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The arduous task of proving a Will: The Supreme

Court's judgment on “Suspicious Circumstances”

Supreme Court

Rajat Arora

Published on: 01 Jun 2020, 8:29 pm 7 min read

The Supreme Court of India recently delivered a significant and exhaustive

judgment on the debatable issues surrounding the execution of a Will and grant
of probate in the matters of testamentary succession under the Indian
Succession Act, 1925 9 (Kavita Kanwar v. Mrs Pamela Mehta & Others).

The judgment deals with the characteristic and most used argument of
“suspicious circumstances” to invalidate a Will, or in simple words, to assert
that the Will is unworthy of believing.
A circumstance is considered “suspicious” when it is not normal or is ‘not
normally expected in a normal situation’ or is ‘not expected of a normal person’.
Illustrative instances of suspicious circumstances could be a shaky or doubtful
signature of the testator; feeble or uncertain mind of the testator; an unfair
disposition of property; an unjust exclusion of the legal heirs and particularly
the dependants; an active or leading part in making of the Will by the
beneficiary. However, such suspicion should be real and valid, and not merely a
fantasy of a doubting mind.

Before coming to the analysis of the judgment, it would be useful to note that
the law of testamentary succession is codified under the Indian Succession Act.
Chapter VI of Part VI of the Act (Sections 74 to 111) deals with the construction of
Wills, while Part IX of the Act deals with the grant of Probate/Letter of
Administration.

As a matter of practice for proving a Will, a petition is filed before the

competent court for the grant of probate/letters of administration. After the
petitioner discharges the initial burden of proving the Will by showing
compliance of the provisions of the Act and calling the attesting witness(es), the
court calls upon the contesting party to state its objections to the validity of the
Will. At this stage, the contention of suspicious circumstances surrounding the
execution of the Will is raised by the respondent to say that the disposition of
the properties as stated in the Will is not the genuine wish of the testator. This
argument of suspicious circumstances comes in several hues depending upon
the facts and circumstances of the matter.

Facts of the case

The appellant (a major beneficiary) was a losing party, both in the trial court and
the High Court, whereby the Will of the mother (testator), propounded by the
appellant herself as the executor, was disbelieved. Under this two-page Will, the
appellant was the major beneficiary of the estate of the testator to the exclusion
of other legal heirs, namely one widowed sister and a brother (the respondents).

Interestingly, the property in question came to the mother through the Will of
the father, who was the original owner of the property. During his lifetime, he
had already gifted a portion of the original property to the appellant. It was for
the other remaining portions of the same property that the disputed Will was
formulated.

Another important aspect of the matter was that the Will was partly holographic
(handwritten by the testator) in a way that the first and the last portions of the
Will were written by hand by the testator and the rest of the portions, which
actually dealt with the devolvement of the property, were typed and printed.

Arguments of the parties

It was the case of both respondents that the Will was shrouded with suspicious
circumstances as per the evidence led by them, and therefore, must be
disbelieved. It was argued that in the absence of any dispute with the mother of
the respondents, there was no reason for the mother to exclude her children
and grandchildren. Therefore, the Will is unnatural and does not express the
intention of the testator. Further, the Will so propounded has an additional third
page which has not been filed by the appellant, and therefore, the Will is
incomplete.

The appellant, on the contrary, argued that she had discharged the burden of
proving the execution of the Will by the testimony of two attesting witnesses.
Secondly, it was for the testator to decide about the bequeathing of properties.

Evidence before Court

On appreciation of the evidence by the trial court and the High Court, the
following facts emerged out of evidence led by the parties. First, the relations
between the testator mother and the respondents were cordial. It was shown
that the mother was happy with the respondents, one of which had taken good
care of her. Second, the mother could not complete her education beyond Class
X and was not computer literate. Third, the Will had certain sections containing
technical and legal jargon that could not be understood by a layperson.

Fourth, the appellant could not explain why only certain portions were
handwritten, while certain parts were typed out. Fifth, it was found that the
testimony of the appellant stating that she had not participated in the execution
of the Will was wrong and contradictory. It emerged that the appellant, contrary
to her evidence and pleadings, had in fact played a vital role in the execution of
the Will. Lastly, the Court found no credibility in the testimony of the attesting
witnesses, as the daughter of one witness had borrowed money from the
appellant and the other was utterly unknown to the testator.

Curiously, the Court also found that though the appellant had rejected the
presence of third page of the Will in the trial court, before the appeal in the
High Court, she did a volte-face and in fact relied on the third page to dispel the
evidence of suspicious circumstances.

Judgment

The Apex Court, after meticulously analysing the evidence led by the parties
and the law on the subject, dismissed the appeal as it found that “thick clouds
of suspicious circumstances are hovering over the Will in question”.

To arrive at this conclusion, the Court first culled out the legal propositions
from several other landmark judgments. It first relied upon H Venkatachala
Iyengar v. BN Thimmajamma, wherein the Court laid down a few tests to
determine the genuineness of the Will. These included: “Has the testator signed
the Will? Did he understand the nature and effect of the dispositions in the
Will? Did he put his signature to the Will knowing what it contained”?

The Court said that broadly, it is the decision of these questions which will
determine the question of proof of Wills. Though the propounder is not
expected to prove the Will by mathematical certainty and only has to show the
execution in terms of the essential statutory requirements under the Act, in the
presence of suspicious circumstances, the Court would naturally expect that all
legitimate suspicion should be completely removed before the document is
accepted as the last Will of the testator.

The Court then relied on Jaswant Kaur v. Amrit Kaur & Others, which held that
in cases where the Will is shrouded in suspicion, the true question that arises
for consideration is whether the evidence led by the propounder of the Will is
such as to satisfy the conscience of the Court that the Will was duly executed by
the testator.

