Constitutional Law – The Law Blog

Analysing the Constitutionality of the Marital Rape Exception under IPC

Posted on 15 May 201915 May 2019 by The Law Blog

While Indian rape laws have been amended several times, most notably after the infamous Tukaram v. State of Maharashtra,[1] and more recently after the Delhi gang-rape in 2012, one particularly contemptible colonial vestige has managed to survive these amendments. This is Exception 2 to Section 375 of the Indian Penal Code, often referred to as the marital rape exception.

It is pertinent to bear in mind at the outset that, in the recent past, there has been a significant shift in the attitude of the Supreme Court towards criminal provisions of law based on Victorian-era morality. The reading down of Section 377 as unconstitutional,[2] entirely striking down Section 497[3] bear testament to the current attitude of the Supreme Court, which is at stark odds with that displayed in the notorious Suresh Kumar Koushal v. Naz Foundation[4] in 2013. Indeed these cases quite clearly indicate that the marital rape exception, which is undoubtedly premised on Victorian morality,[5] is living on borrowed time, until challenged.

Through this article, I seek to argue that the marital rape exception is unconstitutional, since there is a clear violation of Article 14.

The Exception Vis-A-Vis Article 14 of the Constitution

Exception 2 to Section 375 of the Indian Penal Code states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”[6] While non-consensual sexual intercourse by a man with a woman who is not his wife is rape, non-consensual sexual intercourse by a man with (a woman who is) his wife is not rape, due to the exception. Hence, the latter is not punishable under Section 375 of the Indian Penal Code. The exception thus creates a classification on the basis of marital status. Consequently, the exception must be tested on the touchstone on Article 14.

To pass the test of Article 14, the classification must be based on an intelligible differentia and must bear a rational nexus to a legitimate State objective. However, the exception fails all the requirements.

The basis of the classification, as mentioned earlier, is marital status. Thus, the question that needs to be answered is if marital status constitutes intelligible differentia, and bears a rational nexus to the objective of the Act, in the present context.

The law on this is clear: the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others.[7] Here, the married women form one group and the unmarried women form another. As noted earlier, the protection of Section 375 is not extended to the group of married women. The question to be answered now is whether the differentia of marital status is valid to deprive the protection of Section 375 to a class of women?

The offence of rape, under Section 375, belongs to Chapter XVI: Of Offences Affecting the Human Body. For any offence under this Chapter, marital status is not recognised as valid intelligible differentia. Section 304B,[8] which also belongs to the class of offences affecting the human body, explicitly rejects marital status as an intelligible differentia, and to the contrary, creates a presumption against the husband, subject to the fulfilment of certain criteria.

Similarly, there are no exceptions to Sections 354(A) to 354(D),[9] in favour of the husband. Section 377[10] also does not create an exception in favour of the husband. While it might be argued that Section 304(B) (and the related Section 498A) was introduced for a specific purpose, that is, to deter dowry deaths, and are hence outliers, no such claim can be raised in the context of the other sections of the Chapter.

Thus, the structure of the IPC does not permit marital status to be the basis of classification for any offence affecting human body, and the emergent norm is clear that whenever the question of the human body, the consideration of marital status is not relevant to deny the protection of criminal law to a class of persons. However, exception 2 to Section 375 is in contravention to this, inasmuch as it creates a classification based on marital status and accordingly, deprives the protection of law to a group of women, based on such classification. Thus, the classification is not based on valid intelligible differentia.

Further, even if the previous argument were not to find favour with one, it can be argued that objective sought to be achieved is illogical and thus, not a legitimate purpose. Under the current position of law, the objective invoked by the State shouldn’t be illogical, unfair and unjust.[11] In simpler terms, it should be a legitimate purpose. When in Independent Thought v. Union of India,[12] the exception was read down to exclude married women between the ages of 15 and 18 from its ambit, the State, though in vain, invoked the objective of “preservation of the institution of marriage,” to be the legitimate purpose behind the exception. The Court, in that instance, very explicitly rejected the avowed objective to be legitimate purpose, stating that “marriage is not institutional but personal in nature.” The Court then went to the extent of stating that “nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable”. The Court differed in its approach to the very characterisation of the nature of marriage. The Court, in contradistinction to the State’s characterisation of marriage, held that the nature of marriage is personal, thus precluding the state from ever successfully invoking the objective. Therefore, the argument that the exception is justified in its existence to preserve the institution of marriage falls flat in the preliminary stage itself, since the very premise of the avowed objective – that marriage is institutional in nature – has been rejected. Thus, the objective sought to be achieved is not a legitimate purpose.

