities; and C the sum of GBP 4,000
for future medical costs.
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B. NON-PECUNIARY DAMAGE
1. The applicants
128. The applicants claimed non-pecuniary damage in
respect of the physical and psychiatric damage
sustained. Z had suffered a serious depressive
illness and severe malnutrition, and it was
predicted that she would need long-term
psychiatric care, probably into adulthood. A had
suffered from post-traumatic stress disorder and
was chronically under-attached. There was
evidence to suggest that his father had hit him
with a poker and that he had been sexually
abused. He had suffered permanent scarring and
was expected to require long-term psychiatric
care. B had also suffered post-traumatic stress
disorder, with some evidence of being beaten by a
poker and being sexually abused. He suffered
very bad nightmares and would wake up
screaming. He was expected to require long-term
psychiatric care. C had been less seriously
damaged but was also expected to require some
psychiatric treatment. Her health had been
neglected by her mother and she had a squint as a
result.
According to the assessment of Dr Black, Z, A
and B had suffered psychiatric damage falling at
the upper end of the severe bracket. They
exhibited marked problems in their ability to
cope with life and in their relationships with
family, friends and those with whom they came
into contact. A and B in particular had a poor
prognosis and there was a likelihood of future
vulnerability. C had suffered damage in the
moderately severe bracket. Although she
presented significant problems in the areas above,
she had a more favourable prognosis.
Having regard to the levels of awards in such
cases in the domestic courts, the applicants
considered that a reasonable sum would be GBP 35,000
for Z, GBP 45,000 for A, GBP 40,000 for B, and GBP
25,000 for C.
2. The Government
129. As stated above, the Government considered
that sums of GBP 20,000 for Z, GBP 40,000 for
A, GBP 30,000 for B, and GBP 10,000 for C
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F-140 Z & Others v. The United Kingdom [ECHR-Strasbourg]
would afford the applicants just satisfaction for
both pecuniary and non-pecuniary damage.
3. The Court's assessment
130. The children in this case suffered very
serious abuse and neglect over a period of more
than four years. Z, A and B suffered, and in the
case of the two boys, still suffer psychiatric
illness as a result. A and B also suffered physical
injury and C suffered neglect in respect of an eye
condition. The description of the conditions
which they endured and the traumatic effects
which this had on the children leave the Court
with no doubt that a substantial award to reflect
their pain and suffering is appropriate.
131. In making this assessment, the Court recalls
that the rates applied in domestic cases, though
relevant, are not decisive. It does not consider it
appropriate or desirable to attempt to distinguish
between the children in this context. Making an
assessment on an equitable basis, the Court awards each
child the sum of GBP 32,000.
C. COSTS AND EXPENSES
132. The applicants claimed GBP 52,781.28
inclusive of value-added tax (VAT) by way of
legal costs and expenses, which included fees for
attendance at hearings before the Commission
and the Court, fees for Dr Harris-Hendriks and
submissions on Article 41 of the Convention.
133. The Government did not dispute the hourly
rate or number of hours claimed by the applicants'
principal legal advisers. They did query the
involvement of a leading counsel as an expert on
negligence law in addition to the leading counsel
with human rights expertise. They also queried
the involvement of the AIRE Centre in addition
to an experienced counsel and solicitor, and noted
that the AIRE Centre's fees for attending the
hearing had also been billed in full in the second
case, T.P. and K.M. v. the United Kingdom [GC],
no. 28945/95, ECHR 2001-V, heard before the
Court on the same day. They proposed that GBP
43,000 was a reasonable sum, taking these
deductions into account. However, if no violation
of Articles 6 and 8 of the Convention was found,
Law Animated World, 15 September 2017
(2017) 2 LAW
they disputed the necessity for any of the fees
incurred after April 2000 when the Government
conceded a breach of Articles 3 and 13 of the
Convention. In those circumstances, a reasonable
sum would be GBP 36,000.
134. The Court recalls that only legal costs and
expenses found to have been actually and necessarily
incurred and which are reasonable as to quantum are
recoverable under Article 41 of the Convention (see,
among other authorities, Nikolova v. Bulgaria
[GC], no. 31195/96, 79, ECHR 1999-II). It
observes that the case involved important and
complex issues, both concerning the facts which
were established by the Commission, and the
legal aspects. It does not consider that the costs
incurred after April 2000 should be disallowed as
such, as there were outstanding issues to be
determined, including the claims of pecuniary and
non-pecuniary damage arising out of the breaches
conceded by the Government. As, however, the
complaint made under Article 6, which was a
significant part of the application, was
unsuccessful, the costs and expenses allowed
should be reduced. The Court has had regard to
the fact that the Article 6 complaint was to some
extent interconnected with the complaint about
the inadequacy of remedies under Article 13.
135. In light of these matters, the Court awards the
global sum of GBP 39,000 for legal costs and expenses,
inclusive of VAT.
D. DEFAULT INTEREST
136. According to the information available to the
Court, the statutory rate of interest applicable in
the United Kingdom at the date of adoption of the
present judgment is 7.5% per annum.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a
violation of Article 3 of the Convention.
2. Holds unanimously that no separate issue
arises under Article 8 of the Convention.
3. Holds by twelve votes to five that there has
been no violation of Article 6 of the Convention.
4. Holds by fifteen votes to two that there has
been a violation of Article 13 of the Convention.
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(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
5. Holds unanimously
(a) that the respondent State is to pay the
applicants, within three months, the
following amounts:
(i) GBP 8,000 (eight thousand pounds
sterling) to Z, GBP 100,000 (one
hundred thousand pounds sterling)
to A, GBP 80,000 (eighty thousand
pounds sterling) to B, and GBP
4,000 (four thousand pounds
sterling) to C in respect of
pecuniary damage;
(ii) GBP 32,000 (thirty-two thousand
pounds sterling) to each applicant
for non-pecuniary damage;
(iii) GBP 39,000 (thirty-nine thousand
pounds sterling) in respect of costs
and expenses, inclusive of VAT;
(b) that simple interest at an annual rate of
7.5% shall be payable from the expiry
of the above-mentioned three months
until settlement;
6. Dismisses unanimously the remainder of the
applicants' claims for just satisfaction.
Done in English and in French, and delivered at a
public hearing in the Human Rights Building,
Strasbourg, on 10 May 2001.
Luzius WILDHABER Paul MAHONEY
President Deputy Registrar
In accordance with Article 45 2 of the Convention
and Rule 74 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) concurring opinion of Lady Justice Arden as
to Article 6;
(b) concurring opinion of Lady Justice Arden as
to Article 41, joined by Mr Kovler;
(c) partly dissenting opinion of Mr Rozakis
joined by Mrs Palm;
(d) partly dissenting opinion of Mrs Thomassen
joined by Mr Casadevall and Mr Kovler.
L.W. P.J.M.
*****
81
F-141
CONCURRING OPINION OF
LADY JUSTICE ARDEN AS TO ARTICLE 6
1. I agree that Article 6 of the Convention is
applicable in this case and that it is not violated
for the reasons given by the majority. I attach
particular importance to the majority's affirmation
of the well-established principle of Convention
case-law that Article 6 does not guarantee any
particular content for civil rights and obligations
(see paragraphs 87, 98, 100 and 101 of the
judgment). In the present case the applicants
failed to obtain any remedy under the domestic
law because the domestic courts held that they
had no cause of action in English law (X v.
Bedfordshire County Council [1995] 2 Appeal
Cases 633).
2. Founding themselves upon the erroneous
proposition as a matter of domestic law that they
had some general right to sue in negligence where
the defendant's act had caused damage and there
was sufficient proximity, the applicants sought to
argue that the decision of the English courts
amounted to a sweeping or blanket immunity. I
agree with the conclusion, in paragraph 98 of the
judgment, that the facts of this case do not
support that argument. In my view, when the
courts in England, proceeding incrementally
under the common law system of judicial law-
making, hold that a hitherto unconsidered
category of harm does not, as a matter of law, fall
within the scope of the tort of negligence, they
cannot properly be described as creating an
immunity, whether blanket or limited (see the
speech of Lord Browne-Wilkinson in Barrett v.
the London Borough of Enfield [1999] 3 Weekly
Law Reports 79, paragraph 65 of the judgment in
the present case). What the decision of the House
of Lords in the present case did was to determine
a legal issue fixing the limits on the substantive
content of a domestic civil right. In any event
the decision was fully and carefully reasoned. It
could not be regarded as the product of
arbitrariness and it applied only to closely defined
circumstances (see paragraphs 98-99 of the
judgment).
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F-142 Z & Others v. The United Kingdom [ECHR-Strasbourg]
3. Paragraph 98 of the judgment refers to Fayed
v. the United Kingdom (judgment of 21
September 1994, Series A no. 294-B). In that case
the Court contemplated the possibility that there
might be a violation of the right of access to a
court if, for example, a State could remove from
the jurisdiction of the courts a whole range of
civil claims, or confer immunities from civil
liability on large groups or categories of persons
(ibid., pp. 49-50, 65). At the same time,
however, the Court also stated that the
Convention enforcement bodies could not create,
by way of interpretation of Article 6, a
substantive civil right which had no legal basis in
the State concerned. Yet that is what the
applicants are inviting the Court to do in the
present case. Once the conclusion is reached that
the right on which the applicants seek to rely has
no legal basis in national law, the question of
whether there was an immunity such as to rely
on the principle referred to in Fayed strictly does
not arise.