In another judgment titled Shivakumar & Others. v. Sharanabasppa, the Court

held that if a person challenging the Will alleges fabrication or fraud, undue
influence, coercion etc. in regard to the execution of the Will, such pleas have to
be proved by him. But even in the absence of such pleas, the very
circumstances surrounding the execution of the Will may give rise to doubt or
as to whether the Will had indeed been executed by the testator and/or as to
whether the testator was acting of his own free Will.

Coming to the facts of the present matter, on the issue of non-filing of the
written statement by one of the respondents, the Supreme Court held that the
probate court is a court of conscience and by the very nature and consequence
of the proceedings, filing or non-filing of the written statement or objections by
any party pales into insignificance and is of no effect. It was held,

"The probate proceeding is not merely inter-partes proceeding but leads to

judgment in rem and, therefore, even when no one contests, it does not ipso
facto lead to grant of probate."

After testing the evidence on the threshold of the legal principles stated above,
the Supreme Court dismissed the appeal particularly for the reason that the
appellant tried to mislead the courts by showing her innocence about the
execution of the Will by the testator, even though she played an active part in
the execution of the Will and arranging the witnesses.

The Court further rejected the argument of giving greater presumption of

sanctity to a holographic Will, by observing that the Will in question does not
answer the description of a holographic Will directly because, except for the
opening and concluding paras, the entire Will is in electronic print. It was
observed that even the handwritten portion is not in the diction of the testator
and contains typical legal words like “testament, codicil, give, devise and
bequeath” which cannot be understood by the layperson.

The Court extensively examined the curious flip-flop of the alleged third page of
the Will by the appellant to conclude that if the proof of Will is marred with
such confounding factors, the same can never get the approval of the Court. It
ultimately held that in the totality of circumstances, there appears to be no
reason for the testator to bestow all property to appellant and to exclude other
legal heirs. Therefore, it cannot be said that the testatrix executed and signed
the alleged Will after having understood the meaning, effect and purport
thereof.

Conclusion

An impression that may arise in the mind of readers is that if so many factors
can be put forward before the courts against the grant of probate of a Will, is
there any real possibility of a Will standing the scrutiny of the Court? The
answer to that query would be in the negative, as it is well established that any
stand-alone reason individually does not operate against the validity of the Will
and may not be decisive, unless after taking all relevant factors into
consideration, the Court finds the same to be not representing the real wish of
the testator.

The Court in such cases applies the celebrated rule, called the “Arm Chair rule”,
of interpretation of a Will which says "You may place yourself, to speak, in (the
testator's) armchair, and consider the circumstances, by which he was
surrounded when he made his Will, to assist you in arriving at his intention."

The author is an Advocate-on-Record practicing at the Supreme Court of

India and the Delhi High Court.

Supreme Court of India WILL Executor Propounder of the will

Testator Suspicious circumstances Indian Succession Act

Columns

NCLAT Fortnightly: Important orders on IBC ( July 1

– July 15, 2024)
The article provides a brief look at important orders passed by the NCLAT under
the IBC between July 1 and July 15, 2024.
NCLAT Fortnightly July 1-15, 2024

Arka Majumdar, Juhi Wadhwani, Vikram Chaudhuri, Ishika Neotia, Aakriti Garodia

Published on: 26 Aug 2024, 6:19 pm 9 min read

The following is a snapshot of the important orders passed by the National

Company Law Appellate Tribunal (“NCLAT”) under the Insolvency and
Bankruptcy Code, 2016 ("Code”) during the period between July 1, 2024 to July
15, 2024.

For ease of reference, the orders have been categorized and dealt with in the
following categories i.e., Pre-admission stage, Corporate Insolvency Resolution
Process (“CIRP”) stage, Post-CIRP, Liquidation stage and Miscellaneous.

Pre-admission Stage

1. In Vaibhav Aggarwal v. Mr. Sunil Sachdeva (Company Appeal (AT) (Insolvency)

No. 307/2023), the NCLAT while upholding the decision of the Adjudicating
Authority to admit a Section 9 application for non-payment of license fees, not
only reiterated its earlier stance that rental payments pertaining to immovable
property would constitute operational debt, it seems to have also suggested
that for meeting the threshold, one would be permitted to take into account the
interest payable in the delay of payment of rent as well as GST. In the same case,
the NCLAT reiterated that non filing of a reply to a Section 8 notice does not
preclude a corporate debtor from establishing the existence of pre-existing
disputes in its pleadings. Factually however, it was observed that where a
mediation application was filed by the operational creditor which was a non-
starter on account of non-participation by the corporate debtor, it would not
constitute a pre-existing dispute.

2. In Jaiprakash Agarwal v. Alka Prakash Agarwal & Ors. (Company Appeal (AT)
(Insolvency) No. 292 of 2023), the NCLAT held that a written financial contract is
not a precondition or an exclusive requirement for proving the existence of a
debt and a debt given on the basis of an oral agreement may also constitute
financial debt, if the same can be established from other relevant documents.

3. In Rashtriya Polymers and Solvents v. Kanodia Technoplast Limited

(Company Appeal (AT) (Ins) No. 1140 of 2023) the NCLAT held that if the relevant
threshold under Section 4 can be met without taking into consideration the
invoices pertaining to the period covered under Section 10A, a Section 9
application cannot be held invalid merely on the basis that the Section 8
demand notice contained some invoices which fell within the period of Section
10A.

4. In Rita Malhotra v. Orris Infrastructure Pvt. Ltd. (Company Appeal (AT)

(Insolvency) No. 484 of 2024), the NCLAT held that an allottee to whom a
commercial space or unit has been allotted or when an allottee is entitled to
assured returns, he does not cease to be an ‘allottee’ for the purpose of
attracting threshold limit prescribed under the second proviso to Section 7(1) of
the Code.

