“What you have taken, Has been from here, What you gave has been given here

What belongs to you today belonged to someone yesterday, and will be someone else’s tomorrow

Change is the Law of The Universe“

Bhagwat Gita

It is a lesser known fact that the provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N. Rau Committee and piloted by Dr. Ambedkar, was for abolishing the Mitakshara coparcenary with its concept of survivorship and the son’s right by birth in a joint family property and substituting it with the principle of inheritance by succession but the final bill was passed with major changes due to the opposition of the elected representatives. To this a disappointed Dr. Ambedkar reportedly said:

“It was not a compromise. My enemies combined with my enthusiastic supporters and my enemies thought that they might dam the Bill by making it appear worse than it was”

Subsequently in 2005 the Legislature through a progressive amendment to the Hindu Succession Act 1956, brought in the much awaited change envisioned by him by granting coparcenary rights to daughters. Statement of Object and Reasons of the Hindu Succession (Amendment) Act, 2005 provide clarity on the 2005 Amendment Act:

“STATEMENT OF OBJECTS AND REASONS

1. The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. However, it does not interfere with the special rights ofthose who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on”Property Rights of Women: Proposed Reform under the Hindu Law”.

5. The Bill seeks to achieve the above objects.

NEW DELHI;

The 16th December, 2004.”

In the Mitakshara School, the allocation of parental property is based on the rule of possession by birth. Therefore in Mitakshara School, sons had an exclusive right by birth in the joint family property. Ancestral property was traditionally governed by the Mitakshara school, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender and negated the fundamental right of equality guaranteed by the Constitution of India.

Although the legislative intent of the Amending Act was clear however as is the case with any other amendment in a Statute, this instant amendment was also a subject matter of intense legal debate and resulted in various High Courts interpreting the same in divergence.

The Hon’ble Apex Court in the case of Parkash & others v. Phulavati others 2016(2) SCC 36 laid down that the provisions of the amendment are applicable prospectively to living daughters of living coparceners as on 9.9.2005, irrespective of when such daughters are born. However, in Danamma @ Suman Surpur v. Amar 2018(3) SCC 343 the Court granted the rights in a coparcenary to a daughter of a coparcener who had died much before 9.9.2005. This created a divergence of legal -opinion and the matter came to be referred to a larger bench for resolution in the case titled Civil Appeal No. 32601/2018 Vineeta Sharma v. Rakesh Sharma. The Hon’ble Supreme decided the reference in a landmark judgment pronounced on 11.8.2020. The bench after discussing the law of creation of Mitakshara coparcenary and the nature of the rights of the members of a coparcenary under the Hindu law proceeded to hold the right of the daughters under the Amending Act of 2005 to be retroactive rather prospective and distinct to retrospective.

The court in the lengthy and effortful judgment noticed detailed arguments raised against such an interpretation. It was unsuccessfully contended that a legal fiction created in law cannot be stretched beyond the purpose for which the fiction has been created. It was argued that the declaration by the law that the daughter of a coparcener has certain entitlements and be subject to certain liabilities is prospective. The daughter is treated as a coparcener under the Amendment Act and not because of the daughter’s birth prior to the amendment. If the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous uncertainty in the working of the law. It can be stated that the Parliament has not intended to scramble the unscrambled egg or to resurrect the past. Having regard to the plain language and future perfect tense “shall have the same rights,” the only conclusion is that the daughters who are included in the coparcenary will have the same rights after coming into force of the Amendment Act. It was contended that “Daughter of a coparcener” means the daughter of an alive person and has the status of a coparcener on the date of commencement of the Amendment Act. The Central Amendment has not made a distinction based on the daughter’s marital status expressly but has made it evident by the use of the expression ‘joint Hindu family’ and ‘daughter of a coparcener.’ The provisions should be read to exclude married daughters. The provisions of section 6, as amended, are prospective. It was not intended to unsettle the settled affairs.

However, the court repelling the above contentions decisively held that what was significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6.

It was observed that the legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property under the unamended provision. The 174th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.

The essential condition for conferring the status of coparcener on the daughter is that there should be a coparcenary on the date of coming into force of the Act in 2005. If the coparcenary was disrupted by the act of the parties or by the death of parties, in partition or sale, the daughter could not get the status of a coparcener in coparcenary. The status conferred cannot affect the past transactions of alienation, disposition, partition – oral or written. Section 6 provides parity of rights in coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The declaration in section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal.

The court further observed that uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively.

While carving out the above distinction the court held that the prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. It is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

While distinguishing Parkash & others v. Phulavati others 2016(2) SCC 36, the court observed as under:

“75. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.”

On Danamma @ Suman Surpur v. Amar 2018(3) SCC 343 which was partly overruled, it was noticed as follows:

“78. In Danamma, it is pertinent to mention that Gurulingappa, propositus of a Hindu joint family and the father of living daughter coparcener died in 2001, before the Amendment Act, 2005 came into force, leaving behind two daughters, son and a widow. Daughters were given equal rights by this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree with the earlier part approving the decision in Prakash v. Phulavati and the discussion with respect to the effect of the statutory partition. As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter.”

The court finally concluded as under:

“129. Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

After the reformative Amending Act of 2005 and the interpretation of the same in the instant judgment, the Mitakshara coparcenary has been diluted to a greater degree and will be more or less, nothing but a relic of the past . Now with the discernment of the legal position, it is expected that the amendment will bring the much need change in the social status of the daughters. It has already taken 15 years since the amendment was incorporated but now the Hon’ble Supreme court has paved the way by clearing the last hurdle and the onus is on the subordinate courts to be the flag bearers of change.

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)

Rent Legislations have been the subject matter of a lot of criticism and a continuous discussion has been going on over the years debating the advantages and disadvantages of rent laws in India. While the proponents of rent control laws claim that the rent control legislation protects the tenants from the unscrupulous landlords and prevent landlords from charging exorbitant rents and evicting tenants without any sufficient cause. On the other hand, the opponents state that the rent laws impose unnecessary stringent conditions on the landlords and deny the landlords to get appropriate rental value or push them towards endless litigation in order to get the premises vacated.