4. In Fayed the Court did not settle the question
whether the operation of a defence to a claim in
defamation conferred by English law on a public
officer was such as to attract the application of
the right of access to a court under Article 6 1
or, rather, the substantive right to respect for one's
private life under Article 8. Instead, it chose to
proceed on the basis that Article 6 1 [was]
applicable to the facts of the case (ibid., pp. 50-
51, 67). It explained that it did so as a matter of
procedural convenience because the same central
issues of legitimate aim and proportionality
would have been raised under Article 8, and
because the parties' arguments had been directed
solely to Article 6 1. The result in that case does
not, therefore, set any precedent for the
applicability of Article 6 1 or detract from the
principle to which, as stated, I attach particular
importance, namely that Article 6 does not
guarantee any particular content for civil rights
and obligations (see paragraphs 87, 98, 100 and 101
of the present judgment).
***
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(2017) 2 LAW
CONCURRING OPINION OF
LADY JUSTICE ARDEN AS TO ARTICLE 41,
JOINED BY JUDGE KOVLER
1. Article 41 of the Convention enables the Court
in appropriate cases to afford just satisfaction to
the injured party. The judgment of the Court
awards two sums to each applicant by way of just
satisfaction: one sum in respect of pecuniary
damage and the other sum in respect of non-
pecuniary damage. In the case of pecuniary
damage, each applicant is awarded a different
sum. However, in respect of non-pecuniary
damage, each applicant is awarded an identical
amount. Thus, with regard to non-pecuniary
damage, the applicants' cases are not assessed
individually. The applicants are treated as having
suffered equal distress. In addition, no distinction
is drawn between the suffering of any one
applicant as against that of any other applicant,
despite the differences between the cases of the
applicants.
2. I agree that the just satisfaction which the
Court awards to the applicants for the violation of
Article 13 should include a sum on account of
non-pecuniary damage in addition to the sums
awarded in respect of pecuniary damage. I have
no doubt that such an award is justified.
However, in my opinion, the Court should not
award the same sum to each applicant but rather
should make a separate award to each applicant,
reflecting the suffering of that applicant.
3. As paragraph 128 of the judgment shows, the
applicants themselves have sought different
amounts: GBP 35,000 for Z, GBP 45,000 for A,
GBP 40,000 for B, and GBP 25,000 for C.
4. All the applicants endured suffering before
they were taken into care. After they were taken
into care they were assessed by consultant child
psychiatrists: in 1993 by Dr Black, and in 2000
by Dr Harris-Hendriks. The diagnosis of A
indicates that his case is the most serious. In 1993
he was diagnosed as suffering from post-
traumatic stress disorder, and in 2000 he was
diagnosed as suffering from a personality
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(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
disorder for which the prognosis was
unfavourable. B was considered to have a post-
traumatic stress disorder in both 1993 and 2000,
as well as social difficulties, and in addition in
2000 a generalised anxiety disorder, but the
prognosis for him was uncertain rather than
unfavourable. On the other hand, the initial
diagnosis in 1993 of Z as suffering from a severe
depressive illness has not been borne out, though
it is considered that she may suffer anxiety and
perhaps depressive illness in later life. In 2000
C's difficulties were described as moderate; she
was regarded as vulnerable to anxiety and likely
to need psychotherapeutic help in the future, but
she had not suffered any psychiatric disorder.
5. In the circumstances my preferred course
would have been to have performed a separate
assessment of the amount to be awarded for non-
pecuniary damage to each applicant. Having
considered the evidence on the Article 41 issue, I
consider that an appropriate amount would have
been GBP 25,000 for Z, GBP 40,000 for A, GBP
35,000 for B, and GBP 15,000 for C.
***
PARTLY DISSENTING OPINION OF
JUDGE ROZAKIS JOINED BY JUDGE PALM
With great regret I am unable to follow the
assessment and the conclusions of the majority of
the Court that, in the instant case, there has been
no violation of Article 6 1 of the Convention in
so far as access of the applicants to a court of law
is concerned. The reasons which have led me to
depart from the majority's findings are as follows:
1. The majority is satisfied that the proceedings
before the national courts, which culminated in a
decision of the House of Lords, met the
requirements of Article 6 1 as regards the
applicants' right to have access to a court for the
determination of their civil rights. As the Court
observes in paragraph 101 of the judgment, the
applicants may not claim that they were
deprived of any right to a determination on their
merits of their negligence claims. Their claims
were properly and fairly examined in the light of
83
F-143
the applicable domestic principle concerning the
tort of negligence. And, as it is also stated in
paragraph 95, [t]he arguments before the courts
were, therefore, concentrated on the legal issues,
primarily whether a duty of care in negligence
was owed to the applicants by the local
authority. It is difficult for one to accept this
approach. The applicants' claims before the
national courts did not, of course, refer to this
preliminary issue. Their complaint was that the
local authorities acted with gross negligence in a
case involving a statutory duty of care and that,
because of the damage inflicted on them by the
failure of the authorities to properly discharge
their responsibilities, compensation was due.
They submitted this civil right to the courts and
nurtured the legitimate expectation that it would
be dealt with by the courts through an
examination on the merits following an
adversarial procedure that would enable them to
prove the veracity of their claims. If it may be
asserted that, as a general rule the question of
access to a court is determined by the subject
matter of the claims before the national courts,
then the applicants never enjoyed access: at all
stages of the domestic examination of their case,
the national courts solely examined the
jurisdictional problem of whether they could
entertain the merits of the case before them, thus
confining themselves to the preliminary question
of whether an exclusionary rule exists, preventing
them from examining the merits. An exclusionary
rule which was eventually established by them,
not on the basis of statutory requirements or
specific precedents that were binding on them,
but on the basis of a particular interpretation by
them of the requirements of English law in the
light of the circumstances of the case before
them.
2. It is one matter, of course, to accept that there
was no access to a court which, unfortunately,
the majority did not clearly accept and another
to say that, in the circumstances of a particular
case, the absence of access is justified because it
serves a particular purpose which is proportionate
Law Animated World, 15 September 2017
F-144 Z & Others v. The United Kingdom [ECHR-Strasbourg]
to the damage done to an individual not enjoying
the protection otherwise afforded to him by
Article 6 of the Convention.
I am prepared to subscribe to this alternative
approach, on which the majority has also
embarked without, however, making a clear
distinction between the absence of access and the
circumstances justifying a proportional denial of
it. However, I am not prepared to accept that the
facts of the case may lead us to the conclusion
that the applicants were correctly and
proportionately deprived of their right because
the public-interest considerations prevailed over
their legitimate expectation to have their claims
examined on the merits.
First of all, it transpires clearly from the facts of
the case that the right to sue in negligence was an
established civil right in domestic law, that the
public-care authorities accepted that they had
been negligent in their behaviour, and that there
was a proximate relationship in accordance with
the criteria determined by national law. Further,
the way that the judicial authorities dealt with the
matter shows that the case presented serious
issues that warranted serious examination: as the
applicants pointed out, the judge who made the
care orders specifically released the case papers
to the Official Solicitor so that he could
investigate and, if appropriate, pursue negligence
claims; the Official Solicitor considered that there
were arguable claims in negligence; the Legal
Aid Board granted legal aid to pursue the claims
to the House of Lords; and the Court of Appeal,
which rejected the claims by a majority, granted
leave to appeal to the House of Lords, the
precondition for such leave being that the claim
was arguable in domestic law; the Master of the
Rolls in the Court of Appeal found that there was
a duty of care, stating the contrary to be an
affront to common sense; and, in previous cases,
local authorities had settled negligence claims on
the basis that they were potentially liable.
So, the only reason which eventually led to this
case being struck out was an interpretation by the
Law Animated World, 15 September 2017
(2017) 2 LAW
national courts, and particularly the House of
Lords, based on an argument of expediency and
as a matter of policy. Indeed, by applying the
third test of the English law of torts on negligence
namely, whether it was fair, just and reasonable
to impose liability on the public-care authorities
in the circumstances of the case, the House of
Lords found that it would be detrimental to the
exercise of the duties of the public body in
question to impose upon them the excessive
burden of tortious liability for acts or omissions
in the discharge of their duties. The position taken
by the House of Lords in this matter was novel
and tantamount to a refusal to extend tortious
liability for civil wrongs arising out of a duty of
care by local authorities for child care.
It is not the Court's task to enter into an
examination of the social-policy considerations
which led the national courts to interpret the third
test in the way they did. Yet, it is its task to look
at the circumstances surrounding the particular
decisions taken and to assess their significance
when applying its own test of proportionality; and
it seems difficult for me to accept that in view of
the importance attached to the facts of the case by
the various judicial and other bodies, and the
novel character of the House of Lords' ruling, the
creation of new case-law barring the examination
of the case on its merits was proportionate to the
need for adequate protection of individuals (and
society generally) against negligence by public
authorities.
