The mighty tussle

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The tussle between the legislature and the judiciary in India, has often seen the latter take on an activist role. What are the implications of this? Gajanan Khergamker explains with examples.

The legislature in India often finds itself in a Catch22 situation with having to contend with the judiciary’s interpretation of a situation. Like the union government’s concern for ‘drunken driving and road safety’ issues. A Supreme Court (SC) order swiftly struck down a union government ‘Model Policy’ created to put into place rules to assuage the central government’s concern for public health, while dodging clear of states’ excise earnings. The SC said, there is no Fundamental Right under Article 19(1)(g) to trade in liquor: Liquor has been regarded as res extra commercium as decided in several judgements that include State of Bihar v Nirmal Kumar Gupta (2013), and a series of others.

The controversial order
On 15 December 2016, the Supreme Court passed an order to remove liquor outlets from all highways – state and national – including those along stretches that fell within the limits of a municipal corporation, city, town or local authority, and expiry of all licenses by 31 March 2017, kicking up a storm across India. Union territories, like Daman, and states such as Telangana, Punjab, Haryana, Goa and Kerala went onto request the Ministry of Road Transport and Highways to denotify national highways within their borders to district roads, sending the central government’s lofty plans to build 41 km of national highways every day in 2016-17, for a toss.

“No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway” had ruled the SC.

The order came following a series of advisories issued by the union government to the state governments asking them to remove liquor shops situated along national highways. And, with the 31 March deadline approaching swiftly, the states were left in a tizzy.

The union government had formulated, for consideration and adoption by the states, a document titled ‘Model Policy/taxation/act/rules for alcoholic beverages and Alcohol,’ in which it had general provisions relating to liquor vends. Para 92(2) of the Model Policy inter alia provides as follows:
(2) No licence for sale of liquor shall be granted to a retail vend selected within a distance of 100 metres from any religious or educational institution or hospital or outside the inhabited site of village /town/city or any Office of the State/Central Government or Local Authorities or within a distance of 220 metres from the middle of the State/National Highways.

For the purpose of this rule:
(a) ‘National Highway’ or ‘State Highway’ shall not include such parts of the National Highway or State Highway as are situated within the limits of Municipal Corporation, City or Town Municipal Council or such other authority having a population of twenty thousand or more.”

The ‘exclusion’ was a convenient arrangement that worked for the union government and the state governments. That way, suggested prohibition would not affect liquor outlets and concurrent sale in roads and areas adjoining smaller towns and cities. However, the SC, and rightly so, decided the policy that excluded stretches of national highways and state highways that fall within the limits of a municipal or local authority from the ambit of the suggested prohibition, was arbitrary and violative of Article 14 guaranteeing equality before law.

The SC, bound by the Constitution of India and, particularly so, Article 14, has little option but to include all excluded sections much to the chagrin of the state governments. With the string of petitions before the judiciary based on the plethora of reports and studies squarely blaming drunken driving for road accidents, the legislative finds itself in a corner. By asking the judiciary to intervene and on issues that should be legislated instead, the legislative had placed the onus of interpretation on the Supreme Court; and now, finds itself struggling to digest the verdict.

The knotty issue of Prohibition
On the heels of Prohibition arrive issues that directly and adversely affect states. For one, they directly affect revenue earned through excise and tourism. And, there is the issue of shifting licenses from highways to residential zones which are highly resistant to the move. Why, Kerala moved three petitions on 2 February, to review the order but went on to withdraw them on the same day. It stated that it was facing difficulty in shifting outlets alongside highways to thickly populated residential areas, which would annoy the public and trigger local protests. Also, tourism, in the face of prohibitive laws and policies, would drastically be affected.

In supporting the Prohibition, the SC maintained that section 185 of the Motor Vehicles Act, 1988, which prevents drunk driving, is indicative of a Parliamentary intent to follow a zero-tolerance policy towards driving under the influence of alcohol. The SC took into reference a publication ‘Road Accidents in India – 2015’ brought out by the Transport Research Wing of the Ministry. The cover depicts in rather graphic terms vehicles involved in car crashes. There is a large group of persons assembled in the foreground, an ambulance bearing the ‘108’ logo, and a police car.

