Decriminalization
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This article is written by Namrata Kandankovi from Symbiosis Law School, Pune.

 

There may be times when we are powerless to prevent injustice, but there never must be a time where we fail to protest

-Elie Weasel

Abstract

The following article drags the attention of the readers towards the aspect of personal laws by explaining what personal laws are all about, how they evolved over time, their current status, recent judgments which brought various amendments to them and also discusses certain other personal laws which tend to be discriminative in nature and have become obsolete in the current times. It also analyses the pros and cons of decriminalising and criminalizing of personal laws, further it gives an outlook of what future action can be taken regarding certain laws and lastly includes a discussion concerning the implementation of Uniform Civil Code in India.

Introduction: What are Personal Laws?

Throwing light on the aspect of personal laws, it can be stated that personal laws are a legal system whereby a possibility is created for the application of different laws to people who differ in terms of religious and ethical identity from one another. Personal laws under the Indian context can be termed as the ones which are made applicable to a specific class or group of people and such a classification is made on the basis of faith, religion and culture. Taking into consideration the Indian scenario, it can further be stated, that the population is divided in terms of culture and faith and every individual in India tends to follow his or her own faith or belief[1]. Hence, there arises a need to decide on these beliefs by a set of laws which govern them. It should also be noted that personal laws in India have been brought into effect keeping in mind the numerous customs followed by people belonging to a different religion.

Evolution of Personal Laws in India- The present-day Indian society comprises of three prominent cultural systems, which are- Hindu, Muslim and Christians. Speaking of the personal laws of Hindus and Muslims, it can be assured that they derive their power and cause from their ancient religious scripts[2]. These religious scripts include under their ambit various aspects governing both public and private lives of an individual, but when it comes to enforcement of these rights with regard to law, the area of law dealing with them is restricted to Marriage, Guardianship, Inheritance, Succession, adoption etc.

Decriminalization of certain acts in the wake of recent judgments

Placing prominence on the recent judgments delivered by the Indian courts, it can be indicated that the year 2018 and 2019 have been the years of delivery of landmark judgments by courts with respect to personal laws. Ranging from Triple Talak to decriminalising of Adultery, the courts have dealt with various aspects related to personal laws which concern the general public at large in India. Some of such significant judgments given out by the courts have been discussed in the following segment of the paper[3].

Decriminalising Homosexuality

What was Section 377 all about?

It is important to note that Section 377 was brought into enforcement by the British during their colonial reign in India. The law was functional for a period which stretched for 157 long years. When it came to punishment for the commission of wrong under Section 377, the offences were classified under the domain of “Unnatural Offences”. The punishment for such acts varied from imprisonment ranging from 10 years or up to life imprisonment and fine. Section 377 of IPC stated that “whoever indulges in any kind of carnal intercourse, be it with a man, woman or an animal, which goes against the order of nature, will be held liable for a criminal offence under Section 377”. 

Scraping of Section 377 of Indian Penal Code which criminalized homosexuality

In the ruling of the renowned judgment of Navtej Singh Johar v. Union of India[4] the Apex Court of India decriminalized homosexuality by scrapping down Section 377 of Indian Penal Code, which criminalized homosexuality. The outline of the Judgment of the case has been discussed under; where some of the significant aspects related to Section 377 were highlighted by the apex court of India:

  • The human rights and the fundamental rights granted in India will be in the same lines to each and every individual, be it any citizen of India or any member of the LGBTQ community. All of them would enjoy the same rights and any discrimination with reference to these rights would not be appreciated [5].
  • Section 377 of IPC was termed as a law, which was moreover used as a medium to abuse the members of the LGBTQ community and as a result, the people belonging to LGBTQ community were discriminated against from the rest and hence, the said law was required to be quashed.
  • Further, it should also be noted that the court, however, lay down that when it comes to any kind of intercourse with animals, any person indulging in such an activity, be it any kind of sexual activity, such a person would be held liable for a criminal offence.
  • The bench further held that, when it comes to upholding the dignity and personal rights of an individual, it is always of paramount importance for the court to step in and ensure a safe and secure environment for all the citizens of India.
  • The law which was defined under Section 377 was considered to be absurd and arbitrary with the changing norms of the society and hence, there was a growing need to strike down the Section and terminate its operation [6].
  • Lastly, the bench also made a reference to the importance of personal laws in India and stated that sexual orientation is something that is solely a biological phenomenon and any discrimination made on such an aspect would entertain criminal action against the wrongdoer.