Secondly, and more importantly, this Court has
found a violation of Article 3 of the Convention
on the basis of a finding that the neglect and
abuse suffered by the four applicant children
reached the threshold of inhuman and degrading
treatment (see paragraph 74 of the judgment).
Again it is difficult for me to accept that serious
matters of public concern as are all matters
involving a violation of Article 3 may be left
outside the protection of independent and
impartial tribunals established by law, and
providing all the guarantees required by Article 6
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(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
of the Convention. The majority, however, holds
a different view since it accepts that, even in
circumstances where there has been a violation of
the substance of Article 3, the Contracting States
are afforded some discretion as to the manner in
which they conform to their Convention
obligations ... provided that some effective
remedy exists to deal with individual complaints
concerning inhuman and degrading treatment.
Hence, they conclude that, in the present
situation, Article 13, but not Article 6, has been
violated.
It seems to me that the present case may be
considered as the locus classicus of the limits
afforded to States by the Convention to determine
the modalities of access to domestic courts. Our
case-law has repeatedly underlined the fact that
the right to a tribunal is not unlimited and
rightly so. Yet, the Court is free to determine in
which instances a Contracting State oversteps its
freedom of choice and becomes liable under
Article 6; and one criterion which can readily
assist the Court in drawing the line between
instances where a State retains its discretion, and
instances where a State is bound to offer judicial
guarantees to those falling under its jurisdiction,
is the severity of the complaint before the
national authorities. If the complaint may involve
a violation of core Convention rights such as
Articles 2 and 3 the Court is bound, to my
mind, to find that the States are obliged not
simply to offer an effective remedy (as required
by Article 13), but a judicial remedy covering all
the requirements of Article 6.
3. Most of the ideas put forward in the previous
lines have as their source of inspiration Osman v.
the United Kingdom (judgment of 28 October
1998, Reports of Judgments and Decisions 1998-
VIII) which the majority has not followed in the
present judgment. The main reason which has led
the majority to depart from the established case-
law is explained in paragraph 100 of the present
judgment:
85
F-145
... The Court considers that its reasoning
in Osman was based on an understanding of
the law of negligence ... which has to be
reviewed in the light of the clarifications
subsequently made by the domestic courts
and by notably the House of Lords. The
Court is satisfied that the law of negligence
as developed in the domestic courts since the
case of Caparo Industries plc ... and as
recently analysed in the case of Barrett ...
includes the fair, just and reasonable
criterion as an intrinsic element of the duty
of care and that the ruling of law concerning
that element in this case does not disclose the
operation of an immunity. In the present
case, the Court is led to the conclusion that
the inability of the applicants to sue the local
authority flowed not from an immunity but
from the applicable principles governing the
substantive right of action in domestic law.
...
I do not think that in Osman the Court was very
much concerned with this subtle issue raised by
this judgment in the above-mentioned paragraph.
The Court in Osman never said that the
jurisdictional bar was an immunity to be
distinguished from the applicable principles
governing the substantive right of action in
domestic law. It simply considered that the
application of the [exclusionary] rule in this
manner without further enquiry into the existence
of competing public interest considerations only
serves to confer a blanket immunity on the police
for their acts and omissions during the
investigation and suppression of crime and
amounts to an unjustifiable restriction on an
applicant's right to have a determination on the
merits of his or her claim against the police in
deserving cases (see Osman, cited above, p.
3170, 151 emphasis added). It went on to
express the opinion that, in cases where the harm
sustained by a complainant was of the most
serious nature, examination of the merits could
not be automatically excluded by the application
of a rule which amounts to the grant of an
Law Animated World, 15 September 2017
F-146 Z & Others v. The United Kingdom [ECHR-Strasbourg]
immunity to the police. In conclusion, the Court
in Osman was mainly concerned with the fact that
the applicants in a very serious case of possible
substantive human-rights violations did not have
the opportunity to air their grievances before a
court of law; it was not concerned with whether
the reason behind it being impossible to examine
the case on the merits was or was not the result of
an immunity provided for by national law acting
as a procedural bar having such an effect. It
simply found that the impossibility amounted to a
grant of an immunity. Under these circumstances
how can we distinguish between Osman and the
present case?
For all the above reasons I believe that Article 6
(access to a court) has been violated and, hence, I
consider that Article 13 does not raise a separate
ground for violation, Article 6 being the lex
specialis in this case.
***
PARTLY DISSENTING OPINION OF
JUDGE THOMASSEN JOINED BY
JUDGES CASADEVALL AND KOVLER
I am unable to agree with the majority that
there has been no violation of Article 6 of the
Convention in this case.
The Court is unanimous that the authorities
failed to protect the applicants, young children,
from inhuman and degrading treatment and its
majority observes that the applicants were denied
a determination of their allegations that the local
authority failed to protect them from inhuman and
degrading treatment and the possibility of
obtaining an enforceable award of compensation
for the damage suffered thereby (see paragraph
111 of the judgment).
Despite the severe negligence by the
authorities, which allowed the ill-treatment of the
applicants to continue for so many years and
caused the applicants physical and psychiatric
injuries amounting to a violation of Article 3, the
applicants could not hold the authorities
accountable in domestic court proceedings. By
Law Animated World, 15 September 2017
(2017) 2 LAW
reference to policy factors (for example,
difficulties of attributing responsibility between
different agencies, sensitivity of decisions, risk of
inculcating in local authorities a cautious and
defensive approach to exercise of their duties,
risk of costly and vexatious litigation) the
domestic courts decided that the local authority
could not be held liable in negligence in the
exercise of their statutory powers to protect
children. De facto, the local authority was thus
declared to be immune for claims because they
had acted in the exercise of their statutory powers
to protect children.
In my view the applicants' rights under Article
6 were thereby violated as they had no access to a
court in order to have a decision on their claims,
which were arguable under national law. The
facts of this case and the way in which domestic
law operated are very similar to those in Osman
v. the United Kingdom (judgment of 28 October
1998, Reports of Judgments and Decisions 1998-
VIII) where the applicants' claims for negligence
against the police were struck out for policy
reasons relating to the perceived interests in
preventing the efficiency of the police service
being undermined by litigation. In Osman the
Court found that the application of an
exclusionary rule barring liability of the police for
negligence in the exercise of their functions of
investigating and preventing crime constituted a
disproportionate restriction on access to a court
for the applicants. The majority's reasons for not
following the decisions in Osman (see paragraph
100 of the judgment) are not, to my mind,
convincing. There seem to have been no striking
or significant changes in the law of negligence
since that case and all relevant matters concerning
the content of domestic law had been brought to
the attention of the Court by the parties in Osman.
I am of the opinion that the conclusion under
Article 6 in this case must be the same.
It is true that, as the majority observes in
paragraph 95 of the judgment, the applicants were
not prevented in any practical manner from
86
(2017) 2 LAW Z & Others v. The United Kingdom [ECHR-Strasbourg]
bringing their claims before the domestic courts.
The case was litigated up to the House of Lords,
the applicants being provided with legal aid for
that purpose. Nor is it the case that any
procedural rules of limitation had been relied on.
However, the notion of access to a court under
Article 6 guarantees not only that the applicants
have their claims brought before the courts, but
implies also the right to have those claims
examined on the basis of the facts before the
courts and to have them decided on.
I agree with the majority saying in paragraph
98 that Article 6 does not in itself guarantee any
particular content for civil rights and obligations
in national law. But where there is an arguable
claim under domestic tort law as in this case (see
paragraph 89 of the judgment), requiring that the
applicants obtain a decision by a court on the
liability of those responsible for allowing their ill-
treatment to continue for many years, cannot, in
my opinion, be said to determine the content of
domestic law.
I would observe that the Court's supervision of
the activities of national courts in defining
access or liability seems to take place on a
wider basis. In Fayed v. the United Kingdom
(judgment of 21 September 1994, Series A no.
294-B, pp. 49-50, 65), the Court said:
Certainly the Convention enforcement
bodies may not create by way of
interpretation of Article 6 1 a substantive
civil right which has no legal basis in the
State concerned. However, it would not be
consistent with the rule of law in a
democratic society or with the basic
principle underlying Article 6 1 namely
that civil claims must be capable of being
submitted to a judge for adjudication if, for
example, a State could, without restraint or
control by the Convention enforcement
bodies, remove from the jurisdiction of the
courts a whole range of civil claims or confer
immunities from civil liability on large
groups or categories of persons ...
87
F-147
To reach its conclusion that the decision by the
House of Lords did not amount to the granting of
an immunity, the Court's majority observes, in
paragraph 99, that in cases concerning the
liability of local authorities in child-care matters
brought after the applicants' case, the domestic
courts have held that a duty of care may arise. But
this does not change the fact that an immunity
was conferred on the authorities in the applicants'
case. Apparently the immunity applied in the
applicants' case was found no longer appropriate
in subsequent cases, the national courts taking
into account, amongst other factors, the Court's
approach in Osman, cited above.