As per Census 2011, there were a total of 27.37 million rented households in India, of which 79.4% or 21.72 million are urban rented households. Due to the rapid industrial and economic development taking place in the country, migration to urban areas has increased many folds. Every year, millions move to towns and cities, or dense linear settlements along national and state highways. However today there is a steep decline in the number of people living in rented accommodation. According to the Economic Survey 2017-18, 12% of the total housing stock in urban India remains vacant. There are deep systemic problems within the rental market and addressing them is of utmost importance for solving India’s enormous housing challenge.

Archaic Rent Laws– Due to the out-dated rental laws in India and the nature of the provisions contained therein, it discourages the landlords from renting out their properties as the rents are abysmally low and the long litigation period makes eviction difficult. Resultantly in major cities lot of properties have become unviable to be maintained and are being allowed to crumble rather than rent out the same.

The Rent Control legislations, post-independence were initially introduced with the objective to counteract the inequality of bargaining power between landlords and tenants. The regulations outlined in some of the State-enacted Rent Control Acts prevented landlords from charging market-based increase in rents and tenants kept paying rent at rates that were frozen years ago. The landlord-tenant relationship in India has always been a very complicated subject and despite tenancy and rent-related laws in India, things have not improved and have rather deteriorated. The tenancy laws in India are considered as “pro-tenant” but due to intervention of our judiciary through various landmark judgments, a sort of balance has been created upholding the rights of landlords in cases related to the eviction of tenants.

In the budget speech in 2019, Finance Minister Nirmala Sitharaman, proposed the Model Tenancy Act to replace the ageing rental laws of the country, stating that “they do not address the relationship between the lessor and the lessee realistically and fairly“.

Under the Indian Constitution, the enactment and implementation of rent control laws is the responsibility of the individual States. In the State of Punjab in particular, the British enacted The Punjab Rent Restriction Act 1941. The said Act was replaced by The Punjab Urban Rent Restriction Act 1947. After the partition of the country in 1947, the East Punjab Rent Restrictions Act 1949 was enacted. This Act remained in force for almost 64 years and saw several transformations and modifications due to legislative amendments and judicial interpretations until it gave way to The Punjab Rent Act 1995 in the year 2013.

The 1949 Act faced severe criticism due to several reasons which included flawed provisions, onerous and limited grounds of ejectment, ineffective provisions, the lengthy legal process involved, unrealistic rent fixation etc.

Salient features of the Punjab Rent Act 1995– To overcome the shortcomings of the earlier Act, the revised Act was originally conceived in 1995, however, the Government had been sitting on implementation of the Act despite President assent since 1998 and the Act was never notified. The Act of 1995 finally came into effect on 30.11.2013 with the following Statement of objects & reasons:

“The National Housing Policy recognises the importance of expanding the availability of rental housing in urban areas. It is recognised that the rent control legislation in different States has resulted in stagnating rents, low returns on investment in rental housing, difficulty for landlords to resume possession in genu ine cases, and deteriorating housing stock. In order to solve the above problems and ensure a balance of interests of landlords and tenants, the Government of India, Ministry of Urban Development, have formulated the Model Rent Control Legislation and advised the States to amend their Rent Control Acts or enact new laws on the lines of the above-referred Model Rent Control Legislation. Hence this Bill.“

(i) The Act provides for the regulation of rents, repairs and maintenance and eviction relating to premises and matters connected therewith in the State of Punjab. The Act applies only to the tenancies which have been created after the commencement of the new Act (except in case of NRI landlord). Further as per section 4, all new tenancies after the commencement of the Act are required to be through a registered agreement. Further, under section 3(2), contractual non-residential tenancies will be governed by the terms of the contract during the subsistence of the contract.

(ii) The right of inheritance of tenancy of residential premises is governed by section 5 which lays down that inheritance is now limited to 10 years from the death of the tenant and is restricted to the heirs who are dependent upon and residing with the tenant, who have no other alternative accommodation. In the case of non-residential tenancies, property is required to be vacated within one year of death of the tenant or dissolution of the tenant firm as the case may be.

(iii) The outdated and redundant concept of fair rent under the old Act had been discarded and as per section 6 the agreed rent shall be increased by five per cent of the last rent for two years and third year increase shall be based upon the increase in the Consumer Price index over the corresponding three years.

(iv) The Act for the first time lays down the duties and obligations of the landlord and the tenant as stated in section 17 and 18

(v) The scope of ejectment of the tenant has been widened with the introduction of new grounds of eviction under sections 20 and 26 which provide for the grounds of ejectment as follows:

(a) Arrears of rent

(b) Change of user

(c) Misuse

(d) Ceasing to occupy the premises

(e) Premises having become unfit and unsafe (with a right of election to re-enter on reconstruction)

(f) Premises required for development works or repairs or additions (with a right of election to re-enter on completion of works)

(g) Availability of alternate accommodation with tenant or family member

(h) Substantial damage or alteration subject to repairs by the tenant

(i) The tenant has ceased to be an employee of the landlord

(j) Conviction of tenant for nuisance or immoral or illegal activity

(k) Denial of the title of landlord, when such denial is not bona fide

(l) Failing to vacate on the agreed date under an agreement

(m) Breach of the condition imposed by the Government

(n) Personal necessity of the landlord or any member of his family if the landlord or such person has no other reasonable suitable accommodation, after 3 years of purchase or transfer.

(o) Subletting without the previous consent in writing of the landlord. The Act also provides for fine and imprisonment in case of subletting.

(vi) Section 21 to section 24 enumerates the special category of landlords entitled to immediate ejectment of premises let out by landlord, spouse or dependent son or daughter as under-

(a) Landlord whose allotment has been cancelled by Government agencies in case of residential premises

(b) A retiring member of armed forces or dependent of a martyr

(c) Central and State Government employees

(d) Widow

(e) handicapped persons,

(f) old persons ,

(g) freedom fighters, his widow or dependent son or daughter

(h) non-resident Indians

(vii) Act also introduces fixed term tenancy for a period of less than 5 years with the prior permission of rent controller under section 30 with the remedy of ejectment on the expiry of the period of tenancy.