Section 377: A half won battle?

With the outcome of the landmark judgment on scrapping of Section 377, Indian sub-continent saw much fervour amongst its citizens as it was no longer an offence for the members of the LGBTQ community to involve in a sexual activity which was based on their individual sexual orientation. But, at the same time, there arises a grave need to also look at the flip side of it in order to address the matters which concern the current scenario.

It is imperative and rather astonishing to know that it is the married women in India who are found invoking and making use of Section 377 of the Indian Penal Code on a larger scale when compared to people of any other community. Whenever a woman files a case under Section 498A of the Indian Penal Code, Section 377 is also invoked in such a suit. This majorly happens because there exists a lacuna in the law whereby the punishment under section 498A of IPC is very meager and it is barely known to make any kind of difference and hence, the women in order to elevate the atrocious nature of the crime committed against them, invoke Section 377 which helps the women to highlight the “unnatural” abuse inflicted upon them by their husbands, be it husband forcing a wife to perform oral sex on him or anything in similar lines to it[7]. Hence, in order to resolve this matter, there was a need to provide a proper definition for the term “unnatural offences’ ‘ to make it clear as to what all aspects are included under its realm.  Therefore, it can be said that scraping down Section 377 would prove to be a blow on such women who were actually making use of it in order to overcome the cruelty committed against them by their husbands.

Decriminalising Adultery

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Law relating to Adultery in India

Section 497 of the Indian Penal Code defined Adultery and commission of Adultery was categorized as a criminal offence. The enactment of the Adultery law dates back to the colonial era. Adultery was considered to be an extramarital affair, which led to the breach of the sacred institution of marriage, and along with this, adultery was considered to be a wrong committed against the moral, ethical and religious grounds[8]. The prime motto behind the existence and operation of the law of adultery was to secure and protect the sacred institution of marriage. The punishment for the commission of Adultery was regarded only to the man who indulged in it and there was no onus put on the woman.

Was the law of Adultery gender neutral?

Looking at the above-stated law, it can easily be concluded that there exist numerous loopholes in it as it holds only a man liable for his actions and not the woman, the second important aspect is the concept of consent whereby, consent of the wife is not given any importance and the wife is merely regarded as the property of her husband[9]. Hence, there was a grave need to bring an amendment in this law. It was a 41-year-old resident of Kerala who filed a PIL by invoking Article 32 of the Indian Constitution. The main object of the PIL was challenging the very existence and also the accord of punishment under Indian Penal Code Section 497. While delivering the judgment, the then Chief Justice of India Deepak Misra held that “husband cannot be considered to be the ‘master of his wife’ and in addition to this there is also a need to treat women on a par with men”[10].

Decriminalising Adultery:  A celebrated judgment?

Further, Justice Chandrachud also stated that “the law of adultery offers an inferior status to women and the law is rather anti-women which lead to an establishment of a society where women are deprived of their sexual autonomy and the law was also seen to be gender stereotypical”. This analysis also raises major concerns- whether the state has a right to intervene in the personal matters of an individual and if the law of Adultery promotes the same, how far would it be justified in doing so.

Lastly, an important aspect to be borne in mind is that the Apex court of India while delivering the verdict regarding the law of adultery, not only decriminalized the law but at the same time held Adultery would continue to remain a valid ground for divorce. Hence, it can be quantified that the ruling of the Supreme Court comes as an advantage to the society at large, as it decriminalized the law which was archaic and stereotypic and further by continuing to make it a valid ground for divorce it gave absolute rights to the parties to marriage to bring an end to the same if the sanctity of marriage was violated by one of the partners.