While it has been alleged by the Government
that a finding of a violation in this case would
undermine the striking-out procedure used to
avoid pointless litigation of baseless claims, I
consider that this argument has not been
substantiated by the material placed before the
Court. The domestic courts have continued to
strike cases out after the Court's judgment in
Osman. A finding of a violation in this case
would mean only that these applicants' claims,
which involved serious ill-treatment contrary to a
fundamental human right, should not have been
struck out on the basis of general policy
arguments. This Court has found no denial of
access to a court where judges have struck out
cases where there has been no proximity or
foreseeability (see, for example, Powell v. the
United Kingdom (dec.), no. 45305/99, ECHR
2000-V, and Bromiley v. the United Kingdom
(dec.), no. 33747/96, 23 November 1999,
unreported).
The majority of the Court finds that the
applicants were not afforded an effective remedy
in respect of the breach of Article 3 and they
conclude that Article 13, not Article 6, was
violated.
My conclusion would be that the remedy to
which the applicants were entitled should have
been access to a court in order to have their
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F-148 Z & Others v. The United Kingdom [ECHR-Strasbourg]
damages settled. Restrictions to access to a court
in order to protect the interests of the local
authority exercising their powers to protect
children may be necessary and justified under
Article 6. However, I would say that in this case,
where it is agreed that the child applicants were
victims of the failure of the system to protect
them from serious, long-term neglect and abuse,
the immunity conferred on the local authority
because of policy reasons cannot be seen as
proportionate.
Therefore, I believe that Article 6 was
violated.
I voted for a violation of Article 13 because
I agree with the majority that the applicants,
whose rights under Article 3 of the Convention
were violated, had no effective remedy before the
national authorities.
*****
IN RETROSPECT
{Sagas of heroism and sacrifice of Indian
revolutionaries during freedom struggle}
Collected and Edited by: I. MALLIKARJUNA SHARMA
5 volumes (7 books) running to about 2200 1/8 demy pages
Rare and precious interviews of several
revolutionary freedom fighters - colleagues of
Bhagat Singh like Shiv Varma, Jaidev Kapur,
Durga Bhabi; deputies of martyr Surya Sen
such as Benode Behari Dutta, Sahay Ram Das;
veteran fighters of Telangana Armed struggle
like B.N. Reddy, Omkar, Mallu Swarajyam;
founders of communist movement in India and
Andhra like SA Dange, SG Sardesai,
Kambhampati Satyanarayana, et al; of left
activist intellectuals like Dr. A.R. Desai, Sri
Vavilala Gopalakrishnaiah, et al; of several
women leaders and fighters like Dr. Lakshmi
Sahgal (of INA), Bina Das, Kamala Mukherji,
et al incorporated.
Entire set at a deep-discounted price of Rs. 1500/-
Contact: I. BALAMANI,
RAVI SASI ENTERPRISES, 6-3-1243/156,
M.S. Makta, Opposite Raj Bhavan,
HYDERABAD - 500 082 (A.P.) (Ph: 23300284)
E-mail: mksharma55@gmail.com
Law Animated World, 15 September 2017
(2017) 2 LAW
PLEASE NOTE
Two precious research based books on some aspects of
freedom struggle in India, published by Marxist Study
Forum, available for sale at 40% discount for individuals.
1. REMEMBERING OUR REVOLUTIONARIES
(Price: Rs. 300/-) by Prof. Satyavrata Ghosh;
Ed: I.M. Sharma
2. EASTER REBELLION IN INDIA:
THE CHITTAGONG UPRISING
by I. Mallikarjuna Sharma, Price: Rs. 360/-.
Recognized even by the British adversaries as an amazing
and daring coup which brought an electric effect and
changed the entire outlook of the Bengal revolutionaries, the
Chittagong Uprising played a glorious role and occupies an
important place in the history of the Indian Freedom Struggle.
In addition to giving rise to an unprecedented surge of
revolutionary action by the Bengali youth, it also inspired lakhs
of people all over India and gave a great fillip to the national
movement. The historic role of the armed revolutionaries in our
struggle for independence is generally overlooked or cast aside
with mere lip service. The same fate generally befell the
Chittagong revolutionaries too.
This book as if atones for the general wrong done to these
heroic rebels. It contains several precious and informative
articles about the Irish Easter Rebellion and its inspiration to
the Indian revolutionaries, and about the daring deeds and
glowing sacrifices of the Chittagong revolutionaries led by
Masterda Surya Sen
A book not to be missed by serious students of history or
(for individuals only).
devoted patriots of the motherland
MO/Cheques/DDs to be sent in favour of:
I. MALLIKARJUNA SHARMA,
H. No. 6-3-243/156, M.S. Makta, Opposite
Raj Bhavan, HYDERABAD - 500 082.
Ph: 040 - 23300284; E-mail: mani.bal44@gmail.com
88
 INTERNATIONAL COURT TO PRESERVE LIFE ON EARTH NEEDED
Laughing on the Way to Armageddon
The United States shows the world such a ridiculous
face that the world laughs at us. The latest spin on
Russia stole the election is that Russia used
Facebook to influence the election. The NPR
women yesterday were breathless about it.
We have been subjected to ten months of
propaganda about Trump/Putin election interference
and still not a scrap of evidence. It is past time to ask
an unasked question: If there were evidence, what is
the big deal? All sorts of interest groups try to
influence election outcomes including foreign
governments. Why is it OK for Israel to influence US
elections but not for Russia to do so? Why do you
think the armament industry, the energy industry,
agribusiness, Wall Street and the banks,
pharmaceutical companies, etc., etc., supply the
huge sum of money to finance election
campaigns if their intent is not to influence the
election? Why do editorial boards write editorials
endorsing one candidate and damning another if
they are not influencing the election? What is the
difference between influencing the election and
influencing the government? Washington is full
of lobbyists of all descriptions, including
lobbyists for foreign governments, working round
the clock to influence the US government. It is
safe to say that the least represented in the government
are the citizens themselves who dont have any lobbyists
working for them.
The orchestrated hysteria over Russian influence
is even more absurd considering the reason Russia
allegedly interfered in the election. Russia favored
Trump because he was the peace candidate who
promised to reduce the high tensions with Russia
created by the Obama regime and its neocon
Nazis Hillary Clinton, Victoria Nuland, Susan
Rice, and Samantha Power. Whats wrong with
Russia preferring a peace candidate over a war
candidate? The American people themselves preferred
the peace candidate. So Russia agreed with the
electorate.
Courtesy: Paul Craig Roberts at www.paulcraigroberts.org;
dated 8 September 2017; emphases in bold ours - IMS.
89
- Dr. Paul Craig Roberts
Those who dont agree with the electorate are the
warmongers the military/security complex and the
neocon nazis. These are democracys enemies who are
trying to overturn the choice of the American people. It
is not Russia that disrespects the choice of the
American people; it is the utterly corrupt
Democratic National Committee and its divisive
Identity Politics, the military/security complex,
and the presstitute media who are undermining
democracy.
I believe it is time to change the subject. The
important question is who is it that is trying so hard to
convince Americans that Russian influence prevails
over us? Do the idiots pushing this line realize
how impotent this makes an alleged
superpower look. How can we be the hegemonic
power that the Zionist neocons say we are when Russia
can decide who is the president of the United States?
The US has a massive spy state that even intercepts
the private cell phone conversations of the Chancellor of
Germany, but this massive spy organization is
unable to produce one scrap of evidence that the
Russians conspired with Trump to steal the
presidential election from Hillary. When will the
imbeciles realize that when they make charges for which
no evidence can be produced they make the United
States look silly, foolish, incompetent, stupid beyond all
belief?
Countries are supposed to be scared of
Americas threat that we will bomb you into the
stone age, but the President of Russia laughs at
us. Putin recently described the complete absence
of any competence in Washington:
It is difficult to talk to people who confuse
Austria and Australia. But there is nothing we
can do about this; this is the level of political
culture among the American establishment.
As for the American people, America is truly a
great nation if the Americans can put up with so
many politically uncivilized people in their
government.
These words from Putin were devastating,
because the world understands that they are
accurate.
Law Animated World, 15 September 2017
90 International Court to Preserve Life on Earth needed (Paul Craig Roberts)
Consider the idiot Nikki Haley, appointed by
Trump in a fit of mindlessness as US Ambassador to the
United Nations. This stupid person is forever
shaking her fist at the Russians while mouthing
yet another improbable accusation. She might
want to read Mario Puzos book, The Godfather.
Everyone knows the movie, but if memory serves
somewhere in the book Puzo reflects on the
practice of the irate American motorist who
shakes a fist and gives the bird to other drivers.
What if the driver receiving the insult is a Mafia
capo? Does the idiot shaking his fist know who
he is accosting? No. Does the moron know that
the result might be a brutal beating or death? No.
Does the imbecile Nikki Haley understand
what can be the result of her inability to control
herself? No. Every knowledgeable person I know
wonders if Trump appointed the imbecile Nikki
Haley US ambassador to the world for the
purpose of infuriating the Russians. Ask
Napoleon and the German Wehrmacht the
consequence of infuriating the Russians.
After 16 years the US superpower has been unable
to defeat a few thousand lightly armed Taliban, who
have no air force, no Panzer divisions, no worldwide
intelligence service, and the crazed US government in
Washington is courting war with Russia and China and
North Korea and Iran.
The American people are clearly out to lunch
in their insouciance. Americans are fighting
among themselves over civil war statues, while
their government invites nuclear armageddon.