Even if one were to assume otherwise and deem ‘preservation of the institution of marriage’ to be a logical and legitimate purpose, it still has to be proven that there exists a rational nexus between the classification and the objective. The law is clear that the classification must rest on a difference which bears a fair and just relation to the object sought to be achieved by the classification.[13] The final argument rests on the point that there exists no rational nexus to the objective. The state’s argument can be summarised thus: the criminalisation of non-consensual sexual intercourse would lead to the destruction of the institution of marriage. It is to be noted that the operative and the underlying logic of this argument is that the institution of marriage will be destroyed if a significant part, content, constituent, or purpose of the marriage is criminalised. In this particular instance, that significant part is sexual relations within a marriage, which, if criminalised would destroy the institution of marriage. Thus, in simpler terms, this argument holds that if sexual relations – albeit non-consensual – within a marriage– are criminalised, the institution of marriage will be destroyed since sexual relations are a significant part of the marriage. However, the more forceful argument is that the State’s argument is specious since the link drawn by the state’s argument between criminalisation and destruction of institution of marriage is untenable. The Supreme Court, in the case of Saroj Rani v. Sudarshan Kumar,[14] has rejected the premise of the previous argument – that sexual intercourse forms the summum bonum of marriage. The Court by holding that sexual relations between a husband and his wife do not constitute the whole content of a marriage, and that remaining aspects of matrimonial consortium can’t be said to be wholly unsubstantial or of trivial character puts to rest the state’s argument in this case. Further, it can also be argued that there is no fair and just relation in this case, since the exception clearly does not take into the account physical and emotional trauma caused to the wife due to the commission of rape, possibly even repeatedly. And thus, there exists no rational nexus to the objective sought to be achieved.

In light of the aforementioned, it is clear that the exception in question fails the reasonable classification test, and thus, is violative of Article 14 of the Constitution and unconstitutional.

[1] (1979) 2 SCC 143, <https://indiankanoon.org/doc/1092711/>

[2] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 <https://indiankanoon.org/doc/168671544/>

[3] Joseph Shine v. Union of India, (2019) 3 SCC 39, <https://indiankanoon.org/doc/42184625/>

[4] (2014) 1 SCC 1, < https://indiankanoon.org/doc/58730926/>

[5] Lelenya Weintraub Siegel, The Marital Rape Exemption: Evolution to Extinction, 43 CLEV ST. L. REV. 351 (1995) < https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1610&context=clevstlrev>; see also Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape Exemption, 20 LAW & SOCIAL INQUIRY No. 4 941, 948-954 (1995) < https://www.cambridge.org/core/journals/law-and-social-inquiry/article/sex-right-a-legal-history-of-the-marital-rape-exemption/15B4BC0F145FC41B6E53C25C69701FAE>

[6] §375, Indian Penal Code, No. 55, Indian Legislative Council, 1860, < https://indiankanoon.org/doc/623254/>

[7] Special Courts Bill, 1978, In Re, AIR 1979 SC 478, < https://indiankanoon.org/doc/1306191/>

[8] §304B, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://indiankanoon.org/doc/653797/>

[9] §§354A-354D, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://www.kaanoon.com/indian-law/ipc-354a/>

[10] §377, Indian Penal Code, No. 55, Indian Legislative Council, 1860, <https://indiankanoon.org/doc/1836974/>

[11] Deepak Sibal v. Punjab University, (1989) 2 SCC 145, <https://indiankanoon.org/doc/1461661/>

[12] (2017) 10 SCC 800, < https://indiankanoon.org/doc/87705010/>

[13] Special Courts Bill, 1978, In Re, AIR 1979 SC 478, < https://indiankanoon.org/doc/1306191/>

[14] (1984) 4 SCC 90, < https://indiankanoon.org/doc/1382895/>

ABOUT THE AUTHOR

Maladi Pranay

Maladi Pranay is a 2nd year law student, pursuing BA LLB (Hons.) at NALSAR University of Law, Hyderabad. He enjoys reading, and watching and playing cricket in his free time.