(viii) Partial ejectment has been permitted pursuant to the consent of the landlord under section 20(3)

(ix) Under section 32 special provisions have been incorporated for recovery of possession in respect of corporate bodies or a public institution as landlord.

(x) Act provides for summary proceedings for ejectment along with the time frame to be followed at all stages of the proceedings.

Lack of Foresight – Already the Act has seen two massive amendments vide the Punjab Rent (Amendment) Act, 2013 (Punjab Act No. 33 of 2013) and the Punjab Rent (Amendment) Act, 2014 (Punjab Act No. 23 of 2014) whereby about 1/3rd of the provisions of the Act were repealed. Initially, the Act provided that the Rent Authority/tribunal will have the power to determine the dispute under the new Act. However, after a PIL titled as Bar council of Punjab and Haryana v. State of Punjab filed in the High Court, the operation of provisions providing such procedure was stayed by the Court. Thereafter the Government came up with various amendments and the old existing mechanism of adjudication by Rent Controllers /Appellate Authority comprised of judicial officers was retained. That besides the advantage of having the adjudication by judicial officers, the effectiveness of maintaining the same mechanism which was the bane of the old Act, would determine the future course of the Act of 1995.

Further, despite the notification of the 1995 Act, there is confusion about the applicability of the provisions of the 1995 Act to the existing proceedings. Section 75 provides that all cases in respect of the premises, other than owned by a non-resident Indian, let out prior to the commencement of this Act shall be governed and disposed of in accordance with the provisions of the old Act so repealed. The High Court in Krishan Kumar v. Kamla Devi, 2016(1) R.C.R. (Rent) 525 held that NRI landlords seeking ejectment under the special category will have to file fresh petitions under the new Act or amend the existing petitions to bring them in consonance with the new Act. A similar view was expressed in another decision of the High court in Randhir Singh v. Ranjodh Singh Mudhar, 2018(1) R.C.R. (Rent) 189. However in Adess Singh v. Manpreet Singh, 2020 (1) PLR 158 the court has made contrary observations. Still further in M/s Puran Singh v. Komal Sharma 2019(2) R.C.R. (Rent) 380 the court held that ordinary eviction petitions (other than NRI landlord) which have been pending prior to the commencement of the Act of 1995 will be governed and decided under the old Act. This anomaly due to the language of section 75 has created two categories in respect of pending petitions and needs to be rectified as it is likely to cause enormous confusion and wastage of court hours.

The procedure under the new Act still remains cumbersome. All orders, even interim order have been made appealable. The tenant has been provided multiple remedies which will delay the eviction process. E.g. Section 38(7)(e) provide that tenant will be entitled to file a review petition within ten days of the rejection of the application for leave to defend. The observations of the court in Krishan Kumar v. Kamla Devi, 2016(1) R.C.R. (Rent) 525 give an impression that that final order of ejectment is to be passed after the expiry of 10 day period of filing of review and decision thereof. On the other hand in Civil Revision No.236 of 2019 Inderpreet Kaur and another v. Manjit Kaur Shahi through her GPA-Kuldeep Singh, decided on 28.5.2020, though this argument was raised by the tenant, the revision was dismissed by the court without going into the merits of the argument as an appeal was pending before the Appellate Authority. This leaves us with the question as to whether the Rent Controller is obligated to put the proceedings in abeyance till the expiry of 10 day period before passing the final order or it is just a limitation period provided for availing the remedy of review. This issue is bound to arise in every case and needs to be deliberated and settled as early as possible.

Section 2(l) defined SFC as two different premises. This will again make the ejectment difficult and increase the cost of litigation as two petitions will be required to be filed for eviction from complete SCF.

Still further as per section 24(3) dealing with NRI landlords the term used is “returns to India for permanent residence”. This could be interpreted to mean that the permanent return of NRI is a condition precedent before he can file an ejectment petition. This is again likely to give rise to an intense debate in as much as in the absence of similar expression in the old Act, the courts have held that NRI is not required to permanently return to India before seeking ejectment under the special provision.

Yet again no provision has been made for imposing market rent or mesne profits during the operation of an interim order in appeal after ejectment. Provisions of CPC are applicable to the Rent authorities under the Act for limited purposes as laid down under section 37 of the Act. This difficulty was faced by the courts under the old Act however the same was redressed by judicial precedents. It seems a similar course would be required to be adopted under the new Act.

The blanket restriction of 3 years on the landlord, from the date of acquisition of the property by transfer, for seeking eviction in case of personal necessity is highly unreasonable. The legislature ought to have provided for an exemption in suitable cases. This restriction will cause unnecessary hardship to landlords in genuine and deserving cases.

Surprisingly the statute lacks any clear provision for seeking eviction from vacant land except when required for construction as the definition of term “premises” only refers to a building or a part of the building and not to vacant land.

No provision has been incorporated regarding recognising and regulating rental management agencies that can professionally manage and rent out properties on behalf of the owners. This is a new concept which is likely to crop up in the future.

The Way Forward– That Punjab Rent Act 1995 is new legislation which has made tremendous changes in the rent regulations in the State of Punjab, however, it is still at a nascent stage. Courts will have to ensure that they are not trapped in the endless gamut of rules of CPC as was the situation in the proceedings under the old Act. There is negligible case law to support the intended implication of the various provisions of the new Act at the moment which makes the task of the courts all the more difficult ,as provisions and the expressions contained in the Act will be put to scrutiny through innovative legal arguments. Although subsequent amendments have further tweaked the Act for the better, it will be years before the legislation is fully developed and all disputes regarding interpretation of the statute are decisively settled but nevertheless, this is a step in the right direction though treading on thin ice.

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)

“You can never understand one language until you understand at least two.” – Geoffrey Willans

In today’s competitive world, the legal professionals and the litigants expect that their concerns are communicated and conveyed through effective ideas and expressions before a Court of law in a language that fulfils the duality of communication and clarity of understanding. The genius of any human expression emanates from the spark that is ignited by ideas, whatever be the language employed to communicate the same.

