Thread by @lawbarandbench

#DelhiHighCourt will continue hearing arguments in a batch of petitions demanding criminalisation of #MaritalRape

In the last hearing, advocate Raj Kapoor, appearing for one of the intervenors had said that a wife cannot compel Parliament to prescribe a particular punishment for her husband.
Read Tuesday's development here:
barandbench.com/news/litigatio…

Justices Rajiv Shakdher and C Hari Shankar will hear the arguments at 3pm.
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Hearing starts.
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Advocate J Said Deepak begins his submissions for Men Welfare Trust.
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Deepak: I will finish the legal aspect first and then come to social aspect.
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Deepak: My first argument in on the issue of jurisdiction and then I will elaborate on whether the provision is illegal on the anvil of Article 14 and 21.
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Deepak: The first argument is that this is not a situation where your interventions are being sought in absence of law. Unlike the Vishaka case there is no legal vacuum.
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Deepak: In Vishaka Court, powers of Supreme Court were used which are not available to your lordships.
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Deepak: 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 if there is unconstitutionality.
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Deepak: A challenge to a legislation cannot be mounted on two ground. One that it is inadequate in view of the petitioner. Second, if there are two views possible in respect of a situation, it does not rise to the level of unconstitutionality.
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Deepak: Therefore their primary grouse is Consent has been treated differently in a marriage and therefore this alone should render the legislation unconstitutional. And the existing remedies are insufficient therefore there is a gap which needs to be filled in.

Deepak: To crudely summarise it, an appellate court can typically interfere when there is a gross wrong. Similarly a Constitutional Court can get into Constitutionality if there is a manifest or glaring arbitrariness.
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Deepak: There needs to be an understanding of big picture. The IPC specifically chooses to carve out a chapter to deal with offences in the confines of marriage.

Deepak: Even in 376B the word rape is not used. It speaks of intercourse without consent.

Deepak: The first point I am trying to make is Vishaka, 377 or Naz Foundation judgment were different. What is being sought here is very very different.
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Court addressing the issue of people filing Interventions and sending documents through mails.
"You can't just bombard us with mails. The minimum courtesy you can show to us is that ask for our leave to file these documents," J Shakdher.
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Deepak continues.
He cites a judgment of Anuja Kapoor v Union of India by Delhi HC.

Deepak now cites SC judgment of Saregama India Ltd v Next Radio Ltd and Ors
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Deepak now refers to Madras Bar Association v UOI judgment.
Deepak: The Independent Though judgment was where an obvious lacunae was being removed. It was not creating a new offence either. There was a lacunae that was being filled.
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J Shakdher: Am I to understand that if there is something we can do anything but if there is nothing we can't to anything.
Deepak: In this case, if E 2 were to be struck down, it creates and enlarges the existing offence.
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Deepak continues reading the Madras Bar Association judgment.
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Deepak: My clients certainly are not against recognising spousal sexual violence. In fact, they clearly have said they are not against recognition. They are saying this is a special treatment accorded in other jurisdictions as well.

Deepak: The idea is to try and protect the institution of marriage so that there are not any deleterious or psychological impact on the use of word rape.
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J Shakdher: How many years has this provision been on statute? If no one moves then where to people go?
Deepak: This is the central question that if the legislature moves at snail's pace and what is the judiciary expected to do?
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Deepak: I am sure that all of us are operating in the four corners of constitutionality.
J Shakdher: If you argument is to be accepted then it would like saying we cannot do anything.
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Deepak: Your lordships can certainly issue advisory as to what the Court things... I choose to differ with my lords that it is a social issue. Every law is a social policy.

Deepak: Social aspects will have to be considered.
J Shakdher: 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 somethign we can look at. For us we are only testing...

... it before Constitution. If the legislature in 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.

J Shakdher: But it is there we have to test it on ARticle 14 and 21.

Deepak: While the analysis may be legal, the trigger is social.
J Shakdher; There is a petitioner before us who actually things she was abused. Forget the PILs, she says I am not able to proceed further because of E 375. Are we to tell her we will not examine it?

Shakdher: Observations made in Court during a hearing has a context.
Deepak: I am not of the view that it is an academic issue. It is burning.
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Deepak: I am on the question of forum and whether that forum is able to take into account all the aspects.

J Shakdher: We would like you to address us on Article 14 and 21.
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Deepak: Please walk with me on IPC and Evidence Act.

Deepak: The point that I wish to make is that there are three gradation of sexual offences. First is by a rank stranger and 375 is the provision in relation to that. Second is a person who enjoys a relation of authority and that is under 376C.

Deepak: Third is 376B where a former husband commits an offence. And then there is 498A where the offence is by acts committed by husband while being a husband.
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Deepak: These are the four distinct situation. Therefore there is an intelligible differentia in the manner in which these offences are treated.

Deepak: We are looking at a basket of options. The adequacy and inadequacy is a different aspect.

Deepka now takes the Court through Section 375, 376B, 376C and 498A.
J Shankar: I have said it earlier also, we have not been shown the multiple deliberations of legislature on this issue. We want to know why has it been retained.

J Shankar: We would like a copy of those.
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Deepak continues.
Deepak: I completely agree with Ms John that 375 a to d covers the physical aspect whereas the circumstances are covered under Firstly to Seventhly.

Deepak: Act plus environment or context is rape. Therefore consent and context cannot be separated. It is central to the questions. It is the issue at the heart of this debate.

Deepak: Whether consent five minutes before or after the marriage what does it matter, a lot of things come into picture. Marriage has changed everything.
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Deepak: The petitioners' submission is fundamentally flawed from statutory perpective and social perspective.