5. In Bajrang Steel Trading Company (India) Pvt. Ltd. v. Ramkrishna Engineering

Pvt. Ltd. (Company Appeal (AT) (Insolvency) No. 1086 of 2023), the NCLAT held
that a disputed claim pertaining to interest can only be adjudicated by a
competent court and despite the interest forming part of the invoice, if levy of
interest is disputed, such disputed amount cannot be considered for meeting
the Section 4 threshold.
6. In State Bank of India v. Abhijeet Ferrotech Limited (Company Appeal (AT)
(Insolvency) No. 690 of 2023), the NCLAT observed that the provision contained
under Section 10 of CPC (stay of suit) cannot be applied to bar a proceeding
initiated under Section 7 on the basis of a proceeding initiated before the Debt
Recovery Tribunal as both the proceedings cover entirely different fields. It was
further observed that due to the overriding nature of the Code on account of
Section 238, any order passed under the Recovery of Debts Due to the Banks
and Financial Institutions Act, 1993 cannot operate as issue estoppel between
parties in reference to a Section 7 proceeding.

7. The NCLAT, in Ashok Tiwari v. DBS Bank India Ltd. (DBIL) & Anr. (Company
Appeal (AT) (Insolvency) No. 343 of 2024), held that the initiation of CIRP cannot
be interdicted on the ground of insufficiency of assets of the corporate debtor
to resolve the insolvency.

8. The NCLAT, in Fortune Land Holdings LLP v. SPG Macrocosm Limited

(Company Appeal (AT) (Insolvency) No. 621 of 2024) held that while inadequacy
of stamping of promissory note may be relevant, where the debt and default are
clearly established from other sources such as agreement, audit report, report
of information utility, the issue of insufficient stamping does not outweigh the
substantive evidence of debt and default.

CIRP Stage

1. In, Crown Business Park Tower A Buyers Association, v. Atul Kansal & Ors.
(Company Appeal (AT) (Insolvency) No. 431 of 2023), the NCLAT observed that by
virtue of Regulation 36A (4) of the CIRP Regulations (which deals with invitation
of Expression of Interest), the CoC is empowered to specify different eligibility
criteria for prospective resolution applicants (PRA). It upheld the decision of the
CoC to specify a lower quantum of performance bank guarantee or the
association of allottees submitting the plan as PRA. While upholding the
aforesaid commercial decision of the CoC, the NCLAT found rational basis for
such decision from the fact that the association of allottees had already given
their monies to the corporate debtor.
Post CIRP Stage

1. In PKH Ventures Limited. v Monitoring Agency of Amar Remedies & Ors.

(Company Appeal (AT) (Insolvency) No. 877 of 2024), the NCLAT observed that
where the successful resolution applicant was not in a position to arrange for
the funds relevant for the implementation of the plan, it could not take the
defence of the status of the corporate debtor not being active in the MCA. It was
further observed that when the Adjudicating Authority had refused grant of the
waivers and reliefs sought by the SRA under the resolution plan, and no
challenge was filed against such order, the SRA would not be permitted to rely
on such refusal to grant of waiver, as an excuse for non-implementation of the
plan.

2. In Everlike Real Estate & Developers Pvt. Ltd. v. Mr. Mohit Goyal, CA & Ors.
(Comp. App. (AT) (Ins) No. 978 of 2024), the NCLAT held that while the status of a
homebuyer as a speculative investor is relevant at the stage of admission of
CIRP under Section 7, once admitted, all the homebuyers and allottees,
irrespective of genuine or speculative, are treated as financial creditors. It was
also observed that neither the court nor RERA differentiates between allottees
on the basis of whether they are purchasing for own consumption or for
commercial purpose.

As to whether a plan can categorize homebuyers into different categories and

provide differential treatment, was answered in affirmative with NCLAT
upholding such categorization if backed by some logic and rationale.

3. In Shri Madhukar Shetty v. Bank of Baroda (Company Appeal (AT) (Insolvency)

No. 739-740 of 2024), the NCLAT held that on the basis of a valuation report
obtained prior to the admission of CIRP, the Adjudicating Authority cannot
question the valuation of assets conducted by the IBBI registered valuers in
compliance with the CIRP Regulations.

4. The NCLAT, in Deepak Sakharam Kulkarni & Anr v. Manoj Kumar Agarwal,
Resolution Professional of D.S. Kulkarni Developers Ltd. & Ors (Company Appeal
(AT) (Insolvency) No. 63 of 2024), held that as assets of a third party, which may
be in possession of the corporate debtor, cannot be dealt under a resolution
plan. It, however, went on to distinguish a situation where the assets were in the
name of the promoter but were purchased using the corporate debtor’s funds
by observing that such assets can be made part of a plan.

As to whether the provisions of the Code can be used for the purpose of
extinguishing contractual agreement or negating third party rights, the NCLAT
observed in the negative. In the context of a lease, it specifically went on to
observe that a plan cannot extinguish rights of a lessee in contravention of the
provisions of the agreement.

Finally, this case may be used as a precedent to argue that the deletion of a non-
conforming part of the resolution plan would not amount to modification which
power the Adjudicating Authority or NCLAT lacks.

Liquidation Stage

1. In Mr. Padmanabhan v. Priya S. Anand (Liquidator of RRP Housing Private

Limited) and Ors. (Company Appeal (AT) (CH) (Ins) No.167 / 2024), the NCLAT
noted that an ex -director or shareholder lacked the locus to question the
concluded auction process especially when such appellant had failed to raise his
grievances at the time of publication of bid invitation.

2. In Anuj Bajpai v. Employee Provident Fund Organisation (Comp. App. (AT) (Ins)
No. 1141 of 2023 & I.A. No. 3979 of 2023), the NCLAT held that not only the dues
pertaining to provident fund contribution, even damages and interest payable
on such unpaid contribution are to be treated as being outside the liquidation
estate assets under the Code and the provisions of Section 53(1) of the Code
cannot be made applicable to such dues.