The issue here is one of development and an examination of what comprises it. Is development about the national and state highways, or is it about public health and road safety? The judiciary has passed an order based on the law, the legislature will move in accordance with the will of the people.

Now, consider this: A common civil code that puts all on par where civil rights are concerned is one thing, but marital rape is a tricky issue. Sex in a marriage and even with the consent of a female below the age of 18 amounts to rape.

With denotification of highways used as the only way out, India managed to keep its states happy. ‘Drunken driving’ will be put on the backburner, for now. The world’s largest democracy has found another way to have its cake and eat it too.

The common civil code
Now, consider this: A common civil code that puts all on par where civil rights are concerned is one thing, but marital rape is a tricky issue. Sex in a marriage and even with the consent of a female below the age of 18 amounts to rape. Now, to accommodate acts perpetrated by members of communities and groups wherein marriage was permitted as a Civil Act even when the female was below 18, the Rape Section provided a window. An exception clause to Section 375 of Indian Penal Code permitted sex by a man with his wife, not below 15.

However, over the years, in several cases, acts of sex with ‘minor’ females despite them being ‘lawfully wedded’ to the ‘culprits’ were questioned and categorised as acts of rape. But, the exception in law stuck on paper.

That is till 11 October 2017, when the SC struck down the exception clause to Section 375 as ‘unconstitutional’. And, it’s a beginning: A step that should have been taken by the legislature but one instead launched by a judiciary armed with a new-fangled activism. After the stinging insult following the legendary Shah Bano case, when the judiciary had to eat humble pie owing to legislative intervention, the SC recently bolstered courage to adjudicate upon the Shayara Bano case wherein it struck down ‘Instant Triple Talaq’ as being ‘unconstitutional’. The judgement was suggestive of the mood of the apex court.

And now, the SC has done it again. After months of campaigning, India’s SC has begun tackling the issue of marital rape, albeit, piecemeal. The SC struck down the exception clause to the rape provision in the Indian Penal Code as ‘unconstitutional’ and ruled sexual intercourse with a minor wife between 15 years and 18 years of age as ‘rape’.

Despite earlier maintaining it did not wish to get into the domain of marital rape, an issue that bordered on breaching personal rights and religious codes, the apex court now proclaimed the age of consent is 18 years for a woman. In reaching this conclusion, the Supreme Court relied on the Child Marriage Prohibition Act too.

It may be recalled that the Gujarat High Court had, in 2015 ruled that Prohibition of Child Marriage Act will apply to a Muslim person too while turning down the petition of a Yunush Shaikh, who had moved the High Court to quash an FIR registered against him. An FIR was registered against him for abduction and rape under the Indian Penal Code and Protection of Children from Sexual Offences Act, 2012. He had eloped and married a 16-year-old girl in his neighbourhood.

In this case, Justice Pardhiwala relied on an earlier case in which on a conflict between any special law with personal law, a learned single judge of the Karnataka High Court in the case of Seema Begaum vs. State of Karnataka had ruled:

“An operative Act is the expression of the will of sovereign legislature; it overrides the consistent provisions of the existing personal law. The personal law has to submit to the statute law. The personal law cannot be repugnant, contrarian or derogatory to the statute.

“Those who have not allowed to change the Muslim Personal Law have done a great disservice to the community…the members of the community have realised the evil consequences of getting a Muslim girl married at a tender age of 16 or 17 years,” had ruled Justice J.B.Pardiwala in the order passed then.

In the Sarla Mudgal v. Union of India case, the Supreme Court had held polygamy can be superseded by the state just as it can prohibit human sacrifice or the practice of Sati in the interest of public order. The personal law operates under the authority of the legislation and not under any religion and, therefore, personal law can always be superseded or supplemented by legislation.

This time around, the SC has expressly ruled that immunity cannot be granted to a husband having sexual intercourse with his wife in this age group. The apex court judgment is a huge step in the direction of criminalising marital rape, an issue that no political party wishes to address through legislature as it touches upon personal laws and risks hurting community sentiments by its far-reaching repercussions. In a stunning display of activism, the Supreme Court remains silent on the acts of marriage of minors under Personal Law, but criminalises sex! In the tussle between the legislature and judiciary, the latter often nudges its way to logical conclusions and derives solutions that are extra-legislative, yet within legal parameters.


Gajanan Khergamker

Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.

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