If Judiciary Crosses Line, It Would Become Very Dangerous Precedent | J Sai Deepak Argues Against Criminalisation Of Marital Rape

Deepak has addressed both the legal as well as social issues in the matter. Arguing on the legal front, he said,

When the legislature does not act, I certainly believe that the judiciary can issue an advisory or at least make its mind clear with respect to the pace at which it should move. But what should be the end outcome of that issue and what must be the final position that is to be taken with respect to that policy is not something that can be decided by a court of law even if it a constitutional court exercising powers under Article 226 of the Constitution.

This power is nowhere comparable to the power of the Supreme Court under Article 141.

Can Judiciary Cross The Line?

Deepak argued that the Court was being asked to take a decision since the legislature has not acted on the issue, but if that becomes a reason for the judiciary to “cross a line,” then it would become a very dangerous precedent. There will be a trickle-down effect as there will be no stopping other courts from taking up similar matters.

The Bench, then pointed out to similar notice coming from the Gujarat High Court, indicating that this issue is already before other courts as well. Justice Shakdher said,

It is not as if these issues are not coming before other courts. Judges will rule one way or the other. For us, every issue is important. This is an issue before us, let’s leave it at that. We need you to tell us if it passes the test of Article 14 and 21.

Vishaka Judgment Due to Absence of Law

The Supreme Court’s Vishaka judgment, on the basis of which the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was introduced, however, this comparison is not correct with respect to criminalisation of marital rape, Deepak argued. He said,

This is not a situation where your interventions are being sought in absence of a law. Unlike the Vishaka case, there is no legal vacuum. It is not as if there is no existing law here. On the contrary, here the legislature has taken a position that is contrary to the petitioners’.

The only basis on which this position can be struck down is if there is unconstitutionality… In Vishaka, powers of the Supreme Court were used which are not available to your Lordships.

The bench then questioned Deepak, whether courts can do nothing when there is an existing law. To this Deepak said,

If there is nothing, something can be done, that too only by the Supreme Court. And if there is something, then the question would be what is the effect of doing away with that something.

Unfair to Compare Decriminalisation of Section 377

Deepak then said that it would be unfair to compare the effect of courts removing a provision is to decriminalize something like Section 377. He said, striking down Exception 2 to Section 375 enlarges the scope of the existing offence, thereby creating a new species of offence when the legislature has taken a position to the contrary.

In this case, he continued, even if the Exception were to be assumed to be unconstitutional, the Court should cede space to the legislature in respect of the doctrine of separation of powers.

Let’s assume even if Exception 2 is unconstitutional, it has the incidental effect of enlarging the scope of an offence. Even then, the judiciary will have to cede space to the legislature in respect of the doctrine of separation of powers, because there is a very clear and direct consequence as it is an exception to the existing penal provision.

He went on to argue that a perusal of Section 375, 376B, 376C and 498A of the IPC showed that the legislature has identified four distinct situations where a woman’s bodily integrity is challenged. Therefore, there is an intelligible differential in the manner in which these offences are treated. Deepak said,

The point that I wish to make is that there are four gradations of sexual offences.

1. First is by a rank stranger and 375 is the provision in relation to that
2. Second is a person who enjoys a relation of authority and that is under 376C
3. Third is 376B where a former husband commits an offence
4. And then there is 498A, where the offence is acts committed by husband while being a husband

These are the four distinct situations. Therefore, there is an intelligible differentia in the manner in which these offences are treated.

Difference Between Will & Consent

Stating that the legislature has identified a difference between will and consent and that in certain cases, he said,

The legislature has made a difference between will and consent. Section 376B speaks of ‘without her consent’. The point is even when the husband is reduced to a stranger, the legislature is reluctant to use the word consent.

In certain instances, even if there is no will, consent manifests as the consequence of a relationship. Like Section 376C is the situation where will is absent but consent is present. In fact, judgments say while they may overlap, they are not the same.

International Legislations Are Gender Neutral

Deepak concluded that the international legislation relied upon by the petitioners come with some sort of safeguards and that even international instruments speak of gender neutrality.

We recognise there are more genders. Rape is not related to one particular gender.

On Social Aspect

Deepak said Social aspects will have to be considered in the matter as well. However, Justice Shakdher said:

When we say it is a legal issue, it is a legal issue before us. Legislature is, in most cases, post facto. What goes into framing of that legislation is only something we can look at. For us we are only testing it before Constitution. If the legislature is dealing with one sort of issue, of course they are because of certain circumstances. We are not not cognisant of the fact that it will impact people.

But we have to test it on Article 14 and 21.

To this Deepak said,

While the analysis may be legal, the trigger is social. I am not of the view that it is an academic issue. It is burning. I am on the question of forum and whether that forum is able to take into account all the aspects.