What will prevail: The Fundamental Right to choose a Life Partner or Honour Killing?

Posted on 20 Apr 201820 Apr 2018 by The Law Blog

The recent judgement by the Supreme Court in the case of Shakti Vahini vs Union of India comes with an air of finality on the proposition which has lingered over for long. The NGO had approached the court to seek remedy in cases of honour killings wherein the three-judge bench emphatically stated that the fundamental right to life and personal liberty includes right to choose a life partner and any attempts to scamper the marriage between two consenting adults is illegal. However, it is not the first time that the SC has upheld this perspective and therefore, the longevity of this judgement’s impact is an extremely grave concern.

It was in the case of Ravi Kumar vs State and ANR that the Delhi high court held the right of a person to choose his/her partner for the very first time. The next year, Lata Singh vs State of UP became a landmark decision by the Supreme Court. The court heavily berated the Khap panchayats for their brutal atrocities on couples marrying outside the caste or religion on their volition and categorically stated that right to life includes right to live without threats to life and right to personal liberty includes right to choose one’s partner. However, the decision did not prove very effective in curbing honour killings. Following the Lata Singh judgement was the 2012 verdict of Manoj Babli Honour Killing wherein, to create a deterrent effect, the accused were given death penalty (later commuted to life imprisonment). However, this “strict punishment” could still not create the desired deterrence. Following this, in 2014, the Delhi HC bench comprising of justices Gita Mittal and JR Midha deciding the Nitish Katara Honour killing case restated the fundamental right to choose a life partner. Later in 2017, Kerala High Court stated that “a major girl may opt for a criminal, convict, a person of different religion/caste to marry, court or anyone else can’t resist her choice”. But clearly, all these decisions by various courts could not eradicate the menace, the cases of honour killing have never ceased to come up regardless of all the judicial decrees. From the most contentious Nitish Katara murder case of 2002 that perfectly presented the deeply rooted false sense of pride irrespective of class to the Deepti Chikkara murder of 2012 or the most recent Athira murder case, just four days prior to the present verdict wherein the father stabbed his daughter after assuring police that he consented for the wedding to a lower caste man.

Belonging to a certain section of society is not an issue, the problem is restrictive and orthodox indoctrination of certain patriarchal principles that run throughout the nation.

It can be thereby gathered that judicial precedents alone cannot help resolve the crisis. The strong need for a legislation to curb honour killings has always been felt, however, the attempts at legislation seemed to lose track midway. The Law Commission in its 242nd report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” had proposed the draft bills: The Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011 and The Endangerment Of Life And Liberty( Protection, Prosecution And Other Measures) Act, 2011 that mainly aimed to curb the brutality by the Khap panchayats. It set a threshold on the number of people who would gather to deliberate on the couple’s fate and ruled that any threat to the couple’s life by any means would be punishable with three to five years of imprisonment and a fine of rupees 30,000. This proposed legislation could not be formulated and implemented ever and the cases of honour killings continued to soar. In the present case, the central government submitted before the court that it has been engaging state and union territories to consider an amendment to IPC or to create the separate legislation recommended by the Law Commission.

Though this claim by the government seems promising, the extreme delay in considering the recommendations show how the government has paid no heed to this issue and trivialised it. the legislative vacuum in this issue has always cast a blow to judicial activism: for judgements alone cannot alter the mental block prevalent in a large section of society. It is high time to realise that the intended deterrent effect shall remain incomplete without a legislative backing.