While in the aforesaid case, the damages and interest were also treated at par
with the unpaid provident fund contributions, interestingly, during the same
period NCLAT had in the case of Roofit Industries Ltd. v. Employee Provident
Fund Organisation Company Appeal (AT) (Insolvency) No. 1227 of 2024, not
interfered with the decision of the Adjudicating Authority directing the dues on
account of damages and interest to be categorized as operational debts and be
dealt with under Section 53 of the Code.
In the same case, it was also observed that even if the provident fund claims
relating to two years prior to the CIRP commencement date, it would not form
part of the liquidation estate.

3. In Avil Menezes, Liquidator of Sunil Hitech and Engineers Limited v. Principal

Chief Commissioner of Income Tax, Mumbai (Company Appeal (AT) (Insolvency)
No. 258 of 2024), the NCLAT examined the difference between the moratorium
provision under Section 14 (during CIRP) and Section 33(5) (during liquidation)
and went on to observe that while both the provisions bar institution of fresh
suit or legal proceedings, unlike Section 14, Section 33(5) does not bar
continuation of pending suits.

In the context of status of income tax department as a creditor as well as its

right to claim set-off against income tax refunds owed to the corporate debtor,
the NCLAT observed that there is no basis to treat income tax department as a
secured operational creditor, nor can the income tax department suo motu
initiate recovery of dues or execute their claim unilaterally by adjusting the
income tax return amount with pre-CIRP dues.

Miscellaneous

1. In State Bank of India v. India Power Corporation (Company Appeal (AT) (CH)
(INS) No. 53 of 2024), the NCLAT observed that for the purpose of filing an
appeal, the free copy sent to the parties under Rule 50 of NCLT Rules, 2016
cannot substitute the requirement of attaching a certified copy of the order.

2. In D. Srinivasa Rao v. Stressed Assets Stabilisation Fund (Company Appeal (AT)

(CH) (Ins) No. 80/ 2024), the Chennai Bench of the NCLAT deliberated upon the
distinction of power of review and power of recall, and noted they operated in
two different fields having two different facets, with different procedural
situations.

The Bench noted that Rule 11 of the NCLT Rules could not be permitted to
introduce new facts by filing a recall application and agitate the issue de novo. It
was further observed that grounds which were already available to be argued at
the stage where the principle hearings were being decided cannot be pressed to
sustain a recall application.

3. In Sangita Arora v. IFCI Ltd. [Comp. App. (AT) (Insolvency) 1102/2024], the
NCLAT referred to the case of Krishan Kumar Basia v. State Bank of India
(Company Appeal (AT) (Insolvency) No.721 of 2022) to observe that the interim
moratorium under Section 96 commences on the date on which the application
is filed and not the date when the application is registered and numbered by the
Registry.

In the course of the aforesaid decision, NCLAT also refused to follow the
decision in case of Jeny Thankachan vs. Union of India & Ors. [WP(C) No.31502
of 2023], wherein the Kerala High Court had observed that moratorium would
commence not on the date of the filing of the application, but only when the
application was complete in all respects and was defect free. For arriving at such
conclusion, the NCLAT observed that such decision of the Kerala High Court
was de hors the statutory scheme as delineated in NCLT Rules, which contained
a specific definition of the expression filed under Subrule (2) of Rule 14 of NCLT
Rules, 2016 which serves as the trigger point for initiation of moratorium.

4. In Ms. Mausumi Bhattacharjee v. Jumbo Chemicals and Allied Industries

Private Limited and Anr. (Comp. App. (AT) (Ins) No. 886 of 2024 & I.A. No. 3196 of
2024), the NCLAT held that a settlement deed executed by a corporate debtor,
whose name was struck off on the date of such execution, would continue to
have binding effect on the name of the corporate debtor upon being restored.

About the authors: Arka Majumdar is a Partner, Juhi Wadhwani is a Senior

Associate, Vikram Chaudhuri, Aakriti Garodia and Ishika Neotia are Associates at
Argus Partners.
Arka Majumdar, Juhi Wadhwani, Vikram Chaudhari, Aakriti Garodia, Ishika Neotia

IBC National Company Law Appellate Tribunal Argus Partners

Arka Majumdar Insolvency and Bankruptcy Code, 2016 IBC Orders

NCLAT Orders Juhi Wadhwani Aakriti Garodia Vikram Chaudhuri

Ishika Neotia
Columns

Teaching Manusmriti in law colleges: It’s the

ulterior motive that is troublesome
Delhi University's move to introduce Manusmriti as part of its curriculum faced
intense criticism, eventually prompting the University to cancel the move.

Law schools

Aditya Raj Singh Yadav

Published on: 24 Aug 2024, 6:28 pm 5 min read

Often, in order to mask present inadequacies, societies invent ways to appeal to

an imagined gloried past, similar to what Johannes Hofer described as nostalgia.
To that end, the historical heritage of India serves as a good source; its vast
literature can be harnessed to invoke such imaginations.

Delhi University’s Faculty of Law tried to match the same appeal when it
announced the proposal for the incorporation of classical Hindu jurisprudential
commentary the Manusmriti (100 AD) as a distinct part of the law syllabus for
undergraduate studies. As expected, the move faced intense criticism across the
spectrum, eventually prompting the University to cancel the move.
Reaction to the announcement was not a surprise, as those well-versed in
Indian political history know how opposition to the Manusmriti was central to
the assertion of Dalit dignity, notably the heroic act of its burning in 1927 by Dr
BR Ambedkar, now widely considered an iconic moment in the fight for Dalit
dignity. The move was criticised as an attempt to promote casteist bias and
neglect of the Dalit identity. Damage control by canceling the move offers no
solution. The controversy, therefore, needs to be appreciated with mature
understating to find a better answer.

