Bombay High Court-‘File reply on safety concerns about UID’ #Aadhaar


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Rosy Sequereia, TNN March 19,2013

 

MUMBAI: The Bombay high court on Monday directed the Unique Identification Authority of India and the Centre to decide on a representation questioning the lack of safeguards in Aadhar cards. A division bench of Chief Justice Mohit Shah and Justice Anoop Mohta was hearing a petition by Vickram Crishna and others claiming there is lack of security and confidentiality, and no safety mechanism to ensure that private data are not circulated.

The petition challenged the January 2008 notification setting up the UID and urged the court to restrain the authority from taking further steps. The petitioners’ advocate, Mihir Desai, argued that on December 13, 2012, the standing committee on finance rejected the proposed bill on UID saying it was riddled with problems, such as lack of clarity, and would not eradicate the need to provide other documents for identification.

He said the UID was constituted only by a notification and questioned whether it has considered measures for confidentiality and privacy given that it is being applied for the largest population in India. “The magnitude is huge. Large set-ups don’t have it. Internationally it has failed. It was scrapped in the UK and in the US, it was whittled down,” said Desai.

Justice Shah said, “Issues such as privacy, security and confidentiality can be taken care of by the authorities only.”

When Desai pointed out that the technical know-how is lacking for a large set-up like India and, in certain places identity screening facility is absent, the judges, in their order, said, “We do not propose to go into the merits of the controversy as the petitioners cannot pray for a writ of mandamus without first making representation to the authorities concerned, which are supposed to implement the project and take a decision.”

Disposing of the PIL, the HC directed the petitioners to make a representation within two weeks to the authority and the Centre and told the latter to take a decision within four months.

 

 

 

#India -SC sets aside 2009 ruling, says kicking daughter-in-law is not Cruel #goodnews #Vaw


NEW DELHI: Four years after it shocked women by ruling that kicking a daughter-in-law was not an act of cruelty as defined under Section 498A of Indian Penal Code, the Supreme Court on Thursday erased it from court records.

Allowing a plea by National Commission for Women (NCW), a bench of Chief Justice Altamas Kabir and Justices P Sathasivam and G S Singhvi set aside the July 27, 2009 judgment by which it had quashed the charges under Section 498A against Bhaskarlal Sharma and his wife Vimla Sharma who were summoned by the trial court for allegedly kicking their daughter-in-law Monica Sharma.

A bench of Justices S B Sinha and Cyriac Joseph had said in the 2009 judgment, “Allegations that appellant No.2 (Vimla) kicked the respondent (Monica) with her leg and told her that her mother is a liar may make out some other offence but not the one punishable under Section 498A.

“Similarly, her allegations that the appellant No.2 poisoned the ears of her son against the respondent, she gave two used lady suits of her daughter to the complainant (Monica) and has been giving perpetual sermons to the complainant could not be said to be offences punishable under Section 498A.”

However, if the mother-in-law takes away the gifts given to the couple at the time of the marriage, it amounts to ‘breach of trust’ as specified under Section 406 IPC, the bench had said.

Appearing for NCW, senior advocate Indu Malhotra on Thursday argued that if allegations of physical violence and taking away of ‘stree-dhan’ (valuables of the bride) did not constitute an offence under Section 498A of IPC, then it would send a very wrong signal and have retrograde effect on the object of the provision to curb violence and cruelty against women in matrimonial homes.

Malhotra argued that the complaint filed by Monica Sharma against her in-laws was quashed by the apex court when the matter was at the initial stage of issuance of summons by the trial court. “This will send a very wrong signal,” she said.

Solicitor general Mohan Parasaran, appearing for the government, supported the NCW’s plea for setting aside of the judgment and requested the court to consider the petition filed by Bhaskarlal Sharma and his wife Vimla Sharma afresh.

Vimla’s counsel U U Lalit questioned the locus standi of NCW in a criminal case and said the apex court did not rule that kicking of a daughter-in-law was not an offence under Section 498A but merely said after appreciating the entire evidence that a case of cruelty against the daughter-in-law was not made out.