Another facet of this entire issue is that enforcing judicial decrees and certain legislations, if they are implemented at all, is a typical Top-Down approach. Though having a solution in itself is a boon, attempts at curbing this menace through Bottom-Up approach might lead to better results. It is a well-known fact that the issue is the mental block among those set of people who have always regarded themselves above law and those who will definitely not be discouraged by a fine or punishment. For them, they are upholding their principles which, according to them, is no wrong. Therefore, sensitising these people about how a marriage outside the demarcations is not a sin that would morally corrupt the clan can be a good way to deal with this quandary. People should be given educative sessions at lower levels, the orthodox haute monde can be dealt with media campaigns working in reversing the indoctrinated superiority. Such initiatives, though difficult to implement, when coupled with a strict legislation would solve the problem at the grassroots level. By this judgement, the SC has done the maximum it could possibly do. after providing the directives to the government, all that is to be done is to formally make the law without much brainstorming. Still, the question that persists is and how long will the government actually take to formulate a solid law to protect couples from the wrath of honour killings? how much and how long will this judgement have an effect on the country or will this decision also will be forgotten for good?

ABOUT THE AUTHOR

Archita Prawasi

Archita Prawasi is a first-year student pursuing B.A.LLB (Hons) from NALSAR University of Law, Hyderabad. She has a profound interest in reading up judicial developments, laws, articles. She likes reading critiques of judgements, government policies and analysing them through different perspectives. Her other interests include dancing, listening to music, Facebooking and procrastinating.

Constitutional Law

Co-operative Federalism: An Indian Perspective

Posted on 16 Jan 201816 Jan 2018 by The Law Blog

What is Co-operative federalism?

Co-operative federalism, in general terms, is a concept wherein the federal government, state government, and local government interact co-operatively and share their responsibilities in the governance. Corwin defines co-operative federalism thus: “The States and National Governments are regarded as mutually complementary parts of a single governmental mechanism all the whose powers are intended to realise the current purposes of government according to their applicability to the problems in hand.”[1]

This concept of federalism has helped in the promotion of federal system, with its divided jurisdiction, to act in unison. This concept puts in a view that the national government and the state governments are partners in their governance. It is also considered as a new form of federalism. This new concept is influenced by the factors which are given as follows:

The emergence of the concept of welfare state, which is strongly based on the public opinion, has made the local units more dependent on the national governments for adequate resources.
National decisions take precedence over the points of Centre-State division of powers when a war is urgently necessary for national survival.

It is necessary for the governments in a federation to coordinate among themselves with cooperation to promote the public welfare, which is the motto of majority governments nowadays. Capital resources are largely deposited with the Centre, and being in coordination with the Centre is the only way of achieving the motto, thus bringing the two levels of governments closer. Furthermore, it is for that reason in the U.S.A., the essence of the intergovernmental cooperation is mainly seen in the conditional grants, which were sent from the Centre to the State for centrally sponsored schemes[2].

Australia has also developed the concept of cooperative federalism by establishing the Commonwealth Grants Commission and the Australian Loan Council, 1927 to help the various governments in borrowing. Canada has also developed some techniques of this concept by granting funds from the Centre to the provinces and by delegating the power by the Centre and the Province to some subordinates agencies created by the governments. The concept of cooperative federalism has provided the necessary flexibility and resiliency to an otherwise rigid constitutional framework so as to enable it to cope with the newly emerging demands and challenges.[3]

Do we practise Co-operative Federalism?

It is a fact that we practise and promote the concept of cooperative federalism. The framers of our Constitution took a good note of the growing trend of cooperative federalism and understood that there cannot be a line of command drawn from the Centre to the State, and the policies can be promoted not by dictation but by a process of discussion. When we look at our Constitution, several provisions and features have been deliberately designed to promote the concept of Centre-State cooperation.

