Opinion What three recent cases say about our labyrinthine legal system

Why is that timeline important? Because the Hindu Succession Act was passed in 1956 and it governs intestate succession among Hindus. This bit, about the year of Marappa’s death, was examined by a trial court (judgment of 1994) and the Madras High Court (judgment of 2009) and both courts decided Marappa died in 1949, not 1957. The SC saw no reason to question that established fact. Nor was another fact questioned: In 1938, Marappa bought the property through his own resources. It wasn’t joint family property. He could have dealt with it as he chose, had he left a will. Unfortunately, he died intestate. Marappa Gounder had only one daughter, Kupayee Ammal, and no sons. She died in 1967 and left no children. Ramaswamy Gounder had one son and four daughters. The son was Gurunatha Gounder (II). The daughters were Thangammal (dead now), Ramayeeammal (dead now), Elayammal and Nallammal. Thangammal, dead now, was the original plaintiff, who applied for partition.

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

The SC decided: “Applying the above settled legal proposition to the facts of the case at hands, since the succession of the suit properties opened in 1967 upon the death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughters being Class-I heirs of their father too shall also be heirs and entitled to 1/5th share in each of the suit properties.” Incidentally, Gurunatha Gounder (II) is also dead. Most of the original parties are dead, including not just the one who first asked for the partition, but the original appellant.

Azadi Ka Amrit Mahotsav celebrates 75 years of India’s Independence and we are setting out a template for India in 2047. Does it seem right that an issue of inheritance that should have been settled in 1949, or in 1967, is being settled in 2022? Imagine the mess in enforcing what the SC has decided. Lawsuits of fathers (or mothers) devolve on sons and daughters, up to the third or fourth generation.

Part of the mess is because of the complicated nature of inheritance and succession laws, even more so if the individual dies intestate. There are constitutional issues, one part of the Constitution vis-à-vis another. Despite the issue being controversial, we can’t possibly deny we don’t have a framework for personal laws suitable for a 21st century India. Add to that long delays in settling disputes, overload in the admission of cases and even the language of judgments.

Consider another recent case from Mumbai, the one where the metropolitan magistrate acquitted Shilpa Shetty of obscenity and indecency charges. In 2007, at a promotional event, Richard Gere kissed her and FIRs were filed in Rajasthan and Uttar Pradesh. Those FIRs were primarily under the Indecent Representation of Women (Prohibition) Act and Sections 292, 293 and 294 of IPC (Indian Penal Code). I think anyone who reads those statutes and sections should agree, (a) those FIRs shouldn’t have been lodged; (b) even if there was an FIR, the case shouldn’t have been admitted in court; (c) it shouldn’t have taken 15 years to decide. Police and courts should have better things to do. Shouldn’t we be more discriminating about what cases are admitted in courts?

On language and plain English, I am repeating myself. (I have written about it in the past.) I am repeating myself because such incidents recur, especially in Himachal Pradesh, though Justice Sureshwar Thakur has now moved elsewhere, to the Punjab and Haryana High Court.

In January 2022, two judges of the SC couldn’t understand a judgment authored by Thakur in 2017 and had to ask whether it was written in Latin. January 2022 wasn’t the first time. (He was incomprehensible in the past too.) There were similar examples for the Himachal Pradesh High Court in April 2017, December 2018 and March 2021.

In most organisations, people learn from past mistakes. But there is the need to be careful about the Contempt of Courts Act of 1971. When we hear “contempt of court”, we tend to think of civil contempt, where a court’s judgment or direction is not complied with. But that 1971 statute also has provisions on criminal contempt. Any act that “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court” is criminal contempt. “Scandalising” is neither contempt by interference, nor contempt by disobedience. We inherited this expression from Britain. In 2013, following a Law Commission Report (2012), the UK’s Crime and Courts Act, said, “Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.”

This column first appeared in the print edition on February 10, 2022 under the title ‘The litigation labyrinth’. The writer is chairman, Economic Advisory Council to the PM. Views are personal