The language used in Courts in India has seen a transition over centuries shifting from the use of Urdu to Persian and Arabic scripts during the Mughal period which continued in subordinate courts even during the British Rule. The British introduced a codified system of law in India with English as the official language. Post-independence, Article 343 of the Constitution of India provides that the official language of the Union shall be Hindi in the Devanagari script. However, it mandated that the English language will continue to be used for all official purposes of the Union for 15 years from the commencement of the Constitution of India. It further provides that the President may, during the said period, by order authorize the use of the Hindi language for any official purpose of the Union, other than the English language. Article 345 provides that the Legislature of the State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of the State. Article 348 (1) of the Constitution of India provides that all proceedings in the Supreme Court and each High Court shall be in the English language unless the Parliament provides otherwise by law. Article 348(2) allows the Governor of the State, with the previous consent of the President, to authorize the Hindi language or any other language to be used for any official purposes of the State in proceedings in the High Court.

In 1963, the Official Languages Act was enacted, which provided that notwithstanding the expiration of the period of 15 years as provided in the Constitution, the English-language may be continued to be used in addition to Hindi language for all official purposes and transaction of business in the Parliament. Section 7 of the Act, states that the use of the Hindi or official language of a State, in addition to the English language, may be authorized with the consent of the President of India, by the Governor of the State for purpose of judgments, decree or order made by the High Court of that State. The conclusion derived from the collective reading of Article 348 of the Constitution and the Official Languages Act, 1963, is that English continues to remain the actual official language with respect to the Acts of Parliament and the Courts.

Indian people speak as many as 22 major languages written in 13 different scripts, with over 720 dialects. The official Indian languages are Hindi and English, which are widely spoken and recognized. In addition, various states in India have their official local language and this linguistic diversity is one of the unique features of our democracy. However, the plan to make Hindi the only official language of the country has met with stiff resistance in many parts of the country. Thus, in combination with other local official languages in the state, English and Hindi continue to be used today as major official languages. The Eighth Schedule of the Constitution of India specifies the different Indian languages recognized as official languages of different areas in the country.

As already stated, India being a country of a melange of cultures, time and again call for weeding out English from our legal system has been raised. However, English is so deeply embedded in our system that the idea to gradually do away with it would appear to be more of an illusion. No doubt, every litigant in the country is entitled to be able to understand the court language to comprehend the court proceedings, however, the disadvantages that we are likely to face on eliminating the English language are as follows:

1. The entire education system would need an overhaul, right from the primary level to professional courses. Interestingly, the Bar Council Rules of Legal Education in India, 2008 as well as the draft rules of 2019 provide English as the medium of imparting legal education in India.

2. Most of laws, statutes, and judgements are in English. First, the translation will have to be exhaustive and accurate. Secondly, the divergence between different versions in different languages would lead to ambiguous interpretations of legal provisions. In such cases, multilingualism would become a part of the problem instead of the solution.

3. A variety of court languages will result in delays in decisions of cases. Under the National Transfer Policy, as per Article 222 of the Constitution of India, the Hon’ble judges are transferred from one court to another interstate and thus may not be well conversant with the local language. In such a situation more time will be consumed in hearing of the cases due to translations, interpretation and trying to understand the local language.

4. Various legal maxims are in Latin and may have no corresponding terms in Indian languages. Local languages are further devoid of legal terminology and limited written materials such as dictionaries, and glossaries are available.

5. The language in which communications between different states, or between the Union Government and a state or a person takes place is usually English.

6. Change of court language to local language would hamper the practice of the lawyers as most lawyers are trained to work and argue in English. Moreover, clients who may not be conversant with the local dialect would hesitate to trust the lawyers. Further, the lawyers who are not well conversant with the local languages of other states will be confined to their local courts and state only.

7. A multilingual legal system is likely to increase the cost of litigation merely due to the sheer volume of the translation work involved, besides other difficulties.

8. Still further, the nature of economic and industrial development taking place in India with the aid of foreign investment, promoting local languages and phasing out English in Courts would again have a discouraging effect on investors. Due to international agreements, Courts are required to consider and interpret International laws which are predominantly in English.

The Law Commission of Indian on “Feasibility of Introduction of Hindi as Compulsory Language in the Supreme Court of India”, Report No. 216, noted as follows:

“i) Language is a highly emotional issue for the citizens of any nation. It has a great unifying force and is a powerful instrument for national integration. No language should be thrust on any section of the people against their will since it is likely to become counter-productive.

ii) It is not merely a vehicle of thought and expression, but for Judges at the higher level, it is an integral part of their decision-making process. Judges have to hear and understand the submissions of both the sides, apply the law to adjust equities. Arguments are generally made in higher courts in English and the basic literature under the Indian system is primarily based on English and American text books and case laws. Thus, Judges at the higher level should be left free to evolve their own pattern of delivering judgments.”

Despite the disadvantages referred to above, a multilingual legal system can be adapted in some form at par with the changing times and evolution of the Indian society. States like Bihar, Uttar Pradesh, Madhya Pradesh and Rajasthan have been permitted to conduct proceedings in their High Courts in Hindi as the official language. On the other hand, the Supreme Court of India rejected the proposal of allowing the States of Chhattisgarh, Gujarat, Tamil Nadu and Karnataka for permission to conduct court proceedings in local languages. Although in Tamil Nadu, lawyers in the High Court are invariably allowed to argue in Tamil language. Nevertheless, subordinate courts in India extensively conduct court proceedings like pleadings, recording of evidence etc. in the local language along with English as an indispensable language.

In the Parliament, simultaneous interpretation service is available in both the Houses providing a live interpretation of the speeches made by Members and Ministers in any Indian language into English and Hindi. Even the Hon’ble Supreme Court has realized the importance of multi linguistic system and in 2019 have provided an option for “Vernacular Judgments” on the Supreme Court’s website in Assamese, Bengali, Hindi, Kannada, Marathi, Odia, Tamil and Telugu and Urdu. The translation of judgements is made available in labor matters, Rent Act matters, land acquisition and requisition matters, service matters, compensation matters, criminal matters, family law matters, ordinary civil matters, personal law matters, religious and charitable endowments matters, simple money and mortgage matters, eviction under the Public Premises (Eviction) Act matters, land laws and agriculture.