Sabarimala Issue

Inception of the Sabarimala Issue

Sabarimala is known to be one of the holiest temple shrines in India. Located atop the mountain ranges of Western Ghats, the temple receives an annual footfall of 40 to 50 million devotees. The ancient temple dedicated to Lord Ayyappa is open to people of all caste and creed except for women between the ages of 10 to 50 years. The deity in Sabarimala is regarded to be a “Naistika Bramhachari” which means a celibate for eternity. Considering this aspect, the temple board dispensed a notification calling on the ban for entry of women aged 10 to 50 years.

In the ancient days, it was the priests who wielded the power of deciding the entry of people in the temple shrine, but with the passage of time, the High Court of Kerala in 1991 imposed a ban on entry of women aged 10 to 50 years from entering the temple[11].

Unfolding of events after the imposition of ban by Kerala High Court

Following the verdict of the Kerala High Court, there were numerous objections raised by people of different walks of life: A group of lawyers objected to the decision by stating that it goes against the principle of right to equality and questions an individual’s right to worship. Again in 2016, an association led by prominent lawyers of India raised questions on the ruling of the Kerala High Court. It was finally in 2018 when a five-judge bench was constituted in order to determine the case regarding women’s entry into the holy shrine of Sabarimala[12].

The five-judge bench in its judgment regarding Sabarimala lifted the ban on the entry of women into the temple and ruled that every individual should be given the right to entry to the temple and right to worship. Justice Indu Malhotra ruled against the entry of women in the shrine, being the only one to have a dissenting opinion.

Turn of events following the ruling of Supreme Court

With the verdict of Sabarimala being rolled out by the Supreme Court, the country witnessed a number of protests and objections to the entry of women into the shrine. There were numerous instances of the locals stopping women from entering the shrine and there saw an uproar and disruption in the smooth functioning of the temple worships. The Kerala government witnessing such events understood there was an immediate need to take steps to bring the situation under control. Therefore, the government brought the attention of the court to the happenings in the state and there was a review petition filed by the royal family of Pandalam against the ruling of Supreme Court. Following this, the apex court stated that the case will be reviewed by a larger bench of 7 judges [13].

From the above discussion, it can be stated that- When issues like that of Sabarimala surface, it provides an outstanding prospect for the courts in India to regulate and re-consider the ancient customs in India. In addition to this, the courts also need to draw a parallel between the right to worship of devotees and the rules laid down by the Constitution of India in terms of right to equality and freedom of expression [14]. After making a keen observation in the issue of Sabarimala, it can be concluded that the courts in India are required to work out a method to deal with such issues and make sure that it doesn’t lead to violent clashes amongst various groups of people. This issue stood as an exceptional example of clash between personal laws and Fundamental Rights enshrined by the Indian Constitution.

Personal laws which await changes

Up until now, the paper dealt with various personal laws which were given a judicial pronouncement by the courts in India in order to resolve all that was going wrong with their existence. But at the same time, it should also be noted that there are a number of personal laws which await changes. The following section of the paper will bring to light such matters and the give out speculations on the future course of action for such existing personal laws.

Marital Rape in India

Marital Rape: A far-fetched reality in India?

Firstly, in order to understand the crux of the issue, it is important to note that, Section 375 of the Indian Penal Code states- any kind of sexual assault on a women, which does not involve consent will be considered to be a criminal offence and would attract punishment which could range from imprisonment for a period of 7 years to imprisonment for life.

Nevertheless, it would be quite astonishing to note that exception 2 of Section 375 omits non-consensual sexual intercourse between a husband and wife if the wife is above fifteen years of age. The existing law in India keeps the idea of marriage on an upper pedestal and favors it over the consent of a woman. While comparing this to other countries of the world, it can be stated that most of the countries in the world have made marital rape a criminal offence. India, on the other hand, remains to be one of the 34 countries which are yet to criminalize marital rape [15].

Criminalizing Marital Rape: A distant dream for India?

