What three recent cases say about our labyrinthine legal system

This column is for three cases from January 2022.

The Supreme Court (SC) ruled on a case in January 2022 and the judgment made headlines. If a Hindu man dies intestate (without a will), the daughter can inherit her father’s self-acquired property. Gurunatha Gounder (I) had two sons, Marappa Gounder and Ramaswamy Gounder. Ramaswamy Gounder predeceased his older brother, Marappa, who also died long ago, in 1949. A minor point has been raised as to whether Marappa Gounder died in 1949 or 1957.

Why is this timeline important? Because the Hindu Succession Act was passed in 1956 and it governs intestate succession between Hindus. This piece, about the year of Marappa’s death, was considered by a Magistrate’s Court (1994 judgment) and Madras High Court (2009 judgment) and both courts decided that Marappa had died in 1949, not 1957. The SC saw no reason to question this established fact. Another fact has also not been questioned: in 1938, Marappa bought the property on his own. It was not a joint family property. He could have handled it as he pleased if he had left a will. Unfortunately, he died intestate. Marappa Gounder had only one daughter, Kupayee Ammal, and no sons. She died in 1967 and left no children. Ramaswamy Gounder had one son and four daughters. The son was Gurunatha Gounder (II). The daughters were Thangammal (now dead), Ramayeeammal (now dead), Elayammal and Nallammal. Thangammal, now dead, was the original claimant, who requested the partition.

When Marappa Gounder dies, who should inherit his property? Should it be Kupayee Ammal, the only daughter? Or, since she was female, should it be Ramaswamy Gounder’s son, Gurunatha Gounder (II)? When Kupayee Ammal dies, who should inherit the property? Should it be Gurunatha Gounder (II) and his heirs, or should his four sisters also have a share?

The SC decided: “Applying the legal proposition set forth above to the facts of this case, from the estate of the lawsuit properties opened in 1967 to the death of Kupayee Ammal, the 1956 law will apply and so the daughters of Ramasamy Gounder will be ranked- Me too, their father’s heirs will also be heirs and will be entitled to 1/5th share in each of the properties of the suit Incidentally, Gurunatha Gounder (II) is also dead Most of the original parts are deceased, including not only the one who first requested the split, but also the original caller.

Azadi Ka Amrit Mahotsav is celebrating 75 years of India’s independence and we are setting a model for India in 2047. Is it just a legacy issue that should have been settled in 1949, or in 1967 , be settled in 2022? Imagine the mess in the application of what the SC has decided. The pursuits of fathers (or mothers) fall on sons and daughters, up to the third or fourth generation.
Part of the mess is due to the complicated nature of inheritance and succession laws, especially if the individual dies intestate. There are constitutional problems, one part of the Constitution vis-à-vis another. Although the issue is controversial, we cannot deny that we do not have a framework of personal laws suitable for 21st century India. Add to this the long delays in settling disputes, the overload in the admission of cases and even the language of judgments.

Consider another recent case from Mumbai, where the Metropolitan Magistrate acquitted Shilpa Shetty of charges of obscenity and indecency. In 2007, at a promotional event, Richard Gere embraced her and FIRs were filed in Rajasthan and Uttar Pradesh. These FIRs mainly fell under the Indecent Portrayal of Women (Prohibition) Act and Sections 292, 293 and 294 of the ICC (Indian Penal Code). I think anyone reading these statutes and articles should agree that (a) these FIRs should not have been filed; (b) even if there was an FIR, the case should not have been admitted to court; (c) it should not have taken 15 years to decide. The police and the courts should have better things to do. Shouldn’t we be more selective about which cases are admitted to court?

On language and simple English, I repeat myself. (I have written about this in the past.) I am repeating myself because such incidents happen again, especially in Himachal Pradesh, although Judge Sureshwar Thakur has now moved elsewhere, to the Punjab High Court and of Haryana.
In January 2022, two SC judges could not understand a judgment written by Thakur in 2017 and had to ask if it was written in Latin. January 2022 was not the first time. (It was also incomprehensible in the past.) There were similar instances for the High Court of Himachal Pradesh in April 2017, December 2018 and March 2021.

In most organizations, people learn from past mistakes. But beware of the Contempt of Courts Act 1971. When we hear contempt of court, we tend to think of civil contempt, where a judgment or direction of a court is not complied with. But this 1971 law also contains provisions on criminal contempt. Any act that “scandalizes or tends to scandalize, or lowers or tends to lower the authority of a court” is a criminal contempt. “To scandalize” is neither contempt by interference, nor contempt by disobedience. We inherited this expression from Great Britain. In 2013, following a report by the Law Commission (2012), the UK Crime and Courts Act stated: “Scandalizing the judiciary (also called scandalizing the court or scandalizing the judges) is abolished in as a form of contempt of court under the common law of England and Wales.

The author is Chairman of the Prime Minister’s Economic Advisory Council. Views are personal

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