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Split Verdict On Marital Rape: Answer To This Burning Question Still Not In Sight

  • The Delhi HC has delivered a split judgement regarding the criminalisation of marital rape. Justice Rajiv Shakdher ruled in favour of striking down Exception 2 to Section 376 IPC whereas Justice Hari Shankar observed that the striking down of the same would create a new offence.
  • In RIT Foundation vs Union of India and other connected matters, emphasising the institution of marriage, Justice Shankar observed that it is plain and clear that the primary distinction that distinguishes the relationship of wife and husband from all other relationships of women and men is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex. The sexual aspect is but one of the many facets of the relationship between a husband and wife, on which the bedrock of their marriage rests.
  • He further observed that any legislation that seeks to keep out, from the parameters of such a relationship, any allegation of rape, was in his view, completely immune to interference.
  • Justice Shankar further went on to say that any assumption that a wife, who is forced to have sex with her husband on a particular occassion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, is not only unjustified, but is completely unrealistic. Nor can the impact on the wife, in such a situation be equated with the impact of a woman who is raped by a stranger. The spouses, bu marriage, have a right to legitimate expectation of sex.
  • Justice Shakdher, on the other hand, held that sexual assault by a husband upon his wife which falls within the fold of section 375 IPC should be termed as rape. He observed that certain sexual offences need to be called out for what they are, oddly enough, society appears to stigmatise the victim rather than the rapist.
  • He also observed that when the State exempts criminal acts such as forced sex within the marriage, it unwittingly engages in unequal disbursement of rights conferred by the Constitution. Consequently, the husband does not suffer the rigours of the law, and the wife gets no protection from the law.
  • Observing that the same is in violation of Article 21 of the Constitution, Justice Shakdher observed that the fact that the rapist is also the husband does not make the act of sexual asault any less injurious or dehumanising, irrespective of who the perpetrator is, forced sex mars the woman physically, psychologically and emotionally. Rape deserves societal disapprobation in the strongest terms, and it does not matter whether the rapist is the woman’s husband.
  • It was also observed that the exception is also violative of Article 19(1)(a) of the Constitution as it violates the guarantee given by the Constitution concerning the freedom of expression to a married woman as a citizen of the Country. This freedom of expression includes a woman’s right to assert her sexual agency and autonomy.
  • Justice Shakdher gave five reasons as to why striking down the exception would not create an offence:
  1. The offence is already defined in the substantive part of section 375 IPC, and if the exception is excised, all that would happen is that it would extend the ambit of section 375 to include offending husbands.
  2. A new offence would perhaps be created if the ingredients of the offence had changed, however this is not the case.
  3. Reading down, filling gaps or excising parts of an offending provision is a legitimate judicial tool which has been employed by the Courts for severing what is unconstitutional and retaining what is lawful.
  4. The exception seeks to ring fence the offender based on his marital relationship with the accused, whereas the main provision is neutral to the relationship between the accused and the victim.
  5. Penal law is act or omission centric and is neutral to who the perpetrator of the crime is. The fact that in certain cases relationships enter the fray does not dilute the fundamental premise on which penal laws are pivoted, which is that it punishes the act irrespective of the offender.

SC Has Urged The Central and State Governments To Refrain From Using Sedition Laws Until Reviewed