There have been a plethora of petitions lying in various courts of India regarding the exception clause laid down under Section 375 which legalizes marital rape. One of the main aspects which seem troublesome in the establishment of marital rape is the concept of “reasonableness” under the criminal law. The concept of reasonableness doesn’t have a fair play when it comes to marital rape, because in a patriarchal society like India, it is presumed that marriage gives constant consent to a man over his wife’s body, in additional it is usually presumed that a “reasonable act” or “reasonableness” is something that a man would always comply with.

Criminalising marital rape: Need of the hour?

Another significant aspect which serves as an obstruction for decriminalising of marital rape is the notion that women would use the law of marital rape as an instrument to harass their husbands. Here, it should be noted that there have been various women-centric laws enforced in India, which have been able to punish men for the wrongs committed by them and if there evolve cases of women making false use of the law of marital rape, it would actually become difficult for the husband to obtain a bail and he will additionally be required to pay damages to the wife. But, a significant characteristic to be considered is that a survey which was taken out by the International Centre and Research for Women showed that at least 20% of men had forced themselves on their wives at least once during their marriage, and further, it also revealed that 5.6% were categorized to be the ones subjected to physical abuse and were forced to have sex with their husbands when they clearly didn’t want to indulge in any sexual activity [16]. Such facts and figures raise prominent questions as to the safety and security of women and the same needs to be addressed and the problem should be brought to an end. Hence, it can be concluded that criminalizing marital rape is indeed the need of hour [17].

Child Marriage

The forgotten child brides of India

Put in simple terms, child marriage can be defined as an informal or formal union or marriage which an individual is obligated into before attaining the appropriate legal age for marriage. Taking a look back, it can be stated that child marriage in India existed from the time of Delhi Sultanate, where the general perception behind such an act was to safeguard the girls from the social evils like that of rape and abduction. But, with the passage of time, though India became free from foreign rulers, the nation couldn’t be free from the evil of child marriage and continues to be very much prevalent even till date in India.

Child Marriage takes place on a larger scale in developing countries when compared to developed countries. According to a survey conducted by UNICEF, about 4 out of 10 girls are married off before they attain 18 and the statistics of South Asia suggested 3 out of 7 girls are married off before attaining 18 years of age. One of the most alarming facts amongst all this is that India is known to have the highest number of child brides than any other countries in the world, with almost 15 million of them. Followed by India, Bangladesh ranks second with about 4.5 million child brides and further Nigeria and Brazil follow which have about 3 million child brides [18].

Untoward Consequences of Child Marriage

Whenever girls are married off at an early age, they are forced to drop out of school, deprived of their basic education and are transferred to their husband’s place as a kind of their husband’s property. Followed by this, young girls are put on a high risk of pregnancy, even when they are physically and psychologically immature to handle such circumstances. According to the survey conducted by the World Health Organisation, premature pregnancy was one of the prime causes for death among young girls in India. Hence, it can be stated that, by getting young girls married before they attain the right age, the girls have been robbed of their very basic rights to learn, grow and have a childhood which every child deserves and they are not only made to be dependent on others for the rest of their lives but also, ripped of their basic amenities and are made susceptible to various physical, mental and psychological abuses.

Laws prohibiting Child Marriage

Considering the Indian scenario, it can be indicated that there have been laws prohibiting child marriage from the past 90 years.

1) Prevention of Child Marriage Act 2006

One of the significant laws being Prevention of Child Marriage Act (PCMA) 2006, it states that any marriage between a man who is above 18 years of age and a girl below 18 years would be a punishable offence with imprisonment and a fine up to 1 lakh rupees. But the lacuna which exits in this law is that, though PCMA makes child marriage a non-bailable offence, it is voidable at the discretion of the bride. That is, the child bride has a right to declare her marriage null and void after attaining majority, and if she doesn’t take any measures regarding this, her marriage would still be valid. Considering the social scenario in India under which such marriages happen, it is practically impossible for the bride to go against the norms of the society and her parent’s decisions.

