Thread by @lawbarandbench

#DelhiHighCourt will start hearing a batch of petitions demanding criminalisation of #MaritalRape
On Monday, Centre had said that it will frame a 'considered and consultative view' on the issue very soon.
barandbench.com/news/marital-r…

A bench of Justices Rajiv Shakdher and C Hari Shankar will hear the matter.
Sr Advocate and Amicus Curiae Rajshekhar Rao will continue with his arguments today.
#DelhiHighCourt #MaritalRape

Hearing starts.
#DelhiHighCourt #MaritalRape

Rao continues with his submissions.
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J Shakdher: Arguing is always a pleasurable and easier excercise because putting pen to paper challenges us.
#DelhiHighCourt #MaritalRape

J Shakdher: In a matter like this, there are so many questions that concern each one of us. But then, the buck stops with us. We are not going to shy away from this. We will decide one way or the other.
#DelhiHighCourt #MaritalRape

Rao: I was citing the Harsora judgment yesterday. It shows what a Court is to do when we are faced by a situation like this.
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Rao continues reading the Hiral P Harsora case.
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Rao: In Lachhman Dass v State of Punjab, Justice Subba Rao warned that overemphasis on the doctrine of classification or an anxious and and sustained attempt to discover some basis for classification may gradually and inevitably deprive Article 14 of its glorious content.

Rao: The Court said the statutes are mean to protect women from all forms of domestic violence but he Exception, perhaps does exactly that.
#DelhiHighCourt #MaritalRape

Rao now reads the Maneka Gandhi judgment.
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Rao: The SC has said that the Courts have to step up and grapple with the task.
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Rao: The law may be constitutional even if it relates to single individual and he may be treated as a class in itself.
#DelhiHighCourt #MaritalRape

Rao: While good faith and knowledge on part of legislature are to be presumed, if nothing is brought before the Court, presumption of constitutionality cannot be carried to the extent that there may be some undisclosed information with legislature.

Rao: In Maneka Gandhi, the Court had held that a statute which merely prescribes some kind of procedure for depriving a person of his life or personal liberty cannot ever meet the requirements of Article 21.
#DelhiHighCourt #MaritalRape

Rao now reads the judgment of Constitution Bench in Jagmohan Singh v State of UP.
#DelhiHighCourt #MaritalRape

Rao: The argument of misuse of law is also met in this judgment.
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He now takes the Court through Dilip Kumar Sharma v State of MP.
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Rao: Net net, may I conclude this chain of thought. We are fortunate to have a document which reminds us that our founders gave a document which places at its centre the individual and very life, liberty and dignity of an individual.

Rao now reads Article 13 of the Constitution of India.

Rao: It says the laws in derogation of fundamental rights and it says that law in force which were pre-independence that are in violation of the Constitutional be void. It further said that the state shall not make any law which violates or abridges the rights.

Rao: The question therefore is does the Exception abridges a married woman's rights?
#DelhiHighCourt #MaritalRape

Rao: The article said that any law made in violation shall be void. In fact, it will be still-born.
#DelhiHighCourt #MaritalRape

Rao: If all that the Court had done was to give way to the will of parliament, we would have been in a very different position.
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Rao now reads the Navjet Singh Jauhar judgment to highlight the Court's role if it finds something to be wrong.
#DelhiHighCourt #MaritalRape

Rao: The very existence of law on statute books is to spark outrage. Doesn't matter if it is used or misused.

Rao: The Court said that the arguments like carving out exception should be left to parliament cannot be accepted.

Rao now reads Justice Chandrachud's observations in Navtej Jauhar.
#DelhiHighCourt #MaritalRape

He now reads the opinion of Justice Indu Malhotra.
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Rao: I read the judgments only to tell your lordships to only apply the Constitution as has been applied by the Supreme court.
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Rao now takes the Court through Anuj Garg v Hotel Association to highlight power of judicial scrutiny.
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He now reads the State of Punjab v Khan Chand
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Rao: The court has said that it would be wrong to say that there is judicial arrogance in Courts striking down a provision. It is the duty assigned to them by the Constitution.
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Rao: This is the same caveat that Justice Subba Rao had pointed out in his judgment.
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Rao: Now coming back to Independent Thought. Your Lordships have been told that it is a judgment that is closest to the current issue and examines the same provision. There the whole section was challenged but later restricted to the issue of child.
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Rao now reads Justice Madan B Lokur's view in Independent Thought judgment.
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Rao: The SC has changed its view within a decade.
J Shakdher: Yes, this happened in the case of suicide as well. SC changed its views, that is one other example.
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Rao continues.
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Rao: The SC recognises the woman's right to say no. But by keeping this provision on the statute book, the effect is actually that she has no right to say no.
#DelhiHighCourt #MaritalRape

Rao: The Verma Commission had also said that a rapist remains a rapist.
#DelhiHighCourt #MaritalRape

Rao: You can keep prosecuting your husband for ten other things but not for the act of rape.
#DelhiHighCourt #MaritalRape

Rao: Your Lordships stepped in the case of 498A as well and issued guidelines.
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Rao: The Act, recognises only the consent of the woman. The statute is woman centric and look at the aspect of what woman wants or does not want.