But the bench agreed with Malhotra and Parasaran, recalled its July 27 judgment and posted the matter for fresh hearing before another bench.

 

 

Bombay High court issues circular on sexual assault cases #womensday #justice


Women on Top: How Real Life Has Changed Women'...

 

High Court, Bombay
No.RG-1611-
of 2013
CIRCULAR
Directions have already been issued to assign cases involving
sexual assault against women exclusively to the Courts presided over by
women Judicial Officers in your District/ establishment.
It is a settled law that cases involving sexual assault against
women are required to be dealt with greater sensitivity.
In these cases, women are the victims of crime and for the
purpose of enabling victims to give their evidence in a stress-free
atmosphere and without any fear or embarrassment, it is desirable that all
staff members i.e. Bench Clerks, Stenographer, Interpreter, Typist-cum-
Clerk, Havildar/Peons, are all women.

 

8th March being a Women’s Day, the Hon’ble the Chief Justice
has directed that the above instructions be implemented immediately from
tomorrow, the 8 th March, 2013, itself.

( S.B. Shukre )
Registrar General

 

Punjab &Haryana High Court-issues notices to Centre over mandatory UID for licence #Aadhaar


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200 px (Photo credit: Wikipedia)

 

Express news service : Chandigarh, Tue Jan 15 2013, 02:04 hrs
On a petition filed against Aadhaar cards, the Punjab and Haryana High Court on Monday issued notices to the centre and UT Administration.
A petition filed by Sanjiv Pandey came up for hearing before a Division Bench comprising Chief Justice Arjan Kumar Sikri and Justice Rakesh Kumar Jain. The bench has issued notices for March 4.
The petitioner has sought quashing of executive order of Deputy Commissioner, UT Administration dated December 5, 2012, which has made the UID card mandatory for registration of vehicles and grant of learner/ regular driving license.
The petitioner’s counsel Gagan Geet Kaur submitted that UID cards are unconstitutional and have no legal sanctity as the National Identification Authority of India Bill – 2010 is pending in Parliament.
Kaur further pleaded before the bench that application form for the registration of UID cards clearly states that Aadhar enrollment is free and voluntary and that there is no grounds for the government to be forcing the public to get enrollment by making its requirement in essential public services.
The court was also informed that unfortunately, UID cards are given too much importance than the other proofs of identity and residence such as voter card and passport which are issued by Election Commission of India and the Ministry of Foreign respectively.

 

 

 

#Patialagangrape : Punjab and Haryana High Court says enough is enough


enufTribune News Service

Chandigarh, December 28
“Enough is enough”, the Chief Justice of the Punjab and Haryana High Court today asserted, while taking suo-motu cognizance of news reports on suicide by a minor over alleged harassment by the police after rape.

Chief Justice Arjan Kumar Sikri also drew a parallel between the law and order situation prevailing in Delhi and Punjab, and minced no words to say crime against women was on the rise in the state.

In a scathing indictment of the Punjab Police, the Chief Justice went on say: “The manner in which incidents have happened over the past few days is an eye-opener. Enough is enough…. The primary function, nay, the solemn duty of the police is to protect the citizens and track down crimes. However, when the police starts shielding and protecting the culprits and starts treating the victims of crime as accused persons, it is a sad day for the democracy of a country governed by the rules of law.”

Chief Justice Sikri issued notice to Punjab and Haryana along with Chandigarh, directing the authorities concerned to fix responsibility on erring officers before coming out with a detailed report on the incident and circumstances leading to the suicide.

The Chief Justice said the incident depicted a “very sordid sate of affairs”. The victim of rape was not only “harassed by policemen”, but also continuously threatened by the alleged rapists, he observed.

Compelled by “these adverse circumstances and filled with indignation, the minor girl thought the only course of action left was to end her life”.

The Chief Justice added: “Woman rights are human rights”, but in the present case the alleged rapists were “only not arrested, but were allowed to reportedly threaten the victim, as well as her family members. They were allowed to roam freely, and the repeated requests of the victim and her mother had no effect on policemen who remained deaf. On the contrary, they kept harassing the victim and her family by asking awkward questions and passing vulgar remarks, whenever the victim visited the police station”.