2) Section 5(n) of POCSO

Section 5(n) of Protection of Children from Sexual Offences makes penetrant sexual assault on any child by anyone related to the child or otherwise a punishable offence. In addition to this, clause 6 also states that any sexual act against a girl below 18 years of age, with or without consent would be a punishable offence. Certain exceptions to 375 which allowed husbands to consummate their marriage with wife being 15 to 18 years of age were amended in November 2017, in the case of Independent thought v. Union of India[19]. Therefore, according to POCSO, if the male is an adult and the bride is a minor and any family member of hers forcing, abetting or coercing her into marrying a man before she attains 18 years of age, will be prosecuted. Another significant aspect to be measured here is that, if the state governments strictly comply with these norms, they will have to take action against the various politicians who organize mass weddings which involve child brides.

3) Hindu Marriage Act, 1956

Speaking about Child marriage, it can be said that Hindu Marriage Act rather takes a backseat while dealing with such issues, as it makes only the parties to child marriage liable and not the parents who actually solemnize the marriage. Regarding the girl, the provision states that a girl can get her marriage annulled after attaining 18 only if she was married before 15 years. This again poses as a problem as it has been discussed early that, after a girl is married off at an early age, she becomes completely dependent on the husband and his family and will be left with no resources to support herself and hence, in most of the cases the brides usually do not opt to annul their marriages after attaining the age of majority [20]. 

Lastly, it can rather be stated that there exist numerous loopholes in the current law that deals with child marriage in India. In addition to this various other factors like that of poverty, lack of education, lack of awareness regarding the law, increase in demand for dowry, preserving the virginity of the girl, various customs and superstitions, lack of protection and safety for girls, act as driving forces in increasing child marriages in India. Hence, if the government strives to bring an end to child marriages in India, it will rather have to focus on bringing to book and addressing the above-mentioned factors.

Should India have a Uniform Civil Code?

Uniform Civil Code (UCC)

One of the major reasons behind Uniform Civil Code gaining ground and evolving as a mainstream issue is the plight of the Muslim women and them turning to Supreme Court in order to seek justice in order to uplift their socio-economic conditions and also to uphold the fundamental rights enshrined to them under the Indian Constitution. Moreover, Article 44 of the Indian Constitution, which speaks about Directive Principles, states that- “State shall attempt to provide the Uniform Civil Code to the citizens throughout the country”.

Arguments favoring implementation of UCC

1) Ensuring equal status to citizens- India being a democratic republic, there should be an existence of a state which treats every citizen equally irrespective of their caste, creed, religion or gender.

2) Establishing national integration- The very idea of a secular state underlines the importance of treating everyone on equal lines. UCC would ensure that the same set of criminal and civil laws are made applicable to people of all religions in India. This would also curb the politicization of various issues, special amenities enjoyed by people of certain religion or any kind of discrimination faced by people of a particular religion[21].

3) Making room for reforms in personal laws- The current personal laws in India tend to have a patriarchal notion and rather focus on treating women as a substitute or the second sex. But with the evolution of time, there arises a dire need to uplift women and give them their required status which can be ensured by way of UCC.

4) To render the aspirations of the youth- A large chunk of India’s population being below 25 years, it becomes important for a country like India to shape the goals, social thinking and aspirations of the youth in a correct manner. On the contrary, governing people differently based on their religious identity would cause much damage.                                                                       

Arguments opposing implementation of UCC

1) Vast diversity in India- India being a secular country, it becomes practically impossible to govern people belonging to different religions under the same set of laws which tend to go against their cultural and religious practices.

2) Is the time apt for such an implementation? In recent times, India has seen numerous oppositions from the Muslim community be it in terms of beef banning or saffronization of curriculum in school, or love jihad. Considering these aspects it can rather be concluded that this might not be the right time to implement UCC.

3) Intervention of the state in personal laws- Taking a look at the Constitution it can be specified that it provides for freedom to practice and profess any religion of one’s own choice. Bringing in UCC would mean mandating people to follow certain laws which go against the freedom ensured by the government of India[22].

