Thread by @LawBeatInd

Delhi High Court to start hearing the case against marital rape exception in IPC.

Adv J Sai Deepak appears for one of the intervenors.

Bench: Mr. Deepak you'll have to wait please. I'll take 2 minutes.

@jsaideepak appears for @menwelfare.

Bench: Mr. Sai how long will you need? 10 minutes.

@jsaideepak: Will take 20, My Lords. As Justice Shankar had asked for some Parliamentary Committee reports to be placed on record.

@jsaideepak: I will keep it very, very crisp and won't be repeating myself. There are paragraphs I have highlighted, which I will address.

@jsaideepak: My Lords, before I begin, I need to clarify that some news portals have misreported what I've submitted, resulting in unnecessary emails to my clients.

DHC: We're not getting into that.
@jsaideepak: I understand but there is a life outside this Court -
@karunanundy: I've had rape threats, so let's not get into that.

@jsaideepak: I clarify at the outset that are not against the existence of a provision for sexual violence in a spousal relationship.

@jsaideepak: The position is there is a logic we disagree with, and it doesn't rise to the level of unconstitutionality.

@jsaideepak refers to the Domestic Violence Act, says "sexual abuse" is specifically present here. While it could be argued that this is vague, my submission is that it is all-encompassing.

@jsaideepak refers to S.19(2) says typically here complaints are registered under S. 498A or S. 376(b).

@jsaideepak: One submission was that there is no intelligible differentia and the second that how does marriage make a difference?

That is because marriage is the basis of the difference. It automatically answers the question of intelligible differentia and Art. 14.

DHC: If marriage is the basis of difference that is the end of the matter, no?

@jsaideepak: I will come to the threshold of Art. 14 for something to be declared unconstitutional.

@jsaideepak: I will refer to 3 judgments to be treated as central to answer this question.

@jsaideepak: How and when should the grave step of declaring a legislative act as unconstitutional be taken?

@jsaideepak argues for great judicial restraint in exercising the power to declare a stature or part of it unconstitutional, stating that it can be done only in "rare and exceptional" circumstances. He underscores this.

@jsaideepak while reading out parts of the judgment: "Much which will seem unconstitutional to one man, or body of men" - let's replace "body of men" with persons.

@jsaideepak continues to read out following parts of the cited judgment:

Says, "Doctrine of separation of powers is not to say ye aapka ilaka hai, ye mera ilaka hai."

@jsaideepak emphasizes the doctrine of separation of powers and says that the power of judicial review should not be exercised lightly to interfere in the democratic process of policy making.

There are disturbances, a voice says, "What's your name, I can't find you..."

Bench: What is this??

Bench: Deepak, please continue this will keep happening.

@jsaideepak points out that the judiciary is also duty bound to prefer holding the statute as constitutional rather than otherwise.

@jsaideepak highlights the following points, states they are critical to the argument at hand.

DHC: On the point of encroachment, who's wanting to encroach it?

@jsaideepak refers to some more parts of the judgment.

@jsaideepak: The Supreme Court has not just referred to this doctrine but also endorsed it.

I don't want to selectively quote.

@jsaideepak: The exercise of self restraint is different in matters of public policy and civil liberties.

@karunanundy: Exactly.

@jsaideepak: Ms. Nundy has aired her agreement with my view, I need to emphasize that this is infact a provision which protects the civil liberties of men guaranteed by the institution of marriage.

@karunanundy interjects: Can we come to para 5 of the judgement?

Bench: Ms. Nundy can we please have counsels not speaking over each other? Please let him finish.

@jsaideepak highlights some more portions.

@jsaideepak: What is the threshold when a statute has to be declared unconstitutional?

@jsaideepak states that mere arbitrariness is not sufficient to declare a statute unconstitutional, there has to be some constitutional infirmity.

@jsaideepak says on questions of constitutionality the Court must begin with the presumption of constitutionality and understand that the statute represents the will of the people (through mandate of legisature).

@jsaideepak refers to another judgment.

Referring to yet another judgment, @jsaideepak empasizes the "language of the SC" on separation of powers.

@jsaideepak cites a judgment says it is critical.

@jsaideepak: According to me if it is established that the difference is due to the institution of marriage, that is the end of it.

@jsaideepak cites: It must be presumed that the legislature knows the needs of its people.

@jsaideepak talks about the difference between will and consent cites 2 judgments.

Some more documents are cited by @jsaideepak, he says, the legislative difference is not arbitrary here.

@jsaideepak: There is ample show of legislative intent. It has been kept bailable because there is still some hope for reconciliation.

SG Tushar Mehta intervenes: My Lords will continue? It is 4.30 pm.

Bench: Every day we go beyond 4.30 pm. Mr. Deepak had said 20 minutes but he's making sense so we will hear him.. Deepak, please go on.

@jsaideepak: My Lords have been most indulgent.

@jsaideepak comes to UK law on the subject.

@jsaideepak

Earlier written submissions are spoken of - 47 pages long.

Bench: Deepak, we're not going to go through 47 pages which have not been gone through by a lawyer. You've pointed out highlighted portions of judgments, please submit those.

@jsaideepak agrees to do so.

@jsaideepak: All the international instances cited by Ms. John are moving towards gender neutrality and couched in gender neutral language.

@jsaideepak concludes by thanking all parties, including the petitioners, for "putting up with his submissions".

DHC asks Centre to reply as the matter is not going anywhere without their response.

Centre tells Delhi High Court on hearing in marital rape exception matter: There is no unseemly hurry in the matter.

DHC: Please do not say that we have given it judicial time.

Centre: We are not in a position to respond by Monday, as it is a consultative process.

DHC: Take a week but after having heard the matter for so long we can't just leave it hanging in the air. Let's not have a dialogue on this, but on more substantial things, which is the law.

DHC: We are very keen on hearing what Mr. Sharma and his team (for the Centre) have to say.

Reported by @shreyagarwal_12