The United States has an ambassador to the
(2017) 2 LAW
America is a joke with nuclear weapons, the prime
danger to life on earth. How can this danger be
corralled? The American people would have to
realize that they are being led to their deaths by
the Zionist neocon nazis who, together with the
military/security complex and Wall Street,
control US foreign policy, by the complicity of
Europe and Great Britain desperate to retain their
CIA subsidies, and by the harlots that comprise
the Western media.
Are Americans capable of comprehending
this? Only a few have escaped The Matrix. The
consequence is that America is being locked into conflict
with Russia and China. There is no possibility
whatsoever of Washington invading either country,
much less both, so war would be nuclear.
Do the American people want Washington to
bring us this result? If not, why are the American
people sitting there sucking their thumbs, doing
nothing? Why are Europe and Great Britain sitting
there permitting the unfolding of nuclear
armageddon? Who murdered the peace movement?
The World and the American people need
desperately to rein in the warmonger United States, or
the world will cease to exist. An International Court To
Preserve Life On Earth needs to be assembled. The US
government and the war interests it serves need to be
indicted and prosecuted and disarmed before their evil
destroys life on earth.
*****
BOJJA TARAKAM FIRST DEATH ANNIVERSARY

  

 
 
world who shows no signs of intelligence, who
behaves as if she is Mike Tyson or Bruce Lee to
the 5th power, and who is the total antithesis of a
diplomat. What does this tell about the United
States? It reveals that the US is in the Roman collapse
stage when the emperor appoints horses to the Senate.
The United States has a horse, an uncivilized horse,
as its diplomat to the world. The Congress and
executive branch are also full of horses and horse
excrement. The US government is completely devoid of
intelligence. There is no sign of intelligence anywhere
in the U.S. government. Of or morality. As Hugo
Chavez said: Satan is there; you can smell the sulphur.
Law Animated World, 15 September 2017
The first death anniversary
commemoration meeting in regard to
late Sri Bojja Tharakam (27 June 1939
- 16 September 2016) a well-known
poet, writer, social and political activist
and a senior human rights advocate in
India; a committed lawyer fighting for
the problems of Dalits in Andhra Pradesh State High
Court will be held jointly by Hyderabad Book Trust
(Geeta Ramaswami) and Bojja Tarakam Trust at Press
Club, Basheerbagh, Hyderabad - 500 029 at 5-30 PM on
Saturday, 16 September 2017. MARXIST STUDY FORUM
joins in extending reverent tributes to this well-known
Human Rights leader I. M. SHARMA.
90
 SOLVING 9/11: DECEPTION THAT CHANGED THE WORLD
Chapter XI
The Fleecing of America: 9/11
and the Crisis on Wall Street
Maurice R. Greenberg, chief fraudster of A.I.G. and 9-11 conspiracy
suspect. Greenberg's fraudulent company received more than $180
billion from the U.S. Treasury in the Bush-Obama bail-out.
[The bail-out plan] does nothing basically for the stressed
mortgage payer. It does a lot for three or four or five banks
Sen. Richard Shelby, (R-Alabama)
"I've never seen people so angry. Our calls are a hundred to
one against this bail-out. They don't trust the government."
Sen. Jim DeMint (R-South Carolina)
AMERICAN TAXPAYERS FORCED TO
BAIL OUT FINANCIAL GANGSTERS
The current financial crisis in the United States
involves some of the very same Zionist criminals
and entities discussed in the earlier chapter, "The
Architecture of Terror: Mapping the Network
Behind 9-11."
The collapse of their criminal scams on Wall Street
could very well expose more clandestine intrigues
involving the Zionist gangsters behind 9-11, if it were
allowed to happen. Such outrageous criminal
scams cannot be kept hidden for long. The
criminals behind this latest financial scam need to
be brought down not propped up. If anyone
should be in Guantanamo facing harsh interrogation
for answers about 9-11, it is people like Maurice
Greenberg and Michael Chertoff.
The government loan of $85 thousand millions
of U.S. taxpayer dollars ($85 billion) to keep
Continued from Law Animated World, 31 August 2017
issue; emphases in bold ours - IMS.
91
Christopher Bollyn
afloat Maurice Greenberg's criminal operation,
American International Group (A.I.G.), brings
into the spotlight one of the key individuals in the
Zionist criminal network behind 9-11.
Maurice Greenberg and his fraudulent company A.I.G. have paid
fines of more than $1 billion for various financial crimes.
Greenberg was personally fined more than $130 million in 2009.
Why was Greenberg's criminal racket bailed out?
CRIME PAYS: $85 BILLION
FOR GREENBERG
Where's the outrage? If George W. Bush is not
directly related to Isadore Bush, the Jewish wine
merchant who headed the B'nai B'rith lodge in St.
Louis in the late 1800s, he just as well ought to
be. As president, George W. Bush has done more to
advance the agenda of the secretive Jewish brotherhood
of Freemasons, the real Elders of Zion, than any other
political leader in living memory. The proposed plan
to use $700 billion taxpayer dollars to bail out the
Zionist gangsters of Wall Street is Bush's coup de grce,
the final thrust of the dagger of a treasonous president
into the bleeding body politic.
The Zionist plan to bail out A.I.G. and its criminal
boss, Maurice R. Greenberg, with a government loan
of $85 billion dollars should have all American
taxpayers up in arms. This is, after all, taxpayer money
they are stealing. The $700 billion bail-out is
described by the New York Times as "an
ambitious effort to transfer the bad debts of Wall Street
Law Animated World, 15 September 2017
92 Solving 9/11: The Deception that changed the World (Christopher Bollyn)
into the obligations of American taxpayers." Make no
mistake about it, this is a massive transfer of
American wealth to Zionist criminals - a huge "rip-
off" in plain English.
On Friday, September 26, 2008, President
Bush scrambled to bring rebellious members of
his own party behind a $700 billion dollar
taxpayer bail-out of Wall St. banks amid bitter
political recriminations from both Democrats and
Republicans over collapsed negotiations, the AP
reported. Sen. Richard Shelby, an Alabama
Republican, said many GOP lawmakers dislike
the proposal that has been pushed on the
administration's behalf principally by Henry
Paulson. "Basically, I believe the Paulson
proposal is badly structured," he said. "It does
nothing basically for the stressed mortgage payer.
It does a lot for three or four or five banks."
USING FEAR TO SOFTEN RESISTANCE
Like all dictators, President Bush employed fear and
deception to accomplish his criminal agenda. His prime-
time speech to the nation on Wednesday, September
24, is a classic example of how an un-elected president
used fear to soften public resistance to the $700 billion
bail-out of criminal enterprises like A.I.G. His speech
was short on facts and long on fear. It should be
noted that Bush is the same man who lied to the world
about Iraq's weapons of mass destruction, and who
recklessly started two illegal wars of aggression after 9-
11, which he and his vice president Dick Cheney refused
to investigate.
The keystone to the Bush-Bernanke $700 billion
bail-out is the $85 billion being made available to
Maurice Greenberg's A.I.G. As I point out in this
article, A.I.G. is a criminal operation, which
engaged in illegal conduct for many years.
American taxpayer money should never be used
to support criminal operations like A.I.G.
Here is the key paragraph from Bush's prime
time televised speech, which was clearly meant to
put fear in American hearts:
The government's top economic experts warn
that without immediate action by Congress,
America could slip into a financial panic, and a
distressing scenario would unfold: More banks
Law Animated World, 15 September 2017
(2017) 2 LAW
could fail, including some in your community.
The stock market would drop even more, which
would reduce the value of your retirement
account. The value of your home could plummet.
Foreclosures would rise dramatically. And if you
own a business or a farm, you would find it
harder and more expensive to get credit. More
businesses would close their doors, and millions
of Americans could lose their jobs. Even if you
have good credit history, it would be more
difficult for you to get the loans you need to buy
a car or send your children to college. And
ultimately, our country could experience a long
and painful recession.
A $700 billion expenditure on distressed
mortgage-related assets would be roughly what
the country has spent in direct costs on the Iraq
war and more than the Pentagon's total yearly
budget appropriation. The bail-out would cost
every man, woman and child in the United States
more than $2,000 before interest.
Fed chairman Ben Shalom Bernanke held a
series of conference calls with members of
Congress to push the bail-out. No wonder hard-
working Americans despise Jewish crooks like
Maurice Greenberg and Ben Bernanke. I don't
understand why the public is not protesting and
burning tires in the streets of American cities. It is
certainly no secret that A.I.G. is a criminal operation;
this is known to anyone who reads the
newspapers. Doesn't anybody read the papers?
Why are Americans not massively protesting
this proposed bail-out? To my mind, it can only
be because the news coverage of the huge bail-out
never mentions Greenberg's long history of criminal
activity. The bail-out, now proposed at $700
billion, is portrayed as something that is necessary to
save the economy of Main Street not a bail-out for
Zionist criminals of the highest magnitude.