In his two-page order, the Chief Justice asserted: “Delhi has already acquired the dubious distinction of being labelled the ‘rape capital’ of the country. Irony is that the state of affairs is not confined to Delhi alone and the situation in Punjab is also far from satisfactory. There is not only an upsurge in general crimes against women, but also heinous and ghastly crimes like rape in the state.

“There is also a need for combating this rape culture by reforming various other institutions. Law for punishing such crimes appears on the statute book. It is the lack of adequate and enforcement system that also contributes to repeated commission of such offences. There is a need for proper law and order machinery in preventing such occurrences. In order to curb such criminality, criminal justice system also required to be revamped and strengthened.”

Notice to Punjab, Haryana

 Punjab and Haryana High Court issues notice to Punjab, Haryana and Chandigarh

 Directs authorities to fix responsibility on erring officers before filing a detailed report on the incident

 Justice Sikri draws a parallel between the law and order situation in Delhi and Punjab

Supreme Court notice to govt on PIL over Aadhar #UID


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200 px (Photo credit: Wikipedia)

 

 

TNN | Dec 1, 2012, 12.40 AM IST

 

 

Supreme Court notice to govt on PIL over Aadhar
The Supreme Court on Friday agreed to examine the legal sanctity behind the much hyped Aadhaar cards being prepared by the Unique Identification Authority which will be the sole proof for the government’s scheme for direct transfer of cash to a poor person’s account.
NEW DELHI: The Supreme Court on Friday agreed to examine the legal sanctity behind the much hyped Aadhaar cards being prepared by the Unique Identification Authority which will be the sole proof for the government’s scheme for direct transfer of cash to a poor person’s account.

A bench of Chief Justice Altamas Kabir and Justice J Chelameswar issued notice to the Centre on a PIL by a retired judge of Karnataka high court, K S Puttaswamy, who alleged that the government, by going ahead with distribution of UID numbers and cards to citizens, was bypassing Parliament which was still considering a bill on this issue.

The PIL said collection of personal data by the government not only violated the citizen’s fundamental right to privacy but was also an executive act in overreach of Parliament, where National Identification Authority of India Bill, 2010, was still pending for consideration.

Senior advocate Anil Divan questioned the grant of UID numbers and Aadhaar cards to illegal migrants at a time when the bill was pending before Parliament and its standing committee had rejected the bill in its report. The PIL requested the court to restrain the government from issuing UID numbers and Aadhaar cards till Parliament took a decision on the bill.

When the bench said Parliament could debate the standing committee’s report and decide not to accept it, Divan said this could happen only through a informed debate on the floor of Parliament and the government could not have pre-empted the outcome of the debate through an executive action.

The petitioners, Justice Puttaswamy and another, said they had ascertained that the Unique Identification Number Project proposed to give UID numbers not only to citizens but also illegal migrants pursuant to a scheme framed by the government through an executive order of January 28, 2009.

Referring to several judgments of the Supreme Court on right to privacy of a citizen guaranteed under Article 21 of the Constitution, the petitioners said, “Collecting biometric information as a condition precedent for the issue of Aadhaar card is an invasion of right to privacy of citizens and thereby this can only be done by a law enacted by Parliament and hence, beyond the executive power.”

The petitioners asked, “Can executive power be used in a manner so as to make legislative power redundant or in other words, whether by the exercise of executive power, the executive can circumvent Parliament?”

 

 

 

Mere criticism is not #sedition, govt says in draft guidelines #draconianlaws #justice


Published: Friday, Oct 19, 2012, 19:33 IST
Place: Mumbai | Agency: PTI

Having burnt its fingers over the arrest of cartoonist Aseem Trivedi, the Maharashtra government today submitted a draft circular to the Bombay High Court, which says that a criticism of political leaders or government per se does not call for pressing of the charge of `sedition‘.

Advocate General Darius Khambata submitted a six-point circular to the division bench of Chief Justice Mohit Shah and Justice NM Jamdar during the hearing of public interest litigation filed by lawyer Sanskar Marathe against Trivedi’s arrest on sedition charge.Trivedi was arrested over some of his cartoons that allegedly insulted the national emblem and the Parliament.At an earlier hearing, high court had granted bail to Trivedi and come down heavily on the police for arresting him on “frivolous grounds” and “without application of mind”.