Article 252(1) provides for delegation of powers by two or more states to Parliament so as to enable it to legislate with respect to a matter in the State List in relation to such states. It simply means that if it appears to two or more states that any matter in the State List should be regulated by the Parliament then those states can request the Parliament, and the Parliament can legislate with respect to the matter in the State List concerning that states.
The Indian Constitution[4] provides for a scheme of tax sharing between the Centre and the State. This means that the Centre should share some taxes collected with the States. The taxes which are collected by the States are used by them but the taxes levied by the Centre cannot be exclusively used by it. It should share some of the taxes.
Apart from the scheme of tax sharing, there is another way of transfer of revenue from the Centre to the State and that is the system of grants-in-aid[5]. Article 282 provides for the making any grants by the Union for any public purpose.
To reduce the rigidity, which may arise from the Centre-State division of administrative power, the Indian Constitution makes provisions for the intergovernmental delegation of administrative power.[6]
Article 312 introduces an important feature to the Indian Constitution, which provides that besides having separate services for the Centre and State, the Centre can create certain services common to both the Centre and State.[7] If the Rajya Sabha declares, by resolution supported by not less than two-thirds of the members present, and it is necessary or expedient in the national interest so to do, Parliament may be by law provide for the creation of one or more All India Services (including an All-India Judicial Service and regulate recruitment and conditions of service of it.[8]
Article 261(1) lays down that full faith and credit should be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. This is to give them a nation-wide application.
Article 263 provides that the President may be by order appoint an Inter-State Council if it appears to him that the public interests would be served by the establishment of a Council.[9] The president may define the organisation, procedure and duties of the Council. The main idea behind this is to create intergovernmental consultation machinery so that the coordination is maintained.
Zonal Council have been introduced in India by the State Re-organisation Act, 1956. These Zonal Councils were created to promote the mechanism of intergovernmental consultation and coordination in socio-economic fields.

The best example of Centre-state co-operation is the case of Jaora Sugar Mills v Madhya Pradesh[10]. In this case, the Madhya Pradesh Government enacted the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958 which made a sugarcane cess payable as prescribed under the Act. This Act was later on found to be invalid since the legislative competence for the same rests with the Centre under the Union list. And so it was struck down. But the Parliament realized that this Act along with several other state Acts suffered from the same Constitutional inconsistency and infirmity. In order to meet this situation Parliament passed the Sugarcane Cess (Validation) Act 1961. The appellants were asked to pay cess for two years. As the High Court dismissed the petition the appellants challenged the constitutional validity of such an Act arguing that it was a piece of ‘colourable legislation’. The Supreme Court held that the Act was constitutionally valid though the intention behind it can be questioned.

A reference can be made to a recent plan NITI Aayog which was set up mainly to promote the co-operative federalism and giving the State more freedom to design the developmental plans. The Governing Council’s maiden meeting which was conducted in the first week of February 2015 demanded greater freedom for the States to frame their developmental plans.[11] This means that our country focuses much on the promotion on the concept of co-operative federalism and they consider it as form federalism.

Conclusion

It is an undisputed fact that the concept of federalism is not static but dynamic. It has to undergo several processes of evolutionary tests and adjustments from time to time to make it fit for meeting the modern day challenges and demands. It is understood that constant discussions and negotiations between the Centre and the State are necessary in order to remove the frictions and the problems of the intergovernmental cooperation. Our aim should be to sort out these differences and make the Indian Federalism a reliable and an operational system so that India may successfully meet the upcoming challenges on socio-economic development, internal and external security, defence etc.

[1] THE CONSTITUTION OF THE USA., SENATE DOC., 14 (1953)

[2] See People of the State of New York v O’Neill, 359 US 1 (1959)- judicial support to the development of cooperative federalism in the U.S.A.

[3] Sawyer, Modern Federalism, 70-8, 92, 100, 152 (1969)

[4] In 2003 Article 268A was introduced which provides that taxes on services shall be charged by the Union of India and shall be appropriated between the Union and States. The new Article 270 provides that the net proceeds of all taxes and duties referred to in the Union List levied and collected by the Centre shall be distributed between the Centre and States

[5] Article 270 make provision for the ‘fiscal’ need grants

[6] Article 258(1)- Notwithstanding anything in this Constitution, the President may, with the consent of the Governor of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.