Deepak: Against her will is first and secondly is without her consent. The legislature has made a difference between will and consent. Compare it with 376B. It speaks of without her consent. The point is even when husband is reduced to stranger, the legislature is...

... reluctant to use the word consent.
J Shakdher: Just to digress, intercourse and sexual act against own wife is use. Why is the word own there? This business of willing and consent, is it in the English statute?

Deepak: There is a distinction in dictionary which the courts have relied to rule upon this.

Deepak: Will is the superset which is mental state and consent is the verbal. In certain instances even if there is no will, consent manifests as the consequence of relationship. LIke 376C is the situation where will is absent but consent is present.

Deepak: In fact, judgments say while they may overlap, they are not the same.

Deepak: In 376B, the word is 'without her consent'. If at all, they (petitioners) wanted to challenge, they should have challenged 376B.
Karuna Nundy: That has been challenged.

Deepak: Legislature has taken a concious decision to limit the sentence to two to seven years. So the husband here has become non-husband but is still not being treated at par with a stranger.
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Deepak: This is a fantastic situation where a former husband is better of than husband if the Exception is removed and 376B remains.

Deepak: If E 2 is done away with, what is the point of fourthly. So the removal will have effect on 375 and 376B.
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Deepak: Section 375 is itself is an indicator of relationship between consent and marriage.
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Deepak: Intimacy in marital relationship can take a lot of forms. Going by what they have said, what will happen if couple are in unorthodox ways of sex... In the confines of marriage, I am not sure if this is going to mean that we are going to start a formal discussion...

... before acts of intimacy. Are we going to have a third party here.
J Shakdher: These acts, this not only happens in India. Since you come from that part of the Country, I understand that the gods have taken the form of woman, copulated, incests... Where are we...

Deepak: That's the point. In other jurisdiction, they have treated spousal violence as separate species.
J Shakdher: What is happening is no one is listening. Perhaps, it is time that someone listed and made that right move.

J Shakdher: What happened after Nirbhaya? In 30 days they were able to bring in a slew of suggestions. 376B came in 2013. The problem is here, the ball is in the Court's court. It happened with 377 and it is happening now.

J Shakdher: MWT should start that campaign.
Deepak: MWT were the first to move in that direction apart from asking for gender neutral. When we asked for gender neutral laws, the courts said this the domain of legislature.

J Shakdher: Our job is to decide. This is not our approach that we are carrying or direct the legislature to do anything.

Deepak: The question is that there is a live issue and legislature has not acted. But if that becomes a reason for judiciary to cross a line then it becomes a very dangerous precedent. It will have a very difficult trickle down effect.

Deepak: If the red line is that the government is answerable and status reports are to be presented before this court, I have no issues. Serious checks and balances are to be created. The existing law has been misused so much.

Deepak: Please consider if today we say this warrants an intervention of the Court, what stops other course from doing the same on other issues.
J Shakdher: Ours is not the only court that is making observations on this. There is a detailed judgment of Guj HC.

J Shakdher: 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 does it pass the test of Article 14 and 16.

Deepak: This is a criminal issue involving constitutionality therefore it cannot be treated as an issue where the court is to look for a remedy.
@jsaideepak

Deepak now takes the Court through Section 114 of Evidence act and 198A of CrPC.
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@jsaideepak

Deepak: I believe that there is an irrebuttable presumption here. This presumption is not in case of a marriage. Even this presumption is brought about, the legislature is concious of not extending it even to 376B.
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@jsaideepak

Deepak: Rape between two rank strangers and institution of marriage cannot be the same. That is the intelligible differentia. Someone can say I disagree with it but that does not amount to unconstitutionality.
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@jsaideepak

Deepak: Please look at 198B CrPC. It was inserted along with 376B because a pre-cognizance trial is warranted for offences under 376B.
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@jsaideepak

Deepak now reads S 376B.
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@jsaideepak

Deepak: Context defines consent and vice-versa. These are the kind safeguards even in the context of 376B. Proving once more that intelligible differential runs through the entire penal code.
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@jsaideepak

Deepak: For someone to say that independent of relationship, consent is consent is one of point of view. The other point of view is that this institution has been there fore millenia.

Deepak: I am not saying that the institution is to be protection for one person or his dignity. The best possible argument is remedy is insufficient. The article 14 argument does not hold water in the facts of this case.
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@jsaideepak

Deepak now refers to 376B of IPC.
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@jsaideepak

Deepak: If the legislature has assumed that the position of husband is position of authority then there would be no need for 376B. The purpose of intent behind E 2 and 376B is to treat a marital relationship differently.
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@jsaideepak

Deepak: You may believe the individual is the sole of existence. You can't come to court and convince it to take one point of view. You cannot say it is the only direction in which it can move.
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@jsaideepak

Deepak: The prayer itself is unconstitutional. It is unmaintainable.
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@jsaideepak

Deepak: All the legislations cited come with safeguards. These jurisdictions have also moved towards gender-neutrality.
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@jsaideepak

Deepak: International instruments also speak of gender neutrality. We recognise there are more genders. Rape is not related to one particular gender.
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@jsaideepak

Deepak: The judiciary cannot arrive at end-point for the legislature.
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@jsaideepak

Deepak: On the issue of parliamentary debates aspect, I will come tomorrow.
J Shakdher: Extract it and give it to us.
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@jsaideepak

J Shakdher: Keep your written submissions crisp.
Bench: Who else is there? Is Mr Gonsalves there? Okay, we will convene tomorrow.
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@jsaideepak

Bench asks Colin Gonsalves to be ready tomorrow with his submissions.
Hearing to resume tomorrow at 3pm.
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