Rao continues reading the Independent Thought judgment and SC's observations on the act of rape.
#DelhiHighCourt #MaritalRape

Rao: What complicates the issue and makes is more eggregious is that this is in context of a relatioship whose foundation is love. Please see that the people who are not in this relationship may do it once but in marital relationship can go on multiple times.

Rao: The law recognises repeated acts and has punishment for that but it is again deprived in case of husband.
#DelhiHighCourt #MaritalRape

Rao: The law says that if you do it then it is not rape but if you get someone else to do it you satisfy the definition of rape.
#DelhiHighCourt #MaritalRape

Rao: This starkly demonstrates the situation and arbitrariness is writ large on its face.
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Rao continues with Independent Though judgment.
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Rao: When your lordships say that what the statute does is not classify it rape is perhaps the problem.
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Rao: There is no sanctity in today's day and age for a husband to even think that the law allows him to get away with non-consensual sex.
#DelhiHighCourt #MaritalRape

Rao: The SC has also held that nothing can destroy the institution of marriage. A marriage is not institutional but personal.
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Rao: The SC concluded that they did not deal with the issue of marital rape in Independent Thought because the issue was never raised before them either by the petitioner or the intervenor.
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Rao now reads Justice Deepak Gupta's views in Independent Thought.
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Rao is now reading the SC's comments on when it can strike or read down a law made by the legislature.
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Rao: This is the only provision in the entire penal law that gives an exception or immunity to the husband.
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Rao: Is there any reason to classify between a victim who is below the age of 18 and a victim who is above 18. It is therefore discriminatory and violative of Article 14 of India.

Rao is now adressing the Court on the aspect of Court creating a new offence.
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Rao: Perhaps now it is time for your lordships to give the provision a burial it deserves. The Parliament had the opportunity and ability to do it post independence as well as after the reports of the law commission.
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Rao: Justice Gupta said in Independent Thought that it was not creating any new offence since the offence already existed in 375.
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Rao: Your Lordships have repeatedly faced situation when uncomfortable questions and more often than not the person who was tasked with that question abdicated their responsiblities and therefore the Constitution tasked the Courts to do it.

Rao: Your Lordships are only adjudicating on whether this provision violates the Constitution. I do not believe that it is possible for anyone to say that marriage is enough to prevent a woman from prosecuting her husband for rape.

Rao: It is not that tomorrow only because it is struck down there may be a floodgate of litigations... But even if that happens, is it enough to deny her right. The law says it may be thought of rape by the society but because the person is your husband, you cannot call it rape.

Rao now shares a Doordarshan ad where the tagline was Marzi hai aapki, aakhir sir hai aapka.
It should now be read as "Marzi hai aapki, akhir var hai aapka".
#DelhiHighCourt #MaritalRape

Rao: I acknowledge that my job was to assist the Court but my job is also to assist the Court as to what is right according to me.
#DelhiHighCourt #MaritalRape

J Sakhder: What about Section 376B and 198?
Rao: It would be incogruous as all would have to go. But if we were to go there we would also have to explore if husband is a relative. We will also have to look at the Evidences Act.
#DelhiHighCourt #MaritalRape

Bench: We will it continue it tomorrow.
J Shakdher: Rebecca, you can start tomorrow then.
#DelhiHighCourt #MaritalRape

J Shakdher: We would like you to concentrate on the act and the scheme of the act.
John: To my mind, even the historical reason why the section was brought in is important.
#DelhiHighCourt #MaritalRape

J Shankar: There was a proposition that Mr Rao made three time. I would like you think if that is correct. He said that the exception disables the wife from prosecuting her husband but for the exception.
#DelhiHighCourt #MaritalRape

J Shankar: This is how he understood the exception. Please consider if that is proper interpretation. We would like you to address the issue tomorrow.
#DelhiHighCourt #MaritalRape

J Shankar: If that was the case, it would be much easier for us to proceed. If that was the case, this case would be over in two days.
J Shakdher: I don't agree Hari.
J Shankar: I found that one journal said that not only would be disagree but it would be sent to third judge.

J Shakdher: Let me say it here, we would be meeting and discussing it further.
Bench: Okay, we will have it tomorrow.
ASG: Chetan Sharma reiterates that the informed consultative process has been fast-tracked and Centre will come with that before the Court.

Hearing ends.
#DelhiHighCourt #MaritalRape