[7] Article 312(1)- Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all India services (including an all India judicial service) common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service

[8] See D.S. Garewal v. State of Punjab AIR 1959 SC 512

[9] Generally it may be charged with the duty of

(a) Inquiring into and advising upon disputes which may have arisen between States;

(b) Investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or

(c) making recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject, it shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure.

[10] 1966 AIR 416, 1966 SCR (1) 573

[11] See http://www.thehindu.com/opinion/editorial/for-cooperative-federalism/article6883340.ece

last seen 1.11.2015

ABOUT THE AUTHOR

Aravind Prasanna

Aravind Prasanna is a fourth-year year Law student pursuing B.A. LL.B (Hons.) at VIT School of Law, Chennai. He is an avid mooter and more, a good researcher. He possesses wide interests in keeping track of the emerging trends in law.

Constitution of India, Constitutional Law, Indian Law

Article 35A of the Indian Constitution – A critical overview

Posted on 23 Oct 2017 by The Law Blog

Debate on article 35A started again when during his visit to Kashmir, the Union Home Minister Rajnath Singh said that the BJP-led government at Centre will not go against the wishes of the people of Jammu and Kashmir on the constitutional provision that guarantees special privileges to the natives. Article 35A of the Indian Constitution provides a special prerogative to the Jammu and Kashmir Legislature to define “permanent” residents of the state and give them certain privileges and rights in the public sector jobs, acquisition of property in the state, scholarships, and other public welfare services.

The Delhi Agreement of 1952 between the then Prime Minister of Kashmir Sheikh Abdullah and Pandit Jawaharlal Nehru granted “Indian citizenship” to the state subjects of Jammu and Kashmir. This was followed by the incorporation of article 35A in 1954 by an order of Dr Rajendra Prasad on the advice of Prime Minister Nehru. Certain provisions in the interest of the “state subjects” of Jammu and Kashmir are allowed under Article 370(1)(d). Article 35A implies that Government of India has given a special status to the “permanent residents” of Jammu and Kashmir.

So, now the conflict is whether the President is empowered to incorporate an article into the Constitution. The article wasn’t put up in the parliament for discussion and was implemented. This again creates a dilemma on the constitutionality and validity of the article. According to article 368(I) of the constitution Parliament solely has the authority and power to amend the Constitution. This would land the article in the labyrinth of its validity. In 1961 the Supreme Court analysed the ambit of Presidential powers and concluded that the President could amend an existing article. But the court was silent on whether or not the President could add an entirely new article to the Constitution.

The NGO ‘We The Citizens’ had challenged the constitutionality of Article 35A and Article 370. It posits that the representatives from Jammu and Kashmir were involved in the framing of the Constitution. Article 370 was just a “temporary addition” in the interest of people from Jammu and Kashmir. Permanent amendments like Article 35A were not the intentions of the constitution-makers. The NGO petition claimed that the Article goes against the “spirit of oneness” creating a hierarchy of classes. It also restricts people from other states from getting employment and buying property within the vicinity of Jammu and Kashmir. This provision infringes rights guaranteed by the Constitution under article 14, 19 and 21.

Charu Wali Khanna had challenged Article 35A on the pretext that it infringes a woman the basic right to marry a man of her choice by not giving her children the right of holding any property if the woman marries someone without a Permanent Resident Certificate. Even if the women a permanent resident of Jammu and Kashmir the children have been debarred from her property. Also, the plea said that the children were not given a Permanent Resident certificate, thus considering them illegitimate.

A three-judge constitutional bench has been set up to hear the pleas challenging the article after Diwali.

ABOUT THE AUTHOR

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach. He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full-fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

Constitution of India, Constitutional Law

Right to Privacy – An analysis of the recent developments

Posted on 13 Sep 201713 Sep 2017 by The Law Blog

The Aadhaar scheme by the Union Government has been the point of friction for quite a few days. It had been under the lens of allegations like breaching individual’s privacy as it involved the collection of biometric data. With the 12-digit Aadhaar becoming the basis of obtaining the benefits of Government programmes, subsidies, tax administration, and online financial transactions, right to privacy comes under threat.