Internationally, Abu Dhabi has included Hindi as the third official language to be used in its courts, besides Arabic and English, as a large part of the immigrant population is Hindi speaking there. Recently, the Haryana Government amended the Haryana Official Language Act, 1969 by introducing The Haryana Official language (Amendment) Act of 2020, which mandates Hindi as the official language in subordinate courts and tribunals of the state. Section 3-A in the amending Act reads as under:

“3-A. use of Hindi in Courts and Tribunals: (1) In all the civil courts and criminal courts in Haryana subordinate to the High Court of Punjab and Haryana, all revenue courts and rent tribunals or any other court or tribunal constituted by the state government, work shall be done in Hindi language.“

In May 2020, the Governor of Haryana has also recommended to the President of India, with reference to Article 348 (2) of the Constitution of India for his consent, which will authorize the use of the Hindi language in the High Court also. Recently the said notification was a subject matter of challenge in the Supreme Court, however, the court refused to interfere in the matter and allowed the petitioners to withdraw the petition. The bench comprised of Chief Justice S.A. Bobde and Justice A.S. Bopanna and Justice Hrishikesh Roy questioned the petitioners as to what was wrong with the law as around 80% of the litigants do not understand English and observed as under:

“There is nothing wrong in Hindi as the official language of subordinate courts in some states. Even, during the British Rule, the recording of evidence was doing in vernacular language,“

Thereafter a petition has now been filed in the Punjab and Haryana High Court in CWP 8277 of 2020 titled as Sameer Jain and Others v. State of Haryana and Another and the matter is now pending after notice to the respondent State.

It is important to note that the Court of Justice of the European Union is a successful multilingual institution that can be studied by lawmakers in India. Any of the 24 EU official languages may be the case language, although, French is the working language. At the same time, decisions of courts are published in European court reports in all official languages. The courts have a dedicated department for translation which employs law experts and linguists as translators who are required to have complete knowledge of the case being heard. Immediate interpretation and translations are provided at the time of hearing in European Union courts as is needed.

The Court, in the case of Prabandhak Samiti and Ors. v. Zila Vidyalaya Nirikshak, Allahabad and Ors. reported in AIR 1977 All. 164, correctly spelt out the dilemma we are facing today while observing as under:

“4. But the language of the people ultimately replaced the language of the upper class even in the law courts of England. The language which had entered into the life of the British people was English and none could resist it entirely. Law, as Maitland has said is the point where life and logic meet. Therefore, French had at last to give way to English in spite of the former’s superiority in the qualities of precision and richness of technical terms. Ultimately by the Act of 1731, which was passed in the period of the complete supremacy of Walpole, the use of Latin in the law courts was abolished in England.

5. In India we are witnessing a somewhat similar spectacle. The traditionalists contend that “English has today become a part of the warp and woof of Indian thought and language and of the culture of a considerable number of Indians”. A member of the Parliament recently stated that “English is the language of the Constitution, the language of many of the lower Courts, the High Courts and the Supreme Court, the only authoritative language of the Legislature and the only language in administrative, judicial, and educational spheres.” On the other hand, the protagonists of the divine Sanskrit and its beauteous daughter Hindi declare that Hindi is the language in which their prophets, bards and writers have unravelled the mysteries of the earth and heaven and taught them to scorn the fleeting objections of the senses and grow into that spiritual oneness which is the Divine Life. For them Hindi is the language in which Meera Bai sang her ecstatic songs, Tulsi and Surdas invoked their blessed Masters and Jaishanker Prasad wove his immortal fantasies. The issue, however, must be decided on a rational basis, on objective factors, shorn of the subjective element or the personal inconvenience inevitable in a process of radical change. For a generation accustomed to the use of an exotic tongue like English, though with little pretension to proficiency therein, the adoption of Hindi must appear irksome and involving great difficulty of mental readjustment. But that is no answer to the arguments advanced on behalf of Hindi. Mahatma Gandhi stated the truth thus : “Our masters chose the wrong way for us and have made the wrong appear as right”.

Besides the political populism, the migration from English as a court language would have far-reaching consequences. To weaken the chorus of opposition, we have to take a practical approach after conducting a proper survey and formulating the standard operating procedures for multilingual courts. A lot of effort is required to be invested by engaging consultants as well as experts in the field to replace a well-developed system. While multilingualism is celebrated for its ability to complement the society, it may also be viewed as anomalous, for Indian Courts to keep up the identity and singularity of the Indian legal system.

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)

Hindus have worshiped gods and goddesses with equal fervor since ancient times. However, the proprietary rights of females have always been suppressed to a large extent. Manavadharmasastra is the oldest constitution for the Hindu laws of ancient Indian society. Manu is mentioned in the Vedas itself and is described as the law-giver. However, the writings in Manu Smriti about women have been debated and criticized, as in reference to the status of the Hindu female, it states that:

“IX.3 Her father protects (her) in childhood, her husband protects (her) in youth, and her sons protect (her) in old age; a woman is never fit for independence.”

According to Manu, women do not have property rights, and if they acquire any property by their own, then that property will belong to the male under whose protection they are living. But in Manu Smriti, Chapter III Verses 55 to 57 it is stated that:

“where women are honored and adorned, there Gods are pleased, but where women are not honored no sacred fire yields rewards“

Nevertheless, Manu recognized a legal obligation on the part of the husband to make arrangements for his wife’s due maintenance even if he goes abroad for business purposes. The daughter’s right to inherit was also disputed as she was entitled to inherit only in the absence of a male member.

Even Mayne’s in “Hindu Law and Usage” observes as under

“The question in each case will be, who are the persons who have taken an interest in the property by birth. The answer will be, that they are the persons who offer the funeral cakes to the owner of the property, that is to say, the three generations next to the owner in unbroken male descent.”

Thus, according to the passage, female members of the family are barred from possessing the right of survivorship. Females though have the right to maintenance. Only stridhan was treated as the proprietary wealth of the Hindu female.