The government had also stated then that it was dropping the charge of sedition, and would come out with a circular specifying the limitations and parameters for application of sedition charge in future.The draft circular submitted today says that sedition charge would apply if the act creates disaffection towards the government and incites violence.

“Words, signs or representations must bring the government into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the government. They must be incitement to violence or must be intended to create public disorder….” it says.Words, signs of representations against politicians or public servants per se do not fall under the category of sedition.”Comments expressing disapproval or criticism of the government with a view to obtaining change of government by lawful means are not seditious under section 124 (a) of IPC.

Obscenity or vulgarity should also not be taken into account under this charge,” the circular reads.Further, says the circular, police officials should seek a legal opinion in writing from the law officer, followed by that of the public prosecutor, before applying sedition charge against any person.

The court today heard arguments of Khambata, Marathe and Trivedi’s lawyer advocate Mihir Desai on whether the HC needs to include any more guidelines. But no order was passed.Trivedi, though the sedition charge has been dropped, will still have to face a case under National Honor Act and Information Technology Act for three of his cartoons which were also put on internet.The Kanpur-based cartoonist, associated with Anna Hazare‘s anti-corruption movement, was arrested on September 8, which had led to public outcry.

Karnataka Women Groups write to CJ Karnataka #Bhaktavasala


 

 

To

The Hon’ble Chief Justice

High Court of Karnataka

 

 

Hon’ble Chief Justice Shri Vikramjit Sen,

 

We are writing to you in the context of the recent media reports regarding Hon’ble Justice Bhaktavatsala’s verbal comments in open Court. We are bringing these comments to your notice because they do not seem to be in consonance with the oath Justice Bhaktavatsala has taken under Article 219 to ‘bear true faith and allegiance to the Constitution of India and to duly and faithfully and to the best of my ability, knowledge, and judgment perform the duties of my office without fear and favour, affection or ill-will and to uphold the Constitution and the laws.’ The comments attributed to J. Bhaktavatsala are deeply offensive to all right thinking people, lower the dignity and agency of women who constitute literally half the population of this country and betray animus towards women.

 

It has been reported that J. Bhaktavatsala in open court has observed as follwos:

 

1) According to media reports on August 31 2012 Justice Bhaktavatsala stated to a woman litigant in a divorce matter, “Women suffer in all marriages. You are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business, he will take care of you. Why are you still talking about his beatings? I know you have undergone pain. But that is nothing in front of what you undergo as a woman. I have not undergone such pain. But Madam (Justice BS Indrakala) has.”

The Court asked the woman if her parents were present, at which her father walked up to the bench. The judge was reported to have remarked in open court, “Ask your father if he has never beaten your mother!” When the woman said her husband would beat her in the open, in front of everyone, Justice Bhaktavatsala remarked that it was she who was bringing it out in the open. The court was told that the husband would beat her in the middle of the night and had thrown her out of the house.

When the woman’s advocate produced photographs showing her swollen face after the beatings, the court said, “You have to adjust. Are you just behind money? There is nothing in your case to argue on merits. You have to give him a divorce or go with him. Have you read about actor Darshan. He spent 30 days in jail after beating his wife. But they are living together now. What is on your mind and what is on your agenda?” The court directed the couple to go out and talk to each other. (Bangalore Mirror, August 31,2012)

 

2) In another case, a young  female advocate was citing the allegations against the husband, Justice Bhaktavatsala stopped her midway and asked, “Are you married?” When she replied in the negative, the judge said, “You are unfit to argue this case. You do not know real life. Why are you arguing like this? He is your (client’s) partner, not a stranger. Family matters should be argued only by married people, not spinsters. You should only watch. Bachelors and spinsters watching family court proceedings will start thinking if there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experience to argue such cases.”