Privacy has been defined as “a state in which one is not observed or disturbed by other people” or “the state of being free from public attention” by the Oxford dictionary. Privacy can also be defined in the realms of body and mind. The three aspects of privacy include bodily integrity, dissemination of personal information, and right to make own choices.

The debate over privacy has come to light after two cases: the first being the Satish Chandra versus M.P. Sharma case whose documents were searched and seized when a First Information Report was lodged against him, and the second being Kharak Singh versus the State of Uttar Pradesh in which the petitioner was subjected to constant surveillance by police authorities which led to infringement of his constitutionally guaranteed rights.

The Government had reverberatingly stated that “privacy” was never a fundamental right. The government said that “privacy is an elitist concept” and has no benefit for the common masses. It also asserted that privacy is not explicitly mentioned as a right in the Indian Constitution. The increasing number of petitions coerced the Supreme Court to decide on this highly contested issue. Hence a separate nine-judge constitutional bench was formed. This constitutional bench on 24^th August overturned the previous decisions of the 1950s and 1960s which held that “Right to Privacy” is not a fundamental right.

Although it was clear that “Right to Privacy” was not absolute in all aspects, the court needs to establish a balance between the rights of the state and citizens on one side and rights of citizens and non-state actors on other.

Four states, West Bengal, Karnataka, Punjab, Himachal Pradesh, and one Union Territory, Puducherry, have argued in the SC that they support a constitutional right to privacy.

The apex court said that although Right to privacy is not mentioned anywhere in the Constitution but can be easily interpreted if we look through Article 21 and thus forms an integral part of this fundamental right. Privacy forms the heart and soul of Constitution as it embedded in both dignity and liberty which is Article 21. It was a historical unanimous decision though there were six judgements given.

There were 5 different judgements of 5 judges while a common judgement of four judges, including Chief Justice J S Khehar. The common verdict in the words of the court is “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

“Right to Privacy” is not absolute in the sense that it has to withstand the threshold of restrictions imposed on other fundamental rights. These aberrations must be a fair, just, and reasonable in the context of Article 21.

The ambit and the contentious areas of the right to privacy will soon be defined with the course of time. Other highly disputed areas include the various social networking sites and applications like the Facebook, WhatsApp, and other messaging services which breach Privacy by selling personal information to private companies.

The bench concluded that “Privacy” is the core of human dignity. This judgment has also wobbled the fate of Section 377 of the Indian Penal Code and the recent beef ban by the Maharashtra Government. Privacy also covers the aspect of personal intimacies, sexual orientation, marriage and food.

This mammoth decision has a galore of impacts and consequences. Now, Aadhaar enrollment would be voluntary and not mandatory, thus not depriving anyone of the welfare benefits if one opts not to enrol. The government is entrusted to advertise that Aadhaar is a voluntary scheme.

This verdict will have an impact on the collection of data by the government and even private companies. This could also lead to the formulation of a legal framework to safeguard individual data as well.

ABOUT THE AUTHOR

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach. He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full- fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

Constitution of India, Constitutional Law

Indian Constitution and its Contractual nature

Posted on 14 Aug 201714 Aug 2017 by The Law Blog

The Indian preamble, an ideal manifestation of the objective sought to be imbibed in the Indian culture, not only in theory but in practice as well; starts with this magnanimous terminology of ‘We the people of India’; therefore, bestowing the ultimate power to the Indian citizens; so it is the Indian citizens, who under the umbrella of ‘Collective force’ have bestowed the Indian Constitution[1] with the power and not the Indian Constitution who has bestowed the power on the Citizens of India.[2]And all the powers of the Constitution, and that of the Constituent Assembly is been derived from the people of the India.[3]It is this declaration which makes preamble a sublime one as compared to others, it is draft not forced upon the unwilling hands of the bearer, in fact, it has been given to themselves by the people of the country through their ‘Constituent Assembly.’[4] Further, it was observed in the case of Union of India v. Madangopal[5]–

“Our Constitution as appears from the Preamble, derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution.”