The Constitution of India accords socio-economic and political justice, equality of status and of opportunity assuring the dignity of person with stated freedoms. Article 14 guarantees equality. Article 15(1) abolishes discrimination and removed disability, liability or restriction on grounds of sex and ensures equality of status. Article 29(2) gives equal right to education. Earlier it was only because of the efforts of social reformers that the Hindu Women’s Right to Property Act, 1937 was enacted. Prior to 1937, there was no codified law governing the rights of the Hindu female, which were largely governed by customary practices. Under the said Act, the ideology of all the schools of Hindu Law was modified so as to give greater rights to the Hindu women by affecting not only the law of co-parcenery- but also the law of alienation, inheritance, partition and adoption. It entitled a widow to a share equal to her son, but disentitled her from becoming a co-parcener and therefore, widows only had a limited estate in the Joint Hindu Family property of their deceased husband, subject to partition. The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties of her deceased husband received a statutory recognition with the coming into force of the Hindu Women’s Right to Property Act, 1937. The position of daughters’ right of inheritance as stood under customary law was still left untouched by the legislature. The Act of 1937, which was enacted to enlarge the property rights of all the Hindu women, was progressive and succeeded in strengthening the rights of widow to some extent, but much more was needed.

Grant of Absolute Ownership: Liberal Interpretation

After facing a lot of criticism on the Hindu Women’s Right to Property Act, the Parliament decided to come up with an improved legislation dealing with the property rights of women and enacted the Hindu Succession Act, 1956. Section 14 of the Act brought much needed reforms towards the rights of the Hindu female, making them owners of the property in her possession in absolute terms. The Act also sought to remove the disability and discrimination in the right to possess and enjoy the property by a Hindu female, thus paving the way for removing the restrictions under Shastric Law. It was an effort to strike a balance between Shastric law and contemporary Hindu Law.

Section 14 of the Hindu Succession Act, 1956 reads as under:

“14.(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other Instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”

Now, a Hindu female could acquire absolute ownership in property by way of inheritance, maintenance, prescription, decree, agreement, gift, will or partition. Previously, a property acquired by a woman from her husband was not her `Stridhan’, and on the death of that woman, such property would revert back to the heirs of her husband and not her heirs. The powers of the Hindu female to dispose off the property were also very limited. But after 1956, due to reformative judicial reasoning, the scope of section 14 came to be interpreted in the widest possible manner. Now, any property, movable or immovable, and in possession of the widow in lieu of her right to maintenance, gets converted into an absolute estate. Even the right to possess, as against actual possession, has been recognized as possession for grant of absolute estate. This is, however, subject to the provisions of Section 14(2).

A more elaborate discussion about the rights of a female Hindu before and after the coming into force of the Hindu Succession Act 1956, and particularly the provisions of Section 14 of the Act, is contained in a three Judge Bench judgment of Hon’ble Supreme Court Court in V. Tulasamma and others v. Sesha Reddy (Dead) by LRs reported as 1977(3) SCC 99. Dealing with the provisions of the Hindu Succession Act, 1956, the Court observed :-

“The Act is codifying enactment, and has made far-reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate…………”

Fazl Ali, J., in his exhaustive discussion in the said judgment dealing with the question of the pre-existing right of a Hindu widow, opined that the provisions of the Section must be liberally construed in order to advance the object of the Act, which is “to enlarge the limited interest possessed by a Hindu widow” in “consonance with the changing temper of the times”.

Thereafter, the provisions of Section 14(1) have been applied most liberally in favor of a Hindu widow. However, at times the courts have leaned towards giving effect to Section 14(2) over Section 14(1), particularly in case of wills executed after 1956 granting limited estate to a female. Reference can be made to the decisions rendered by the Hon’ble Supreme Court in Ranvir Dewan v. Rashmi Khanna, 2018 AIR 62 SC, Shivdev Kaur (D) By Lrs. v. R.S. Grewal, 2013(4) SCC 636. Such disposition of property in my opinion, is nothing but a conferment in deemed recognition of the pre- existing right of the Hindu female for a claim of maintenance. The reformative judicial interpretation of law should not be allowed to be diluted to give precedence to Section 14(2) and the same has to be read down so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long-needed legislation by giving widest possible interpretation to section 14(1) of the Act.

Interest in co-parcenery: Prospective or Retrospective

The Hindu Succession Act, as noticed above, made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband’s property as also to her father’s property. But even after fifty years of Independence, a woman was still neglected in her own natal family as well as in the family she married into because of blatant disregard and unjustified violation of these provisions by some of the personal laws.

With these points in mind, the 174th report of the Law Commission, “Property Rights of Women: Proposed Reforms under the Hindu Law” recommended amendments, mainly in Section 4 and 6, which have been implemented through the Hindu Succession (Amendment) Act, 2005, to provide that the daughter of a co-parcener in a joint Hindu family, governed by the Mitakshara Law, shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the property as that of a son. All women are now entitled to be treated at par with their male counterparts and daughters, whether married or unmarried, are co-parceners in the ancestral (joint) family property. They can inherit through intestate as well as testamentary succession. They are also allowed to hold property in all forms and by all means, at an equal standing as males. However, this comes with a specific rider that the amendment will not affect or invalidate any disposition or alienation, including partition or testamentary disposition, which has taken place before 20.12.2004.

Contentiously, some have argued that these reforms go beyond addressing the grievance of women and instead create reverse discrimination for male members. In fact out of 16 class 1 heirs, 11 are females and only 5 are males. This aspect has been sought to be addressed by the 204th report of the Law Commission, by recommending to include the `son’s daughter’s son’ and the `daughter’s son’s son’ within the `Class I’ heirs. Still further 208th report of the Law Commission suggested to include family arrangement and oral partition in the expression “Partition” as mentioned in the explanation to section 6, understandably to avoid ignition of any dispute between the parties where there is none, and maintain harmony amongst family members.

Like any other amendment in a statute, the 2005 amendment also suffered from contradictory interpretations by courts. The Karnataka High Court interpreted the Amendment Act to have retrospective effect from the date of the coming into force of the Hindu Succession Act, 1956, whereas the Full Bench of the Bombay High Court interpreted the Amendment Act to have effect from the date of coming into force of the Amendment Act. The Hon’ble Supreme Court, in Parkash & others v. Phulavati others 2016(2) SCC 36 laid down that the provisions of the amendment are applicable prospectively to living daughters of living co-parceners as on 9.9.2005, irrespective of when such daughters are born.