(Bangalore Mirror,  August 10, 2012)

 

Our concern is that these comments apart from lowering the dignity of the High Court of Karnataka are also indicative of a judicial mindset which leads to judicial pronouncements which are not in keeping with the Constitution. In particular, the Constitution protects intimate choices with respect to one’s partner transcending barriers of caste, class and religion, regardless of parental opposition. In Writ Petition (HC) No.67/2011, Avinash v. State of Karnataka, J. Bhaktavatsala has expressed his strong opinion against love marriages and by extension the choices made by young women about whom to marry are summarily brushed aside as choices made because of ‘hormonal imbalances’. To quote from the judgment;

In our opinion, the girls below the age of 21 years are not capable of forming a rational judgment as to suitability of the boy, who is in love. It is relevant to mention that those girls, who are suffering from harmonal imbalance easily fall prey to the boys and fall in love, marry and repent at leisure. The parents of the girl are interested in selecting a suitable boy and see that the girl leads a happy married life. Since the Hindu Marriage Act does not deal with love marriages, in our view, it is a high time that the Parliament shall take note of the sufferings and turmoil of such girls and their parents and amend the law suitably. We perpetuate our memory as to the episode of the famous Telugu Cine actor Sri Chiranjivi’s daughter’s love marriage. Hence, we suggest that in the case of love affair of a girl, who is below the age of 21 years, there shall be a condition that the parents of the girl should approve the marriage, otherwise such marriages shall be declared void or voidable.”

In particular, Justice Bhaktavatsala’s above mentioned judicial pronouncement undermines the very idea of India as a nation in which all persons are free to form consensual intimate relationships with others of their choice regardless of narrow considerations of gender, caste, religion and class. If India is to indeed move beyond being a society riven by sharp divisions of caste and religion, the antidote lies in the choices made by young people to love across these narrow domestic walls, regardless of parental opposition.

As Dr. Ambedkar noted:

I am convinced that the real remedy is inter-marriage. Fusion of blood can alone create the feeling of being kith and kin, and unless this feeling of kinship, of being kindred, becomes paramount, the separatist feeling- the feeling of being aliens- created by Caste will not vanish.

(Annihilation of Caste)

 

The citizens of India look to the Court to protect their right to equality, dignity and liberty. Judges must keep this constitutional mandate in mind of being the protectors of the Constitution, even as they perform their duty  to interpret the law. Thus judges do not have a free reign to give expression to their own private morality or even the morality of the wider public, but rather have a duty to interpret the law in the light of the Constitution. Judges are bound by what the Founding Father of the Indian Constitution, Dr. B.R. Ambedkar describes as constitutional morality.  Dr. Ambedkar quoted Grote, the historian of Greece, who had said:

The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves.”

After quoting Grote, Dr. Ambedkar added:

While everybody recognised the necessity of diffusion of constitutional morality for the peaceful working of the democratic constitution, there are two things interconnected with it which are not, unfortunately, generally recognised. One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution. ……The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.

[Constitutional Assembly Debates: Official Reports Vol.VII: November 4, 1948, page 38],

 

J. Bhaktavatsala in making those above statements, has clearly overstepped the bounds and limits of constitutional morality as described by Dr. Ambedkar. We are extraordinarily disappointed and let down by the fact that a high constitutional functionary has through his reported comments and judicial pronouncements betrayed the enormous trust vested in him. There are serious apprehensions that in the constitutionally mandated area of non-discrimination on grounds of gender, J. Bhaktavatsala will not decide in accordance with the constitution but rather in accordance with his private morality.

 

We ask that you consider strong action in your capacity as a Chief Justice to send out the message that no Judge can so easily betray the mandate of the Constitution to ensure equality of gender. Judges have a duty to protect the mandate of Article 14 of the constitution which guarantees equality and non-discrimination and Article 15 which guarantees that there shall be no discrimination on the basis of gender. Justice Bhaktavatsala’s comments and action in court in condoning violence against women, in requiring that unmarried women are not capable of arguing matrimonial cases and comments even about Justice Indrakala, his sister Judge are extremely gender biased and discriminating against women. This bias against women is reflected not only in his statements in court but also in his judgments. Gender bias is ordinarily defined as a tendency to think about people primarily on the basis of their sex. In the judicial system, gender bias results in decisions or actions that are based upon preconceived notions of sexual roles rather than on fair and impartial appraisals of any situation. Gender bias must be eliminated in the judicial system not only because it influences the perception of women in the courtroom, but also because it undermines the manner in which courts apply the law and thus affects the substantive rights of the parties.