Historical texts are an essential part of the legal studies

It is common for students in every field of modern education to spend some of

their time learning the history of their discipline to appreciate the contributions
made in the past that made the advancement of the present possible. However,
the legal field is hugely different in this regard.

Thinkers of the stature of Maine, Savigny and Maitland, in their seminal works,
underscored the importance of legal history. For the legal field, history is
encapsulated in terms of a perennial sacred river that provides the current
practitioners with the distilled knowledge of historical traditions, starting from
the ancient laws of Babylon. Legal history is a vast landscape that covers
Roman-Greek law, the ancient West, the Chinese-Confucian traditions, religious
laws, common law and customary traditions, just to name a few.

India is no different, and that becomes abundantly clear in the case of personal
laws. Any student of such would testify how customs, traditions and rules of
ancient texts are interwoven in the fabric of laws that are still in practice. Some
texts have a share in shaping Indian society at a deep level. For example, in the
case of the iconic authoritative commentary on Hindu laws Miatakshara by
Vijnaneshwara has had such a far-reaching impact that its legacy “still resonates
in India’s modern legal system”, as observed by Justice Indresh of Karnataka
High Court in a recent conference at the Central University of Karnataka.

Take an example to further highlight the point: in Vedic times, marital unity
between a man and a woman was bestowed upon the performance of sacred
rites detailed in the Rig Veda. The continuous practice of such is so embedded
in the institution of Hindu marriage that Section 7 of the Hindu Marriage Act,
1955, provides that where, “…rites and ceremonies include the Saptapadi (that is,
the taking of seven steps by the bridegroom and the bride jointly before the
sacred fire), the marriage becomes complete and binding when the seventh step
is taken.” The spiritual significance of this is highlighted by the address
following Saptapadi, “… into my will, I take thy heart, thy mind shall follow mine.”

The legal significance of such a requirement is more than merely performative

in nature, as non-performance of this essential ceremony results in making the
supposed marriage non-est (void) in the eyes of the law. This was also noted in
the recent judgment of Justice Nagarathna, (Dolly Rani v. Manish Kumar, 2024):
“A marriage is not an event for ‘song and dance’ and ‘wining and dining’ … a
special place is given to rites and ceremonies in the [Hindu Marriage] Act. that
the critical conditions for the solemnizing of a Hindu marriage should be
assiduously, strictly and religiously followed … the genesis of a sacred process
cannot be a trivial affair.”

Similar provisions in other laws also sanctify religious practices. For example,
“Ashirvad” ceremony of the Parsi community under Section 3(1)(b) of The Parsi
Marriage and Divorce Act, 1936 or, Shariat laws applicable to Muslim marriages
under The Muslim Personal Law (Shariat) Application Act, 1937. Such
coalescence likewise exists to such an extent in some provisions of personal
laws that a rule of positive law laid in statute books upon careful discovery
reveals itself as an extension of some ancient religious-legal authority.

Hence, the introduction of historical texts features regularly in the legal

curriculum. But what amazes one the most is when a historical text is
specifically added that has a chequered history of both influencing the values of
Hindu society and sustaining prejudices against lower castes. That text is
Manusmriti.

Two faces of Manusmriti

An exhaustive code running into thousands of verses, the mythical tale of Manu,
the first man, is central to the divine origins of the Manusmriti.

Of these thousands of verses, some important verses of the code are more
philosophical. For example, (See reference here), “… advise against selfishness -
verse 2.2”; “Dharma protects those who protect dharma - verse 8.15” and many
other verses which highlight spiritual messages. Also, there is a significant part
of the code which details regulations on topics ranging from mundane
household activities to the prescription of ethical behaviour for kings and other
subjects.

However, apart from these verses and segments, there are many problematic
verses in the code that promote caste bias and are derogatory to women. For
example, (See reference here), “... creation of castes, whereupon the lower
castes are given an inferior divine origin - verse 1.31”, “… permanent servile
status accorded to lower castes - verse 1.91”, “… creation of institutional
monopoly over matters of learning - verse 1.103”, “… denial of agency or freedom
to women- verses 5.145/146”,”… excessive punishment for lower castes and
exception therefrom for upper castes-verse 8.124.”

Manusmriti, thus, is a text of moral sanctions wrapped in religious sanctimony

that reflects the outdated mindset of a bygone age that is grossly irrelevant to
modern rational society. In historical terms, its creation came at a time when
ritualistic Puranic hold over Hindu society was most potent. That explains its
unique emphasis on controlling seemingly unimportant aspects of life.

The above context explains why so many well-intentioned people have intensely
criticised the announcement of the incorporation of the text into the
undergraduate law syllabus. Their apprehension that this move will foster a
sense of division and discrimination based on the identity of caste is squarely
legitimate, that too in classrooms of law colleges filled with impressionable
young students who are vulnerable to the present hyper-charged political
environment where the distinction between “real facts” and “alternative fiction”
has increasingly become blurred.

How to fulfill the purpose of legal education

Quality legal education is sine qua non for creating competent lawyers, and one
essential aspect of such education is the inculcation of ethical values upon
which the Constitutional edifice stands and the liberal democracy thrives. This
is not a mere dream to build a better future; rather it is a hard necessity to have
a functioning democracy. The announcement unfortunately appears more like
an effort to promote hidden political agendas over genuine academic interest,
which does not serve the ends of legal education in any shape or form.

As Gandhi famously said, “A lawyer is the salt of the nation”. Then, the choice
becomes automatically clear - no student worth his salt would demand an
education that comes at the expense of the shame and humiliation of his fellow
brothers, as no amount of learning is greater than the spirit of common
brotherhood enshrined in the Preamble of the Constitution of India.