Conclusion

The crux of the issue of personal laws has been discussed in detail in the paper. Additionally, there has also been a detailed study of ongoing changes regarding personal laws in contemporary India, certain personal laws which await changes, in order to be in line with the changing notions of the society, certain other laws which were changed recently by the courts in India, have also been deliberated in the paper. Lastly, it can be said that considering the vast diversity in India, any changes being brought in terms of personal laws should be done with utmost care and caution and at the same time, it is also important to bring reforms in laws from time to time, in order to accommodate the rapidly changing and evolving designs of the society.

References

[1] Raya Hazarika, Are all Personal Laws in India discriminatory?, Livemint blog, available at https://www.livemint.com/Opinion/Cn69qE9pQClmtQzzvw1oVP/All-personal-laws-in-India-are-discriminatory.html, last seen on  7th December 2019.

[2] Disha Madhok, Personal Laws in India and their working, Quartz India blog, available at https://qz.com/india/224632/indian-women-will-never-be-equal-as-long-as-these-9-laws-remain-on-the-books/, last seen on 6th December 2019.

[3] Shaswati Das, Section 377 verdict by Supreme Court: 5 things to know, Livemint blog, available at https://www.livemint.com/Politics/d8zjDGMLYr2hCHMt54iKcN/Section-377-verdict-by-Supreme-Court-today-5-key-things-to.html, last seen on 8th December 2019.

[4] Navtej Singh Johar v. Union of India, W. P. (Crl.) No. 76 of 2016, (Supreme Court of India)

[5] Namrata Kandankovi, Decriminalizing Homosexuality in India, available on Ipleaders blog, https://blog.ipleaders.in/decriminalising-homosexuality-section-377-india/, last seen on 8th December 2019.

[6] Naz Foundation v. Government of Delhi NCT of India, WP(C) No.7455/2001.

[7] Pradeep Chibber, Nirvikar Jassal, Next Steps after 377 judgment, The Hindu Blog, available at https://www.thehindu.com/opinion/op-ed/next-steps-after-the-377-judgment/article25184282.ece, last seen on 8th December 2019.

[8] Yusuf Abdul Aziz v. State of Bombay, 1954 AIR 321, 1954 SCR 930.

[9] Sowmithri Vishnu v. Union of India, 1985 AIR 1618, 1985 SCR Supl. (1) 741.

[10] Namrata Kandankovi, Effects and consequences of decriminalising adultery in India, Ipleaders blog, available at https://blog.ipleaders.in/legalising-adultery-in-india/, last seen on 10th December 2019.

[11] Aneesh Mathur, Sabarimala Case: SC refuses to have stay on the ban on entry of women in the holy shrine, India Today blog, available on https://www.indiatoday.in/india/story/sabrimala-temple-women-entry-sc-verdict-1619098-2019-11-14, last seen on 10th December 2019.

[12] N J Nair, Kerala not to allow women visit the temple for worship, The Hindu blog, available on https://www.thehindu.com/news/national/kerala/govt-not-to-entertain-women-in-sabarimala/article29985595.ece, last seen on 10th December 2019.

[13] K R Vidhyanathan, Pilgrimage to Sabarimala, 78 (1st ed., 2018)

[14] Anand Marga Pracharaka Sangha v. Commission of Income tax, 1996 218 ITR 254 Cal

[15] Rhea Singhal, Marital Rape: Consent, Marriage and Social Change in global context, 112 (1st ed., 2016)

[16] David Finkelhor, License to rape- Sexual abuse of wives, 43 (2nd ed., 2017)

[17] RTI Foundation v. Union of India, 2016 186 SCR 2313

[18] K. P Yadhav, Child Marriages in India, 58 (1st ed., 2018)

[19] Independent Thought v. Union of India, 2017 213 CRJ 1619.

[20] Yusuf Ibrahim Mohammad Lokhat v. State of Gujarat, 2014 1358 CR 213.

[21] Richard S Nowka, Mastering Secured Transaction: Article 9 UCC, 123 (1st ed., 2017)

[22] Stephen L Sepinuck, Practice under Article 9 of UCC, 112 (2nd ed., 2019)


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