 

In the interest of upholding the principles of our Constitution, we would request the following:

  1. That J. Bhaktavatsala issue an unconditional public apology for his gender biased and offensive remarks.
  2. That the all appeals from the judgments of the Family Court classified as MFA(FC) are removed from J. Bhaktavatsala’s docket.
  3. Set up a Commission to look at gender bias within the judiciary in Karnataka

 

We would also request you to take serious note of these comments and ensure that in your capacity as the Chief Justice, no judge of the Karnataka High Court again gives any room for such gross insensitivity to all forms of discrimination based on gender.

 

Protest against Justice Bhaktavatsala on September 10,2012 #Bangalore


 

Justice Bhaktavatsala’s remarks in the High Court legitimizing the
criminal act of domestic violence have horrified the city and indeed the
entire country.

To protest such absolutely misogynistic mindset reflecting the dominant
attitudes of society that sanction violence against women, we are
gathering in protest on Monday September 10, 2012 from 12.30 pm onwards.
_/If you wish to join us in the protest, kindly email us in advance so
we can inform you (later) about the site of the protest./_

*Please come dressed in black and we will stand in silence with placards
to express our outrage over Justice Bhaktavatsala’s actions. (If you
prefer to bring your own messages, please note that displaying them will
be subject to review by Vimochana and other organisers).*

Following the protest we will present the attached memorandum to the
Chief Justice. If you wish to endorse the memorandum, please email us
your name, affiliation and contact details no later than Sunday night
(9th September).

We look forward to your endorsement and/or your presence in the protest.

All of us from Vimochana.


VIMOCHANA
Forum for Women’s Rights
33/1-9, Thyagraj Layout
Jaibharath Nagar, Bangalore 560033
INDIA
Tel: +91-80-25492783, 782, 781
http://www.vimochana.in

 

Karnataka HC Judge Finds Wife Bashing Acceptable; Draws Flak


By IBTimes Staff Reporter | September 6, 2012

In an outlandish opinion of domestic violence in India, a Karnataka High Court judge reportedly said that a husband bashing the wife is acceptable as long as he takes good care of her.

Justice Bhaktavatsala has come under intense criticism for his so-called sexist remarks in a divorce case. An online campaign has been launched against him and online protesters have sought the Chief Justice of Karnataka to take serious action against Bhaktavatsala besides having him removed from his post.

More than 500 people have signed an online petition supporting the activists demand for striping Bhaktavatsala off his Justice position. An activists in their petition said, “The comments made by Justice Bhaktavatsala in various domestic violence and divorce court proceedings  recently are perpetuating the myth of patriarchy and his opinions going beyond the legal scope..”

“The judges are supposed to protect and enforce human rights of the citizens, but here we have a judge who is against women rights and even encouraging them to continue to stay in a violent relationship. Such views are retrograde and against the tenets of the Constitution of India,” the petition read.

The High Court judge reportedly made it worse by suggesting the woman to ask whether her father didn’t resort to beating her mother. “Ask your father if he has never beaten your mother!”

Each blow from Bhaktavatsala was painful than the other, until he concluded by asking the woman petitioner to “adjust” to her condition keeping her children’s future in mind.

Going by the content in online petition, Bhaktavatsala seems to have had allegedly given similar advices to couples who seek divorce for several reasons.

According to the activists, when a woman sought divorce from her husband on grounds of domestic violence, Justice Bhaktavatsala counsels the petitioner to endure the barbaric treatment in a bid to keep the family intact.

“Women suffer in all marriages. You are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business, he will take care of you. Why are you still talking about his beatings? I know you have undergone pain. But that is nothing in front of what you undergo as a woman. I have not undergone such pain. But madam (Justice BS Indrakala) has,” the online petition explained Justice Bhaktavatsala suggestion.