Additionally, it establishes a contractual nature of the Indian Constitution; which is a result of the consent of the Indian Citizens underlying it.[6] The very concept that Indian Constitution is a Contract, needs much convincing to be believed in. The Idea of the contractual nature of the Constitution was first given by Lysander Spooner; who quotes

“The Constitution has no inherent authority or obligation at all, unless as a contract between man and man.”[7]

On this principle he works out a contour, where he concocts that if a Constitution is a contract, similarly it shall be applicable to the persons who were present then when the contract was being made e.g., when the American Constitution was being framed in the 1776, this contract shall be applicable only to the citizens of America present at that time. Similarly, the Indian constitution which was drafted in 1950 is applicable to the citizens living at that time.

But the point of difference between a Contract and a Constitution comes in due to the compulsory nature of the latter as compared to the voluntary nature of the former. This is what John Locke called it as tacit consent to the citizenship.[8]As it is a pre-requisite for the formation of the Contract, that both the parties must have given their voluntary consent to the agreement; the same is not case with the Indian Constitution, as explained by John Locke in his “two treatise of Civil Government.”

Tacit Consent to the Contract

The very idea behind the concept of tacit consent to the Constitution was first evolved by John Locke, where he has styled that by taking birth in a particular country and by using its amenities we are impliedly agreeing to its suzerainty. The traces of which can be found in section 8 of the Indian Contract Act 1872; which specifically provides that a contract can be entered either by performing the condition or by receiving the consideration, therefore, our taking birth on the Indian soil and using its amenities has qualified us to be a party to this Contract we call Constitution.

The trespasser Obligation

Another theory which compels us to the obligatory nature of the Constitution is the concept of Trespasser obligation, under which the person trespassing the land of the owner is liable to follow his orders or else he shall be liable for trespassing, similarly by taking birth on the land of India, we are somewhere trespassing on the land of Indian Government, therefore are suzerainty is subject to Indian Sovereignty.

[1] Sauvik. Chakraverti, The Essentials Frederic Bastiat, Liberty Institute, 2007, Bastiat was a great supporter of human liberty and was of the view that it was the collective force of the human society which gives the Law its force.

[2] Keshavanada Bharti v. State of Kerala (1973) 4 SCC 225, see also Behram Khurshid v. The State of Bombay AIR 1955 SC 123

[3] Constituent Assembly Debates, Vol. 1, 13^th Dec. 1946, The resolution moved by Jawahar Lal Nehru on the the aims and object of the Indian Constitution.

[4] A.K Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88 per MAHAJAN, J.

[5] Union of India v. Madan Gopal, (1954) SCR 541 (655).

[6] Lysander Spooner, No Treason: The Constitution of no authority, Free Patriot press, U.S.A, 1867, the philosopher put forward the idea; that the constitution is only enforceable on the people who were living at the time when (Spooner, 1867)the constitution was made; he was an absolute believer on the contractual nature of the contract

[7] Id. Pg 3

[8] John Locke, Two treatise of the Civil Government, ed. Thomas Hollis (London: A. Millar et al., 1764). John Locke said by living under the suzerainty of a particular nation, we have given them our tacit consent to be their citizenship. See also Thomas Hobbes’ ‘Social Contract’ 1651, where he regarded as a single contract whih led to the offspring of state and devolution of the power by the people in the Levithian ruler whereas, John Locke in his Social Contract of 1689 was of the view that there were two contract, first by which the people organized themselves and by the second contract they surrendered their right to the sovereign King.

ABOUT THE AUTHOR

ASHIT KUMAR SRIVASTAVA

Ashit Kumar Srivastava (AKS) is currently working as an Assistant Professor at Amity University, Lucknow. His main area of interest is Constitution and Jurisprudence. However, he mostly inter-relates various socio-legal topics together.