Aditya Raj Singh Yadav is an Advocate practicing before the Delhi High Court
and Sessions & District Courts, Delhi.

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 Delhi University Indian Legal Education Manusmriti

Faculty of Law, University of Delhi

Columns

THE US LL.M. adventure: Realities beyond the

classroom
Despite how polished the professional lives of LL.M. grads may appear on
LinkedIn, the reality of their journey may have been far less glamorous.

LL.M.

Vayuna Gupta

Published on: 24 Aug 2024, 5:29 pm 3 min read

It’s that time of the year again! Thousands of young adults are all set to move to
the United States for further education, many with hopes and dreams of joining
the workforce in the country right after.
While there are ample resources for STEM professionals, there are substantively
fewer for legal professionals. Let’s talk about pursuing an LL.M. and seeking
opportunities in the United States.

I’d like to preface this article by saying that I write specifically for those who
intend to join private or public interest employers after their graduation and not
for those aiming to make a career in higher education.

LL.M.s are short, nine-month, intensive courses. They fly by before they begin.
They’re valuable not only for the quality of coursework and teaching methods,
but also for the entire journey they encompass. Adapting to a new country,
often for the first time, means embracing diversity in thought, clothing, taste,
lifestyle and more. It involves learning to survive and thrive independently, far
from family. For many, it means returning to school after spending time in the
professional world. This period is one of immense personal growth and is also a
time when you are an immigrant in a new country.

However, what comes after the LL.M. is often unspoken about. In the United
States, the LL.M. grants every student a year of work authorisation after
graduation, by default, and upon some paperwork. The period is three years for
STEM graduates. During this time, most students are expected to write state
bar exams, look for employment and obtain employer-based work
authorisations beyond the one year to continue working in the United States.
Although this may seem like ample time to achieve these goals, it is often more
challenging than it appears.

Unlike STEM, legal employers in the United States face a market where the
supply of Juris Doctor (JD) students meets the demand. On top of this, there are
concerns about foreign-trained attorneys, including their educational
backgrounds, the absence of a standard three-year US education, and the
additional costs of sponsoring work authorisations. Consequently, only a few
foreign-trained attorneys manage to secure desirable positions. Opportunities
often arise at small immigration or personal injury firms, where JD students are
less likely to apply. These positions typically offer lower pay and demanding
working hours. Many students who do not want to settle for these less-than-
ideal positions end up returning home.
This is where US immigration laws come into play. Graduates without
permanent residency or spousal work authorisation must go through the H1B
lottery to secure work authorisation through their employer. Yes, it’s a lottery -
a random draw where 85,000 applicants are selected. To put this into
perspective, in 2024, 479,953 applicants applied for those 85,000 spots. If you
are fortunate enough to be selected, the universe has smiled upon you. If not,
you are expected to leave the United States. While there are some options to
remain in the US, they typically bind immigrants to specific employers, limit
their ability to travel home, or involve significant additional costs. None of these
processes, including the H1B, guarantee Indian immigrants a long-term stay in
the US. These are temporary visas and do not secure work authorisation for
partners.

Many incoming LL.M. students aspire to follow in the footsteps of those who
have thrived and whom they admire. However, most of these successful
individuals likely experienced significant frustrations, self-doubt and rejections
through no fault of their own. Despite how polished their professional lives may
appear on LinkedIn, the reality of their journey may have been far less
glamorous.

I write this not to discourage, but for everyone taking the plunge in the
upcoming months to move to the United States for an LL.M. to be able to make
informed decisions, know the hard parts and choose to go through the journey,
nonetheless. All said, there definitely is hope, gain and growth in the journey,
irrespective of how it turns out!

Vayuna Gupta is an attorney, licensed in New York and India. She is currently
the Legal and Policy Advisor at Global Rights for Women.
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Columns

Artificial Intelligence: To regulate or not is no

longer the question
Singapore’s multi-pronged approach supports AI adoption, clarifies how existing
regulations apply and builds future capabilities for regulation.
Artificial Intelligence, Judiciary

Yeong Zee Kin

Published on: 24 Aug 2024, 5:20 pm 4 min read

As Artificial Intelligence (AI) creeps into every facet of daily life, its deployment
and development have raised new issues for policymakers to consider. Recent
online and news media highlight concerns over the re-use of data for model
development. For example, how copyright and data protection laws apply to
web scraping. The opacity of platform algorithms assigning jobs to gig workers
or setting prices for consumers is another brewing problem.

With the European Union’s Artificial Intelligence Act recent entry into force on
August 1, we can expect an uptick in interest in AI regulation. The EU AI Act
adds to a growing collection of laws that regulate AI.

Three archetypes have emerged globally. There are targeted laws that regulate
the use of AI for specific industry applications. For example, both China and the
EU have introduced regulation of recommendation systems deployed by online
platforms. Another archetype is the extension of data protection laws to
regulate AI whenever personal data is used, such as for automated decision-
making. Finally, the EU AI Act is an overarching law that regulates AI systems
according to the risks they pose.

In Singapore, Minister Josephine Teo has recently said that there are no
immediate plans to introduce overarching laws to regulate AI. Existing laws
already address harms associated with AI and, if necessary, they can be updated
to address inadequacies. Singapore has opted for a nuanced approach that
places equal emphasis on the twin engines of AI adoption and consumer
protection that will enable our economy and society to take flight in the age of
AI.

We do not always need to regulate. Interventions can also take the form of
forbearing to deploy AI in certain settings: the Chief Justice has said that the
process of judging – which is an exercise of our shared humanity – should
remain a largely human endeavour, in order to preserve empathy and reflect the
values of our judicial system. Any departure from this position should be
considered thoughtfully.

When regulations are necessary, Singapore’s multi-pronged approach supports

AI adoption, clarifies how existing regulations apply and builds future
capabilities for regulation.