"IF WE WERE LEGAL,
WE WOULDN'T BE IN BUSINESS"
It should be noted that my accusations about
Greenberg's criminality are well documented, in the
New York Times, for example. The following
article entitled "Excerpts from Complaint Against
A.I.G. by New York," dated May 27, 2005,
92
(2017) 2 LAW Solving 9/11: The Deception that changed the World (Christopher Bollyn)
reveals that Greenberg was aware of the criminal
nature of A.I.G.'s business and that he wanted
to keep it that way:
Following are excerpts from the complaint
filed yesterday against American International
Group (A.I.G.); its former chief executive,
Maurice R. Greenberg (M.R.G.); and its former
chief financial officer, Howard I. Smith, by the
New York attorney general and the New York
superintendent of insurance:
Both Greenberg and Smith had a direct
personal interest in A.I.G.'s stock price; both
held hundreds of thousands of shares of A.I.G.
stock. For example, the value of Greenbergs's
holdings increased or decreased approximately
$65 billion for every dollar A.I.G. stock
moved.
For over a decade, A.I.G. engaged in a scheme
to mischaracterize premiums paid on the
workers' compensation line of insurance
In 1991, A.I.G.'s general counsel, newly
arrived from a law firm, undertook a review of
the practice In his interviews, the general
counsel learned about the cost that the
company would have to incur to 'get legal.' It
would have to hire about 40 new people to do
filings properly, charge clients more and pay
'much higher' assessment fees.
Indeed, the general counsel's notes reflect that
at one stage, an employee went to A.I.G.'s
president and was told 'that M.R.G. [Maurice
R. Greenberg] did not want him to change
things to make it legal he wants to continue
as is.'
In another interview, a witness recounted a
meeting that he and others had with
Greenberg. According to the notes, M.R.G.
asked, 'Are we legal?' When an employee responded,
'If we were legal, we wouldn't be in business,' then
M.R.G. began laughing and that was the end of it.
Maurice Greenberg's son, Jeffrey, headed
Marsh & McLennan Companies, the nation's
largest insurance broker, which took kickbacks
and colluded with A.I.G. to rig bids, artificially
jacking up the premiums companies pay for
liability insurance, according to a civil fraud
93
93
complaint filed by New York Attorney General
Eliot L. Spitzer in 2004.
The civil fraud complaint named A.I.G.,
Hartford Financial Services Group Inc., ACE Ltd.
(another Greenberg company), and a division of
Munich Re as active participants in the scheme.
Jeffrey Greenberg, resigned in October 2004, less
than two weeks after Marsh & McLennan was
accused of cheating customers. Oddly, as a result,
Eliot Spitzer said that he would not bring criminal
charges against Marsh. Although Maurice
Greenberg was also forced to resign as CEO of
A.I.G, he maintained a great deal of control of the
company through his ownership of stock and
managing companies such as Starr International
and C.V. Starr.
Jeffrey Greenberg resigned
from Marsh & McLennan
after being accused of serious
financial crimes. The first
plane of 9-11 flew directly into
his company's secure computer
room in the North Tower.
Coincidence or conspiracy?
A.I.G. GUILTY OF CRIMINAL FRAUD
At least two senior A.I.G. executives pleaded guilty
to criminal fraud, acknowledging that they had schemed
with Marsh and submitted uncompetitive bids to help
the broker steer clients to other companies. While it
was under investigation in 2005, A.I.G. disclosed
"extensive accounting irregularities." The company's
earnings for the past five years were adjusted by
some $4 billion. In 2004, Greenberg was paid at
least $20 million from Starr International, his
private company in Panama, and A.I.G.
Why is the U.S. government bailing out known
criminals rather than arresting them? Are we laughing
as President Bush and his Zionist advisers and
appointees award Greenberg's criminal conduct with an
$85 billion bail-out? Is this another major piece of
evidence that the U.S. government is a "crimocracy"?
Could this bail-out of criminals be stopped if
Americans protested loudly enough?
Law Animated World, 15 September 2017
94 Solving 9/11: The Deception that changed the World (Christopher Bollyn)
The key person in the Zionist crimocracy behind the
bail-out is Ben Shalom Bernanke, the "head of the Fed".
[Here Ben does not stand for Benjamin, it is Hebrew
for son, in this case meaning son of peace.]
Ben Shalom Bernanke, chairman of the Federal Reserve, and Henry
Paulson, Secretary of the U.S. Treasury, crafted the bail-out program
that robbed U.S. taxpayers to benefit A.I.G. and private bankers.
EARLY WARNINGS IGNORED
A.I.G. was already deemed to be a "shaky
insurance company" in a 1990 report conducted
by Ralph Nader's Public Citizen. Despite protests
and threats from the criminal Greenberg, Public
Citizen maintained its "critical assessment" of
A.I.G. Greenberg threatened to sue Public Citizen
if the consumer group didn't retract its comments
on the company "in the next several days." "I'm
angry," Greenberg said, adding like a street thug,
"First learn the facts before you shoot your mouth
off." Joan Claybrook, Public Citizen president,
responded to Greenberg's threats in a letter.
Public Citizen "remains fully satisfied with the
report's conclusions concerning A.I.G.,"
Claybrook wrote. After a re-examination of the
facts, Claybrook stood by her critical assessment
of A.I.G. The company had indeed failed four of
the six tests that show whether an insurance
company could withstand a severe economic
slump. Public Citizen was right, yet some 18 years later
American taxpayers were forced to bail out Greenberg's
fraudulent operation.
Where's the outrage? If such a huge bail-out were
to be demanded from the citizens of any other country,
you can be sure that the key players would be
scrutinized before one cent of public funds were made
available. In America, however, the controlled
media censors all information about who is really
responsible for this immense transfer of wealth
from the people to the criminals.
Law Animated World, 15 September 2017
(2017) 2 LAW
THE DEVOTED ZIONIST
BEHIND THE A.I.G. BAIL-OUT
It should come as no surprise that the key
person behind this unprecedented government
bail-out of A.I.G., a Zionist criminal operation, is
himself a devoted Zionist. Ben Shalom Bernanke,
the chairman of the Federal Reserve System, is
another Hebrew-speaking scion of the Jewish
Theological Seminary of New York City, like
Michael Chertoff and Alvin K. Hellerstein.
How can it be that the sons of a very small
group of uneducated Jews from Eastern Europe,
who immigrated to the Bronx in the 1900s, now
largely control a nation of 250 million non-Jews?
If you were to ask a Zionist Jew from the Jewish
Theological Seminary why they seek to control
America, they would probably say: "Because we
can."
Growing up, Bernanke attended the extremist
Zionist summer camp (Ramah) of the Jewish
Theological Seminary (JTS) where he was
immersed for months in Zionist ideology in
Hebrew. During college in the early 1970s,
Bernanke worked for a Jewish political crime
boss in South Carolina.
BERNANKE'S YEARS WITH THE
CRIME BOSS OF DILLON
Ben Bernanke went to Harvard University and
graduated with a B.A. in economics in 1975.
Throughout college Bernanke had a rather odd
summer job for an Ivy League student of
economics. Every summer he returned to Dillon,
South Carolina, to work for Alan Heller Schafer,
the well-known Jewish criminal and political boss
who ran a sprawling roadside gambling and
drinking establishment called "South of the
Border." The adjacent counties in North Carolina
had been "dry counties" when Schafer originally
started his drinking and gambling establishment.
Such was Schafer's clout that he was able to have
the route of Interstate 95 changed so it passed his
saloon and gambling operation.
94
(2017) 2 LAW Solving 9/11: The Deception that changed the World (Christopher Bollyn)
Alan Schafer was, after all, the long-standing
chairman of the Democratic Party in Dillon
County, where, since 1966, he ran the "state's
smoothest-running political machine" by buying
votes. Schafer's political machine maintained
power, said Craig C. Donsanto, director of the
Justice Department's Election Crimes Branch,
through a "carefully controlled and sophisticated
system of rigging elections," the New York
Times reported in 1982. This is the crime boss
that Bernanke worked for, every summer, while
he studied at Harvard.
Alan H. Schafer, criminal
political boss of Dillon,
South Carolina
"Alan didn't want any more stump meetings
because they threatened his candidates," said
A.W. (Red) Bethea, 66, who was defeated four
times in Statehouse races by Schafer-backed
candidates. "If you were running against the
Schafer machine without his wanting you to, you
were just wasting your time."
Mr. Donsanto said more than 1,000 Dillon
County voters were paid $5 to $10 to sign their
names to absentee ballots in 1980. In the 1980
primary, 1,500 of the 7,000 votes cast in Dillon
County were absentee ballots. Two days after the
primary, agents from the U.S. Justice Dept.
"swooped down on Dillon County and seized the
ballot boxes, touching off the largest voting fraud
investigation ever conducted in the Southeast,"
the Times reported.
After an eighteen-month investigation, thirty
residents of Dillon County were indicted on
95
95
charges of violating federal election laws, most of
them for buying votes. As the head of the election
corruption and vote-buying machine, Schafer was
sentenced to three and a half years in federal
prison. The joint state and federal investigation,
which finally busted Schafer's political machine,
"broke up the county's leadership elite, men who
had controlled and manipulated Dillon's political
process since the mid-1960s," the Times reported.