  • In the recent order, the Hon’ble Supreme Court has ordered to keep all pending trials, appeals, and proceedings framed under sedition law on hold. It is expected from the State and Central governments to restrain from registering any FIR, continuing any investigation, or taking any coercive measures by invoking provision under section 124A, IPC while it is under review process.
  • It was strongly averred that if any fresh case is registered u/s 124A, IPC, the affected party would be at liberty to approach the concerned Courts for appropriate relief, and the same shall be provided taking account of the order passed by the Apex Court as well as the clear stand that would be taken by Union of India.
  • The present case, S.G. Vombatkere v Union of India was filed challenging the constitutionality of Sedition 124A of the Indian Penal Code, 1860.
  • In the counter-affidavit filed by UOI, it was stated that the country requires statutory provision to deal with serious offenses which might threaten the sovereignty and integrity or destabilize the government established by law. The main concern raised by the Solicitor General was about the application and abuse of the provision given u/s 124A.
  • It was argued before the Court that various laws dating back to colonial times and pre-dating the constitution which caused mindless hindrance to people have been decriminalized. The Government of India has diligently worked to shed the colonial baggage by scrapping over 1500 outdated laws and has cognizance of the view expressed on the subject of sedition.
  • SG expressed views considering the concern for civil liberty and human rights while committed to maintaining and protecting the sovereignty that laws relating to sedition should be re-examined and re-consider before a competent forum.
  • The Union of India acknowledged with the prima facie perspective expressed by the Court that the rigors of Section 124A of IPC is not in tune with the current social milieu and was intended for a time when this country was under the colonial regime. The Court expressed the need to balance between securing the interests and integrity of the state on one hand and the civil liberties of the citizen on the other.
  • The Attorney General, in early hearings, had given instances of glaring misuse of this provision of law.
  • The Bench comprising V Ramana, CJ, Surya Kant, and Hima Kohli, JJ affirmed the discontinuation of the provision of sedition till the re-examination by the Government of India. All the pending trials, appeals, and proceedings in respect of law be kept in abeyance. The Court held that directions shall continue till further orders were passed.

Pointing Out Environmental and Ecological Effects, SC Cancelled The Doubling Of The Railway Line From Castlerock (Karnataka) to Kulem (Goa)

  • In the recent judgment, the Hon’ble Supreme Court set aside the proposed wildlife clearance for doubling the existing railway line from Castlerock (Karnataka) to Kulem (Goa) recommended by the Standing Committee of NBWL.
  • The Ministry of Railways (RVNL), in T.N. Godavarman Thirumulpad v Union of India, had failed to provide any substantial basis for the requirement of doubling the railway line by addressing the impact on the habitat and damage caused to the environment.
  • The present appeal was filed by Central Empowered Committee as they were not satisfied with the decision of the Standing Committee of NBWL.
  • In its 56th meeting, the Standing Committee of NBWL recommended the proposal for wildlife clearance for the doubling of an existing railway line from Castlerock (Karnataka) to Kule (Goa) which involved certain areas of protected and non-protected forest reserved area of Bhagwan Mahavir Wildlife Sanctuary.
  • The Goa Foundation filed an application before the CEC and stated that the Standing Committee of NBWL’s recommendation violated the order passed by the Supreme Court.
  • RVNL stated before the CEC that the contentions raised by Goa Foundation were without merit. According to RVNL, the doubling of the railway line would be a gamechanger in the economic development of the southwestern part of India.
  • The CEC averred that the track-doubling was unnecessary since both Goa and Karnataka have a good road network. The CEC upheld that the existing Konkan Railway line gives excellent connectivity between the northern and southern parts of India. The proposed doubling of the railway line between Karnataka and Goa would not have any positive impact on the gradient and it will continue to operate at the same ‘inefficient level’.
  • The CEC also mentioned difficult terrain having sharp curves and gradients that the construction would bring about and invite a great disaster to the sensitive areas of Western Ghats.
  • The bench comprising Justices L Nageswara Rao, B R Gavai, and Aniruddha Bose emphasized on sustainable development means development that meets the needs of the present generation without compromising the ability of the future generations to meet their own needs.
  • Hence, a balance should be made between the two, and one should not hamper the other. In Vellore Citizens’ Welfare Forum v Union Of India, the Hon’ble Supreme Court held the ‘Precautionary Principle’ is an essential feature of the principle of sustainable development and elaborated the meaning of the precautionary principle in great detail.
  • The Court upheld the recommendation made by CEC and stated that the landscape through which the railway line was proposed to pass was an important tiger corridor, connecting Goa, Karnataka, and Maharashtra. The court took into consideration the actual loss of wildlife habitat by the construction activity for doubling the railway line for which heavy machines and crusher units would be established for dumping construction material.
  • The SC set aside the recommendation of RVNL to double the railway line and cancel the construction.
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