However, in Danamma @ Suman Surpur v. Amar, 2018(3) SCC 343 the Court granted the same benefit to a daughter of a co-parcener who had died much before 9.9.2005. This created a divergence of legal approach and the matter has now been referred to a larger bench for resolution in the case titled Civil Appeal No. 32601/2018 Vineeta Sharma v. Rakesh Sharma. Although, if we glance at the well settled principles of Hindu law, a co-parcener has a share in the property by birth, and the date of death ought not to make any difference in the determination of entitlement of a share in the co-parcenary. The Amending Act makes the daughter a co-coparcener, having a birth right at par with the son. The interpretation cannot be restrictive so as to defeat the very object of the Act, which was to end the discrimination that existed for decades. Thus an expedient resolution through legal discourse is necessary on the issue to avoid uncertainty and delay in the implementation of the Amending Act in the right perspective. Additionally the question of grant of right in the joint family property of the in-laws also need to be further debated and deliberated to safe guard her interest in the matrimonial home.

Principles of Succession: Scope for Further Reforms

Advancing further, another provision of Hindu Succession which needs attention would be Section 15, which provides a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu. The property is inherited depending on the source of acquisition or manner of inheritance of property. But in case of the self-acquired property of a Hindu married female dying intestate her property devolves on her husband’s heirs. This means that her paternal and maternal heirs do not inherit anything, but the distant relations of her husband would inherit shares as her husband’s heirs.

Since subsequent to the enactment of the Hindu Succession Act, 1956, there have been sweeping changes in the social structure in the past few years. The consequences are that women are owning property out of their own earnings, have higher education enrollment, getting greater legislative representation and are socially and economically independent. That in the 207th report of the Law Commission it has been recommended that in the present scenario, when a woman is entitled to inherit property from her parental side as well as from her husband’s side, it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property. Therefore, as a necessary consequence of changing times, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause `a’ of Section 15, the property would devolve on her husband’s heirs and also on the heirs of her paternal side, whomsoever is closer in degree of relationship.

The 174th Report of the Law Commission of India has also examined the subject of “Property Rights of Women:Proposed Reforms under the Hindu Law”, and after eliciting views from the public, had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions. The 174th Report had explained the position thus:-

“2.5 Again, the patrilineal assumptions of a dominant male ideology are clearly reflected in the laws governing a Hindu female who dies intestate. The law in her case is markedly different from those governing Hindu males. The property is to devolve first to her children and husband; secondly, to her husband’s heirs; thirdly to her father’s heirs, and lastly to her mother’s heirs. The provision of section 15(2) of HSA is indicative again of a tilt towards the male as it provides that any property she inherited from her father or mother should devolve, in the absence of any children, to her father’s heirs and similarly, any property she inherited from her husband or father-in-law, to her husband’s heirs. These provisions depict that property continues to be inherited through the male line from which it came either back to her father’s family or to her husband’s family.”

Conclusion

Thus, despite radical changes having been brought about by various enactments, which have completely altered the position of the Hindu female in the present days cenario, various material recommendations are yet to find place in the statute.

In the male dominated society, women are discriminated against in all matters, much so in rural India on the pretext to plug the problem of fragmentation of land holdings into smaller parts, or the property going outside of the family. As per a study conducted by the World Bank Legal Research Group in 2010, 57 countries had made reforms that strengthened women’s economic rights, including 28 countries that had eliminated all of the constraints. The law is definitely evolving but it is merely a tool and what is needed is social transformation. There has been tremendous progress made in closing many of the gender gaps in formal property rights and legal capacity. However, notwithstanding the constitutional guarantee of equality and fairness, much more is required to be done by raising awareness and bringing about a change in the social mindset. Change is possible, but it is a just a beginning as change is not complete.

(The author is a lawyer practicing in the High Court of Punjab and Haryana at Chandigarh and the views express are personal only)

Public International law also known as “The Law of the Nations” finds its genesis from the Roman Law applicable between the Roman Republic and the tribes and kingdoms of the rest of the world, called “jus gentium”. One of the oldest recorded treaties is the Peace Treaty of Kadesh between Hittities and the Egyptians around 1259 BC. However, the modern International Law as we know today was born in 1648 out of the Peace Treaty of Osnabruck and Munster which put an end to the 30 years of war within the Roman Empire and parts of Europe. The new understanding was based on equal sovereignty of the states on its own territory and equal to one another. Under the model of equal sovereignty, the states were free to enact their own laws and eventually enter into contracts with other states, creating obligations between them. This basic structure of International law has not changed much over the centuries and is still prevalent today. Article 2, Paragraph 1, of the United Nations Charter proclaims that “The Organization is based on the principle of the sovereign equality of all its Members”,while Paragraph 7 protects what is called the “domestic jurisdiction” of States from outside interference.

Under the Peace Treaty of Versailles in 1919, for the first time, an international body was set up for maintaining peace and security between the nations known as “The League of Nations”. However, despite being a symbol of maintaining peace and order between the nations, it failed to prevent the World War II. Nevertheless, this was the first step towards the establishment of the principles of international law as we know today.

International organisations are a very important feature of modern international law. There are a few hundred international organisations governing various aspects amongst states,ranging from river disputes to universal organisations entrusted with crucial political tasks, like the United Nations. The name “United Nations”, coined by United States President Franklin D. Roosevelt, was first used in the Declaration by the United Nations on 1 January 1942, during the Second World War. In 1945, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organization to draw up the United Nations Charter. The Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, signed it later and became one of the original 51 Member States. The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of the other signatories. According to Article 1 of the UN Charter, the purposes of the Organization are as follows:

“To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

To achieve international co-operation in solving international problems of an economic, social,cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

To be a center for harmonizing the actions of nations in the attainment of these common ends.”

Now the question arises as to how it is possible to have `rule of law’ in a system of sovereign states. The rule of international law originates from the consent and will of the states. The necessity to have in place a mechanism in the form of International law arises from the desire of the states to be able to engage in international relations, having a common set of rules that ensure and protect their rights and obligations. There is no higher authority, as in case of domestic laws, because states are sovereign and equal to one another. In 1927, The Permanent Court of Justice, by laying down the foundation of modern international law, in a case famously known as “The Lotus Case” between France and Turkey, held that:

“International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.

Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.”

Amongst the important sources of international law are international conventions, international customs, general law and unilateral acts recognised by civilized nations and the judicial decisions and teachings of eminent jurists. Another important source of international law is the international treaties entered into by the states amongst each other. The most important of these treaties include the Vienna Convention of 1969,Geneva Convention of 1949 and the Universal declaration of Human rights of 1948. This is,however, subject to the principle of “jus cogens” i.e. a pre-emptory norm generally accepted and recognised by the international community of states (for example, prohibition of slavery, prohibition of racial discrimination, etc.). Thus, the international law being a result of the `will of the states’, the various sources of international law are also a result of processes which are somehow and ultimately controlled by the states themselves. The next step would be the interpretation of the international law, as there can be no application of international rules without interpretation. The general principles of interpretation of international law are provided in Article 31-33 of the 1969 Vienna Convention.

Performance of international obligations is another essential aspect of International law. The International Law Commission has written in its 2001 final report on the Draft Articles on the responsibility of States for internationally wrongful acts as under:

“In some cases precisely defined conduct is expected from the State concerned; in others the obligation only sets a minimum standard above which the State is free to act. Conduct proscribed by an international obligation may involve an act or an omission or a combination of acts and omissions; it may involve the passage of legislation, or specific administrative or other action in a given case, or even a threat of such action, whether or not the threat is carried out, or a final judicial decision. It may require the provision of facilities, or the taking of precautions or the enforcement of a prohibition. That obligation is also an obligation of due diligence, as the International Tribunal for the Law of the Sea has ruled in April 2015. As the ICJ has put it in the case between Bosnia-Herzegovina and Serbia concerning the application of the Convention on the prevention and punishment of the crime of genocide, responsibility for breach of the obligation to prevent genocide “is incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.”

The use of force is regulated by the rules and principles of International humanitarian law. The Geneva Conventions and their additional protocols deal with, among other topics, prisoners of war, the sick and wounded, war at sea, occupied territories, and the treatment of civilians. In addition, a number of conventions and declarations detail the types of weapons that may and may not be used in warfare.

The States are required to enact domestic legislation in order to comply with their international obligations. A State is free to accept that international law prevails over its own laws, or in some cases, such as in case of conflict, the State may prefer that its own rules prevail. The enforcement of responsibility in case of breach of obligation is most significant in order to ascertain the effectiveness of international law. In the Nicaragua v. United States case, the International Court of Justice observed that-

“The principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peaceful means […] is a principle that has […] the status of customary law.”

The settlement of disputes in international law can be done by way of political negotiations and treaties, through conciliation, or through the judicial process of the International Court of Justice, the International Criminal Court or other allied organisations. The judicial organ of the United Nations is called the International Court of Justice (ICJ). The ICJ replaced the Permanent Court of Justice founded at the time of the establishment of the League of Nations. The seat of the International Court of Justice is established in The Hague in the Netherlands. The international judicial process depends upon the consent of the parties as there is no compulsory jurisdiction of international law. Arbitration is an old institution of international law and in its modern form, it is usually traced back to the Jay Treaty of 1794, a treaty concluded in London between the young Unites States of America and Great Britain. It is a treaty of amity, commerce and navigation which established mixed commissions of arbitrations to solve certain pending disputes that existed between the two parties. The Permanent Court of Arbitration,also having its seat at The Hague, provides administrative support to arbitration tribunals and also holds international arbitrations. However there is no effective mechanism to implement the decisions of the ICJ, though the same are final and binding on the participating states

On most occasions,international law is subjected to the valid criticism of being ineffective. International law is facing its biggest challenge today in view of the emerging assertive behavior of non-state actors, misplaced nationalism and aggressive economic aspirations of the states. International law has succeeded in matters like punishment for international war crimes and protection of environment in general and European Union in particular which represents the new legal order of International Law. On the other hand, it has struggled in matters of international peace and security, like in Iraq and Syria, and more recently,the global pandemic and standoff between India and China on borders issues. Although obligation to settle the dispute peacefully is a well accepted doctrine of International Law, the absence of farsightedness has resulted in the casual disregard of global interests and giving undue importance to domestic compulsions in the name of security has become a norm. The way the international law is created, implemented and controlled is very complex as there is no democratic system involved, thereby resulting in a greater distance between the law makers and the subjects of law in the international arena. Achieving consensus has become increasingly difficult and complicated amongst member states. The traditionally influential states have failed to reach consensus on various issues, more particularly due to their own notable breaches. Mrs. María Fernanda Espinosa Garcés, President of the 73rd Session of the UN General Assembly stated:

“We are witnessing the rise of nationalist populism and extremist ideologies, as the world becomes more multipolar but also more polarized. We have seen the impact of this trend on hard-won multilateral agreements and institutions: the Paris climate agreement; the global compact on migration; the Human Rights Council, the WTO, arms control instruments – these are just a few examples that I’d like to mention.

We are seeing long-established international laws and multilateral practices – which have delivered so much for the world since 1945 – devalued by geopolitical tensions, unilateralism, and ad hocery.

And we are seeing a growing disconnect between people, governments and institutions. People expect us to keep the promises we have made, through the 2030 Agenda for Sustainable Development, for example. But they are losing faith in our capacity to deliver for them.

Unless we reverse these trends, we risk damaging the values, principles, laws and systems that have been the bedrock of the international community for more than seven decades. And the irony is that these trends are occurring at precisely the moment when we need global cooperation more than ever.”

However, it would be a fallacy to treat International law as fiction, as it has, to a large degree, replaced armed conflict by peaceful negotiation and conciliation as a way of settling international disputes. The effectiveness of international law cannot merely be brushed aside in as much as international law has proven itself to be resilient in the face of global political disputes. The future evolution of international law depends upon the political will of the states towards international policies. States must, in unison,fundamentally recognise and acknowledge their responsibility towards world peace and better global governance, with due respect to the sovereignty of others and work towards the reform and development of international law in accordance with the UN Charter. Contemporary international law is not without its shortcomings, but it still remains exceedingly unique and significant for global harmony.

Credits: UN website, Prof. Pierre d’Argent, Universite catholique de Louvain

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)