This was the well-known Jewish criminal that
Ben Shalom Bernanke, a student of economics at
Harvard, worked for every summer. It is simply
not believable that Bernanke was unaware of Schafer's
wide-scale criminal activities, which were legendary in
the state. Bernanke is now behind the $85 billion
taxpayer-funded bail-out of another Zionist criminal,
Maurice R. Greenberg, who ran A.I.G. for decades and
who owned some $15 billion worth of A.I.G. stock
before it fell some ninety-four percent in value.
After college, Bernanke earned a doctorate at
Massachusetts Institute of Technology, where his
adviser was Stanley Stan Fischer, who was
born in Rhodesia. Fischer also happens to be the
current Governor of the Bank of Israel. If one
looks at Bernanke's biography one will find that
he has spent his entire life engaged in Zionist
activities.
Stanley Fischer with Israeli prime minister Ehud Olmert, April 1, 2008
The A.I.G. scam is much more than insurance
fraud. Greenberg's criminal enterprise is immense and
even includes a company (ILFC) that leases and
finances aircraft for the airlines and covert government
kidnapping missions such as "enforced renditions." One
of Greenberg's aircraft, for example, a Gulfstream 4
Law Animated World, 15 September 2017
96 Solving 9/11: The Deception that changed the World (Christopher Bollyn)
with tail number N971L, was evidently involved in the
abduction of crew members who survived the Estonia
catastrophe in September 1994. Greenberg's plane
left Stockholm's Arlanda airport with half a dozen
"unregistered passengers" and took them to
Bangor, Maine, the day eleven surviving crew
members disappeared from Stockholm's
Huddinge hospital.
This is just a fragment of the criminal activity in
which Greenbergs A.I.G. is involved. As I wrote in a
earlier chapter, Greenberg and A.I.G. are
involved in the 9-11 false flag terror attacks:
KROLL, GREENBERG & THE ISRAELIS
Rebuffed in 1987, the Mossad team of Malkin
and Shalom didn't give up on Isser Harel's
prophecy of 9-11, which meant getting the Port
Authority security contract. They simply
changed tack and decided to work in a less
obvious manner, through dedicated and corrupt
American Zionists like Jules Kroll and
Maurice Greenberg. Shalom went to work for
Kroll, according to the online 9/11
Encyclopedia entry for Maurice "Hank"
Greenberg, the CEO of the American
International Group (A.I.G.) insurance
company
In 1993, Maurice Greenberg became a partner
and co-owner of Jules Kroll's company when
A.I.G. bought twenty-three percent of Kroll.
Greenberg is very close to Henry Kissinger,
who became chairman of A.I.G.'s International
Advisory Board in 1987.
Henry Kissinger and Maurice Greenberg have worked together for decades.
Law Animated World, 15 September 2017
(2017) 2 LAW
Greenberg was deeply involved in China in the
80s, where Henry Kissinger was one of his
representatives, according to the 9-11
Encyclopedia. Through the China trade
Greenberg became close to Shaul Eisenberg,
the leader of the Asian section of the Israeli
intelligence service Mossad, and agent for the
sales of sophisticated military equipment to the
Chinese military, it reports. Eisenberg was also
the owner of Atwell Security of Tel Aviv
Maurice Greenberg and Jules Kroll became
partners in 1993, the same year Kroll
Associates "was chosen over three other
companies to advise the Port Authority on a
redesign of its security procedures." "We have
such confidence in them that I have followed
every one of their recommendations," Stanley
Brezenoff, the Port Authority executive
director, told the New York Times in 1994.
Kroll controlled security at the World Trade
Center complex in 2001 and was responsible
for hiring John O'Neill, the former chief of
counterterrorism for the FBI, who died on 9-
11, reportedly his first day on the new job.
Greenberg's son, Jeffrey W. Greenberg,
became CEO of Marsh & McLennan (MMC)
in 1999 and chairman in 2000. The first plane
of 9-11 flew directly into the secure computer
room of Marsh (Kroll) USA, part of
Greenberg's company. Mark Wood, an
eyewitness, said: "It looked like a mid-sized
executive jet and the way it turned suggested it
was being aimed deliberately at a target."
THE RIP-OFF CONTINUES
By April 2009, A.I.G. had received more than $180
billion in loans from the U.S. government. Goldman
Sachs, the former employer of Hank Paulson,
Secretary of the U.S. Treasury, was the largest
single recipient of this money receiving nearly $13
billion in U.S. taxpayer funds. While A.I.G. owed
this money to Goldman Sachs and other private
investment banks, members of Congress and some
voices in the media expressed outrage that taxpayer
money was going to the banks. Had the corrupt and
fraudulent A.I.G. been allowed to fail in a controlled
manner through bankruptcy, bondholders and
derivative counterparties (major banks) would have
96
(2017) 2 LAW Solving 9/11: The Deception that changed the World (Christopher Bollyn)
suffered significant losses, limiting the amount of
taxpayer funds directly used. Ben Bernanke argued:
"If a federal agency had [appropriate authority] on
September 16 [2008], they could have been used to put
A.I.G. into conservatorship or receivership, unwind it
slowly, protect policyholders, and impose haircuts on
creditors and counterparties as appropriate. That
outcome would have been far preferable to the situation
we find ourselves in now." The "situation" Bernanke
means is that the claims of bondholders and
counterparties were paid in full - at 100 cents on the
dollar - with taxpayer funds without giving taxpayers
the rights to the future profits of these institutions. In
other words, the benefits went to the banks while the
taxpayers pay the costs. Joshua B. Bolten, former
executive director of legal and governmental
affairs at Goldman Sachs, became Chief of Staff
for President George W. Bush in April 2006.
Bolten is credited with recruiting Henry Paulson,
CEO of Goldman Sachs, to become Treasury
Secretary in July 2006. Paulson crafted the A.I.G.
bailout in which Goldman Sachs was the largest single
recipient of this money ($12.9 billion). Paulson spoke
with the CEO of Goldman Sachs at least dozen times
during the week of the bailout, according to the New
York Times. [Finis]
***
Sources and Recommended Reading:
Bollyn, Christopher, "Were Key Survivors from
Estonia Catastrophe Kidnapped?" January 2005
http://www.elaestonia.org/eng/index.php?module=lin
gid&link=133
Bollyn, Christopher, "The Architecture of Terror:
Mapping the Israeli Network Behind 9-11," July 24, 2008
Bollyn, Christopher, 'Ghost Planes' Make Suspects
Disappear: Pentagon has new secret weapon in 'War
on Terror' American Free Press, January 2004; http://
www.americanfreepress.net/html/ghost_planes.html
Bush, George W., "President's Address to the Nation,"
Office of the Press Secretary, September 24, 2008
www.whitehouse.gov/news/releases/2008/09/2008092
4-10.html
Herszenhorn, David M., "Administration Is Seeking
$700 Billion for Wall Street Bailout," New York
Times, September 20, 2008
Morgenson, Gretchen, "A.I.G. Provides Details of
Executive Compensation," New York Times, June 28,
2005
97
97
New York Times, "Carolina Revives its Stump
Meetings," May 23, 1982 (Article about Alan
Schafer's criminal activities in Dillon County
elections, S.C.)
New York Times, "Excerpts from Complaint Against
A.I.G. by New York," May 27, 2005 (pg. C6)
Treaster, Joseph B., "Insurance Chief Quits in Inq uiry
Led by Spitzer," New York Times, October 26, 2004
Wikipedia entry for American International Group
(A.I.G.), August 25, 2009 9-11 and the Crisis on Wall
Street - The Fleecing of America, September 26, 2008
Final Edit August 25, 2009
Latest Correction - February 24, 2010
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Law Animated World, 15 September 2017
 BRICS SUMMIT 2017 BRINGS INDIA, CHINA CLOSER
BRICS summit in Xiamen
brings China, India closer
XIAMEN, China, Sept. 4 (Xinhua): The 9th BRICS
Summit opened here Sunday, bringing together
representatives from Brazil, Russia, India, China,
South Africa and beyond in this picturesque coastal
city to strengthen South-South cooperation and give a
greater voice to the world's emerging economies.
the summit is indirectly serving as a venue to help
mend ties between China and its neighbor, India, after
the recent border standoff between the two countries.
UPBEAT MOOD
"I think the trend is good, everybody is optimistic,"
said Atul Dalakoti, executive director of the
Federation of Indian Chambers of Commerce and
Industry [speaking] right after the opening ceremony
of the BRICS Business Forum on Sunday afternoon.
[He] commented on Chinese President Xi Jinping's
remarks in his speech at the opening ceremony that
"new growth drivers are yet to emerge" by saying,
"we need to think outside the box and look at new engines of
growth so that we can push the economic development."
"I sense more internal optimism and external
confidence," said Robert Lawrence Kuhn, a prolific
China expert and observer, chairman of the Kuhn
Foundation, [he] believed that the "optimism" and
"confidence" are driven by two factors: the improving
economic situation of several of the BRICS members
and China hosting the summit, "which increases the
visibility, publicity and international interest." Although he
admitted that fundamental differences exist among the
BRICS countries, the American expert said that "what
unites them is stronger than what divides them," adding that
he believed BRICS is playing a role in resolving the
differences.
Courtesy: Tamara Treichel at http://www.bricschn.org;
dt. 05-09-2017; edited excerpts; emphases in bold ours - IMS.
