| PYQ Relevance: Q). The soul of new law, Bhartiya Nyay Sanhita (BNS) is Justice, Equality and Impartiality based on Indian culture and ethos. Discuss this in the light of major shift from a doctrine of punishment to justice in the present judicial system. (UPSC CSE 2024) Q) Discuss the desirability of greater representation to women in the higher judiciary to ensure diversity, equity and inclusiveness. (UPSC CSE 2021) Q) Analyse the distinguishing features of the notion of Right to Equality in the Constitutions of the USA and India. (UPSC CSE 2021) |
Mentor’s Comment: There have been continuous debates around the Legislative vs. Judicial powers. The present case is also not different. The Supreme Court of India is currently reviewing the constitutionality of the Marital Rape Exception (MRE) under Section 63 of the Bharatiya Nyaya Sanhita, 2023, which states that sexual acts by a husband with his wife are not considered rape if the wife is over eighteen.
The Centre contends that defining criminal offenses is a legislative matter, although the Supreme Court can assess whether the MRE violates Fundamental Rights under the Indian Constitution. This case has sparked significant debate regarding women’s rights and bodily autonomy in India.
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Let’s learn!
Why in the News?
The Supreme Court of India is examining the constitutionality of Section 63, Marital Rape Exception (MRE) in the Bharatiya Nyaya Sanhita, 2023, which exempts husbands from rape charges involving their wives over eighteen.
- The Centre has filed an affidavit supporting this exception, addressing legal concerns related to Articles 14 and 21, highlighting the ongoing debate over women’s rights and bodily autonomy in India.
What are the challenges highlighted by the Central government?
1) The issue of ‘expectation’:
- The Centre argues that the Marital Rape Exception (MRE) does not violate Article 14 (right to equality) because married and unmarried women are not in the same position.
- It claims that marriage creates a “continuing expectation of reasonable sexual access,” which justifies distinguishing between non-consensual sex within and outside marriage.
- The concept of “reasonable sexual access” is criticized as vague, raising questions about who defines it and whether it is subjective or objective.
2) The issue over Marriage institutions and the misuse of law:
- The Centre argues that recognizing marital rape as a criminal offense could undermine the sanctity of marriage and lead to false allegations that are hard to disprove.
- The argument about the potential misuse of marital rape allegations is seen as a distraction, as any criminal offense can be misused, and trials are designed to determine the validity of claims.
- The Centre emphasizes that various laws like, Sections 354, 498A IPC, and the Protection of Women from Domestic Violence Act already provide remedies for violations of consent within marriage
3) The arguments on the Court’s jurisdiction:
- The Centre claims marital rape is a social issue, arguing it falls outside the Court’s jurisdiction, despite the law regulating many aspects of life.
- The Centre asserts that Court’s task is to determine if the Marital Rape Exception (MRE) violates Fundamental Rights, not to decide if marital rape should be criminalized.
- Many arguments in favor of MRE presented by the Centre are seen as lacking strong legal justification.
What role should Parliament play in addressing marital rape?
- Consultation with Stakeholders: Engaging in extensive consultations including women’s rights groups, legal experts, and social scientists will help.
- It needs to Promote awareness about consent and the implications of marital rape to shift societal attitudes and foster a culture that respects women’s rights within marriage.
- Balancing Rights and Social Norms: Weighing the need for women’s rights and bodily autonomy against traditional views of marriage as an inviolable institution, and ensure that any reforms need to respect both individual rights and societal values.
- Updating Legal Framework: Reforming existing laws to provide adequate protection for victims of marital abuse without undermining the institution of marriage, ensuring that legal remedies are effective and accessible.
- Parliament also needs to review current legal provisions to ensure they adequately address violations of consent within marriage.
Way Forward:
MRE, being a ‘law’, is subject to Part III of the Constitution of India. In other words, the Court may not be empowered to decide whether marital rape should be a criminal offense or not, but it is very much within the jurisdiction of the Court to determine whether MRE violates a fundamental right and to strike it down if it does.