First, existing laws have been amended to support the use of AI, thereby
enabling the economy to benefit from broader AI adoption. The Copyright Act
2021, for example, has been amended to clarify that copyrighted material may
be used for machine learning provided that the model developer had lawful
access to the data. Amendments to the Personal Data Protection Act (PDPA)
2012 enabled the re-use of personal data to support research and business
improvement, after model development using anonymised data proved to be
inadequate. Detecting fraud, preserving the integrity of systems and ensuring
physical security of premises are also recognised as legitimate interests for
using personal data in AI systems.

Second, regulatory guidance has been issued on how existing regulations that
protect consumers will also apply to AI systems. The Personal Data Protection
Commission has issued a set of advisory guidelines on how the PDPA 2012 will
apply at different stages of model development and deployment whenever
personal data is used. It also clarifies the level of transparency expected from
organisations deploying AI systems and how they may disclose relevant
information to boost consumer trust and confidence. Another example is the
Health Sciences Authority’s regulatory guidance for software medical devices,
which has been expanded to include specific requirements when AI medical
devices are submitted for registration. These are examples of how Singapore is
extending existing regulatory frameworks to cover AI systems.

Third, Singapore is developing capabilities for AI testing and certification. For

effective regulation, principles for responsible AI must not only be translated
into process and technical standards, but we must also find ways of objectively
measuring whether these standards are met. Efforts to develop standards of
practice in healthcare, financial services and the broader digital economy are
found in the Ministry of Health's (MoH) AI in Healthcare Guidelines (AIHGle), the
Monetary Authority of Singapore’s (MAS) Fairness, Ethics, Accountability and
Transparency (FEAT) principles, and the Infocomm Media Development
Authority's (IMDA) Model AI Governance Framework respectively. These efforts
are complemented by initiatives to develop testing and certification capabilities,
such as MAS’ Veritas and IMDA’s AI Verify.

Finally, the Singapore Computer Society has been taking a lead in equipping
professionals with the knowledge and application of ethical AI practices in their
work and organisation through their joint certification course in AI Ethics and
Governance with Nanyang Technological University since 2021. To date, close to
500 professionals have undergone the certification course.

Singapore is poised to benefit from the ongoing AI revolution. Our laws have
been updated to support AI adoption and we are gradually calibrating extant
regulatory levers to deal with harms posed by AI more effectively. We are ready
to introduce new laws if necessary, and we are developing our AI assessment
capabilities. By staying adaptable and forward-thinking, we ensure that
Singapore remains at the forefront of AI innovation while safeguarding our
society.

Yeong Zee Kin is the Chief Executive of the Singapore Academy of Law (SAL).
This opinion piece is adapted from a chapter he contributed to the Singapore
Computer Society’s AI Ethics and Governance Body of Knowledge Version 2.0.

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Columns

Can there be a constitutional case for the Uniform

Civil Code?
At a time when constitutional morality has been used as the basic principle for
functioning of a dignified society, any social practice that runs counter to it needs
to be called out and reformed.
Constitution of India

Nilanshu Kumar

Published on: 24 Aug 2024, 1:17 pm 7 min read

As the issue of the Uniform Civil Code (UCC) has been appropriated by
communal right wing politics, discussion around it in the public sphere has lost
the larger emancipatory intention with which it was discussed and defended by
the members of the Drafting Committee in the Constituent Assembly.

Recent advocacy for a ‘secular civil code’ by Prime Minister Narendra Modi in
his Independence Day speech has reinvigorated the debate, placing UCC at the
forefront of public discourse. Whereas the right wing ruling dispensation sees
UCC as a tool to punish Muslim men, the other side has largely only reacted to
the arguments made by the ruling dispensation, without delving into the larger
case that UCC presents.

This article seeks to take UCC out of the cage of narrow religious politics and
set it free into the larger realm of liberating values. It does so by presenting a
case for the implementation of UCC by looking into the constitutionality of such
a law and checks if UCC is a threat to the cultural plurality of India.
The UCC has had its own share of history in Indian jurisprudence. It was heavily
debated in the Constituent Assembly, found mention in reports of Law
Commission and has inundated the public sphere in recent times. The Prime
Minister batted for the UCC in his recent speech, the Centre has formed a
commission to seeks its views on the same, and the Uttarakhand Assembly
passed a legislation on UCC.

Like every political principle, this too has its takers and deniers. I belong to the
former category and the reasons for it would be highlighted in the following
arguments. Certain assumptions have been made in order to argue in favour of
the UCC:

a) UCC would not be an imposition of majoritarian values on other religious,

tribal or cultural groups,

b) UCC would be based on the ethos of the Indian Constitution,

c) There would be wider consultation with the stakeholders before framing such
law as was done in the case of Hindu Code Bill and

d) UCC would only be a legal procedure for the respite of the oppressed, it
would not have totalitarian presence in the lives of people. For example, in case
of marriage, UCC would not determine who one can or cannot marry, but will
only come in the defence of a person aggrieved by the marriage or marital
relationship.

Constitutionality of UCC

Let us first delve into the constitutionality of implementing the UCC. Does
implementation of UCC abridge the rights to practice and manage one’s own
religious affairs as guaranteed under Articles 25 and 26 of the Constitution? A
careful reading of Article 25 tells us that freedom to practice one’s religion can
be restricted on the grounds of public order, morality, health and can also be
subjected to other provisions of Part III, which contains fundamental rights.
This effectively means that the implementation of laws like UCC can restrict the
rights of a person/group of people to practice their religion in order to give
effect to other fundamental rights like the right to equality (Article 14) and the
right to live with dignity (Article 21).
What about Article 26, which gives us the right to manage our religious affairs?
The Supreme Court in several judicial pronouncements has maintained that any
practice that can be related to the secular aspects of a religion, in other words
any practice that is not an essential component of a religion, can be restricted
or regulated by the legislative or executive arm of the state. Although the
‘essentiality doctrine’ has its own limitations, which are mentioned in the
section below, UCC, which aims to manage such practices that are unjust
according to the modern constitutional values, would stand the test of
constitutionality in a court of law.

