The first three words of the Constitution of India, We, the people
the vision of the society by the makers of the Constitution. The Constitution
gives the sense of entitlement to every individual. The Preamble of the
Constitution lays down social justice as its one of the most important features
as well as goals. The Fundamental Rights, enshrined in the Constitution provide
Right to Equality to every person within the territory of India. It acts as the
savior of human dignity.
Article 15 of the Constitution prohibits the state to discriminate against any
citizen on grounds only of religion, race, caste, sex, place of birth or any of
them. The legislature cannot override this principle while drafting laws. It
has, time to time, formulated many laws which have strengthened the pillars of
Article 15. Discrimination on the basis of gender, however, often finds a way,
to practically disrupt the intent of Article 15. The laws made by the Government
and the judgments by the Courts, sometimes, take us back to the ill-notions of
Patriarchy has been an ill part of our society from centuries. Unfortunately, it
is prevalent on precisely every aspect of our day to day life, whether it be our
personal or professional space. The notion of men more competent than women is
entrenched in the minds of people. It is, however, desired for the judiciary,
which is the custodian of our rights, including the right to equality, to
preserve the honor of women against the ill notion of patriarchy.
made by Justice Indu Malhotra, [the] times when wives were invisible to the law
and subordinate to their husbands had long passed
, opines the liberal view
that our courts have adopted while dealing with laws related to women. Not even
an aorta of doubt occurs in asserting that woman is not a chattel of man in this
modern society. The same principle was applied to strike down Section 497 of IPC
which criminalized adultery. Section 497 stated that it is punishable for a man
to have sexual intercourse with a married woman without the consent of her
husband. The terms without the consent of her husband infringed the
individuality and dignity of a woman and made her a chattel of her husband.
The Supreme Court, however, has even turned down this liberal approach while
dealing with certain cases. The recent remarks made by the Chief Justice of
India in Mohit Subhash Chavan v State of Maharashtra
, asking the accused whether
he will marry the girl he raped, reaffirms the wicked idea to settle a rape
charge by forcing the accused to marry the victim.
This statement carries with
itself an idea, that marriage gives husbands the right to have sexual
intercourse with their wives without consent. India is one of the 36 countries
which do not have a legal recourse for marital rape. An exception in Section 375
of Indian Penal Code, which criminalizes the offence of rape, states that sexual
intercourse by a man with his own wife, the wife not being under the age of
fifteen, is not rape.
This exception is makes marital rape perfectly immune from
the scrutiny of the criminal justice system. The idea of women, particularly
wife, being the property of husband is reinstated in this exception. Recently,
the CJI rhetorically asked in Vinay Pratap Singh v State of UP
sexual intercourse between husband and wife, however brutal, can be termed as
The usage of words however brutal
takes us back to the notion of wife
being the property and instrument of husband. An analysis of this worrisome
statement raises a question, does a husband have all the rights, however
against his wife?
The United Nations Committee on Elimination of
Discrimination Against Women (CEDAW) recommended the Government of India to
criminalize marital rape in 2013. The Justice JS Verma Committee, set up after
the Nirbhaya Case
in 2012, also recommended the same. On the other hand, the
arguments put forwarded by the Government in RIT Foundation v Union of India
makes it clear that criminalization of marital rape has a long way to go. The
Government argued that criminalizing marital rape would destabilize the
institution of marriage.
This argument apparently reveals the old concept of
marriage which the government of the day still believes in. The Government went
to the extent saying that the idea of marital rape cannot be suitably applied in
the Indian context.
- The larger question thus becomes, what is the Indian
- Does it mean that the husband is the ruler and his wife is his slave?
- Or does it apply to the sheer infringement of dignity of a woman, particularly,
The old notions of gender, applied by the state, are also reflected in the
status of LGBTQ gender in the country. The Supreme Court, in the celebrated
judgment of Navtej Singh Johar case, decriminalized sexual intercourse between
two individuals of same genders. But the Supreme Court was only faced with the
question of Section 377 of IPC.
The question of marriage was not dealt by the court. It is certainly out of the
ambit of the powers of the Judiciary to override the intention of the
legislature. The Legislature has time to time expressed its reservations against
same-sex marriage. The Government, recently, argued in the Delhi High Court that
there exists a legitimate state interest
in limiting the recognition of marriage to persons of opposite sex.
of the Government that recognizing same sex marriage is detrimental to the
of marriage is inherently flawed. Marriage is a personal business and
the state should have no authority to give unreasonable declarations with regard
to who is competent to marriage. The Government also argued the fundamental
right under Article 21 is subject to the procedure established by law and the
same cannot be expanded to�include the fundamental right for same sex marriage
to be recognized under the laws�which in fact mandate the contrary. The
Government then went on to say that the law permits only 'biological man' and 'biological woman' to marry.
The Government's stand snatches away the individual
dignity and privacy of LGBTQ people. The argument also runs against the Supreme
Court's judgment in Navtej Singh Johar, in which the Court said �Their [LGBTQ
people] rights are not so-called
but are real rights founded on sound
constitutional doctrine. They inhere in the right to life. They dwell in privacy
and dignity. They constitute the essence of liberty and freedom. Sexual
orientation is an essential component of identity. Equal protection demands
protection of the identity of every individual without discrimination.
Apex Court affirmed that there cannot be an exception based on gender
stereotypes in the application of Fundamental Rights. The Supreme Court in
various judgments, including the Hadiya
case, has said that right to marry a
person of one's choice is a fundamental right. The Government's argument,
therefore, runs contrary to the judgments of the Supreme Court. The Government's
arguments are based on Special Marriages Act 1954, which is silent on the
marriage of LGBTQ couples.
The act came into force in time when perhaps this
demand was not very prevalent. But, the time has come for the Government to
amend the Act and legalize same-sex marriages. Legalization of same-sex
marriages will come with various questions, for instance, the succession rights,
maintenance, etc. These questions should to be dealt by the Government keeping a
liberal approach. Same-sex marriage runs against the personal laws governing
The un-codified personal laws are immune from Fundamental Rights under
the Constitution, as said in the State of Bombay v Narasu Appa Mali. They do not
come under the definition of 'law' under Article 13. However, it can be argued
that same-sex marriage cannot be governed under the personal laws, as it is
arguably not 'personal' to any religion, and therefore, out of ambit of the
These two issues- Marital Rape and Same-Sex Marriage, highlight the need to make
our laws gender neutral in a correct sense. The Government and the Courts should
adopt a more liberal way, as they have undoubtedly done is many instances, in
these two issues too. It is the need of the hour, to strengthen the foundation
of our Constitution, which is based on human dignity of every individual.
- Jospeh Shrine v Union of India 2018 SCC OnLine SC 1676
- Navtej Singh Johar W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
- Shafin Jahan v Asokan K.M. (2018) SCC OnLine SC 343