Law Animated World, 15 September 2017
- Tamara Treichel
Swaran Singh from the School of International
Studies at Jawaharlal Nehru University remarked on
the recent friction between China and India and how that did
not get in the way of the friendly and cooperative summit
atmosphere. "Even China-India differences have been
carefully kept aside and not allowed to intervene in their
multilateral cooperation," he said , calling the resolve
of the Dong Lang military standoff "a sign of their
(China and India's) diplomatic maturity as major powers."
CHINA & INDIA AS BRICS BUDDIES
Singh said. BRICS is an ideal opportunity for
India to contribute to global governance structures and help
empower other developing nations, he said that BRICS
is clearly having a positive effect on economic
engagement between China and India. Last year,
bilateral trade volume exceeded 70 billion U.S. dollars, and
China has become India's largest trading partner.
Dalakoti pointed out the rapid growth of China-India
trade over the past 15 years. He saw BRICS as having
a "very, very positive" theme of people from five continents
trying to work together and as China and India being equally
important members within the bloc.
BRICS GOING FORWARD
The BRICS nations originally enjoyed a reputation
for rapid economic growth, but some critics have
argued that BRICS is losing its steam. That idea [not]
very convincing to some. Singh suggested that BRICS
still very much remains a good alternative to existing
institutions as it offers a new model of financial governance
even helping transform conventional Bretton Woods
financial institutions. "BRICS is surely seen today as the
only grouping, along with the G20, that can redeem the global
economy from its continued slowdown," he added. Dalakoti
believed BRICS could help raise awareness of the
importance of globalization, especially as some countries are
reverting to isolationist and protectionist policies. He said
We all need globalization, we all need to work together the
whole theme of globalization is the bedrock of what we are talking
about at BRICS today."
*****
98
(2017) 2 LAW Historical inevitability or electoral corruption? [IMS] 99
( Carried from p. 2 )

legislatures, it is opined that without in anyway

NEHRU
Dr. N.S. Hardikar Nehru in uniform with Seva Dal volunteers at Allahabad
Another remarkable development in regard to
the Kakinada Congress was that for the first time a
Congress Volunteer Corps came into existence
under the command of Sri Jawaharlal Nehru. This
Hindustan Seva Dal was, however, the original
concept of Dr. NARAYAN SUBBARAO HARDIKAR
(7 May 1889 - 26 August 1975), who is rightly
considered as the founder though Nehru was its first
commander-in-chief. From Andhra only 1000
volunteers were sought to be enlisted and so
enrolled with Sri Brahmajosyula Subrahmanyam as
the provincial commander. Wikipedia informs that
The Dal played a stellar role in the Civil Disobedience
Movement, organising mass picketing and enrollment of new
members into the Congress party. The significance of the
Dal in the Civil Disobedience Movement can be
gauged from the fact that in 1934, when the
Movement came to an end and the colonial authorities
lifted the ban on the Congress and its organisations,
they continued to proscribe the Dal. The Seva Dal
became the central volunteer organisation of the Congress and
focused attention on imparting its volunteers physical training
and worked towards promoting communal amity.
Then it needs also be noted that the Andhra
Provincial Congress [National] Sub-Committee
comprising of 25 members met at Kakinda to elect
delegates from Andhra to, and make the necessary
preparations for, the forthcoming annual Congress
session. The morning session began under the
presidency of Sri Bhogaraju Pattabhi Sitaramayya.
The afternoon session was presided over by Sri
Tanguturu Prakasam Pantulu. The Sub-Committee
passed several resolutions out of which one main
resolution became quite controversial. It was
introduced by Sri Brahmajosyula Subrahmanyam
and ultimately passed with majority. It ran thus:
Expressing complete confidence in Mahatma
Gandhis Non-Cooperation movement and
keeping in view the differences and discussions
that arose after the Gaya Congress between the
no- and pro-legislature sections and recent Delhi
resolution on [entry into and working within]
connected to the legislature activities, all the
parties/sections in the country should exert all
their energies to [successfully] carry out the
Bardoli programme. (free translation from Telugu)
However, this resolution, though passed with
majority, was seriously contested and especially the
next day morning Sri T. Prakasam and Sri
Ayyadevara Kaleshwara Rao had even resigned
their presidential and secretary posts protesting that
this resolution was in defiance of the Delhi
resolution regarding the pro-legislature entry
contentions. Though most of the delegates requested
them to withdraw the resignations, they refused to
do so and in their place Sri Malladi Krishnamurthi
with majority (19:5 vote), and Sri Brahamjosyula
Subrahmanyam unanimously, were elected to the
posts of the President and Secretary of the Sub-
Committee respectively. It is noteworthy that no
resolution appealing to the Government of India to carve out a
separate state for Andhras from the Madras Presidency was
moved in this sub-committee meeting. A proposal coming
from Nizam Hyderabad State to accord one AICC
member to that province was postponed for
consideration in the Congress session.
On 26 December 1923 the All India Congress
Committee met at the venue of the to-be-held annual
Congress sessions, named as Gandhi Nagar, in
Kakinada and the Boycott of Foreign Goods
committee report and the draft national accord were
submitted for its consideration. Deshabhakta Sri
Konda Venkatappaiah Pantulu informed the AICC
that the Committee to inquire into Hindu-Muslim
riots could not visit the riot torn places due to
disturbances there and hence no report by it could
be produced. Thereafter the AICC converted itself
into the Subjects Committee of the forthcoming
Congress Annual Sessions under the presidency of
Maulana Mohammed Ali. A serious controversy
arose with a resolution for COMPLETE INDEPENDENCE
with according change in the Congress creed proposed by
Sri Ramprasad Misra of the United Provinces Congress
Committee, which was supported by several delegates
including Subhas Chandra Bose (by telegraphic message),
but opposed by the majority for various reasons.
That proposal was rejected and no change was made in the
Congress creed. (to be continued)
*****

99 Law Animated World, 15 September 2017

 100 Law Animated World {15 September 2017} Postal Reg. No. HD/1098/2017-19

CHANGSHAH
- Mao Zedong*
Alone I stand in the autumn cold
Mao as when young
Mao 1927 Statue in Changsha Mao and Jiang Qing Mao greets Nixon 1972
On the tip of Orange Island,
The Xiang flowing northward;
LONG MARCH I see a thousand hills crimsoned through
The Red Army fears not the trials of the Long March, By their serried woods deep-dyed,
Holding light ten thousand crags and torrents. And a hundred barges vying
The Five Ridges wind like gentle ripples, Over crystal blue waters.
And the majestic Wumeng Mountain roll by, globules of clay. Eagles cleave the air,
Warm the steep cliffs lapped by the waters of the Jinsha, Fish glide under the shallow water;
Cold the iron chains spanning the Dadu River. Under freezing skies a million creatures contend in freedom.
Min Mountains' thousand li of snow joyously crossed, Brooding over this immensity,
The three Armies march on, each face glowing. I ask, on this bondless land
*** Who rules over man's destiny?
I was here with a throng of companions,
SNOW Vivid yet those crowded months and years.
Look at the landscape of northern China: Young we were, schoolmates,
The vast frozen land is covered with ice. At life's full flowering;
And the snow flits far-flung in the sky. Filled with student enthusiasm
On both sides of the Great Wall. Boldly we cast all restraints aside.
The empty wilderness survives; Pointing to our mountains and rivers,
From upriver to downstream, Setting people afire with our words,
The roaring currents disappear.
We counted the mighty no more than muck.
The mountains dance like silver snake,
The highlands slither like huge wax elephants. Remember still
Vying with the sky for height. How, venturing midstream, we struck the waters
When comes the sunny day, And the waves stayed the speeding boats?
The land is dressed up with bright sun and ***
clear white snow,
What a gorgeous and attractive scene it is! REPLY TO LI SHUYI'
Such a beautiful land [Immortals]
Has infatuated countless heroes. // However
Pioneer emperors Qin Shihuang and Han Wudi I lost my proud Poplar and you your Willow,
Were men lack of poem's grace talent; Poplar and Willow soar to the Ninth Heaven.
Great emperors Emperor Taizong of Tang and Song Taizu Wu Gang, asked what he can give,
Were short of spirit and strength. Serves them a laurel wine.
That proud son of Heaven, // Genghis Khan The lonely moon goddess spreads her ample sleeves
Only enjoys shooting the big Hawk with // his bow. To dance for these loyal souls in infinite space.
Alas, They are now gone as history: Earth suddenly reports the tiger subdued,
The real great hero, Tears of joy pour forth falling as mighty rain.
Is coming up now.
[Sivasagar i.e. late Com. K.G. Satyamurthi had rendered an excellent
[*MAO ZEDONG (Mao Tse-tung) (b. 26-12-1893; d. 9-9-1976),
informal translation of this poem in Telugu as
   
 ,
Chinese communist revolutionary, political theorist and founding
father of the People's Republic of China, governed it as the Chairman   
 /
  ,       etc. He
of the Communist Party of China from its establishment in 1949 informally translated/imitated Long March verse too exquisitely
until his death in 1976; he was also a renowned poet in classical as
  ,
  , !"# $% &'()*+ , ! etc. ]
Chinese tradition.]
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