State vs Religion

Deniers often argue as to why the state should be made so powerful to interfere
in the everyday rituals of the society. At the cost of sliding into whataboutery,
why can't we argue the same about religion, which determines the
fundamentals of our everyday lives? At least the principles adopted by the state
in a parliamentary democracy would be formulated by deliberations of the
rational mind in the house of the people. Not just that, principles followed by
the state do not have the touch of infallibility. In a constitutional democracy, it
can always be amended as per the need of the time and will of the masses. On
the other hand, religious texts and principles derived from it are the infallible
diktat, to which the masses, whether they are in agreement with it or not, are
subjected to even if the principles do not stand the test of time. And in the end,
a law made by Parliament in a constitutional democracy like India can be
challenged before the courts, which can strike down the law if it violates
citizens' rights. But who would one afflicted by the religious laws approach - the
religious heads? They are instituted not to protect modern political rights of
individuals, but to uphold the very religious doctrine which abridges their
rights.

And what about religions where the afflicted party in a marriage cannot even
plead before the religious heads? In Jewish customary tradition, there is no
concept of divorce, as marriage is seen as a sacred relation that cannot be
annulled. Therefore, there is neither any customary backing nor a state law to
protect the oppressed in a Jewish marital relationship. In such cases, it becomes
all the more pertinent for the state to come up with a law which can provide
solace to the ones who are subjugated in a marital relationship.
Legal challenge

First, lack of UCC or any such framework puts the courts in a state of confusion
whenever they decide on cases that are fundamentally under the jurisdiction of
personal/customary/traditional laws (The Shah Bano (1985) and Shayara Bano
(2017) cases being the prime examples). Courts, on several occasions, have also
been criticised for using the ‘essentiality doctrine’ and assuming the role of a
theological authority, an area beyond its competence, in determining what
constitutes the tenets of religion while delivering judgments on matters of
personal laws. These can precisely be the reasons for the Supreme Court to
continuously nag the legislative arm of the government to come up with a
uniform legal code on civil matters. It would not only smoothen the justice
delivery system, but also inhibit the convolutions of the legal doctrine of the
state if tomorrow another religion or sect props up with their own personal,
traditional, or customary laws.

Second, the ‘essentiality doctrine’ as a tool to test the basic tenets of a religion
is fraught with theoretical challenges. This doctrine effectively locks religion in
the cage of history and assumes that the religious belief system is devoid of
evolutionary potential. It puts the legal stamp of ‘infallibility’ and ‘finality’ on
religious principles. If such is the case, then the court could even rule that the
sects of Islam, Christianity or Hinduism do not constitute the essential features
of these religions. This sanction of infallibility and assumption by the judiciary
of religious belief being untouched by space and time relegates judges to the
category of conservative religious pundits who are not ready to modify their
beliefs according to the needs of the time.

Third, non-availability of UCC gives sanction to the institutionalisation of a

parallel justice delivery system presided over by religious or cultural
heads/pundits, and simultaneously elevates these religious pundits to the rank
of a judge – something which is not recognised by the Constitution of India.
This system also goes against the principles of ‘separation of powers’ and
‘conflict of interest’ as the religious heads presiding over these cases themselves
belong to the class of people who either framed these religious laws or has been
defending or interpreting it since these laws had been framed. In the modern
system of governance which functions on the basis of separation of powers, can
one imagine the legislative arm of the state adjudicating on laws that it itself
framed?

Cultural plurality

The UCC would not be an attack on the cultural plurality of India. Being a civil
and not a criminal code, it does not call for suo motu action by the law
enforcement agencies for its violation. People would be free to follow their
traditional and religious practices; if there is any case where an individual feels
subjugated under those practices, they can seek justice through an established
framework in the court of law. UCC would provide this framework and come to
the defence of this subjugated person, would treat him/her as equal citizen of
the country and reinforce his/her fundamental rights under the broader
framework of constitutional morality. Besides, what is the point of maintaining
cultural plurality if it is rooted in inequity, injustice, subjugation and is not in
consonance with the values of the Indian Constitution?

Lastly, on rhetorical side of the argument, why do the deniers of UCC and
champions of the cultural/traditional plurality not demand the state to do away
with the four acts that were passed in 1956 and other statutes implemented
thereafter to reform the Hindu personal laws? It would not only reinforce the
traditional practices of the Hindus, but also enrich the cultural diversity of the
country of which the deniers are the proponent of. Certainly, this demand
would not be made, and it should not be, as doing so will take India decades
back where the civil doctrine of Hindus was based on anything but the ethos of
Indian Constitution.

Conclusion

At a time when constitutional morality has been used as the basic principle for
functioning of a dignified society, any social practice that runs counter to it in
the name of religious or cultural freedom needs to be called out and eventually
reformed. In the end, such practices are never about enjoying religious freedom;
rather they are more about preserving the dominant patriarchal structure
which benefits one section of the society. If it really was about religious
freedom, the law board of the Islamic society would want not just their civil
cases, but also their criminal cases to be adjudicated according to Shariat law.
But they would not, because doing so would also subject men of the community
to the harsher punishment based on the eye-for-an-eye principle. As these
principles are reformed through modern criminal laws, it is also the time to
subject the civil laws of all sections of the society to modern political principles.
Why would we want to keep one aspect of our moral principles locked in
historical time and protect it from the forces of modernity when we are ready
to reap benefits from other ideas which are the result of expansion of our
mental horizons beyond the confines of religion?

Nilanshu Kumar is a development professional and an MA Development Studies

graduate of TISS, Mumbai.

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